EX-10.7 8 b37246npex10-7.txt LEASE BETWEEN NETWORK PLUS, INC. AND TRUNKS UP 1 Exhibit 10.7 LEASE BETWEEN NETWORK PLUS, INC., AS TENANT AND TRUNKS UP LLC, AS LANDLORD 41 Pacella Park Drive Randolph, MA 02368 2 TABLE OF CONTENTS
PAGE ---- ARTICLE 1 BASIC DATA; DEFINITIONS.................................. 1 1.1 BASIC DATA............................................... 1 1.2 DEFINITIONS.............................................. 2 1.3 ENUMERATION OF EXHIBITS.................................. 5 ARTICLE 2 PREMISES AND APPURTENANT RIGHTS.......................... 5 2.1 LEASE OF PREMISES........................................ 5 2.2 APPURTENANT RIGHTS....................................... 5 2.3 OPTION TO EXTEND......................................... 5 ARTICLE 3 BASIC RENT............................................... 8 3.1 PAYMENT.................................................. 8 ARTICLE 4 COMMENCEMENT AND CONDITION............................... 8 4.1 COMMENCEMENT DATE........................................ 8 4.2 CONDITION OF THE PREMISES................................ 9 ARTICLE 5 USE OF PREMISES.......................................... 9 5.1 PERMITTED USE............................................ 9 5.2 INSTALLATIONS AND ALTERATIONS BY TENANT.................. 9 5.3 EXTRA HAZARDOUS USE...................................... 11 5.4 HAZARDOUS MATERIALS...................................... 11 5.5 LANDLORD'S RESPONSIBILITY RE: ASBESTOS TILE.............. 12 ARTICLE 6 ASSIGNMENT AND SUBLETTING................................ 12 6.1 PROHIBITION.............................................. 12 6.2 ACCEPTANCE OF RENT....................................... 13 6.3 EXCESS PAYMENTS.......................................... 14 6.4 LANDLORD'S RECAPTURE RIGHT............................... 14 6.5 FURTHER REQUIREMENTS..................................... 15 ARTICLE 7 RESPONSIBILITY FOR REPAIRS AND CONDITIONOF PREMISES; SERVICES TO BE FURNISHED BY TENANT..................... 18 7.1 LANDLORD REPAIRS......................................... 18 7.2 TENANT REPAIRS AND MAINTENANCE........................... 18 7.3 FLOOR LOAD - HEAVY MACHINERY............................. 20 7.4 ELECTRICITY SERVICE...................................... 20 7.5 INTERRUPTION OF SERVICE.................................. 21
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PAGE ---- ARTICLE 8 REAL ESTATE TAXES........................................ 21 8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES................. 21 8.2 ABATEMENT................................................ 23 ARTICLE 9 OPERATING AND UTILITY EXPENSES........................... 24 9.1 DEFINITIONS.............................................. 24 9.2 TENANT'S PAYMENT OF OPERATING EXPENSES................... 24 9.3 UTILITY PAYMENTS......................................... 25 ARTICLE 10 INDEMNITY AND PUBLIC LIABILITY INSURANCE................. 25 10.1 TENANT'S INDEMNITY....................................... 25 10.2 TENANT INSURANCE......................................... 26 10.3 TENANT'S RISK............................................ 26 10.4 WAIVER OF SUBROGATION.................................... 27 ARTICLE 11 FIRE, EMINENT DOMAIN, ETC................................ 27 11.1 NOTICE OF DAMAGE......................................... 27 11.2 MINOR CASUALTY........................................... 27 11.3 MAJOR CASUALTY........................................... 28 11.4 CASUALTY IN LAST SIX MONTHS.............................. 29 11.5 LEASE TERMINATION IN FINAL TWO YEARS..................... 29 11.6 LANDLORD'S INSURANCE..................................... 29 11.7 ABATEMENT OF RENT........................................ 30 11.8 CONDEMNATION............................................. 30 11.9 CONDEMNATION AWARD....................................... 30 ARTICLE 12 HOLDING OVER; SURRENDER.................................. 31 12.1 HOLDING OVER............................................. 31 12.2 SURRENDER OF PREMISES.................................... 31 ARTICLE 13 RIGHTS OF MORTGAGEES; TRANSFER OF TITLE.................. 32 13.1 RIGHTS OF MORTGAGEES..................................... 32 13.2 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE................ 32 13.3 NOTICE TO MORTGAGEE...................................... 33 ARTICLE 14 DEFAULT; REMEDIES........................................ 33 14.1 TENANT'S DEFAULT......................................... 33 14.2 LANDLORD'S REMEDIES...................................... 37 14.3 ADDITIONAL RENT.......................................... 39 14.4 REMEDYING DEFAULTS....................................... 39 14.5 REMEDIES CUMULATIVE...................................... 39 14.6 ATTORNEYS' FEES.......................................... 39 14.7 WAIVER................................................... 39 14.8 LANDLORD'S DEFAULT....................................... 40
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PAGE ---- ARTICLE 15 MISCELLANEOUS PROVISIONS................................. 40 15.1 RIGHTS OF ACCESS......................................... 40 15.2 COVENANT OF QUIET ENJOYMENT.............................. 40 15.3 LANDLORD'S LIABILITY..................................... 41 15.4 ESTOPPEL CERTIFICATE..................................... 41 15.5 BROKERAGE................................................ 41 15.6 RULES AND REGULATIONS.................................... 42 15.7 INVALIDITY OF PARTICULAR PROVISIONS...................... 42 15.8 PROVISIONS BINDING, ETC.................................. 42 15.9 RECORDING................................................ 42 15.10 NOTICE................................................... 42 15.11 WHEN LEASE BECOMES BINDING; ENTIRE AGREEMENT; MODIFICATION............................................. 43 15.12 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS........ 43 15.13 DISPUTE RESOLUTION....................................... 43 15.14 WAIVER OF JURY TRIAL..................................... 44 15.15 TIME IS OF THE ESSENCE................................... 44 15.16 MULTIPLE COUNTERPARTS.................................... 44 15.17 GOVERNING LAW............................................ 44 EXHIBIT A Legal Description of Land........................................ A-1 EXHIBIT B Site Plan of Building............................................ B-1 EXHIBIT C Commencement Date Letter......................................... C-1 EXHIBIT D Operating Expenses............................................... D-1 EXHIBIT E Rules and Regulations of Building................................ E-1
5 L E A S E THIS LEASE is dated as of ______________, 2000 between the Landlord and the Tenant named below, and is of space in the Building described below. ARTICLE 1 BASIC DATA; DEFINITIONS 1.1 BASIC DATA. Each reference in this Lease to any of the following terms shall be construed to incorporate the data for that term set forth in this Section: LANDLORD: Trunks Up LLC, a Delaware limited liability corporation LANDLORD'S ADDRESS: c/o Network Plus, Inc. 234 Copeland Street Quincy, MA 02169 Attn: Mr. Robert Hale, Jr. TENANT: Network Plus, Inc., a Massachusetts corporation TENANT'S ADDRESS: 41 Pacella Park Drive Randolph, MA 02368 Attn: CFO and General Counsel PROPERTY: The land located in Randolph, Massachusetts, together with the Building and other improvements thereon, all as more particularly described in EXHIBIT A attached hereto. BUILDING: The building commonly known and numbered as 41 Pacella Park Drive, consisting of 80,000 rentable square feet, as shown on the site plan attached hereto as EXHIBIT B. PREMISES: The entire Property, including the Land and the Building, as shown on the site plan attached hereto as EXHIBIT B. BASIC RENT: The Basic Rent is as follows: 6
---------------------------------------------------------------------------------------------------------- RENTAL PERIOD ANNUAL BASIC RENT MONTHLY PAYMENT ---------------------------------------------------------------------------------------------------------- From the Commencement Date to February 28, 2009. $1,200,000.00, based upon an $100,000.00 annual lease rate of $15.00 per square foot ---------------------------------------------------------------------------------------------------------- From March 1, 2009 to February 28, 2013. $1,360,000.00, based upon an $113,333.33 annual lease rate of $17 per square foot ----------------------------------------------------------------------------------------------------------
SCHEDULED COMMENCEMENT DATE: March 1, 2005. TERM: 8 years, commencing on the Commencement Date and expiring at the close of the day immediately preceding the 9th anniversary of the Commencement Date, except that if the Commencement Date is other than the first day of a calendar month, the expiration of the Term shall be at the close of the last day of the calendar month in which such anniversary falls. The Term shall include any extension thereof that is expressly provided for by this Lease and that is effected strictly in accordance with this Lease; if no extension of the Term is expressly provided for by this Lease, no right to extend the Term shall be implied by this provision. INITIAL GENERAL LIABILITY INSURANCE: $1,000,000 per occurrence/$2,000,000 aggregate (combined single limit) for property damage, bodily injury or death. PERMITTED USES: General office, warehousing and light manufacturing. 1.2 DEFINITIONS. When used in Lease, the capitalized terms set forth below shall bear the meanings set forth below. ADEQUATE ASSURANCE: As defined in SECTION 14.1. ADEQUATE ASSURANCE OF FUTURE PERFORMANCE: As defined in SECTION 14.1. ADDITIONAL RENT: All charges and sums payable by Tenant as set forth in this Lease, other than and in addition to Basic Rent. ALTERATIONS: As defined in SECTION 5.2. BANKRUPTCY CODE: As defined in SECTION 14.1. BASIC RENT: As defined in SECTION 1.1. 7 BUILDING: As defined in SECTION 1.1. BUSINESS DAY: All days except Saturdays, Sundays, and other days when national banks in the state in which the property is located are not open for business. COMMENCEMENT DATE: As defined in SECTION 4.1. COMMON FACILITIES: As defined in SECTION 2.2. DEFAULT OF TENANT: As defined in SECTION 14.1. ENVIRONMENTAL CONDITION: Any disposal, release or threat of release of Hazardous Materials on, from or about the Building or the Property or storage of Hazardous Materials on, from or about the Building or the Property. ENVIRONMENTAL LAWS: Any federal, state and/or local statute, ordinance, bylaw, code, rule and/or regulation now or hereafter enacted, pertaining to any aspect of the environment or human health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.ss.9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C.ss.6901 et seq., the Toxic Substances Control Act, 15 U.S.C.ss.2061 et seq., the Federal Clean Water Act, 33 U.S.C.ss.1251, and the Federal Clean Air Act, 42 U.S.C.ss.7401 et seq. EVENT OF BANKRUPTCY: As defined in SECTION 14.1. FORCE MAJEURE: Collectively and individually, strikes or other labor trouble, fire or other casualty, acts of God, governmental preemption of priorities or other controls in connection with a national or other public emergency or shortages of fuel, supplies or labor resulting therefrom, or any other cause, whether similar or dissimilar, beyond the reasonable control of the party required to perform an obligation. HOLDER: As defined in SECTION 13.1. HAZARDOUS MATERIALS: Shall mean each and every element, compound, chemical mixture, contaminant, pollutant, material, waste or other substance which is defined, determined or identified as hazardous or toxic under any Environmental Law, including, without limitation, any "oil," "hazardous material," "hazardous waste," "hazardous substance" or "chemical substance or mixture", as the foregoing terms (in quotations) are defined in any Environmental Laws. INITIAL GENERAL LIABILITY INSURANCE: As defined in SECTION 1.1. LAND: The land that constitutes a portion of the Property. LANDLORD: As defined in SECTION 1.1. 8 LANDLORD'S ADDRESS: As defined in SECTION 1.1. MORTGAGE: As defined in SECTION 13.1. OPERATING EXPENSES: As defined in SECTION 9.1. OPERATING YEAR: As defined in SECTION 9.1. PERMITTED USES: As defined in SECTION 1.1. PLANS: As defined in SECTION 4.2. PREMISES: As defined in SECTION 1.1. PROPERTY: As defined in SECTION 1.1. RULES AND REGULATIONS : As defined in SECTION 2.2. SCHEDULED COMMENCEMENT DATE: As defined in SECTION 1.1. SERVICE INTERRUPTION: As defined in SECTION 7.6. SUCCESSOR: As defined in SECTION 13.1. TAXES: As defined in SECTION 8.1. TAX YEAR: As defined in SECTION 8.1. TENANT: As defined in SECTION 1.1. TENANT'S ADDRESS: As defined in SECTION 1.1. TENANT'S REMOVABLE PROPERTY: As defined in SECTION 5.2. TERM: As defined in SECTION 1.1. 1.3 ENUMERATION OF EXHIBITS. The following Exhibits are a part of this Lease, are incorporated herein by reference attached hereto, and are to be treated as a part of this Lease for all purposes. Undertakings contained in such Exhibits are agreements on the part of Landlord and Tenant, as the case may be, to perform the obligations stated therein. Exhibit A - Legal Description of Land Exhibit B - Site Plan of Building Exhibit C - Commencement Date Letter 9 Exhibit D - Operating Expenses Exhibit E - Rules and Regulations ARTICLE 2 PREMISES AND APPURTENANT RIGHTS 2.1 LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises for the Term and upon the terms and conditions hereinafter set forth. 2.2 APPURTENANT RIGHTS. (a) Tenant shall have, as appurtenant to the Premises, the non-exclusive right to use, and permit its invitees to use in common with others entitled thereto, the easements, rights of way or other rights, if any, which are appurtenant to the Property pursuant to any recorded documents evidencing such easements or rights; but such rights shall always be subject to such conditions, rules and regulations from time to time established by Landlord pursuant to SECTION 15.6 (the "RULES AND REGULATIONS") and to the right of Landlord to designate and change from time to time such appurtenant rights pursuant to the terms of the recorded documents evidencing such rights. 2.3 OPTION TO EXTEND. (a) Provided that, at the time of such exercise, (i) this Lease is in full force and effect, (ii) no Default of Tenant shall have occurred and be continuing (either at the time of exercise or at the commencement of an Extended Term), and (iii) Tenant or its successor by merger or other transaction in accordance with the terms of Section 6.1(b), shall then be occupying at least fifty percent (50%) Premises and shall not have assigned or sublet more than fifty percent (50%) of the Premises other than by a transaction permitted by the terms of Section 6.1(b), Tenant shall have the right and option to extend the Term of this Lease for two (2) extended terms (each an "Extended Term") of five (5) years each by giving written notice to Landlord not later than twelve (12) months nor earlier than fifteen (15) months prior to the expiration date of the then current Term, subject to the terms of SECTION 11.5 below. Subject to the terms of PARAGRAPH (b) below, the effective giving of such notice of extension by Tenant shall automatically extend the Term of this Lease for the Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, this Lease shall automatically terminate at the end of then current Term and Tenant shall have no further option to extend the Term of this Lease. The first Extended Term shall commence on the day immediately succeeding the expiration date of the Initial Term, and shall end on the day immediately preceding the fifth anniversary of the first day of the Extended Term. The second Extended Term shall commence on the day immediately succeeding the expiration of the first Extended Term and shall end on the day immediately preceding the fifth anniversary of the first day of the second Extended Term. Each Extended Term shall be on all the terms and conditions of this Lease, except: (i) during the second Extended Term, Tenant shall have no further option to extend the Term, and (ii) the Basic Rent for each Extended Term 10 shall be the greater of (x) ninety five percent (95%) of the Fair Market Rental Value for the Premises as of the commencement of the applicable Extended Term, determined pursuant to PARAGRAPH (b), and (y) the Basic Rent due for the last year of the Term immediately prior to the commencement of the applicable Extended Term (either the Initial Term or the first Extended Term, as applicable). (b) Promptly after receiving Tenant's notice extending the Term of this Lease pursuant to PARAGRAPH (a) above, Landlord shall provide Tenant with Landlord's good faith estimate of the Fair Market Rental Value of the Premises for the Extended Term based upon rents being paid by tenants entering into leases in the area in which the Property is located. If Tenant is unwilling to accept Landlord's estimate of Fair Market Rental Value as set forth in Landlord's notice referred to above, and the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, then Landlord and Tenant shall, not later than thirty (30) days after the expiration of the aforesaid thirty (30) day period, each retain a real estate professional with at least ten (10) years continuous experience in the business of appraising or marketing commercial real estate in the greater Boston area who shall, within thirty (30) days of his or her selection, prepare a written report summarizing his or her determination of the Fair Market Rental Value for such Extended Term. Landlord and Tenant shall simultaneously exchange such reports; provided, however, if either party has not obtained such a report within sixty (60) days after Tenant receives Landlord's notice, then the determination set forth in the other party's report shall be final and binding upon the parties. If both parties receive reports within such time and the lower determination is within ten percent (10%) of the higher determination, then the greater of (i) the annual Basic Rent in effect immediately preceding such Extended Term or (ii) the average of the two determinations shall be deemed to be the Fair Market Rental Value for such Extended Term. If the lower determination is not within ten percent (10%) of the higher determination, then Landlord and Tenant shall mutually select a person with the qualifications stated above (the "Final Professional") to resolve the dispute as to the Fair Market Rental Value for such Extended Term. If Landlord and Tenant cannot agree upon the designation of the Final Professional within thirty (30) days of the exchange of the first valuation reports, either party may apply to the American Arbitration Association, the Greater Boston Real Estate Board, or any successor thereto, for the designation of a Final Professional. Within ten (10) days of the selection of the Final Professional, Landlord and Tenant shall each submit to the Final Professional a copy of their respective real estate professional's determination of the Fair Market Rental Value for such Extended Term. The Final Professional shall not perform his or her own valuation, but rather shall, within thirty (30) days after such submissions, select the submission which is closest to the determination of the Fair Market Rental Value for such Extended Term which the Final Professional would have made acting alone. The Final Professional shall give notice of his or her selection to Landlord and Tenant and such decision shall, subject to the terms of the last two (2) sentences of this PARAGRAPH (b) below, be final and binding upon Landlord and Tenant, provided, however, in no event shall the Fair Market Rental Value be less than the annual Basic Rent in effect immediately preceding such Extended Term. Each party shall pay the fees and expenses of its real estate professional and counsel, if any, in connection with any proceeding under this paragraph, and the parties shall each pay one-half of the fees and expenses of the Final Professional. If Tenant is unwilling to accept the Fair Market Rental Value determined in 11 accordance with the process set forth above, then Tenant shall have the option to rescind its notice of election to extend the Term of this Lease by delivering written notice to Landlord within ten (10) days of, as applicable, (i) receipt of both reports from each of Tenant's and Landlord's respective selected real estate professionals, if the lower determination is within ten percent (10%) of the higher determination, (ii) the expiration of the sixty (60) day period after Tenant receives Landlord's notice of its estimate of Fair Market Value, if Tenant is unwilling to accept such estimate and either party has not obtained a report summarizing a real estate professional's determination of Fair Market Value within such sixty (60) day period, or (iii) receipt of notice from the Final Professional of his or her selection of the determination of the Fair Market Rental Value. The effective giving of such notice by Tenant shall rescind its notice of extension, and thereafter Tenant shall have no further option to extend the Term of this Lease, and the Lease shall expire on the originally scheduled expiration date of the Initial Term or, if Tenant has extended the Initial Term in accordance with the terms hereof, the first Extended Term, as applicable. ARTICLE 3 BASIC RENT 3.1 PAYMENT. (a) Tenant agrees to pay the Basic Rent and Additional Rent to Landlord, or as directed by Landlord, commencing on the Commencement Date, without offset, abatement (except as provided in SECTION 11.4), deduction or demand. Basic Rent shall be payable in equal monthly installments, in advance, on the first day of each and every calendar month during the Term of this Lease, to Landlord at Landlord's Address or at such other place as Landlord shall from time to time designate by notice, in lawful money of the United States. In the event that any installment of Basic Rent or any regularly scheduled payment of Additional Rent is not paid within three (3) Business Days of when due, Tenant shall pay, in addition to any charges under SECTION 14.4, at Landlord's request an administrative fee equal to 5% of the overdue payment. Landlord and Tenant agree that all amounts due from Tenant under or in respect of this Lease, whether labeled Basic Rent, Additional Rent or otherwise, shall be considered as rental reserved under this Lease for all purposes, including without limitation regulations promulgated pursuant to the Bankruptcy Code, and including further without limitation Section 502(b) thereof. (b) Basic Rent for any partial month shall be pro-rated on a daily basis, and if the first day on which Tenant must pay Basic Rent shall be other than the first day of a calendar month, the first payment which Tenant shall make to Landlord shall be equal to a proportionate part of the monthly installment of Basic Rent for the partial month from the first day on which Tenant must pay Basic Rent to the last day of the month in which such day occurs, plus the installment of Basic Rent for the succeeding calendar month. ARTICLE 4 COMMENCEMENT AND CONDITION 4.1 COMMENCEMENT DATE. The "COMMENCEMENT DATE" shall be the Scheduled 12 Commencement Date set forth in SECTION 1.1 hereof. Promptly upon the occurrence of the Commencement Date, Landlord and Tenant shall execute a letter substantially in the form attached hereto as EXHIBIT C, but the failure by either party to execute such a letter shall have no effect on the Commencement Date, as hereinabove determined. 4.2 CONDITION OF THE PREMISES. Tenant agrees to accept the Premises in an as-is condition. Landlord shall have no obligation to perform any work or construction. No improvements or alterations shall occur prior to the Commencement Date. Should Tenant desire to perform any work or construction, the same shall be done only in accordance with this Lease. ARTICLE 5 USE OF PREMISES 5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and occupied by Tenant only for Permitted Uses and for no other use without Landlord's express written consent. (b) Tenant agrees to conform to the following provisions during the Term of this Lease: (i) Intentionally omitted; (ii) Intentionally omitted. (iii) Tenant shall not perform any act or carry on any practice which may injure the Premises, or cause any offensive odors or loud noise or constitute a nuisance or a menace; (iv) Subject to the terms of Section 7.1 below, Tenant shall, in its use of the Premises, comply with the requirements of all applicable governmental laws, rules and regulations, including, without limitation, the Americans With Disabilities Act of 1990 and the regulations of the Massachusetts Architectural Access Board; and (v) Tenant shall not abandon the Premises. 5.2 INSTALLATIONS AND ALTERATIONS BY TENANT. (a) Tenant shall make no alterations, additions (including, for the purposes hereof, wall-to-wall carpeting), or improvements (collectively, "ALTERATIONS") in or to the Premises without Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed with respect to non-structural Alterations that do not affect or involve the Building's electrical, plumbing or mechanical systems or any other Building systems. Any 13 Alterations shall be in accordance with the Rules and Regulations in effect with respect thereto and with plans and specifications meeting the requirements set forth in the Rules and Regulations and approved in advance by Landlord. All work shall (i) be performed in a good and workmanlike manner and in compliance with all applicable laws, ordinances, rules and regulations; (ii) be made at Tenant's sole cost and expense; (iii) become part of the Premises and the property of Landlord except for (A) those Alterations designated by Landlord at the time Landlord approves the Alterations pursuant to this Section to be removed upon the expiration or earlier termination of the Term and/or (B) those Alterations which can be removed without any damage to the Building caused by such removal unless Tenant, at its expense, shall repair any such damage to the Building; and (iv) be coordinated with any work being performed by Landlord in such a manner as not to damage the Building or interfere with the construction or operation of the Building. At Landlord's request, Tenant shall, before its work is started, secure assurances satisfactory to Landlord in its reasonable discretion protecting Landlord against claims arising out of the furnishing of labor and materials for the Alterations. If any Alterations shall involve the removal of fixtures, equipment or other property in the Premises which are not Tenant's Removable Property, such fixtures, equipment or property shall be promptly replaced by Tenant at its expense with new fixtures, equipment or property of like utility and of at least equal quality. (b) All articles of personal property and all business fixtures, machinery and equipment and furniture owned or installed by Tenant solely at its expense (including, without limitation, any of the foregoing items which are paid for by the "Subtenant Improvement Allowance" as such term is defined in that certain Sublease by and between PacSci Motion Control, Inc., as sublandlord, and Tenant, as subtenant, dated as of October 22, 1999 (the "PacSciSublease")) in the Premises ("TENANT'S REMOVABLE PROPERTY") shall remain the property of Tenant and may be removed by Tenant at any time prior to the expiration or earlier termination of the Term, provided that Tenant, at its expense, shall repair any damage to the Building caused by such removal. (c) Notice is hereby given that Landlord shall not be liable for any labor or materials furnished or to be furnished to Tenant upon credit, and that no mechanic's or other lien for any such labor or materials shall attach to or affect the reversion or other estate or interest of Landlord in and to the Premises, the Building or the Property. To the maximum extent permitted by law, before such time as any contractor commences to perform work on behalf of Tenant, such contractor (and any subcontractors) shall furnish a written statement acknowledging the provisions set forth in the prior clause. Tenant agrees to pay promptly when due the entire cost of any work done on behalf of Tenant, its agents, employees or independent contractors, and not to cause or permit any liens for labor or materials performed or furnished in connection therewith to be filed against all or any part of the Property and to discharge any such liens which may be so filed as set forth in the next sentence. If, notwithstanding the foregoing, any lien is filed against all or any part of the Property for work claimed to have been done for, or materials claimed to have been furnished to, Tenant or its agents, employees or independent contractors, Tenant, at its sole cost and expense, shall cause such lien to be dissolved promptly after receipt of notice that such lien has been filed (and in any event within fifteen (15) days of Tenant's receipt of notice or 14 other knowledge thereof), by the payment thereof or by the filing of a bond sufficient to accomplish the foregoing. If Tenant shall fail to discharge any such lien, Landlord may, at its option, discharge such lien and treat the cost thereof (including attorneys' fees incurred in connection therewith) as Additional Rent payable upon demand, it being expressly agreed that such discharge by Landlord shall not be deemed to waive or release the default of Tenant in not discharging such lien. Tenant shall indemnify and hold Landlord harmless from and against any and all expenses, liens, claims, liabilities and damages based on or arising, directly or indirectly, by reason of the making of any alterations, additions or improvements by or on behalf of Tenant to the Premises under this Section, which obligation shall survive the expiration or termination of this Lease. (d) In the course of any work being performed by Tenant (including, without limitation, the "field installation" of any of Tenant's Removable Property), Tenant agrees to use labor compatible with that being employed by Landlord for work in the Building or on the Property and not to employ or permit the use of any labor or otherwise take any action which might result in a labor dispute involving personnel providing services in the Building or on the Property pursuant to arrangements made by Landlord. 5.3 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do or permit anything to be done in or upon the Premises, or bring in anything or keep anything therein, which shall increase the rate of property or liability insurance on the Premises or the Property above the standard rate applicable to Premises being occupied for the Permitted Uses. If the premium or rates payable with respect to any policy or policies of insurance purchased by Landlord with respect to the Property increases as a result of any act or activity on or use of the Premises during the Term or payment by the insurer of any claim arising from any act or neglect of Tenant, its employees, agents, contractors or invitees, Tenant shall pay such increase, from time to time, within fifteen (15) days after demand therefor by Landlord, as Additional Rent. 5.4 HAZARDOUS MATERIALS. (a) Tenant may use chemicals such as adhesives, lubricants, ink, solvents and cleaning fluids of the kind and in amounts and in the manner customarily found and used in business offices in order to conduct its business at the Premises and to maintain and operate the business machines located in the Premises. Except as specifically set forth in the immediately preceding sentence, Tenant shall not use, store, handle, treat, transport, release or dispose of any Hazardous Materials on or about the Premises or the Property without Landlord's prior written consent, which Landlord may withhold or condition in Landlord's sole discretion. (b) Any handling, treatment, transportation, storage, disposal or use of Hazardous Materials by Tenant in or about the Premises or the Property and Tenant's use of the Premises shall comply with all applicable Environmental Laws. (c) Tenant shall indemnify, defend upon demand with counsel reasonably acceptable to Landlord, and hold Landlord harmless from and against, any liabilities, losses 15 claims, damages, interest, penalties, fines, attorneys' fees, experts' fees, court costs, remediation costs, and other expenses which result from the use, storage, handling, treatment, transportation, release, threat of release or disposal of Hazardous Materials in or about the Premises or the Property by Tenant or Tenant's agents, employees, contractors or invitees. (d) Tenant shall give written notice to Landlord as soon as reasonably practicable of (i) any communication received by Tenant from any governmental authority concerning Hazardous Materials which relates to the Premises or the Property, and (ii) any Environmental Condition of which Tenant is aware. 5.5 LANDLORD'S RESPONSIBILITY RE: ASBESTOS TILE. Subject to Tenant's compliance with all applicable laws, ordinances and regulations, including, without limitation, any operation and maintenance plan, and the terms of this Lease, Landlord agrees to indemnify and save Tenant harmless from and against any claims, liabilities, losses, damages, interest, penalties, fines, attorneys' fees, experts' fees and court costs and other expenses actually incurred by Tenant arising from any enforcement action, third party claim for bodily injury or property damage or remediation required by any Environmental Law, in each case, resulting from the presence of any asbestos tiles or other asbestos containing materials in the Building. ARTICLE 6 ASSIGNMENT AND SUBLETTING 6.1 PROHIBITION. (a) Tenant covenants and agrees that neither this Lease nor the term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred, whether voluntarily, involuntarily, by operation of law or otherwise, and that neither the Premises nor any part thereof will be encumbered in any manner by reason of any act or omission on the part of Tenant, or used or occupied or permitted to be used or occupied, by anyone other than Tenant, or for any use or purpose other than a Permitted Use, or be sublet (which term, without limitation, shall include granting of concessions, licenses and the like) in whole or in part, or be offered or advertised for assignment or subletting by Tenant or any person acting on behalf of Tenant, without, in each case, the prior written consent of Landlord. Without limiting the foregoing, any agreement pursuant to which: (x) Tenant is relieved from the obligation to pay, or a third party agrees to pay on Tenant's behalf, all or any portion of the Basic Rent or Additional Rent under this Lease; and/or (y) a third party undertakes or is granted by or on behalf of Tenant the right to assign or attempt to assign this Lease or sublet or attempt to sublet all or any portion of the Premises, shall for all purposes hereof be deemed to be an assignment of this Lease and subject to the provisions of this ARTICLE 6. The provisions of this PARAGRAPH (a) shall apply to a transfer (by one or more transfers) of a controlling portion of or interest in the stock or partnership or membership interests or other evidences of equity interests of Tenant as if such transfer were an assignment of this Lease; provided that if equity interests in Tenant at any time are or become traded on a public stock exchange, the transfer of equity interests in Tenant on a public stock exchange shall not be deemed an assignment within 16 the meaning of this Article. (b) The provisions of PARAGRAPH (a) shall not apply to either (x) transactions with an entity into or with which Tenant is merged or consolidated, or to which all or substantially all of Tenant's assets are transferred, or (y) transactions with any entity which controls or is controlled by Tenant or is under common control with Tenant; provided that in any such event: (i) with respect to an assignment of the Lease, the successor to Tenant has a net worth, computed in accordance with generally accepted accounting principles consistently applied, at least equal to the net worth of Tenant immediately prior to such merger, consolidation or transfer; (ii) proof satisfactory to Landlord of such net worth shall have been delivered to Landlord at least ten (10) days prior to the effective date of any such transaction unless such delivery is prohibited by applicable securities laws or regulations, and in which case such proof shall be delivered promptly upon closing of the transaction, and in the absence thereof, the closing of such transaction shall automatically and immediately constitute a Default of Tenant; and (iii) the assignee agrees directly with Landlord, by written instrument in form satisfactory to Landlord in its reasonable discretion, to be bound by all the obligations of Tenant hereunder (or, with respect to a sublease, those obligations of Tenant under the Lease which are binding upon the subleased premises) including, without limitation, the covenant against further assignment and subletting. 6.2 ACCEPTANCE OF RENT. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, whether or not in violation of the terms and conditions of the Lease, Landlord may, at any time and from time to time, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the rent and other charges herein reserved, but no such assignment, subletting, occupancy, collection or modification of any provisions of this Lease shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as a tenant or a release of Tenant from the further performance of covenants on the part of Tenant to be performed hereunder. Any consent by Landlord to a particular assignment, subletting or occupancy or other act for which Landlord's consent is required under PARAGRAPH (a) of SECTION 6.1 shall not in any way diminish the prohibition stated in PARAGRAPH (a) of SECTION 6.1 as to any further such assignment, subletting or occupancy or other act or the continuing liability of the original named Tenant. No assignment or subletting hereunder shall relieve Tenant from its obligations hereunder, and Tenant shall remain fully and primarily liable therefor. Landlord may revoke any consent by Landlord to a particular assignment, subletting or occupancy if the assignment or sublease does not provide that the assignee, subtenant or other occupant agrees to be independently bound by and upon all of the covenants, agreements, terms, provisions and conditions set forth in this Lease on the part of Tenant to be kept and performed. 17 6.3 EXCESS PAYMENTS. If Tenant assigns this Lease or sublets the Premises or any portion thereof, Tenant shall pay to Landlord as Additional Rent fifty percent (50%) of the amount, if any, by which (a) any and all compensation received by Tenant as a result of such assignment or subletting, net of reasonable expenses actually incurred by Tenant in connection with such assignment or subletting, exceeds (b) in the case of an assignment, the Basic Rent and Additional Rent under this Lease, and in the case of a subletting, the portion of the Basic Rent and Additional Rent allocable to the portion of the Premises subject to such subletting. Such payments shall be made on the date the corresponding payments under this Lease are due. Notwithstanding the foregoing, the provisions of this Section shall impose no obligation on Landlord to consent to an assignment of this Lease or a subletting of all or a portion of the Premises. 6.4 LANDLORD'S RECAPTURE RIGHT. (a) Notwithstanding anything herein to the contrary, in addition to withholding or granting consent with respect to any proposed assignment of this Lease or proposed sublease of all or a portion of the Premises, Landlord shall have the right, to be exercised in writing within thirty (30) days after written notice from Tenant seeking Landlord's consent to assign this Lease or sublease all or any portion of the Premises, to terminate this Lease (in the event of a proposed assignment) or recapture that portion of the Premises to be subleased (in the event of a proposed sublease) for the period of time equal to the term of the proposed sublease. In the case of a proposed assignment, this Lease shall terminate as of the date (the "RECAPTURE DATE") which is the later of (a) sixty (60) days after the date of Landlord's election, and (b) the proposed effective date of such assignment or sublease, as if such date were the last day of the Term of this Lease, subject to the forgoing and succeeding provisions with respect to proposed subleases that are for a term of less than the entire remainder of the Term. If Landlord exercises the rights under this Section in connection with a proposed sublease, this Lease shall be deemed amended to eliminate the proposed sublease premises from the Premises as of the Recapture Date through the end of the term of the proposed sublease, and thereafter, until the expiration of period of time equal to the term of the proposed sublease, all Basic Rent and Additional Rent shall be appropriately prorated to reflect the reduction of the Premises for such period as of the Recapture Date until the expiration of period of time equal to the term of the proposed sublease. (b) Landlord's right set forth in SECTION 6.4(a) above to recapture any portion of the Premises proposed to be subleased shall not apply if (i) the portion of the Premises covered by such proposed sublease is, together with any other portion of the Premises sublet previously by Tenant, for an area of not more than 20,000 rentable square feet of the Premises; (ii) the proposed sublease is for a term of not more than two (2) years; (iii) there shall remain, at the expiration of proposed sublease, at least two (2) years prior to the expiration of the Term of this Lease, including any applicable Extension Term exercised at the time of Tenant's notice requesting Landlord's consent to such proposed sublease; (iv) Tenant is occupying no less than fifty percent (50%) of the Premises for the conduct of its business; and (v) no Default of Tenant shall have occurred and be continuing beyond any applicable notice and cure periods. 18 6.5 FURTHER REQUIREMENTS. Tenant shall reimburse Landlord on demand, as an additional charge, for any out-of-pocket costs (including reasonable attorneys' fees and expenses) incurred by landlord in connection with any actual or proposed assignment or sublease or other act described in paragraph (a) of SECTION 6.1, whether or not consummated, including the costs of making investigations as to the acceptability of the proposed assignee or subtenant. Any sublease to which Landlord gives its consent shall not be valid or binding on Landlord unless and until Tenant and the sublessee execute a consent agreement in form and substance reasonably satisfactory to Landlord. In the event that Landlord consents to any sublease under the provisions of this Article, any such sublease shall provide that: (i) the term of the sublease must end no later than the last day of the Term of this Lease; (ii) no sublease shall be valid, and no subtenant shall take possession of all or any part of the Premises until a fully executed counterpart of such sublease has been delivered to Landlord; (iii) such sublease is subject and subordinate to this Lease; (iv) Landlord may enforce the provisions of the sublease, including collection of rents; (v) in the event of termination of this Lease or reentry or repossession of the Premises by Landlord, Landlord may, at its sole discretion and option, take over all of the right, title and interest of Tenant, as sublessor, under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord but nevertheless Landlord shall not (A) be liable for any previous act or omission of Tenant under such sublease; (B) be subject to any defense or offset previously accrued in favor of the subtenant against Tenant; or (C) be bound by any previous modification of such sublease made without Landlord's written consent or by any previous prepayment of more than one month's rent. 6.6 STANDARDS FOR CONSENT TO ASSIGNMENT AND SUBLETTING. In the event Landlord does not exercise its option pursuant to Section 6.4 to recapture the Premises or terminate this Lease in whole or in part and providing that Tenant is not in default of any of Tenant's obligations under this Lease, Landlord's consent to a proposed assignment or sublease shall not be unreasonably withheld, conditioned or delayed, provided and upon condition that: (i) In Landlord's judgment the proposed assignee or subtenant is engaged in a business which is in keeping with the then standards of the Building and Property and the proposed use is limited to the Permitted Use expressly permitted under Section 1.1 and will not violate any negative covenant as to use contained in any other lease of space in the Property; (ii) The proposed assignee or subtenant is a reputable person or entity with sufficient financial worth considering the responsibility involved, based on evidence provided by Tenant (and others) to Landlord, as determined by Landlord in its reasonable discretion; (iii) Neither (a) the proposed assignee or sublessee nor (b) any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or sublessee or any person or entity who controls the proposed assignee or sublessee, is then an occupant of any part of the Property or any other building owned or operated under a ground or underlying lease by Landlord or any person or entity which, directly or indirectly, 19 controls, is controlled by, or is under common control with Landlord or any person or entity who controls Landlord, PROVIDED THAT any such party has space available to offer for lease to any such proposed assignee or sublessee; (iv) The proposed assignee or sublessee is not a person or entity with whom Landlord is then negotiating to lease space at the Property; (v) The proposed sublease or assignment shall be in form reasonably satisfactory to Landlord and shall comply with the applicable provisions of this ARTICLE 6; (vi) Intentionally Omitted; (vii) The amount of the aggregate rent to be paid by the proposed subtenant is not less than the then current market rent per rentable square foot for the Premises as determined by Landlord in its sole discretion, reasonably exercised; and (viii) Tenant shall not have (a) advertised or publicized in any way the availability of the Premises without prior notice to and approval by Landlord, or (b) listed the Premises for subletting, whether through a broker, agent, representative, or otherwise at a rental rate less than the Annual Basic Rent and Additional Rent at which Landlord is then offering to lease other space in the Building. ARTICLE 7 RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES; SERVICES TO BE FURNISHED BY TENANT 7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease, Landlord agrees to keep in good order, condition and repair the roof, and the other structural components of the Building consisting of the structural walls, footings, foundations, floor slabs, columns, girders, load bearing interior walls (but specifically excluding all plumbing, mechanical, electrical, heating, ventilation and air conditioning systems), except that Landlord shall in no event be responsible to Tenant for the repair of any exterior or interior glass in the Building, the doors (or related glass and finish work) to the Building, or any condition in the Premises or the Building caused by any act or neglect of Tenant, its invitees or contractors, including, without limitation, any damage to the roof caused by Tenant's placement of equipment thereon in excess of the design criteria and performance standards of the roof. Landlord shall not be responsible to make any improvements or repairs to the Building other than as expressly in this SECTION 7.1 provided, unless expressly provided otherwise in this Lease. (b) Landlord shall never be liable for any failure to make repairs which 20 Landlord has undertaken to make under the provisions of this SECTION 7.1 or elsewhere in this Lease, unless Tenant has given notice to Landlord of the need to make such repairs, and Landlord has failed to commence to make such repairs within a reasonable time after receipt of such notice, or fails to proceed with reasonable diligence to complete such repairs. (c) Without limiting any term of SECTION 5.2 above, in the event of any change after the Lease Commencement Date in any law, code, or ordinance (i) affecting office buildings generally, or (ii) affecting generally buildings used for the Permitted Uses hereunder which, by itself and without any Alterations to the Building or changes in Tenant's use thereof, requires a change in the Building (other than Tenant's Alterations or fixtures) into compliance with such law, code or ordinance, Landlord shall take such steps as are reasonablely necessary to bring the Building (other than Tenant's Alterations or fixtures) into compliance with the same, and the costs thereof shall be an Operating Expense. Without limiting any other term of this Lease, all costs and expenses incurred by Landlord for making repairs or replacements described in this Section 7.1, shall be included in the Operating Expenses as described in Section 9.2 above to be paid by Tenant, in accordance with the calculation set forth in item 6 of EXHIBIT D attached hereto, other than structural repairs or replacements to the roof, the structural walls, footings, foundations, floor slabs, columns, girders, and load bearing interior walls. 7.2 TENANT REPAIRS AND MAINTENANCE. (a) Except as otherwise provided in this Lease, Tenant agrees to keep in good order, condition and repair each and every part of the Premises, including without limitation, exterior walls (including exterior glass) and all plumbing, mechanical, electrical, heating, ventilation and air conditioning systems (collectively, "BUILDING SYSTEMS"), excepting only reasonable wear and tear of the Premises; and Tenant shall surrender the Premises, at the end of the Term, in such condition. Without limitation, Tenant shall comply with all laws, codes and ordinances from time to time in effect and all directions, rules and regulations of governmental agencies having jurisdiction, and the standards recommended by the local Board of Fire Underwriters applicable to Tenant's use and occupancy of the Premises, and shall, at Tenant's expense, obtain all permits, licenses and the like required thereby. Subject to SECTION 10.4 regarding waiver of subrogation, Tenant shall be responsible for the cost of repairs which may be made necessary by reason of damage to the Building caused by any act or neglect of Tenant, or its contractors or invitees (including any damage by fire or other casualty arising therefrom). Tenant shall also keep and maintain all the Land in a good and clean order, condition and repair, free of snow and ice and accumulation of rubbish, and shall keep and maintain all landscaped areas on the Property in a neat and orderly condition. (b) If repairs are required to be made by Tenant pursuant to the terms hereof, and Tenant fails to make the repairs, upon not less than fifteen (15) days' prior written notice (except that no notice shall be required in the event of an emergency), Landlord may make or cause such repairs to be made (but shall not be required to do so), and the provisions of SECTION 14.4 shall be applicable to the costs thereof. Landlord shall not be responsible to Tenant for any loss or damage whatsoever that may accrue to Tenant's stock or business by reason of Landlord's making such repairs. 21 (c) Except as set forth below with respect to the Building Systems, notwithstanding anything to the contrary in this Lease, in no event shall Tenant be obligated to make any repairs or replacements which would constitute capital expenditures under generally accepted accounting principles, which repairs and replacements shall be made by Landlord pursuant to Section 7.1, PROVIDED, HOWEVER, that the cost of any expenditures by Landlord which are capital in nature, as referred to above, shall, pursuant to Section 7.1, be included in the Operating Expenses to be paid by Tenant as set forth in Section 9.2, amortized over the useful life of such replacement item in accordance with the provisions of Item 6 of EXHIBIT D attached hereto, and Tenant shall reimburse Landlord therefore in accordance therewith. (d) Without limiting any other term of this Lease, Tenant shall maintain the Building Systems in accordance with its obligations under Section 7.2(a), provided that if Tenant shall make any replacement of a capital nature, as determined in accordance with generally accepted principles of accounting, to the Building Systems during the two (2) year period immediately preceding the expiration or earlier termination of this Lease (including, without limitation, any Extended Term), unless such termination is a result of a Default of Tenant, then Landlord shall promptly reimburse Tenant for the unamortized cost thereof as of the date of expiration or earlier termination of this Lease, it being understood and agreed that Landlord's payment obligation hereunder shall survive the expiration or termination of this Lease. The unamortized cost shall be determined in accordance with generally accepted principles of accounting. 7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon any floor in the Premises exceeding the floor load per square foot of area which such floor was designed to carry and which is allowed by law. Landlord reserves the right to prescribe, in its reasonable discretion, the weight and position of all business machines and mechanical equipment, including safes, which shall be placed so as to distribute the weight. Business machines and mechanical equipment shall be placed and maintained by Tenant at Tenant's expense in settings sufficient, in Landlord's reasonable judgment, to absorb and prevent vibration, noise and annoyance. Tenant shall not move any safe, heavy machinery, heavy equipment, freight, bulky matter or fixtures into or out of the Building without Landlord's prior consent, which consent not to be unreasonably withheld or delayed, but which may include a requirement to provide insurance, naming Landlord as an insured, in such amounts as Landlord may deem reasonable. (b) If any such safe, machinery, equipment, freight, bulky matter or fixtures requires special handling, Tenant agrees to employ only persons holding a Master Rigger's License to do such work, and that all work in connection therewith shall comply with applicable laws and regulations. Any such moving shall be at the sole risk and hazard of Tenant, and Tenant will exonerate, indemnify and save Landlord harmless against and from any liability, loss, injury, claim or suit resulting directly or indirectly from such moving. 7.4 ELECTRICITY SERVICE. 22 (a) The Premises shall be separately metered for electricity such that the applicable public utility company can provide electricity directly to the Premises, and Tenant shall be responsible for payment of all electricity charges directly to such utility (including electricity for all lighting, heating, ventilation and air conditioning in the Premises). Landlord shall permit Landlord's existing wires, risers, conduits and other electrical equipment to be used to supply electricity to Tenant at the Premises, provided Tenant's demand requirements shall not exceed watts per rentable square foot for standard single-phase volt alternating current, and Tenant agrees in its use of the Premises (i) not to exceed such requirements, and (ii) that its total connected lighting load will not exceed the maximum from time to time permitted under applicable governmental regulations. If, without in any way derogating from the foregoing limitation, Tenant shall require electricity in excess of the requirements set forth above, provided Tenant first obtains Landlord's consent (which Landlord may withhold in its reasonable discretion), Tenant may perform the work necessary to supply such additional service or equipment, at Tenant's sole cost and expense and subject to the requirements of SECTION 5.2 of this Lease. In order to assure that the foregoing requirements are not exceeded and to avert possible adverse effect on the Building's electric system, Tenant shall not, without Landlord's prior consent, connect any fixtures, appliances or equipment to the Building's electric distribution system other than personal computers, facsimile transceivers, typewriters, pencil sharpeners, adding machines, photocopiers, word and data processors, clocks, radios, hand-held or desk top calculators, Dictaphones, desktop computers and other similar small electrical equipment normally found in business offices unless Tenant continues to comply with the provisions of this Section 7.4(a) or Tenant performs the work necessary to make the repairs and/or replacements to the Building's electrical systems required by Tenant's electrical demands and usage in excess of the requirements set forth in this Section 7.4(a). (b) From time to time during the Term of this Lease, Landlord shall have the right to have an electrical consultant selected by Landlord make a survey of Tenant's electric usage, the result of which survey shall be conclusively binding upon Landlord and Tenant. In the event that such survey shows that Tenant has exceeded the requirements set forth in PARAGRAPH (a), in addition to any other rights Landlord may have hereunder, Tenant shall, upon demand, reimburse Landlord for the cost of such survey and Tenant shall, upon demand, perform the work necessary to make the repairs and/or replacements to the Building's electrical systems required by Tenant's electrical demands and usage in excess of the requirements set forth in PARAGRAPH (a). 7.5 INTERRUPTION OF SERVICE. (a) Landlord shall not be responsible in any manner for any suspension, interruption or curtailment of any services or utilities to the Premises, regardless of the cause thereof, and no such suspension, interruption or curtailment shall give rise to any claim for abatement of rent or other compensation to Tenant from Landlord, nor shall Tenant claim any direct, indirect or consequential damages or constructive eviction on account thereof, nor shall this Lease or any obligation of Tenant be affected thereby. 23 ARTICLE 8 REAL ESTATE TAXES 8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) "TAX YEAR" shall mean a twelve month period commencing on March 1, 2005 and falling wholly or partially within the Term, and "TAXES" shall mean (i) all taxes, assessments (special or otherwise), levies, fees and all other government levies, exactions and charges of every kind and nature, general and special, ordinary and extraordinary, foreseen and unforeseen, which are, at any time prior to or during the Term, imposed or levied upon or assessed against the Property or any portion thereof, or against any Basic Rent, Additional Rent or other rent of any kind or nature payable to Landlord by anyone on account of the ownership, leasing or operation of the Property, or which arise on account of or in respect of the ownership, development, leasing, operation or use of the Property or any portion thereof; (ii) all gross receipts taxes or similar taxes imposed or levied upon, assessed against or measured by any Base Rent, Additional Rent or other rent of any kind or nature or other sum payable to Landlord by anyone on account of the ownership, development, leasing, operation, or use of the Property or any portion thereof; (iii) all value added, use and similar taxes at any time levied, assessed or payable on account of the ownership, development, leasing, operation, or use of the Property or any portion thereof; and (iv) reasonable expenses of any proceeding for abatement of any of the foregoing items included in Taxes, provided Landlord prevails in such abatement proceeding; but the amount of special taxes or special assessments included in Taxes shall be limited to the amount of the installment (plus any interest, other than penalty interest, payable thereon) of such special tax or special assessment required to be paid during the year in respect to which such Taxes are being determined. There shall be excluded from Taxes all income, estate, succession, inheritance and transfer taxes of Landlord; provided, however, that if at any time during the Term the present system of ad valorem taxation of real property shall be changed so that a capital levy, franchise, income, profits, sales, rental, use and occupancy, or other tax or charge shall in whole or in part be substituted for, or added to, such ad valorem tax and levied against, or be payable by, Landlord with respect to the Property or any portion thereof, such tax or charge shall be included in the term "TAXES" for the purposes of this Article. (b) Tenant shall pay to Landlord (or directly to the taxing authority, as Landlord shall direct from time to time), as Additional Rent, an amount equal to the amount of Taxes attributable to each Tax Year, such amount to be apportioned for any portion of a Tax Year in which the Commencement Date falls or the Term expires. (c) Estimated payments by Tenant on account of Taxes shall be made on the first day of each and every calendar month during the Term of this Lease, in the fashion herein provided for the payment of Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to provide Landlord by the time real estate tax payments are due with a sum equal to Tenant's required payment, as reasonably estimated by Landlord from time to time, on account of Taxes for the then current Tax Year. Promptly after receipt by Landlord of bills for such Taxes, Landlord shall advise Tenant of the amount thereof and the computation of Tenant's payment on account thereof. If estimated payments theretofore made by Tenant for the Tax Year 24 covered by such bills exceed the required payment on account thereof for such Tax Year, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant on account of Taxes (or promptly refund such overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord other than the indemnity obligations set forth herein which survive the termination of this Lease, provided that Landlord has no claims pursuant thereto at such time); but if the required payments on account thereof for such Tax Year are greater than estimated payments theretofore made on account thereof for such Tax Year, Tenant shall pay the difference to Landlord within thirty (30) days after being so advised by Landlord, and the obligation to make such payment for any period within the Term shall survive expiration of the Term. 8.2 ABATEMENT. (a) If Landlord shall receive any tax refund or reimbursement of Taxes or sum in lieu thereof with respect to any Tax Year all or any portion of which falls within the Term, then out of any balance remaining thereof after deducting Landlord's expenses in obtaining such refund, Landlord shall pay to Tenant, provided there does not then exist a Default of Tenant, an amount equal to such refund or reimbursement or sum in lieu thereof (exclusive of any interest other than interest received from the taxing authority on amounts previously paid by Tenant either directly to the taxing authority or to Landlord as Additional Rent and included in such refund, reimbursement or sum in lieu thereof paid to Landlord by the taxing authority, and apportioned if such refund is for a Tax Year a portion of which falls outside the Term,); provided, that in no event shall Tenant be entitled to receive more than the payments made by Tenant on account of Taxes for such Tax Year pursuant to PARAGRAPH (b) of SECTION 8.1 or to receive any payments or abatement of Basic Rent if Taxes for any year are less than Base Taxes or if Base Taxes are abated. (b) If Tenant desires to initiate and prosecute any proceedings permitted by law for the purpose of obtaining an abatement or reduction of any Taxes assessed against the Property with respect to any Tax Year all of any portion of which falls within the Term, and notifies Landlord in writing of such intent, then unless Landlord shall notify Tenant in writing within ten (10) Business Days following Tenant's notice to Landlord that Landlord will initiate such a tax review, Tenant, upon prior written notice to Landlord, shall have the right at its own cost and expense to initiate and prosecute any proceedings permitted by law for the purpose of obtaining an abatement or reduction of any Taxes assessed against the Property with respect to any Tax Year all of any portion of which falls within the Term. Tenant may take such action in the name of Landlord, and Landlord shall cooperate with Tenant as Tenant may reasonably require in connection with bringing such proceedings to a successful conclusion, including joining in, and signing of, any protest or pleading which Tenant may deem it advisable to file. Any penalties or interest charges imposed in connection with tax reduction proceedings commenced by Tenant shall be the sole responsibility of Tenant and shall be paid promptly. If Tenant initiates such a proceeding, Tenant agrees to use reasonable efforts to obtain a reduction in Taxes, keep Landlord informed of the status of its tax review or abatement proceeding and not terminate or withdraw the same without at least forty-five (45) days prior written notice to Landlord, during which forty-five (45) day period Landlord shall have the right, but not the 25 obligation, to be substituted for Tenant in any such proceeding, and if Landlord so elects, Tenant shall cooperate with Landlord as Landlord may reasonably require in order to effect such substitution, including, without limitation, by assigning all rights and claims under any such proceeding to Landlord. To the extent that Tenant is successful in obtaining any abatement or reduction through such proceedings, and Landlord receives a refund of Taxes previously paid, Landlord shall promptly pay over to Tenant such refund, net of any amounts owed to Landlord at such time. ARTICLE 9 OPERATING AND UTILITY EXPENSES 9.1 DEFINITIONS. "OPERATING YEAR" shall mean each calendar year all or any part of which falls within the Term, and "OPERATING EXPENSES" shall mean the aggregate costs and expenses incurred by Landlord with respect to the operation, administration, cleaning, repair, maintenance and management of the Property, all as, and to the extent, set forth in EXHIBIT D attached hereto. 9.2 TENANT'S PAYMENT OF OPERATING EXPENSES. (a) Tenant shall pay to Landlord, as Additional Rent, an amount equal to the Operating Expenses attributable to each Operating Year, such amount to be apportioned for any portion of an Operating Year in which the Commencement Date falls or the Term of this Lease ends. (b) Estimated payments by Tenant on account of Operating Expenses shall be made on the first day of each and every calendar month during the Term of this Lease, in the fashion herein provided for the payment of Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to provide Landlord by the end of each Operating Year a sum equal to Tenant's required payment, as reasonably estimated by Landlord from time to time during each Operating Year, on account of Operating Expenses for such Operating Year. After the end of each Operating Year, Landlord shall submit to Tenant a reasonably detailed accounting of Operating Expenses for such Operating Year, and Landlord shall certify to the accuracy thereof. If estimated payments theretofore made for such Operating Year by Tenant exceed Tenant's required payment on account thereof for such Operating Year according to such statement, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant with respect to Operating Expenses (or promptly refund such overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord other than the indemnity obligations set forth herein which survive the termination of this Lease, provided that Landlord has no claims pursuant thereto at such time); but if the required payments on account thereof for such Operating Year are greater than the estimated payments (if any) theretofore made on account thereof for such Operating Year, Tenant shall make payment to Landlord within thirty (30) days after being so advised by Landlord, and the obligation to make such payment for any period within the Term shall survive expiration of the Term. 26 (c) Tenant shall have the right to examine, copy and audit Landlord's books and records establishing Operating Expenses for any Operating Year for a period of one (1) year following the date that Tenant receives the statement of Operating Expenses for such Operating Year from Landlord. Tenant shall give Landlord not less than thirty (30) days' prior notice of its intention to examine and audit such books and records, and such examination and audit shall take place at such place within the continental United States as Landlord routinely maintains such books and records, unless Landlord elects to have such examination and audit take place in another location designated by Landlord in the city and state in which the Property is located. All costs of the examination and audit shall be borne by Tenant; provided, however, that if such examination and audit establishes that the actual Operating Expenses for the Operating Year in question are less than the amount set forth as the annual Operating Expenses on the annual statement delivered to Tenant by at least three percent (3%), then Landlord shall pay the reasonable costs of such examination and audit. If, pursuant to the audit, the payments made for such Operating Year by Tenant exceed Tenant's required payment on account thereof for such Operating Year, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant with respect to Operating Expenses (or promptly refund such overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord other than the indemnity obligations set forth herein which survive the termination of this Lease, provided that Landlord has no claims pursuant thereto at such time); but, if the payments made by Tenant for such Operating Year are less than Tenant's required payment as established by the examination and audit, Tenant shall pay the deficiency to Landlord within thirty (30) days after conclusion of the examination and audit, and the obligation to make such payment for any period within the Term shall survive expiration of the Term. If Tenant does not elect to exercise its right to examine and audit Landlord's books and records for any Operating Year within the time period provided for by this paragraph, Tenant shall have no further right to challenge Landlord's statement of Operating Expenses. 9.3 UTILITY PAYMENTS. Tenant shall be responsible for the payment of all utilities used and consumed in the Premises, including, without limitation, water, sewer, gas, electricity and telephone service, directly to the proper authorities charged with collection thereof. ARTICLE 10 INDEMNITY AND PUBLIC LIABILITY INSURANCE 10.1 TENANT'S INDEMNITY. Except to the extent arising from the negligence or willful misconduct of Landlord or its agents or employees, Tenant agrees to indemnify and save harmless Landlord and Landlord's partners, members, shareholders, officers, directors, managers, employees, agents and contractors from and against all claims, losses, cost, damages, liability or expenses of whatever nature arising: (i) from any accident, injury or damage whatsoever to any person, or to the property of any person, occurring in or about the Premises; or (ii) from the use or occupancy of the Premises or of any business conducted therein, and, in any case, occurring after the Commencement Date until the expiration of the Term of this Lease and thereafter so long as Tenant is in occupancy of any part of the Premises. This indemnity and hold harmless agreement shall include indemnity against all losses, costs, damages, expenses and liabilities incurred in or in connection with any such claim or any proceeding brought thereon, 27 and the defense thereof, including, without limitation, reasonable attorneys' fees and costs at both the trial and appellate levels. 10.2 TENANT INSURANCE. Tenant agrees to maintain in full force from the date upon which Tenant first enters the Premises for any reason, throughout the Term of this Lease, and thereafter so long as Tenant is in occupancy of any part of the Premises, a policy of commercial general liability and property damage insurance (including broad form contractual liability, independent contractor's hazard and completed operations coverage) under which Tenant is named as an insured and Landlord (and such other persons as are in privity of estate with Landlord as may be set out in a notice from time to time) are named as additional insureds, and under which the insurer agrees to indemnify and hold Landlord and those in privity of estate with Landlord, harmless from and against all cost, expense and/or liability arising out of or based upon any and all claims, accidents, injuries and damages set forth in SECTION 10.1. Tenant may satisfy such insurance requirements by including the Premises in a so-called "blanket" and/or "umbrella" insurance policy, provided that the amount of coverage allocated to the Premises shall fulfill the requirements set forth herein. Each policy required hereunder shall be non-cancelable and non-amendable with respect to Landlord and Landlord's said designees without thirty (30) days' prior notice, shall be written on an "occurrence" basis, and shall be in at least the amounts of the Initial General Liability Insurance specified in SECTION 1.1 or such greater amounts as Landlord in its reasonable discretion shall from time to time request, and a duplicate original or certificates thereof satisfactory to Landlord, together with a photocopy of the entire policy, shall be delivered to Landlord. 10.3 TENANT'S RISK. Tenant agrees to use and occupy the Premises at Tenant's own risk. Landlord shall not be liable to Tenant, its employees, agents, invitees or contractors for any damage, injury, loss, compensation, or claim (including, but not limited to, claims for the interruption of or loss to Tenant's business) based on, arising out of or resulting from any cause whatsoever, including, but not limited to, repairs to any portion of the Premises or the Property, any fire, robbery, theft, mysterious disappearance and/or any other crime or casualty, the actions of any person or persons, or any leakage in any part or portion of the Premises or the Building, or from water, rain or snow that may leak into, or flow from any part of the Premises or the Building, or from drains, pipes or plumbing fixtures in the Building, unless due to the negligence or willful misconduct of Landlord or Landlord's agents, contractors or employees. Any goods, property or personal effects stored or placed in or about the Premises shall be at the sole risk of Tenant, and neither Landlord nor Landlord's insurers shall in any manner be held responsible therefor. Notwithstanding the foregoing, Landlord shall not be released from liability for any injury, loss, damages or liability to the extent arising from any gross negligence or willful misconduct of Landlord, its servants, employees or agents acting within the scope of their authority on or about the Premises; provided, however, that in no event shall Landlord, its servants, employees or agents have any liability to Tenant based on any loss with respect to or interruption in the operation of Tenant's business. Tenant shall carry "all-risk" property insurance on a "replacement cost" basis, insuring Tenant's Removable Property and any Alterations made by Tenant pursuant to SECTION 5.2, to the extent that the same have not become the property of Landlord. 28 10.4 WAIVER OF SUBROGATION. The parties hereto shall each procure an appropriate clause in, or endorsement on, any property insurance policy on the Premises or any personal property, fixtures or equipment located thereon or therein, pursuant to which the insurer waives subrogation or consents to a waiver of right of recovery in favor of either party, its respective agents or employees. Having obtained such clauses and/or endorsements, each party hereby agrees that it will not make any claim against or seek to recover from the other or its agents or employees for any loss or damage to its property or the property of others resulting from fire or other perils covered by such property insurance. ARTICLE 11 FIRE, EMINENT DOMAIN, ETC. 11.1 NOTICE OF DAMAGE. If the Building shall be damaged or destroyed by fire or other casualty, Tenant shall promptly notify Landlord of such occurrence. 11.2 MINOR CASUALTY. In the event that the Building (other than Tenant's Alterations, fixtures and personal property), or any part thereof, or access thereto, shall be damaged or destroyed by fire or other insured casualty, but the Tenant shall continue to have reasonably convenient access to the Building and no portion of the Building (other than Tenant's Alterations, fixtures and personal property) shall thereby be rendered unfit for use and occupancy by the Tenant for the Permitted Uses, Landlord shall thereafter use reasonable efforts to restore the Building (including any Tenant's Alterations and/or fixtures which become part of the real estate comprising the Premises, but specifically EXCLUDING any of Tenant's Alterations and/or fixtures which are NOT insured under the insurance that Landlord maintains in accordance with the terms of this Lease, and EXCLUDING Tenant's personal property) to proper condition for Tenant's use and occupation, provided that Landlord's obligation shall be limited to the amount of insurance proceeds available therefor plus the amount of any deductibles for property insurance carried by Landlord pursuant to the terms of this Lease. If, for any reason, such restoration shall not be substantially completed within a six (6) month period after it was commenced the (which six (6) month period may be extended for such periods of time as Landlord is prevented from proceeding with or completing such restoration due to Force Majeure, but in no event for more than an additional three (3) months), Tenant shall have the right to terminate this Lease by giving notice to Landlord thereof within thirty (30) days after the expiration of such period (as so extended) provided that such restoration is not completed within such period. This Lease shall cease and come to an end without further liability or obligation on the part of either party thirty (30) days after such giving of notice by Tenant unless, within such thirty-day period, Landlord substantially completes such restoration. Such right of termination shall be Tenant's sole and exclusive remedy at law or in equity for Landlord's failure so to complete such restoration, and time shall be of the essence with respect thereto. 11.3 MAJOR CASUALTY. In the event that the Building (other than Tenant's Alterations, fixtures and personal property), or any part thereof, or access thereto, shall be so damaged or destroyed by fire or other insured casualty that the Tenant shall not have reasonably convenient access to the Building or any portion of the Building (other than Tenant's 29 Alterations, fixtures and personal property) or that the Building shall thereby be otherwise rendered unfit for use and occupancy by the Tenant for the Permitted Uses, and if in the sole reasonable judgment of the Landlord the damage or destruction may be repaired within nine (9) months from the time that repair work would commence, then the Landlord shall so notify the Tenant within sixty (60) days after the occurrence of the damage or destruction. Landlord shall thereafter use reasonable efforts to restore the Building (including any Tenant's Alterations and/or fixtures which become part of the real estate comprising the Premises, but specifically EXCLUDING any of Tenant's Alterations and/or fixtures which are NOT insured under the insurance that Landlord maintains in accordance with the terms of this Lease, and EXCLUDING Tenant's personal property) to proper condition for Tenant's use and occupation, provided that Landlord's obligation shall be limited to the amount of insurance proceeds available therefor. If, for any reason, such restoration shall not be substantially completed within a nine (9) month period after it was commenced the (which nine (9) month period may be extended for such periods of time as Landlord is prevented from proceeding with or completing such restoration due to Force Majeure, but in no event for more than an additional three (3) months), Tenant shall have the right to terminate this Lease by giving notice to Landlord thereof within thirty (30) days after the expiration of such period (as so extended) provided that such restoration is not completed within such period. This Lease shall cease and come to an end without further liability or obligation on the part of either party thirty (30) days after such giving of notice by Tenant unless, within such thirty-day period, Landlord substantially completes such restoration. Such right of termination shall be Tenant's sole and exclusive remedy at law or in equity for Landlord's failure so to complete such restoration, and time shall be of the essence with respect thereto. If such damage or destruction cannot, in the sole reasonable judgment of the Landlord, be expected to be repaired within nine (9) months from the time that repair work would commence), and the Landlord does not give the Tenant the notice referred to in this SECTION 11.3, then either party shall have the right to terminate this Lease by giving written notice of such termination to the other party within sixty (60) days after the occurrence of such damage or destruction, in the case of Landlord, and within thirty (30) days after the expiration of such sixty (60) day period in the case of Tenant, whereupon this Lease shall terminate thirty (30) days after the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof. If neither party gives such notice of termination, then Landlord shall repair the damage or destruction in accordance with and subject to the terms of this SECTION 11.3. 11.4 CASUALTY IN LAST SIX MONTHS. In addition to and apart from the foregoing provisions of this ARTICLE 11, (i) if more than twenty-five percent (25%) of the rentable square feet of the Building shall be totally or almost totally damaged or destroyed by fire or other cause at any time during the last six (6) months of the Term of this Lease, (ii) if the Building is damaged or destroyed by fire or other cause to such extent that the cost to repair the damage or destruction, as reasonably estimated by the Landlord, will be more than twenty-five percent (25%) of the replacement value of the Building (excluding foundations) immediately prior to the occurrence of such damage or destruction, and (iii) if the estimated period to complete the repairs will result in less than two (2) months remaining in the Term of this Lease (including any exercised extension) following the completion of such repairs, either the Landlord or the Tenant may terminate this Lease by giving written notice of such termination to the other party whereupon this Lease shall terminate as of the date of such damage or destruction as if such date 30 were the date originally established as the expiration date hereof. 11.5 LEASE TERMINATION IN FINAL TWO YEARS. Landlord and Tenant each shall have the right to terminate this Lease if the Building is destroyed or damaged by fire or other casualty to the extent of at least fifty percent (50%) of the total cost of replacing it during the last two (2) years of the Initial Term or an Extended Term. Each party's termination rights under this Section shall be exercised, if at all, by written notice to the other party sent within thirty (30) days after the occurrence of the damage or destruction. If, however, Landlord sends such a notice terminating the Lease to Tenant during the last two (2) years of the Initial Term or an Extended Term, such termination notice shall take effect thirty (30) days after the date of such notice, unless within said thirty (30) day period, Tenant sends Landlord written notice exercising Tenant's extension option contained in SECTION 2.3 (which option may, under the circumstances set forth in this SECTION 11.5, be exercised earlier than permitted in SECTION 2.3), in which event Landlord's termination notice shall be void. 11.6 LANDLORD'S INSURANCE. Landlord agrees to maintain in full force and effect, during the Term of this Lease, at Tenant's expense as provided herein, property damage insurance with such deductibles and in such amounts as may from time to time be carried by reasonably prudent owners of similar buildings in the area in which the Property is located, including, without limitation, (i) fire and extended coverage insurance insuring the Building with one hundred percent (100%) replacement cost coverage together with rent loss insurance protecting Landlord against abatement or loss of rent in an amount equal to at least all Base Rent and Additional Rent payable for one year by the tenant(s) of the Building, (ii) commercial general liability and property damage insurance, including a broad form contractual liability endorsement, and (iii) insurance against other hazards as may from time to time be reasonably required by any bank, insurance company or other lending institution holding a first mortgage on the Property which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located. Without limiting any other term of this Lease, any costs incurred in connection with any insurance maintained by Landlord with respect to the Property shall be at Tenant's expense and shall be an Operating Expense. 11.7 ABATEMENT OF RENT. If the Building is damaged by fire or other casualty, or a partial taking occurs and this Lease is not terminated pursuant to SECTION 11.8 below, Basic Rent and Additional Rent payable by Tenant shall abate proportionately for the period during which, by reason of such damage or partial taking, there is substantial interference with Tenant's use of the Building, having regard for the extent to which Tenant may be required to discontinue Tenant's use of all or an undamaged portion of the Building due to such damage or partial taking, but such abatement or reduction shall end if and when Landlord shall have substantially completed sufficient restoration that Tenant is reasonably able to use the Building and the Building is in substantially the condition it was in prior to such damage (excluding any of Tenant's Alterations, fixtures or personal property). If the Premises shall be affected by any exercise of the power of eminent domain, Basic Rent and Additional Rent payable by Tenant shall be justly and equitably abated and reduced according to the nature and extent of the loss of use thereof suffered by Tenant. In no event shall Landlord have any liability for damages to Tenant for inconvenience, annoyance, or interruption of business arising from any fire or other 31 casualty or eminent domain. 11.8 CONDEMNATION. If the Premises or the Building is taken in its entirety by eminent domain then this Lease shall terminate as of the date when physical possession of the Building or the Premises is taken by the condemning authority. If there occurs a taking of (a) more than fifty (50%) percent of the usable floor area of the Building, (b) more than fifty (50%) percent of the area of the parking lot located on the Land, or (c) all possible means of access to the Premises, then, in any of these events, Tenant shall have the right to terminate this Lease by giving written notice to Landlord within ninety (90) days after the date of such partial taking. If this Lease is not terminated pursuant to this SECTION 11.8, then Landlord shall repair the Premises to the condition the Premises was in prior to the partial taking, to the extent practicable, provided however, that Landlord shall not be required to spend in connection with such repair more than the amount of proceeds actually received by Landlord and allocable thereto, less the costs of collecting the same. 11.9 CONDEMNATION AWARD. Landlord shall have and hereby reserves and excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover for damages to the Property and the leasehold interest hereby created, and to compensation accrued or hereafter to accrue by reason of any taking, by exercise of the right of eminent domain, and by way of confirming the foregoing, Tenant hereby grants and assigns, and covenants with Landlord to grant and assign to Landlord, all rights to such damages or compensation, and covenants to deliver such further assignments and assurances thereof as Landlord may from time to time request, and Tenant hereby irrevocably appoints Landlord its attorney-in-fact to execute and deliver in Tenant's name all such assignments and assurances. Nothing contained herein shall be construed to prevent Tenant from prosecuting in any condemnation proceedings a claim for the value of any of Tenant's Removable Property installed in the Premises by Tenant at Tenant's expense and for relocation expenses, provided that such action shall not affect the amount of compensation otherwise recoverable by Landlord from the taking authority. ARTICLE 12 HOLDING OVER; SURRENDER 12.1 HOLDING OVER. Any holding over by Tenant after the expiration of the Term of this Lease shall be treated as a daily tenancy at sufferance at a Basic Rent of the Holdover Rent (defined below) plus the Additional Rent herein provided (prorated on a daily basis). "Holdover Rent" shall mean, for any calendar month of holding over, one and one half (1.5) times the Basic Rent in effect as of the end of the Term, for the second calendar month of any holding over, two (2) times the Basic Rent in effect as of the end of the Term, for the third calendar month of any holding over, two and one half (2.5) times the Basic Rent in effect as of the end of the Term, and shall be increased by an additional factor of fifty percent (50%) more than the previous month's increase factor times the Basic Rent in effect as of the end of the Term for each succeeding calendar month of the holding over. Tenant shall also pay to Landlord all damages, direct and/or indirect, sustained by reason of any such holding over, PROVIDED HOWEVER, that Landlord shall not attempt to enforce, and Tenant shall have no liability for, indirect damages sustained by reason 32 of any such holding over during the first ninety (90) days immediately following the end of the Term. In all other respects, such holding over shall be on the terms and conditions set forth in this Lease as far as applicable. Tenant shall have no right to hold over. 12.2 SURRENDER OF PREMISES. Upon the expiration or earlier termination of the Term of this Lease, Tenant shall peaceably quit and surrender to Landlord the Premises in neat and clean condition and in good order, condition and repair, together with all alterations, additions and improvements which may have been made or installed in, on or to the Premises prior to or during the Term of this Lease, including those Alterations designated by Landlord at the time Landlord approves the Alterations pursuant to Section 5.2 above to not be removed upon the expiration or earlier termination of the Term (except as hereinafter provided), excepting only ordinary wear and use and damage by fire or other casualty for which, under other provisions of this Lease, Tenant has no responsibility to repair or restore. Tenant shall remove all of Tenant's Removable Property and, to the extent specified by Landlord pursuant to SECTION 5.2, all alterations and additions made by Tenant; and shall repair any damages to the Premises or the Building caused by such removal. Nothing contained in this SECTION 12.2 shall prohibit Tenant from (as contemplated by SECTION 5.2) (i) removing, at its option, any Alterations made or installed by Tenant provided that Tenant shall repair any damage to the Building caused by such removal and otherwise restores the Building to a condition fit for use and occupation or (ii) leaving in the Premises any Alterations made or installed by Tenant which are NOT designated by Landlord at the time Landlord approves the Alterations pursuant to SECTION 5.2 to be removed upon the expiration or earlier termination of the Term. Any Tenant's Removable Property which shall remain in the Building or on the Premises after the expiration or termination of the Term of this Lease shall be deemed conclusively to have been abandoned, and either may be retained by Landlord as its property or may be disposed of in such manner as Landlord may see fit, at Tenant's sole cost and expense. ARTICLE 13 RIGHTS OF MORTGAGEES; TRANSFER OF TITLE 13.1 RIGHTS OF MORTGAGEES. (a This Lease shall be subordinate to any mortgage, deed of trust or ground lease or similar encumbrance (collectively, a "MORTGAGE", and the holder thereof from time to time the "HOLDER") from time to time encumbering the Premises, whether executed and delivered prior to or subsequent to the date of this Lease, unless the Holder shall elect otherwise; PROVIDED THAT such subordination shall only be effective if the Holder enters into a written agreement that, subject to such reasonable qualifications as the Holder may impose, in the event that the Holder or any other party shall succeed to the interest of Landlord hereunder pursuant to such Mortgage, so long as no Default of Tenant exists hereunder, Tenant's right to possession of the Premises shall not be disturbed and Tenant's other rights hereunder shall not be adversely affected by any foreclosure of such Mortgage. If this Lease is subordinate to any Mortgage and the Holder or any other party shall succeed to the interest of Landlord pursuant to the Mortgage (such Holder or other party, a "SUCCESSOR"), Tenant shall attorn to the or Successor and this Lease shall continue in full force and effect between the Holder or Successor and Tenant. Tenant agrees to 33 execute such instruments of subordination or attornment in confirmation of the foregoing agreement as the Holder or Successor reasonably may request, and Tenant hereby appoints the Holder or Successor as Tenant's attorney-in-fact to execute such subordination or attornment agreement upon default of Tenant in complying with the Holder's or Successor's request. 13.2 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a With reference to any assignment by Landlord of Landlord's interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to the holder of a mortgage on property which includes the Premises, Tenant agrees that the execution thereof by Landlord, and the acceptance thereof by the holder of such mortgage shall never be treated as an assumption by such holder of any of the obligations of Landlord hereunder unless such holder shall, by notice sent to Tenant, specifically otherwise elect and, except as aforesaid, such holder shall be treated as having assumed Landlord's obligations hereunder only upon foreclosure of such holder's mortgage or the taking of possession of the Premises. (b In no event shall the acquisition of Landlord's interest in the Property by a purchaser which, simultaneously therewith, leases Landlord's entire interest in the Property back to the seller thereof be treated as an assumption by operation of law or otherwise, of Landlord's obligations hereunder, but Tenant shall look solely to such seller-lessee, and its successors from time to time in title, for performance of Landlord's obligations hereunder. In any such event, this Lease shall be subject and subordinate to the lease to such purchaser. For all purposes, such seller-lessee, and its successors in title, shall be the Landlord hereunder unless and until Landlord's position shall have been assumed by such purchaser-lessor. (c Except for transfers described in PARAGRAPH (b) of this Section, in the event of any transfer of title to the Property by Landlord, Landlord shall thereafter be entirely freed and relieved from the performance and observance of all covenants and obligations hereunder arising after the date of such transfer. 13.3 NOTICE TO MORTGAGEE. After receiving notice from Landlord of any Holder of a Mortgage which includes the Premises, no notice from Tenant to Landlord alleging any default by Landlord shall be effective unless and until a copy of the same is given to such Holder (provided Tenant shall have been furnished with the name and address of such Holder), and the curing of any of Landlord's defaults by such Holder shall be treated as performance by Landlord. ARTICLE 14 DEFAULT; REMEDIES 14.1 TENANT'S DEFAULT. (a If at any time subsequent to the date of this Lease any one or more of the 34 following events (herein referred to as a "DEFAULT OF TENANT") shall happen: (i) Tenant shall fail to pay the Basic Rent or any other Additional Rent hereunder when due and such failure shall continue for three (3) Business Days after notice to Tenant from Landlord; or (ii) Tenant shall neglect or fail to perform or observe any other covenant herein contained on Tenant's part to be performed or observed and Tenant shall fail to remedy the same within thirty (30) days after notice to Tenant specifying such neglect or failure, or if such failure is of such a nature that Tenant cannot reasonably remedy the same within such thirty (30) day period, Tenant shall fail to commence promptly (and in any event within such thirty (30) day period) to remedy the same and to prosecute such remedy to completion with diligence and continuity; or (iii) Tenant's leasehold interest in the Premises shall be taken on execution or by other process of law directed against Tenant; or (iv) Tenant shall make an assignment for the benefit of creditors or shall be adjudicated insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future Federal, State or other statute, law or regulation for the relief of debtors (other than the Bankruptcy Code, as hereinafter defined), or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties, or shall admit in writing its inability to pay its debts generally as they become due; or (v) An Event of Bankruptcy (as hereinafter defined) shall occur with respect to Tenant; or (vi) A petition shall be filed against Tenant under any law (other than the Bankruptcy Code) seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future Federal, State or other statute, law or regulation and shall remain undismissed or unstayed for an aggregate of sixty (60) days (whether or not consecutive), or if any trustee, conservator, receiver or liquidator of Tenant or of all or any substantial part of its properties shall be appointed without the consent or acquiescence of Tenant and such appointment shall remain unvacated or unstayed for an aggregate of sixty (60) days (whether or not consecutive); (vii) If: (x) Tenant shall fail to pay the Basic Rent or any Additional Rent hereunder when due or shall fail to perform or observe any other covenant herein contained on Tenant's part to be performed or observed and Tenant shall cure any such failure within the applicable grace period set forth in clauses (i) or (ii) above; or (y) a Default of Tenant of the kind set forth in clauses (i) or (ii) above shall occur and Landlord shall, in its sole discretion, permit Tenant to cure such Default of Tenant after 35 the applicable grace period has expired; AND the same or a similar failure shall occur more than twice within the next 365 days (whether or not such similar failure is cured within the applicable grace period); then in any such case Landlord may terminate this Lease as hereinafter provided. (b For purposes of CLAUSE (A)(V) above, an "EVENT OF BANKRUPTCY" means the filing of a voluntary petition by Tenant, or the entry of an order for relief against Tenant, under Chapter 7, 11, or 13 of the Bankruptcy Code, and the term "BANKRUPTCY CODE" means 11 U.S.C. ss.101, ET SEQ. If an Event of Bankruptcy occurs, then the trustee of Tenant's bankruptcy estate or Tenant as debtor-in-possession may (subject to final approval of the court) assume this Lease, and may subsequently assign it, only if it does the following within sixty (60) days after the date of the filing of the voluntary petition, the entry of the order for relief (or such additional time as a court of competent jurisdiction may grant, for cause, upon a motion made within the original sixty-day period): (i) file a motion to assume the Lease with the appropriate court; (ii) satisfy all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable: (A) cure all Defaults of Tenant under this Lease or provide Landlord with Adequate Assurance (as defined below) that it will (x) cure all monetary Defaults of Tenant hereunder within ten (10) days from the date of the assumption, and (y) cure all nonmonetary Defaults of Tenant hereunder within thirty (30) days from the date of the assumption; (B) compensate Landlord and any other person or entity, or provide Landlord with Adequate Assurance that within ten (10) days after the date of the assumption, it will compensate Landlord and such other person or entity, for any pecuniary loss that Landlord and such other person or entity incurred as a result of any Default of Tenant, the trustee, or the debtor-in-possession; (C) provide Landlord with Adequate Assurance of Future Performance (as defined below) of all of Tenant's obligations under this Lease; and (D) deliver to Landlord a written statement that the conditions herein have been satisfied. (c) For purposes only of the foregoing PARAGRAPH (b), and in addition to any other requirements under the Bankruptcy Code, any future federal bankruptcy law and applicable case law, "ADEQUATE ASSURANCE" means at least meeting the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable: 36 (i) entering an order segregating sufficient cash to pay Landlord and any other person or entity under PARAGRAPH (b) above, and (ii) granting to Landlord a valid first lien and security interest (in form acceptable to Landlord) in all property comprising the Tenant's "property of the estate," as that term is defined in Section 541 of the Bankruptcy Code, which lien and security interest secures the trustee's or debtor-in-possession's obligation to cure the monetary and nonmonetary defaults under the Lease within the periods set forth in PARAGRAPH (b) above. (d) For purposes only of PARAGRAPH (B) above, and in addition to any other requirements under the Bankruptcy Code, any future federal bankruptcy law and applicable case law, "ADEQUATE ASSURANCE OF FUTURE PERFORMANCE" means at least meeting the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable: (i) the trustee or debtor-in-possession depositing with Landlord, as security for the timely payment of rent and other monetary obligations, an amount equal to the sum of two (2) months' Basic Rent plus an amount equal to two (2) months' installments on account of Additional Rent; (ii) the trustee or the debtor-in-possession agreeing to pay in advance, on each day that the Basic Rent is payable, the monthly installments on account of Additional Rent; (iii) the trustee or debtor-in-possession providing adequate assurance of the source of the rent and other consideration due under this Lease; (iv) Tenant's bankruptcy estate and the trustee or debtor-in-possession providing Adequate Assurance that the bankruptcy estate (and any successor after the conclusion of the Tenant's bankruptcy proceedings) will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the bankruptcy estate (and any successor after the conclusion of the Tenant's bankruptcy proceedings) will have sufficient funds to fulfill Tenant's obligations hereunder. (e) If the trustee or the debtor-in-possession assumes the Lease under PARAGRAPH (b) above and applicable bankruptcy law, it may assign its interest in this Lease only if the proposed assignee first provides Landlord with Adequate Assurance of Future Performance of all of Tenant's obligations under the Lease, and if Landlord determines, in the exercise of its reasonable business judgment, that the assignment of this Lease will not breach any other lease, or any mortgage, financing agreement, or other agreement relating to the Property by which Landlord or the Property is then bound (and Landlord shall not be required to obtain consents or waivers from any third party required under any lease, mortgage, financing agreement, or other such agreement by which Landlord is then bound). 37 (f) For purposes only of PARAGRAPH (e) above, and in addition to any other requirements under the Bankruptcy Code, any future federal bankruptcy law and applicable case law, "ADEQUATE ASSURANCE OF FUTURE PERFORMANCE" means at least the satisfaction of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable: (i) the proposed assignee submitting a current financial statement, audited by a certified public accountant, that allows a net worth and working capital in amounts determined in the reasonable business judgment of Landlord to be sufficient to assure the future performance by the assignee of Tenant's obligation under this Lease; and (ii) if requested by Landlord in the exercise of its reasonable business judgment, the proposed assignee obtaining a guarantee (in form and substance satisfactory to Landlord) from one or more persons who satisfy Landlord's standards of creditworthiness. 14.2 LANDLORD'S REMEDIES. (a) Upon the occurrence of a Default of Tenant, Landlord may terminate this Lease by notice to Tenant, specifying a date not less than five (5) days after the giving of such notice on which this Lease shall terminate and this Lease shall come to an end on the date specified therein as fully and completely as if such date were the date herein originally fixed for the expiration of the Term of this Lease, and Tenant will then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided. (b) If this Lease shall have been terminated as provided in this ARTICLE, then Landlord may re-enter the Premises, either by summary proceedings, ejectment or otherwise, and remove and dispossess Tenant and all other persons and any and all property from the same, as if this Lease had not been made. (c) If this Lease shall have been terminated as provided in this Article, Tenant shall pay the Basic Rent, Additional Rent and other sums payable hereunder up to the time of such termination, and thereafter Tenant, until the end of what would have been the Term of this Lease in the absence of such termination, and whether or not the Premises shall have been relet, shall be liable to Landlord for, and shall pay to Landlord, as liquidated current damages: (x) the Basic Rent, Additional Rent and other sums that would be payable hereunder if such termination had not occurred, less the net proceeds, if any, of any reletting of the Premises, after deducting all expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys' fees, advertising, expenses of employees, alteration costs and expenses of preparation for such reletting; and (y) if this Lease provides that Tenant was entitled to occupy the Premises for any period of time without paying Basic Rent, the amount of Basic Rent that Tenant would have paid for any such period. Tenant shall pay the portion of such current damages referred to in clause (x) above to Landlord monthly on the days which the Basic Rent would have been payable hereunder if this Lease had not been terminated, and Tenant shall pay the portion of such current damages referred to in clause (y) 38 above to Landlord upon such termination. (d) At any time after termination of this Lease as provided in this Article, whether or not Landlord shall have collected any such current damages, as liquidated final damages and in lieu of all such current damages beyond the date of such demand, at Landlord's election Tenant shall pay to Landlord an amount equal to the present value (calculated using the Federal Reserve discount rate in effect on the date of such demand) of the excess, if any, of the Basic Rent, Additional Rent and other sums as hereinbefore provided which would be payable hereunder from the date of such demand assuming that, for the purposes of this paragraph, annual payments by Tenant on account of Taxes and Operating Expenses would be the same as the payments required for the immediately preceding Operating or Tax Year for what would be the then unexpired Term of this Lease if the same remained in effect, over the then fair net rental value of the Premises for the same period. (e) In case of any Default of Tenant, re-entry, expiration and dispossession by summary proceedings or otherwise, Landlord (i) shall use reasonable efforts to re-let the Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms which may at Landlord's option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term of this Lease and may grant concessions or free rent to the extent that Landlord considers advisable and necessary to re-let the same and (ii) may make such alterations, repairs and decorations in the Premises as Landlord considers advisable and necessary for the purpose of reletting the Premises; and the making of such alterations, repairs and decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure to relet the Premises, or, in the event that the Premises are relet, for failure to collect the rent under such reletting. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease. Notwithstanding the foregoing, in no event shall Landlord be required to (i) relet the Premises for a rental less than the current fair market rental then prevailing for similar office space, (ii) enter into a lease with any proposed tenant that does not have, in Landlord's sole discretion, sufficient financial resources or operating experience to operate the Premises in a first-class manner, or (iii) relet the Premises for use other than the Permitted Use. 14.3 ADDITIONAL RENT. If Tenant shall fail to pay when due any sums under this Lease designated as Additional Rent, Landlord shall have the same rights and remedies as Landlord has hereunder for failure to pay Basic Rent. 14.4 REMEDYING DEFAULTS. Subject to the notice and opportunity to cure periods specifically set forth in this Lease, Landlord shall have the right, but shall not be required, to pay such sums or do any act which requires the expenditure of monies which may be necessary or appropriate by reason of the failure or neglect of Tenant to perform any of the provisions of this 39 Lease, and in the event of the exercise of such right by Landlord, Tenant agrees to pay to Landlord forthwith upon demand all such sums, together with interest thereon at a rate equal to 3% over the base rate in effect from time to time at The First National Bank of Boston (but in no event less than 18% per annum), as Additional Rent. Any payment of Basic Rent, Additional Rent or other sums payable hereunder not paid when due shall, at the option of Landlord, bear interest at a rate equal to 3% over the base rate in effect from time to time at The First National Bank of Boston (but in no event less than 18% per annum) from the due date thereof and shall be payable forthwith on demand by Landlord, as Additional Rent. 14.5 REMEDIES CUMULATIVE. The specified remedies to which Landlord may resort hereunder are not intended to be exclusive of any remedies or means of redress to which Landlord may at any time be entitled lawfully, and Landlord may invoke any remedy (including the remedy of specific performance) allowed at law or in equity as if specific remedies were not herein provided for. 14.6 ATTORNEYS' FEES. Reasonable attorneys' fees and expenses incurred by or on behalf of Landlord in enforcing its rights hereunder or occasioned by any Default of Tenant shall be paid by Tenant if Landlord is successful in such enforcement. Reasonable attorneys' fees and expenses incurred by or on behalf of Tenant in enforcing its rights hereunder after a default of Landlord shall be paid by Landlord if Tenant is successful in such enforcement. 14.7 WAIVER. (a) Failure on the part of Landlord or Tenant to complain of any action or non-action on the part of the other, no matter how long the same may continue, shall never be a waiver by Tenant or Landlord, respectively, of any of the other's rights hereunder. Further, no waiver at any time of any of the provisions hereof by Landlord or Tenant shall be construed as a waiver of any of the other provisions hereof, and a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval of Landlord or Tenant to or of any action by the other requiring such consent or approval shall not be construed to waive or render unnecessary Landlord's or Tenant's consent or approval to or of any subsequent similar act by the other. (b) No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall be due from Tenant to Landlord shall be treated otherwise than as a payment on account of the earliest installment of any payment due from Tenant under the provisions hereof. The acceptance by Landlord of a check for a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and Landlord may accept such check without prejudice to any other rights or remedies which Landlord may have against Tenant. 14.8 LANDLORD'S DEFAULT. Landlord shall in no event be in default under this Lease unless Landlord shall neglect or fail to perform any of its obligations hereunder and shall fail to remedy the same within thirty (30) days after notice to Landlord specifying such neglect or failure, or if such failure is of such a nature that Landlord cannot reasonably remedy the same 40 within such thirty (30) day period, Landlord shall fail to commence promptly (and in any event within such thirty (30) day period) to remedy the same and to prosecute such remedy to completion with diligence and continuity. ARTICLE 15 MISCELLANEOUS PROVISIONS 15.1 RIGHTS OF ACCESS. Landlord and its agents shall have the right to enter the Premises at all reasonable hours for the purpose of inspecting the Premises or otherwise exercising its rights or fulfilling its obligations under this Lease, and Landlord and its agents also shall have the right to make access available at all reasonable hours to prospective or existing mortgagees, purchasers or tenants of any part of the Property. 15.2 COVENANT OF QUIET ENJOYMENT. (a Reference is made to Policy No. 20335124 issued to Landlord by First American Title Insurance Company and dated December 21, 1999 (the "TITLE INSURANCE POLICY"), a copy of which has been delivered to Tenant. Landlord covenants that to the best of its actual knowledge without any duty of inquiry, there are no liens or encumbrances of record on the Premises as of the date hereof, except as disclosed in the Title Insurance Policy. (b Subject to the terms and conditions of this Lease, on payment of the Basic Rent and Additional Rent and observing, keeping and performing all of the other terms and conditions of this Lease on Tenant's part to be observed, kept and performed, Tenant shall lawfully, peaceably and quietly enjoy the Premises during the term hereof, without hindrance or ejection by any persons lawfully claiming under Landlord to have title to the Premises superior to Tenant. The foregoing covenant of quiet enjoyment is in lieu of any other covenant, express or implied except as otherwise expressly set forth herein. 15.3 LANDLORD'S LIABILITY. (a) Tenant agrees to look solely to Landlord's equity interest in the Property or proceeds therefrom, at the time of recovery for recovery of any judgment against Landlord, and agrees that neither Landlord nor any successor of Landlord shall be personally liable for any such judgment, or for the payment of any monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or any successor of Landlord, or to take any action not involving the personal liability of Landlord or any successor of Landlord to respond in monetary damages from Landlord's assets other than Landlord's equity interest in the Property. (b) In no event shall Landlord ever be liable to Tenant for any loss of business or any other indirect or consequential damages suffered by Tenant from whatever cause. Except with respect to a default under Section 12.1 above, in no event shall Tenant ever be liable to 41 Landlord for any loss of business or any other indirect or consequential damages suffered by Landlord from whatever cause. (c) Whenever Tenant requests Landlord's consent or approval (whether or not provided for herein), Tenant shall pay to Landlord, on demand, as Additional Rent, any reasonable expenses incurred by Landlord (including without limitation reasonable attorneys' fees and costs, if any) in connection therewith. (d) Any repairs or restoration permitted to be made by Landlord under this Lease may be made during normal business hours, and Landlord shall have no liability for damages to Tenant for inconvenience, annoyance or interruption of business arising therefrom. Notwithstanding the foregoing, Landlord agrees to use commercially reasonable efforts to minimize or eliminate interruption in Tenant's business in performing such repairs or restoration. 15.4 ESTOPPEL CERTIFICATE. Landlord and Tenant shall each, at any time and from time to time, upon not less than ten (10) business days prior written notice by the other party, execute, acknowledge and deliver to the requesting party an estoppel certificate containing such statements of fact regarding the Lease as the requesting party reasonably requests. 15.5 BROKERAGE. Landlord and Tenant each warrant and represent to the other that neither of them has dealt with any broker in connection with the consummation of this Lease. In the event of any brokerage claims against Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the same and indemnify Landlord against any such claim. In the event of any brokerage claims against Tenant predicated upon prior dealings with Landlord, Landlord agrees to defend the same and indemnify Tenant against any such claim. 15.6 RULES AND REGULATIONS. Tenant shall abide by the Rules and Regulations set forth in EXHIBIT E, as the same may be reasonably modified from time to time by Landlord. In the event that there shall be a conflict between such Rules and Regulations and the provisions of this Lease, the provisions of this Lease shall control. 15.7 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. 15.8 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respectively, of Landlord and Tenant (except in the case of Tenant, ONLY such successors and assigns as may be permitted hereunder) and, if Tenant shall be an individual, upon and to his heirs, executors, administrators, successors and permitted assigns. Each term and each provision of this Lease to be performed by Tenant shall be construed to be both a covenant and a condition. Any reference 42 in this Lease to successors and assigns of Tenant shall not be construed to constitute a consent to assignment by Tenant. 15.9 RECORDING. Tenant agrees not to record this Lease, but each party hereto agrees, on the request of the other, to execute a notice of lease in recordable form and complying with applicable law. In no event shall such document set forth the rent or other charges payable by Tenant under this Lease; and any such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease. At Landlord's request, promptly upon expiration of or earlier termination of the Term, Tenant shall execute and deliver to Landlord a release of any document recorded in the real property records for the location of the Property evidencing this Lease, and Tenant hereby appoints Landlord Tenant's attorney-in-fact, coupled with an interest, to execute any such document if Tenant fails to respond to Landlord's request to do so within fifteen (15) days. The obligations of Tenant under this Section shall survive the expiration or any earlier termination of the Term. 15.10 NOTICE. All notices or other communications required hereunder shall be in writing and shall be deemed duly given if delivered in person (with receipt therefor), if sent by reputable overnight delivery or courier service (e.g., Federal Express) providing for receipted delivery, or if sent by certified or registered mail, return receipt requested, postage prepaid, to the following address: (a) if to Landlord at Landlord's Address, to the attention of Robert Hale, Sr., with a copy to Maura Griffith Moffatt, Esq., Goodwin, Procter & Hoar LLP, Exchange Place, Boston, MA 02109-2881, and an additional copy to Mr. Michael Shuipis, 128 Oak Street, Duxbury, MA 02332. (b) if to Tenant, at Tenant's Address, to the attention of CFO and General Counsel, and after the Commencement Date, at the Premises, to the attention of CFO and General Counsel, with a copy to Keith R. Barnett, Esq., Hale & Dorr LLP, 60 State Street, Boston, MA 02109. Where receipt of notice or other communication shall be conclusively established by either (i) return of a return receipt indicating that the notice has been delivered; or (ii) return of the letter containing the notice with an indication from the courier or postal service that the addressee has refused to accept delivery of the notice. Either party may change its address for the giving of notices by notice given in accordance with this Section. 15.11 WHEN LEASE BECOMES BINDING; ENTIRE AGREEMENT; MODIFICATION. The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises, and this document shall become effective and binding only upon the execution and delivery hereof by both Landlord and Tenant. This Lease is the entire agreement between Landlord and Tenant, and this Lease expressly supersedes any negotiations, considerations, representations and understandings and proposals or other 43 written documents relating hereto. This Lease may be modified or altered only by written agreement between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change or modify any of the provisions hereof. 15.12 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS. The paragraph headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Lease. The provisions of this Lease shall be construed as a whole, according to their common meaning (except where a precise legal interpretation is clearly evidenced), and not for or against either party. Use in this Lease of the words "including," "such as" or words of similar import, when followed by any general term, statement or matter, shall not be construed to limit such term, statement or matter to the specified item(s), whether or not language of non-limitation, such as "without limitation" or "including, but not limited to," or words of similar import, are used with reference thereto, but rather shall be deemed to refer to all other terms or matters that could fall within a reasonably broad scope of such term, statement or matter. 15.13 DISPUTE RESOLUTION. In the event of a dispute between Landlord and Tenant pursuant to this Lease (other than a dispute relating to the payment of Basic Rent and Additional Rent) the parties agree that prior to pursuing other available remedies (excluding giving notices of default), they will attempt to directly negotiate resolution of their dispute. If negotiation is unsuccessful, then they agree to participate in at least three hours of mediation to be facilitated by a mediator mutually acceptable to them under the mediation procedures set by the mediator. The mediation session shall be conducted within thirty (30) days of the date on which the mediator receives the request to mediate. The costs of such mediation shall be shared equally by the parties. 15.14 WAIVER OF JURY TRIAL. Landlord and Tenant hereby each waive trial by jury in any action, proceeding or counterclaim brought by either against the other, on or in respect of any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant or Tenant's use or occupancy of the Premises. 15.15 TIME IS OF THE ESSENCE. Time is of the essence of each provision of this Lease. 15.16 MULTIPLE COUNTERPARTS. This Lease may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. 15.17 GOVERNING LAW. This Lease shall be governed by the laws of the state in which the Property is located. IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly 44 executed, under seal, by persons hereunto duly authorized, as of the date first set forth above. LANDLORD: Trunks Up LLC By: /s/ Robert T. Hale ----------------------------------- Name: Robert T. Hale Title: Partner TENANT: Network Plus, Inc. By: /s/ Robert T. Hale, Jr. ----------------------------------- Name: Robert T. Hale, Jr. Title: CEO By: /s/ James J. Crowley ----------------------------------- Name: James J. Crowley Title: EVP and COO 45 EXHIBIT A Legal Description of Land 46 EXHIBIT B Site Plan of Building 47 EXHIBIT C Commencement Date Letter _________________, 1999 Mr. Robert Hale, Jr. Mr. James J. Crowley Network Plus, Inc. 41 Pacella Park Drive Randolph, MA 02368 RE: Network Plus, Inc. 41 Pacella Park Drive Randolph, MA Dear Mr. Hale and Mr. Crowley: Reference is made to that certain Lease, dated as of , 2000, between Trunks Up LLC, as Landlord and Network Plus, Ice. as Tenant, with respect to the above-referenced building. In accordance with Section 4.1 of the Lease, this is to confirm that the Commencement Date of the Term of the Lease occurred on March 1, 2005, and that the Term of the Lease shall expire on February 28, 2013. If the foregoing is in accordance with your understanding, kindly execute the enclosed duplicate of this letter, and return the same to us. Very truly yours, Trunks Up LLC By: ---------------------------- Name: ---------------------------- Title: ---------------------------- 48 Accepted and Agreed: Network Plus, Inc. By: Name: Robert Hale, Jr. ---------------------------- Title: ---------------------------- Date: ---------------------------- By: Name: James J. Crowley ---------------------------- Title: ---------------------------- Date: ---------------------------- 49 EXHIBIT D Operating Expenses Operating Expenses shall include the following: 1. All expenses incurred by Landlord or Landlord's agents which shall be directly related to employment of personnel, including amounts incurred for wages, salaries and other compensation for services, payroll, social security, unemployment and similar taxes, workmen's compensation insurance, disability benefits, pensions, hospitalization, retirement plans and group insurance, uniforms and working clothes and the cleaning thereof, and expenses imposed on Landlord or Landlord's agents pursuant to any collective bargaining agreement for the services of employees of Landlord or Landlord's agents in connection with the operation, repair, maintenance, cleaning, management and protection of the Property, including, without limitation, janitors, carpenters, engineers, mechanics, electricians and plumbers and personnel engaged in supervision of any of the persons mentioned above, but specifically excluding, officers and executives and other employees of Landlord not directly connected with the operation of the Property, except for a reasonable management fee which may be included in Operating Expenses as set forth in Item 4 below; provided that, if any such employee is also employed on other property of Landlord, such compensation shall be suitably prorated among the Property and such other properties. 2. The cost of services, utilities, materials and supplies furnished or used in the operation, repair, maintenance, cleaning, management and protection of the Property. 3. The cost of replacements for tools and other similar equipment used in the repair, maintenance, cleaning and protection of the Property, provided that, in the case of any such equipment used jointly on other property of Landlord, such costs shall be suitably prorated among the Property and such other properties. 4. Where the Property is managed by Landlord or an affiliate of Landlord, a sum equal to the amounts customarily charged by management firms in the Randolph area for similar single tenant properties where tenant maintains the property, but in no event more than five percent (5%) of gross annual income, whether or not actually paid, or where managed by other than Landlord or an affiliate thereof, the reasonable amounts accrued for management, together with, in either case, amounts accrued for legal and other professional fees relating to the Property, but excluding such fees and commissions paid in connection with services rendered for securing or renewing leases and for matters not related to the normal administration and operation of the Property. 5. Premiums for insurance against damage or loss to the Property from such hazards as Landlord shall reasonably determine, including, but not by way of limitation, insurance covering loss of rent attributable to any such hazards, and public 50 liability insurance. 6. If, during the Term of this Lease, Landlord shall make a capital expenditure, the total cost of which is not properly includable in Operating Expenses for the Operating Year in which it was made, there shall nevertheless be included in such Operating Expenses for the Operating Year in which it was made and in Operating Expenses for each succeeding Operating Year the annual charge-off of such capital expenditure. Annual charge-off shall be determined by dividing the original capital expenditure PLUS an interest factor, reasonably determined by Landlord, as being the interest rate then being charged for long-term mortgages by institutional lenders on like properties within the locality in which the Property is located, by the number of years of useful life of the capital expenditure; and the useful life shall be determined reasonably by Landlord in accordance with generally accepted accounting principles and practices in effect at the time of making such expenditure. 7. Costs for electricity, water and sewer use charges, gas and other utilities supplied to the Property and not paid for directly by tenants. 8. Betterment assessments, provided the same are apportioned equally over the longest period permitted by law, and to the extent, if any, not included in Taxes. 9. Amounts paid to independent contractors for services, materials and supplies furnished for the operation, repair, maintenance, cleaning and protection of the Property. 51 EXHIBIT E Rules and Regulations of Building The following regulations are generally applicable: 1. Intentionally Omitted. 2. Intentionally Omitted. 3. Intentionally Omitted. 4. The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for which they were designed and constructed, and no sweepings, rubbish, rags, acids or like substances shall be deposited therein. All damages resulting from any misuse of the fixtures shall be borne by the Tenant. 5. Tenant shall not use the Premises or any part thereof or permit the Premises or any part thereof to be used other than for the Permitted Uses. Tenant shall not use the Premises or any part thereof or permit the Premises or any part thereof to be used as a public employment bureau or for the sale of property of any kind at auction, except in connection with Tenant's business. 6. Tenant must, upon the termination of its tenancy, return to the Landlord all locks, cylinders and keys to offices and toilet rooms of the Premises. 7. Intentionally Omitted. 8. Tenant shall not make, or permit to be made, any unseemly or disturbing noises or disturb or interfere with occupants of any neighboring building or premises or those having business with them whether by use of any musical instrument, radio, talking machine, unmusical noise, whistling, singing, or in any other way. Tenant shall not throw anything out of the doors, windows or skylights or down the passageways. 9. The Premises shall not be used for lodging or sleeping or for any immoral or illegal purpose. 10. Intentionally Omitted. 11. Intentionally Omitted. 12. Intentionally Omitted. 13. The rules and regulations set forth in ATTACHMENT I to this Exhibit, which is by this reference made a part hereof, are applicable to any Alterations being undertaken by or for Tenant in the Premises pursuant to SECTION 5.2 of the Lease: 52 Attachment I to Exhibit E RULES AND REGULATIONS FOR TENANT ALTERATIONS A. GENERAL 1. All Alterations made by Tenant in, to or about the Premises shall be made in accordance with the requirements of this Exhibit and by contractors or mechanics approved by Landlord in its reasonable discretion. 2. Tenant shall, prior to the commencement of any work, submit for Landlord's written approval, complete plans for the Alterations, with full details and specifications for all of the Alterations, in compliance with Section D below. 3. Alterations must comply with the Building Code applicable to the Property and the requirements, rules and regulations and any other governmental agencies having jurisdiction. 4. No work shall be permitted to commence before Tenant obtains and furnishes to Landlord copies of all necessary licenses and permits from all governmental authorities having jurisdiction. 5. Intentionally Omitted. 6. Intentionally omitted. 7. All work, if performed by a contractor or subcontractor, shall be subject to reasonable inspection by Landlord's representative. Such inspection shall be at Tenant's sole expense and Tenant shall pay Landlord's reasonable charges for such supervision and inspection. B. PRIOR TO COMMENCEMENT OF WORK 1. Tenant shall submit to the Building manager a request to perform the work. The request shall include the following enclosures: (i) A list of Tenant's contractors and/or subcontractors for Landlord's approval not to be unreasonably withheld, conditioned or delayed. (ii) Four complete sets of plans and specifications prepared by an architect of engineer reasonably satisfactory to Landlord and, to the extent legally required, properly stamped by a registered architect or professional engineer. (iii) A properly executed building permit application form to the extent required by applicable law . (iv) Four executed copies of the Insurance Requirements Agreement in the form attached to this Exhibit as ATTACHMENT II and made a part hereof from Tenant's contractor and, if requested by Landlord, 53 from the contractor's subcontractors. (v) Contractor's and subcontractor's insurance certificates, including an indemnity in accordance with the Insurance Requirements Agreement. 2. Landlord will within seven (7) Business Days return the following to Tenant: (i) Two sets of plans approved or a disapproved with specific comments as to the reasons therefor (such approval or comments shall not constitute a waiver of approval of governmental authorities). (ii) Two fully executed copies of the Insurance Requirements Agreement. 3. Landlord's approval of the plans, drawings, specifications or other submissions in respect of any Alterations shall create no liability or responsibility on the part of Landlord for their completeness, design sufficiency or compliance with requirements of any applicable laws, rules or regulations of any governmental or quasi-governmental agency, board or authority. 4. To the extent required by applicable law, Tenant shall obtain a building permit from the Building Department and necessary permits from other governmental agencies. Tenant shall be responsible for keeping current all permits. Tenant shall submit copies of all approved plans and permits to Landlord and shall post the original permit on the Premises prior to the commencement of any work. C. REQUIREMENTS AND PROCEDURES 1. All structural and floor loading requirements shall be subject to the prior approval of Landlord's structural engineer. 2. All mechanical (HVAC, plumbing and sprinkler) and electrical requirements shall be subject to the approval of Landlord's mechanical and electrical engineers in their reasonable professional judgment. When necessary, Landlord will require engineering and shop drawings, which drawings must be approved by Landlord in its reasonable judgment before work is started. Drawings are to be prepared by Tenant and all approvals shall be obtained by Tenant. 3. No material or equipment shall be carried under or on top of elevators. If an operating engineer is required by any union regulations, such engineer shall be paid for by Tenant. 4. If shutdown of risers and mains for electrical, HVAC, sprinkler and plumbing work is required, such work shall be supervised by Landlord's representative. No work will be performed in Building mechanical equipment rooms without Landlord's approval, not to be unreasonably withheld, conditioned or delayed, and under Landlord's supervision. 5. Tenant's contractor shall: 54 (i) have a superintendent or foreman on the Premises at all times; (ii) police the job at all times, continually keeping the Premises orderly; (iii) maintain cleanliness and protection of all areas, including elevators and lobbies. (iv) protect the front and top of all peripheral HVAC units and thoroughly clean them at the completion of work; and (v) block off supply and return grills, diffusers and ducts to keep dust from entering into the Building air conditioning system. 6. If Tenant's contractor is negligent in any of its responsibilities, Tenant shall be charged for corrective work. 7. All equipment and installations must be equal to the standards generally in effect with respect to the remainder of the Building. Any deviation from such standards will be permitted only if indicated or specified on the plans and specifications and approved by Landlord. 8. A properly executed air balancing report signed by a professional engineer shall be submitted to Landlord upon the completion of all HVAC work. 9. Upon completion of the Alterations, Tenant shall submit to Landlord a permanent certificate of occupancy and final approval by the other governmental agencies having jurisdiction to the extent required by applicable law. 10. Tenant shall submit to Landlord a final "as-built" set of drawings showing all items of the Alterations in full detail. 11. Additional and differing provisions in the Lease, if any, will be applicable and will take precedence. D. STANDARDS FOR PLANS AND SPECIFICATIONS. Whenever Tenant shall be required by the terms of the Lease (including this Exhibit) to submit plans to Landlord in connection with any Alterations, such plans shall include at least the following, to the extent applicable: 1. Floor plan indicating location of partitions and doors (details required of partition and door types). 2. Location of standard electrical convenience outlets and telephone outlets. 3. Location and details of special electrical outlets, E.G., photocopiers, etc. 55 4. Reflected ceiling plan showing layout of standard ceiling and lighting fixtures. Partitions to be shown lightly with switches located indicating fixtures to be controlled. 5. Locations and details of special ceiling conditions, lighting fixtures, speakers, etc. 6. Location and specifications of floor covering, paint or paneling with paint colors referenced to standard color system. 7. Finish schedule plan indicating wall covering, paint, or paneling with paint colors referenced to standard color system. 8. Details and specifications of special millwork, glass partitions, rolling doors and grilles, blackboards, shelves, etc. 9. Hardware schedule indicating door number keyed to plan, size, hardware required including butts, latchets or locksets, closures, stops, and any special items such as thresholds, soundproofing, etc. Keying schedule is required. 10. Verified dimensions of all built-in equipment (file cabinets, lockers, plan files, etc.) 11. Location and weights of storage files. 12. Location of any special soundproofing requirements. 13. Location and details of special floor areas exceeding 50 pounds of live load per square foot. 14. All structural, mechanical, plumbing and electrical drawings, to be prepared by the base building consulting engineers, necessary to complete the Premises in accordance with Tenant's Plans. 15. All drawings to be uniform size (30" x 46") and shall incorporate the standard project electrical and plumbing symbols and be at a scale of 1/8" = 1' or larger. 16. All drawings shall be prepared by an architect (or, where applicable, an engineer) reasonably satisfactory to Landlord and, to the extent legally required, stamped by an architect (or, where applicable, an engineer) licensed in the jurisdiction in which the Property is located and without limiting the foregoing, shall be sufficient in all respects for submission to applicable authorization in connection with a building permit application. 56 Attachment II to Exhibit E Contractor's Insurance Requirements ----------------------------------- Building: Landlord: Tenant: Premises: The undersigned contractor or subcontractor ("CONTRACTOR") has been hired by the tenant named above (hereinafter called "TENANT") of the Building named above (or by Tenant's contractor) to perform certain work ("WORK") for Tenant in the Premises identified above. Contractor and Tenant have requested the landlord named above ("LANDLORD") to grant Contractor access to the Building and its facilities in connection with the performance of the Work, and Landlord agrees to grant such access to Contractor upon and subject to the following terms and conditions: 1. Contractor agrees to indemnify and save harmless Landlord and its respective officers, employees and agents and their affiliates, subsidiaries and partners, and each of them, from and with respect to any claims, demands, suits, liabilities, losses and expenses, including reasonable attorneys' fees, arising out of or in connection with the Work (and/or imposed by law upon any or all of them) because of personal injuries, bodily injury (including death at any time resulting therefrom) and loss of or damage to property, including consequential damages, whether such injuries to person or property are claimed to be due to negligence of the Contractor, Tenant, Landlord or any other party entitled to be indemnified as aforesaid except to the extent specifically prohibited by law (and any such prohibition shall not void this Agreement but shall be applied only to the minimum extent required by law). 2. Contractor shall provide and maintain at its own expense, until completion of the Work, the following insurance: (a) Workmen's Compensation and Employers, Liability Insurance covering each and every workman employed in, about or upon the Work, as provided for in each and every statute applicable to Workmen's Compensation and Employers' Liability Insurance. (b) Comprehensive General Liability Insurance including coverages for Protective and Contractual Liability (to specifically include coverage for the indemnification clause of this Agreement) for not less than the following limits: Personal Injury: $3,000,000 per person, $10,000,000 per occurrence for jobs over $100,000 57 $1,000,000 per person, $5,000,000 per occurrence for jobs under $100,000 Property Damage: $3,000,000 per occurrence $3,000,000 aggregate for jobs over $100,000 $1,000,000 per occurrence $1,000,000 aggregate for jobs under $100,000 (c) Comprehensive Automobile Liability Insurance (covering all owned, non-owned and/or hired motor vehicles to be used in connection with the Work) for not less than the following limits: Bodily Injury: $1,000,000 per person $1,000,000 per occurrence Property Damage: $1,000,000 per occurrence Contractor shall furnish a certificate from its insurance carrier or carriers to the Building office before commencing the Work, showing that it has complied with the above requirements regarding insurance and providing that the insurer will give Landlord ten (10) days' prior written notice of the cancellation of any of the foregoing policies. 3. Contractor shall require all of its subcontractors engaged in the Work to provide the following insurance: (a) Comprehensive General Liability Insurance including Protective and Contractual Liability coverages with limits of liability at least equal to the limits stated in paragraph 2(b). (b) Comprehensive Automobile Liability Insurance (covering all owned, non-owned and/or hired motor vehicles to be used in connection with the Work) with limits of liability at least equal to the limits stated in paragraph 2(c). Upon the request of Landlord, Contractor shall require all of its subcontractors engaged in the Work to execute an Insurance Requirements agreement in the same form as this Agreement. Agreed to and executed this day of , 19 . Contractor: By: ---------------------------------- By: ---------------------------------- 58 By: ----------------------------------