SUBLEASE AGREEMENT

Exhibit 10.17

This Sublease Agreement (this “Sublease”) is made as of the 30th day of December, 2014 by and between ASCEND LEARNING LLC, a Delaware limited liability company, having an office at 0 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (hereinafter referred to as “Sublandlord”), and DEMANDWARE, INC., a Delaware corporation, having an office at 0 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (hereinafter referred to as “Subtenant”);

W I T N E S S E T H :

WHEREAS, pursuant to that certain lease, dated January 27, 2011, as amended by that certain First Amendment to Lease, dated March 18, 2011, which is attached hereto as Exhibit B (the “Xxxxxxxxx”), Piedmont 0 Xxxx Xxxxxx Xxxxxxxxxx, LLC, as successor in interest to Burlington Office Park V Limited Partnership (“Overlandlord”) leases to Sublandlord, as lessee, 74,639 rentable square feet of space on the third and fourth floors (the “Premises”) of the building located at Five Wall Street, Burlington, Massachusetts (hereinafter referred to as the “Building”); and

WHEREAS, Subtenant desires to sublet from Sublandlord the portion of the Premises located on the fourth floor of the Building comprised of 9,650 rentable square feet, as more particularly shown on Exhibit A attached hereto and made a part hereof (the “Sublet Premises”), upon the terms and conditions hereinafter set forth;

NOW, THEREFORE, the parties hereto, for themselves, their successors and assigns, mutually covenant and agree as follows:

1. Capitalized Terms. Any capitalized terms used herein and not otherwise defined in this Sublease shall have the meanings ascribed thereto in the Xxxxxxxxx.

2. Demise. Sublandlord does hereby sublease to Subtenant, and Subtenant does hereby sublease from Sublandlord, the Sublet Premises for the Term and upon the conditions hereinafter provided, together with the right to use, on a non-exclusive basis and in common with other tenants, the common areas and facilities on the fourth floor and the other common areas and parking areas of the Building and the Park as contemplated by Section 2.1 of the Xxxxxxxxx. Subtenant will be provided, at Subtenant’s sole cost and expense, with lobby signage on the building directory and on the 4^th Floor at the Sublet Premises per building standards to the extent permitted by the Xxxxxxxxx.

3. Term; Delivery Condition.

(a) The “Term” of this Sublease shall commence on January 1, 2015, subject to the receipt by Sublandlord of the Overlandlord’s written consent to this Sublease (the “Overlandlord Consent”) (the “Term Commencement Date”) and shall end on October 31, 2019, or on such earlier date upon which said Term may be terminated in accordance with any of the conditions or limitations or other provisions of this Sublease (which date for the termination of the Term hereof shall hereafter be called the “Termination Date”).

(b) This Sublease, and the rights and obligations of Sublandlord and Subtenant under this Sublease, are subject to the condition that Overlandlord consent to the subleasing of the Sublet Premises to the extent required under the Xxxxxxxxx, and this Sublease shall be effective only upon the receipt by Sublandlord of such consent and provision of such consent by Sublandlord to Subtenant. Subtenant agrees to join such consent if so requested by Overlandlord in the form reasonably requested by Overlandlord. If the Overlandlord Consent is not obtained by January 15, 2015, then either party may cancel this sublease by giving not less than fifteen (15) days written notice to the other party of its election to cancel, which cancellation shall be effective on the 15^thday following such notice if the Overlandlord Consent is not obtained prior to the end of such 15 day period. In the event this Sublease is cancelled as aforesaid, then this Sublease shall be null and void and neither party shall have any further obligation to the other.

(c) Subtenant shall have one option (the “Extension Option”) to extend the term of this Sublease for an additional twenty (20) month period (the “Extension Term”) on the same terms and conditions as this Sublease (other than Annual Base Rate and Monthly Base Rent, which shall be as set forth in Section 3(b)(iv) below) subject, however, to the following conditions:

(i) Subtenant shall give written notice (“Extension Notice”) to Sublandlord of its election to extend the Term at least nine (9) months, but no more than twelve (12) months, prior to the expiration of the Term;

(ii) This Sublease shall be in full force and effect and Subtenant shall not be in default of any of the terms, covenants and conditions of this Sublease at the date of the Extension Notice or upon the commencement of the applicable Extension Term;

(iii) Subtenant’s Extension Option is contingent upon Sublandord’s not exercising its right of first refusal to re-occupy the Sublet Premises (“Sublandlord ROFR”) upon the expiration of the Term. Sublandlord may elect to exercise the Sublandlord ROFR by providing written notice to Subtenant within three months after its receipt of the Extension Notice (“Sublandlord Notice”), provided however that if Sublandlord does not provide the Sublandlord Notice to Subtenant within three months after receipt of the Extension Notice from Subtenant, Sublandlord shall have waived its Sublandlord ROFR; and

(iv) Upon the commencement of the Extension Term, Monthly Base Rent shall be payable for the applicable period at the rates set forth below and in accordance with Section 4.


Period	Annual Base Rate		Monthly Base Rent

From November 1, 2019 through October 31, 2020	$	33.00/RSF, gross	$	26,538

From November 1, 2020 through June 30, 2021	$	34.00/RSF, gross	$	27,342

(d) Sublandlord shall deliver the Sublet Premises to Subtenant on the Term Commencement Date in such “AS IS, WHERE IS” broom clean condition as exists on the date delivered to Subtenant, free of all occupants other than Subtenant, and with the Furniture in place in the Sublet Premises. Upon delivery of possession of the Sublet Premises to Subtenant in

accordance with the terms hereof, Subtenant shall conclusively be deemed to have accepted the Sublet Premises in the condition delivered and to have acknowledged that the same are in good condition and satisfactory to Subtenant in all respects and Sublandlord has no obligation to make any improvements to such portion of the Sublet Premises. Subtenant acknowledges that Sublandlord has made no representations or warranties concerning the Sublet Premises or the Building or their fitness for Subtenant’s purposes, except as expressly set forth in this Sublease.

4. Base Rent. Commencing on the date that is two (2) months after the Term Commencement Date, Subtenant shall pay, as “Base Rent”, the amounts set forth below, in monthly installments, in advance on the first (1st) day of each calendar month during the Term of this Sublease. No Base Rent shall be owing in respect of the first two (2) months of the Term (i.e., from January 1, 2015 through February 28, 2015).


Period	Annual Base Rate		Monthly Base Rent

From March 1, 2015 through December 31, 2015	$	28.00/RSF, gross	$	22,517

From January 1, 2016 through December 31, 2016	$	29.00/RSF, gross	$	23,321

From January 1, 2017 through December 31, 2017	$	30.00/RSF, gross	$	24,125

From January 1, 2018 through December 31, 2018	$	31.00/RSF, gross	$	24,929

From January 1, 2019 through October 31, 2019	$	32.00/RSF, gross	$	25,733

The Base Rent shall be paid to Sublandlord at its offices located at the address set forth in the opening paragraph of this Sublease, Attention: Controller, or such other place as Sublandlord may reasonably designate in advance in writing, in lawful money of the United States of America, without demand, deduction, offset or abatement. All sums owing by Subtenant to Subleandlord under this Sublease other than Base Rent shall be deemed “Additional Rent”. Any installment of Base Rent or Additional Rent not paid when due may bear interest at the lesser of (a) a rate of twelve percent (12%) per annum or (b) the highest rate permitted by law, from the date due until the date paid.

5. Operating Costs. Pursuant to Section 4.2 of the Xxxxxxxxx, Sublandlord pays to Overlandlord its share of the amount by which Operating Costs exceed the Base Operating Costs for calendar year 2011 (other than real estate taxes which are included in Base Operating Costs through the fiscal year ending June 30, 2012). In addition to Base Rent, Subtenant shall pay to Sublandlord, as additional rent under this Sublease, Subtenant’s Proportionate Share of (i) real estate taxes above a 2015 Base Year, and (ii) Operating Expenses above a 2015 Base Year (collectively, the “Operating Cost Escalation”). Sublandlord shall xxxx Subtenant for the Operating Cost Escalation promptly after Sublandlord receives the corresponding xxxx from the Overlandlord and Subtenant shall pay each amount so billed within ten (10) business days after its receipt of such invoice., provided, however, that if Tenant is required to make estimated payments pursuant to Section 4.2 of the Xxxxxxxxx, then Subtenant shall make estimated payments of such amounts monthly, in advance, at the time and in the matter provided in Section

4.2 of the Xxxxxxxxx. “Subtenant’s Proportionate Share” shall be 12.93%, based on the rentable area of the Sublet Premises divided by the rentable area of the Premises.

6. Electricity. Commencing on the Term Commencement Date, Subtenant shall pay to Sublandlord the sum of $1,206 prior to the first day of each month in the Term in respect of electrical services to the Sublet Premises as estimated by Sublandlord on a $1.50 per square foot basis. Sublandlord assumes that Subtenant’s usage will be typical of tenants of Class A office space and Sublandlord reserves the right to install, at its expense, a sub-meter and thereafter xxxx Subtenant for actual usage, in which case Sublandlord shall promptly notify Subtenant of such sub-metering and on a monthly basis any amounts determined thereby, and Subtenant shall have thirty (30) days within which to make such payments as additional rent hereunder.

7. Security Deposit. Simultaneously with the execution of this Sublease, Subtenant shall pay to and deposit with Sublandlord the sum of $25,000 (the “Security Deposit”). Sublandlord shall hold the Security Deposit throughout the term of this Sublease as security for the performance by Subtenant of all obligations on the part of Subtenant hereunder. The Security Deposit shall not be deemed an advance rent deposit or an advance payment of any other kind, or a measure or limitation of Sublandlord’s damages or constitute a bar or defense to any of Sublandlord’s other remedies under this Sublease or at law or in equity upon Subtenant’s default. Sublandlord shall have the right from time to time, without prejudice to any other remedy Sublandlord may have on account thereof, to apply such deposit, or any part thereof, to Sublandlord’s damages arising from, or to cure, any default of Subtenant. If Sublandlord shall so apply any or all of the Security Deposit, Subtenant shall within ten (10) days after written demand from Sublandlord deposit with Sublandlord the amount so applied to replenish the Security Deposit. Sublandlord shall return the Security Deposit, or so much thereof as shall not have theretofore been applied in accordance with the terms of this Section 7, to Subtenant on the expiration or earlier termination of the Term of this Sublease and surrender of possession of the Sublet Premises by Subtenant to Sublandlord at such time, provided that if there is then existing a default (or any circumstance which, with the passage of time or the giving of notice, or both, would constitute a default), Sublandlord shall retain a portion of the Security Deposit sufficient to cure such default and shall return the remainder of the Security Deposit to Subtenant within thirty (30) days after the Termination Date. While Sublandlord holds the Security Deposit, Sublandlord shall have no obligation to pay interest on the same and shall have the right to commingle the same with Sublandlord’s other funds. If Sublandlord conveys Sublandlord’s interest under this Sublease, the Security Deposit, or any part thereof not previously applied, shall be turned over by Sublandlord to Sublandlord’s grantee, and, if so turned over, Subtenant agrees to look solely to such grantee for proper application of the Security Deposit in accordance with the terms of this Section 7, and the return thereof in accordance herewith.

8. Use. Subtenant shall use and occupy the Sublet Premises only for the use permitted under the Xxxxxxxxx (the “Permitted Uses”). Subtenant shall also comply with all laws governing or affecting Subtenant’s use of the Sublet Premises, and Subtenant acknowledges that Sublandlord has made no representations or warranties concerning whether the Permitted Uses comply with such laws.

9. Surrender. Upon the expiration or earlier termination of this Sublease, Subtenant shall vacate and deliver the Sublet Premises to Sublandlord in vacant, broom clean condition and

otherwise in the condition required under Section 6.1.2 of the Xxxxxxxxx, as incorporated herein by reference with the Furniture in place in accordance with Section 30.

10. Insurance. Subtenant shall obtain and maintain all insurance types and coverage as specified in the Xxxxxxxxx to be obtained and maintained by Sublandlord, as tenant, in amounts not less than those specified in the Xxxxxxxxx. All such policies of insurance shall name Overlandlord and Sublandlord as additional insureds thereunder. Subtenant’s insurance shall be primary over Overlandlord’s and Sublandlord’s insurance. Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty. To the extent that such insurance is in force and collectible and to the extent permitted by law, Sublandlord and Subtenant each hereby releases and waives all right to recovery against the other or anyone claiming through or under the other by way of subrogation or otherwise.

11. Enforcement of Xxxxxxxxx. (a) Subtenant shall neither do nor permit anything to be done which would cause a default under the Xxxxxxxxx which default remains uncured beyond any applicable cure period, or termination or forfeiture by reason of any right of termination or forfeiture, reserved or vested in the Overlandlord under the Xxxxxxxxx and Subtenant shall indemnify and hold Sublandlord harmless solely (but not in limitation of Section 12 of this Sublease) from and against all claims of any kind whatsoever by reason of breach or default on the part of Subtenant, or termination or forfeiture which is the consequence of any such breach or default.

(b) Sublandlord hereby acknowledges and agrees that this Sublease does not relieve it from its liability for the payment of rent and the performance and observance of all of the terms, conditions, covenants and obligations under the Xxxxxxxxx. Upon the written request of Subtenant, Sublandlord shall use reasonable efforts (but shall have no obligation to bring a formal action or proceeding), at Subtenant’s sole cost and expense, to enforce on behalf of Subtenant, Sublandlord’s rights under the Xxxxxxxxx with respect to the Sublet Premises. Subtenant shall also have the right to take such action in its own name. If (i) any such action against the Overlandlord in Subtenant’s name is barred by reason of lack of privity, non-assignability or otherwise, and (ii) the failure of Overlandlord to perform its obligations under the Xxxxxxxxx would have a material adverse effect upon the Sublet Premises or Subtenant’s permitted use thereof, then subject to and upon the following terms, Subtenant may bring such action in Sublandlord’ s name and Sublandlord shall execute all documents reasonably requested in connection therewith, provided (A) the same is without cost and expense to Sublandlord, (B) Subtenant shall provide the indemnification to Sublandlord required pursuant to its obligations under the Xxxxxxxxx, and (C) Subtenant is not in default hereunder.

(c) Provided Subtenant is not in default under this Sublease (subject to applicable notice and cure periods), Sublandlord covenants that it shall not voluntarily cancel or surrender the Xxxxxxxxx (except the foregoing shall not apply to Sublandlord’s termination rights in the event of a casualty or condemnation, nor shall Sublandlord be obligated to exercise any extension option under the Xxxxxxxxx), nor consent to any modification, amendment or supplement to the Xxxxxxxxx which materially, adversely impacts Subtenant, without the prior written consent of Subtenant. If the Xxxxxxxxx is terminated for any reason whatsoever, whether by operation of law or otherwise, except through the default of Sublandlord, Sublandlord shall not be liable in

any manner whatsoever for such termination. Sublandlord shall promptly forward to Subtenant any default or termination notice with respect to the Xxxxxxxxx received by Sublandlord and this Sublease shall terminate in the event of any such termination of the Xxxxxxxxx. A termination of the Xxxxxxxxx due to the default of Sublandlord, other than a default caused by Subtenant under this Sublease, shall be considered a voluntary cancellation or surrender of the Xxxxxxxxx under this Section.

12. Subordination to Xxxxxxxxx. (a) This Sublease is subject and subordinate to the terms and conditions of the Xxxxxxxxx as applicable to the Sublet Premises and Sublandlord does not purport to convey, and Subtenant does not hereby take, any greater rights in the Sublease Premises than those accorded to or taken by Sublandlord as tenant under the Xxxxxxxxx.

(b) Except as expressly otherwise provided in this Sublease, all of the terms, provisions, covenants and conditions of the Xxxxxxxxx are incorporated herein by reference and hereby made a part of this Sublease. However, for purposes of such incorporation by reference, all references to Landlord and Tenant shall be deemed references to Sublandlord and Subtenant, respectively, all references to the Premises shall be deemed references to the Sublet Premises and all references to the term of the Xxxxxxxxx shall be deemed references to the term of this Sublease, except that Subtenant shall have no obligation to remove alterations installed by Sublandlord or restore the Subleased Premises to any condition other than its condition on the Term Commencement Date. In the event of a conflict or ambiguity between the provisions of the Xxxxxxxxx and the provisions of this Sublease, the provisions of this Sublease shall govern and control. Subtenant shall be entitled to the same notice and cure periods, less five (5) business days, as Sublandlord is afforded pursuant to Section 9.1 of the Xxxxxxxxx. Sublandlord shall have all of the rights and remedies of the Overlandlord under the Xxxxxxxxx as against Subtenant and, as between the parties hereto, Subtenant agrees to observe and perform all of the terms, covenants and conditions on Sublandlord’s part to be observed and performed under the Xxxxxxxxx as applicable to the Sublet Premises as incorporated herein by reference.

13. Overlandlord’s Services and Obligations under the Xxxxxxxxx. Notwithstanding anything in this Sublease or the Xxxxxxxxx to the contrary, including without limitation Section 11 hereof and Article 5 and Exhibit D of the Xxxxxxxxx, Subtenant agrees that (i) Sublandlord shall have no obligations under this Sublease to perform the obligations of Overlandlord, as landlord under the Xxxxxxxxx, including, without limitation, any obligation to provide services, perform maintenance or repairs, or maintain insurance, and Subtenant shall seek such performance and obtain such services solely from the Overlandlord; (ii) Sublandlord shall not be bound by any representations or warranties of the Overlandlord under the Xxxxxxxxx; (iii) in any instance where the consent of Overlandlord is required under the terms of the Xxxxxxxxx, the consent of Sublandlord and Overlandlord shall be required; and (iv) Sublandlord shall not be liable to Subtenant for any failure or delay in Overlandlord’s performance of its obligations, as landlord under the Xxxxxxxxx, nor shall Subtenant be entitled to terminate this Sublease or xxxxx the Base Rent or Additional Rent due hereunder except to the extent Sublandlord is permitted to xxxxx rent or terminate under the Xxxxxxxxx. Upon the written request of Subtenant, Sublandlord shall use reasonable efforts to cause the Overlandlord to observe and/or perform the obligations of the Overlandlord under the Xxxxxxxxx which relate to the Sublet Premises; provided, however, that Sublandlord shall not be required to incur any

expense or expend any sums to obtain such enforcement, except to the extent of funds advanced by Subtenant to Sublandlord for such purpose.

14. Certain Xxxxxxxxx Provisions Not Incorporated. The following provisions of the Xxxxxxxxx are expressly not incorporated into this Sublease: Reference Data, Sections 2.1, 2.2, 3.1, 3.2, 3.5 and 3.6, Article 4, Section 5.1, Section 6.1.6, the provisions regarding Alterations costing less than $50,000 in Section 6.1.15, the second and third paragraphs of Section 6.1.20, Section 10.2, Section 10.4, Section 10.14, Section 10.19, Article 11, and all Exhibits (except Exhibit E); as well as such other terms of the Xxxxxxxxx as do not relate to the Sublet Premises or are inapplicable, inconsistent with, or specifically modified by, the terms of this Sublease. In furtherance of the foregoing, Subtenant shall not take any action or do or permit to be done anything which (A) is or may be prohibited as to Sublandlord under the Xxxxxxxxx, (B) would result in a default under any of the provisions of the Xxxxxxxxx, provided that Subtenant has received notice and a reasonable opportunity to cure such default, or (C) would result in any additional cost or liability to Sublandlord. Subtenant acknowledges that it has reviewed the Xxxxxxxxx attached hereto and made a part hereof as Exhibit B, and that it is familiar with the contents thereof.

15. Alterations and Improvements. Subtenant shall not perform any Alterations (as defined in the Xxxxxxxxx) without Sublandlord’s prior consent, which shall not be unreasonably withheld, conditioned or delayed (provided that a requirement by Sublandlord that such Alterations be removed and the Sublet Premises restored at the end of the Term by Subtenant at Subtenant’s cost shall not be considered an unreasonable condition), subject to the applicable terms and conditions of the Xxxxxxxxx (except that the provisions regarding Alterations permitted without consent shall not be applicable) and receipt of required approvals from Overlandlord for such improvements. Nothing in this Sublease shall be construed as an agreement that Sublandlord has any obligation to perform any alterations, installments, removals, additions or improvements for Subtenant whatsoever and the Sublet Premises shall be provided and delivered in “as is” broom swept condition. To the extent permitted in the Xxxxxxxxx and subject to the provisions thereof (including the obligation to remove the same at the termination of this Sublease to the extent required by the Xxxxxxxxx or Overlandlord), Subtenant shall have the right to perform modifications to the Sublet Premises, including in particular, installation of an enterprise data network and security equipment and hardware. Any improvements will be paid by Subtenant and are subject to both Sublandlord’s and Overlandlord’s reasonable approval rights, not to be unreasonably withheld, conditioned or delayed in the case of Sublandlord (provided that a requirement by Sublandlord that such Alterations be removed and the Sublet Premises restored at the end of the Term by Subtenant at Subtenant’s cost shall not be considered an unreasonable condition).

16. Assigning and Subletting. Notwithstanding any provision of the Xxxxxxxxx incorporated herein to the contrary, Subtenant shall not assign, mortgage, transfer (by operation of law or otherwise), or hypothecate this Sublease or sublet, license or permit and other party to use or occupy any portion of the Sublet Premises (individually, a “Transfer”) except, to the extent permitted by Xxxxxxxxx, to any related entity, parent, subsidiary, or affiliate of Subtenant or any entity which directly or indirectly controls, is controlled by or under common control of the Subtenant or to any corporation or other entity with succeeds to all or substantially all of the assets and business of Subtenant without the prior written consent of Sublandlord and

Overlandlord, which they may grant, withhold or condition in their respective sole discretion. The following transactions shall be deemed assignments of this Sublease requiring such prior written consent: (i) any assignment, mortgage, pledge or other transfer of this Sublease; (ii) any sublease, license or occupancy agreement with respect to any portion of the Sublet Premises. If Sublandlord and Overlandlord consent to any such Transfer, such Transfer shall comply with the requirements of Section 6.1.6 of the Xxxxxxxxx and Subtenant shall pay over to Sublandlord 50% of the excess of such amounts payable each month in connection with a Transfer to the extent in excess of the Rent due to Sublandlord hereunder. Overlandlord’s refusal to consent to a Transfer shall be deemed a reasonable reason for Sublandlord to withhold its consent to a Transfer, without any obligation on the part of Sublandlord to dispute Overlandlord’s refusal. Nothing contained herein shall be deemed to limit or amend the rights of Overlandlord under Section 6.1.6 of the Xxxxxxxxx. Any attempt by Subtenant to Transfer the Sublet Premises or the Sublease without the prior written consent of both Sublandlord and Overlandlord shall be void. No consent by the Sublandlord pursuant to this Section shall be deemed a waiver of the obligation to obtain the Sublandlord’s consent to a Transfer on any subsequent occasion; no waiver of the foregoing restrictions or any portion thereof to a Transfer shall constitute a waiver or consent in any other instance; and Subtenant shall remain at all times primarily liable for the performance and payment of all terms, conditions, covenants and agreements contained herein.

17. Representations and Warranties.

Sublandlord represents and warrants to Subtenant as follows as of the date of execution and delivery of this Sublease: (i) to Subtenant’s knowledge, the Xxxxxxxxx is in full force and effect in accordance with, and subject to, all of the terms, covenants, conditions and agreements contained therein; (ii) the Xxxxxxxxx has not been modified, amended or supplemented except as set forth on Exhibit B; (iii) Sublandlord has not received any notice of any default by the Sublandlord under the Xxxxxxxxx, which default remains uncured, and is not aware of, any material default by the Sublandlord under the Xxxxxxxxx, which default remains uncured; (iv) Sublandlord holds the entire tenant’s interest in the Sublet Premises under the Xxxxxxxxx free and clear of any liens, claims, mortgages, charges or encumbrances, subleases and occupancies (other than this Sublease and the Xxxxxxxxx), other than matters to which the tenancy of the Sublandlord, as tenant under the Xxxxxxxxx, is or may be subordinate; and (v) subject to receipt of approval of Overlandlord to this Sublease, Sublandlord has full right, power and authority to enter into this Sublease.

(c) Each party acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any employee, agent or representative of the other party in connection with this Sublease, other than reasonable gifts and entertainment provided in the ordinary course of business. Each party will promptly notify the other party if it offers or receives any such improper payment or transfer in connection with this Sublease.

18. Notice. Any and all communications delivered hereunder shall be in writing and delivered or served in accordance with Article 14.5 of the Xxxxxxxxx addressed as follows: if to Overlandlord: as provided in the Xxxxxxxxx; if to Sublandlord, at the Premises, to the attention of Xxxxxxxx Xxxxxxx, General Counsel; and if to Subtenant, at the Sublet Premises, to the attention

of Chief Legal Officer, or to such other address and attention as any of the above shall notify the others in writing.

19. Default. In the event of a default by Subtenant in the full and timely performance of its obligations under the Sublease, including, without limitation, its obligation to pay Base Rent or Additional Rent, Sublandlord shall have all of the rights and remedies available to “Landlord” under the Xxxxxxxxx as though Sublandlord were “Landlord” and Subtenant were “Tenant”, including without limitation the rights and remedies set forth in Sections 9.1 and 9.2 of the Xxxxxxxxx. The foregoing shall survive the expiration or early termination of this Sublease.

20. Successors and Assigns. This Sublease and everything herein contained shall extend to and bind and inure to the benefit of the Sublandlord and its successors and assigns and the Subtenant and its permitted successors and assigns. No rights shall inure to the benefit of any assignee, subtenant or occupant unless the provisions of Section 6.1.6 of the Xxxxxxxxx and Section 16 of this Sublease are complied with.

21. Miscellaneous. Neither Sublandlord nor any agent or representative of Sublandlord has made or is making, and Subtenant in executing and delivering this Sublease is not relying upon, any warranties, representations, promises or statements whatsoever, except to the extent expressly set forth in this Sublease. All understandings and agreements regarding the subject of this Sublease, if any, heretofore had between the parties are merged into this Sublease, which alone fully and completely expresses the agreement of the parties. No surrender of possession of the Sublet Premises or of any part thereof or of any remainder of the term of this Sublease shall release Subtenant from any of its obligations hereunder unless accepted by Sublandlord in writing. Failure by either party in any instance to insist upon the strict performance of any one or more of the obligations of the other party under this Sublease, or to exercise any election herein contained, or acceptance of payment of any kind with knowledge of a default by the other party, shall in no manner be or be deemed to be a waiver by such party of any defaults or breaches hereunder or of any of its rights and remedies by reason of such defaults or breaches, or a waiver or relinquishment for the future of the requirement of strict performance of any and all of the defaulting party’s obligations hereunder. The receipt and retention by Sublandlord of Base Rent or additional rent from anyone other than Subtenant shall not be deemed a waiver of the breach by Subtenant of any covenant, agreement, term or provision of this Sublease, or as the acceptance of such other person as a tenant, or as a release of Subtenant from the covenants, agreements, terms, provisions and conditions herein contained. The receipt and retention by Sublandlord of Base Rent or additional rent with knowledge of the breach of any covenant, agreement, term, provision or condition herein contained shall not be deemed a waiver of such breach. This Sublease shall be governed by, and construed in accordance with the laws of The Commonwealth of Massachusetts. All of the terms and provisions of this Sublease shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Sublease may not be amended, modified or terminated, in whole or in part, nor may any of the provisions be waived, except by a written instrument executed by the party against whom enforcement of such amendment, modification, termination or waiver is sought. This Sublease may be executed in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which together shall constitute one and the same instrument.

22. Quiet Enjoyment. So long as Subtenant is not in default under this Sublease, its quiet enjoyment of the Sublet Premises shall not be disturbed or interfered with by Sublandlord or anyone claiming by, through or under Sublandlord.

23. Overlandlord’s Consent. It is hereby acknowledged by Sublandlord and Subtenant that Overlandlord’s consent to this Sublease shall not create any contractual liability or duty on the part of Overlandlord or its agent to the Subtenant, and shall not in any manner increase, decrease or otherwise affect the rights and obligations of Overlandlord and Sublandlord, as the lessee under the Xxxxxxxxx, with respect to the Sublet Premises.

24. Sublandlord’s Consent. Whenever Sublandlord’s consent is required under this Sublease, Sublandlord’s rejection of a request made by Subtenant shall not deemed unreasonable, in any case, if such rejection is based on Overlandlord’s rejection of such request.

25. Brokers. Sublandlord and Subtenant each hereby represent and warrant that it has not dealt with any broker other than Avison Young and Xxxxx Long LaSalle in connection with this Sublease for the Sublet Premises. Each party shall hold the other party harmless from and against all claims for brokerage commissions, finder’s fees, or other compensation made by any other agent, broker, salesman or finder as a consequence of said party’s actions or dealings with any such agent, broker, salesman, or finder.

26. Termination of Xxxxxxxxx. In the event of a default under the Xxxxxxxxx by Sublandlord that results in the termination of the Xxxxxxxxx, Subtenant shall, at the option of Overlandlord, provided in writing to Subtenant (to the extent required by the Xxxxxxxxx), attorn to and recognize Overlandlord as Sublandlord hereunder and shall, promptly upon Overlandlord’s written request, execute and deliver all instruments necessary or appropriate to confirm such attornment and recognition.

27. No Offset; Independent Covenants; Waiver. Base Rent and Additional Rent (collectively, “Rent”) shall be paid without notice or demand, and without setoff, counterclaim, defense, abatement, suspension, deferment, reduction or deduction, except as expressly provided herein. Subtenant waives all rights (i) to any abatement, suspension, deferment, reduction or deduction of or from Rent, except to the extent otherwise expressly set forth herein, and (ii) to quit, terminate or surrender this Sublease or the Sublet Premises or any part thereof, except as expressly provided herein. SUBLESSEE HEREBY ACKNOWLEDGES AND AGREES THAT THE OBLIGATIONS OF SUBLESSEE HEREUNDER SHALL BE SEPARATE AND INDEPENDENT COVENANTS AND AGREEMENTS, THAT RENT SHALL CONTINUE TO BE PAYABLE IN ALL EVENTS AND THAT THE OBLIGATIONS OF SUBLESSEE HEREUNDER SHALL CONTINUE UNAFFECTED, UNLESS THE REQUIREMENT TO PAY OR PERFORM THE SAME SHALL HAVE BEEN TERMINATED PURSUANT TO AN EXPRESS PROVISION OF THIS SUBOVERLEASE.

28. ANTI-TERRORISM REPRESENTATIONS.

Each party represents and warrants to the other party that:

(a) It is not, and shall not during the Term become, a person or entity with whom the other party is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto, including, without limitation, persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List (collectively, “Prohibited Persons”); and

(b) it is not currently conducting any business or engaged in any transactions or dealings, or otherwise associated with, any Prohibited Persons in connection with the use or occupancy of the Sublet Premises; and

(c) it will not in the future during the Term engage in any transactions or dealings, or be otherwise associated with, any Prohibited Persons in connection with the use or occupancy of the Sublet Premises.

29. Parking. To the extent available to Sublandlord under Section 2.1 of the Xxxxxxxxx, Sublandlord shall make available to Subtenant use thirty-six (36) non-reserved parking spaces at the Building and the covered garage, subject to the terms and conditions of the Xxxxxxxxx relating to such parking spaces.

30. Furniture. Subtenant shall have, as appurtenant to the Sublet Premises, the use during the Term of the furniture and equipment located in the Sublet Premises as of the Term Commencement Date as more fully listed on Exhibit C (collectively, the “Furniture”). Subtenant acknowledges that it has had the opportunity to inspect the Furniture and shall accept the Furniture in its “as is” condition of the Term Commencement Date.

Subtenant agrees to take all actions necessary or appropriate to ensure that the Furniture shall be and remain personal property, and nothing in this Xxxxxxxxx shall be constituted as conveying to Subtenant any interest in the Furniture other than its interest as a Subtenant. Subtenant shall, at its expense, protect and defend the interest of Sublandlord in the Furniture against all third party claims; keep the Furniture free and clear of any mortgage, security interest, pledge, lien, charge, claim, or other encumbrance (collectively, a “Lien”), except any Lien arising solely through acts of Sublandlord. The Furniture shall be used by Subtenant only at the Premises and in the ordinary conduct of its business. In the event Subtenant elects at any time during the Term not to utilize any of the Furniture, Subtenant shall notify Sublandlord in writing of the items of furniture Tenant elects not to use and Subtenant shall be responsible, at Subtenant’s sole cost and expense, for transporting the Furniture it elects not to use to a storage location designated in writing by Sublandlord. Subtenant shall, at its expense, maintain and replace the Furniture so that it remains in the same condition as when delivered to Subtenant, ordinary wear and tear from proper use excepted, and shall surrender the Furniture in such condition upon the expiration or earlier termination of the Term. In addition, Subtenant hereby assumes all other risks and liabilities, including without limitation personal injury or death and property damage, arising with respect to the Furniture (unless solely through Sublandlord’s gross negligence or willful misconduct), howsoever arising, in connection with any event occurring prior to such Furniture’s return in accordance herewith. Subtenant hereby assumes liability for,

and shall pay when due, all fees, taxes, and governmental charges (including without limitation interest and penalties) of any nature imposed upon or in any way relating to the Furniture. In addition, as Sublandlord is not the manufacturer or vendor of the Furniture, it makes no other representation or warranty, express or implied, as to any matter whatsoever, including without limitation the design or condition of the Furniture, its merchantability, durability, suitability or fitness for any particular purpose, the quality of the material or workmanship of the Furniture, or the conformity of the Furniture to the provisions or specifications of any purchase order relating thereto, and Sublandlord hereby disclaims any and all such representations and warranties.

[Nothing Further on this Page; Signatures Follow]

IN WITNESS WHEREOF, Sublandlord and Subtenant have duly executed this Sublease, as an instrument under seal, as of the day and year first above written.


SUBLANDLORD:

ASCEND LEARNING, LLC

By:		/s/ Xxxxxxx X. Xxxxxx
Name:		Xxxxxxx X. Xxxxxx
Title:		CFO

SUBTENANT:

DEMANDWARE, INC.

By:		/s/ Xxxxxxx Xxxxx
Name:		Xxxxxxx Xxxxx
Title:		CFO

EXHIBIT A

PLAN OF THE SUBLET PREMISES

EXHIBIT B

XXXXXXXXX

FIRST AMENDMENT TO LEASE

This First Amendment to Lease (this “Amendment”) executed as of this 18^th day of March, 2011, by and between Burlington Office Park V Limited Partnership (hereinafter referred to as “Landlord”) and Ascend Learning LLC (hereinafter referred to as “Tenant”).

RECITALS

WHEREAS, by that certain Lease by and between Landlord and Tenant dated January 27, 2011 (hereinafter referred to as the “Lease”), Landlord demised to Tenant certain Premises consisting of approximately 55,166 rentable square feet of tenant space comprising a portion of the existing building located on that certain parcel of real property known and numbered as 0 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx and as more particularly described in the Lease; and

WHEREAS, Tenant has elected to lease an additional 19,473 rentable square feet located adjacent to Tenant’s existing space on the second floor, specifically such area described on Exhibit A hereto as the “Expansion Premises” (hereinafter referred to as the “Additional Space”); and

WHEREAS, Landlord and Tenant desire to further amend the Lease to inter alia, include the addition of the Additional Space in the definition of the Premises, and to make certain other modifications to the Lease, as applicable.

AGREEMENT

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree as follows:

1. Section 1.1 of the Lease is hereby amended (i) by deleting “55,166” in the first line of the definition of “Rentable Floor Area of Tenant’s Space” and by replacing the same with “74,639”; and (ii) by deleting “18,655 RSF on the fourth (4^th) floor” in the fifth line of the definition of “Rentable Floor Area of Tenant’s Space” and by replacing the same with “38,128 RSF on the fourth (4^th) floor”; and (iii) by deleting the definition of “Fixed Rent” and by replacing the same with the following:


		Initial eight and one-half (8.5) months: $0

		Months 8,5-12 (commencing the 9.5 month anniversary of the Commencement Date):


		$1,828,655.50/Year; $152,387.96/Month $24.50/RSF

		Year 2: $1,865,975.00/Year; $155,497.92/ Month; $25.00/RSF

		Year 3: $1,903,294.50/Year; $158,607.87/ Month; $25.50/RSF

		Year 4: $2,164,531.00/Year; $180,377.58/ Month; $29.00/RSF

		Year 5: $2,201,850.50/Year; $183,487.54/ Month; $29.50/RSF

		Year 6: $2,239,170.00/Year; $186,597.50/ Month; $30.00/RSF

		Year 7: $2,276,489.50/Year; $189,707.46/ Month; $30.50/RSF

		Year 8: $2,313,809.00/Year; $192,817.42/ Month; $31.00/RSF

		Year 9: $2,351,128.50/Year; $195,927.37/ Month; $31.50/RSF

		Year 10: $2,388,448.00/Year; $199,037.33/ Month; $32.00/RSF

2. Exhibit A of the Lease is hereby deleted in its entirety and replaced with the Exhibit A attached to this Amendment.

3. For all purposes hereunder or elsewhere in the Lease, as amended herein, the term “Premises” shall hereafter refer to the entire “Tenant’s Space” consisting of approximately 74,639 rentable square feet.

4. The Additional Space shall be delivered to Tenant in accordance with the provisions of Article III except that the parties hereby agree that the Tenant’s Plans with respect to the Additional Space shall be delivered by Tenant to Landlord by May 1, 2011 in order for the planned improvements of the Additional Space to be substantially completed by September 1, 2011 (assuming a build out consistent with the remainder of the Premises). In connection therewith, Tenant shall be responsible for any and all costs

of completing the improvements to the Additional Space in excess of Landlord’s allowance equal to $35.00/RSF of the Additional Space, or an aggregate of $681,555.00, which such costs above said allowance, if applicable, shall be paid by Tenant within thirty (30) days of receipt of Landlord’s invoice therefor following completion of such work (which such invoice shall contain such reasonable documentation evidencing the completion of such work). Notwithstanding any language to the contrary set forth in the Lease, in no event shall the completion of the improvements within the Additional Space be a condition for the commencement of the Term under the Lease (and the commencement of the payment of Fixed Rent due pursuant to Section 1.1 of the Lease).

5. Tenant and Landlord warrant and represent that they have dealt with no brokers in connection with this Amendment, except for Xxxxx & Xxxxx, and in the event of any brokerage claims by any other broker against either pasty predicated upon prior dealings with the other party, such other party agrees to defend the same and indemnify and Landlord or Tenant as the case may be harmless against any such claim.

6. This Amendment may be executed in two (2) or more counterparts, each of which shall be an original but such counterparts together shall constitute one (1) and the same instrument notwithstanding that both Landlord and Tenant are not signatories to the same counterpart. The parties agree that facsimile copies of this Amendment, bearing their respective signatures, shall be enforceable as originals.

7. This Amendment shall be binding on and inure to the benefit of the subsequent assignees of Landlord and Tenant.

8. All capitalized terms as used herein, but not defined herein, shall have the same meaning ascribed to them in the Lease.

9. Except as amended by this Amendment, all other terms, conditions, covenants and provisions as appear in the Lease are hereby ratified and confirmed and shall remain unchanged.

Balance of this page intentionally left blank

EXECUTED as of the day and year first written above.


LANDLORD:

BURLINGTON OFFICE PARK V LIMITED PARTNERSHIP

BY:		THE XXXXXXXXX COMPANY,
		ITS GENERAL PARTNER

By:		/s/ Xxxxxx X. Xxxxxxxxx, Xx.
		Xxxxxx X. Xxxxxxxxx, Xx,
		President

TENANT:

ASCEND LEARNING LLC

By:		/s/ Xxxx Xxxxxxx

Name:		Xxxx Xxxxxxx

Its:		Controller + Treasurer
		Hereunto Duly Authorized

EXHIBIT “A”

(Plan of Premises)

To be attached

LEASE

Between

Burlington Office Park V Limited Partnership

and

Ascend Learning LLC

for

55,166 Rentable Square Feet

within Five Wall Street

Burlington, Massachusetts

INDEX


ARTICLE 1 – REFERENCE DATA			1

	1.1	Subject Referred To	1
	1.2	Exhibits	4

ARTICLE 2 – PREMISES AND TERM:			4

	2.1	Premises	4
	2.2	Term	6

ARTICLE 3 – CONSTRUCTION:			6

	3.1	Initial Construction	6
	3.2	Preparation of Premises for Occupancy	9
	3.3	General Provisions Applicable to Construction	10
	3.4	Representatives	11
	3.5	Arbitration by Architects	11
	3.6	Warranty of Tenant’s Work	11

ARTICLE 4 – RENT:			12

	4.1	Rent	12
	4.2	Operating Cost Escalation	12
	4.3	Payments	20

ARTICLE 5 – LANDLORD’S COVENANTS:			20

	5.1	Landlord’s Covenants during the Term	20
	5.2	Interruptions	23

ARTICLE 6 – TENANTS COVENANTS:			24

	6.1	Tenant’s Covenants during the Term	24

ARTICLE 7 – CASUALTY AND TAKING:			33

	7.1	Casualty and Taking	33
	7.2	Reservation of Award	33
	7.3	Additional Casualty Provisions	34

INDEX

(Continued)



ARTICLE 8 – RIGHTS OF MORTGAGEE:		35

8.1	Priority of Lease	35
8.2	Limitation on Mortgagee’s Liability	35
8.3	Mortgagee’s Election	36
8.4	No Prepayment or Modification, etc.	36
8.5	No Release or Termination	36
8.6	Continuing Offer	36

ARTICLE 9 – DEFAULT:		37

9.1	Events of Default	37
9.2	Tenant’s Obligations After Termination	37
9.3	Events of Default by Landlord	39

ARTICLE 10 – MISCELLANEOUS:		39

10.1	Titles	39
10.2	Notice of Lease	40
10.3	Relocation	40
10.4	Notices from One Party to the Other	40
10.5	Bind and Inure	40
10.6	No Surrender	40
10.7	No Waiver, etc.	41
10.8	No Accord and Satisfaction	41
10.9	Cumulative Remedies	41
10.10	Partial Invalidity	41
10.11	Landlord’s Right to Cure	41
10.12	Estoppel Certificate	42
10.13	Waiver of Subrogation	42
10.14	Brokerage	42
10.15	Covenants Independent	43
10.16	Access	43
10.17	Entire Agreement	43
10.18	Governing Law	43
10.19	Additional Representations	43

ARTICLE 11 – SECURITY:		44

Date of Lease Execution: January 27, 2011

REFERENCE DATA

1.1	SUBJECTS REFERRED TO:

Each reference in this Lease to any of the following subjects shall incorporate the data stated for that subject in this Section 1.1.


Landlord:		Burlington Office Park V Limited Partnership

Managing Agent:		The Xxxxxxxxx Company

Landlord’s and Managing Agent’s Address:		Burlington Xxxxxx Xxxx Xxx Xxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxxxxxxx 00000

Landlord’s Representatives:		Xxxxxx X. Xxxxxxxxx, Xx., President Xxxxxxx X. Xxxxxxxx, Vice President of Operations

Tenant:		Ascend Learning LLC, a Delaware corporation

Tenant’s Address (for Notice & Billing):		Prior to Lease occupancy: 00 Xxxx Xxxx Xxxxx Xxxxxxx, XX 00000 Attn: Xxxx Xxxxxxx, Treasurer and Controller Following occupancy: Five Xxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 Attention: Xxxx Xxxxxxx, Treasurer and Controller

Tenant’s Representative:		Xxxx Xxxxxxx, Treasurer and Controller

Building:		Five Wall Street, Burlington, Massachusetts

Floor(s):		Third and Fourth (3^rd and 4^th) Floors

Rentable Floor Area of Tenant’s Space:		55,166 Rentable Square Feet (RSF) located on the third and fourth floors of the Building, specifically consisting of



		approximately 36,511 RSF on the third (3rd) floor and approximately 18,655 RSF on the fourth (4^th) floor.

Total Rentable Floor Area of the Building:		181,680 Square Feet

Scheduled Term Commencement Date:		July 1, 2011

Outside Delivery Date:		Per Section 3.2

Term Expiration Date:		Ten (10) years following the Commencement Date determined in accordance ^-with Section 3.2, subject to extension in accordance with Exhibit “F” or subject to earlier termination in accordance with the applicable provisions of this Lease.

Fixed Rent (Exclusive of Tenant Electricity):		Initial eight and one-half (8.5) months: $0 Months 8.5-12 (commencing the 9.5 month anniversary of the Commencement Date) $1,351,567.00/Year; $112,630.58/Month $24.50/RSF Year 2: $1,379,150.00/Year; $114,929.17/ Month; $25.00/RSF Year 3: $1,406,733.00/Year; $117,227.75/ Month; $25.50/RSF Year 4: $1,599,814.00/Year; $133,317.83/ Month; $29.00/RSF Year 5: $1,627,397.00/Year; $135,616.42/ Month; $29.50/RSF Year 6: $1,654,980.00/Year; $137,915.00/ Month; $30.00/RSF Year 7: $1,682,563.00/Year; $140,213.58/ Month; $30.50/RSF Year 8: $1,710,146.00/Year; $142,512.17/ Month; $31.00/RSF



		Year 9: $1,737,729.00/Year; $144,810.75/ Month; $31.50/RSF Year 10: $1,765,312.00/Year; $147,109.33/ Month; $32.00/RSF

Base Operating Costs (for the Building):		Landlord’s Operating Costs (as defined in Section 4.2) for the Calendar Year ending December 31, 2011 (except that the real estate taxes component of Base Operating Costs shall be equal to the real estate taxes for fiscal tax year ending June 30, 2012).

Estimated Cost of Electrical Service to Tenant’s Space (Excluded from Fixed Rent):		$1.35/RSF - payable by Tenant pursuant to Exhibit “D”, Paragraph IX

First Fiscal Year for Tenant’s Paying Operating Costs Escalation:		Calendar Year Ending December 31, 2012

Security:		See Article 11

Guarantor:		Not Applicable

Permitted Uses:		General Office Use and other lawful uses that are ancillary and accessory thereto

Real Estate Broker(s):		Xxxxx & Xxxxx Company

Public Liability Insurance – Bodily Injury and Property Damage:		Each Occurrence: $1,000,000 Aggregate: $2,000,000

Special Provisions:		Rental Abatement — See Section 1.1 Option to Extend (per Exhibit “F”) Right of First Offer (Per Exhibit “I”) Right of First Refusal (per Exhibit “N”)

1.2

EXHIBITS

The Exhibits listed below in this Section are incorporated in this Lease by reference and are to be construed as part of this Lease:


EXHIBIT A		Plan Showing Tenant’s Space
EXHIBIT B		Plan Showing Location of Exterior Building Sign
EXHIBIT C		Plans and Specifications of Tenant’s Work
EXHIBIT D		Landlord’s Services
EXHIBIT E		Rules and Regulations
EXHIBIT F		Option to Extend
EXHIBIT G		Form of Notice of Lease
EXHIBIT H		Definition of Market Rent
EXHIBIT I		Right of First Offer
EXHIBIT J		Form of SNDA
EXHIBIT K		Form of Estoppel Certificate
EXHIBIT L		Form of Change Order
EXHIBIT M		Form of Letter of Credit
EXHIBIT N		Right of First Refusal

ARTICLE 2

PREMISES AND TERM

2.1

PREMISES

Subject to and with the benefit of the provisions of this Lease, Landlord hereby leases to Tenant and Tenant leases from Landlord, Tenant’s Space in the Building, excluding without limitation the floor slab, demising walls and perimeter walls and exterior windows (except the inner surfaces of each thereof), the common facilities area, common stairwells, shafts, ducts and conduits passing through the Premises and building systems and building service fixtures and equipment serving exclusively or in common other parts of the Building. Tenant’s Space with such exclusions, but with such appurtenances as hereinafter provided, is hereinafter collectively referred to as the “Premises”.

Tenant shall have, as appurtenant to the Premises, the right to use in common with others entitled thereto, subject to reasonable rules of general applicability to tenants of the Building from time to time made by Landlord of which Tenant is given notice: (a) the common areas and facilities included in the Building or on the parcel of land on which the Building is located (“the Lot”), including, without limitation, a fitness center, locker rooms and a cafe located within the Building, and the common areas and facilities included within Burlington Office Park I (the “Park”), and all means of access to and from the Building to the common areas and facilities, including without limitation the service, loading and parking areas allocable to the Building (i.e., Tenant shall be entitled to up to 3.2 per 1,000 RSF non-reserved parking spaces and five (5) “reserved” spaces located in the covered garage located on the Lot (in such location of the garage as agreed to by Landlord and Tenant), all without additional compensation from Tenant), all

sidewalks, roads, driveways and the like, to the extent all of the foregoing are from time to time designated by Landlord; and (b) the Building service fixtures and equipment and the common mechanical or electrical closets and shafts, ducts and conduits serving the Premises. Landlord represents and warrants that the parking ratio available for the Building is 3.8 parking spaces per 1,000 RSF and that in the event that any excess spaces above that ratio provided to other tenants of the Building as of the date of this Lease are no longer provided to such tenant, Tenant shall have the right to use such spaces, up to a total allocation of 3.8 spaces per 1,000 RSF.

Landlord reserves the right from time to time, without unreasonable interference with Tenant’s use (a) to install, repair, replace, use, maintain and relocate for service to the Premises and to other parts of the Building or either, building service fixtures and equipment wherever located in the Building, and (b) to alter or relocate any other common area or facility, provided that substitutions are substantially equivalent or better. Landlord’s exercise of the foregoing rights shall not materially increase Tenant’s obligations or diminish Tenant’s rights hereunder, or materially interfere with Tenant’s parking rights.

Subject to the provisions hereinafter provided, Tenant shall have the appurtenant right, at no additional charge, to place dedicated equipment, including without limitation, a dedicated emergency generator and any other associated equipment, wiring, shaft space, etc. required in connection therewith and to all Codes (as hereinafter defined) on the roof of the Building or adjacent to the loading dock as agreed to by the parties, at Tenant’s sole cost and expense. The cost of all of such equipment, including any generator and concrete pad associated equipment (as applicable), and installation thereof, shall be borne by Tenant. The size, the type of equipment and the precise location of the installation shall be pre-approved by Landlord, which such approval shall not be unreasonably withheld, conditioned or delayed by Landlord. All installations shall be in accordance with sound construction practices, and in accordance with all applicable Codes, and in a good and workmanlike manner, and shall not materially interfere with other tenants of the Building or Park or decrease the number of parking spaces on the Lot. The cost of any environmental review of the proposed equipment, if reasonably required, shall be at Tenant’s expense. Tenant shall be required to maintain the same at its sole cost in accordance with best industry standards, and Landlord’s agent shall, if reasonably practicable, accompany Tenant and/or any agent of Tenant when making necessary repairs to such equipment. Tenant agrees to maintain insurance on such equipment so installed by Tenant hereunder, including the generator (as applicable), and to name Landlord as an additional insured thereon. Evidence of such insurance shall be provided to Landlord on or prior to the Commencement Date (or installation thereof, if later).

Tenant shall indemnify, defend and hold Landlord harmless from and against any and all liability or loss arising (except as a result of the negligence or willful misconduct of Landlord, its agents, employees or contractors) from or out of the use or removal of such equipment so installed by Tenant hereunder, including the generator (as applicable) and any other associated equipment. Upon expiration of the Term, Tenant shall be responsible for the removal of the same and for repairing any damage caused therefrom. These provisions shall survive the expiration or earlier termination of this Lease.

Landlord shall at all times during the Term maintain a full-service cafeteria and fitness center (including showers) within the Building in a first class condition comparable to the existing cafeteria and fitness center (including showers) existing as of the Term Commencement Date, so long as Tenant is occupying the Premises.

2.2

TERM

To have and to hold for a period (the “Term”) commencing when the Premises are deemed Ready for Occupancy as provided in Section 3.2 (said date being hereafter referred to as the “Commencement Date”), and continuing until the Term Expiration Date, unless sooner terminated as provided in Section 3.2, Section 7.1, Article 9, or extended as provided in Exhibit “F”.

ARTICLE 3

CONSTRUCTION

3.1	INITIAL CONSTRUCTION

Landlord shall, at its sole cost and expense, cause certain leasehold improvements to be substantially completed in the Premises in accordance with the final approved plans and specifications prepared by Tenant’s architect and approved by Landlord as hereinafter provided, which preliminary plans and specifications are attached hereto as Exhibit “C” and made a part hereof (the “Tenant’s Work”; the Tenant’s Work shall be referred herein at times as the “Landlord’s Work”) prior to the Scheduled Term Commencement Date set forth In Section 1.1 hereof. All of the work shall be performed by Landlord’s general contractor, Xxxxxxxxx Construction Co., Inc. (“GCCI”) utilizing its standard building materials and finishes for the Building, which are consistent with industry standard for a Class A building and the consistent with the level of materials used in the spaces currently occupied by One Communications and Demandware, except as otherwise may be provided in Exhibit “C” and the approved Tenant Plans. In connection therewith, Landlord agrees to provide preliminary space planning at no additional cost to Tenant, as depicted in Exhibit “C”.

Tenant shall, at Tenant’s sole cost and expense, prepare and deliver to Landlord final architectural plans and associated specifications (excluding mechanical, electrical and plumbing) for the Tenant’s Work incorporating said preliminary plans and specifications attached hereto at Exhibit “C” (collectively, the “Tenant’s Plans”) for the planned improvements of the Premises by March I, 2011. Tenant shall provide a pre-purchase specification and plan for all long lead items, greater than an 8 week lead time by February 15, 2011. Such items may include specialty HVAC, specialty electrical, lighting, flooring and doors and hardware. Tenant shall permit Landlord to review and provide input during the preparation of Tenant’s Plans and shall provide Landlord with preliminary plans and specifications as they are made available to Tenant by its architect. Upon receipt, Landlord shall have ten (10) days to comment upon the Tenant’s Plans

and shall be deemed approved in the event that Landlord fails to respond within such ten (10) day period. Landlord and Tenant shall use good faith, diligent efforts to agree on the Tenant’s Plans in a timely manner.

In reaching such agreement, Landlord and Tenant shall each approve portions of Tenant’s Plans that are acceptable and shall note their respective objections to the portions that are unacceptable to each of them so as to enable Landlord to continue construction and order materials in a timely manner. Landlord will not approve Tenant’s Plans (or changes to Tenant’s Plans) which involve any non-standard office construction, alterations or additions requiring unusual expense to readapt the Premises to normal office use on the Term Expiration Date, unless Tenant first gives assurances acceptable to Landlord that such re-adaptation shall be made prior to such termination without expense to Landlord. All revisions and modifications to the Tenant’s Plans shall be made promptly by Tenant and revised sets of Tenant’s Plans shall be forthwith furnished to Landlord upon Tenant’s receipt thereof, Landlord hereby agreeing to inform Tenant during the plan approval process and, in any event, prior to the installation thereof, of any such items that may require unusual expense to readapt the Premises as aforesaid. All revisions and modifications to the Tenant’s Plans shall be made promptly by Tenant and revised sets of Tenant’s Plans shall be forthwith furnished to Landlord upon Tenant’s receipt thereof. Landlord and Tenant hereby further agree to acknowledge in writing when final approval by Landlord and Tenant of Tenant’s Plans has occurred. No changes or modifications to Tenant’s Plans being constructed by Landlord pursuant thereto shall be made without Tenant’s and Landlord’s prior consent, such consent not to be unreasonably withheld or delayed by Tenant or Landlord, as applicable.

Landlord shall cause the Premises to be completed in accordance with Tenant’s Plans. After final approval of Tenant’s Plans by Landlord and Tenant, the Tenant may request changes to Tenant’s Work by altering, adding to, or deducting from Tenant’s Work as set forth in the agreed form of Tenant’s Plans (each such requested change shall be submitted pursuant to the form of Change Order attached hereto as Exhibit “L” and shall be referred to herein as a “Change Order”). A Change Order requested by Tenant in Tenant’s Work may also necessitate an adjustment in the Scheduled Term Commencement Date and may result in Tenant Delay Days (as hereinafter defined), in accordance with and subject to the terms and conditions set forth below. Landlord shall notify Tenant in writing of the cost of the Change Order (and effect on the Cost of Tenant’s Work) and if such requested Change Order shall result in Tenant Alteration Delay Days, and therefore an adjustment in the Scheduled Term Commencement Date. Tenant shall have three (3) business days to accept such Change Order (and the resulting cost and timing changes as set forth in Landlord’s notice) or to withdraw the requested Change Order. Failure by Tenant to respond within such three (3) business days shall be deemed a rejection of the Change Order. In addition, Landlord agrees to provide Tenant, upon Tenant’s request, with sufficient itemization and back-up documentation to facilitate analysis and to confirm the cost of any such changes in the Tenant’s Work initiated by Tenant. Tenant shall pay to Landlord fifty percent (50%) of the actual Cost of Change Order(s), less credits for any Tenant’s Work deleted, but including a contractor’s fee of five percent (5%) and overhead of five percent (5%) of the aggregate costs, within fourteen (14) business days of receipt of Landlord’s invoice therefor, with any remaining amount to be delivered to Landlord within thirty (30) days after receipt of a

final accounting from Landlord following delivery of the Premises and completion of the Punch List Items.

In the event that Tenant approves a Change Order which would, due to materials or equipment having long delivery times or due to resulting sequencing delays, and notwithstanding Landlord’s diligent efforts, result in a delay in the Scheduled Term Commencement Date, then a Tenant Delay shall be deemed to have occurred for the number of days equal to the actual number of days (the “Tenant Alteration Delay Days”) as certified by Landlord and its architect, and agreed to by Tenant and Tenant’s architect, by which the Scheduled Term Commencement Date would be delayed by such alterations or additions, giving due consideration to Landlord’s obligation to use diligent efforts to accelerate construction to make up for lost time due to delays. Landlord agrees to provide Tenant with written notice of such determination at the time it submits the Change Order to Tenant for approval, such notice to include reasonable detail describing the cause of the delay and the number of Tenant Alteration Delay Days as certified by Landlord and its architect. Should Tenant disagree with the calculation of Tenant Alteration Delay Days as hereinabove determined, then such disagreement shall be resolved pursuant to the provisions of Section 3.5 hereof.

All Tenant improvements, changes and additions comprising the Tenant’s Work shall be part of the Premises and shall remain therein at the end of the Term, and Tenant shall have no obligation to restore the Tenant’s Work Premises at the end of the Term or earlier expiration thereof, except for Tenant’s business fixtures, equipment and personal property, all of which fixtures, equipment, furniture and personal property shall remain the property of the Tenant and shall be removed at the expiration of the Term; and such other items shall be removed or left as the Landlord and Tenant agree in writing at the time of Landlord’s approval of the Tenant’s Plans as hereinafter provided. Tenant agrees to repair, at its sole cost and expense, any damage to the Premises caused by any such removal by Tenant in accordance with this paragraph and Section 6.1.2 hereof, subject to Section 10.13.

Tenant (including its contractors, agents or employees) shall have access to the Premises, from time to time prior to the Scheduled Term Commencement Date, so as to prepare the Premises for occupancy by Tenant (including for telephone/data, security and furniture installations), provided that (i) Tenant’s contractors, agents or employees work in a harmonious labor relationship with Landlord’s general contractor; (ii) reasonable prior notice is given to Landlord specifying the work to be done, and (iii) no work, as reasonably determined by Landlord, shall be done or fixtures or equipment installed by Tenant in such manner as to materially interfere with the completion of the work being done by or for Landlord in the Premises or the Building. During any such early access period, no Fixed Rent or additional rent or other charges shall accrue or be payable, but otherwise the performance of any such work by Tenant shall be subject to all the terms, covenants and conditions contained in this Lease.

In connection with the initial construction and delivery of the Premises to Tenant, Landlord agrees to provide Tenant with an allowance of up to $6.00/RSF to be used for Tenant’s furniture, fixtures and equipment. Such allowance shall be paid by Landlord to Tenant (or its vendor or contractor, as applicable) within fourteen (14) days of Landlord’s receipt of an invoice therefor, which such invoice shall contain such reasonable documentation as may reasonably be

requested by Landlord. In addition, Exhibit C designates certain “Tenant Change Items” which Tenant shall have the right, exercisable by a written notice to Landlord given prior to February 15, 2011, to accept or reject. In the event that any such items are accepted by Tenant, then Tenant shall reimburse Landlord said costs allocable to such accepted item (as described on said Exhibit C) within fourteen (14) business days of receipt of Landlord’s invoice therefor.

At Tenant’s election, exercisable by giving Landlord written notice on or before December 31, 2011, Landlord shall provide an additional allowance of up to $5.00/RSF to be used for tenant improvements, tel/data, security, furniture, fixtures or equipment, which such allowance-shall be amortized over the Term at an annual rate of seven percent (7%) per annum, In the event that Tenant elects to receive such additional allowance, then Landlord and Tenant shall enter into a mutually agreeable amendment to this Lease modifying the Fixed Rent set forth in Section 1.1 hereof.

3.2	PREPARATION OF PREMISES FOR OCCUPANCY

Landlord agrees to have the Premises Ready for Occupancy (as hereinafter defined) on or before the Scheduled Term Commencement Date which such date shall, however, be extended for a period equal to that of any delays due to governmental regulations (excluding typical periods for obtaining permits and approvals for the Landlord’s Work), unusual scarcity of or inability to obtain labor or materials, labor difficulties not specifically related to Landlord or GCCI), casualty or other causes reasonably beyond Landlord’s control (each, a “Force Majeure Delay”), or any Tenant Delay (as hereinafter defined), provided that such extension shall only be available to the extent that Landlord promptly notifies Tenant of the occurrence of any Force Majeure Delay or Tenant Delay. For purposes of this Lease, a “Tenant Delay” shall mean any one of the following: (i) Tenant Alteration Delay Days; (ii) Tenant’s failure to supply information as reasonably requested by Landlord within the time periods specified herein (or if no time period is specified, within five (5) business days of request) in order to complete construction in a timely manner, (iii) Tenant’s failure to deliver the Tenant’s Plans (or modifications or said long lead item information) within the time periods specified herein, or (iv) a written request of Tenant to stop work. The Premises shall be deemed ready for occupancy (“Ready for Occupancy”) on the date on which all of the following have occurred: (x) the Landlord’s Work is completed in compliance with the approved Tenant Plans therefor, as certified in good faith by Landlord’s architect, except for punch list items relating to Tenant’s Work which do not exceed five percent of the total costs of Landlord’s Work and do not interfere with Tenant’s use of the Premises for its operation (“Punch List Items”), and Landlord has obtained a Certificate of Occupancy (which, if temporary, shall be only subject to agreed upon Punch List Items and any items of work for which Tenant is responsible hereunder) for the Premises and has provided Tenant with a copy thereof; provided, however, that if Landlord is unable to complete construction (other than Punch List Items) by the Scheduled Term Commencement Date solely due to any Tenant Delay, then notwithstanding any language to the contrary set forth herein and solely for purposes of determining the Commencement Date (and subsequent time periods, and/or actions that are triggered by the occurrence of the Commencement Date, as applicable), the Premises shall be deemed “Ready for Occupancy” on

the date the Premises would have been completed (other than Punch List Items), but for a Tenant Delay, subject to Tenant’s right to dispute the same as hereinafter provided, and it being agreed that such deemed occurrence shall not relieve Landlord from the obligation to diligently pursue the Landlord’s Work to completion; and (y) all approvals and permits from the appropriate governmental authorities required for the legal occupancy of the Premises have been obtained. Landlord shall complete all Punch List Items within thirty (30) days of the date the Premises are Ready for Occupancy.

If the Premises are not deemed Ready for Occupancy on or before the Outside Delivery Date (as defined below) for whatever reason, Tenant may (i) cancel this Lease at any time thereafter while the Premises are not deemed Ready for Occupancy by giving notice to Landlord of such cancellation which shall be effective ten (10) days after such notice, unless within such ten (10) day period Landlord delivers the Premises Ready for Occupancy as defined herein, in which event such notice of cancellation shall be rendered null and void and of no further force or effect, or (ii) to enforce Landlord’s covenants to construct the Premises in accordance with the terms of this Lease, In the event Tenant elects to enforce Landlord’s agreement to construct the Premises in accordance with this Lease, Tenant shall also have the right to terminate this Lease if Landlord fails to complete the Premises within the period of time set by any court of competent jurisdiction for such work to be completed, or within such additional period of time from the date of Landlord’s default as may be mutually agreed to by Landlord and Tenant. In addition, if the Premises are not deemed Ready for Occupancy on or before the later of August 1, 2011 or 30 days following Scheduled Term Commencement for whatever reason other than a Force Majeure Delay or Tenant Delay (the “Rent Credit Deadline”), then Tenant shall receive a credit of one day of Fixed Rent for each day after the Rent Credit Deadline until the Premises are Ready for Occupancy, but if such period exceeds thirty (30) days, then such credit shall increase to two days of Fixed Rent for each day thereafter until the Premises are Ready for Occupancy, such credits to be applied when the Fixed Rent commences hereunder. The foregoing rights shall be the Tenant’s sole remedy at law or in equity for Landlord’s failure to have the Premises ready for occupancy as required hereunder.

For purposes hereof, the Outside Delivery Date shall be deemed to refer to that certain date which is ninety (90) days following the Scheduled Term Commencement Date

Landlord and Tenant agree to resolve any disputes under this Article 3 pursuant to the provisions of Article 3.5 hereof, unless the parties agree otherwise.

3.3	GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION

All construction work required or permitted by this Lease, whether by Landlord or by Tenant, shall be done in a good and workmanlike manner and In compliance with all applicable laws and all lawful ordinances, regulations and orders of governmental authorities (hereafter collectively referred to as the “Codes”), and the requirements of all insurers of the Building. Further, Landlord agrees to ensure that, as of the Commencement Date, all base building systems (i.e., HVAC, plumbing, electrical, elevators, etc.) shall be in good order and repair. Either party may inspect the work of the other at reasonable times and shall promptly give written notice of

observed defects, provided that any inspection or right to inspect is solely for the benefit of the party having such right, and shall not constitute a representation or warranty to the other party or create any liability with respect to the party performing the inspection or having such right. Landlord’s obligations under Section 3.1 shall be deemed to have been performed when the Premises are deemed Ready for Occupancy except for Punch List Items.

3.4	REPRESENTATIVES

Each party authorizes the other to rely in connection with their respective rights and obligations under this Article 3 upon approval and other actions on the party’s behalf by Landlord’s Representative(s) in the case of Landlord or Tenant’s Representative in the case of Tenant or by any person designated in substitution or addition by notice to the party relying.

3.5	ARBITRATION BY ARCHITECTS

Whenever there is a disagreement between the parties with respect to construction by Landlord of Tenant’s Work, such disagreement shall be definitively determined by the following procedure: Each of Landlord and Tenant shall appoint one (1) architect, such two (2) architects will then (within five (5) business days of their appointment) appoint a third architect licensed in the Commonwealth of Massachusetts with not less than ten (10) years experience. Each architect shall establish within ten (10) days of their appointment the matter in dispute. In case of any dispute with respect to dollar amounts or lengths of time or dates such as the date of Substantial Completion, the dollar amount or length of time or date shall be the average of the two (2) closest determinations by the three (3) architects, with the determination of the architect which was not closest to another architects’ determination excluded from such calculation. In case of any dispute not involving dollar amounts or lengths of time or dates (i.e. the approval of plans) the determination by at least two (2) of the three (3) architects shall be required in order to resolve the matter in dispute. Landlord and Tenant shall each bear the cost of the architect selected by them respectively and shall share equally the cost of the third architect. During such arbitration period, the parties agree to cooperate with one another so as to proceed with construction and with their respective obligations hereunder in a timely manner. Each determination under this Section 3.5 shall be binding upon Landlord and Tenant.

3.6	WARRANTY OF TENANT’S WORK

Notwithstanding anything to the contrary contained in this Lease, Landlord hereby warrants and guarantees that the Tenant’s Work shall be free from defects in workmanship and materials for a period of one (1) year after the Commencement Date (or such longer period as such work or materials may be under warranty). Upon expiration of said one (1) year period, Landlord shall assign to Tenant any and all warranties and guarantees with respect to Tenant’s Work and, to the extent that any such warranties and guarantees are not assignable, Landlord agrees to enforce the same for the benefit of Tenant, at Tenant’s sole cost and expense. Tenant shall not be responsible to pay for any such warranties of less than one (1) year duration or

enforcement by Landlord against its own employees or against Xxxxxxxxx Construction Co., Inc., or against any of its other affiliates (including their respective employees). Landlord agrees to repair, at its sole cost and expense, any latent defects in Landlord’s Work promptly after receipt of notice therefrom from Tenant, provided that such notice from Tenant is received by Landlord within the aforesaid one (1) year period. In connection therewith, Tenant shall notify Landlord promptly after it becomes aware of any such latent defects. Any repairs or replacements or alterations to Tenant’s Work (Including repairs due to late defects) after said initial one (1) year period shall be chargeable to Tenant in accordance with and subject to the provisions of Section 4.2 hereof.

ARTICLE 4

RENT

4.1

RENT

Tenant agrees to pay, without any offset or reduction whatever (except as expressly set forth herein), Fixed Rent equal to 1/12th of the annual Fixed Rent (i.e. the Monthly rent) set forth in Section 1.1 hereof in equal installments in advance on the first day of each calendar month included in the Term; and for any portion of a calendar month at the beginning or end of the Term, at the rate payable for such portion in advance prorated based on the number of days of the Term falling within such calendar month. The term “Rent” shall at all times be used herein to mean Fixed Rent plus additional rent or other sums of money payable under this Lease (including, without limitation, Section 4.2 hereof and electricity pursuant to Exhibit “D”, Paragraph IX of Exhibit “D”).

4.2	OPERATING COST ESCALATION

With respect to the First Fiscal Year for Tenant’s Paying Operating Cost Escalation, or fraction thereof, and any Fiscal Year or fraction thereafter, Tenant shall pay to Landlord, as additional rent, Tenant’s share of the Operating Cost Escalation (as defined below), if any, on or before the thirtieth (30^th) day following receipt by Tenant of Landlord’s Statement (as defined below). Within ninety (90) days after the end of each Fiscal Year ending during the Term and after Lease termination, Landlord shall render a statement (“Landlord’s Statement”) in reasonable detail and according to usual accounting practices certified by Landlord and showing for the preceding Fiscal Year or fraction thereof, as the case may be, Landlord’s Operating Costs (as defined herein). Landlord Operating Costs shall mean the commercially reasonable costs incurred by Landlord in operating, cleaning, maintaining, managing, and repairing the Building and the Lot,

EXCLUDING the principal, interest and amortization on mortgages for the Building, and Lot or leasehold interests therein, depreciation; improvements made to the Building, the Lot or the Park that do not lower operating costs; and the cost of special services rendered to tenants (including Tenant) for which a special charge is made;

BUT INCLUDING, without limitation: real estate taxes on the Building and Lot; installments on assessments for public betterments or public improvements but only to the extent of the installment required to be paid in such Fiscal Year, Landlord hereby agreeing to pay such amounts over the longest period available under applicable law, reasonable expenses of any proceedings for abatement of taxes and assessments with respect to any Fiscal Year or fraction of a Fiscal Year; reasonable premiums for insurance; reasonable compensation and all reasonable fringe benefits for full- time employees at the Building, workmen’s compensation, insurance premiums and payroll taxes paid by Landlord to/for or with respect to all persons engaged in the operating, maintaining, managing or cleaning of the Building and Lot, water, sewer, gas, telephone and the electricity to operate the base building heating, ventilating, air conditioning systems, elevators and parking lot lighting, and other utility charges not billed directly to tenants by Landlord or the utility companies (the cost for the electricity consumed by the tenant for interior lighting, plugs, equipment, supplemental air conditioning and fixtures in shall be billed monthly to Tenant by Landlord as set forth in Paragraph IX of Exhibit “D”); measurable and market costs of building and cleaning supplies and equipment (including rental); reasonable cost of maintenance, cleaning and repairs, including without limitation the services provided in Exhibit “D” hereof; cost of snow plowing or removal, or both, and care of landscaping; payments to independent contractors under service contracts for cleaning, operating, managing, maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord provided the same are at reasonable rates consistent with the type of occupancy and the services rendered); the Building’s pro rata share (i.e. approximately 39.45% as hereinafter provided) of the Park-related costs (as defined below, including, but not limited to, snow plowing, sanding, sand removal, lot sweeping, landscaping, and common area and street lighting); and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance, management, and repair of the Building (including the cafeteria and fitness center located therein) and Lot, or either, and properly chargeable against income. If Landlord (i) installs a new or replacement capital item for the purposes of (i) reducing Landlord’s Operating Costs, or (ii) is required to perform capital repairs or replacements or to install capital items in order to comply with changes in applicable law from and after the Commencement Date, the costs thereof as reasonably amortized by Landlord over their useful life in accordance with generally accepted accounting principles, with legal interest (not to exceed the then “Prime Rate” published in the Wall Street Journal plus two percent (2%) per annum) on the unamortized amount, shall be included in “Landlord’s Operating Costs”, but with respect to subsection (i) in no event may the amount included herein with respect to a Fiscal Year exceed the reasonably projected annual reduction in Operating Costs. In such event, Tenant shall pay Tenant’s share of such amortization payment for each month after such improvement is completed until the first to occur of the expiration of the Term or the end of the term over which such costs are required to be amortized. Landlord agrees that all of such services to be included in Landlord’s Operating Costs shall be obtained by Landlord at commercially reasonable, competitive market rates consistent with the operation and management of comparable Class A office buildings in the suburban Boston area.

Notwithstanding the foregoing, in no event shall “controllable operating expenses” included within Landlord’s Operating Costs increase by more than five percent (5%) per Lease Year, on a cumulative basis. For purposes hereof, the term “controllable operating expenses” shall mean those Operating Costs within Landlord’s control, exercising prudent business

practices, but shall exclude the following: (i) insurance premiums; (ii) costs incurred because of changes in applicable laws, rules, regulations, ordinances, requirements, and codes (“Applicable Laws”) after the Commencement Date; (iii) wages and benefits mandated by Applicable Laws or by union contracts; (iv) snow-plowing and expenses incurred as a result of acts of God; (v) the cost of utilities and real estate taxes; and (vi) pest control.

Notwithstanding anything to the contrary contained herein, in no event shall Landlord’s Operating Costs include (nor shall Tenant have any obligation to pay any Operating Cost Escalation on account of) the following:

(a)

Costs, expenses and fees relating to solicitation of, advertising for and entering into leases and other occupancy arrangements for space in the Park, including but not limited to legal fees, space planners’ fees, real estate brokers’ leasing commissions and advertising and marketing expenses.

(b)

Costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Park (or any part thereof), costs of any disputes between Landlord and its employees, disputes of Landlord with building management, or outside fees paid in connection with disputes with other tenants, invitees or adjacent property owners.

(c)

Costs of correcting defects in the Building or the Building equipment or replacing defective equipment solely to the extent such costs relate to items covered by warranties of manufacturers, suppliers or contractors or are otherwise borne by parties other than Landlord and for which Landlord receives reimbursement,

(d)

Costs of installations paid by or constructed for specific tenants or other occupants.

(e)

Interest, points, other finance charges and principal payments on mortgages, and other costs of indebtedness, if any.

(f)

All amounts which are specifically charged to or otherwise paid by any other tenant or other occupant of the Building or the Park, or for items or services which Landlord provides selectively to one or more tenants (other than Tenant) without reimbursement.

(g)

Any bad debt loss, rent loss or reserves for bad debts or rent loss or other future expenses.

(h)

The salary and indirect compensation (including, without limitation, all fringe benefits, workmen’s compensation, insurance premiums and payroll taxes) of any employee above the trade of property manager, and the wages and indirect compensation of any employee to the extent such employee devotes his or her time to property other than the Building.

(i)

Amounts, if any, paid as ground rental by Landlord.

(j)

Expenses related to third-party landlord-tenant disputes.

(k)

Any cost of any service or items sold or provided to tenants of the Building or Park or other occupants for such service or has been or is entitled to be reimbursed by insurance or otherwise compensated by parties (e.g. easement holders) other than tenants of the Building and for which Landlord receives reimbursement.

(l)

The costs of repair, replacement, or restoration work occasioned by any casualty or condemnation above the deductible amount on the insurance policy.

(m)

Any depreciation allowance or expense, expense reserve and other non-cash items.

(n)

Interest or penalties due to the late payment of taxes, utility bills or other such costs, unless caused by Tenant, in which event Tenant shall be responsible for same.

(o)

Any amount payable by Landlord by way of indemnity or for damages or which constitute a fine or penalty, including interest or penalties for late payment, unless caused by Tenant, in which event Tenant shall be responsible for same.

(p)

Costs incurred to maintain the structural integrity of the Building, except if caused by the Tenant as set forth in Section 5.1.3 hereof.

(q)

Costs incurred in connection with the making of repairs or replacements which are the obligation of another tenant or occupant of the Building;

(r)

Federal and state income taxes, excess profits taxes, franchise taxes, gift taxes, capital stock tax, inheritance and succession taxes, profit, use, occupancy, gross receipts, rental, capital gains, capital stocks income and transfer taxes imposed upon Landlord or the Park, estate taxes and any other taxes to the extent applicable to Landlord’s general or net income;

(s)

costs of any utility or other service used or consumed in the premises leased or leasable to any tenant or occupant, if Tenant’s use or consumption of such utility or other services is separately metered or sub-metered at the Premises;

(t)

costs of any additions to or expansions of the Park or the Building;

(u)

expenditures for capital improvements or replacement except as expressly permitted above;

(v)

special assessments levied against the Park for any public improvements required to be undertaken by a governmental authority which would normally have been constructed by Landlord as part of the initial construction of the Park;

(w)

the cost to make improvements, alterations and additions to the Building or the Lot which are required in order to render the same in compliance with laws, rules, orders regulations and/or directives existing as of the date of this Lease;

(x)

the cost of environmental monitoring, compliance, testing and remediation performed in, on, about and around the Building or the Lot to the extent that such costs are caused by the negligent actions of Landlord or its employees or contractors;

(y)

any costs or expense related to vacant space;

(z)

amounts paid to subsidiaries or affiliates of Landlord for services rendered to the Property to the extent such amounts exceed the competitive costs for delivery of such services were they not provided by such related parties;

(aa)

management fees in excess of five percent (5%) of gross rents;

(bb)

any cost arising from Landlord’s charitable or political contributions; and

(cc)

any other expenses which, in accordance with generally accepted accounting principles, consistently applied, would not customarily be treated as Operating Costs by lessors of comparable buildings.

In the event that the average occupancy rate for the Building is less than ninety-five (95%) percent for any Fiscal Year (including Fiscal Year 2011), then for purposes of calculating Operating Costs, the Operating Costs for such Fiscal Year shall be increased by the additional costs and expenses that Landlord reasonably and in good faith estimates would have been incurred if the average occupancy rate had been ninety-five (95%) percent for such Fiscal Year. It is not the intent of this provision to permit Landlord to charge Tenant for any Operating Costs attributable to unoccupied space, or to seek reimbursement from Tenant for costs Landlord never incurred. Rather, the intent of this provision is to allow Landlord to recover only those increases in Operating Costs properly attributable to occupied space in the Building and this provision is designed to calculate the actual cost of providing a variable operating expense service to the portions of the Building receiving such service. This “gross-up” treatment shall be applied only with respect to Operating Costs which vary based on level of occupancy. In case of services which are not rendered to all areas of the Building on a comparable basis, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant’s Space bears to the total rentable floor area to which such service is so rendered (such latter to be determined in the same manner as the Total Rentable Floor Area of the Building), or shall be re-allocated by Landlord on a reasonable basis taking into consideration such factors as usage of a particular tenant in the Park and/or such other pertinent factors as reasonably determined by Landlord. Tenant shall be responsible to pay its share of the Operating Cost Escalation based

upon the proportion that the Rentable Floor Area of Tenant’s Space bears to the Total Rentable Floor Area of the Building (i.e. 26.85%), but any elements of Operating Costs which relate to elements of the Park other than the Building and the Lot (“Park-related costs”), shall be allocated by Landlord in a commercially reasonable manner based upon the following: upon the ratio of the square footage of the Premises to the aggregate square footage of all completed buildings in the Park (e.g. 460,588 RSF), as such buildings are completed from time to time (i.e. the Building’s current share of Park-related costs is approximately 39.45%). In no event shall Park-related costs include costs which do not relate to a service or amenity which has a benefit to the Building or which relate exclusively to another Building or Lot in the Park. As of this date, the Park consists of approximately 460,588 RSF, specifically consisting of the following:


One Wall Street:		192,000 RSF
Two and Ten Wall Street (Retail):		34,908 RSF
Twenty Wall Street:		52,000 RSF
Five Wall Street:		181,680 RSF

Total:		460,588 RSF

“Operating Cost Escalation” shall be equal to the difference for each Fiscal Year, if any, between:

(a)

the product of Landlord’s Operating Costs per rentable square foot as indicated in Landlord’s Statement times the Rentable Floor Area of Tenant’s Space; and

(b)

the product of the Base Operating Costs per rentable square foot times the Rentable Floor Area of Tenant’s Space.

If, with respect to any Fiscal Year or fraction thereof during the Term, Tenant is obligated to pay Operating Cost Escalation, then Tenant shall pay, as additional rent, on the first day of each month of each ensuing Fiscal Year thereafter, until Landlord’s Statement for an ensuing Fiscal Year reflects that Tenant is not obligated to pay Operating Cost Escalation, “Estimated Monthly Escalation Payments” equal to 1/12th of the annualized Operating Cost Escalation for the immediately preceding Fiscal Year. Estimated Monthly Escalation Payments for each ensuing Fiscal Year shall be made retroactively from the first day of such Fiscal Year and on account of the payment to be made pursuant to the first sentence of this Section 4.2 for such Fiscal Year, with an appropriate additional payment or refund to be made at the time such payment is due for the previous year.

The term “Fiscal Year” as used in this Article shall mean the period of twelve (12) consecutive months commencing on January 1^st and ending on December 31^st.

The term “real estate taxes”, as used above shall mean all taxes of every kind and nature assessed by any governmental authority on the Lot, the Building and improvements, or both, and in the common areas of the Park, which the Landlord shall pay during a Fiscal Year because of or in connection with the ownership, leasing and operation of the Lot, the Building and

improvements, or both, and the Park, subject to the following: there shall be excluded for such taxes all income taxes, excess profits taxes, excise taxes, franchise taxes, gift, estate, succession, inheritance and transfer taxes, 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 in lieu of the whole or any part of the ad valorem tax on real property, there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Lot, Building and improvements, or both, a federal, state, county, municipal, or other local income, franchise, excise or similar tax, assessment, levy or charge (distinct from any now in effect) measured by or based, in whole or in part, upon any such gross rents, then any and all of such taxes, assessments, levies or charges, to the extent so measured or based, shall be deemed to be included within the term “real estate taxes”.

If the total of the monthly payments paid by Tenant with respect to any Fiscal Year exceeds the actual Operating Cost Escalation for such Fiscal Year, then, such excess shall be refunded by Landlord to Tenant no later than thirty (30) days after the end of the Fiscal Year in question.

Tenant shall have the right, but not the obligation, to contest (or request that Landlord so contest on behalf of all tenants of the Building) in good faith by appropriate proceedings diligently pursued the imposition or amount of any real estate taxes assessed against the Lot or the Building or such personal property taxes payable by it hereunder, including the right on behalf of, and in the name of the Landlord, to seek abatements thereto. The Landlord shall reasonably cooperate with Tenant, at Tenant’s sole, expense, in any such contest or abatement proceedings. In the event that Tenant determines not to contest such taxes and Landlord desires to file such contest (or Tenant requests that Landlord file such contest), Landlord shall give written notice of that fact to all affected tenants, including Tenant, and shall have the sole right as to such tax xxxx to contest in good faith by appropriate proceedings diligently pursued the imposition or amount of any real estate taxes assessed against the Lot or the Building or such other taxes payable by Tenant hereunder, including the right to seek abatements thereto. In such event, the Tenant shall reasonably cooperate with Landlord, at no cost to Tenant, in any such contest or abatement proceedings. Landlord shall also reasonably cooperate and assist Tenant, at no cost to Landlord, in procuring any applicable tax credits or incentives.

If Landlord shall receive on behalf of the Lot or the Building a rebate or abatement on any tax with respect to which a payment is made by Tenant, then after deducting therefrom any reasonable costs incurred by Landlord in obtaining such rebate or abatement (unless previously included in Operating Costs for such year), all of such net rebate or abatement relating to the Lot or the Building shall be returned to Tenant to the extent that such rebate or abatement relates to payment made by the Tenant and not reimbursed by Landlord. If Tenant shall receive on behalf of the Lot or the Building a rebate or abatement on any tax with respect to which a payment is made by Tenant, then after deducting therefrom any costs reasonably incurred by Tenant in obtaining such rebate or abatement, all of such net rebate or abatement related to the Lot, the Building or to personal property taxes assessed against the Tenant’s property shall be retained by Tenant, as its sole property, to the extent such rebate or abatement relates to a payment made by Tenant and not reimbursed by Landlord. The remaining portion of such net rebate or abatement shall promptly be returned to Landlord.

In the event that Landlord receives a refund on account of real estate taxes after the expiration of the Term, which refund relates to a Fiscal Year during the Term the amount of such refund fairly allocable to Tenant shall be refunded to Tenant by Landlord within thirty (30) days of its receipt of such refund. All references to real estate taxes “for” a particular Fiscal Year shall be deemed to refer to real estate taxes due and payable during such Fiscal Year without regard to when such impositions are assessed or levied.

All records pertaining to Landlord’s Operating Costs hereunder shall be maintained by the Landlord for a period of three (3) years following the expiration of the Fiscal Year to which such records relate. Tenant shall have the right, through its representatives, to examine, copy and audit such records at reasonable times, but no more than once per Fiscal Year, upon not less than thirty (30) days prior written notice to Landlord given within one hundred and eighty (180) days of receipt of Landlord’s Statement, otherwise Tenant’s right to dispute such charges shall be waived. Such records shall be maintained at Landlord’s Address set forth in Section 1.1, or such other place within the Commonwealth of Massachusetts as Landlord shall designate from time to time for the keeping of such records. The costs of such audits shall be borne by Tenant; provided, however, that if such audit establishes that the actual Operating Cost Escalation for the Fiscal Year in question is less than the Landlord’s final determination of the Operating Cost Escalation as set forth in the Landlord’s Statement submitted to Tenant by at least five percent (5%) (and so long as the discrepancy amount exceeds $5,000.00), then Landlord shall pay the reasonable cost of such audit (not to exceed $5,000.00). If, as a result of such audit, it is determined that Tenant must, pay additional amounts to Landlord on account of the Operating Cost Escalation, or that Tenant has overpaid Landlord on account of the Operating Cost Escalation, then the undercharged or overpaid party shall reimburse the other party for the payment due within thirty (30) days of the final determination.

Notwithstanding anything contained in this Lease to the contrary, the responsibility for the payment of all real estate taxes with respect to the Building and the Park shall be upon the Landlord and the Landlord agrees to pay the same as required by law. Landlord shall provide Tenant with copies of all tax bills and a computation of Tenant’s pro rata share thereof, as aforesaid. In the event that any special assessments are assessed and payable, Tenant’s pro rata share of the same shall be calculated as if such assessments were being paid by Landlord over the longest period of time permitted by applicable law.

Landlord shall have the right from time to time to change the periods of accounting under this Section 4.2 to any annual period other than the Fiscal Year and upon any such change all items referred to in this Section shall be appropriately apportioned and no such change may result in Tenant paying any more hereunder that would have been due from Tenant in the absence of such change. In all Landlord’s Statements, rendered under this Section, amounts for periods partially within and partially without the accounting periods shall be appropriately apportioned, and any items which are not determinable at the time of a Landlord’s Statement shall be included therein on the basis of Landlord’s best good faith estimate, and with respect thereto Landlord shall render promptly after determination a supplemental Landlord Statement, and appropriate adjustment shall be made according thereto. All Landlord’s Statements shall be prepared on an accrual basis of accounting.

Notwithstanding any other provision of this Section 4.2, if the Term expires or is terminated as of a date other than the last day of a Fiscal Year at the end of the Term, Tenant’s last payment to Landlord under this Section 4.2 shall be made on the basis of Landlord’s best good faith estimate of the items otherwise includable in Landlord’s Statement and shall be made on or before the later of (a) twenty (20) business days after Landlord delivers such estimate to Tenant, or (b) the last day of the Term, with an appropriate payment or refund to be made upon submission of Landlord’s Statement. Without limitation, the obligation of Tenant to pay the Operating Cost Escalation with respect to any Fiscal Year during the Term (or portion thereof) or the Landlord’s obligation to make a refund therefore, as applicable, shall survive the expiration or earlier termination of the Term for a period of one year.

4.3

PAYMENTS

All payments of Fixed Rent and additional rent shall be made to Managing Agent, or to such other person as Landlord may from time to time designate by written notice to Tenant. If any installment of rent, fixed or additional, or on account of leasehold improvements is paid after the due date thereof, at Landlord’s election, it shall bear interest at the rate equal to twelve percent (12%) per annum from such due date, which interest shall be immediately due and payable as further additional rent; provided, however, Landlord hereby acknowledges and agrees that Tenant shall have two (2) grace periods of an additional five (5) business days per each calendar year of the Term before which such interest shall be charged by Landlord.

ARTICLE 5

LANDLORD’S COVENANTS

5.1	LANDLORD’S COVENANTS DURING THE TERM

Landlord covenants during the Term:

5.1.1 Building Services - To furnish, through Landlord’s employees or independent contractors, the services listed in Exhibit “D” (which are common services provided to all tenants of the Building);

5.1.2 Additional Building Services - To furnish, through Landlord’s employees or independent contractors, reasonable additional Building operation services upon reasonable advance request of Tenant at reasonable and competitive rates from time to time established by Landlord to be paid by Tenant;

5.1.3 Repairs - Except as otherwise provided in Article 7, except as resulting from settling or sagging within standard engineering tolerance (provided that the settling or sagging does not affect the surface or structural integrity of the Building or in any way materially affect the ordinary and customary use of the Premises, or any part thereof by Tenant), Landlord shall maintain the structural integrity of the Building, including, without limitation, the roof and roofing system, foundation, loading bearing and exterior walls, including windows. Landlord

shall also be responsible for (i) all exterior maintenance, repairs and replacements necessary to keep in good condition and working order all common areas of the Park, and the trees, shrubs, plants, landscaping, parking areas, driveways and walkways on the Lot or elsewhere in the Park, including but not limited to, all lighting and other fixtures and equipment serving such parking areas, driveways and walkways, (ii) providing the services and performing the maintenance work set forth in Section 4.2 and Article 7 hereof, and (iii) performing necessary repairs and replacements to maintain the watertight integrity of the Building, including but not limited to the roof, exterior wall, windows and skylights. Landlord shall also maintain, repair and replace the HVAC, life/safety, plumbing, electrical and mechanical equipment in the Building, such that it shall be in good operating condition throughout the Term, reasonable wear and tear excepted. Landlord shall make all of such repairs and replacements necessary to maintain the foregoing in good working order comparable other first class buildings in the Burlington Area and in compliance with all laws and all costs and expenses under this Section 5.1.3 shall constitute Operating Costs to the extent provided by to the provisions of Section 4.2, except that Landlord shall be responsible at its sole cost and expense (except if relating to Tenant’s negligence and misuse, in which case the same shall be at Tenant’s cost and expense, subject to Section 10.13), to repair, maintain and replace throughout the Term the Building structure, including the footings, foundation and columns. All other repairs and maintenance reasonably required within the Premises, except as specifically otherwise provided for herein, shall be the responsibility of Tenant.

In the event that Tenant gives notice to Landlord of a condition which Tenant believes requires Landlord’s repairs or a condition which, if left uncorrected, will necessitate Landlord’s repair, then, in accordance with the terms of this Section 5.1.3, Landlord shall respond promptly to investigate such condition, and, if such repairs are Landlord’s obligation hereunder, Landlord shall commence promptly to repair same and to diligently complete said repair. Tenant agrees during the Term to provide Landlord notice as soon as reasonably possible of any condition within the Premises known to Tenant which might require, or if left uncorrected will necessitate, Landlord’s repair pursuant to this Section 5.1.3. Tenant shall have the right to require, at reasonable times and with reasonable advance notice, a representative of Landlord to inspect the Premises for repairs which may be the responsibility of Landlord;

5.1.4 Quiet Enjoyment - That Landlord has the right to make this Lease and that Tenant, provided there is then no uncured Event of Default hereunder, shall peacefully and quietly have, hold and enjoy the Premises throughout the Term without any manner of hindrance or molestation from Landlord or anyone claiming under Landlord, subject, however, to all the terms and provisions hereof;

5.1.5 Landlord’s Insurance - Beginning with the commencement of Landlord’s Work and thereafter throughout the Term, Landlord shall purchase and keep in force, broad-form commercial general liability insurance, or the equivalent then-customary form providing comparable coverages, written out on an occurrence basis containing provisions adequate to protect the Landlord from and against claims for bodily injury, including death and personal injury and claims for property damage occurring within the Park and/or the Building, such insurance having body injury and property damage combined limits of not less than five million dollars ($5,000,000) per occurrence increased as necessary so as to be at least comparable with

other Class A buildings in the area that are equivalent to the Building and customarily carried by other landlords similarly situated as Landlord. In addition, Landlord shall procure and continue in force during the Term, as the same may be extended hereunder, fire and extended coverage insurance, including vandalism, sprinkler leakage and malicious mischief, upon the Building on a full replacement cost basis, agreed cost value endorsement with agreed values for the Building and tenant improvements initially installed by Landlord (i.e. Tenant’s Work), as determined annually by the Landlord’s insurer. Landlord shall also procure and continue in force during the Term, as the same may be extended hereunder, rental interception insurance for twelve (12) months or the maximum amounts permitted. Copies of certificates of insurance evidencing the foregoing shall be furnished to Tenant prior to Commencement Date. All insurance required of Landlord pursuant to this Section, shall be effected under policies issued by insurers or recognized responsibility (which are rated A or A+ by Best’s Rating Service or a comparable rating by an equivalent service). The coverages required by this Section 5.1.5 may be provided by a single “package policy” or by a combination of “package policy” and umbrella;

5.1.6 Landlord’s Workmen’s Compensation Insurance - To keep all Landlord’s employees working in the Premises covered by workmen’s compensation insurance in statutory amounts;

5.1.7 Landlord’s Indemnity - Landlord covenants and agrees to defend, with counsel reasonably acceptable to Tenant, save harmless and indemnify Tenant from any liability for injury; loss, accident or damage to any person or property on the Premises, in the Building or the Lot, or elsewhere in the Park, and from any claims, actions, proceedings and expenses and costs in connection therewith (including, without implied limitation, reasonable counsel fees), to the extent arising from the negligent acts, omissions and/or or willful acts of Landlord, its agents, employees, contractors or licensees, to the extent not caused by the negligent acts, omissions and/or willful acts of Tenant, its agents, employees, contractors or licensees. In no event shall Landlord be obligated to indemnify Tenant for any willful or negligent act or omission of Tenant or of any of its employees, agents or contractors. Notwithstanding anything to the contrary contained in this Lease, in no event shall Landlord be liable to Tenant for any indirect, consequential, special, exemplary, incidental or punitive damages arising from or relating to this Lease. In addition, Landlord shall pay all reasonable costs and fees incurred by Tenant in connection with the successful enforcement by Tenant of any obligations of Landlord under this Lease. The covenants and indemnifications set forth in this Section 5.1.7 shall survive the expiration or earlier termination of this Lease;

5.1.8 Hazardous Materials - Landlord represents and warrants that, to the best of Landlord’s knowledge, after due inquiry as of the date of this Lease and as of the Commencement Date, that the Premises and rest of the Building do not contain any Hazardous Materials (as defined herein), except as may be contained in customary cleaning supplies or in such other related construction supplies (e.g. paint); and

5.1.9 Tenant’s Costs - In case Tenant shall, without any fault on its part, be made party to any litigation commenced by or .against Landlord or by or against any parties in possession of the Building or any part thereof claiming under Landlord, to pay all costs including, without implied limitation, reasonable counsel fees incurred by or imposed upon Tenant in connection

with such litigation and as additional rent, also to pay all such costs and fees incurred by Tenant in connection with the successful enforcement by Tenant of any obligations of Landlord under this Lease.

5.2	INTERRUPTIONS

Except to the extent caused by, or arising out of, the negligence or willful misconduct of Landlord, its agents, employees or contractors, and subject to Section 10.13, Landlord shall not be liable to Tenant for any compensation or reduction of rent by reason of inconvenience or annoyance or for loss of business arising from power losses or shortages or from the necessity of Landlord’s entering the Premises for any of the purposes in this Lease authorized, or for repairing the Premises or any portion of the Building or Lot. In case Landlord is prevented or delayed from making any repairs, alterations or improvements, or furnishing any service or performing any other covenant or duty to be performed on Landlord’s part, by reason of any cause reasonably beyond Landlord’s control, Landlord shall not be liable to Tenant therefore, nor, except as expressly otherwise provided below or in Article 7, shall Tenant be entitled to any abatement or reduction of rent by reason thereof.

Notwithstanding any terms of this Lease to the contrary, if any Building service is interrupted for a period of four (4) business days due to the negligence or willful acts of Landlord, its agents, servants, employees, contractors or subcontractors (and not due to acts or failure to act by Tenant, its agents, servants, employees, contractors or subcontractors), and such failure adversely and materially effects Tenant’s use of the Premises for Tenant’s normal business operations, then there shall be an abatement on a square footage prorata basis of Fixed Rent and additional rent from and after said time period, until such services are restored. Landlord agrees to use its commercially reasonable efforts to restore such services as soon as reasonably possible. In no event shall Tenant have any abatement or termination right if any such interruption is due to the actions of Tenant or its employees or agents as aforesaid.

Landlord reserves the right to stop any service or utility system when necessary by reason of accident or emergency or until necessary repairs have been completed. Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof such as conducting the same outside the regular business hours of Tenant.

Except as set forth herein and in Article 7, the foregoing rights shall be Tenant’s sole remedy at law or in equity for the interruptions described in this Section 5.2.

ARTICLE 6

TENANT’S COVENANTS

6.1	TENANT’S COVENANTS DURING THE TERM

Tenant covenants during the Term and such further time as Tenant occupies any part of the Premises:

6.1.1 Tenant’s Payments - Except during Tenant’s early entry pursuant to Section 3.2 above, to pay when due (a) all Fixed Rent and additional rent, (b); all taxes which may be imposed on Tenant’s personal property in the Premises (including, without limitation, Tenant’s furniture, fixtures and equipment) regardless to whomever assessed, unless there is an uncured, continuing Event of Default of this Lease, at which time Landlord shall be responsible for the payment of any taxes associated therewith, (c) all charges by public utility for telephone and other utility services (including service inspections therefore and the charges as may be imposed pursuant to Exhibit “D” hereof) rendered to the Premises not otherwise required hereunder to be furnished by Landlord without charge and not consumed in connection with any services required to be furnished by Landlord without charge;

6.1.2 Repairs and Yielding Up - Except as otherwise provided in Article 7 and Section 5.1.3, to keep the Premises in substantially the same order, repair and condition as exists on the Commencement Date, reasonable wear and tear and damage by fire, casually or act of God, the effect of eminent domain and Hazardous Materials not stored, used, released or disposed of by Tenant, its agents, employees, contractors or invitees only excepted, and at the expiration or termination of this Lease peaceably to yield up the Premises and all changes and additions therein after initial construction and as designated by Landlord pursuant to its right to do so as Improvements to be removed on termination in such order, repair and condition, first removing all goods and effects of Tenant and any items, the removal of which is required by Section 3.1 above or specified to be removed at Tenant’s election and which Tenant elects to remove, and repairing all damage caused by such removal and restoring the Premises and leaving them clean and neat; any property not so removed shall be deemed abandoned and may, upon ten (10) business days’ prior written notice to Tenant, be removed and disposed of by Landlord, in such manner as Landlord shall determine, and Tenant shall pay Landlord the entire cost and expense incurred by it by effecting such removal and disposition; it being agreed that the acceptance of reasonable use and wear shall not apply so as to permit Tenant to keep the Premises in anything less than suitable, tenantable and usable condition, considering the nature of the Premises and the use reasonably made thereof, or in less than good and tenantable repair; for avoidance of doubt, Landlord acknowledges that the original buildout of the Premises shall not be deemed improvements that must be removed by Tenant at the end of the Term;

6.1.3 Occupancy and Use - To use the Premises only for the Permitted Uses; and not to injure or deface the Premises, Building or Lot or Park; and not to permit in the Premises any auction sale, nuisance, or the emission from the Premises of any reasonably objectionable noise or odor; nor any use thereof which is contrary to law or ordinances, or invalidates or increases the premiums for any insurance on the Building or its contents or liable to render necessary any

alteration or addition to the Building unless Tenant agrees to pay the cost of the increased premiums or required alteration or addition (it being agreed that use for the Permitted Uses does not violate the foregoing);

6.1.4 Rules and Regulations - To comply with the Rules and Regulations set forth in Exhibit “E” and all other reasonable Rules and Regulations hereafter made by Landlord, of which Tenant has been given notice, for the use of the Building, Lot and Park and their facilities and approaches, it being understood that Landlord shall not be liable to Tenant for the failure of other tenants of the Building or Park to conform to such Rules and Regulations, provided that Landlord enforces such rules against all tenants of the Building in a non-discriminatory fashion;

6.1.5 Compliance with Laws and Safety Appliances - To keep the Premises equipped with all safety appliances required by law or ordinance or any other regulation of any public authority because of any particular manner of use made by Tenant other than Tenant’s Permitted Use and to procure all licenses and permits so required because of such use, it being understood that the foregoing provisions shall not be construed to broaden in any way Tenant’s Permitted Uses. Tenant shall have the right, upon giving notice to the Landlord, to contest any obligation imposed upon it pursuant to the provisions of this Section 6.1.5, and provided the enforcement of such requirement or law is stayed during such contest and such contest will not subject the Landlord to penalty or jeopardize the title to the Premises or otherwise affect the Premises in any adverse way. Landlord shall cooperate with Tenant in such contest and shall execute any documents reasonably required in the furtherance of such purpose. Notwithstanding the foregoing, or any other contrary provision set forth in this Lease, Tenant shall not be required to construct or pay the cost of complying with any private restrictions, laws or insurance underwriter’s requirements requiring construction of improvements to the Premises or to any other portion of the Building, unless such compliance is necessitated solely because of Tenant’s particular and unique use of the Premises or any alterations to the Premises made by or for Tenant (other than as part of Landlord’s Work);

6.1.6 Assignment and Subletting - Tenant shall have the right, subject to the requirement of obtaining Landlord’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed by Landlord, to assign this Lease or sublet the whole or any portion of the Premises, which assignment or sublease shall be only for the Permitted Uses, it being understood that Tenant shall, as additional rent, reimburse Landlord promptly for reasonable legal and other out of pocket expenses incurred by Landlord (or its mortgagee) (not to exceed $500.00 per request) in connection with any request by Tenant for consent to assignment or subletting. No assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee). Such consent by Landlord to any of the foregoing in a specific instance shall be reasonable and subject to the provisions hereinafter provided. Landlord’s consent shall not be treated as having been withheld unreasonably if, in connection with any such proposed assignment or subletting: (i) the terms of the proposed assignment or subletting do not prohibit further assignments of the Lease or subletting of the Premises without the written consent of Landlord, the granting of which consent shall be subject to the terms and conditions hereof, and in any event shall not be unreasonably withheld, conditioned or delayed; and (ii) in connection with an assignment of this Lease, the assignee does not agree directly with Landlord, by written instrument in form reasonably satisfactory to

Landlord, to be bound by all the obligations of Tenant thereafter arising hereunder including, without limitation, the covenant against further assignment and subletting without the written consent of Landlord, subject to the terms and conditions of this Section. Tenant hereby acknowledges and agrees that the foregoing is not intended to be an exclusive list of the reasons for which Landlord may reasonably withhold consent to a proposed request by Tenant for consent to assignment or subletting. No consent to any of the foregoing in a specific instance shall operate as waiver in any subsequent instance. If an assignment or subletting is proposed to be made and Landlord’s consent is required as hereinabove provided, Tenant shall give Landlord prior notice of such proposal, which such notice shall include such information (including creditworthiness information) as Landlord may reasonably request relative to facts which would bear upon the factors entering into the determination whether Landlord’s approval is to be granted, provided Landlord requests such information within ten (10) days of receipt of such notice from Tenant. Landlord shall respond to a request for consent within ten (10) days of Tenant’s request for consent.

Notwithstanding any provision contained in this Lease to the contrary, no consent of Landlord (or Landlord’s mortgagee) shall be required for A) the occupancy (including any assignment or subletting as hereinafter provided) of the Premises by any entity controlling, controlled by or under common control with Tenant from time to time (an “Affiliate”), including, without limitation, Xxxxx & Xxxxxxxx Learning, or B) the assignment of this Lease or the subletting of any portion (or the whole) of the Premises, (i) to an Affiliate of Tenant, (ii) to a corporation or other entity into or with which Tenant has merged, been reorganized or been consolidated or to which substantially all of Tenant’s assets are transferred, (iii) to any corporation or other entity with which Tenant is otherwise affiliated (all of the foregoing hereinafter sometimes collectively shall be referred to as “Permitted Transfers”, and any person to whom any Permitted Transfer is made hereinafter sometimes shall be referred to as a “Permitted Transferee”). In any event, the following conditions shall apply: (x) the Security posted pursuant to Article 11 hereof shall remain in place; (y) such Permitted Transferee agrees directly with Landlord by written instrument to be bound by all of the obligations of Tenant thereafter arising hereunder, and (z) such Permitted Transferee under subsection (ii) shall have a net worth of at least equal to or greater than that of Tenant immediately prior to such merger, reorganization or transfer of assets; and in the event of any such assignment or subletting for which no consent by Landlord is required hereunder, Tenant shall not be obligated to share Rent Differential as hereinafter set forth.

If this Lease shall be assigned, or if the Premises or any part hereof shall be sublet or occupied by any person other than Tenant, Landlord may, at any time and from time to time, following an uncured, continuing Event of Default, collect rent (or any amounts due to Landlord hereunder) from the assignee, subtenant or occupant (other than an Affiliate) and apply the net amount collected to the annual Fixed Rent, additional rent and all other charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of the provisions of this Section 6.1.6, or acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the further performance of the terms, covenants and conditions of this Lease on the part of Tenant to be performed. In such event, after deducting Landlord’s share of the Rent Differential, equitably determined on a monthly basis, if applicable as hereinafter provided, Landlord agrees to remit to Tenant any excess on a month to month basis.

If Landlord’s approval of a sublease or assignment is necessary and Landlord approves a sublease or assignment, and said sublease or assignment is for a total rental amount which on an annualized basis is greater than the Fixed Rent and additional rent due from Tenant to Landlord under this Lease, Tenant shall pay to Landlord, forthwith upon Tenant’s receipt of each installment of such excess rent, during the term of any approved sublease or assignment, as additional rent hereunder, in addition to the Fixed Rent and other payments due under this Lease, an amount equal to fifty percent (50%) of the positive excess between all Fixed Rent and additional rent received by Tenant under the sublease or assignment and the Fixed Rent and the additional rent due hereunder after Tenant has recouped, in full, its reasonable out-of-pocket expenses with respect to such sublease or assignment, including without limitation, reasonable real estate brokerage commissions, utilities expenses, reasonable legal fees, reasonable free rent, reasonable marketing costs and the reasonable costs of refurbishment of the Premises for such sublease or assignment (the “Rent Differential”). The Rent Differential shall not include the sales or rental proceeds received by Tenant in connection with the sale or lease of its personal property to a proposed transferee. In the event the sublease is for less than the full Premises hereunder, the rent payable by Tenant shall be proportionately adjusted in determining the excess (but all expenses to be recouped will be deducted) pro rated on a square foot basis. Anything contained in the foregoing provisions of this section to the contrary notwithstanding, neither Tenant nor any other person having interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of space in the Premises which provides for rental or other payment for such use, occupancy or utilization based, in whole or primarily on the net income or profits derived by any person from the Premises leased, used, occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or sales), and any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession use, occupancy or utilization of any part of the Premises;

6.1.7 Indemnity - To defend, with counsel reasonably acceptable to Landlord, save harmless, and indemnify Landlord from and against any liability, claims, actions, proceedings and expenses and costs in connection therewith (including, without implied limitation, reasonable counsel fees) with respect to injury, loss, accident or damage to any person or property occurring on the Premises, in the Building or the Lot, or elsewhere in the Park, (i) to the extent arising from the negligent acts, omissions and/or willful misconduct of Tenant or any of Tenant’s employees, agents, contractors, subtenants, assignees, licensees or invitees, to the extent not caused by the negligent acts, omissions and/or willful acts of Landlord, its agents, employees, contractors or invitees or (ii) resulting from the failure of Tenant to perform and discharge its covenants and obligations under this Lease. In no event shall Tenant be obligated to indemnify Landlord for any willful or negligent act or omission of Landlord or of any of Landlord’s employees, agents, contractors or licensees. Notwithstanding anything to the contrary contained in this Lease, in no event shall Tenant be liable to Landlord for any indirect, consequential, special, exemplary, incidental or punitive damages arising from or relating to this Lease. In addition, Tenant shall pay Landlord all reasonable costs and expenses incurred by Landlord in connection with the successful enforcement by Landlord of any obligations of

Tenant under this Lease. The covenants and indemnifications set forth in this Section 6.1.7 shall survive the expiration or earlier termination of this Lease;

6.1.8 Tenant’s Liability Insurance - To maintain public liability insurance in the Premises in amounts which shall, at the beginning of the Term, be at least equal to the limits set forth in Section 1.1 and, not more than two times during the Term, shall be for such higher limits, if any, as are customarily carried in the area in which the Premises are located on property similar to the Premises and used for similar purposes and to furnish Landlord (and/or its mortgagees) with the certificates thereof, prior to occupancy hereunder, evidencing such coverage and providing that the insurance indicated therein shall not be cancelled without at least ten (10) days’ prior written notice to Landlord. Landlord and its mortgagee shall be named as additional insureds on any such policies;

6.1.9 Tenant’s Workmen’s Compensation Insurance - To keep all Tenant’s employees working in the Premises covered by workmen’s compensation insurance in statutory amounts;

6.1.10 Landlord’s Right of Entry - Upon not less than twenty four (24) hours notice or other reasonable notice and during regular business hours (except in the event of an emergency), to permit Landlord and Landlord’s agents entry; to examine the Premises at reasonable times and, if Landlord shall so elect and is otherwise permitted hereunder, to make repairs or replacements; to remove, at Tenant’s expense, any changes, additions, signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the like not consented to in writing; and to show the Premises to prospective tenants during the twelve (12) months preceding expiration of the Term and to prospective purchasers and mortgagees at all reasonable times. Notwithstanding anything to the contrary contained in this Lease, any entry by Landlord and Landlord’s agents shall not interfere with Tenant’s daily operations and shall comply with Tenant’s reasonable security procedures, and Tenant shall have the right to have an employee accompany Landlord and/or its agents at all times that Landlord and/or its agents are present on the Premises;

6.1.11 Loading - Except with Landlord’s prior written consent, not to place a load upon the Premises exceeding an average rate of one hundred (100) pounds of live load per square foot of floor area; and not to move any safe, vault or other heavy equipment in, about or out of the Premises except in such a manner and at such times as Landlord reasonably shall in each instance approve; Tenant’s business machines and mechanical equipment which cause vibration or noise that may be transmitted to the Building structure or to any other leased space in the Building shall be placed and maintained by Tenant in settings of cork, rubber, spring, or other types of vibration eliminators sufficient to eliminate such vibration or noise;

6.1.12 Landlord’s Costs - In case Landlord shall, without any fault on its part, be made party to any litigation commenced by or against Tenant or by or against any parties in possession of the Premises or any part thereof claiming under Tenant, to pay, as additional rent, all costs including, without implied limitation, reasonable counsel fees incurred by or imposed upon Landlord in connection with such litigation and as additional rent, also to pay all such costs and fees incurred by Landlord in connection with the successful enforcement by Landlord of any obligations of Tenant under this Lease;

6.1.13 Tenant’s Property - All the furnishings, fixtures, equipment, effects and property of every kind, nature and description of Tenant and of all persons claiming by, through or under Tenant which, during the continuance of this Lease or any occupancy of the Premises by Tenant or anyone claiming under Tenant, may be on the Premises or elsewhere in the Building or on the Lot or elsewhere in the Park shall be at the sole risk and hazard of Tenant, and if the whole or any part thereof shall be destroyed or damaged by fire, water or otherwise, or by the leakage or bursting of water pipes, steam pipes, or other pipes, by theft, or from any other cause, no part of said loss or damage is to be charged to or to be borne by Landlord except to the extent arising from Landlord willful act or negligence, or that of its agents, employees or contractors, as required by law;

6.1.14 Labor or Materialmen’s Liens - To pay promptly when due the entire cost of any work done on the Premises by Tenant, its agents, employees, or independent contractors; not to cause or permit any liens for labor or material performed or furnished in connection therewith to attach to the Premises; and immediately to discharge any such liens which may so attach within twenty (20) business days after receipt of written notice of such attachment;

6.1.15 Changes or Additions - Except in connection with the construction of Tenant’s Work hereunder, not to make any material changes or additions to the Premises without Landlord’s prior written consent, which such consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant may, from time to time, at its own cost and expense and without the consent of Landlord, make non-structural alterations, additions or improvements to the Premises, so long as they do not materially adversely affect any of the mechanical, electrical or plumbing systems or life safety systems of the Building or otherwise require Landlord unusual expense to readjust the Premises to normal office use on the Term Expiration Date (collectively herein called “Alterations”) whose cost in any one instance is Fifty Thousand Dollars ($50,000.00) or less, provided that Tenant first notifies Landlord in writing of any such Alterations and satisfies any reasonable requirements of Landlord’s with respect to insurance. If Tenant desires to make any Alterations costing in excess of Fifty Thousand Dollars ($50,000.00) in any one instance or any other alteration, including any structural alteration or alteration affecting any of the mechanical, electrical or plumbing systems of the Building or life safety systems, Tenant must first obtain the consent of Landlord thereto, which consent shall not be unreasonably withheld, conditioned or delayed. If Landlord reasonably concludes that the alterations (including Alterations) involve any construction, alterations or additions requiring unusual expense to readapt the Premises to normal office use on the Term Expiration Date, Landlord shall notify Tenant in writing at the time of approval that such re-adaptation will be required to be made by Tenant prior to such Term Expiration Date without expense to Landlord. Landlord shall not unreasonably require removal in the event an alteration is substantially similar (functionally and quality wise) of the item so being replaced. Tenant shall have no obligation to remove an alteration at the end of the Term, unless Landlord notifies Tenant it will require removal of the same at the end of the Term at the time of its consent thereto.

Any and all alterations, including but not limited to the Alterations (but excluding Alterations not requiring Landlord consent), shall be performed by GCCI at cost plus a profit equal to six percent (6%) of the aggregate cost so long as the cost is comparable to the then

market cost consistent with other similarly situated first-class buildings in the area of the Building, unless Landlord elects not to so perform the same in which event such Alterations shall be done by any contractor chosen by Tenant provided any such contractor is reputable, bondable by reputable bonding companies, carries the kind of insurance and in the amounts set forth herein, and will work in harmony with Landlord’s contractors and laborers in the Building. Landlord agrees to employ an “open book” policy with respect to bidding all work requested by Tenant hereunder, including Tenant’s right to review all of such bids. Notwithstanding the foregoing, no such bonding is required for interior, non-structural, non-roof, non-mechanical Alterations.

Tenant in making any alterations, including Alterations if applicable (i.e. GCCI does not elect to perform the same as aforesaid), shall cause all work to be done in a good and workmanlike manner using all new materials substantially equal to or better than those used in the construction of the Premises and shall comply with or cause compliance with all laws and with any direction given by any public officer pursuant to law and Landlord’s standard consistent with other similarly situated Class A buildings in the area in which the Building is located. Tenant shall obtain or cause to be obtained and maintain in effect, as necessary, all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals which may be required in connection with the making of the alterations, including the Alterations. Landlord shall cooperate with Tenant in the obtaining thereof and shall execute any documents reasonably required in furtherance of such purpose, provided any such cooperation shall be without expense and/or liability to Landlord, unless Landlord elects to have GCCI perform the same (subject to the foregoing requirement that the cost be consistent with the then market cost and that Landlord provide Tenant with an “open book” review of all bidding) in which event it agrees to cause GCCI to comply with the foregoing provisions, including the obligation of GCCI to use all new materials in connection with any construction hereunder, and other provisions set forth herein applicable to Tenant’s contractor.

At least annually if such Alterations or any other alterations hereunder have occurred during the past calendar year (other than cosmetic alterations), Tenant shall furnish to Landlord as-built sepias and, if applicable, operating manuals, or, at Landlord’s option and only if Tenant’s computer system is compatible with that of Landlord’s, computer disk specifications compatible, with Landlord’s computer system of the work done by Tenant during such past year and copies of all permits issued in connection therewith.

Tenant shall have its contractor(s) procure and maintain in effect during the term of such alterations, including Alterations, reasonably satisfactory insurance coverages (including without limitation OCP coverage, if applicable) with an insurance company or companies authorized to do business in the Commonwealth of Massachusetts, and shall, upon Landlord’s request, furnish Landlord with certificates thereof;

6.1.16 Holdover - To pay to Landlord an amount equal to one hundred and fifty percent (150%) of the Fixed Rent and additional rent then applicable for the first thirty (30) days of holdover by Tenant and thereafter twice (i.e. 200%) of the Fixed Rent and additional rent then applicable for each month or portion thereof if Tenant shall retain possession of the Premises or any part thereof after the termination of this Lease, whether by lapse of time or otherwise, and

also to pay all damages sustained by Landlord on account thereof (except that no damages, including consequential damages, shall be due from Tenant for any holdover by Tenant lasting thirty (30) days or less); the provisions of this subsection shall not operate as a waiver by Landlord of any right of re-entry provided in this Lease;

6.1.17 Hazardous Materials - Tenant shall not (either with or without negligence) cause or authorize the escape, disposal or release of any Hazardous Materials onto, in or under the Premises, the Lot or Park, except in accordance with the requirements of applicable laws and regulations. Tenant shall not allow the storage or use of such substances or materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such substances or materials, nor allow to be brought into the Premises any such materials or substances except to use in the ordinary course of Tenant’s business. Landlord hereby consents to Tenant’s use of ordinary office and cleaning products in amounts reasonably necessary for Tenant’s Permitted Use of the Premises. Without limitation, “Hazardous Materials” shall include those hazardous materials and substances described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., the Massachusetts Hazardous Waste Management Act, as amended, M.G.L. c.21C, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, as amended, M.G.L. c.21E, any applicable local ordinance or bylaw, and the regulations adopted under these acts, (collectively, the “Hazardous Waste Laws”). If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of any Hazardous Materials by Tenant, then the reasonable costs thereof shall be reimbursed by Tenant to Landlord within twenty (20) days after receipt of demand as additional charges if and only if the following conditions are satisfied; (i) if such requirement applies to the Premises, and (ii) if an independent, reputable third party engineer employed by Landlord or persons acting under Landlord conclusively determines that a release has occurred and such release has been or is likely to have been solely and exclusively caused by Tenant or persons acting under Tenant’s control. If Tenant receives from any federal, state or local governmental agency any notice of violation or alleged violation of any Hazardous Waste Law by Tenant, or if Tenant is obligated to give any notice under any Hazardous Waste Law, Tenant agrees to forward to Landlord a copy of any such notice within three (3) business days of Tenant’s receipt or transmittal thereof (except if immediate response is required of Landlord in which event reasonable immediate notice to be given to Landlord). In addition, Tenant shall execute reasonable affidavits, representations and the like from time to time at Landlord’s reasonable request concerning Tenant’s best actual knowledge or belief regarding the presence of Hazardous Materials on the Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease from any release of hazardous materials on the Premises or elsewhere in the Park occurring while Tenant is in possession if caused by Tenant or persons acting under Tenant’s control. Landlord shall indemnify Tenant from any release of Hazardous Materials on the Premises or elsewhere in the Building, Lot or Park occurring while Tenant is in possession if caused by Landlord or persons acting under Landlord’s control. Landlord retains the right to inspect the Premises at all reasonable times, upon reasonable notice to Tenant and compliance with Section 6.1.10, to ensure compliance with this paragraph. Tenant shall not be liable for any losses, costs, claims, liabilities or damages (including attorneys’ and consultants’ fees) of any type or nature, directly or indirectly arising out of or in connection with any

Hazardous Materials present at any time on or about the Premises, Building, Lot or Park, or the violation of any environmental Laws, except to the extent that any of the foregoing actually results from the release or disposal of Hazardous Materials by Tenant or its agents, employees, contractors, sublessees or assignees. The within covenants shall survive the expiration or earlier termination of the Term;

6.1.18 Tenant’s Authority - Tenant has the power and authority to enter into this Lease and perform the obligations of Tenant hereunder. This Lease and all other documents executed and delivered by Tenant in connection herewith constitute legal, valid, binding and enforceable obligations of Tenant;

6.1.19 Confidentiality - This Lease is a confidential document by and between Landlord and Tenant and each party agrees that this Lease shall not be copied and distributed or circulated to any person(s) other than to such parties, and their respective mortgagees, successors or assigns, their legal counsel, accountants and brokers or to any prospective sublessees and assignees or affiliates of Tenant, or to any prospective acquirers, investors, or lenders of Tenant, or to regulatory authorities, or to the directors, shareholders or officers of Tenant, unless required by law (including rules and regulations of the Securities and Exchange Commission) or court order, without the prior written consent of Landlord. All public announcements regarding this Lease prior to Tenant’s occupancy hereunder must be approved by Landlord and Tenant in advance; and

6.1.20 Signs and Advertising - Except as hereinafter expressly provided, Tenant will not place or suffer to be placed or maintained on the exterior of the Premises, Building, or Lot, or elsewhere in the Park, or on the roof of the Building, any sign, decoration, lettering or advertising matter or any other thing of any kind. Tenant will, at its sole cost and expense, maintain such sign, decoration, lettering, advertising matter, or other tiling as may be permitted hereunder in good condition and repair at all times.

Tenant shall have the right, at its sole cost and expense, subject to Landlord’s prior approval (not to be unreasonably withheld, conditioned or delayed) and to applicable sign ordinances, and to receipt by Landlord of all required permits therefor, to have installed signage (which may be electrified) supplied by Tenant at Tenant’s expense, customary or appropriate in the conduct of Tenant’s business and with other signage along the exterior of the Building at the location shown on Exhibit “B” (“Tenant’s Signage”), provided that Tenant and any Affiliate shall be leasing at all times at least one (1) full floor of the Building, Landlord shall have the right to remove Tenant’s Signage, at Tenant’s expense for reasonable out-of-pocket expenses. Tenant’s right to install signage on the Building is non-exclusive. Tenant’s name shall also be placed by Landlord on the Building directory, at no cost to Tenant, and Landlord agrees to work with Tenant to improve the signage in the main lobby of the Building. Tenant shall have the right to relocate Tenant’s Signage to the exterior location of the Building where One Communications’ sign is currently located upon the termination of Landlord’s lease with such tenant (expressly excluding any assignments or subleasing to the successors, assigns and affiliates of One Communications which shall have such rights that One Communications has as set forth in such lease), provided that (i) Tenant is then leasing and occupying two (2) full floors

in the Building or at least seventy-five thousand (75,000) rentable square feet and (ii) there does not then exist an Event of Default.

Landlord and Tenant hereby further acknowledge and agree that Landlord, upon Tenant’s request, shall use reasonable efforts to obtain all necessary permits and approvals in compliance with local codes and ordinances for Tenant’s Signage. In no event shall Landlord be required to obtain such necessary permits and approvals therefor as a condition of the Premises being deemed Ready for Occupancy as determined in accordance with said Section 3.2. Tenant shall reimburse Landlord for the actual third-party reasonable costs and expenses incurred by Landlord in connection with obtaining said permits and approvals, including reasonable attorney’s fees and disbursements. Tenant agrees to cooperate with Landlord during the permitting process by (i) promptly executing the necessary documentation reasonably requested by Landlord, and (ii) by furnishing the same to Landlord promptly upon Landlord’s request, but in no event later than five (5) business days following Landlord’s request.

ARTICLE 7

CASUALTY AND TAKING

7.1	CASUALTY AND TAKING

In case during the Term any substantial part of the Premises, or all or any substantial part of the Building, or any one or more of them, are, in the reasonable judgment of Landlord’s architect, damaged materially by fire or any other cause, or by action of public or other authority in consequence thereof or are taken by eminent domain, and this Lease is not otherwise terminated pursuant to Sections 7.3(c) or (d) below, then this Lease shall terminate at either party’s election, which may be made, notwithstanding Landlord’s entire interest may have been divested, by notice given to the other party within thirty (30) days after the occurrence of the event giving rise to the election to terminate, which notice shall specify the effective date of termination which shall be not less than thirty (30) nor more than sixty (60) days after the date of notice of such termination. Such termination right may not be exercised by Landlord if the Premises are not damaged by such casualty or taking unless the leases of all other tenant’s of the Building are also terminated. If in any such case the Lease is not so terminated, Landlord shall use due diligence to put the Premises and/or the Building, as applicable, or in case of taking, what may remain thereof into substantially the condition immediately prior to the casualty, subject to applicable law, if the net award of insurance or damages are adequate (but such limitation shall not apply if the Landlord failed to maintain the insurance required hereunder). A just proportion of the Fixed Rent and additional rent according to the nature and extent of the injury from and after the date of such casualty or taking shall be abated until the Premises, all systems and access thereto, or such remainder shall have been put by Landlord in such condition; and in case of a taking which permanently reduces the area of the Premises, a just proportion of the Fixed Rent and additional rent shall be abated for the remainder of the Term and an appropriate adjustment shall be made to the Landlord’s Operating Costs.

7.2	RESERVATION OF AWARD

Landlord reserves to itself any and all rights to receive awards made for damages to the

Premises, Building or Lot and the leasehold hereby created, or any one or more of them, accruing by reason of exercise of eminent domain or by reason of anything lawfully done in pursuance of public or other authority. Tenant hereby releases and assigns to Landlord all Tenant’s rights to such awards, and covenants to deliver such further assignments and assurances thereof as Landlord may from time to time request, hereby irrevocably designating and appointing Landlord as its attorney-in-fact to execute and deliver in Tenant’s name and behalf all such further assignments thereof. It is agreed and understood, however, that Landlord does not reserve to itself, and Tenant does not assign to Landlord, any damages payable for (i) movable trade fixtures installed by Tenant or anybody claiming under Tenant, at its own expense, (ii) equipment, furniture, personal property or other items of Tenant located in the Premises or on the Lot, or (iii) relocation and moving expenses recoverable by Tenant from such authority in a separate action,

7.3	ADDITIONAL CASUALTY PROVISIONS

(a) Landlord shall not be required to repair or replace any of Tenant’s business machinery, equipment, furniture, personal property or other installations not originally installed by Landlord.

(b) In the event of any termination of this Lease pursuant to this Article 7, the Term of this Lease shall expire as of the effective termination date as fully and completely as if such date were the date herein originally scheduled as the Term Expiration Date; Tenant shall have access to the Premises at Tenant’s sole risk for a period of sixty (60) days after the date of termination in order to remove Tenant’s personal property except as prohibited by any applicable governmental agency or official.

(c) Notwithstanding any language to the contrary contained in this Article 7, if all or any substantial part of the Premises and/or the Building or Lot or any part thereof (as hereinabove defined), shall be damaged by fire or other casualty or taken by eminent domain during the last twelve (12) months of the Term, as the Lease may have theretofore been extended, then either Landlord or Tenant may terminate this Lease effective as of the date of such fire or other casualty or taking upon notice to the other as aforesaid. Also, notwithstanding anything to the contrary contained in this Article 7, Tenant may render any notice of Landlord’s termination null and void by exercising early an option to extend the initial Term or then Extended Term of this Lease in accordance with Exhibit “F”. In the event of such early exercise, Landlord and Tenant agree to determine the Fixed Rent for the applicable Extended Term at least twelve (12) months prior to the commencement date of the Extended Term in accordance with and in the manner set forth in said Exhibits “F” and “H”.

(d) Notwithstanding anything to the contrary contained in this Lease if the Premises are damaged by any peril and Landlord does not elect to terminate this Lease or is not entitled to terminate this Lease pursuant to its terms, then within sixty (60) days after the casualty or notice of taking, Landlord shall furnish Tenant with a written opinion of Landlord’s architect or construction consultant as to when the restoration work required of Landlord may be completed. Tenant shall have the option to terminate this Lease in the event any of the following occurs, which option may be exercised by delivery to Landlord of a written notice of election to terminate within thirty (30) days after Tenant receives from Landlord the estimate of the time

needed to complete such restoration: (x) the Premises, with reasonable diligence, cannot be fully repaired by Landlord within twelve (12) months after the damage or destruction. During any period of construction hereunder, Landlord agrees to use reasonable efforts to relocate Tenant to one of its other properties, if available and at no cost to Landlord. In addition, if Tenant does not terminate under this subsection (d) within thirty (30) days of receipt of Landlord’s notice, and Landlord does not complete the repair within the time period stated in Landlord’s notice, Tenant shall again have the right to terminate this Lease by written notice given within thirty (30) days of the expiration of the repair period stated in Landlord’s notice.

ARTICLE 8

ARTICLE 8 RIGHTS OF MORTGAGEE

8.1	PRIORITY OF LEASE

Landlord shall have the option to subordinate this Lease to any future mortgagee or deed of trust of the Lot or Building, or both (“the mortgaged premises”), provided that the holder thereof enters into an agreement with Tenant by the terms of which the holder will agree to recognize the rights of Tenant under this Lease, assume the obligations of Landlord under this Lease and to accept Tenant as tenant of the Premises under the terms and conditions of this Lease in the event of acquisition of title by such holder through foreclosure proceedings or otherwise and Tenant will agree to recognize the holder of such mortgage as Landlord in such event, which agreement shall be made to expressly bind and inure to the benefit of the successors and assigns of Tenant and of the holder and upon anyone purchasing the mortgaged premises at any foreclosure sale. Any such mortgage to which this Lease shall be subordinated may contain such commercially reasonable and customary terms, substantially similar to the provisions contained in the SNDA attached to this Lease. Further and as a condition to Tenant’s obligations under this Lease, Landlord agrees to obtain and deliver to Tenant within thirty (30) days of this Lease, a Subordination, Non-Disturbance and Attornment Agreement (“SNDA”) from its current lender, Bank of America, N.A. (“Lender”), substantially in accordance with Exhibit “J” attached hereto. In the event an SNDA is not obtained from the Lender for the benefit of Tenant within thirty (30) days from the date of this Lease, Tenant shall have the right to terminate this Lease. Landlord represents and warrants that (i) there is no default under the mortgage or related loan documents with the Lender, and (ii) no other mortgage, ground lease or superior lease encumbers the Lot or the Building.

8.2	LIMITATION ON MORTGAGEE’S LIABILITY

Upon entry and taking possession of the mortgaged premises for any purpose other than foreclosure, the holder of a mortgage shall have all rights of Landlord, and during the period of such possession, shall also have the duty to perform all Landlord’s obligations hereunder. Except during such period of possession, no such holder shall be liable, either as mortgagee or as holder of a collateral assignment of this Lease, to perform, or be liable in damages for failure to perform

any of the obligations of Landlord unless and until such holder shall enter and take possession of the mortgaged premises for the purpose of foreclosing a mortgage. Upon entry for the purpose of foreclosing a mortgage, such holder shall be liable to perform all of the obligations of Landlord accruing after said entry (including performance of obligations arising prior to said entry), provided that a discontinuance of any foreclosure proceeding shall terminate the liability of the holder as Landlord.

8.3	INTENTIONALLY OMITTED.

8.4	NO PREPAYMENT OR MODIFICATION, ETC.

No Fixed Rent, additional rent, or any other charge shall be paid more than thirty (30) days prior to the due dates thereof, and payments made in violation of this provision shall (except to the extent that such payments are actually received by a mortgagee in possession or in the process of foreclosing its mortgage) be a nullity as against such mortgagee, and Tenant shall be liable for the amount of such payments to such mortgagee.

8.5	NO RELEASE OR TERMINATION

No act or failure to act on the part of Landlord which would entitle Tenant under the terms of this Lease, or by law, to be relieved of Tenant’s obligations hereunder or to terminate this Lease, shall result in a release or termination of such obligations or a termination of this Lease unless (i) Tenant shall have first given written notice of Landlord’s act or failure to act to Landlord’s mortgagees of record, if any, the addresses for whom previously have been provided in writing to Tenant, specifying the act or failure to act on the part of Landlord which could or would give basis to Tenant’s rights, and (ii) such mortgagees, after receipt of such notice, have failed or refused to correct or cure the condition complained of within a reasonable time thereafter, but nothing contained in this Section 8.5 shall be deemed to impose any obligation on any such mortgagee to correct or cure any such condition. “Reasonable time” as used above means and includes a reasonable time to obtain possession of the mortgaged premises, if the mortgagee elects to do so, and a reasonable time to correct or cure the condition if such condition is determined to exist. The foregoing shall not apply to any rights to Tenant to terminate in the event of a casually or taking.

8.6	CONTINUING OFFER

The covenants and agreements contained in this Lease with respect to the rights, powers and benefits of a mortgagee (particularly, without limitation thereby, the covenants and agreements contained in this Article 8) constitute a continuing offer to any person, corporation or other entity, which by accepting or requiring an assignment of this Lease or by entry or

foreclosure assumes the obligations herein set forth with respect to such mortgagee, and such mortgagee shall be entitled to enforce such provisions in its own name. Tenant agrees on request of Landlord to execute and deliver from time to time any agreement which may reasonably be deemed necessary to implement the provisions of this Article 8.

ARTICLE 9

DEFAULT

9.1	EVENTS OF DEFAULT;

It shall be an “Event of Default” under this Lease, if (i) Tenant fails to pay Fixed Rent or additional rent for more than ten (10) days after notice thereof specifying such failure and that such failure may be an Event of Default hereunder; (ii) Tenant fails to perform its other non-monetary obligations hereunder for more than thirty (30) days after notice thereof from Landlord, together with such additional time, if any, as is reasonably required to cure the default if the default is of such a nature that it cannot reasonably be cured in thirty (30) days, provided that Tenant commences such cure within said thirty (30) day period; or (iii) if Tenant makes any assignment for the benefit of creditors, or files a petition under any bankruptcy or insolvency law; or (iv) if such a petition is filed against Tenant and is not dismissed within one hundred and twenty (120) days; or (v) if a receiver becomes entitled to Tenant’s leasehold hereunder and it is not returned to Tenant within one hundred and twenty (120) days; or (vi) such leasehold is taken on execution or other process of law in any action against Tenant; Landlord and the agents and servants of Landlord may, in addition to and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter while such default continues and without further notice except as required by applicable law enter into and upon the Premises or any part thereof in the name of the whole and repossess the same as of Landlord’s former estate and expel Tenant and those claiming through or under Tenant and remove its and their effects without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenant, and upon such entry or mailing as aforesaid, this Lease shall terminate, but Tenant shall remain liable as hereinafter provided. After the occurrence of an Event of Default as aforesaid, Tenant hereby waives all statutory rights of redemption, if any to the extent such rights may be lawfully waived, and Landlord, without notice to Tenant, may store Tenant’s effects and those of any person claiming through or under Tenant at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or private sale and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant.

9.2	TENANTS OBLIGATIONS AFTER TERMINATION

In the event that this Lease is terminated under any of the provisions contained in Section 9.1 or shall be otherwise terminated for breach of any obligation of Tenant, Tenant covenants as follows:

(a)

to pay forthwith to Landlord, as compensation, a lump sum equal to the present value total rent reserved for the residue of the Term discounted at a rate equal to seven and one-half percent (7.5%) per annum. In calculating the rent reserved, there shall be

included, in addition to the Fixed Rent and all additional rent, the value of all other consideration agreed to be paid or performed by Tenant for said residue, less the net proceeds of any rents obtained by Landlord in re-letting the Premises as provided in (b)(ii) below; and

(b)

and, to the extent not received in (a) above or the extent Landlord elects, in its sole discretion, to proceed under this subparagraph (b) rather than subparagraph (a), as an additional and cumulative obligation, to pay punctually to Landlord all of the sums and perform all of the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant under this subclause (b), Tenant shall be credited with: (i) any amounts paid to Landlord as compensation as provided in subclause (a) of this Section 9.2 (if Landlord elects to proceed pursuant to subclause (a)); and (ii) the net proceeds of any rents obtained by Landlord by re-letting the Premises, after deducting all of Landlord’s reasonable expenses in connection with such re-letting, including, without implied limitation, all repossession costs, brokerage commissions, tenant improvements costs paid or tenant improvement allowances granted, fees for legal services, and any other expenses of re-letting the Premises or preparing the Premises for the new tenant or tenants.

In no event shall Landlord receive total rent pursuant to Subparagraphs (a) and (b) above (i.e. from Tenant and/or from any future tenant upon any reletting of the Premises, or a portion thereof) in excess of the actual damages due and payable by Tenant under said Subparagraphs.

Landlord agrees to use commercially reasonable efforts to re-let the Premises following any such termination herein provided, however, that Landlord: (x) may re-let the Premises or any part or parts thereof 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, and may grant such concessions and free rent as Landlord in its sole judgment considers advisable or necessary to re-let same; (y) may make such alterations, repairs and decorations in the Premises as Landlord, in its reasonable judgment, considers advisable or necessary to re-let the same, and no action of Landlord in accordance with the foregoing sub clauses (x) and/or (y), or Landlord’s failure to re-let or to collect the rent through re-letting, shall operate or be construed to release or reduce Tenant’s liability as aforesaid; and (z) shall have no duty to re-let the Premises to a prospective tenant who is also interested in leasing other space that Landlord (or its affiliate(s)) then has available. In the event that Landlord collects all of the rent reserved pursuant to Subparagraph (a) above, and re-lets the Premises following the termination of this Lease, then Landlord agrees to reimburse Tenant for its pro rata share of any rent reserved paid by Tenant to Landlord hereunder in accordance with Subparagraph b(ii) above.

So long as at least twelve (12) months of the Term remain unexpired at the time of such termination, in lieu of any other damages of indemnity and in lieu of full recovery by Landlord of all sums payable under all the foregoing provisions of this Section 9.2, Landlord may, by written notice to Tenant, at any time after this Lease is terminated under any of the provisions contained in Section 9.1, or is otherwise terminated for breach of any obligation of Tenant and

before such full recovery, elect to recover, and Tenant shall thereupon pay, as liquidated damages, an amount equal to the aggregate of the Fixed Rent and additional rent accrued under Article 4 in the twelve (12) months ended next prior to such termination (or if the Term has not yet commenced, the Fixed Rent and additional rent that would be due for said time period) plus the amount of Fixed Rent and additional rent of any kind accrued and unpaid at the time of termination.

Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater, equal to, or less than the amount of the loss or damages referred to above.

9.3	EVENTS OF DEFAULT BY LANDLORD.

It shall be an “Landlord Event of Default” under this Lease, if Landlord fails to perform its obligations hereunder for more than thirty (30) days after notice thereof from Tenant, together with such additional time, if any, as is reasonably required to cure the default if the default is of such a nature that it cannot reasonably be cured in thirty (30) days. In the event of a Landlord Event of Default, without limitation to any other rights Tenant may have at law and equity (each of which rights Tenant expressly reserves), which default shall remain uncured after the expiration of any applicable notice and cure periods and Tenant does not have notice that Landlord is disputing such obligation in good faith, Tenant shall have the right, but shall not the obligation, to perform such obligation. Notwithstanding any language to the contrary set forth in this Section, in no event shall Tenant have any right to perform any obligations that are outside of the Premises, that affect any space not leased by Tenant, that affect any Common Area of the Building, the Lot or the Park, that affect the structure of the Building, or that affect any of the life safety or building systems of the Building. In performing such obligation, Tenant may make any payment of money or perform any other act. All sums so paid by Tenant, together with interest at the rate of twelve percent (12%) per annum, and all necessary incidental costs and expenses, provided such are reasonable, in connection with the performance of any such acts by Tenant, shall be payable by Landlord to Tenant within twenty (20) days of demand (containing all reasonable documentation evidencing such performance and payment by Tenant). Tenant may exercise the foregoing rights without waiving any other of its rights or releasing Landlord from any of its obligations under this Lease.

ARTICLE 10

MISCELLANEOUS

10.1

TITLES

The titles of the Articles are for convenience and are not to be considered in construing this Lease.

10.2	NOTICE OF LEASE

Concurrently with the execution of this Lease, both parties shall, at the request of either party, execute and deliver, after the Commencement Date, a short form of this Lease in the form attached hereto as Exhibit “G”. If this Lease is terminated before the Term expires, the parties will execute an instrument acknowledging the date of termination.

10.3	RELOCATION

Intentionally Deleted.

10.4	NOTICES FROM ONE PARTY TO THE OTHER

No notice, approval, consent requested or election required or permitted to be given or made pursuant to this Lease shall be effective unless the same is in writing. Communications shall be addressed, if to Landlord, at Landlord’s Address, with a copy to Xxxxxx X. Xxxxxxxxx, Esq., The Xxxxxxxxx Company, Xxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000, or at such other address as may have been specified by prior notice to Tenant and, if to Tenant, at Tenant’s Address, with a copy to Xxxxxxx Procter LLP, Exchange Place, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxx, Esq., or at such other place as may have been specified by prior notice to Landlord. Any communication so addressed shall be deemed duly served if mailed by registered or certified mail, return receipt requested, delivered by hand, or by overnight express service by a earner providing a receipt of delivery.

10.5	BIND AND INURE

The obligations of this Lease shall run with the land, and this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that the Landlord named herein and each successive owner of the Premises shall be released from all obligations hereunder arising following termination of such ownership and passing to the successor in ownership, and its successor shall be liable for all obligations of Landlord hereunder. Neither the Landlord named herein nor any successive owner of the Premises whether an individual, trust, a corporation or otherwise shall have any personal liability beyond their interest in the Building and the Lot, and the income, insurance and condemnation proceeds derived therefrom. Neither party shall be liable to the other party for consequential or punitive damages for a breach of any covenant of this Lease or otherwise, except as may apply with respect to holdover damages described in Section 6.1.16 of this Lease.

10.6	NO SURRENDER

The delivery of keys to any employees of Landlord or to Landlord’s agent or any employee thereof shall not operate as a termination of this Lease or a surrender of the Premises.

10.7	NO WAIVER, ETC.

The failure of Landlord or of Tenant to seek redress for violation of, or to insist upon the strict performance of any covenant or condition of this Lease or, with respect to such failure of Landlord, any of the Rules and Regulations referred to in Section 6.1.4, whether heretofore or hereafter adopted by Landlord, shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of Fixed Rent or additional rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach by Landlord, unless such waiver be in writing signed by Landlord. No consent or waiver, express or implied, by Landlord or Tenant to or of any breach of any agreement or duty shall be construed as a waiver or consent to or of any other breach of the same or any other agreement or duty.

10.8	NO ACCORD AND SATISFACTION

No acceptance by Landlord of a lesser sum than the Fixed Rent and additional rent then due shall be deemed to be other than on account of the earliest installment of such rent due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed as accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other remedy in this Lease provided.

10.9	CUMULATIVE REMEDIES

The specific remedies to which Landlord may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which it may be lawfully entitled in case of any breach or threatened breach by Tenant of any provisions of this Lease. In addition to the other remedies provided in this Lease, Landlord shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific performance of any such covenants, conditions or provisions.

10.10

PARTIAL INVALIDITY

If any term, clause, provision, covenant or condition contained in this Lease is adjudicated to be illegal or unenforceable, all other terms, clauses, provisions, covenants or conditions of this Lease shall remain in force and effect, and the term, clause, provision, covenant or condition held illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the parties.

10.11

LANDLORD’S RIGHT TO CURE

If Tenant shall at any time default, beyond applicable notice and cure periods, in the performance of any material obligation under this Lease, Landlord shall have the right, but shall

not be obligated, upon ten (10) days prior written notice to Tenant and for non material obligations upon thirty (30) days notice to Tenant (except in the event of an emergency where at least verbal notice will be given as soon as reasonably possible), to enter upon the Premises and to perform such obligation, notwithstanding the fact that no specific provision for such substituted performance by Landlord is made in this Lease with respect to such default. In performing such obligation, Landlord may make any payment of money or perform any other act. All reasonable sums so paid by Landlord (together with interest at the rate set forth in Section 4.3 hereof), and all necessary incidental costs and expenses in connection with the performance of any such acts by Landlord, shall be deemed to be additional rent under this Lease and shall be payable to Landlord immediately on demand. Landlord may exercise the foregoing rights without waiving any other of its rights or releasing Tenant from any of its obligations under this Lease.

10.12

ESTOPPEL CERTIFICATE

Tenant agrees on the Commencement Date, and from time to time thereafter, upon not less than twenty (20) days prior written request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing in substantially the form attached hereto as Exhibit “K” with such adjustments as are necessary to make the same accurate. Landlord agrees on the Commencement Date, and from time to time thereafter, upon not less than twenty (20) days prior written request by Tenant, to execute, acknowledge and deliver to Tenant a statement in writing in substantially the form attached hereto as Exhibit “K”.

10.13

WAIVER OF SUBROGATION AND CLAIMS

Any insurance carried by either party with respect to the Premises and property therein or occurrences thereon shall include a clause or endorsement denying to the insurer rights of subrogation against the other party to the extent rights have been waived by the insured prior to the occurrence of injury or loss. Each party, notwithstanding any provisions of this Lease to the contrary, hereby waives any rights of recovery against the other for injury or loss due to hazards covered by insurance containing such clause or endorsement to the extent of the indemnification received thereunder (or would have been covered had all insurance required hereunder been maintained).

10.14

BROKERAGE

Landlord and Tenant each represent to the other that they have dealt with no real estate brokers, finders, agents or salesmen in connection with this Lease, except Xxxxx & Xxxxx Company (collectively, the “Broker”). Each party agrees to hold the other party harmless from and against all claims for brokerage commissions, finder’s fees, or other compensation made by any other agent, broker, salesman or finder as a consequence of said party’s actions or dealings with any such agent, broker, salesman, or finder. Landlord agrees to pay a fee to the Broker pursuant to a separate agreement.

10.15

COVENANTS INDEPENDENT

Each provision in this Lease constitutes an independent covenant, enforceable separately from each other covenant set forth herein. To the extent any provision hereof or any application of any provision hereof may be declared unenforceable, such provision or application shall not affect any other provision hereof or other application of such provision. Tenant acknowledges and agrees that Tenant’s obligation to pay Fixed Rent and additional rent is independent of any and all obligations of Landlord hereunder, with the result that Tenant’s sole remedy for any alleged breach by Landlord of its obligation hereunder shall be to commence a judicial proceeding against Landlord seeking specific performance and/or damages.

10.16

ACCESS

Subject to the terms and provisions of this Lease and all laws applicable to the Premises, Tenant shall have twenty-four (24) hours, seven (7) days per week, fifty-two (52) weeks per year, access to the Premises.

10.17

ENTIRE AGREEMENT

This Lease contains the entire and only agreement between the parties as to the Premises, and no oral statements or representations or prior written matter not contained in this instrument shall have any force or effect. This Lease shall not be modified in any way except by a writing signed by both parties.

10.18

GOVERNING LAW

This Lease shall be governed by and construed and enforced in accordance with the laws and the Courts of the Commonwealth of Massachusetts.

10.19

ADDITIONAL REPRESENTATIONS

Landlord represents and warrants to Tenant as follows:

(a) that Landlord has the right, power and authority to enter into this Lease and grant Tenant quiet possession of the Premises and other rights set forth herein;

(b) that Landlord is the fee simple owner of the Lot and Building located thereon;

(c) that the Building (including the Tenant’s Work and the Premises) and the Lot (including all common areas) will, upon substantial completion of Tenant’s Work and issuance of all necessary permits and approvals required to be obtained from any and all necessary governmental agencies prior to occupancy of the Premises by Tenant, if necessary, including without limitation, a certificate of occupancy from the Town of Burlington, which allows Tenant to use and occupy the Premises as herein provided, comply with all dimensional, use, parking, loading and other zoning requirements of the Town of Burlington, and all applicable building codes and governmental requirements, including, without limitation, all ADA, local and state

requirements and regulations promulgated thereunder and other applicable laws and rules governing access to and use of facilities by people with disabilities, including the Massachusetts Architectural Access Board regulations and all environmental laws;

(d) that the Premises and common areas and all equipment and systems servicing such areas, shall be in good working order and repair as of the Commencement Date;

(e) that the Building has achieved a LEED Gold designation; and

(f) Landlord agrees to allow Tenant to use temporary space at another building known as 000 Xxxxxxx Xxxx and located in Burlington, MA owned by Landlord’s affiliate, at no charge to Tenant, until the Commencement Date. The terms and conditions of such occupancy shall be otherwise subject to the provisions of a mutually agreed upon form of Use and Occupancy Agreement executed by Landlord and Tenant.

ARTICLE 11

SECURITY

A security deposit in the amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) shall he delivered by Tenant to Landlord on or prior to the Commencement Date (the “Security”). Such Security shall be in the form of a Letter of Credit in substantially the form attached hereto as Exhibit “M”, and such Letter of Credit shall (a) name the Landlord as its beneficiary, (b) expire not less than one (1) year after the issuance thereof, and (e) be drawn on an FDIC-insured financial institution reasonably satisfactory to Landlord. Landlord agrees that GE Capital is an acceptable institution. Tenant shall, from time to time, as necessary, renew or replace or amend the Letter of Credit no fewer than twenty-five (25) banking days prior to the expiration date of the Letter of Credit then held by Landlord, and if Tenant fails to renew or replace or amend said Letter of Credit in the applicable amount by not later than twenty-five (25) banking days prior to expiry date of the Letter of Credit, Landlord may draw upon such Letter of Credit and hold the proceeds thereof in an account as Security, without interest, until Tenant provides to Landlord a replacement letter of credit complying with the requirements for the original Letter of Credit as set forth above. So long as there does not then exist an Event of Default, the amount of the required Security shall be reduced In accordance with the following schedule; (i) by $250,000.00 on the 1^st day of month twenty five (25) of the Term; and (ii) by an additional $200,000.00 on the l^st day of month thirty seven (37) of the Term. Thereafter, the Security shall be Three Hundred Thousand Dollars and 00/100 ($300,000.00). Landlord agrees to promptly return any existing Letter of Credit to Tenant upon Landlord’s receipt of a replacement Letter of Credit in such reduced amount required hereunder. In the event that Landlord fails to release any cash proceeds drawn from a Letter of Credit (if applicable) within five (5) business days following the required date (or its receipt of a replacement Letter of Credit conforming to the requirements hereunder), then Landlord shall be obligated to pay Tenant interest on any such amount at the interest rate set forth in Section 4.3 hereof, calculated on a daily basis.

Landlord may, from time to time, without prejudice to any other remedy, use all or a portion of the Security to cure any continuing Event of Default, including any uncured default in connection with any arrearages of Rent, costs incurred by Landlord to repair damage to the Premises caused by Tenant, and any costs incurred by Landlord to repair (other than normal wear and tear or damage caused by Landlord, its agents or employees) the Premises upon termination of this Lease. Following any such application of the Security, Tenant shall, within ten (10) business days after receipt of written demand, restore the Letter of Credit to the then applicable full amount (or post a cash Security, at Tenant’s option). Tenant shall not have the right to call upon Landlord to apply all or any part of the Security to cure any continuing Event of Default, but such use shall be solely in the discretion of Landlord. At the later of the termination of this Lease and the date Tenant surrenders the Premises to Landlord in accordance with this Lease, the balance of the Security, either cash or the Letter of Credit, as applicable, shall be returned to Tenant within thirty (30) business days of expiration of the Term and surrender of the Premises, whichever may be later. If Landlord transfers its interest in the Premises during the Term, Landlord shall assign the Security to the transferee, Landlord shall promptly notify Tenant of the assignment in advance and thereafter have no further liability for the return of the Security provided such transferee acknowledges receipt of the same in writing. If the Security is in the form of a Letter of Credit, Landlord shall have no further liability for the return of such Letter of Credit once the Letter of Credit has been appropriately assigned to the assignee, the assignee has assumed all of Landlord’s obligations under this Lease, and Landlord has notified Tenant, in writing, of both. Upon, any such delivery and assignment, Tenant hereby releases the then existing Landlord of any and all liability with respect to the Letter of Credit, its application and return, and Tenant agrees to look solely to such assignee or transferee. It is further understood that this provision shall also apply to subsequent assignees or transferees. Upon request by Tenant, Landlord shall provide Tenant with a copy of the assignment and assumption or other written documentation that was entered into to effectuate the transfer of the Letter of Credit and this Lease. Landlord shall not be required to segregate the Security from its other accounts or, except as otherwise specified herein, to pay interest thereon, as aforesaid.

In the event the Lease is assigned by Tenant, Tenant’s assignee may provide a replacement Letter of Credit and the original Letter of Credit held by Landlord shall be promptly returned to Tenant, provided that such Letter of Credit shall remain subject to all of the terms and conditions of this Article 11. Landlord shall deliver the original prior Letter of Credit to the prior tenant simultaneously upon the delivery of the replacement Letter of Credit by Tenant’s assignee or as soon as possible thereafter.

EXECUTED as a sealed instrument in two or more counterparts on the day and year first above written.


LANDLORD:

BURLINGTON OFFICE PARK V LIMITED PARTNERSHIP

By:		The Xxxxxxxxx Company, its General Partner

By:		/s/ Xxxxxx X. Xxxxxxxxx, Xx.
		Xxxxxx X. Xxxxxxxxx, Xx.
		President

TENANT:

ASCEND LEARNING LLC

By:		/s/ Xxxx Xxxxxxx
Name:		Xxxx Xxxxxxx
Title:		Treasurer

EXHIBIT “A”

Plan Showing Tenant’s Space

[SEE ATTACHED]

EXHIBIT “B”

Plan Showing the Location of Tenant’s Signage

[TO BE ATTACHED]

EXHIBIT “C”

PLANS AND SPECIFICATIONS OF TENANT’S WORK

BURLINGTON OFFICE PARK I

0 XXXX XXXXXX, XXXXXXXXXX, XX

[PLANS TO BE ATTACHED]

ASCEND/XXXXX & XXXXXXXX LEARNING

November 3, 2010

Revised January 26, 2011

Specifications of Tenant’s Work

Burlington Office Park I

0 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx

GWB Partitions

•

All interior sheetrock partitions to be 3 5/8”, 25 ga. metal studs 16” on center with one layer 5/8” GWB on each side to 6” above ceiling.

•

Demising, conference rooms, Data/IT room and board rooms partitions to be full height partitions (to deck above) consisting of 3 5/8”, 20 ga. metal studs, 16” on center with 31/2” thick batt insulation and one layer of 5/8” GWB on each side.

•

Blocking (3/4” plywood or other as needed) installed at Tenant specified locations to accommodate LCD’s, Tenant provided casework, etc.

•

Includes two (2) FRG round column covers.

Flooring

•

General flooring to be broadloom carpet. Carpet to be selected from the Patcraft “Just Beautiful” series, or equal.

•

Include Xxxxxxxxx standard Excellon VCT at break area, coffee room, copy/mail rooms, storage rooms and Data/IT room.

•

Includes an allowance of Five Thousand ($5,000.00) Dollars for premium flooring at the reception areas.

Millwork

•

Plastic laminate casework and plastic laminate counters with upper and lower cabinets at break room, break area and coffee room per plans. Island counter at break room to be

plastic laminate.

•

Millwork in board room on the fourth (4^th) floor as shown on plans with absolute black granite countertop.

Wall Treatment

•

Include a primer and two coats of latex paint on all interior sheetrock partitions.

•

Allow up to one (1) accent wall per enclosed office, conference and board room.

Ceiling

•

Ceiling height shall be 9’ 4” (except in areas where only 9’ can be achieved due to MEP constraints).

•

2x2x5/8 tegular edge ACT Xxxxxxxxx #1775 Dune tile in a silhouette XL 9/16” bolt-slot system with a 1/4” reveal in Manufacturers Standard White finish.

•

Sheetrock soffits in two (2) board rooms and two (2) reception areas.

Doors/Frames & Glazing

•

Enhance doors to be all glass 3’ x 8’ or a pair of 6’ x 8’ doors with concealed closures and GF 3000 Locknetics mag lock; hardware to be brushed stainless steel.

•

Interior doors and frames to be 3’0” x 7’0” wood factory finished door in aluminum frames with heavy duty latchset, 11/2 pair hinges, coat hook, and door stop.

•

Includes electric locks at secondary entrance doors and secure doors for four (4) locations.

•

Provide windows at all conference rooms as indicated on the plans; window to be the same height as the door frames.

•

Sidelights at offices (24” mm).

•

Glazing at conference rooms and board rooms per plans.

•

Include an electric lock at the Data/IT room.

Electrical Lighting

•

2x4 and 2x2 Recessed Indirect light fixtures to be the ovation series by Xxxxxx or approved equal. They are 2’x4’ and 2’x2’ recessed direct/indirect in manufacturers’ standard white finish, with EB5, T5 biax electronic instant start ballast and 32 wt8 lamps @ 4’ fixtures and 400 biax lamp @ the 2’ fixtures.

•

Lighting controls winch consist of programmable lighting relay control panels and occupancy sensors. Also included are cast aluminum L.E.D. exit signs. Emergency lights will be powered by emergency back-up generator.

•

Maintained lighting levels shall be in accordance with the Illuminating Engineering Society of North America 9^th Edition.

•

Provide recessed accent lighting (non-dimmable) at two (2) reception areas and medium conference rooms and pendent fixtures at board rooms and medium conference rooms.

Power

•

Distribution system panelboards, cables and circuit breakers shall be sized for present loads and future allowance. Future allowance shall include 20% spare/space for future feeder and branch circuit breakers in all panelboards.

•

Unless otherwise specially approved, all new wring will be concealed.

•

The minimum wire size for power will be #12 AWG.

•

Ground fault protection for receptacles will be provided in accordance with National Electric Code requirements.

•

All interior receptacles shall be commercial grade, white thermoplastic with white thermoplastic plates.

•

Power service to the Premises is based on 10-amps per 120 gross square feet for general office loads and miscellaneous power. One duplex wall receptacle shall be provided for every 500 square feet of open office area. Each enclosed office and conference rooms shall be provided with two duplex receptacles.

•

A single common ground or grounding bus shall be provided for the entire Premises.

•

Lighting control panels shall be provided for control of open area lighting in lobbies and open office spaces. System shall be provided with low voltage override switches to control zones for “after hours” use.

•

Occupancy sensors shall be provided for enclosed offices, conference rooms, etc., to achieve compliance with the automatic lighting shutoff requirements of the Massachusetts Energy Code.

•

All emergency life safety egress lighting in existing corridors will be connected to the existing base building life safety system.

•

Exit lights and emergency path of egress lighting will be provided in quantities in accordance with applicable codes.

•

Exit signs will be LED type.

•

New fire alarm devices shall be provided in compliance with all applicable codes and authorities having jurisdiction. New devices shall match building standard.

•

Smoke detectors will be installed in new tel/data rooms and electric rooms and will be connected to remote indicating lights located outside of the rooms.

•

Data/IT room will have plywood backboards and ground bar.

•

Fire alarm interface shall be provided to unlock all egress doors controlled by electric lock/strike during fire alarm notification evacuation, if required by code.

•

Includes fifteen (15) electrical and tele/data floor boxes.

•

Provide power feed to system furniture; one (1) circuit per four (4) cubicles.

•

Power wiring for security system serving card readers at one (1) location.

•

Includes ten (10) dedicated duplex wall outlets and nine (9) dedicated GFCI wall outlets.

•

Power wiring to projector, motorized screen and LCD at ten (10) locations.

•

Includes one (1) 200 AMP panel and transformer within the Data/IT room, this is a 75 kVA K-13 transformer feeding a 200A MCB 208/120V panel.

•

Includes an allowance of Twenty Five Thousand ($25,000.00) Dollars for electrical wiring and outlets in the Data/IT room.

•

All new transformers for office and Data/IT Room loads shall be K-13 rated.)

Mechanical

•

The HVAC system will be sized to maintain indoor conditions of 75° Fdb (no humidity control) under heating conditions. Use outdoor conditions as published in the 1997 ASHRAE Fundamentals Handbooks, 1% conditions for cooling and dehumidification design and 99.6% conditions for heating design.

•

A/C load based on 1.5 xxxxx per square foot lighting and 1 person per 143 square feet. 1 watt miscellaneous electric loads and 20 CFM per person.

•

Ductwork will be galvanized sheet metal, low and medium pressure, in accordance with SMACNA standards.

•

Interior partitioned offices shall have at least one temperature zone per ten offices.

•

Perimeter partitioned offices shall have at least one temperature zone per five (5) offices (depending on exposure).

•

Corner offices shall be provided with their own temperature control zone.

•

Conference rooms and board rooms shall be provided with their own temperature control zone.

•

Medium pressure supply shall be insulated. Also, if the ceiling is a return plenum all supply ductwork shall be insulated.

•

Controls will be DDC.

•

Testing and balancing of the system will be performed by a certified contractor.

•

Ten (10) tons of supplemental cooling and associated ductwork and controls for Data/IT room. (2) 5-ton units that operate 24/7.

•

Includes a 1” fiberglass duct lining 10’ down stream of all fan powered boxes.

Sprinklers

•

Provide a wet piped automatic fire protection system. Designed for light hazard coverage per NFPA #13.

•

Heads shall be concealed type and will be within 3” of center of tile.

Plumbing

•

Includes three (3) ADA compliant stainless steel kitchen sinks with all associated piping, faucet and point of use hot water heater.

•

Provide rough plumbing for tenant provided dishwasher.

•

Provide connection for tenant provided icemaker.

Telecommunications

•

Provide a plaster ring and pull string for each tel/data outlet.

•

Provide plywood backboards in the Data/IT room.

Qualifications/Exclusions

•

Specialty HVAC and power requirements not included unless noted above.

•

Improvement within the lab beyond the scope above is excluded (e.g. lab wiring, xxxx

duct, ups, cord drops are not included).

•

Tel/Data wiring and equipment is not included.

•

AV wiring and equipment not included.

•

Appliances not included.

•

Security System and associated wiring and hardware is not included.

•

Special lighting, unless specified above, is not included.

•

Board room millwork is not included, other than that shown on the fourth (4^th) floor plan.

•

Emergency generator other than for base building and emergency lighting not included.

•

System furniture and furnishings not included.

•

Wall talkers, tackboards, caulkboards and whiteboards not included

•

Projections screens not included.

•

Reception desk(s).

•

Specialty blinds and drapes are not included.

•

Window treatment is not included.

Tenant Change Items - (notice by February 15, 2011)

1.	Increase door heights throughout the Premises to 8’ and increase the glass at offices per SK-3 dated 1/26/11 and increase the height of conference room glass to 8’: Add $85,000

2.	Increase the quantity of full height partitions with insulation in accordance with SK-1 and SK-2 dated 1/26/11: Add $25,880

3.	Increase the quantity of variable air volume boxes for interior zones from ten (10) offices to five (5) offices: Add $11,000

4.	Provide power feeds to furniture based on one (1) circuit per two (2) cubicles: Add $13,000

5.	Increase millwork unit pricing:


Closet pole and single shelf:	$	47.00 per LF
Plastic laminate countertop:	$	86.00 per LF
Plastic laminate base cabinet with melamine interior:	$	185.00 per LF
Plastic laminate wall cabinet with melamine Interior:	$	152.00 per LF
2 Tier plastic laminate shelves:	$	116.00 per LF
Mail boxes 10ft minimum:	$	300.00 per LF
Standard absolute black granite:	$	385.00 per XX
Xxxx base cabinets:	$	208.00 per LF
Added adjustable shelving 5 melamine shelves high with adjustable brackets and wall standards:	$	250.00 per LF
Plastic laminate in lieu of melamine:	$	300.00 per XX
Xxxx (oak or maple) shelving Unit (sides and back) 8” tall x 12” deep:	$	385.00 per LF
Plastic Laminate shelving Unit (sides and back) 8’ tall x 12” deep:	$	352.00 per LF

6.	Additional electronic locks for card access at secondary doors: Add $600 per door

EXHIBIT “D”

LANDLORD’S SERVICES

CLEANING

Building Lobbies and Common Areas

Entrance doors and partition glass to be cleaned nightly. Wipe down frames and fixtures as needed.

Remove entrance mats and clean sand and dirt from pits and floors, clean and replace mats nightly.

Floors to be swept and washed nightly. Maintain a high luster yet-slip free finish following manufacturer’s specifications.

Walls to be dusted and spot cleaned as necessary, thoroughly washed twice a year.

Empty and wipe clean trash receptacles nightly including exterior smoker’s stations.

Dust, with treated cloth, security desks, window xxxxx, directory frames, planters, etc. nightly,

Clean reception desk nightly.

Vacuum all carpeted areas nightly, treat and spot clean stains, clean fully as needed.

Vinyl tile floors to be dry mopped nightly, spot washed with clean water as needed and spray buffed weekly.

10.

Sweep all stairwells in building nightly and keep in clean condition, washing same as necessary.

11.

Do all high dusting (not reached in nightly cleaning) quarterly, which includes the following:

Dust all pictures, frames, charts, graphs and similar wall hangings.

Dust exposed pipes, ventilation and air conditioning grilles, louvers, ducts, and high moldings, as needed.

12.

Clean and maintain luster on ornamental metal work as needed within arm’s reach.

13.

Dust all drapes and blinds as needed.

14.

Wash and disinfect drinking fountains using a non-scented disinfectant nightly. Polish all metal surfaces on the unit nightly.

15.

Strip and wax all resilient tile floors yearly,

16.

Shampoo all common area carpets at additional contract price at least once per year.

Lavatories - Nightly

Empty paper towel receptacles, bag and transport waste paper to designated area, disinfect receptacle and add new liner,

Empty sanitary napkin disposal receptacles, bag and transport waste, disinfect receptacle and add new liner.

Refill toilet tissue, hand towel dispensers, and sanitary napkin dispensers. Refill soap dispensers.

Scour, wash and disinfect all basins, bowls and urinals using non-scented disinfectants.

Wash, disinfect and wipe dry both sides of toilet seat using non-scented disinfectants.

Wash and polish all mirrors, counters, faucets, flushometers, bright work and enameled surfaces.

Spot clean toilet partitions, doors, door frames, walls, lights and light switches.

Remove all cobwebs from walls and ceilings.

Sweep and wash all floors, using proper non-scented disinfectants.

10.

Add water to floor drains weekly, disinfect monthly.

11.

Turn off lights.

Elevators - Nightly

Thoroughly clean walls.

Wipe clean control panels, door frames and mirrors.

Vacuum cab and floor door tracks.

Vacuum floors, shampoo as needed, wash stone floors.

Dust ceilings.

General Cleaning (Monday through Friday, Holidays excluded) Tenant areas nightly - unless noted.

Empty and clean all waste receptacles nightly and remove waste paper and waste materials, including folded paper boxes and cartons, to designated area. Replace liners as needed. Check and wash waste baskets if soiled.

Weekly hand dust with treated cloth and wipe clean or feather duster all accessible areas on furniture, desks, files, telephones, fixtures and window xxxxx.

Clean all glass table tops and tenant entrance glass. Spot clean glass partitions.

Spot clean all walls, door frames and light switches.

Wipe clean and polish all bright metal work as needed within arm’s reach.

All stone, ceramic, tile, marble, terrazzo and other un-waxed flooring to be swept, using approved dust-down preparation.

All wood, linoleum, rubber asphalt, vinyl and other similar type of floors to be swept, using approved dust-down preparation and mopped or cleaned with dry system cleaner nightly.

Reception areas, halls, high traffic areas to be vacuumed nightly.

Offices and cubicles to be spot vacuumed nightly. All areas to receive a complete vacuum weekly.

10.

Spot clean carpet stains.

11.

Wash and clean all water fountains and coolers nightly. Sinks and floors adjacent to sinks to be washed nightly.

12.

Dust blinds as needed.

13.

Vinyl tile floors to be dry mopped nightly, spot washed with clean water as needed and spray buffed every two weeks. The VCT is to be stripped and waxed one time annually.

14.

Turn off coffee pots each night and empty filters.

Showers

Wash shower walls and floors nightly, using proper non-scented disinfectants.

Clean and disinfect shower curtains weekly.

Scrub showers with bleach weekly.

Wash tile walls with proper grout cleaning compound as needed.

Add water to floor drains weekly, disinfect monthly.

Turn off lights.

Restock soap, daily.

Fitness Center Nightly

Thoroughly clean all exercise equipment.

Clean mirrors.

Vacuum carpet.

Wash rubber floor.

Restock paper towel dispenser nightly.

Cafeteria Dining Area / Kitchenettes Nightly

Clean all areas outside the cafeteria servery which shall include, the dining tables, chairs, tray return areas.

Wash flooring.

Empty and clean inside and outside all waste receptacles nightly and remove waste paper and waste materials, including folded paper boxes and cartons, to designated area. Replace liners as needed. Check and wash waste receptacles if soiled.

Wash all cafeteria / kitchenette tabletops and counters.

Arrange all tables and chairs according to floor plan.

Day Xxxxxx to police and clean as required in the following areas:

Reception and lobby seating

Entrances and lobbies

Cafeteria and kitchenettes

Fitness center

All toilets, showers and locker rooms

Outside entrances

Smokers Gazebo

Cleaning Products

Paper products such as toilet paper, paper towels, and vinyl trash liners will be supplied to the cleaning company. The cleaning company is to supply all solid and liquid cleaning products. The cleaning company is to supply all mops, buckets, vacuums, dusters, cloths etc.

When possible the cleaning company is to use “Green Products.”

II.	HEATING, VENTILATING AND AIR CONDITIONING

Heating, ventilation and air conditioning as required to provide reasonably comfortable temperatures for normal business day occupancy (except holidays), Monday through Friday, from 8:00 AM to 6:00 PM, and Saturday from 8:00 AM to 1:00 PM, if so requested by Tenant, by providing at least 24 hours notice. HVAC services beyond the aforesaid hours of operation can be made available to Tenant, if so requested by Tenant, by providing at least 24 hours prior written notice and at a cost of $50.00 per hour per unit.

Maintenance on any additional or special air conditioning equipment, will be performed by tenant or tenant’s contractor and the associated operating cost thereof, will be at Tenant’s expense.

III.

WATER

Hot water for lavatory and kitchen purposes and cold water for drinking, kitchen, lavatory and toilet purposes.

IV.

ELEVATORS

Elevators for the use of all tenants and the general public for access to and from all floors of the Building, programming of elevators (including, but not limited to, service elevators), shall be as Landlord from time to time determines best for the Building as a whole provided that there shall always be at least one functioning elevator serving the floor on which the Premises is located.

V.	SECURITY/ACCESS

Twenty-four (24) hour entry to the Building is available to Tenant and Tenant’s employees, after normal Building hours of operation. Tenant shall have unrestricted access to its Premises at all times, and not just during normal building hours and operation. The Building currently operates under a programmable key card system. Key card access is provided by a Software House system and can be programmed to enter the Premises at all times and the Building during off-hours. All security within the Premises shall be the responsibility of the Tenant and Tenant shall have the right to control its space, including the right to install additional security measures, and the right to select a vendor of its own choosing for installing a security system for the Premises.

VI.	BUILDING HOURS

Normal building hours of operation are Monday through Friday from 8:00 AM to 6:00 PM. The Building operates on Saturday from 8:00 AM to 1:00 PM, with access to the Building subject to the provisions as outlined in Item V contained herein. Except for the heating, ventilating and air conditioning system, which operates in accordance with the schedule as described in Item II contained herein, all Building systems, including but not limited to electrical, mechanical, elevator, fire safety and sprinkler, and water, operates 24 hours per day, 7 days per week, subject to repairs, failures and interrupted service beyond Landlord’s control.

VII.	CAFETERIA, VENDING AND PLUMBING INSTALLATIONS / INTERIOR LAVATORIES AND SHOWERS

Except as expressly set forth in this Exhibit, any space within the Premises to be used primarily for lunchroom or cafeteria operation shall be Tenant’s responsibility to keep clean and sanitary. Cafeteria, vending machines or refreshment service installations by Tenant must be approved by Landlord in writing, which approval shall not be unreasonably withheld, conditioned or delayed. All maintenance, repairs and additional cleaning necessitated by such installations shall be at Tenant’s expense.

Tenant is responsible for the maintenance and repair of plumbing fixtures and related equipment installed in the Premises for its exclusive use (such as in any coffee room).

VIII.

SIGNAGE

Tenant shall be entitled to the Building’s standard signage at the Building’s lobby directories, at Landlord’s cost. See also Section 6.1.20 regarding Tenant’s Signage.

IX.	ELECTRICITY

Tenant shall, in addition to paying Fixed Rent, pay for all electricity consumed in the Premises pursuant to a Landlord installed electric sub-meter or check meter to measure Tenant’s actual usage consumed within the Premises. Tenant shall reimburse Landlord for all costs of such electricity based on the rate charged by the utility company to the Landlord (without xxxx-up by Landlord) on a monthly basis (currently estimated at $1.35/RSF), specifically within thirty (30) days upon receipt of Landlord’s invoice therefore, which invoice shall identify amount of electrical usage for the Premises based on such meter or check meter for such month. Common area electricity and Building HVAC electric charges are included in the common area maintenance charges set forth in Section 4.2 of this Lease.

Tenant’s use of electrical service in the Premises shall not at any time exceed the capacity of any of the electrical conductors or other equipment in or otherwise serving the Premises or the Building standard, as hereinafter provided. To ensure that such capacity is not exceeded and to avert possible adverse effects upon the Building’s electrical system, Tenant shall not, without at least thirty (30) days prior written notice to and consent of Landlord in each instance, connect to the Building electric distribution system any fixtures, appliances or equipment which operates on a voltage of 277/480 volts nominal, or make any alteration or addition to the electric system of the Premises. In the event Tenant shall use (or request that it be allowed to use) electrical service in excess of that reasonably deemed by Landlord to be standard for the Building, Landlord may refuse to provide such excess usage or refuse to consent to such usage or may consent upon such

conditions as Landlord reasonably elects (including, but not limited to, the installation of utility service upgrades, sub-meters, air handlers or cooling units), and all such additional usage (except to the extent prohibited by law), installation and maintenance thereof shall be paid for by Tenant, as additional rent, upon Landlord’s demand, so long as no other tenants are receiving excess usage.

It is understood that the electrical generated service to the Premises may be furnished by one or more generators of electrical power and that the cost of electricity may be billed as a single charge or divided into and billed in a variety of categories, such as distribution charges, transmission charges, generation charges, congestion charges, capacity charges, public good charges, and other similar categories, and may also include a fee, commission or other charge by an unaffiliated broker, aggregator or other intermediary for obtaining or arranging the supply of generated electricity. Landlord shall have the right to select the generator of electricity to the Premises and to purchase generated electricity for the Premises through a broker, aggregator or other intermediary and/or buyers group or other group and to change the generator of electricity and/or manner of purchasing electricity from time to time.

As used herein, the term “generator of electricity” shall mean one or more companies (including, but not limited to, an electric utility, generator, independent or non-regulated company) that provides generated power to the Premises or to the Landlord to be provided to the Premises, as the case may be.

X.	OTHER UTILITIES

Tenant shall be responsible for the payment of all other utilities consumed, by Tenant in the Premises, including telephone, cable, other communications and gas (if applicable). Tenant shall pay for such consumption directly to the provider of such utilities.

EXHIBIT “E”

RULES AND REGULATIONS

The entrance, lobbies, passages, corridors, elevators and stairways shall not be encumbered or obstructed by Tenant, Tenant’s agents, servants, employees, licensees, and visitors, or be used by them for any purpose other than for ingress and egress to and from the Premises. The moving in or out of all safes, freight, furniture, or bulky matter of any description must take place during the hours which Landlord may reasonably determine from time to time. Landlord reserves the right to inspect all freight and bulky matter to be brought into the Building and to exclude from the Building all freight and bulky matter which violates any of these Rules and Regulations or the Lease of which these Rules and Regulations are a part.

No curtains, blinds, shades, screens, advertisements, or signs, or the like other than those furnished by Landlord, or otherwise permitted in this Lease, shall be attached to, hung in, affixed to, or used in connection with any window or door of the Premises or to any other area of the Premises (including without limitation on interior windows, walls and doors) that is visible from the outside of the Building or visible from any common area of the Building, without the prior written consent of the Landlord, which consent shall not be unreasonably withheld (taking into account such factors such as size, color and style and compatibility with the Building).

Tenant shall furnish Landlord with master keys or access devices for any security (door access) system provided and installed by Tenant, so long as the same has been approved by Landlord, which shall not be unreasonably withheld. Tenant shall be allowed to place additional locks or bolts upon doors and windows within the Premises, as long as Tenant provides master keys to Landlord as aforesaid as these additional locks and bolts could prove to be a hindrance to Landlord providing building services, such as cleaning and maintenance. Tenant must, upon the termination of its tenancy, remove all additional locks and bolts and restore all original door hardware and provide Landlord all Building keys either furnished to or otherwise procured by Tenant; and in the event of the loss of any keys so furnished, Tenant shall pay to Landlord the reasonable replacement cost thereof.

4.	Canvassing, soliciting and peddling in the Building, or on the Lot or in the Park if applicable, are prohibited, and Tenant shall cooperate to prevent the same.

5.	Tenant shall comply with all reasonably necessary security measures from time to time established by Landlord for the Building or Park, if any; however, the parties acknowledge that Landlord has no obligation to provide any security.

6.	Tenant agrees that there shall be no smoking allowed anywhere in the Premises or Building or within 50’ of any entrance to the Building.

7.	No animals, with the exception of “assistance animals” (e.g., seeing eye dogs), shall be brought into the Building by Tenant, Tenant’s agents, servants, employees, invitees, subtenants and assigns.

Users of the common fitness room or shower facilities within the Building shall only place a lock on a locker during the time they are using the fitness, locker mom and/or shower facilities. No overnight use of lockers is permitted and no locks are permitted on lockers except during workout. Also, no overnight storage of gym bags or like shall be permitted in the common fitness room or shower facilities.

9.	Bicycles shall be parked at the specific bicycle locations provided and shall not be permitted inside the Building.

EXHIBIT “P”

OPTION TO EXTEND

The Tenant has the option to extend this Lease for two (2) successive five (5) year terms each (each an “Extended Term” or collectively, the “Extended Terms”), the exercise of which shall automatically extend the Term of the Lease without the necessity of additional documentation. So long as there does not exist any continuing, uncured material default under the Lease beyond notice and cure periods at the time of exercise, the option to extend shall be deemed to have been exercised by Tenant’s written notification to Landlord that it elects to exercise its option to extend at least twelve (12) months but not more than eighteen (18) months prior to the end of the initial Term hereunder, or first Extended Term, as applicable. The Extended Terms shall be upon the same terms and conditions as are set forth in this Lease, including, without limitation, the Tenant’s obligations to pay Operating Cost Escalation as set forth in Section 4.2, except that, without the mutual agreement of the parties (i) there shall be no additional option to extend after the termination of the second Extended Term or the failure to exercise the first or second option, whichever shall first occur, and (ii) the annual Fixed Rent for the Extended Terms shall be equal to ninety-five percent (95%) of the then Market Rent (as defined in and determined in accordance with Exhibit “H”).

EXHIBIT “G”

NOTICE OF LEASE

In accordance with the provisions of Massachusetts General Laws (Ter. Ed.) Chapter 183, Section 4, as amended, notice is hereby given of a certain lease (hereinafter referred to as the “Lease”) dated as of January , 2011 by and between Burlington Office Park V Limited Partnership (hereinafter referred to as “Landlord”) and Ascend Learning LLC, a Delaware corporation (hereinafter referred to as “Tenant”).

W I T N E S S E T H:

1. The address of the Landlord is c/o The Xxxxxxxxx Company, Xxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.

2. The address of the Tenant is Five Wall Street, Burlington, Massachusetts 01803

3. The Lease was executed on January , 2011,

4. The Term of the Lease is a period of approximately ten (10) years beginning on the Commencement Date, determined in accordance with Section 3.2 of the Lease, currently scheduled for July 1, 2011.

5. Subject to the provisions of the Lease, the Tenant has the option to extend the Term of the Lease for two (2) additional five (5) year periods pursuant to Exhibit “F” of the Lease.

6. The demised premises is approximately 55,166 rentable square feet within a six-story building containing approximately 181,680 rentable square feet located at Five Wall Street, Burlington, Massachusetts 01803 (the “Building”), and the areas of which are the subject of all appurtenant rights and easements set forth in Section 2.1 of the Lease.

7. Tenant shall have a right of first offer and a right of first refusal to expand the premises, subject to the terms and conditions of the Lease.

8. The lot upon which the Building is located is described in Exhibit “A” attached hereto.

This Notice of Lease has been executed merely to give notice of the Lease, and all of the terms, conditions and covenants of which are incorporated herein by reference. The parties hereto do not intend this Notice of Lease to modify or amend the terms, conditions and covenants of the Lease which are incorporated herein by reference.

IN WITNESS WHEREOF, the parties hereto have duly executed this Notice of Lease as of this day of January, 2011.


LANDLORD:

BURLINGTON OFFICE PARK V LIMITED PARTNERSHIP

By:		The Xxxxxxxxx Company, General Partner

By:
		Xxxxxx X. Xxxxxxxxx, Xx.
		President

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS

On this day of January, 2011 before me, the undersigned notary public, personally appeared Xxxxxx X. Xxxxxxxxx, Xx., President of The Xxxxxxxxx Company, General Partner of Burlington Office Park V Limited Partnership, proved to me through satisfactory evidence of identification, which was personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached documents), and acknowledged to me that he signed it voluntarily for its stated purpose.

(official seal)

Notary Public


TENANT:

ASCEND LEARNING LLC

By:
Name:
Title:

COMMONWEALTH OF MASSACHUSETTS

COUNTY

On this day of January, 2011 before me, the undersigned notary public, personally appeared , the of Ascend Learning LLC, proved to me through satisfactory evidence of identification, which was ¨ photographic identification with signature issued by a federal or state governmental agency, ¨ oath or affirmation of a credible witness, ¨ personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached documents), and acknowledged to me that he/she signed it voluntarily for its stated purpose.

(official seat)

Notary Public

EXHIBIT “A” TO EXHIBIT “G”

Lot A shown on a plan entitled “Subdivision Plan of Land in Burlington, Massachusetts”, prepared for The Gutienez Company by Xxxxxxx Xxxxxx Brustlin, Inc., Scale 1” = 80 feet, dated November 16, 2001, revised January 29, 2002 and recorded with said Deeds, as Plan No. 650 of 2002. A portion of Lot A is registered land, being Xxxx 0 xxx 0 xxxxx xx Xxxx Xxxxx Xxxx 00000X.

EXHIBIT “H”

MARKET RENT

The market rent for the Premises shall be the then fair market rent for similar space in similar buildings (size, length of term, age and location) in the Town of Burlington, giving consideration to any concessions and allowances and applicable base years for operating costs, which such rent (the “Market Rent”) shall be determined as follows:

(a)

The Market Rent shall be proposed by Landlord within fifteen (15) business days of receipt of Tenant’s notice that it intends to exercise its option to extend the Term as specified in Exhibit “F” (the “Landlord’s Proposed Market Rent”), The Landlord’s Proposed Market Rent shall be the Market Rent unless Tenant notifies Landlord, within fifteen (15) business days of Tenant’s receipt of Landlord’s Proposed Market Rent, that Landlord’s Proposed Market Rent is not satisfactory to Tenant (“Tenant’s Rejection Notice”).

(b)	If Tenant delivers Tenant’s Rejection Notice and the Market Rent is not otherwise agreed upon by Landlord and Tenant within forty-five (45) days after Landlord’s receipt of Tenant’s Rejection Notice, then the Market Rent shall be determined by the following appraisal procedure:

Within five (5) business days of the expiration of said forty-five (45) day period, Tenant shall give notice to Landlord, which notice shall specify the name and address of the appraiser designated by Tenant (the “Tenant’s Appraisal Notice”). Landlord shall within five (5) business days after receipt of Tenant’s Appraisal Notice, notify Tenant of the name and address of the appraiser designated by Landlord. Such two appraisers shall, within twenty (20) business days after the designation of the second appraiser, make their determinations of the Market Rent in writing and give notice thereof to each other and to Landlord and Tenant. Such two (2) appraisers shall have twenty (20) business days after the receipt of notice of each other’s determination to confer with each other and to attempt to reach agreement as to the determination of the Market Rent. If such appraisers shall concur in such determination, they shall give notice thereof to Landlord and Tenant and such concurrence shall be final and binding upon Landlord and Tenant, If such appraisers shall fail to concur as to such determination within said twenty (20) business day period, they shall give notice thereof to Landlord and Tenant and shall immediately designate a third appraiser. If the two appraisers shall fail to agree upon the designation of such third appraiser within five (5) business days after said twenty (20) business day period, then they or either of them shall give notice of such failure to agree to Landlord and Tenant and if Landlord and Tenant fail to agree upon the selection of such third appraiser within five (5) business days after the appraisers) appointed by the parties give notice as aforesaid, then either party on behalf of both may apply to the American Arbitration Association or any successor thereto, or on his or her failure, refusal

or inability to act, to a court of competent jurisdiction, for the designation of such third appraiser.

All appraisers shall be independent real estate appraisers or consultants who shall have had at least seven (7) years continuous experience in the business of appraising real estate in the suburban Boston area.

The third appraiser shall conduct such hearings and investigations as he or she may deem appropriate and shall, within ten (10) business days after the date of his or her designation, make an independent determination of the Market Rent.

If none of the determinations of the appraisers varies from the mean of the determinations of the other appraisers by more than ten (10%) percent, the average of the determinations of the three (3) appraisers shall be the Market Rent for the Premises. If, on the other hand, the determination of any single appraiser varies from the average of the determinations of the other two (2) appraisers by more than ten (10%) percent, the average of the determination of the two (2) appraisers whose determinations are closest shall be the Market Rent.

The determination of the appraisers, as provided above, shall be conclusive upon the parties and shall have the same force and effect as a judgment made in a court of competent jurisdiction.

Each party shall pay fees, costs and expenses of the appraiser selected by it, its own counsel fees, and one-half (1/2) of all other expenses and fees of any such third appraisal.

EXHIBIT “I”

RIGHT-OF FIRST OFFER

In no event shall Landlord, during the Term hereunder, lease or decide to lease, agree to lease, or accept any offer to lease space that from time to time becomes available during the Term on floors 2, 4, 5 and 6 in the Building (each and collectively, the “ROFO Space”), unless Landlord first affords Tenant an opportunity to lease such area in accordance with the provisions of this Exhibit “I” and only after written notice to Tenant, provided that there does not then exist an uncured, continuing material Event Default under this Lease. Such notice shall contain Landlord’s summary of the essential terms and conditions that it desires to lease such space (i.e., description of such rentable area, the term and any options to extend or cancel the term, the annual fixed rent amounts, the basic operating cost provisions, and the allowances and other monetary concessions, if any) with respect to such rentable area (such summary shall herein in this Exhibit “I” be referred to as the “Offer”). Upon receipt of such notice and the Offer from Landlord, and as aforesaid, provided further that there does not then exist an uncured, continuing material Event of Default under this Lease, Tenant shall have a right to lease any such space on the terms set forth in the Offer by giving notice to Landlord to such effect within seven (7) business days after Tenant’s receipt of Landlord’s notice of such Offer. If such notice is not so timely given by Tenant, then Landlord shall be free to lease the subject space, or portion thereof, on the terms and conditions contained in the Offer, or substantially similar thereto (which for the purposes hereof, Landlord agrees shall not be more than a five percent (5%) decrease in the net effective rent thereunder ; otherwise, Landlord shall re-offer the space to Tenant, in accordance with the terms of this Exhibit “I”). The non-exercise by Tenant of its rights under this Exhibit “I” as to any particular ROFO Space described in a particular Offer by Landlord shall not be deemed to waive any of Tenant’s rights of first offer as to the remainder of ROFO Space that becomes available. This right of first offer shall be considered a reviving offer as to space that becomes available on floor four (4) of the Building only, but any failure to lease ROFO Space shall be deemed to waive any of Tenant’s rights of first offer as to the remainder of the ROFO Space (I.e. Tenant’s rights hereunder shall not revive), as this right shall be considered a one-time non-reviving right as to ROFO Space on floors 2, 5 and 6 in the Building. Notwithstanding the foregoing, except as otherwise provided in Exhibit “N”, Landlord and Tenant hereby acknowledge and agree that no additional notice shall be required from Landlord regarding the existing space located on the fourth (4^th) floor until such space has been leased to a third party and once again becomes available.

In the event that Tenant accepts Landlord’s offer to lease such ROFO Space described in the Offer, then Landlord and Tenant hereby agree that they shall enter into a mutually acceptable amendment to this Lease, specifying that such rentable area is a port of the Premises under this Lease and demising said premises to Tenant on the terms of the Offer with respect to such rentable space. Such amendment shall also contain other appropriate terms and provisions relating to the addition of such rentable space to this Lease or the leasing of such rentable space, as applicable, and as mutually agreed upon by the parties. The amendment shall be signed by Tenant within twenty (20) business days of receipt of the proposed agreement from the Landlord

in the form as hereinabove required, Landlord and Tenant hereby agreeing to use good faith efforts to finalize the form of amendment as quickly as possible and within said twenty (20) business day period. In no event shall the foregoing affect the Tenant’s obligation to lease such space once Tenant provides Landlord with its notice exercising its option hereunder as aforesaid, as the parties hereby agree that Tenant’s notice shall serve as Tenant’s acceptance of Landlord’s offer to lease such space and that the amendment merely serves as confirmation that the parties shall enter into a written amendment to memorialize the previously accepted terms.

Notwithstanding the foregoing, Tenant’s rights hereunder shall be subject and subordinate to the existing Right of First Refusal of Conversent Communications of Massachusetts, Inc., d/b/a One Communications to lease space that becomes available on the fourth (4th) floor of the Building.

EXHIBIT “J”

SUBORDINATION, NON-DISTURBANCE

AND ATTORNMENT AGREEMENT

SUBORDINATION. NON-DISTURBANCE AND ATTORNMENT AGREEMENT

This Subordination, Non-Disturbance and Attornment Agreement (this “Agreement”) dated January , 2011, is made among Ascend Learning LLC (“Tenant”). Burlington Office Park V Limited Partnership (“Landlord”), and Bank of America, “N.A., a national banking association (“Mortgagee”).

WHEREAS, Mortgagee Is the owner of a promissory note (herein, as it may have been or may be from time to time renewed, extended, amended, supplemented, or restated, called the “Note”) dated December 19, 2007, executed by Landlord payable to the order of Mortgagee, in the principal face amount of $30,316,000, bearing Interest and payable as therein provided, secured by, among other things, a Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (herein, as it may have been or may be from time to time renewed, extended, amended or supplemented, called the “Mortgage”), recorded or to be recorded in the land records of Middlesex South Registry of Deeds in Book 50488 Page 313, covering, among other property, the land (the “Land”) described in Exhibit “A” which is attached hereto and incorporated herein by reference, and the improvements (“Improvements”) thereon (such Land and Improvements being herein together called the “Property”);

WHEREAS, Tenant is the tenant under a lease from Landlord dated January , , 2011 (herein, as it may from time to time be renewed, extended, amended or supplemented, called the “Lease”), covering a portion of the Property (said portion being herein referred to as the “Premises”); and

WHEREAS, the term “Landlord” as used herein means the present landlord under the Lease or, if the landlord’s interest is transferred in any manner, the successors) or assign(s) occupying the position of landlord under the Lease at the time in question.

NOW, THEREFORE, in consideration of the mutual agreements herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Subordination. Tenant agrees and covenants that the Lease and the rights of Tenant thereunder, all of Tenant’s right, title and interest in and to the Premises , and any lease thereafter executed by Tenant covering any part of the Property, are and shall be subject, subordinate and inferior to (a) the lien of the Mortgage, and all right, title and interest of Mortgagee in the Property, and (b) all other security documents now or hereafter securing payment of any Indebtedness of the Landlord (or any prior landlord) to Mortgagee which cover or affect the Property (the “Security Documents”). This Agreement is not intended and shall not be construed to subordinate the Lease to any mortgage, deed of trust or other security document other than those referred to in the preceding sentence, securing the Indebtedness to Mortgagee.

2. Non-Disturbance. Mortgagee agrees that so long as the Lease is in full force and effect and Tenant is not in default in the payment of rent, additional rent or other payments or in the performance of any of the other terms, covenants or conditions of the Lease on Tenant’s part to be performed (beyond the period, if any, specified in the Lease within which Tenant may cure such default),

(a) Tenant’s possession of the Premises under the Lease shall not be disturbed or interfered with by Mortgagee in the exercise of any of its foreclosure rights under the Mortgage, including any conveyance in lieu of foreclosure,

(b) Mortgagee will not join Tenant as a party defendant for the purpose of terminating Tenant’s interest and estate under the Lease in any proceeding for foreclosure of the Mortgage, and

(c) that in the event of foreclosure of the Mortgage, whether by power of sale or by court action, or upon a transfer of the Property by conveyance in lieu of foreclosure, the Lease shall continue in full force and effect as a direct lease between Tenant and New Owner (as defined below) as provided, and subject to the limitations contained in, Section 3 below.

3. Attornment

(a) Tenant covenants and agrees that in the event of foreclosure of the Mortgage, whether by power of sale or by court action, or upon a transfer of the Property by conveyance in lieu of foreclosure (the purchaser at foreclosure or the transferee in lieu of foreclosure, including Mortgagee if it is such purchaser or transferee, being herein called “New Owner”), Tenant shall attorn to the New Owner as Tenant’s new landlord, and agrees that the Lease shall continue in full force and effect as a direct lease between Tenant and New Owner upon all of the terms, covenants, conditions and agreements set forth in the Lease and this Agreement, except for provisions which are impossible for New Owner to perform; provided, however, that in no event shall the New Owner be:

(i) liable for any act, omission, default, misrepresentation, or breach of warranty, of any previous landlord (including Landlord) or obligations accruing prior to New Owner’s actual ownership of the Property except with respect to acts, omissions or defaults which continue after New Owner’s actual ownership, which violate New Owner’s obligations as landlord under the Lease and are curable by New Owner but which New Owner fails to cure within a reasonable time after taking ownership of the Property;

(ii) subject to any offset, defense, claim or counterclaim which Tenant might be entitled to assert against any previous landlord (including Landlord) except to the extent expressly provided for in the Lease;

(iii) bound by any payment of rent, additional rent or other payments, made by Tenant to any previous landlord (including Landlord) for more than one (1) month in advance;

(iv) bound by any amendment, or modification of the Lease hereafter made (it being agreed that the exercise of any extension right contained in the Lease shall be binding on New Owner); or

(v) liable for any deposit that Tenant may have given to any previous landlord (including Landlord) which has not, as such, been transferred to New Owner.

(b) The provisions of this Agreement regarding attornment by Tenant shall be self-operative and effective without the necessity of execution of any new lease or other document on the part of any party hereto or the respective heirs, legal representatives, successors or assigns of any such party. Tenant agrees, however, to execute and deliver upon the request of New Owner, any instrument or certificate which in the reasonable judgment of New Owner may be necessary or appropriate to evidence

such attornment, including a new lease of the Premises on the same terms and conditions as the Lease for the unexpired term of the Lease.

4. Estoppel Certificate. Tenant agrees to execute and deliver from time to time, upon the request of Landlord or of any holder(s) of any of the indebtedness or obligations secured by the Mortgage, a certificate regarding the status of the Lease, consisting of statements, if true (or if not, specifying why not), (a) that the Lease is in full force and effect, (b) the date through which rentals have been paid, (c) the date of the commencement of the term of the Lease, (d) the nature of any amendments or modifications of the Lease, (e) to Tenant’s knowledge, no default exists under the Lease, (f) to Tenant’s knowledge, no setoffs, recoupments, estoppels, claims or counterclaims exist against Landlord, and (g) such other matters as may be reasonably requested to the extent the same are not able to be determined by reviewing the Lease.

5. Acknowledgment and Agreement by Tenant. Tenant acknowledges and agrees as follows:

(a) Tenant acknowledges that the Mortgage contains or will contain an assignment of rents and leases. Tenant hereby expressly consents to such assignment and agrees that such assignment shall, In nil respects, be superior to any interest Tenant has in the Lease of the Property, subject to the provisions of this Agreement. Tenant will not amend, alter or waive any provision of, or consent to the amendment, alteration or waiver of any provision of the Lease without the prior written consent of Mortgagee, which consent shall not be unreasonably withheld. Tenant shall not prepay any rents or other sums due under the lease for more than one (1) month in advance of the due date therefor. Tenant acknowledges that Mortgagee will rely upon this instrument in connection with such financing.

(b) Mortgagee, In making any disbursements to Landlord, is under no obligation or duty to oversee or direct the application of the proceeds of such disbursements, and such proceeds may be used by Landlord for purposes other than improvement of the Property.

(c) From and after the date hereof, in the event of any act or omission by Landlord which would give Tenant the right, either immediately or after the lapse of time, to terminate the Lease or to claim a partial or total eviction, Tenant will not exercise any such right (I) until it has given written notice of such act or omission to the Mortgagee, which may be concurrent with any notice to Landlord; and (ii) until the same period of time as is given to Landlord under the Lease to cure such act or omission shall have elapsed following such giving of notice to Mortgagee and following the time when Mortgagee shall have become entitled under the Mortgage to remedy the same, but in any event thirty (30) days after receipt of such notice or such longer period of time as may be necessary to cure or remedy such default, act, or omission including such period of time necessary to obtain possession of the Property and thereafter cure such default, net, or omission, during which period of time Mortgagee shall be required to cure or remedy such default, act or omission. It is specifically agreed that Tenant shall not, ns to Mortgagee, require cure of any such default which is personal to Landlord, and therefore not susceptible to cure by Mortgagee. The foregoing shall not apply to the termination rights of Tenant pursuant to Sections 3.2, 7.1 and 8.3 of the Lease.

(d) In the event that Mortgagee notifies Tenant of a default under the Mortgage, Note, or Security Documents and demands that Tenant pay its rent and all other sums due under the Lease directly to Mortgagee, Tenant shall honor such demand and pay the full amount of its rent and all other sums due under the Lease directly to Mortgagee, without offset (except as permitted under the Lease), or as otherwise required pursuant to such notice beginning with the payment next due (and not previously paid) after such notice of default, without inquiry as to whether a default actually exists under the

Mortgage, Security Documents or otherwise in connection with the Note, and notwithstanding any contrary instructions of or demands from Landlord.

(e) Tenant shall send a copy of any notice or statement under the Lease to Mortgagee at the same time such notice or statement is sent to Landlord if such notice or statement has a material impact on the economic terms, operating covenants or duration of the Lease.

(f) Tenant has no right or option of any nature whatsoever, whether pursuant to the Lease or otherwise, to purchase the Premises or the Property, or any portion thereof or any interest therein, and to the extent that Tenant has had, or hereafter acquires, any such right or option, same is hereby acknowledged to be subject and subordinate to the Mortgage and is hereby waived and released as against Mortgagee and New Owner.

(g) This Agreement satisfies any condition or requirement in the Lease relating to the granting of a non-disturbance agreement and Tenant waives any requirement to the contrary in the Lease.

(h) Mortgagee and any New Owner shall have no liability to Tenant or any other party for any conflict between the provisions of the Lease and the provisions of any other lease affecting the Property, including, but not limited to, any provisions relating to exclusive or non-conforming uses or rights, renewal options and options to expand, and in the event of such a conflict, Tenant shall have no right to cancel the Lease or take any other remedial action against Mortgagee or Now Owner, or against any other party for which Mortgagee or any New Owner would be liable.

(i) Notwithstanding anything to the contrary in the Lease or the Security Documents, neither Mortgagee nor any New Owner shall be liable for or bound by any Construction Related Obligation under the Lease, As used herein, a “Construction Related Obligation” means any obligation of Landlord under the Lease to make, pay for, or, reimburse Tenant for any alterations, demolition, or other improvements or work at the Property, including the Premises.

(j) Mortgagee and any New Owner shall have no obligation nor incur any liability with respect to any warranties of any nature whatsoever, whether pursuant to the Lease or otherwise, including, without limitation, any warranties respecting use, compliance with zoning, Landlord’s title, Landlord’s authority, habitability, fitness for purpose or possession.

(k) In the event that Mortgagee or any New Owner shall acquire title to the Premises or the Property, Mortgagee or such New Owner shall have no obligation, nor incur any liability, beyond Mortgagee’s or New Owner’s then equity interest, if any, in the Property or the Premises, and Tenant shall look exclusively to such equity interest of Mortgagee or New Owner, if any, for the payment and discharge of any obligations imposed upon Mortgagee or New Owner hereunder or under the Lease or For recovery of any judgment from Mortgagee, or New Owner, and in no event shall Mortgagee, New Owner, nor any of their respective officers, directors, shareholders, agents, representatives, servants, employees or partners ever be personally liable for such judgment.

(l) Tenant will not permit, the generation, treatment, storage or disposal of any hazardous substance as defined in the Lease on the Premises or Property except for such substances of a type and only in a quantity normally used in connection with the occupancy or operation of buildings (such as non-flammable cleaning fluids and supplies normally used in the day to day operation of first class establishments similar to the Improvements), which substances are being held, stored, and used in strict compliance with federal, state, and local laws. Tenant shall be solely responsible for and shall

reimburse and indemnify New Owner or Mortgagee, as applicable, for any loss, liability, claim or expense, including without limitation, cleanup and all other expenses, including, without limitation, legal fees that New Owner or Mortgagee, as applicable, may incur by reason of Tenant’s violation of the requirements of this Paragraph 5(l).

6. Acknowledgment and Agreement by Landlord. Landlord, as landlord under the Lease and grantor under the Mortgage, acknowledges and agrees for itself and its heirs, representatives, successors and assigns, that: (a) this Agreement does not constitute a waiver by Mortgagee of any of its rights under the Mortgage, Note, or Security Documents, or in any way release Landlord from its obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses of the Mortgage, Note, or Security Documents; (b) the provisions of the Mortgage, Note, or Security Documents remain in full force and effect and must be complied with by Landlord; and (c) Tenant is hereby authorized to pay its rent and all other sums due under the Lease directly to Mortgagee upon receipt of a notice as set forth in paragraph 5(d) above from Mortgagee and that Tenant is not obligated to inquire as to whether a default actually exists under the Mortgage, Security Documents or otherwise in connection with the Note. Landlord hereby releases and discharges Tenant of and from any liability to Landlord resulting from Tenant’s payment to Mortgagee in accordance with this Agreement and agrees to credit any amounts so paid to Tenant’s obligations under the Lease, Landlord represents and warrants to Mortgagee that a true and complete copy of the Lease has been delivered by Landlord to Mortgagee.

7. Lease Status. Landlord and Tenant certify to Mortgagee that neither Landlord nor Tenant has knowledge of any default on the part of the other under the Lease, that the Lease is bona fide and contains all of the agreements of the parties thereto with respect to the letting of the Premises and that all of the agreements and provisions therein contained are in full force and effect.

8. Notices. All notices, requests, consents, demands and other communications required or which any party desires to give hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered by personal delivery, by overnight courier with proof of delivery, or by registered or certified United States mail, postage prepaid, at the addresses specified at the end of this Agreement (unless changed by similar notice in writing given by the particular party whose address is to be changed). Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mall, as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of facsimile, upon receipt of a machine confirmation that the facsimile has been sent. Notwithstanding the foregoing, no notice of change of address shall be effective except upon receipt. This Paragraph 8 shall not be construed in any way to affect or impair any waiver of notice or demand provided in this Agreement or in the Lease or in any document evidencing, securing or pertaining to the loan evidenced by the Note or to require giving of notice or demand to or upon any person in any situation or for any reason.

9. Miscellaneous.

(a) This Agreement supersedes any inconsistent provision of the Lease as between Tenant and Mortgagee.

(b) Nothing contained in this Agreement shall be construed to derogate from or in any way impair, or affect the lien, security interest or provisions of the Mortgage, Note, or Security Documents.

(c) This Agreement shall inure to the benefit of the parties hereto, their respective successors and permitted assigns, and any New Owner, and its heirs, personal representatives, successors

and assigns; provided, however, that in the event of the assignment or transfer of the interest of Mortgagee, all obligations and liabilities of the assigning Mortgagee under this Agreement shall terminate, and thereupon all such obligations and liabilities shall be the responsibility of the party to whom Mortgagee’s interest is assigned or transferred; and provided further that the interest of Tenant under this Agreement may not be assigned or transferred without the prior written consent of Mortgagee.

(d) THIS AGREEMENT AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION SHALL BB GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND APPLICABLE UNITED STATES FEDERAL LAW EXCEPT ONLY TO THE EXTENT, IF ANY, THAT THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED NECESSARILY CONTROL.

(e) The words “herein”, “hereof, “hereunder” and other similar compounds of the word “here” as used in this Agreement refer to this entire Agreement and not to any particular section or provision.

(f) This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by the parties hereto or their respective successors in interest.

(g) If any provision of the Agreement shall be held to be invalid, Illegal, or unenforceable in any respect, such Invalidity, illegality or unenforceability shall not apply to or affect any other provision hereof, but this Agreement shall be construed as if such invalidity, illegality, or unenforceability did not exist.

[Signatures Appear on the following page]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and sealed as of the date first above written.


ADDRESS OF MORTGAGEE:	MORTGAGEE:

Bank of America 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000 MA1-225-02-04 Attention Xxxxxxx X. Xxxx, Xx. Vice President Senior Relationship Underwriter	Bank of America, N.A.
	By:
	Name:
	Title:

ADDRESS OF TENANT:	TENANT:

	Ascend Learning LLC
Ascend Learning LLC Five Xxxx Xxxxxx Xxxxxxxxxx, XX 00000 Attn: Xxxx Xxxxxxx, Treasurer and Controller	By:
	Name:
	Title:

ADDRESS OF LANDLORD:	LANDLORD:

The Xxxxxxxxx Company Burlington Office Park One Wall Street	Burlington Office Park V Limited Partnership
Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxxxxx, Xx., President	By:	The Xxxxxxxxx Company, its General Partner
	By:
		Xxxxxx X. Xxxxxxxxx, Xx., President

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss

On this day of January, 2011, before me, the undersigned notary public, personally appeared Xxxxxx X. Xxxxxxxxx, Xx., President of The Xxxxxxxxx Company, General Partner of Burlington Office Park V Limited Partnership, proved to me through satisfactory evidence of Identification, which was personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached document(s), and acknowledged to mc that he signed it voluntarily for its stated purposes.

(official seal)

Notary Public

My Commission Expires:

COMMONWEALTH OF MASSACHUSETTS

, ss

On this day of January, 2011, before me, the undersigned notary public, personally appeared , of Ascend Learning LLC, proved to me through satisfactory evidence of identification, ¨ photographic identification with signature Issued by a federal or state governmental agency, ¨ oath or affirmation of a credible witness, ¨ personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached document(s), and acknowledged to me that he/she signed It voluntarily for its stated purpose.

(official seal)

Notary Public

My Commission Expires:

XXXXXXXXXXXX XX XXXXXXXXXXXXX

,xx

Xx this day of January, 2011, before me, the undersigned notary public, personally appeared , the of Bank of America, N.A., proved to me through satisfactory evidence of identification, ¨ photographic identification with signature issued by a federal or state governmental agency, ¨ oath or .affirmation of a credible witness, ¨ personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached document(s), and acknowledged to me that he/she signed it voluntarily for its stated purpose.

(official seal)

Notary Public

My Commission Expires:

EXHIBIT “A”

LEGAL DESCRIPTION OF THE LAND

Lot A shown on a plan entitled “Subdivision Plan of Land in Burlington, Massachusetts”, prepared for The Xxxxxxxxx Company by Xxxxxxx Xxxxxx Brustlin, Inc., Scale 1” = 80 feet, dated November 16, 2001, revised January 29, 2002 and recorded with said Deeds, as Plan No. 650 of 2002. A portion of Lot A is registered land, being Xxxx 0 xxx 0 xxxxx xx Xxxx Xxxxx Xxxx 00000X.

EXHIBIT “K”

Tenant Estoppel Certificate

To:

Bank of America, NA.

Xxx Xxxxxxx Xxxxxx

XX0-000-00-00

Xxxxxx, XX 00000

Attention:

Relationship Administration

Commercial Real Estate Banking


Re:

1. The undersigned, as Tenant of approximately 55,166 square feet of space (the “Premises”) under that certain Lease dated January , 2011 (the “Lease”) made with Burlington Office Park V Limited Partnership, Landlord, covering space in Landlord’s building (the “Building”) in Middlesex County, Massachusetts, known as Five Wall Street, hereby certifies as follows:

(a) That attached hereto as Exhibit “A” is a true, correct and complete copy of the Lease, together with all amendments thereto;

(b) That the Lease is in full force and effect and has not been modified, supplemented or amended in any way except as set forth in Exhibit “A.” The interest of the undersigned in the Lease has not been assigned or encumbered;

(c) That the Lease, as amended as indicated in Exhibit “A.” represents the entire agreement between the parties as to said leasing, and that there are no other agreements, written or oral, which affect the occupancy of the Premises by the undersigned;

(d) That all insurance required of the undersigned under the Lease has been provided by the undersigned and all premiums have been paid;

(e) That the commencement date of the term of the Lease was ,

(f) That the expiration date of the term of the Lease is , 201 , including any presently exercised option or renewal term, and that the undersigned has no rights to renew, extend or cancel the Lease or to lease additional space in the Premises or the Building, except as expressly set forth in the Lease;

(g) That in addition to the Premises, the undersigned has the right to use or rent parking spaces in or near the Building during the term of the Lease;

(h) That the undersigned has no option or preferential right to purchase all or any part of the Premises (or the land or Building of which the Premises are a part), and has no right or interest with respect to the Premises or the Building other than as Tenant under the Lease;

(i) That all conditions of the Lease to be performed by Landlord and necessary to the enforceability of the Lease have been satisfied. On this date there are no existing defenses, offsets, claims or credits which the undersigned has against the enforcement of the Lease except for prepaid rent through (not to exceed one month);

(j) That all contributions required by the Lease to be paid by Landlord to date for improvements to the Premises have been paid in full. All improvements or work required under the Lease to be made by Landlord to date, if any, have been completed to the satisfaction of the undersigned. Charges for all labor and materials used or furnished in connection with improvements and/or alterations made for the account of the undersigned in the Building have been paid in full. The undersigned has accepted the Premises, subject to no conditions other than those set forth in the Lease. The undersigned has entered into occupancy of the Premises;

(k) That the annual minimum rent currently payable under the Lease is $ and such rent has been paid through ;

(l) That additional rent is payable under the Lease for Operating Costs. The base year for Operating Costs is 2011;

(m) That the undersigned has made no agreement with Landlord or any agent, representative or employee of Landlord concerning free rent, partial rent, rebate of rental payments or any other similar rent concession (except as expressly set forth in , a copy of which is attached hereto). No rents have been prepaid more than one (1) month in advance and full rental, including basic minimum rent, if any, has commenced to accrue;

(o) That there are no defaults by the undersigned or, to the knowledge of the undersigned, the Landlord under the Lease, and no event has occurred or situation exists that would, with the passage of time, constitute a default under the Lease;

(p) That the undersigned has paid to Landlord a security deposit in the amount of $ ;

(q) That the undersigned has all governmental permits, licenses and consents required for the activities and operations being conducted or to be conducted by it in or around the Building; and

(r) That as of this date there are no actions, whether voluntary or otherwise, pending against the undersigned or any guarantor of the Lease under the bankruptcy or insolvency laws of the United States or any stale thereof.

2. The undersigned represents and warrants that it has not used, generated, released, discharged, stored or disposed of any Hazardous Material (as defined in the Lease) on, under, in or about the Building or the land on which the Building is located, other than in the ordinary and commercially reasonable course of the business of the undersigned in compliance with all applicable laws. Except for any such legal and commercially reasonable use by the undersigned, the undersigned has no actual knowledge that any Hazardous Material is present or has been used, generated, released, discharged, stored or disposed of by any party, on, under, in or about such Building or land.

3. The undersigned acknowledges the light of Lender to rely upon the certifications and agreements in this Certificate in making a loan to Landlord. The undersigned hereby agrees to furnish Lender with such other and further estoppel certificates as Lender may reasonably request.

EXECUTED this day of , .




By:
Name:
Title:

EXHIBIT “L”-

FORM OF CHANGE ORDER

LANDLORD, TENANT, CONTRACTOR

CHANGE PROPOSAL FORM

Project:

Proposal No.

Date:

From: (Landlord)

To: (Contractor)

Copy to: (Tenant)

Entity

Acct.


Step 1:	Contractor:	Provide an estimate for the described work.
	Architect:	Develop proper plans and specifications to clarify described work.
	Description:	(List Drawings).


		Landlord:				Reason:


Step 2:		Contractor:		Proceed with work as definitive plans become available.


		Landlord:				Reason:


Step 3:		COST OF WORK


x.	Xxxxx cost of the work	$
	(see attached breakdown)
b.	Less value of standard tenant allowances	$( )
	(if applicable)
c.	Net additional cost of work	$
d.	Add construction fee and overhead 10%
	x Item c	$
e.	Total Cost of Work		$


Submitted by:
	Contractor	Date


Step 4:		The submitted COST OF WORK has been reviewed and is (not) approved.



Architect						Date


		DESIGN FEES (including mechanical, structural and electrical engineering)								$
		TOTAL COST OF PROPOSAL								$


Step 5:		FINAL ACTION


		a.		The Tenant hereby agrees to reimburse the Landlord the
				(Name of Firm)

Total Cost of Proposal shown in Step 4 above.



Authorized Tenant’s Representative				Date

This Bulletin is approved (rescinded) and the work above is (not) to be performed. Cost of this work shall be included in Change Order No. .



Landlord				Date

EXHIBIT “M”

FORM LETTER OF CREDIT

(THE ACTUAL FORM WILL DEPEND ON THE ISSUING BANK)


IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER:


DATE:			DELIVERY BY COURIER SERVICE

BENEFICIARY:			APPLICANT:

Burlington Office Park V Limited Partnership
c/o The Xxxxxxxxx Company
Xxx Xxxx Xxxxxx, Xxxxxxxxxx. XX 00000

AMOUNT:	USD	$	EXPIRY
DATE:

AT OUR COUNTERS IN SANTA CLARA, CALIFORNIA

LADIES AND GENTLEMEN:

WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OP CREDIT NO. IN YOUR FAVOR EFFECTIVE IMMEDIATELY, BY ORDER AND FOR THE ACCOUNT OF FOR A SUM OR SUMS NOT EXCEEDING A TOTAL OF (USD ) AVAILABLE BY YOUR DRAFT(S) AT SIGHT DRAWN ON US AND ACCOMPANIED BY THE FOLLOWING DOCUMENTS:

THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENTS THERETO, IF ANY.

A DATED STATEMENT FROM THE BENEFICIARY SIGNED BY AN AUTHORIZED OFFICER OR REPRESENTATIVE, FOLLOWED BY HIS/HER DESIGNATED TITLE, STATING THE FOLLOWING:

“REFERENCE IS HEREBY MADE TO THAT CERTAIN LEASE (THE “LEASE”) DATED , 2010 [INSERT LEASE DATE] BETWEEN BENEFICARY AS LANDLORD (THE “LANDLORD”) AND ASCEND LEARNING LLC AS TENANT (THE “TENANT”). I HEREBY CERTIFY THAT I AM AN AUTHORIZED REPRESENTATIVE OF LANDLORD AND FURTHER CERTIFY THAT:

(I)

EITHER (A) AN EVENT OF DEFAULT (AS DEFINED IN THE LEASE) HAS OCCURRED AND REMAINS UNCURED BEYOND THE APPLICABLE CURE PERIOD, OR (B) APPLICANT HAS NOT RENEWED, REPLACED OR AMENDED THE LETTER OF CREDIT BY NOT LATER THAN TWENTY-FIVE (25) BANKING DAYS PRIOR TO THE EXPIRATION THEREOF OR PROVIDED A CASH

DEPOSIT, IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE II OF THE LEASE; AND

(II)

THIS DRAWING IN THE AMOUNT OF USD (INSERT AMOUNT, NOT TO EXCEED AVAILABLE CREDIT) REPRESENTS FUNDS DUE TO LANDLORD UNDER AND PURSUANT TO THE LEASE.”

THIS LETTER OF CREDIT IS TRANSFERABLE BY THE ISSUING BANK ONE OR MORE TIMES BUT IN EACH INSTANCE TO A SINGLE BENEFICIARY AND ONLY IN ITS ENTIRETY UP TO THE THEN AVAILABLE AMOUNT IN FAVOR OF ANY NOMINATED TRANSFEREE ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATIONS, INCLUDING BUT NOT LIMITED TO THE REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINAL AMENDMENTS), IP ANY, MUST BE SURRENDERED TO US TOGETHER WITH OUR LETTER OF TRANSFER DOCUMENTATION (IN THE FORM OF EXHIBIT “A” ATTACHED HERETO) AND OUR TRANSFER FEE OF “A OP 1% OF THE TRANSFER AMOUNT (MINIMUM S250.00). ANY TRANSFER OF THIS LETTER OF CREDIT MAY NOT CHANGE THE PLACE OF EXPIRATION OF THE LETTER OF CREDIT FROM OUR ABOVE-SPECIFIED OFFICE. EACH TRANSFER SHALL BE EVIDENCED BY OUR ENDORSEMENT ON THE REVERSE OF THE ORIGINAL LETTER OF CREDIT AND WE SHALL FORWARD THE ORIGINAL LETTER OF CREDIT TO THE TRANSFEREE.

PARTIAL DRAWINGS ARE ALLOWED. THIS LETTER OP CREDIT MUST ACCOMPANY ANY DRAWINGS HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE BENEFICIARY UNLESS IT IS FULLY UTILIZED.

ALL DOCUMENTS INCLUDING DRAFT(S) MUST INDICATE THE NUMBER AND DATE OF THIS CREDIT.

THE LEASE AGREEMENT MENTIONED ABOVE IS FOR IDENTIFICATION PURPOSES ONLY AND IT IS NOT INTENDED THAT SAID LEASE AGREEMENT BE INCORPORATED HEREIN OR FORM PART OF THIS CREDIT.

ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OP THE ORIGINAL APPROPRIATE DOCUMENTS TO US ON A BUSINESS DAY BY OVERNIGHT COURIER MAIL AT OUR OFFICE (THE “BANK’S OFFICE”) AT: SILICON VALLEY BANK, 0000 XXXXXX XXXXX, XXXXX XXXXX, XX 00000, ATTENTION: STANDBY LETTER OF CREDIT NEGOTIATION SECTION.

WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONAFIDE HOLDERS THAT THE DRAFTS DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO THE DRAWEE, IF NEGOTIATED ON OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.

IF ANY INSTRUCTIONS ACCOMPANYING A DRAW1NG-UNDER THIS LETTER OF CREDIT REQUEST THAT PAYMENT IS TO BE MADE BY TRANSFER TO YOUR ACCOUNT WITH ANOTHER BANK, WE WILL ONLY EFFECT SUCH PAYMENT BY FED WIRE TO A U.S. REGULATED BANK, AND WE AND/OR

SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE INTENDED PAYEE.

THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1SP98, INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590 (“ISP98”).

VERY TRULY YOURS,

AUTHORIZED OFFICIAL

EXHIBIT C

FURNITURE INVENTORY

Metal laminate desks – 5

Wood desks – 3

7x8 workstations – 39

Lounge chairs – 2

Coffee tables – 2

Reception desk –1

Conference table –1

Collaboration table –1

Square meeting table – 1

Side/guest chairs –15

Task meeting chairs – 42

Couch – 1

Water filtration system – 1

Refrigerator –1

File cabinet –1

Document Metadata

Table of Contents

SUBLEASE AGREEMENT

Document Metadata