LEASE REFERENCE DATA PAGES

Exhibit 10.4

REFERENCE DATA PAGES

In this Lease the following terms shall have the meanings set forth below:


EXECUTION DATE:		October 28, 2013

LANDLORD:		Xxxxx 60 Realty LLC

LANDLORD’S INITIAL
ADDRESS FOR PAYMENT:		Intrum Corp., Manager
		Xxxxx 60 Realty LLC
		00 Xxxxx Xxxxxx, Xxxxx 000
		Newton, MA 02459

TENANT:		Cyber-Ark Software, Inc.

TENANT’S PRESENT
ADDRESS:		00 Xxxxx Xxxxxx, Xxxxx 00X
		Newton, MA 02459

PROPERTY:		The land with the on-site parking, Building and improvements now and hereafter situated thereon owned by Landlord located at and numbered as 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.

BUILDING:		The Building is the one story office building now and as from time to time located at the Property.

PREMISES:		The portion of the first floor of the Building depicted as Suite No. 103 on Exhibit A hereto annexed.

PREMISES RENTABLE
AREA:		Approximately 15,098 rentable square feet within the Premises.

PERMITTED USE:		For professional office use only as permitted by local zoning.

TERM COMMENCEMENT DATE:		The later of February 1, 2014, or five (5) days following Landlord’s written notice to Tenant that Landlord’s Work (as described on Exhibit B attached hereto) has been substantially completed as determined by Xxxxxxxx’s architect. In the event Landlord’s Work is not substantially complete by June 1, 2014, Tenant shall receive a rent abatement, beginning on the Rent Commencement Date, in an amount equal to fifty percent (50%) of the Yearly Fixed Rent on a per diem basis, for each day after June 1, 2014 that the Landlord’s Work is not substantially complete. Further, in the event the Landlord’s Work is not substantially complete on or before August 1, 2014, Tenant shall have the right to terminate the Lease by giving written notice to Landlord (“Termination Notice”) on or after August 1, 2014, of Tenant’s election to terminate, in which event the Lease shall terminate without recourse to the parties, unless the Landlord’s Work has been substantially completed prior to Landlord’s receipt of the Termination Notice.

RENT COMMENCEMENT DATE:		That date which is one hundred and fifty (150) days following the Term Commencement Date.


EXPIRATION DATE:		That date which is eight-four (84) months following the Rent Commencement Date (plus a portion of a month, if the term commences other than on the first day of a calendar month so that the term ends on the last day of a calendar month), the “Initial Term;” provided, however, if the Initial Term is extended as hereafter set forth, the Expiration Date shall be at 5:00 p.m. on the last day of the Extension Term then in effect.

EARLY ACCESS PERIOD:		Tenant shall have access to the Premises thirty (30) days prior to the Term Commencement Date for the purpose of installing wiring for its voice/data equipment provided such access does not interfere with Landlord’s completion of Landlord’s Work. Access during the Early Access Period shall otherwise be in accordance with the terms and conditions of this Lease, except that no Yearly Fixed Rent or Additional Rent shall be due or payable during the Early Access Period.



YEARLY FIXED RENT AND MONTHLY PAYMENT:	PERIOD	YEARLY FIXED RENT	MONTHLY PAYMENT
	First Lease Year	$ 352,498.56	$ 29,374.88
	Second Lease Year	$ 407,646.00	$ 33,970.50
	Third Lease Year	$ 415,194.96	$ 34,599.58
	Fourth Lease Year	$ 422,744.04	$ 35,228.67
	Fifth Lease Year	$ 430,293.00	$ 35,857.75
	Sixth Lease Year	$ 437,841.96	$ 36,486.83
	Seventh Lease Year	$ 445,391.04	$ 37,115.92



		Yearly Fixed Rent shall be payable monthly in advance in equal monthly installments (“Monthly Payment”) as set forth above, on the first day of each month beginning on the Rent Commencement Date. As used in this Lease, the term “Lease Year” shall mean the following: the First Lease Year shall commence on the Rent Commencement Date and shall end on the last day of the month that is twelve (12) months after the Rent Commencement Date; the Second Lease Year shall commence on the day after the end of the First Lease Year and continue for a consecutive twelve month period; and each Lease Year thereafter shall be a sequential, consecutive twelve (12) month period.

EXTENSION TERM YEARLY FIXED RENT:		Yearly Fixed Rent during the Extension Term shall be at “Market Rent” as set forth in Exhibit D entitled Extension Term Yearly Fixed Rent attached hereto.

PRO RATA SHARE:		The percentage that the Premises Rentable Area bears to the rentable area at the Property held for rental by Landlord. The Pro Rata share shall be determined by a fraction, the numerator of which shall be the Premises Rentable Area and the denominator of which shall be the total rentable area of the Building (the “Building Rentable Area”) which Xxxxxxxx’s architect has determined to be 32,463 square feet. Accordingly, Tenant’s Pro Rata Share shall be 46.51%.



SECURITY DEPOSIT:		$29,375.00.

EXTENSION TERM:		Provided Landlord has received written notice of Tenant’s intent to extend no later than nine (9) months prior to the end of the then current Term, Tenant may extend the Lease for two (2), successive periods of five (5) years each (herein collectively or individually called the “Extension Term”) with the first Extension Term (“First Extension Term”) commencing immediately after the Initial Term, and the second Extension Term (“Second Extension Term”) commencing immediately after the First Extension Term. Tenant’s right to extend shall be subject to the provisions set forth in Section 23 of this Lease.

BROKERS:		Landmark Real Estate Advisors, LLC and Boston Realty Advisors


EXHIBITS:
Rider:	Included X	Not included
Exhibit A:	The Premises
Exhibit A-1:	Tenant’s Layout Plan
Exhibit A-2	Parking Plan
Exhibit B:	Landlord’s Work
Exhibit C:	Not Applicable
Exhibit D:	Extension Term Yearly Fixed Rent
Guaranty:	Included	Not included X

LEASE TEXT

1.	The Premises and Common Areas and Facilities.

Landlord hereby leases the Premises to Tenant for the Term. To the extent applicable, Landlord excepts and reserves from the Premises for the benefit of Landlord and its other tenants the shaftways and other common elements serving other parts of the Building or the Property, as well as the right to maintain, use, repair and replace pipes, ducts, wires, meters and any other equipment, machinery, apparatus and fixtures located in or at the Premises and serving other parts of the Building or the Property. Unless subsequently altered by written notice to Tenant caused by a change in the Building Rentable Area, the Premises Rentable Area shall be as indicated on the Reference Data Pages. To the extent the Premises is benefited by interior common areas in the Building, the Premises Rentable Area may include an allocation of Building common area. Premises Rentable Area data is included only for the purpose of determining Pro Rata Share and not Yearly Fixed Rent. Landlord reserves the right to renovate and redecorate the Building exterior, lobby and common areas and to build upon the Property additional common areas and expand the Building provided Landlord takes reasonable action to reduce the impact thereof during construction and, upon completion, any such action does not curtail in any material adverse manner Tenant’s ability to conduct its business at the Premises. Tenant shall be entitled to use, in common with Landlord and other tenants at the Property and their employees and patrons, fifty-five (55) spaces within the parking areas at the Property for the transient, not overnight, parking of automobiles: and ten (10) of the foregoing spaces, in the locations as shown on Exhibit A-2, shall be designated for Tenant’s exclusive use. Landlord reserves the right to designate and locate separate tenant, patron, visitor and handicapped parking at the Property.

Term.

Unless sooner terminated as provided herein, the term of this Lease shall commence on the Term Commencement Date and terminate on the Expiration Date (the “Term” and/or “Lease Term”). If an Extension Term is set forth in the Reference Data Pages, the Term shall include the Extension Term if the Term is extended.

3.	Payment of Rent.

Tenant shall pay the Yearly Fixed Rent as set forth in the Reference Data Pages by Monthly Payments in advance, without setoff, offset or deduction, commencing on the Rent Commencement Date, and thereafter continuing on the first day of each month thereafter, and shall pay Additional Rent in the manner set forth herein. All rent and other payments shall be made to Landlord at Landlord’s Initial Address for Payment or at such other location and to such person as Landlord shall designate from time to time in writing. If the Rent Commencement Date and/or Term Commencement Date occurs on a day other than the first day of a month, the first Monthly Payment and Additional Rent, as applicable, shall be appropriately pro-rated for that month and added as Rent for the First Lease Year. If Tenant shall fail to pay any installment of Yearly Fixed Rent or Additional Rent within ten (10) days after the date due, Landlord shall be entitled to collect a charge equal to five (5%) percent of the amount due to cover Landlord’s administrative expense in handling late payments; provided, that with respect to the first such late payment in any consecutive 12-month period, no late payment shall be due if Tenant makes payment within one (1) business day after notice (which may be by telephone or e-mail) from Landlord. In addition, Tenant shall pay interest at the rate of one (1%) percent (the “Default Rate”) for each month or any fraction thereof on any Rent not paid within ten (10) days after the date due. The sending of invoices to Tenant on one or more occasions shall not require Landlord to continue that practice for Yearly Fixed Rent or on account of regular monthly installments of Additional Rent. The term “Rent” as used in this Lease shall include Yearly Fixed Rent, Additional Rent and all other sums and charges payable by Tenant hereunder.

4.	Security Deposit.

If a Security Deposit is required on the Reference Data Pages of this Lease, upon signing this Lease Tenant shall pay Landlord the Security Deposit which shall be held by Landlord as security for Tenant’s performance under this Lease. The Security Deposit shall be refunded to Tenant, without interest, within thirty (30) days after the termination of this Lease subject to Tenant’s satisfactory compliance with the conditions of this Lease and subject to deduction for payment of Tenant obligations not then fulfilled by Xxxxxx. During the Term, Landlord shall have the right to use all or any portion of the Security Deposit to pay or perform any obligations of Tenant which Tenant fails to pay or perform within the time periods required herein, and any amount so used by Landlord shall be replenished by Tenant upon seven (7) days notice to Tenant. Tenant may not use the Security Deposit to pay any of Tenant’s payment obligations, and Tenant shall not have the right to mortgage, transfer, assign or encumber the Security Deposit.

5.	Additional Rent.

Tenant shall pay the following as Additional Rent: (i) 100% of any and all costs and expenses, whether considered Operating Costs (as herein defined) or otherwise, attributable solely to the Premises, or to Tenant’s use, or resulting from the actions or inactions of Tenant or those acting by, through, or under Tenant (subject to limitations set forth in Section 15 hereof); (ii) the cost of utilities consumed within the Premises required to be paid by Tenant under Section 6 of this Lease; (iii) any increase in Real Estate Taxes (as herein defined) payable with respect to the Property, based upon Tenant’s Pro Rata Share, exceeding the Property Real Estate Taxes for the year ending June 30, 2015 (“Base Tax Year”); (iv) any increase in Operating Costs incurred by Landlord with respect to the Property and Building, based upon Tenant’s Pro Rata Share, exceeding the Operating Costs incurred by Landlord for the calendar year ending December 31, 2014 (“Base Operating Cost Year”); and (v) costs incurred by Landlord to repair items at the Property damaged by Xxxxxx’s use. For the purpose of determining Operating Costs for the Base Operating Cost Year, in the event that less than ninety-five (95%) percent of the Building is occupied, costs which would be increased by additional occupancy, as reasonably determined by Landlord, shall be extrapolated to reflect 95% occupancy.

If, as and when requested by Landlord and with each Monthly Payment, Tenant shall make such payments in advance as Landlord shall reasonably request to be sufficient to pay as and when due, all Additional Rent required by Section 5.A. hereof, and if Landlord does not request such advance payments Tenant shall be permitted to make estimated monthly payments on account of Additional Rent together with each Monthly Payment, with any adjustments paid or credited as applicable following Xxxxxxxx’s reconciliation of Additional Rent. Tenant shall pay Additional Rent to Landlord within ten (10) days after the date Landlord invoices Tenant for same, as adjusted for any amounts previously paid by Tenant for the period covered by the invoice.

“Operating Costs” shall mean Landlord’s annual costs incurred to maintain, operate, insure, manage, and repair the Property, including (a) on-site personnel costs incurred in the operation of the Property; (b) utility costs for Property common areas, including water and sewer, fuel and other energy for heating and cooling the Building, and electricity for common areas; (c) costs of insurance carried by Landlord relating to the Property, including, without limitation, fire, casualty, liability and other insurance coverages as Landlord reasonably determines to obtain; (d) costs of cleaning, repair, replacement and other work relating to the maintenance, repair and improvements to the Building, the Property, and common facilities serving the Building and the Property, (to the extent required by this Lease to be paid by Landlord and not otherwise reimbursed by Tenant); (e) costs to maintain and repair the parking areas at the Property; (f) cost of snow plowing, snow removal, sanding and landscaping; (g) costs to operate the Building fitness facility and other amenity areas (including without limitation equipment leases and/or finance charges), and (h) costs of all service contracts, management fees (calculated at market rates) and other customary maintenance and operating expenses applicable to the Property incurred by Landlord. With respect to Operating Costs, Xxxxxxxx agrees as follows: all included

expenses shall be at Landlord’s direct cost, without markup; to the extent Landlord’s personnel costs are included, they shall be pro-rated for that portion of time actually committed to the Property and its operation; management fees shall be compensation for supervisory services calculated at generally accepted commercial rates; capital costs for structural repairs, to repave the parking lot and/or to replace worn out or obsolete major equipment or facilities (collectively “Capital Repairs”), as distinguished from customary maintenance and repairs, shall be amortized over their respective useful life as reasonably determined by Landlord, such that the annual cost thereof does not exceed a total of $40,000.00; capital improvements (as distinguished from Capital Repairs) shall not be included; costs recovered in full from one or more tenants other than Tenant shall not be included; costs to demise and renovate interior space for tenants shall not be included; the cost of work and repairs covered by insurance proceeds paid under Landlord’s insurance then in force shall not be included; costs which solely benefit leased areas of the Property shall not be included unless the same or similar benefit is provided to the Premises; and costs to enforce Landlord’s rights and remedies against other tenants shall not be included. Furthermore, “Operating Costs” shall not include: expenses for any item or service which Tenant pays directly to a third party or separately pays to Landlord; leasing commissions; principal, interest and other expenses upon loans to Landlord or secured by a mortgage covering the Building or Property or a portion thereof; rent under any ground lease; salaries of executive officers of Landlord; depreciation claimed by Landlord for tax purposes; reserves; costs incurred due to the negligence or willful misconduct of the Landlord, its agents and employees; penalties, fines and other costs incurred due to violation by the Landlord of any lease or any laws and any interest or penalties attributable to late payment by Landlord of any of the Operating Costs; and costs and expenses of investigating, monitoring and remediating hazardous materials on, under or about the Building or Property.

“Real Estate Taxes” or “Taxes” shall mean all taxes, assessments, betterments, water or sewer entrance fees and charges, and all other charges, including charges for the use of municipal services if billed separately from other taxes, levied, assessed or imposed at any time by any governmental authority upon or against the land, the Building, and/or other improvements then comprising the Property. This definition of Real Estate Taxes is based upon the present system of real estate taxation in the Commonwealth of Massachusetts; if taxes upon rentals or any other basis shall be substituted, in whole or in part, for the present ad valorem real estate taxes, the term Real Estate Taxes shall be deemed changed to the extent to which there is such a substitution for the present ad valorem real estate taxes. Notwithstanding the foregoing, “Taxes” shall exclude (a) federal, state or local income, franchise, estate, conveyance or transfer taxes, and (b) interest and penalties assessed by reason of Landlord’s failure to pay such Taxes when due. Xxxxxxxx agrees, that if any special taxes or assessment shall be levied against the Building, to elect to pay such assessment over the longest period of time permitted by law. The term “fiscal year” shall mean July 1^st through June 30^th next following, or such other tax period as may be established by law for the payment of Real Estate Taxes.

Following the end of each calendar year during the Term, Landlord shall deliver to Tenant a statement (“Operating Statement”) of the amount of the Operating Costs for such calendar year and Tenant’s Pro-Rata Share thereof, pro-rated with respect to any partial calendar year included in the Term. Tenant shall pay Landlord within ten (10) days after the date Landlord invoices Tenant therefor, Additional Rent due from Tenant under subsection 5.A. above, less any amounts previously paid by Tenant for that period. Any overpayment by Tenant shall be applied to Additional Rent next payable or, after this Lease terminates, shall be reimbursed to Tenant. Tenant shall have the right to audit Xxxxxxxx’s books and records relating to any Operating Statement with respect to the period covered by such Operating Statement by delivering a notice of its intention to perform such audit to Landlord within sixty (60) days after Xxxxxx’s receipt of the Operating Statement. Tenant shall then have a period of one hundred twenty (120) days after delivery of that notice (the “Audit Period”) within which to perform the audit, and at Landlord’s request, Tenant shall provide a copy of such audit to Landlord. If, as a result of such audit, Xxxxxx believes that it is entitled to receive a refund of any Operating Costs paid by Tenant with respect to that year, Tenant shall deliver to Landlord, no later than ten (10) days after receipt of

the audit (but not later than the expiration of the Audit Period), a notice thereof, together with a copy of such audit and a statement of the grounds for, and the amount of, such proposed refund. If the audit indicates that Xxxxxx has overpaid Tenant’s Pro Rata Share of Operating Costs, then Tenant shall be entitled to receive a refund from Landlord in the amount of such overpayment within thirty (30) days after Xxxxxxxx’s receipt of such notice, or if Landlord fails to timely pay such refund, and the Lease has not then expired, Tenant shall be entitled to credit the amount of such overpayment against Additional Rent next becoming due under this Lease. If the audit indicates that Tenant has underpaid the amount of Tenant’s Pro Rata Share of the Operating Costs for such period, then Tenant shall pay the amount of such underpayment to Landlord within thirty (30) days after receipt of such audit. The cost of any such audit shall be paid by Tenant, except that, if it is established that the Pro Rata Share of Operating Costs paid by Tenant for the applicable year was overstated by more than five (5%) percent, the reasonable out-of-pocket cost of such audit paid to a third party other than an employee of Tenant, up to a maximum of Three Thousand ($3,000.00) Dollars, shall be paid or reimbursed to Tenant by Landlord. Any audit shall be performed by either (a) Tenant’s regular employees or (b) a reputable certified public accountant whose compensation is not, directly or indirectly, contingent in whole or in part on the results of the audit. If Landlord determines that an Operating Statement previously furnished by Landlord was in error, Landlord may furnish a corrective or supplemental Operating Statement to Tenant within one (1) year after the original Operating Statement was furnished, and if such corrective or supplemental Operating Statement results in increased Additional Rent, the Audit Period for the year covered by such report shall be extended for six (6) months after Landlord furnishes the corrective or supplemental Operating Statement.

6.	Electricity/Utilities.

Beginning on the Term Commencement Date, Tenant shall pay for electricity consumed within the Premises for interior lighting, electric outlets and other customary office electric consumption (“Customary Office Usage”), which usage shall be separately metered. In addition, if Tenant installs additional computer servers or other specialized equipment and systems (“Special Systems”), including, without limitation, any Specialty HVAC (as defined in Section 10 hereof) serving any separately designated rooms or areas (such as computer/LAN rooms) where Specialty Systems are situated (“Specialty Areas”) which would increase Tenant’s electric or other utility consumption in any material respect, then electric and other utility consumption for such Special Systems or Specialty Areas shall be at additional cost to Tenant (either directly, if separately submetered, or based on an equitable allocation, if not separately metered). Tenant shall also be responsible for the cost of after-hours HVAC and other utility usage charges, without any cost markup from Landlord, and which usage shall be separately submetered by Landlord or otherwise proportionately charged by Landlord. Tenant shall pay all such charges for electricity and other utilities within ten (10) days after being invoiced therefor by Landlord. Landlord shall have no obligation to provide utilities other than as presently supplied and via facilities supplied either by the municipality in which the Property is located or by local electric service, as may in the ordinary course be modified or replaced by third party providers. In the event Tenant requires additional electric service or other utilities, the installation and maintenance thereof shall be Tenant’s sole obligation, which installation shall be subject to the written consent of Landlord, which consent shall not be unreasonably withheld or delayed, provided all such work shall be performed in accordance with the provisions of Section 11 hereof. Tenant agrees that in no event shall Landlord be liable for any interruption or delay in providing utilities, facilities, or equipment or other services except if caused by Landlord’s gross negligence or willful misconduct.

7.	Use of Leased Premises.

Tenant shall use the Premises only for the Permitted Use and for no other purpose or use. Tenant acknowledges that Landlord’s reasonable control of uses under leases and tenancies at the Property is important to maintain the professional quality and attraction of the Property to existing, future and potential tenants.

8.	Compliance with Laws.

Tenant agrees that no trade or occupation shall be conducted at the Premises or use made thereof which may be unlawful, improper, noisy or offensive to other tenants and their patrons, or contrary to municipal by-law or ordinance, or may unduly tax the capacity of the Building structure or systems. Tenant shall comply with all state, federal and municipal laws, including, without limitation, all building, zoning, health, fire and safety ordinances, by-laws, codes, rules and regulations applicable to the Premises and the operation of Tenant’s business at the Premises (collectively “Applicable Laws”); provided that Tenant shall not be obligated to make any changes to the Building (other than to the Premises), and shall not be responsible for any structural changes to the Premises, unless, in either case, such changes to the Building or Premises are required on account of any change of use of the Premises or Tenant’s Work to the Premises (in all events any such change in use and/or Tenant’s Work remaining subject to Xxxxxxxx’s approval pursuant to the terms set forth in this Lease). Tenant shall, at Tenant’s sole cost and expense, obtain and maintain in full force and effect during the Term, all licenses, permits and other authorizations required under Applicable Laws to enable Tenant to operate at the Premises for the Permitted Use, except that Landlord shall be responsible for obtaining the Certificate of Occupancy for the Premises, subject, however, to any delay in obtaining the Certificate of Occupancy caused by Xxxxxx’s delay in completing any work to be performed by Xxxxxx and/or installing any of Tenant’s furniture, fixtures and equipment.

9.	Insurance.

Tenant shall not permit any use of the Premises which will make voidable any insurance on the Building, the Property or on the contents of the Building, or which shall be contrary to any law or regulation from time to time established by the New England Fire Insurance Rating Association, or any similar body succeeding to its powers. Tenant shall on demand reimburse Landlord for any and all additional insurance costs caused by the Permitted Use or any other Tenant’s use of the Premises.

10.	Maintenance.

Xxxxxx’s Obligations. Except to the extent required to be performed by Landlord pursuant to Section 10.B. below, Tenant shall be responsible at its cost to keep clean and maintain in good condition, the Premises interior and to maintain, repair and replace, as necessary, all Special Systems and other systems, fixtures and equipment installed by Tenant and/or serving only the Premises, reasonable wear and damage by insured casualty only excepted, and whenever necessary, to replace Premises glass damaged by Tenant or damaged on account of Tenant’s use. Tenant’s maintenance of the Premises shall include, without limitation, replacement of light bulbs, paint and carpeting within the Premises, and maintenance, repair and replacement of lighting and other electrical fixtures, kitchen and other plumbing fixtures, if any, within the Premises, Premises doors, locks and windows, and any and all facilities and utilities installed by Tenant and/or serving only the Premises, such as telephone and computer systems, cables and wires and all lines, wires, pipes and ductwork serving Tenant’s Special Systems and/or Special HVAC. Notwithstanding anything set forth herein, in the event Tenant requires any additional or upgraded heating, ventilation and air conditioning (“HVAC”) system, Tenant shall be responsible for installation thereof in accordance with Section 11, and shall be responsible to maintain in good operating condition, and to repair and replace as necessary any such additional or upgraded HVAC systems, including any such systems serving any Specialty Areas and/or Tenant’s local area network, computer systems and other Special Systems, and any other Tenant fixtures or equipment at the Premises which require heating, ventilation or air conditioning exceeding that required for customary office use (“Specialty HVAC”).

Except for Premises Punch-List Items, as described in Exhibit B, which are to be completed after the Term Commencement Date, Tenant acknowledges by taking occupancy of the Premises that on the Term Commencement Date the Premises are then in good order and the glass whole. Tenant shall not permit the Premises to be overloaded, damaged, stripped, or defaced, nor suffer any waste. Tenant shall not erect any sign on the Building or otherwise at the Property (including

interior signage visible from outside the Premises), except in accordance with Section 25 hereof. Tenant shall use and conduct Tenant’s business at the Premises in such a manner as to assure that no water, noise, fumes, odor or any other condition escapes or is emitted from the Premises that is reasonably asserted to be objectionable by Landlord or other tenants, or which materially interferes with or in any material manner causes damage or nuisance to or upon the Property or any abutting tenant space or common area. The cost to repair damage caused by Tenant, Tenant’s employees, contractors, patrons, guests or invitees and others acting by, through or under Tenant (“Tenant Parties”) to the Premises or to other tenant property, the Building and the Property shall be borne by Tenant (subject to limitations set forth in Section 15 hereof). Tenant shall be responsible for emptying, transporting, disposing of, treating, or otherwise dealing with any hazardous, controlled or regulated materials or waste stored or used by Tenant or its guests, employees, invitees, contractors, or agents at the Premises, all of which shall be performed in strict compliance with Applicable Laws.

Landlord’s Obligations. Except for repairs caused by Xxxxxx’s misuse (including for this purpose misuse by any Tenant Parties) and except for repairs, maintenance and replacement otherwise required by this Lease to be paid and/or performed by Tenant, Landlord agrees to (i) maintain the structure and roof of the Building together with common areas and facilities and systems serving the Property, including Property HVAC Systems and common plumbing and electrical systems to the entry point to Tenant’s Premises in reasonably good and serviceable condition, more specifically in the same condition as it is at the Term Commencement Date or as it may be put during the Term, reasonable wear and tear, damage by fire and other casualty excepted; (ii) provide heating and cooling to the Premises to maintain it generally to a reasonable temperature that is customarily provided in similar multi-tenant office buildings in the suburban Boston area in which the Property is located during the hours of 8:00 a.m. – 6:00 p.m. on Monday through Friday and 8:00 a.m. – 12:00 p.m. on Saturdays of each week (holidays excluded); (iii) clean the Premises interior by vacuuming carpets, dusting hard surface floors, and emptying normal office refuse from wastebaskets and cleaning common restrooms and restocking common restroom supplies on Monday through Friday of each week (holidays excluded) during the Term; (iv) keep driveways, walkways and parking areas free of snow, ice and other debris and maintain landscaped areas; (v) furnish hot and cold water to Tenant’s sink(s) in the Premises and sanitary sewer service to the common restrooms in the Building; (vi) maintain, repair and replace, as necessary, all electric lines and pipes, ductwork and plumbing lines within the walls, ceiling and floors of the Building to the point of attachment to Tenant’s electric fixtures and plumbing fixtures (including faucets, sinks, and plumbed appliances, as applicable), except that Tenant shall be responsible for such electric and plumbing lines, pipes and ductwork serving any Special Systems and/or Specialty HVAC; and (vii) subject to Section 6 hereof, furnish electric current to overhead lighting and convenience outlets in the Premises. As used herein, the term “Property HVAC Systems” shall mean the HVAC systems servicing the Building, including the Premises, but excluding the Specialty HVAC, if any, and excluding HVAC systems required to be maintained by other tenants at the Property. Landlord shall be given reasonable additional time to perform its agreements under this Lease to the extent third parties contracted for in good xxxxx xxxxx or fail to perform. In no event shall Landlord be required to spend in connection with its repair of insured casualty losses or restoration of eminent domain takings more than the amount of insurance proceeds or taking awards actually received. Landlord shall not be required to restore or replace any alterations which Tenant is, by the terms of this Lease, either entitled to, or may be required to remove upon expiration or early termination of this Lease, and in no event shall Landlord be required to restore or replace any of Tenant’s fixtures or personal property. Landlord shall not be liable for any inconvenience or annoyance to Tenant for injury to the business of Tenant resulting in any way from a taking, fire damage or casualty or occasioned by the repair thereof.

11.	Alterations - Additions.

Tenant shall not make any structural alterations or additions to the Premises, but may make non-structural alterations provided plans therefor prepared and stamped by a licensed architect and/or applicable engineer shall be submitted to Landlord and Landlord consents thereto in writing, which consent for alterations shall not be unreasonably withheld or delayed provided it does not affect the mechanical systems of the Building, or any other tenant space , or the exterior (including windows) of the Building, and does not detract from the continuing utility and structural integrity of the Building or the Property. Xxxxxxxx’s consent shall not be required for alterations of a purely cosmetic nature (e.g. painting, carpeting, etc.) so long as Tenant provides not less than ten (10) business days notice to Landlord and otherwise complies with the provisions of this Section 11. All permitted alterations shall be at Tenant’s sole expense, shall comply with all applicable Codes and Ordinances and be first class using new and appropriate materials. Tenant shall not permit any mechanic’s or similar lien to be placed upon the Premises or the Property for labor or materials furnished to Tenant or claiming to have been furnished to Tenant in connection with work of any character performed or claimed to have been performed at the direction of Tenant, and Tenant shall cause any such lien to be released of record within seven (7) days without cost to Landlord. All fixtures, alterations and improvements made by Tenant to or at the Premises shall become the property of Landlord at the termination of Tenant’s occupancy or, if requested by Landlord, shall be removed by Tenant at Tenant’s cost and the Premises restored at the end of Tenant’s occupancy. Tenant shall indemnify Landlord and hold it harmless for all loss, cost, damage and expense, including without limitation, attorneys’ fees incurred by Landlord resulting from or relating to Tenant’s alterations and additions.

12.	Assignment - Subleasing.

Tenant shall not assign, sublet or otherwise license the whole or any part or use of the Premises nor otherwise permit the use or occupancy of all or any of the Premises by other than the Tenant signing this Lease without Landlord’s prior written consent, which consent shall be determined consistent with the Permitted Use and based upon Landlord’s determination of the business plan, adequacy of financial condition and clear business history of the proposed assignee, sublessee, licensee or user. In the event of a proposed assignment, financial statements, supporting data and credit references of the proposed assignee and its majority principals requested by Landlord shall be delivered to Landlord, and Landlord will not unreasonably withhold, condition or delay its consent provided, however, Landlord may withhold its consent for reasonable cause or if the proposed assignee’s creditworthiness, financial condition or business history is not reasonably satisfactory to Landlord, or if the proposed assignment, subletting or licensing is otherwise not in compliance with the terms of this Section 12. Notwithstanding such consent, Tenant shall remain liable to Landlord for the payment of all rent and for the full performance of all agreements, covenants and conditions of this Lease required of Tenant. Transfer of more than 49% of the ownership or control of Tenant’s business shall constitute an assignment. No assignment or subleasing shall be permitted unless the Yearly Fixed Rent to be paid by the proposed assignee or sublessee is at least equal to the Yearly Fixed Rent payable by Tenant to Landlord hereunder, except that Tenant may allow a customary then market rental concession not exceeding three (3) months. Notwithstanding the foregoing, at Tenant’s request, so long as Landlord does not then have available comparable size space (within fifteen percent (15%) more or less of the space proposed to be sublet) in the Building, the proposed sublet Yearly Fixed Rent will be not less than Twenty-Four ($24,00) Dollars per square foot (provided Tenant may allow a customary then market rental concession, not exceeding three (3) months if the sublease is for a period less than four (4) years, and not exceeding six (6) months if the sublease is for a period in excess of four (4) years). In the event of an assignment or subleasing, fifty (50%) percent of the excess of the rent and other compensation collectible by Tenant over the sum of (i) the Yearly Fixed Rent and Additional Rent due from Tenant under this Lease, and (ii) the reasonable expenses of Tenant in connection with said assignment or subleasing (including brokerage fees, legal fees, improvement costs and/or allowances and review fees/expenses payable to Landlord) amortized over the term of the assignment or sublease, shall be remitted to Landlord as Additional Rent as and when first received by Xxxxxx; and, to the extent a sublease is for less than all the Premises,

then the foregoing determination shall be based on a proportional square foot calculation by Landlord. Tenant shall not solicit any other tenant or occupant in the Building or their affiliates (“Building Occupant”) for the letting of all or any portion of the Premises as a sublessee, assignee or otherwise, provided, however, in the event a Building Occupant approaches Tenant for the purpose of subletting all or any portion of the Premises (the “Sublease Space”), Tenant shall immediately notify Landlord of the Building Occupant’s interest (“Sublet Interest Notice”) to enable Landlord to itself negotiate with the Building Occupant to enter into a lease for the Sublease Space directly with Landlord on terms and conditions acceptable to Landlord in its sole discretion. In the event Landlord intends to negotiate or is able to enter into a direct leasing arrangement with the Building Occupant with respect to the Sublease Space, Landlord shall so notify Tenant within sixty (60) days after Xxxxxxxx’s receipt of the Sublet Interest Notice from Tenant, and in such event, within thirty (30) days after Landlord’s written request therefor, Landlord and Tenant will enter into an early termination agreement with respect to the Sublease Space on terms mutually acceptable to Landlord and Tenant, and Tenant shall vacate the Sublease Space and leave it in the condition required for surrender under the terms of the Lease, unless otherwise agreed by Landlord. In the event Landlord has not notified Tenant that Landlord has or intends to enter into a direct leasing arrangement for the Sublease Space with the Building Occupant within sixty (60) days after receipt of the Sublet Interest Notice from the Tenant, or if Landlord notifies Tenant that it has elected not to negotiate directly with the Building Occupant with respect to the Sublease Space, then Tenant shall have the right to enter into a sublease agreement directly with the Building Occupant for the Sublease Space, provided Tenant otherwise complies with the terms of this Section 12. No request for transfer, assignment or sublease will be considered unless written assurances reasonably satisfactory to Landlord are received to assure Landlord that it will be reimbursed its reasonable third party costs incurred in connection with the processing of Xxxxxx’s request, including reasonable legal fees, whether or not consent is ultimately forthcoming.

Landlord shall consent to an assignment or sublease to an Affiliate (as herein defined) of the Tenant named herein within seven (7) days after satisfaction of the following conditions precedent: (i) Tenant is not in default under this Lease, nor would be in default but for the giving of notice or the passage of time or both; (ii) Tenant and the Affiliate comply with the other provisions of this Section 12; (iii) Tenant has provided Landlord with thirty (30) days’ advance written notice (“Affiliate Assignee Notice”) of such proposed assignment or sublease together with Tenant’s certification and documentation that the assignment or sublease is in fact to an Affiliate and complies with the provisions of this subsection 12.B.; and (iv) in the event of an assignment, each of Tenant and the Affiliate (if they remain separate entities, otherwise the surviving company in the event of a merger) shall have a clear credit history and a net worth at least comparable to Tenant as of the date of this Lease (“Financial Condition Requirement”). An “Affiliate” shall mean an entity into or with which Tenant is merged or consolidated; or to which substantially all of Tenant’s assets are transferred; or which controls or is controlled by Tenant or is under common control with Tenant. Notwithstanding the foregoing, a so-called “spin-off” or other series of assignments or subleasing to entities which individually would be Affiliates, but which taken together are intended to circumvent the intent of this subsection 12.B., shall not be permitted.

13.	Subordination and Estoppel.

This Lease shall be automatically subject and subordinate to any and all mortgages, ground leases and other instruments in the nature of a mortgage or ground lease now or at any time hereafter a lien on the Property without requiring any writing by Xxxxxx. Tenant shall, when requested, promptly (but not later than ten (10) days after request) execute and deliver such written instruments as may be requested by Xxxxxxxx to confirm the subordination of this Lease to mortgages, ground leases or other instruments in the nature thereof. Should Tenant fail to execute, acknowledge and deliver such instruments within ten (10) days after Xxxxxxxx’s written request, Tenant hereby appoints Landlord and its successors and assigns, as Xxxxxx’s irrevocable attorney-in-fact to execute, acknowledge and deliver any such instrument for and on

behalf of Tenant. With respect to mortgages and other instruments in the nature thereof executed after the Term Commencement Date, the foregoing subordination is expressly conditioned upon Tenant reserving the right to continued occupancy of the Premises in accordance with the terms of this Lease for so long as Tenant is not in Default hereunder notwithstanding any mortgage foreclosure or termination of ground lease. Landlord shall request a non-disturbance agreement from Landlord’s current mortgagee and/or ground lessor.

Xxxxxx agrees that Tenant will recognize as its landlord under this Lease and shall attorn to any person succeeding to the interest of Landlord upon any foreclosure of any mortgage upon the Property or upon the execution of any deed in lieu of such foreclosure in respect of such mortgage, on the condition that such successor in interest does not disturb any of the rights of the Tenant under this Lease, so long as Tenant is not in Default hereunder.

Within ten (10) days after request by Landlord, Tenant will promptly complete and sign an estoppel certificate in form requested by Landlord to confirm the status of this Lease. Failure of Tenant to timely sign and complete the required estoppel shall, at Landlord’s election, be a Default under this Lease and, in all events, Landlord shall then be authorized to sign the estoppel certificate as Tenant’s agent and the information therein shall be binding upon Tenant provided it is signed by Landlord in good faith.

14.	Landlord’s Access.

Landlord and its agents may, at reasonable times, enter the Premises to (i) view the Premises and remove placards and signs materially visible from outside the Premises not approved by Landlord, (ii) make repairs and alterations as Landlord reasonably determines, and (iii) show the Premises to its lender(s) and insurers and at any time within nine (9) months before the expiration of the Term to show the Premises to tenant prospects. Tenant shall give Landlord keys or other lock access to the Premises to be used only for emergency purposes. Tenant shall not add to, or change any Premises locks without obtaining Landlord’s prior written consent and giving Landlord keys thereto. Landlord’s access to the Premises for the purposes referenced above and for routine maintenance shall minimize interference with Xxxxxx’s business, and when possible be upon reasonable prior notice to Tenant, and if notice is not able to be given in advance, notice shall promptly be given to Tenant after Xxxxxxxx’s entry in an emergency.

15.	Indemnification and Liability.

Tenant shall save Landlord harmless and indemnified from any nuisance made or suffered on or from the Premises unless such loss is caused by the negligence of Landlord. Landlord shall not be liable to Tenant, Tenant’s employees, patrons or guests, or any other parties for damage to Tenant’s equipment, fixtures, inventory or other assets or goodwill or for any other consequence resulting or caused by Xxxxxxxx’s failure to perform any of its obligations under this Lease unless such failure is caused by Landlord’s negligent acts or omission. In no event shall Landlord be liable for any indirect or consequential damages. Landlord’s responsibility and liability with respect to services to be performed under this Lease by Landlord shall be limited to costs of repair and labor to effect repair and/or performance. Performance by Landlord under this Lease shall be excused or delayed by causes beyond Landlord’s reasonable control which shall include, without limitation (a) Acts of God, (b) action or inaction by Tenant or its employees, patrons, contractors, guests, licensees or others for whom Tenant may be responsible, (c) failure of parties with whom Landlord has contracted, (d) inability to obtain supplies, materials or labor, (e) interruption of utilities services, and (f) similar conditions.

Landlord and Xxxxxx release each other from any claims and demands of whatever nature for damage, loss or injury to the Property or to the other’s property in, on or about the Premises and the Property that are caused by or result from risks or perils insured against under any property insurance policies required by the Lease to be maintained insuring Landlord at the time of any such damage, loss or injury. If required by the terms of their respective insurance policy(ies), Landlord and Tenant

shall cause their insurers to waive any right of recovery by way of subrogation against either Landlord or Tenant in connection with any property damage covered by any such policies. Notwithstanding the foregoing, Tenant is responsible for the cost of repair and reconstruction of all damage and casualty losses caused by Tenant or Tenant Parties within the Premises, provided, however, in the event of damage or casualty caused by Tenant or Tenant Parties affecting the Building outside the Tenant’s Premises, Xxxxxx’s liability shall be limited to the limits of Tenant’s liability insurance coverage (not less than Six Million ($6,000,000.00) Dollars), plus any deductible paid by Landlord.

16.	Tenant and Landlord Insurance.

Tenant acknowledges that Tenant shall bear the sole risk of loss to its own leasehold improvements (whether existing within the Premises prior to the Lease Execution Date or added to the Premises by Landlord or Tenant), equipment, inventory, and other personal property within the Premises, and Landlord shall have no responsibility for loss or damage thereto. Tenant shall maintain with respect to the Premises and the Property (i) casualty insurance covering all of Tenant’s leasehold improvements, equipment, inventory and other personal property of Tenant; and (ii) commercial general liability insurance naming Landlord as additional insured in the amount of not less than $1,000,000.00 per occurrence and $2,000,000.00 general aggregate for bodily injury and property damage liability written with a Best’s A-1 rating or better. Tenant shall deposit with Landlord certificates for such insurance at or prior to the Term Commencement Date, and thereafter not later than thirty (30) days prior to the expiration of any such policies. All such insurance certificates shall confirm that such coverage will not be canceled without at least twenty (20) days prior written notice to Landlord. If Tenant fails to deliver evidence of the required insurance coverages continuing during the term of this Lease, Landlord may at its election, obtain coverage on behalf of Tenant and Tenant shall promptly reimburse Landlord therefor. To the extent Xxxxxx’s use of the Premises is such that Landlord may reasonably incur greater risk of liability, Landlord may require an increase to Tenant’s liability coverage.

Throughout the Term, as part of Operating Costs, Landlord shall maintain, with responsible companies qualified to do business in the Commonwealth of Massachusetts, insurance on the Building covering the same against fire and other casualty under an “all-risk” policy, at its full replacement cost.

17.	Fire Casualty-Eminent Domain.

In the event a substantial portion of the Building is damaged by fire or other casualty or is taken by eminent domain, Landlord may at any time thereafter elect to terminate this Lease. When such fire, casualty or taking renders the Premises substantially unsuitable for its intended use, a just and proportionate abatement of rent shall be thereupon made until the Premises are restored to a condition substantially suitable for their intended use (but without obligation to restore any Tenant installed furniture, fixtures or equipment), and Tenant may elect to terminate this Lease if (a) Landlord fails to give written notice within forty-five (45) days of its intention to restore the Premises, substantially to their prior condition, or (b) at Tenant’s request, Landlord fails to provide reasonable assurance that the Premises is reasonably capable of being restored within nine (9) months after such fire, casualty or taking; or (c) Landlord fails to restore the Premises to a condition substantially suitable for their intended use by Tenant within nine (9) months after such fire, casualty or taking.

Landlord reserves, and Tenant grants to Landlord, all rights Tenant may have for damages or injury to the Premises for any taking by eminent domain except for damage to Tenant’s fixtures, property, or equipment and compensation for Xxxxxx’s relocation costs obtained by separate award to Tenant.

18.

Default.

Each of the following shall be a “Default” or an “Event of Default” by Tenant under this Lease:

(a)

(i) Failure of Tenant to pay when due any installment of Yearly Fixed Rent, Additional Rent or any other sum payable by Tenant under this Lease within ten (10) days after the date due, provided, however, not more than twice (2x) during any consecutive twelve (12) month period, Tenant shall have the right to cure such failure within ten (10) days after written notice to Tenant; or (ii) failure of Tenant to comply with the insurance requirements of this Lease as set forth in Section 16 hereof; or (iii) failure of Tenant to timely comply with the requirements of this Lease to deliver subordination and non-disturbance agreements and estoppel certificates within the time periods required by Section 13 hereof; or

(b)

Failure of Tenant to observe or perform any of Tenant’s covenants, agreements, or obligations required by this Lease (other than as set forth in Section 18(a) above) unless that failure is corrected or fully cured by Tenant within fifteen (15) days after written notice provided, however, if such failure cannot reasonably be cured within such 15 day period, Tenant shall have such additional time (not to exceed sixty (60) days in the aggregate) as may be reasonably necessary to cure such failure, provided that Tenant commences the cure within such 15 day period and thereafter prosecutes and completes the cure with due diligence and dispatch provided, however, the foregoing sixty (60) day period may be extended for an additional thirty (30) days, if necessary, provided Tenant gives written notice to Landlord specifying the actions Tenant is taking to cure such default, there has been and in Landlord’s reasonable judgment there is not likely to be, any additional loss or liability to Landlord on account of such delay, and such default is diligently thereafter pursued to completion. Notwithstanding the foregoing, there will be no notice or grace period with respect to defaults which are committed by Tenant in bad faith or with malicious intent, except that if such default is committed by other than an officer, director, or management staff of Tenant, Tenant shall have a period of twenty-four (24) hours after notice to cure the default, except that if the default cannot reasonably be cured within such twenty-four (24) hour period, Tenant shall have such additional time as may reasonably be required, not to exceed ten (10) days, so long as Tenant has commenced the cure within such twenty-four (24) hour period, and thereafter prosecutes and completes the cure with diligence and dispatch; and with respect to other non-payment defaults, if the same default occurs more than once in any 12 month period, the cure period will be limited to 15 days; or

(c)

If Tenant or any guarantor of Tenant’s agreements hereunder shall file a petition under any bankruptcy, insolvency or similar law; or if any such petition shall be filed against Tenant or any guarantor and is not dismissed within thirty (30) days after filing; or if Tenant or any guarantor is declared bankrupt or insolvent according to law; or if any assignment shall be made of any of Tenant’s or any guarantor’s assets for the benefit of creditors.

Upon the occurrence of an Event of Default by Tenant, Landlord shall have the right, but not the obligation, to then immediately re-enter and take complete possession of the Premises and declare the Term ended and remove Xxxxxx’s effects, and exercise any other rights and remedies available to Landlord at law or in equity, in all cases without prejudice to any other remedies Landlord may thereafter assert to enforce its rights hereunder. Tenant shall indemnify Landlord against all loss of rent and other costs or liabilities which Landlord may incur by reason of such termination during the period which, but for that termination, would have been the remainder of the Term. If Tenant shall Default, Landlord, without being under any obligation to do so and without thereby waiving the Default, may pay such sums or take such actions as would be reasonably required to remedy that Default for the account and at the expense of Tenant, however, that remedy shall not be construed as a cure by Xxxxxx. If Landlord makes any expenditure or incurs any obligation for the payment of money in connection with this Lease including but not limited to, reasonable attorney’s fees in instituting, prosecuting or defending any action or proceeding applicable to Tenant’s use of the Premises or applicable to any Tenant obligation under this Lease, such sums paid or obligations incurred together with interest thereon at the Default Rate, shall be paid to Landlord by Tenant as

Additional Rent within ten (10) days after demand therefor. Tenant shall pay all Landlord’s costs, including reasonable attorney’s fees, in enforcing, defending, collecting and/or interpreting Landlord’s rights hereunder, within ten (10) days after demand therefor.

In addition to the foregoing, in the event of a Default by Tenant resulting in Landlord’s termination of this Lease, the following shall apply: upon Default and termination of the Lease, Tenant shall pay Landlord the following sums: (i) within seven (7) days after being invoiced therefor, the total of all amounts then due from Tenant under this Lease, and (ii) within twenty-one (21) days after Xxxxxx’s receipt of an invoice therefore (“Termination Invoice”), the total of Yearly Fixed Rent and Landlord’s estimate of Additional Rent and other charges which may become due under this Lease through the end of the period which, but for the termination, would have been the remainder of the Term, plus interest through the date of payment of these amounts and costs of collection, present valued using an eight (8%) percent annual discount factor for sums paid in advance (sums described in clauses (i) and (ii) above are sometimes herein collectively called “Termination Rent”). At Tenant’s option, by written notice to Landlord, Tenant will have the right to pay the Termination Rent in installments of twenty-four (24) months (or the remainder of the Term if less than twenty-four (24) months) each, in advance, commencing ten (10) days after receipt of the Termination Invoice and on each second anniversary thereafter, provided that if any installment of Termination Rent is not paid when due, then the entire balance of the Termination Rent shall be immediately due and payable, with interest at the rate of twelve percent (12%) per annum until paid in full. In the event Tenant elects to pay the Termination Rent in installments, then the amount thereof shall be calculated without using the present value adjustment. Provided Tenant timely otherwise pays and performs its obligations under this Lease including, without limitation, payment of the Termination Rent, the rent Landlord collects for the Premises from a replacement tenant for the balance of the period which, but for the termination would have been the remainder of the Term, after deducting all leasing costs, brokerage commissions and improvement costs incurred by Landlord for the replacement lease, shall be remitted to Tenant if, as and when received by Landlord, up to but not exceeding, the amount paid by Xxxxxx as Termination Rent. Landlord at Landlord’s option may make such alterations, repairs, replacements and decorations at the Premises as Landlord in Landlord’s sole judgment considers advisable and necessary for the purpose of re-letting the Premises, and the making of such alterations or decorations shall not operate or be construed to release Tenant from liability hereunder. Landlord shall in no event be liable in any way for the failure or refusal to re-let the Premises or any parts thereof, nor shall such failure or refusal of Landlord to re-let the Premises release or affect Xxxxxx’s liability for damages provided, however, Xxxxxxxx agrees to use good faith, commercially reasonable efforts to re-let the Premises on terms and conditions acceptable to Landlord in its sole discretion. Further, if the Premises are re-let, Landlord shall in no event be liable in any way for the failure to collect the rents due under such re-letting, provided that Landlord acts in good faith. This Section shall survive the expiration or earlier termination of this Lease.

In addition to all other rights and remedies of Landlord, upon the occurrence of an Event of Default by Tenant, Landlord shall have the right, but not the obligation, to perform such Tenant obligations as would be necessary to remedy any Default including the right to enter upon the Premises to do so. Landlord shall, as a courtesy only, notify Tenant of its intention to perform such obligation, and in the event of a failure by Tenant to perform an obligation required of Tenant by this Lease but which Landlord determines constitutes an emergency threatening imminent injury to persons or damage to property, Landlord shall have the right, but not the obligation, to enter upon the Premises after giving Tenant such notice, if any, as Landlord is reasonably able to provide, or if prior notice is not reasonably able to be provided, to give notice promptly after such entry. Notwithstanding the foregoing, such performance by Landlord shall not be deemed to cure Tenant’s Default, and Tenant shall reimburse Landlord for all costs, including reasonable attorney fees, incurred by Landlord in connection therewith, with interest at the Default Rate on all amounts not paid within seven (7) days after demand.

19.

Notices.

Notices from Landlord to Tenant under this Lease shall be deemed duly served if left at the Premises. Notices hereunder shall also be deemed duly given from and after such time as (i) they are deposited with the U.S. Mail for delivery via certified mail, return receipt requested, postage prepaid, (ii) deposited for overnight delivery with a national courier with delivery tracking service such as FedEx, or (iii) by in-hand delivery to Tenant or Landlord at his/their/its Initial Address on the Reference Data Pages hereof, or at such replacement address as may from time to time be given in writing. A courtesy copy of any default notices sent to Tenant shall also be sent to Xxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, XX 00000, Attn: Xxx Xxxx, Esq.

20.	Surrender.

At the expiration or other termination of this Lease, Tenant shall (i) remove all Tenant’s goods and effects, but including only those fixtures, furnishings and articles of personal property which are not any part of the heating, ventilation, air conditioning, electric or plumbing systems not approved in advance for removal by Landlord from the Premises and repair all damage caused by such removal, (ii) at Landlord’s election under Section 11 above remove Landlord-designated articles and fixtures added to the Premises by Tenant, and (iii) restore the Premises to its condition at the Term Commencement Date, or such better condition as the Premises may have thereafter been placed, reasonable wear and damage by insured casualty loss only excepted. Notwithstanding the foregoing, Tenant shall not be required to make any structural changes to the Building to accomplish the foregoing unless the same has been made by Tenant with Landlord’s consent. Title to all fixtures and additions required by this Lease to remain at the Premises at the end of the Term shall vest in Landlord free from any claim by Tenant or any party claiming through Tenant. At termination of this Lease, Tenant shall deliver to Landlord full possession of the Premises, and all keys and locks thereto, in the condition required above. In the event of Tenant’s failure to remove any of Tenant’s property from the Premises, same shall be considered to have been abandoned by Tenant (and its subtenants), and Landlord is hereby authorized, without liability to Tenant for loss or damage thereto, and at the sole risk and expense of Tenant, to (a) remove and store any of that property at Tenant’s expense, or (b) retain Tenant’s property under Xxxxxxxx’s control, or (c) without further accounting to Tenant, sell at public or private sale, without notice, any or all of Tenant’s property not so removed and to apply the net proceeds of such sale to the payment of any sum due from Tenant hereunder, or (d) to otherwise remove, discard or destroy such property, without liability or accounting to Tenant or its subtenants.

21.	Brokerage.

If a Broker is listed and identified in the Reference Data Page(s) of this Lease, Tenant represents that Tenant was not shown the Premises nor has Tenant entered this Lease on account of the efforts of any party who may claim a commission or payment therefor other than the Broker, and if any party other than the Broker claims the right to be paid a commission or other payment on account of that party having introduced Tenant to the Premises, Tenant shall promptly pay same. Landlord shall be responsible for the commission payable to the Broker listed in the Reference Data Page of this Lease.

22.	Landlord Improvements-Condition of Premises.

Tenant acknowledges that it is leasing the Premises in its “AS-IS” condition, and if applicable, as improved only by and with the improvements listed on Exhibit B hereto annexed. Any additions or improvements required to the Premises on account of Tenant’s particular business or operating requirements shall be provided, paid for and maintained by Tenant.

23.	Extension.

If one or more Extension Terms is/are included on the Reference Data Pages of this Lease, Tenant (the original Tenant signatory hereto only for its own use) shall have the right to extend the Term to include such Extension Term(s) by giving written notice to Landlord of its intent to extend on or before that date which is nine (9) months prior to the end of the then current Term (the “Extension Notice Date”). Yearly Fixed Rent for the applicable Extension Term shall be the Extension Term Yearly Fixed Rent for each twelve (12) month period of the Extension Term with monthly payments equal to one-twelfth of the Extension Term Yearly Fixed Rent. Tenant shall also pay Additional Rent during the Extension Term as required for the Initial Term. During any Extension Term, all other terms and conditions of this Lease shall remain in full force and effect except that the Yearly Fixed Rent shall be determined as set forth on Exhibit D hereof and there shall be no further right to extend after the final Extension Term. Tenant’s right to extend the Term of this Lease is expressly conditioned upon Tenant having then maintained its payment and performance obligations under this Lease current and without any Event of Default through the Term as then in effect, and except for transfers to an Affiliate as defined in Section 12.B. hereof, the Lease not having been assigned, nor more than forty (40%) percent of the Premises sublet or otherwise licensed for use and occupancy. Failure of Tenant to give written notice on or before the Extension Notice Date shall be deemed a waiver of Tenant’s right to extend the Term for the Extension Term.

24.	Landlord Liability and Default.

The obligations of the Landlord hereunder shall be binding upon Landlord and each succeeding owner of the Property hereunder only during the period of such ownership, and Landlord and each succeeding owner shall have no liability whatsoever except for its obligations during each such respective period. Landlord shall not be liable to Tenant or any other party for so long as Landlord acts in good faith and diligently commences and seeks to obtain performance of the requirements of Landlord under this Lease. Landlord’s liability under this Lease shall be limited to specific performance of the asserted breach, and in no event shall Landlord be liable for consequential, punitive or indirect damages. Further, recourse against Landlord under or on account of this Lease shall be limited to the Landlord’s interest in the Property; in no event may Tenant or any other party seek or obtain recourse to or from the assets of any manager, member, trustee, beneficiary or partner of Landlord or any employee, trustee, beneficiary, partner, officer, director, shareholder, manager or member of Landlord, or any of its members, managers, trustees, beneficiaries, managing agents or any of their respective successors and assigns.

Landlord shall not be deemed in default under this Lease nor shall Tenant have any cause of action against Landlord under this Lease unless and until Landlord receives written notice from Tenant detailing the asserted Landlord breach, and that breach continues without cure for fifteen (15) days or such additional time as is required to effect cure provided Xxxxxxxx has then commenced and thereafter reasonably diligently pursues cure. Notwithstanding anything to the contrary contained in this Lease, Tenant’s obligations under this Lease are independent and shall not be conditioned upon performance by Landlord.

25.

Signage.

Tenant shall be listed on the Building’s exterior marquee and on all interior Building directories. Landlord shall provide a suite placard (consistent with Landlord’s signage program at the Property) identifying Tenant’s Premises. In addition, at the option of Tenant, Tenant shall at its sole cost and expense be permitted to install an exterior company nameplate on the Building at a location on the exterior of the Building determined by Landlord and acceptable to Tenant, the design (backlit being acceptable), sizing (18” tall letters being acceptable) and construction of which to be approved in advance by Landlord. Tenant’s exterior company nameplate shall: (i) comply with all applicable codes and ordinances; (ii) be maintenance in first-class condition by Tenant at its sole cost and expense; and (iii) at the end of the Lease Term be removed by Tenant at its sole cost and expense with any damaged caused thereby restored. Landlord makes no representation as to whether or not the City of Xxxxxx will allow Tenant to install the foregoing signage.

26.	Quiet Enjoyment.

Subject to Tenant timely performing and fulfilling its agreements and obligations under this Lease including, but not limited to, the timely payment of Yearly Fixed Rent and Additional Rent, Tenant shall be entitled to lawfully, peaceably and quietly have, hold, occupy and enjoy use of the Premises subject to the terms of this Lease, without hindrance or ejection by Landlord or any persons lawfully claiming through or under Landlord.

27.	Tenant Holdover.

If, (i) Tenant’s occupancy of the Premises continues beyond the Expiration Date or the earlier termination of this Lease (a “Holdover Period”), or (ii) Tenant fails to surrender the Premises to Landlord and fails to remove and restore as required by this Lease at the end of the Term or earlier termination of this Lease, then the time taken for Landlord to take possession and effect such surrender and restoration shall be deemed a holdover by Tenant for the Holdover Period on the following terms: Tenant shall be then deemed a month-to-month, tenant-at-will and otherwise on the same terms and conditions and including the same Tenant’s payment and performance obligations as applicable immediately prior thereto; Tenant’s payment obligations for a Holdover Period shall include, without limitation, Yearly Fixed Rent and Additional Rent payable monthly in advance, Tenant shall be responsible for the same surrender provisions as applicable at the end of the Term, and Tenant shall be obligated to pay such increases in monthly Fixed Rent as Landlord gives Tenant at least seven (7) days prior written notice. Notwithstanding the foregoing, if Landlord has not agreed in writing in advance to a Holdover Period, Xxxxxx’s continued possession shall be as an unauthorized licensee at 150% of the last prior Fixed Rent for the first sixty (60) days and 200% thereafter. The foregoing shall not be construed to obligate Landlord to make available any holdover rights to Tenant initially or thereafter on a continuing basis subsequent to the Expiration Date or earlier termination of this Lease.

28.	Recognition for Tenant.

If Tenant or Xxxxxx’s lender requests any agreement, recognition or acknowledgment of the status or priority of their rights as a lender to Tenant with respect to interests in Tenant’s assets or property or any other document which in the reasonable opinion of Landlord requires review by Xxxxxxxx’s counsel, Tenant shall pay Landlord’s reasonable counsel fees. Landlord shall have no obligation to enter any such agreement which expands its risks or obligations beyond the giving of notice to one additional party of an Event of Default and Landlord’s actions to terminate on account thereof.

29.	Environmental Hazards.

Tenant agrees to conduct its business from the Premises in compliance with the laws, ordinances and regulations and such as to assure and provide for the proper and safe purchase, storage, use and disposal of materials which may be classified as being “hazardous”. Tenant shall hold Landlord harmless and indemnified from and against any and all claims, demands, liability, damages, judgments, costs and expenses arising on account of any failure by Tenant to comply with the provisions of this Lease governing the purchase, use, storage and disposition of “hazardous” materials, materials which may become “hazardous” and any equipment utilizing “hazardous” materials or substances. With respect to materials handling and storage at the Premises which may have an environmental impact upon the Property or its occupants or invitees, Xxxxxx agrees to implement such procedures and policies as Landlord reasonably requests for safety purposes. In no event shall Tenant deposit regulated or “hazardous” materials in any Property trash receptacle, and Tenant shall be responsible to separately arrange and pay for its own safekeeping and disposal of all such materials requiring separate disposition.

30.	Additional Right of Landlord Cure.

In an Event of Default by Tenant, Landlord shall have the right, but not the obligation, to perform such Event of Default including the right to enter upon the Premises to do so. Landlord shall, as a courtesy only, notify Tenant of its intention to perform such obligation, and in the Event of a Default by Tenant to perform an obligation required of Tenant by this Lease but which Landlord determines constitutes an emergency threatening imminent injury to persons or damage to property, Landlord shall have the right, but not the obligation, to perform such obligation of Tenant, including the right to enter upon the Premises to do so, after giving Tenant such notice, if any, as Landlord is reasonably able to provide.

31.	Waivers, Consents and Amendments.

Landlord shall not be deemed to have: waived, obligated itself to defer, consented to or granted any postponement to or for Tenant’s performance of its obligations under this Lease, unless and until an agreement in writing for such waiver, deferral, consent or postponement has been signed by Landlord. Further, no postponement or delay by Landlord in pursuing collection and/or enforcement of Tenant’s obligations under this Lease shall either excuse Tenant’s subsequent and/or continuing responsibility therefor, whether with respect to prior, then current or future such obligations. No modification or amendment to this Lease shall be valid or binding unless and until in writing and signed by the party against whom enforcement therefor may be sought.

32.	Other Provisions.

If in the conduct of Xxxxxx’s business from the Premises Landlord reasonably determines that Xxxxxx’s refuse exceeds normal office use, Tenant shall pay that excess cost as Additional Rent.

Intentionally omitted.

Tenant shall abide by all rules and regulations adopted by Landlord from time to time provided they are uniformly applicable to all tenants similarly situated at the Property.

No other agreements or representations have been made by either party except as expressly contained in this Lease.

All Exhibits and any Riders hereto must be signed or initialed by Landlord and Tenant.

Recording of this Lease or a copy of this Lease shall be a Default; however, if the Term of the Lease including any Extension Term is seven (7) years or longer, Landlord agrees, at Tenant’s request, to enter a Notice of Lease in form acceptable to Landlord for recording at Tenant’s cost.

The covenants and agreements of Landlord and Tenant shall be binding upon and inure to the benefit of each of them and their respective heirs, administrators, successors and assigns, subject to Xxxxxxxx’s consent to any such assignment by Xxxxxx. No covenant, agreement or liability of any one party as Landlord, shall be binding upon another owner of the Property except for defaults occurring or incurred during such owner’s period of ownership of the Property.

For all purposes, Tenant and all Guarantors of Tenant’s performance under this Lease hereby agree and consent that jurisdiction for any litigation with respect to this Lease and/or enforcement or compliance by or against any of the parties shall be exclusively commenced and processed within the State Courts of the Commonwealth of Massachusetts. For all purposes, rules applicable to addresses for service of process for Landlord, Tenant and/or Guarantors shall be as required under the Notice provisions of this Lease set forth in (Section 19) above.

If Tenant is more than one person or party, Tenant’s obligations shall be joint and several for each. Unless repugnant to the context, the term, “Landlord” and “Tenant” mean the person or persons, natural or corporate, named above as the Landlord and Xxxxxx respectively, together with their respective heirs, executors, administrators, successors and assigns, subject to Landlord’s consent to any Tenant assignment.

The headings herein contained are for convenience and shall not be construed a part of this Lease. The sections and definitions on the Reference Data Pages are an integral and substantive part of this Lease.

This Lease shall be construed under and be governed by with the laws of the Commonwealth of Massachusetts.

Xxxxxx represents and warrants that Tenant is a corporation duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts, and the person executing this Lease on behalf of Xxxxxx has full right, power and authority to execute and deliver this Lease, and upon such execution and delivery, this Lease shall be binding upon Tenant. Simultaneously with the execution hereof, Xxxxxx shall deliver to Landlord a certificate issued by the Secretary of State of the Commonwealth of Massachusetts evidencing that Tenant is legally existing and in good standing under the laws of the Commonwealth of Massachusetts, and, unless this Lease is executed by Xxxxxx’s President and Treasurer, together with a Secretary’s Certificate or Board of Directors vote evidencing Xxxxxx’s authority to enter into this Lease and the identity of Tenant’s officer’s authorized to execute this Lease.

If any provision of this Lease shall to any extent be invalid, the remainder of this Lease shall not be affected. The enumeration of specific examples of a general provision shall not be construed as a limitation of the general provision.

This Lease is executed as a sealed instrument and in multiple counterparts, all copies of which are identical, and any one of which is to be deemed to be complete in itself and may be introduced in evidence or used for any purpose without the production of any other copy. Time is of the essence of the obligations of the parties to be performed within a specific time frame in this Lease.

No payment by the Tenant or acceptance by the Landlord of a lesser amount than shall be due the Landlord from the Tenant shall be deemed to be anything but payment on account, and the acceptance by the Landlord of a check for a lesser amount with an endorsement or statement thereon, or upon a letter accompanying said check, that said lesser amount is payment in full shall not be deemed an accord and satisfaction, and the Landlord may accept said check without prejudice to recover the balance due or pursue any other remedy.

Xxxxxx and Landlord hereby waive, to the fullest extent permitted by law, any present or future right to trial by jury in any action or proceeding relating directly or indirectly to or arising out of this Lease or in any manner relating to the Premises, the Building or the Property. This waiver of right to trial by jury is given knowingly and voluntarily by Xxxxxxxx and Xxxxxx.

Tenant represents and warrants that it is not listed, nor is it owned or controlled by, or acting for or on behalf of any person or entity, on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the United States Department of the Treasury, or any other list of persons or entities with whom Landlord is restricted from doing business (“OFAC List”). Notwithstanding anything to the contrary herein contained, Tenant shall not permit the Premises or any portion thereof to be used, occupied or operated by or for the benefit of any person or entity that is on the OFAC List. Tenant shall provide documentary and other evidence of Xxxxxx’s identity and ownership as may be reasonably requested by Landlord at any time to enable Landlord to verify Tenant’s identity or to comply with any applicable legal requirement.

The obligations of Tenant under this Lease are not intended to be and shall not be personally binding on, nor shall any resort be had to the personal assets of, any of its directors, officers, partners, beneficiaries, members, stockholders, employees, or agents. Except for damages incurred by Landlord as a result of Xxxxxx’s holdover after the expiration of the Term, in no case shall Tenant be liable to Landlord hereunder for any form of special, indirect or consequential damages.

[END OF TEXT – SIGNATURE PAGE FOLLOWS]

This Lease, including the attached Exhibit(s) and Rider, is signed as of the Execution Date as an instrument under seal.


LANDLORD:		TENANT:

XXXXX 60 REALTY LLC		CYBER-ARK SOFTWARE, INC.
By:	Intrum Corp., Manager

By:	/s/ Xxxxx X. Xxxxxxxx	By:	/s/ Xxxx Xxxxxx
	Xxxxx X. Xxxxxxxx, President		Xxxx Xxxxxx, President
			duly authorized

		By:	/s/ Xxxx Xxxxx-Xxxxxxxxx
			Xxxx Xxxxx-Xxxxxxxxx, Director of
			Finance, duly authorized

LEASE RIDER

The following provisions are added to and incorporated within this Lease. To the extent of any inconsistency between this Rider and the other Lease provisions, the terms of this Rider shall prevail.

33.

Expansion Right of First Offer. In the event either Suite 102 including approximately 6,546 rentable square feet located immediately adjacent to the Premises in the Building or Suite 100A including approximately 3,002 rentable square feet located across from the Premises in the Building (“Qualified Expansion Space”) becomes available during the Initial Term, and Landlord intends to market the Qualified Expansion Space to third parties, Landlord shall so notify Tenant (“Market Notice”) which Market Notice shall include the general terms and conditions, including the proposed Yearly Fixed Rent under which Landlord intends to market the Qualified Expansion Space. Tenant shall then have a one (1) time right of first offer to lease the Qualified Expansion Space upon the same terms and conditions set forth in the Market Notice, except that the Yearly Fixed Rent payable by Tenant for the Qualified Expansion Space shall be ninety-five percent (95%) of the Yearly Fixed Rent that Landlord intends to market to third parties. Tenant may exercise its right to lease the Qualified Expansion Space by giving written notice of its intention to do so (“Lease Notice”) within seven (7) business days after Tenant’s receipt of the Market Notice. If Tenant does not deliver the Lease Notice to Landlord within seven (7) business days after receipt of the Market Notice, or if for any reason other than Landlord’s delay or failure to negotiate in good faith, Tenant does not enter into an amendment to this Lease incorporating the Qualified Expansion Space into the Premises on the terms set forth in the Market Notice within ten (10) days after Xxxxxx’s receipt of a draft amendment from Landlord, then Tenant’s right to lease the Qualified Expansion Space described in the Market Notice shall be deemed waived in its entirety, and Landlord shall thereafter be permitted to rent the Qualified Expansion Space free from this Expansion Right of First Offer (“ROFO”) and without any further obligation to Tenant. Notwithstanding the foregoing, Landlord will re-offer the space, one-time only, to Tenant under the foregoing conditions if, within 60 days after the delivery of the original Market Notice to Tenant, Landlord intends to lease the Qualified Expansion Space at a rent which is less than or equal to 75% of the proposed Yearly Fixed Rent included in the Market Notice. Notwithstanding anything to the contrary contained herein, this ROFO: (a) shall apply only during the Initial Term; (b) with respect to Suite 102, shall apply only on or after that date which is twenty-four (24) months after the Term Commencement Date; and (c) with respect to Suite 100A, shall not apply with respect to any extension, renewal or modification of the currently existing lease of that space.

34.	MAAB. Access to the Building and entry to the Premises are presently compliant with the access requirements of the Massachusetts Architectural Access Board.

35.

Condition Precedent. Xxxxxxxx has advised Xxxxxx that although the tenant previously occupying the Premises (“Prior Tenant”) has vacated the Premises, the lease with the Prior Tenant (“Prior Lease”) has not yet been terminated. Promptly after the execution of this Lease, Xxxxxxxx agrees to use good faith efforts to enter into an agreement with the Prior Tenant for the termination of the Prior Lease on terms and conditions acceptable to Landlord in its sole discretion (the “Prior Tenant Termination Agreement”). Notwithstanding anything set forth herein, it shall be a condition precedent to the commencement of the Term that Landlord and the Prior Tenant have entered into a Prior Tenant Termination Agreement. Landlord and Tenant shall each have the right to terminate this Lease in the event that Landlord and Prior Tenant have not entered into a Prior Tenant Termination Agreement on or before that date which is thirty (30) days after the Execution Date hereof or such later date as Landlord and Tenant may agree (the “Condition Precedent Termination Date”); provided, however, Landlord shall have the right to extend the Condition Precedent Termination Date for an additional fifteen (15) days if Landlord is in the process of negotiating the Prior Tenant Termination Agreement and Landlord, in good faith, believes that such additional time is required to complete such negotiation. If Landlord has not entered into the Prior Tenant Termination Agreement on or before the Condition Precedent Termination Date and Landlord elects to terminate the Lease pursuant to this Section 35, and if Landlord thereafter does enter into the Prior Tenant Termination Agreement within thirty (30) days after such termination of this Lease, then Landlord shall so notify Tenant and Tenant shall have the right to reinstate this Lease by notice to Landlord within five (5) business days after Tenant receives Landlord’s notice that Xxxxxxxx has entered into a Prior Tenant Termination Agreement.

EXHIBIT A

THE PREMISES

Not to scale. Layout is approximate.

EXHIBIT A-1

TENANT’S LAYOUT PLAN

Not to scale. Layout is approximate.

Furniture is not included.

EXHIBIT A-2

PARKING PLAN

EXHIBIT B

LANDLORD’S WORK

The Premises shall be delivered to Tenant in its present “AS-IS” condition, but with Landlord’s Work (as herein defined) completed by Landlord at its sole cost and expense, provided, however, any changes or upgrades requested by Tenant shall be at Tenant’s sole cost and expense. Landlord’s Work shall include the work shown on Tenant’s Layout Plan attached hereto as Exhibit A-1, which shall be constructed in accordance with the following specifications (“Specifications”):

Demolition. Demolish and remove all existing non-structural office partitions within the Premises to accommodate Tenant’s Layout Plan;

Walls. Construct new walls in accordance with the configuration shown on Tenant’s Layout Plan. All new walls shall (i) be constructed to 6” above the finished ceiling; (ii) be framed with metal studs; (iii) be finished with one layer of 5/8” gypsum wall board on each side, and (iv) include batt R-11 insulation. New walls shall be taped, sanded and ready to receive finishes;

Floors. Furnish and install carpet throughout the Premises (a maximum allowance of $25 per square yard including installation is included), color to be selected by Tenant from Landlord’s selection list. Install 4” vinyl wall base along base of walls where same meets finished flooring, color to be selected by Tenant from Landlord’s selection list. Notwithstanding the foregoing, any break areas, kitchen, copy/print and fax room(s), or file room(s) to later be delineated on Tenant’s Layout Plan shall include VCT tile flooring ($2.50 per square foot allowed), color to be selected by Tenant from Landlord’s selection list;

Ceiling. Existing ceiling to remain, new drop ceiling (to match existing drop ceiling) to be added as required based upon the re-configuration required by Tenant’s Layout Plan (on account of the required demolition and construction of new interior walls);

HVAC. Landlord shall re-work the existing duct work/diffusers duct work and/or add additional duct work/diffusers as required and determined by Landlord and its HVAC subcontractor in their sole discretion (if applicable) to satisfy Landlord’s heating and cooling obligations (applicable to customary office usage only) as set forth in the Lease based upon Tenant’s Layout Plan. Extraordinary HVAC requirements over customary office requirements including without limitation for any LAN/computer rooms is not included;

Electric. Existing with new duplex wall receptacles and light switching in the new walls to be constructed pursuant to paragraph 2. above per code. Provide six (6) power whips for Tenant provided cubicles, the location of same to be delineated on Tenant’s Layout Plan (Tenant shall be responsible for the termination of the whips and connection of power/electricity to its cubicles including the necessary electrical fittings), 3 amps per cube, maximum 90 cubes is allowed. New offices/enclosed areas to include a minimum of three (3) duplex receptacles (Board room six (6) duplex receptacles). Each of Conference room and Board room to include Building standard floor box with duplex receptacle, location of same to be delineated on Tenant’s Layout Plan. All voice/data wiring and fixtures shall be the responsibility of Tenant at its sole cost and expense;

Lighting. Landlord shall re-use the existing lighting fixtures (by relocating or keeping existing fixtures in place), and add additional Building standard lighting fixtures, all as shown on Tenant’s Layout Plan;

Sprinkler. Reconfigure in-ceiling sprinkler heads to accommodate Tenant’s Layout Plan as required by code;

Paint. Paint all walls and trim within the Premises, (trim - one color, semi-gloss, walls with a maximum of four (4) colors, eggshell unless otherwise specified), colors to be selected by Tenant from Landlord’s selection list. Apply 5’ tall band of IdeaPaint or whiteboard application on one (1) wall within each of the Conference rooms and Training room, locations to be delineated on Tenant’s Layout Plan;

10.

Doors. Landlord shall re-use existing doors, sidelights and hardware (relocate or to remain in existing locations), and add additional like doors and hardware based upon Tenant’s Layout Plan (newly created offices or other enclosed areas shall include Building standard sidelights);

11.

Countertops/Cabinetry. An allowance of $3,500.00 is provided for cabinetry and closet shelving within the Premises, the design and location of which to be later agreed upon. Install water supply line and power for Tenant provided dishwasher within the Lunch room, location TBD;

12.

LAN Computer Room. Landlord shall re-use the existing 3.5 ton split cooling system for Tenant’s LAN room (system to be in good operating condition on the Term Commencement Date), additional cooling requirements for Tenant’s LAN room shall be the responsibility of Tenant; and

13.

Specialties. Existing blinds to remain and shall be in good and operable condition. Install three (3) Building standard skylights, the final design, sizing and specifications therefor to be included on Tenant’s Layout Plan. Install Building standard butt-glazed glass wall measuring approximately 9’ x 7’2” with low profile metal channel at floor and soffit head all as shown on Tenant’s Layout Plan.

All electric fixtures (lighting, switches and receptacles), HVAC system(s) and blinds within and/or servicing the Premises shall be in good operating condition on the Term Commencement Date.

Notwithstanding anything set forth herein to the contrary, to the extent of any inconsistency between the Tenant’s Layout Plan and the Specifications, Tenant’s Layout Plan shall prevail, provided, however, Landlord’s Work shall not include any work shown on Tenant’s Layout Plan as “alternate” or “add alternate” (or words of similar import) unless and until Tenant has delivered a written change order for such work and has paid the cost thereof in advance (within three (3) business days after invoice by Landlord), which cost shall include a six and one-half percent (6.5%) supervision fee to Landlord. In the event clarifications are required with respect to Tenant’s Layout Plan or the Specifications, Xxxxxxxx’s architect shall be the determining party.

Landlord shall substantially complete Landlord’s Work prior to the Term Commencement Date. All Landlord’s Work shall be subject to delays on account of delays in permitting, adverse weather conditions, delays caused by Tenant and reasonable construction delays. Landlord’s Work shall be performed materially in accordance with the specifications set forth in this Exhibit B, subject to such changes or modifications as may be reasonably required to comply with Applicable Laws and/or to accommodate building systems and mechanics, to expedite completion of Landlord’s Work, to accommodate unavailability of materials and supplies, and to obtain necessary building permits, provided such changes and modifications do not adversely affect, in any material respect, the utility, quality, or appearance of Landlord’s Work. Tenant shall provide Landlord with its finish selections (flooring and paint) within five (5) days after Xxxxxxxx’s request therefor.

For purposes of this Lease, Xxxxxxxx’s Work shall be deemed “substantially complete” when (i) Landlord delivers to Tenant a certificate from Landlord’s architect (“Architect’s Certificate”) confirming that Xxxxxxxx’s Work has been completed in accordance with the requirements of this Lease, except for items of work and adjustment of equipment and fixtures which can be completed after Tenant has taken occupancy of the Premises without causing material interference with Tenant’s business operations and use and enjoyment of the Premises (“Premises Punch-List Items”), as specified in the architect’s certificate; and (ii) all permits and other authorizations, to the extent required by the Town of Xxxxxxx to enable Tenant to take occupancy in accordance with applicable laws and regulations, have been issued, provided, however, in the event Landlord is delayed in obtaining the Certificate of Occupancy on account of Tenant’s delay in completion of any work to be performed by Tenant or installation of Tenant’s furniture, fixtures or equipment, then substantial completion shall be deemed to have occurred upon issuance of the Architect’s Certificate. Landlord agrees to complete the Premises Punch-List Items within thirty (30) days, subject to delays on account of unavailability of materials, supplies or equipment or other causes beyond Landlord’s reasonable control.

EXHIBIT C

Not Applicable

EXHIBIT D

EXTENSION TERM YEARLY FIXED RENT

Extension Term Yearly Fixed Rent shall be at Fair Market Rent for the Premises in their then condition without requiring any Landlord improvements shall be calculated and determined as follows:

Upon Landlord’s receipt of notice from Tenant that Tenant wishes to extend received by Landlord no later than nine (9) months prior to the expiration of the Initial Term or the Lease Term as extended, Landlord shall, within thirty (30) days of such notice by the Tenant, notify the Tenant of the proposed Extension Term Yearly Fixed Rent based upon Xxxxxxxx’s estimate of Fair Market Rent. Under no condition shall the Extension Term Yearly Fixed Rent be less than the Yearly Fixed Rent being paid just prior to the Extension Term for which Yearly Fixed Rent is then being determined hereunder.

Within fifteen (15) days after receipt of Landlord’s notice of Extension Term Yearly Fixed Rent, Tenant will notify Landlord either of its acceptance or rejection of Landlord’s noticed Extension Term Yearly Fixed Rent; and if rejected, shall include Tenant’s proposal of Fair Market Rent on account of Yearly Fixed Rent during the forthcoming Extension Term. Xxxxxxxx’s failure to timely receive Xxxxxx’s written notice shall be deemed acceptance of Landlord’s noticed Fair Market Rent. If Tenant has timely rejected Xxxxxxxx’s estimate of Fair Market Rent, Landlord and Tenant shall in good faith attempt to resolve their differences as to Fair Market Rent as aforesaid, within the next ten (10) days.

If Landlord and Tenant are unable to resolve their differences within the period set forth in the preceding sub-paragraph B., each of Landlord and Tenant shall appoint a representative to negotiate Extension Term Yearly Fixed Rent within the range of Fair Market Rent last proposed by Landlord and Tenant; said representatives shall be paid by the party which engaged them and shall be qualified commercial leasing agents from major rental firms experienced in renting similar commercial retail/office properties in general vicinity of the Building. The parties’ representatives shall in good faith seek to resolve a market rate of Yearly Fixed Rent for the Extension Term within the next ensuing twenty-one (21) day period. If the representatives are unable to agree upon Yearly Fixed Rent within that time period but the difference between them is no greater than 10% then Yearly Fixed Rent shall be the average of the two representatives written determinations. If the representatives are unable to agree upon Yearly Fixed Rent and their difference exceeds 10%, they shall select a third party, having similar qualifications, paid for one-half by each of Landlord and Tenant, and thereafter, within fifteen (15) days, the determination of a majority of the representatives shall prevail and issue a written report thereof.

If, for any reason whatsoever, Tenant fails to properly notify Landlord of its desire to extend the Lease, any and all Tenant rights or options to extend shall expire and Tenant shall have no further right to extend its tenancy beyond the Expiration Date. In this event Landlord shall be free to rent the Premises to whomever it chooses, on any terms it chooses, free and clear of this option.

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