Exhibit 10.1


 


LEASE


BETWEEN


MICHELSON FARM-WESTFORD


TECHNOLOGY PARK IV


LIMITED PARTNERSHIP


AND


SONUS NETWORKS, INC.


FOR


4 TECHNOLOGY PARK DRIVE (BUILDING 4)


WESTFORD, MASSACHUSETTS


 


1

















 


I N D E X


 


	
  ARTICLE 1 - REFERENCE DATA

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Subjects
  Referred To

  	
  4

  
	
  1.2

  	
  Exhibits

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 - PREMISES AND TERM:

  	
  8

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Premises

  	
  8

  
	
  2.2

  	
  Term

  	
  9

  
	
  2.3

  	
  Lease
  Year

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 - CONSTRUCTION:

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Initial
  Construction

  	
  9

  
	
  3.2

  	
  Tenant’s
  Early Access

  	
  12

  
	
  3.3

  	
  General
  Provisions Applicable to Construction

  	
  13

  
	
  3.4

  	
  Preparation
  of Premises for Occupancy

  	
  13

  
	
  3.5

  	
  Representatives

  	
  14

  
	
  3.6

  	
  Arbitration
  by Architects

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 - RENT:

  	
  15

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Rent;
  Independent Covenants

  	
  15

  
	
  4.2

  	
  Operating
  Costs

  	
  16

  
	
  4.3

  	
  Payments

  	
  19

  
	
  4.4

  	
  Fiscal
  Year

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 - LANDLORD’S COVENANTS/REPRESENTATIONS:

  	
  20

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Landlord’s
  Covenants during the Term

  	
  20

  
	
  5.2

  	
  Interruptions

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 — TENANT’S COVENANTS:

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Tenant’s
  Covenants during the Term

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 - CASUALTY AND TAKING:

  	
  32

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Casualty
  and Taking

  	
  32

  
	
  7.2

  	
  Reservation
  of Award

  	
  33

  



 


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  I N D E X

  	
   

  
	
  (Continued)

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 - RIGHTS OF MORTGAGEE:

  	
  34

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Priority
  of Lease

  	
  34

  
	
  8.2

  	
  Limitation
  on Mortgagee’s Liability

  	
  34

  
	
  8.3

  	
  Mortgagee’s
  Election

  	
  34

  
	
  8.4

  	
  No
  Prepayment or Modification, etc.

  	
  34

  
	
  8.5

  	
  No
  Release or Termination

  	
  35

  
	
  8.6

  	
  Continuing
  Offer

  	
  35

  
	
  8.7

  	
  Mortgagee’s
  Approval

  	
  35

  
	
  8.8

  	
  Submittal
  of Financial Statement

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 - DEFAULT:

  	
  36

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Events
  of Default

  	
  36

  
	
  9.2

  	
  Tenant’s
  Obligations after Termination

  	
  37

  
	
  9.2

  	
  Events
  of Default by Landlord

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 - MISCELLANEOUS:

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Titles

  	
  38

  
	
  10.2

  	
  Notice
  of Lease

  	
  39

  
	
  10.3

  	
  Access

  	
  39

  
	
  10.4

  	
  Notices
  from One Party to the Other

  	
  39

  
	
  10.5

  	
  Bind
  and Inure

  	
  39

  
	
  10.6

  	
  No
  Surrender

  	
  39

  
	
  10.7

  	
  No
  Waiver, etc.

  	
  40

  
	
  10.8

  	
  No
  Accord and Satisfaction

  	
  40

  
	
  10.9

  	
  Cumulative
  Remedies

  	
  40

  
	
  10.10

  	
  Partial
  Invalidity

  	
  40

  
	
  10.11

  	
  Intentionally
  Deleted

  	
  40

  
	
  10.12

  	
  Estoppel
  Certificate

  	
  41

  
	
  10.13

  	
  Waiver
  of Subrogation

  	
  41

  
	
  10.14

  	
  Brokerage

  	
  41

  
	
  10.15

  	
  Confidentiality

  	
  41

  
	
  10.16

  	
  Governing
  Law; Counterparts

  	
  42

  
	
  10.17

  	
  Security
  Deposit

  	
  42

  
	
  10.18

  	
  Guaranty

  	
  43

  
	
  10.19

  	
  Joint
  Inspection at Termination

  	
  43

  
	
  10.20

  	
  Rooftop
  Equipment/Generator/Smoking Shelter

  	
  43

  
	
  10.21

  	
  Furniture/Equipment/Existing
  Back-Up Generator

  	
  44

  
	
  10.22

  	
  IBM
  Contingency

  	
  44

  
	
  10.23

  	
  Termination
  of Sublease Contingency

  	
  45

  



 


3

















 


Date of Lease Execution: August 11, 2010


 


ARTICLE 1


REFERENCE DATA


 


1.1                                 SUBJECTS
REFERRED TO:


 


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


 


	
  Landlord:

  	
  Michelson
  Farm-Westford Technology Park IV Limited Partnership

  
	
   

  	
   

  
	
  Managing Agent:

  	
  The
  Gutierrez Company

  
	
   

  	
   

  
	
  Landlord’s and Managing Agent’s 

  	
  Burlington
  Office Park

  
	
  Address:

  	
  One
  Wall Street

  
	
   

  	
  Burlington,
  MA 01803

  
	
   

  	
  Attn:
  John A. Cataldo, Secretary

  
	
   

  	
  T
  (781) 272-7000

  
	
   

  	
  F
  (781) 272-3130

  
	
   

  	
   

  
	
  Landlord’s Representative:

  	
  John
  A. Cataldo

  
	
   

  	
   

  
	
  Tenant:

  	
  Sonus
  Networks, Inc.

  
	
   

  	
   

  
	
  Tenant’s Address (for Notice & Billing)

  
	
  Prior to Term Commencement Date:

  	
  7 Technology Park Drive

  
	
   

  	
  Westford, MA 01886

  
	
   

  	
   

  
	
   

  	
  With a copy for billing purposes:

  
	
   

  	
  7 Technology Park Drive

  
	
   

  	
  Westford, MA 01886

  
	
   

  	
   

  
	
  With copy of legal notices to:

  	
   

  
	
   

  	
  7 Technology Park Drive

  
	
   

  	
  Westford, MA 01866

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  
	
   

  	
  Tenant’s Address (for Notice & Billing)

  
	
   

  	
  Following Term Commencement Date:

  
	
   

  	
  4 Technology Park Drive

  
	
   

  	
  Westford, MA 01886

  
	
   

  	
   

  
	
   

  	
  With a copy of billing notices as above

  
	
   

  	
  With copy of legal notices as above

  
	
   

  	
   

  
	
  Tenant’s Representative:

  	
  Anthony Zacher

  



 


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  Building:

  	
  4
  Technology Park Drive

  
	
   

  	
  Westford,
  MA 01886

  
	
   

  	
   

  
	
  Floors:

  	
  First
  and Second Floors

  
	
   

  	
   

  
	
  Premises:

  	
  The
  80,000  rentable square feet of space depicted
  on Exhibit A-1 attached hereto, and as more particularly defined in
  Section 2.1, subject to adjustment as provided in Section 3.1
  below.

  
	
   

  	
   

  
	
  Rentable Floor Area of Premises:

  	
  Approximately
  80,000 rentable square feet, subject to adjustment as provided in
  Section 3.1 below. Landlord represents and warrants that the Premises
  and Building have been measured using the Standard Method for Measuring
  Office Buildings per AIA.

  
	
   

  	
   

  
	
  Tenant’s Pro-Rata Share:

  	
  82.05%

  
	
   

  	
   

  
	
  Total
  Rentable Floor Area of the Building:

  	
  97,500
  rentable square feet

  
	
   

  	
   

  
	
  Scheduled Term

  	
   

  
	
  Commencement Date:

  	
  December 15,
  2010

  
	
   

  	
   

  
	
  Outside Delivery Date:

  	
  March 15,
  2011

  
	
   

  	
   

  
	
  Effective Date:

  	
  Date
  of the last party to sign this Lease.

  
	
   

  	
   

  
	
  Term Expiration Date:

  	
  Such
  date which is seven (7) years and eight (8) months following the
  Term Commencement Date (as defined in Section 2.2).

  
	
   

  	
   

  
	
  Approximate Term:

  	
  Seven
  (7) years and eight (8) months.

  
	
   

  	
   

  
	
  Fixed Rent (net):

  	
   

  
	
   

  	
   

  
	
  Months 1-8:

  	
  $0.00/RSF*;

  
	
  Months 9-44:

  	
  $79,666.67/Month;
  $11.95/RSF

  
	
  Months 45-92:

  	
  $90,333.33/Month;
  $13.55/RSF

  



 






	
  *See Section 4.1 regarding rental abatement.

  
	
   

  	
   

  
	
  Annual Estimated Operating Costs

  	
   

  
	
  For the Building:

  	
  Landlord’s
  actual Operating Costs for the previous calendar year ending
  December 31, currently estimated at $5.50/RSF ($4.35/RSF for common area
  maintenance charges and $1.15/RSF for real

  



 


5

















 


	
   

  	
  estate
  taxes) for calendar year 2010.

  
	
   

  	
   

  
	
  Security Deposit:

  	
  (See
  Section 10.17)

  
	
   

  	
   

  
	
  Guarantor:

  	
  Not
  Applicable

  
	
   

  	
   

  
	
  Permitted Uses:

  	
  General
  office, light manufacturing and assembly, laboratory, research and
  development, administrative and other lawful uses ancillary thereto as
  permitted by local zoning.

  
	
   

  	
   

  
	
  Real Estate Broker(s):

  	
  Cushman &
  Wakefield of Massachusetts

  
	
   

  	
   

  
	
  CGL Insurance -

  	
   

  
	
  Bodily Injury and Property Damage:

  	
  Each
  Occurrence: $1,000,000

  
	
   

  	
  Aggregate:
  $2,000,000

  
	
   

  	
   

  
	
  Right of First Offer:

  	
  See
  Exhibit R

  
	
   

  	
   

  
	
  Special Provisions:

  	
   

  
	
   

  	
   

  
	
  1.

  	
  TI
  Allowance and Lab Upgrade Allowance - See Section 3.1

  
	
  2.

  	
  Rent
  Abatement - See Section 4.1

  
	
  3.

  	
  Option
  to Extend - See Exhibit I

  
	
  4.

  	
  Early
  Termination Option - See Exhibit M

  
			



 


1.2                                 LIST OF
EXHIBITS


 


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


 


	
  EXHIBIT A-1

  	
   

  	
  Plan
  Showing Premises

  
	
  EXHIBIT A-2

  	
   

  	
  Preliminary
  Tenant’s Plans

  
	
  EXHIBIT B

  	
   

  	
  Legal
  Description of Lot

  
	
  EXHIBIT C

  	
   

  	
  Base
  Building Improvements

  
	
  EXHIBIT D-1

  	
   

  	
  Landlord’s
  Services

  
	
  EXHIBIT D-2

  	
   

  	
  Tenant’s
  Services

  
	
  EXHIBIT E

  	
   

  	
  Rules and
  Regulations for Westford Technology Park

  
	
  EXHIBIT F

  	
   

  	
  Park
  Covenants — Westford Technology Park

  
	
  EXHIBIT G

  	
   

  	
  Estoppel
  Certificate

  
	
  EXHIBIT H

  	
   

  	
  Subordination,
  Non-Disturbance and Attornment Agreement

  
	
  EXHIBIT I

  	
   

  	
  Option
  to Extend

  
	
  EXHIBIT J

  	
   

  	
  Existing
  Exclusives

  
	
  EXHIBIT K

  	
   

  	
  Form of
  Letter of Credit (if applicable)

  
	
  EXHIBIT L

  	
   

  	
  Form of
  Notice of Lease

  
	
  EXHIBIT M

  	
   

  	
  Early
  Termination Option

  



 


6

















 


	
  EXHIBIT N

  	
   

  	
  Furniture/Equipment
  Inventory

  
	
  EXHIBIT O

  	
   

  	
  Bill
  of Sale

  
	
  EXHIBIT P

  	
   

  	
  Agreement
  Regarding Final Plans

  
	
  EXHIBIT Q

  	
   

  	
  Definition
  of Cost

  
	
  EXHIBIT R

  	
   

  	
  Right
  of First Offer

  



 


7

















 


ARTICLE 2


PREMISES AND TERM


 


2.1                                 PREMISES


 


Subject
to and with the benefit of the provisions of this Lease, Landlord hereby leases
to Tenant and Tenant leases from Landlord, space in the Building, excluding
exterior faces of exterior walls, the common facilities area and building
service fixtures and equipment serving exclusively or in common other parts of
the Building.  Tenant’s space, with such
exclusions, is hereinafter referred to as the “Premises”.


 


Tenant
shall have, as appurtenant to the Premises, the right to use in common with
others entitled thereto, subject to reasonable rules of general
applicability to tenants of the Building from time to time made by Landlord in
accordance with Section 6.1.4 of which Tenant is given prior written
notice:  (a) the common facilities
included in the Building or on the lot upon which the Building is located as
described in Exhibit B attached hereto (the “Lot”), including the parking
facilities (specifically Tenant shall have the right to use the parking
facilities in the amount of 3.2 spaces per 1,000 rentable square feet (“RSF”)
of the Premises, on a “non-reserved, first-come first-serve” basis with all other
tenants in the Building, including their employees and/or invitees, and for
which use there shall not be an additional charge to Tenant, its employees or
invitees. Additionally, Tenant shall be provided with ten (10) designated
visitor parking spaces on the Lot), bathrooms, loading dock(s), and other
facilities located outside of the Premises, to the extent from time to time
designated by Landlord; and (b) the Building service fixtures and
equipment serving the Premises.


 


Tenant
shall also have, as appurtenant to the Premises, the right to use in common
with others entitled thereto, subject to reasonable rules of general
applicability to tenants and owners of other lots in the park commonly known
and referred to as the Michelson Farm-Westford Technology Park (the “Park”)
from time to time made by Landlord in accordance with Section 6.1.4 of
which Tenant is given written notice:  (a) the
common areas now or hereafter located at the Park, including, without
limitation, the Common Areas shown on the Plan of the Park attached hereto as
part of Exhibit A-1, as such Common Areas may be amended or modified by
Landlord from time to time during the Term hereof, (the “Common Areas”);
provided that any such amendment or modification shall not materially adversely
affect Tenant’s rights hereunder, (b) all rights to access, all service
areas, drainage of surface water runoff, including, without limitation, storm
drainage systems and detention areas, and the sewer treatment plant serving the
Park, (c) all grades, driveways, roadways, sidewalks and footways,
lighting systems and traffic flow patterns, (d) all parking areas
designated as common or visitors parking areas for use of the entire Park, if
any, (e) all other rights appurtenant to the Lot and the Building, (f) all
means of access to and from the Building and to the Common Areas, including,
without limitation, all sidewalks, roads, driveways and the like, and (g) all
utility lines, electricity, water and sewage disposal.


 


Landlord
reserves the right from time to time with prior written notice and without
unreasonable interference with Tenant’s use (a) to install, repair,
replace, use, maintain and relocate for service to the Premises or to other
parts of the Building or both, building service fixtures and equipment wherever
located in the Building, and (b) to alter or relocate any of the Common
Areas or other common facility, including modifications of the lot lines of the
Lot and the parking facilities, provided that substitutions are substantially
equivalent or better and any such modifications shall not adversely affect
Tenant’s rights hereunder.


 


8

















 


2.2                                 TERM


 


To
have and to hold for a period (the “Term”) commencing on the date (the “Term
Commencement Date”) when the Premises are deemed Ready for Occupancy as
provided for in Section 3.4 and continuing until the Term Expiration Date,
unless sooner terminated as provided herein or unless extended by Tenant as
provided for in Exhibit I.


 


2.3                                 LEASE YEAR


 


The
term “Lease Year” as used herein shall mean and refer to that period of twelve
(12) consecutive calendar months beginning with the first day of the first full
month after the Term Commencement Date, or else on the Term Commencement Date
itself, if such is the first day of a month, and each subsequent period of
twelve (12) consecutive calendar months during the Term or any extensions
thereof.  If the Term Commencement Date
is other than the first day of a month, then the Term of the Lease shall be
extended by the number of days between the Term  Commencement Date and the first
day of the next full month.  Any such partial month at the beginning of the Term shall be included in
the first Lease Year, with the result that the first Lease Year may in fact
include twelve (12) consecutive months, plus a partial month.


 


ARTICLE 3


CONSTRUCTION


 


3.1                                 INITIAL
CONSTRUCTION


 


a.                                       Landlord shall,
at its sole cost and expense, cause certain improvements to be substantially
completed in the Building in accordance with specifications described on Exhibit C
attached hereto and made a part hereof (collectively, the “Exhibit C Work”)
prior to the Scheduled Term Commencement Date set forth in Section 1.1
hereof.


 


b.                                      In addition,
Landlord shall cause certain leasehold improvements to be substantially
completed in the Premises in accordance with the Final Plans (as hereinafter
defined), prior to the Scheduled Term Commencement Date (the “Tenant’s Work”).  The Tenant’s Work shall include but shall not
be limited to the work to be performed on the lab as well as the items shown on
the Final Plans.  To accomplish the
Tenant’s Work, the parties agree that Landlord shall provide Tenant with: (1) an
allowance of One Million Five Hundred Thousand and NO/100 Dollars
($1,500,000.00) to be applied towards the upgrade of the lab areas inclusive of
all design work and infrastructure costs which shall remain the property of
Landlord (the “Lab Upgrade Allowance”) and (2) a separate allowance of
$10.00 per rentable square foot of the Premises, in the amount of $800,000.00,
subject to adjustment if the square footage of the Premises is adjusted as
hereinafter provided (the “TI Allowance”) to be used to build-out the
Premises.  Collectively, the TI Allowance
plus the Lab Upgrade Allowance are referred to herein as the “Total Tenant
Allowance”. Tenant agrees to pay for the total Cost (as hereinafter defined) of
the Tenant’s Work that exceeds the Total Tenant Allowance within thirty (30)
days of receipt of an invoice from Landlord, which such invoice shall contain
reasonable backup documentation as may be reasonably requested by Tenant
(including an architect’s certificate confirming that the applicable work has
been completed).  The Total Tenant
Allowance shall be utilized by Landlord before any excess Cost, if any, shall be
paid by Tenant as aforesaid, and may be utilized to pay for plan preparation
and revisions in connection with the Tenant’s Work.  In the event that any portion of
the Total Tenant Allowance is not fully utilized directly for the Tenant’s
Work, 


 


9

















 


such allowances may be used
by Tenant towards other improvements to the Premises, including but not limited
to moving expenses, infrastructure costs or other related furniture
expenses.  In such case, Landlord shall
reimburse Tenant for such costs within fifteen (15) days after receipt of an
invoice for such work, which such invoice shall contain such reasonable
documentation evidencing Tenant’s out-of-pocket costs for such items as
reasonably requested by Landlord.


 


c.                                       Landlord shall
cause all of the Exhibit C Work and Tenant’s Work to be performed
utilizing its standard building materials and finishes for the Building, in a
first-class and competent manner and in compliance with all Codes (as
hereinafter defined).


 


d.                                      It is
understood between the parties that the Tenant’s Work aspect of the leasing
transaction contemplated by this Lease is an integral part of the
transaction.  It is the intent of the
parties, however, to achieve agreement on all terms of the Lease and execute
same before Tenant incurs the expense of preparing final plans and
specifications for the improvement of the Premises, and then to establish a
mechanism whereby the parties shall negotiate their respective needs and
limitations in connection with the build out of the Premises and attempt to
reach accord thereon.  In order to
expedite the plan review and approval process, Landlord and Tenant may use
facsimile, electronic mail or other forms of written communication with respect
to their communications regarding the plans and specifications.  Preliminary architectural plans and
specifications prepared by Tenant’s architect/engineer for the Tenant’s Work
(collectively, the “Preliminary Plans”) for the planned improvements of the
Premises are attached hereto and incorporated herein as Exhibit A-2.  Landlord’s and Tenant’s execution of this
Lease shall be deemed Landlord’s and Tenant’s approval of the Preliminary
Plans. Tenant agrees to furnish to Landlord a list of any “long lead” items
that may affect the timely completion of the Premises, which such items shall
include, for example, specialty HVAC and electrical systems, doors, frames,
lights, carpet and any other item having a long delivery time by August 20,
2010. Landlord and Tenant hereby agreeing to finalize the “long lead” items as
soon as possible such that Landlord may release/award the same by August 25,
2010.  Other items shall be
released/awarded once Landlord and Tenant have finalized the Tenant’s Plans as
provided in subsection (e) below. 
Tenant may, at its election, permit Landlord to review and provide input
during the preparation of revisions to the Preliminary Plans and may provide
Landlord with additional preliminary plans and specifications.


 


e.                                       As soon as
possible after the full execution of this Lease, Tenant at its cost, shall
prepare and deliver to Landlord one (1) copy of detailed plans and
specifications and working drawings covering the construction of the
improvements at the Premises consisting of the Tenant’s Work (the “Tenant’s
Plans”).  The Tenant’s Plans shall be
based on the Preliminary Plans and shall incorporate the determination of the
actual final square footage of the Premises. 
The parties shall amend this Lease upon final determination of the
square footage of the Premises to reflect such correct square footage and any
applicable adjustments in the Fixed Rent, Tenant’s Pro-Rata Share and other
provisions of this Lease, as necessary. 
Within three (3) business days after receipt of the Tenant’s Plans,
Landlord shall either approve the Tenant’s Plans or deliver to Tenant its
specific objections to the Tenant’s Plans, together with its proposed solution
to each objection.  If Landlord fails to
either approve or disapprove the Tenant’s Plans within the three (3) business
day period, Landlord shall be deemed to have approved the Tenant’s Plans.  In the event that Landlord objects to the
Tenant’s Plans, Tenant shall have three (3) business days to revise the
Tenant’s Plans to address Landlord’s objection and to re-submit the Tenant’s
Plans to Landlord for review and approval pursuant to this subsection.  Landlord and Tenant shall use good faith,
diligent efforts to agree on the Tenant’s Plans in a timely manner, and to
resolve any conflicts or objections regarding the Tenant’s Plans.  The parties


 


10














 


understand and agree that in
order to avoid a delay in the Scheduled Term Commencement Date, the Tenant’s
Plans need to be agreed upon by no event later than September 1,
2010.  The Tenant’s Plans once approved
by both Landlord and Tenant shall be referred to herein at times as the “Final
Plans”.  Upon mutual agreement that the
Tenant’s Plans are in final form for the Tenant’s Work, the parties shall enter
into a letter agreement in form of Exhibit P attached hereto and
incorporating such Final Plans into this Lease.


 


f.                                        The parties
acknowledge that failure of either party to timely deliver comments to the
Tenant’s Plans (or any modifications thereto), may require Landlord to make an
adjustment in the Scheduled Term Commencement Date (such adjustment to be determined
by Landlord in its reasonable judgment). 
Landlord shall provide a written notice to Tenant of such change in the
Scheduled Term Commencement Date which shall include reasonable detail
describing the cause of the adjustment and the resulting extension of time
caused by such delay.


 


g.                                       Landlord will
not be required to approve Tenant’s Plans or subsequent changes to Final Plans
or any future alterations or improvements to the Premises which involve any
construction, alterations or additions requiring unusual expense to readapt the
Premises to normal office use on the Term Expiration Date, unless Tenant first
gives assurances reasonably acceptable to Landlord that such readaptation shall
be made prior to such termination or expiration without expense to
Landlord.  Landlord shall promptly inform
Tenant during the plan approval process and, in any event, prior to the
installation thereof, of any such items that may require unusual expense to
readapt the Premises as aforesaid.  The
parties hereby acknowledge and agree that the term “unusual expense” as used in
this subsection shall mean an expense that is materially in excess of removal
and repair costs associated with standard office materials.  Landlord and Tenant hereby acknowledge and
agree that no changes or modifications to the Final Plans shall be made without
Tenant’s written consent, such consent not to be unreasonably withheld or
delayed by Tenant.  Notwithstanding the
foregoing, Tenant shall not be required to consent to any changes or modifications
to the Final Plans that will result in an unusual expense to readapt the
Premises or that will result in the total Cost exceeding the Total Tenant
Allowance.


 


h.                                      Landlord shall
cause the Premises to be completed in accordance with the Final Plans.  Tenant may request changes to Tenant’s Work
by altering, adding to, or deducting from Tenant’s Work as set forth in the
agreed form of Final Plans.  Each such
requested change shall be submitted pursuant to the form of change order
supplied by Landlord to Tenant at Tenant’s request, a “Change Order”.  A Change Order requested by Tenant may also
necessitate an adjustment in the Scheduled Term Commencement Date and may
result in Tenant Alteration Delay Days (as hereinafter defined).  Landlord shall notify Tenant as soon as
practicably possible in writing of the actual cost of the Change Order, the
effect on the Cost of Tenant’s Work and if such requested Change Order shall
result in an adjustment in the Scheduled Term Commencement Date.  The actual Cost of Change Orders, less
credits for any Tenant’s Work deleted shall be applied to the TI Allowance or
Lab Upgrade Allowance, as applicable.  In
the event that Tenant has utilized the entire allowance that is applicable to
the Change Order, the cost of the Change Order shall be fully paid by Tenant
within thirty (30) days of receipt of an invoice from Landlord, which shall
contain all reasonable backup documentation as may be reasonably requested by
Tenant related to the actual cost of the Change Order and the allocation of the
applicable allowance.


 


i.                                          In the event
that Tenant requests a Change Order which would, due to materials or equipment
having long delivery times or due to resulting sequencing delays, and
notwithstanding 


 


11

















 


Landlord’s diligent efforts,
result in a delay in the Scheduled Term Commencement Date, then Tenant shall be
deemed to have agreed that it will pay to Landlord a fee equal to the Fixed
Rent (as hereinafter provided in Section 4.1) and additional rent
hereunder for a number of days equal to the actual number of days as certified
by Landlord, by which the Scheduled Term Commencement Date would be delayed by
such alterations or additions, giving due consideration to Landlord’s
obligation to use diligent efforts to accelerate construction to make up for
lost time due to delays (the “Tenant Alteration Delay Days”).  Landlord agrees to promptly provide Tenant
with written notice of such determination of the Tenant Alteration Delay Days,
such notice to include reasonable detail describing the cause of the delay and
the number of Tenant Alteration Delay Days as certified by Landlord.  Should Tenant disagree with the calculation
of Tenant Alteration Delay Days as hereinabove determined, then such disagreement
shall be resolved pursuant to the provisions of Section 3.6 hereof.


 


j.                                         All Tenant
improvements, changes and additions comprising the Tenant’s Work shall be part
of the Premises and shall remain therein at the end of the Term, except for
Tenant’s business fixtures, equipment and personal property (which such
personal property shall include, without limitation, demountable partitions,
equipment and telephone, security or computer systems, the “Tenant’s Property”).  All of Tenant’s Property shall remain the
property of the Tenant and shall be removed at the expiration of the Term.  Tenant agrees to repair, at its sole cost and
expense, any damage to the Premises caused by any such removal by Tenant in
accordance with this paragraph and Section 6.1.2 hereof.


 


k.                                      Additionally,
the installation of security systems (if any) shall be installed within the
Premises and performed by Tenant’s security contractor, at Tenant’s direction
and expense.


 


l.                                          The term “Cost”
as used in this Article 3 shall include those items set forth in Exhibit Q
and shall include the general contractor’s overhead and direct general
conditions of seven and one-half percent (7.5%) of the aggregate costs, plus a
contractor’s fee of five percent (5%) of the aggregate costs.


 


m.                                  Within ten (10) days
of the Effective Date, Landlord agrees to submit to Tenant a master list of
subcontractors that will be responsible for any items of Tenant’s Work that
total, in the aggregate, twenty-five thousand ($25,000.00) Dollars.  Tenant shall have three (3) days to
review such list and to provide Landlord with any comments, and Landlord and
Tenant shall mutually agree on the final subcontractor list within three (3) days.  Failure by Tenant to notify Landlord within
said three (3) day period shall constitute acceptance by Tenant of the
subcontractor list.  In addition,
Landlord shall submit to Tenant a budget for Tenant’s Work within five (5) days
of receipt of Tenant’s Plans and will notify Tenant of any additions once
subcontracts have been awarded.  Additionally,
Tenant will be provided updated reports on the budget throughout the
construction process, as requested.  On a
monthly basis Landlord shall provide Tenant with a detailed accounting of the
total costs to perform the Tenant’s Work and the application of the Total
Tenant Allowance to such costs.  If
requested by Tenant, Landlord shall provide reasonable supporting documentation
regarding such costs.


 


3.2                               TENANT’S EARLY
ACCESS


 


Tenant
(including its contractors, agents or employees) shall have access to the
Premises at least ninety (90) days prior to the Term Commencement Date for
purposes of telephone/data, security and modular furniture installations and
other purposes and move-in activities reasonably approved by Landlord, which
approval shall not be unreasonably withheld, provided that (i) Tenant’s
contractors, agents or employees work in a harmonious labor relationship with
Landlord and Managing Agent, and 


 


12

















 


(ii) no work shall be
done or fixtures or equipment installed by Tenant in such manner as to
unreasonably interfere with any work being done by or for Landlord on the
Premises as reasonably determined by Landlord. 
During the period of preoccupancy of the Premises by Tenant, no Fixed
Rent or additional rent shall accrue or be payable, nor shall preoccupancy
trigger the Term Commencement Date, but otherwise such preoccupancy shall be
subject to all the terms, covenants and conditions contained in this Lease.


 


3.3                               GENERAL
PROVISIONS APPLICABLE TO CONSTRUCTION


 


All
construction work required or permitted by this Lease, whether by Landlord or
by Tenant, shall be done in a good and workmanlike manner and in compliance
with all applicable laws and all lawful ordinances, regulations and
requirements or orders of governmental authorities (hereafter collectively
referred to as the “Codes”), and the requirements of all insurers of the
Building.  Either party may inspect the
work of the other at reasonable times and shall promptly give written notice of
observed defects, provided that any inspection or right to inspect is solely
for the benefit of the party having such right, and shall not constitute a
representation or warranty to the other party or create any liability with
respect to the party performing the inspection or having such right.


 


Landlord
represents and warrants that Tenant’s Work shall be performed in a good and
workmanlike manner and complete in all respects as to the scope of the Tenant’s
Work, Codes and requirements of insurance carriers.  Landlord shall remove all debris resulting
from Tenant’s Work at Tenant’s expense prior to the Term Commencement Date and
any time thereafter if additional Tenant’s Work is required after the Term
Commencement Date, but excluding any debris caused by work completed by Tenant
pursuant to Section 3.2.  Prior to
acceptance of Tenant’s Work, Tenant shall be entitled to walk-through the
Premises and compile a punch list of items associated with the Tenant’s Work to
be completed and/or corrected.  Landlord
shall complete such punch list items within thirty (30) days (or such other
time period as mutually agreed to by the parties).  Further, Landlord covenants to promptly
remove, whether by payment, the securing of a bond, or otherwise, any and all
liens that may be applied to the Tenant’s Work or the Premises as a result of
Tenant’s Work.


 


3.4                               PREPARATION OF
PREMISES FOR OCCUPANCY


 


Landlord
agrees to use reasonable good faith efforts to have the Premises Ready for
Occupancy (as hereinafter defined) on or before the Scheduled Term Commencement
Date, which such date shall, however, be extended for a period equal to that of
any delays due to governmental regulations, unusual scarcity of or inability to
obtain labor or materials, labor difficulties, casualty or other causes
reasonably beyond Landlord’s control (each, a “Force Majeure Delay”), or any
Tenant Delay (as hereinafter defined). 
For purposes of this Lease, a “Tenant Delay” shall mean any one of the
following:  (i) changes requested by
Tenant to approved final plans for the Tenant’s Work (i.e. the Tenant’s Plans);
(ii) Tenant’s failure to supply information as reasonably requested by
Landlord in order to complete construction in a timely manner (e.g. comments to
preliminary plans and specifications, the “long lead” items described in Section 3.1),
(iii) Tenant Alteration Delay Days; or (iv) a written request of
Tenant to stop work.  The Premises shall
be deemed ready for occupancy (“Ready for Occupancy”) on the earlier of:


 


(a)                                 the date on
which Tenant begins to materially conduct business on any portion of the
Premises and the Landlord shall have obtained a Certificate of Occupancy from
the Town of Westford; or


 


13

















 


(b)                                 the date on
which all of the following have occurred: 
(i) the Premises shall be delivered to Tenant, free and clear of
any tenants or occupants, and (ii) the Exhibit C Work and the Tenant’s
Work is substantially completed in compliance with Exhibit C and the Final
Plans, respectively, except for punch list items (including weather delayed
items) relating to either the Exhibit C Work and/or the Tenant’s Work
which does not interfere with Tenant’s use of the Premises for its operation
and Landlord has obtained a Certificate of Occupancy from the Town of Westford
(which may be temporary) for the Premises and has provided Tenant with a copy
thereof; provided, however, that if Landlord is unable to substantially
complete construction by the Scheduled Term Commencement Date due to any Tenant
Delay, then notwithstanding any language to the contrary set forth in this
Lease, the Premises shall be deemed “Ready for Occupancy” on the date the
Premises would have been substantially completed, but for a Tenant Delay.


 


Notwithstanding
the foregoing provisions, if the Premises are not deemed Ready for Occupancy on
or before the Outside Delivery Date, which date may be extended for reasons due
to Force Majeure and/or due to Tenant Delay, for whatever reason, other than
Tenant’s default, Tenant may elect to cancel this Lease at any time after the
Outside Delivery Date while the Premises are not deemed Ready for Occupancy by
giving notice to Landlord of such cancellation which shall be effective ten (10) days
after delivery of such notice to Landlord, unless within said ten (10) day
period, Landlord delivers the Premises in the condition Ready for Occupancy as
defined herein, in which event such notice of cancellation shall be rendered
null and void and of no further force and effect.


 


Further,
notwithstanding any provisions of this Lease to the contrary, in the event that
the Premises are not Ready for Occupancy on or before the Outside Delivery Date
(as defined above and as the same may be extended), and Tenant does not elect
to terminate as provided above, then provided Tenant is not in default under
the Lease beyond the applicable cure period, Tenant shall receive from
Landlord, as liquidated damages, an abatement of Fixed Rent (in addition to
such abatement provided in Section 4.1 hereof) following commencement of
any rental obligations pursuant to Section 4.1 hereof equal to one hundred
(100%) percent of the daily Fixed Rent and additional rent for each day the Exhibit C
Work and/or Tenant’s Work is not substantially completed beyond the Outside
Delivery Date.  It is understood by
Tenant that the rights in this section shall be Tenant’s sole remedy at law or
in equity for Landlord’s failure to have the Premises Ready for Occupancy.


 


3.5                               REPRESENTATIVES


 


In
connection with their respective rights and obligations under this Article 3
each party authorizes the other to rely upon approval and other actions on the
party’s behalf by Landlord’s Representative (as defined in Section 1.1
above) in the case of Landlord or Tenant’s Representative (as defined in Section 1.1
above) in the case of Tenant or by any person designated in substitution or
addition by notice to the party relying. 
The foregoing Representatives, however, are not necessarily the only
persons who may bind Landlord or Tenant with respect to matters arising under Article 3
of this Lease.


 


14

















 


3.6                               ARBITRATION OF
ARCHITECT


 


Whenever
there is a disagreement between the parties with respect to construction by
Landlord of the Exhibit C Work and/or the Tenant’s Work, such disagreement
shall be definitively determined by the following procedure: Each of Landlord
and Tenant shall appoint one (1) architect, such two (2) architects
will then (within five (5) business days of their appointment) appoint a
third architect licensed in the Commonwealth of Massachusetts with not less
than ten (10) years experience. 
Each architect shall establish within ten (10) days of their
appointment their respective position on the matter in dispute.  In case of any dispute with respect to dollar
amounts or lengths of time or dates such as the date of Ready for Occupancy,
the dollar amount or length of time or date shall be the average of the two (2) closest
determinations by the three (3) architects, with the determination of the
architect which was not closest to another architects’ determination excluded
from such calculation.  In case of any
dispute not involving dollar amounts or lengths of time or dates (i.e. the
approval of plans) the determination by at least two (2) of the three (3) architects
shall be required in order to resolve the matter in dispute.  Landlord and Tenant shall each bear the cost
of the architect selected by them respectively and shall share equally the cost
of the third architect.  During such
arbitration period, the parties agree to cooperate with one another so as to
proceed with construction and with their respective obligations hereunder in a
timely manner.  Each determination under
this Section 3.6 shall be binding upon Landlord and Tenant.  In the event a party fails to timely perform
or pay its required share then if not cured within ten (10) days of notice
the non-defaulting party’s position shall be deemed to have prevailed.


 


In
the event that two (2) architects are not able to reach an agreement on a
dispute not involving dollar amount or length of time or dates, within fifteen
(15) days of their appointments, the matter may be submitted by either Tenant
or Landlord to the American Arbitration Association for binding resolution.


 


ARTICLE 4


RENT


 


4.1                               RENT; INDEPENDENT
COVENANTS


 


a.                                      Tenant agrees
to pay, without any offset or reduction whatsoever (except as expressly set
forth in this Lease), fixed rent (“Fixed Rent”) equal to monthly Fixed Rent as
set forth in Section 1.1 above and Estimated Monthly Operating Cost Payments
set forth in Section 4.2(f) below in advance on the first day of each
calendar month included in the Term; and for any portion of a calendar month at
the beginning or end of the Term, at the pro rata rate payable for such portion
in advance.  The term “Rent” shall at all
times be used herein to mean Fixed Rent, Estimated Monthly Operating Cost
Payments and Operating Cost Reconciliation, plus additional rent, or any other
monies due and payable under this Lease.


 


b.                                      Notwithstanding
the foregoing, provided that there does not then exist an uncured, continuing
Event of Default under this Lease at the time thereof, Tenant’s obligation for
the payment of Fixed Rent shall be abated in full for a period of eight (8) months
following the Term Commencement Date of this Lease;  however,
Tenant shall remain responsible for paying operating expenses, real estate
taxes and insurance estimated at $5.50/RSF  and
utilities.  If there shall exist an Event
of Default under this Lease beyond any applicable period of notice and cure
during said for such 


 


15

















 


eight (8) month period,
then any remaining rent abatement shall cease from the date of such Event of
Default.


 


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


 


4.2                               OPERATING COSTS


 


a.                                      Within ninety
(90) days after the end of each Fiscal Year ending during the Term and after
Lease termination, Landlord shall render a statement (“Landlord’s Statement”)
in reasonable detail and according to generally accepted accounting principles
reasonably applied and showing for the preceding Fiscal Year or fraction
thereof, as the case may be, “Landlord’s Actual Operating Costs”, and
specifying Tenant’s “Pro Rata Share” (which such term shall refer to the
fraction, the numerator of which is the Rentable Floor Area of Premises, and
the denominator of which is the Total Rentable Floor Area of the Building) for
such Fiscal Year.  Subject to Tenant’s
audit rights in Subsection (h) below, Tenant shall pay to Landlord the
difference between its actual Pro-Rata Share of the Landlord’s Actual Operating
Costs for that Fiscal Year and the total of the Estimated Monthly Operating
Cost Payments, as defined in subsection (f) below, that Tenant has paid
for that Fiscal Year (the “Operating Cost Reconciliation”) within thirty (30)
days of receipt of Landlord’s Statement. 
In the event that Tenant’s total Estimated Operating Cost Payments
exceed its actual Pro-Rata Share of the Landlord Actual Operating Costs for
such Fiscal Year, then at Tenant’s option, Landlord shall either apply any
excess payment to the next installments of Fixed Rent and additional rent or
refund such excess to Tenant within thirty (30) days after receipt of Tenant’s
written election to receive such a refund. Within ninety (90) days of the end
of the Term, Landlord shall refund to Tenant any unused excess Estimated
Monthly Operating Cost Payments. 
Notwithstanding the foregoing, for any partial Lease Year that may exist
at the beginning or end of the Term, the figure generated by the calculation of
Operating Cost Reconciliation as set forth herein, shall be appropriately
prorated.


 


b.                                      For the
purposes of this Section 4.2, the term “Landlord’s Actual Operating Costs”
shall mean all actual documented expenses and disbursements Landlord incurs in
the operation, management and maintenance of the Building and Lot for that
Fiscal Year,


 


EXCLUDING
the interest, amortization, fees, penalties and all other payments on mortgages
for the Building, Park and Lot or leasehold interests therein and the cost of
special services rendered to tenants (including Tenant) for which a special
charge is made; depreciation of buildings and other improvements; improvements,
repairs or alterations to spaces leased to other tenants; costs of any items to
the extent Landlord receives reimbursement from insurance proceeds or from a
third party; costs and penalties incurred due to violation by Landlord or
Managing Agent or any tenant of the terms and conditions of any lease or any
violation of law advertising and promotional costs’ any costs, fees, dues,
contributions or similar expenses for political, charitable, industry
association or similar 


 


16

















 


organizations; any bad debt
loss, rent loss, or reserves for bad debt or rent loss; any increases in
property taxes due to the sale of the Building, and expenses for capital items
other than those permitted for purposes of reducing Landlord’s Actual Operating
Costs pursuant to the following paragraph;


 


BUT
INCLUDING, without limitation:  Real
Estate Taxes on the Building, Lot and the Common Areas of the Park; the
services provided to Tenant as set forth in Section 5.1, including those
described in Exhibit D-1; installments and interest on assessments for
public betterments or public improvements; expenses of any proceedings for
abatement of taxes and assessments with respect to any Fiscal Year or fraction
of a Fiscal Year, provided, however, that any tax refunds shall be applied to
reduce Landlord’s Actual Operating Costs; premiums for insurance (unless
payable by other tenants due to their particular use of their demised
premises); compensation and all fringe benefits, workmen’s compensation,
insurance premiums and payroll taxes paid by Landlord to, for or with respect
to all persons to the extent engaged in the operating, maintaining, or cleaning
of the Building and Lot; steam, water, sewer and sewer treatment plant
expenses, electric, gas, telephone, and other utility charges not billed
directly to tenants by Landlord or the utility, but not including the cost to
Landlord of electricity furnished for lighting, electrical facilities,
equipment, machinery, fixtures and appliances used by Tenant in the Premises
(provided that Tenant shall be responsible for costs relating to the heating,
ventilating and air conditioning equipment servicing the Building, pursuant to
the terms of this Lease) as set forth in Paragraph II of Exhibit D-2;
costs of building and cleaning supplies and equipment (including rental) for
the Building; cost of maintenance, cleaning of Common Areas and repairs; cost
of snow plowing or removal, or both, and care of landscaping; payments to independent
contractors under service contracts for cleaning, operating, managing,
maintaining and repairing the Building and Lot (which payments may be to
affiliates of Landlord provided the same are at reasonable rates consistent
with the type of occupancy and the services rendered); the cost of providing
amenities to the Building; the Building’s pro rata share of the costs of
operating and maintaining the Common Areas of the Park (such as, but not
limited to, snow plowing, landscaping, Common Area and street lighting, waste
water treatment plant maintenance, and management). The Lot’s pro-rata share of
the Common Area of the Park shall refer to a fraction, the numerator of which
is the square footage of the Building on the Lot and the denominator of which
is the total square footage of all completed buildings in the Park (unless, for
example, the same relates to traffic or utilities in which event the allocation
shall be reasonably determined by Landlord based on parking spaces or usage, as
applicable); and all other reasonable and necessary expenses paid in connection
with the operation, cleaning, maintenance, and repair of the Building (and the
Common Areas therein, including without limitation providing the services
provided in Section 5.1.3 and Exhibit D-1 hereof) and Lot, or either,
and properly chargeable against income, it being agreed that if Landlord
installs a new or replacement capital item for the purpose of reducing Landlord’s
Actual Operating Costs, the annual costs thereof together with reasonable
interest thereon, as reasonably amortized by Landlord over the useful life of
the item so installed in accordance with generally accepted accounting
principles, shall be included in Landlord’s Actual Operating Costs.


 


c.                                       In case of
services which are not rendered to all areas on a comparable basis or in case
service consumption varies among tenants in the Building, the proportion
allocable to the Premises shall be the same proportion which the Rentable Floor
Area of Premises bears to the total rentable floor area to which such service
is so rendered, or to which such disproportionate service or use is rendered
(such latter area to be determined in the same manner as the Total Rentable
Floor Area of the Building).  Upon Tenant’s
written request, Landlord shall provide a written explanation of such special
service and the calculation of the proportion used to determine the allocation
of the charge.


 


17

















 


d.                                      For the
purposes of this Section 4.2, the term “Real Estate Taxes” as used above
shall mean all taxes of every kind and nature assessed by any governmental
authority on the Lot, the Building and improvements, or both, and the Common
Areas of the Park, which the Landlord shall become obligated to pay because of
or in connection with the ownership, leasing and operation of the Lot, the
Building and improvements, or both, subject to the following:  There shall be excluded for such taxes all
income taxes, excess profits taxes, excise taxes, franchise taxes, estate,
succession, inheritance and transfer taxes, provided, however, that if at any
time during the Term the present system of ad valorem taxation of real property
shall be changed so that in lieu of the whole or any part of the ad valorem tax
on real property, there shall be assessed on Landlord a capital levy or other
tax on the gross rents received with respect to the Lot, Building and
improvements, or both, and the Common Areas of the Park, a federal, state,
county, municipal, or other local income, franchise, excise or similar tax,
assessment, levy or charge (distinct from any now in effect) measured by or
based, in whole or in part, upon any such gross rents, then any and all of such
taxes, assessments, levies or charges, to the extent so measured or based,
shall be deemed to be included within the term “Real Estate Taxes”.  At Tenant’s request, Landlord must provide a
copy of the tax bill within a reasonable timeframe.


 


e.                                       intentionally
deleted


 


f.                                        Tenant shall
pay, as additional rent, on the first day of each month an estimated monthly
operating cost payments equal to 1/12th of the annualized Landlord’s Actual
Operating Costs for the immediately preceding Fiscal Year (hereafter “Estimated
Monthly Operating Cost Payments”). 
Reasonably Estimated Monthly Operating Cost Payments for each ensuing
Fiscal Year shall be made from the first month of such Fiscal Year.  In no event shall Tenant be obligated to pay
more than the its Pro-Rata Share of the Landlord’s Actual Operating Costs
during any Fiscal Year.  Therefore,
pursuant to Section 4.2(a) above, for any Fiscal Year, the Estimated
Monthly Operating Cost Payments shall be credited towards Tenant’s obligation
to pay an Operating Cost Reconciliation for such Fiscal Year, with an
additional payment made by Tenant or credit issued by Landlord, as applicable
based on the determination of the actual Operating Costs.


 


g.                                       Landlord shall
have the right from time to time during the Term hereof, but not more than once
during the Term, to change the periods of accounting under this Section 4.2
to any annual period other than the Fiscal Year and upon any such change all
items referred to in this Section shall be appropriately apportioned.  In all Landlord’s Statements, rendered under
this Section 4.2, amounts for periods partially within and partially
without the accounting periods shall be appropriately apportioned, and any
items which are not determinable at the time of a Landlord’s Statement shall be
included therein on the basis of Landlord’s estimate, and with respect thereto
Landlord shall render promptly after determination a supplemental Landlord’s
Statement, and appropriate adjustment shall be made according thereto.  All Landlord’s Statements shall be prepared
on an accrual basis of accounting.


 


h.                                      Tenant shall
have the right, through its employees or representatives (excluding a
contingency based auditor), to examine and audit such records relating to the
preparation of the Landlord Statement and the Landlord’s Actual Operating Costs
at reasonable times, and at Tenant’s sole cost and expense, upon not less than
thirty (30) days prior written notice. 
Such records shall be maintained at Landlord’s Address set forth in Section 1.1,
or such other place within the Commonwealth of Massachusetts as Landlord shall
designate from time to time for the keeping of such records.  The costs of such audits shall be borne by
Tenant.  If Tenant does not send the
aforementioned thirty (30) 


 


18

















 


day notice to inspect such
records of Landlord within one hundred eighty (180) days after receipt of the
applicable Landlord’s Statement, then the right to object to such Fiscal Year
set forth in such Landlord’s Statement shall be deemed waived.  Likewise, once deemed waived, Landlord shall
be estopped from billing for retroactive corrections to Landlord’s
Statement.  In the event an audit shows
Landlord has overcharged Tenant then: (i) Tenant shall be refunded its
reasonable costs of audit, which shall in no event exceed Five Thousand and
NO/100 Dollars ($5,000) and (ii) the amount of overpayment shall, at
Tenant’s sole option, be either applied to its future Fixed Rent and Additional
Rent or refunded to Tenant within thirty (30) days of Tenant’s election.  In the event that Landlord contests such audit,
then Landlord shall have the right to select its own auditor to perform its own
audit and any disagreement shall be resolved pursuant to the following
procedure: Each of Landlord and Tenant shall appoint one (1) accountant,
such two (2) accountants will then (within five (5) business days of
their appointment) appoint a third accountant licensed in the Commonwealth of
Massachusetts with not less than ten (10) years experience.  Each accountant shall establish within
fifteen (15) business days of their appointment their respective position on
the correct amount of the Landlord’s Actual Operating Costs.  The Landlord’s Actual Operating Costs shall
be deemed to be the average of the two (2) closest determinations by the
three (3) accountants, with the determination of the accountant which was
not closest to another accountant’s determination excluded from such
calculation.  Landlord and Tenant shall
each bear the cost of the accountant selected by them respectively and shall
share equally the cost of the third accountant. 
Each determination under this Section 4.2(h) shall be binding
upon Landlord and Tenant.  In the event a
party fails to timely perform or pay its required share then if not cured
within ten (10) days of notice the non-defaulting party’s position shall
be deemed to have prevailed.


 


i.                                          Notwithstanding
any other provision of this Section 4.2, if the Term expires or is
terminated as of a date other than the last day of a Fiscal Year at the end of
the Term, Tenant’s last payment to Landlord under this Section 4.2 shall
be made on the basis of Landlord’s best estimate of the items otherwise
includable in Landlord’s Statement and shall be made on or before the later of:
(a) thirty (30) days after Landlord delivers such estimate to Tenant, or (b) the
last day of the Term.  There shall be an
appropriate payment or refund to be made upon final submission of Landlord’s
Statement.


 


4.3                               PAYMENTS


 


All
payments of Rent shall be made to the Managing Agent, or to such other person
as Landlord may from time to time designate in writing.  In
the event Landlord revokes or cancels the management agreement or if it expires
by its own terms, Landlord shall immediately notify Tenant pursuant to the
terms hereof.  Landlord waives all rights
of recovery and releases Tenant from any and all claims arising from the
payment by Tenant to the Managing Agent. 
If any installment of Rent, Fixed Rent or additional rent, or on account
of leasehold improvements, remains unpaid after the due date thereof, at
Landlord’s election, it shall bear interest at the rate of twelve percent (12%)
per annum from such due date, which interest shall be immediately due and
payable as further additional rent. 
Notwithstanding the foregoing, Tenant shall be provided with two (2) grace
periods per year of five business (5) days each before which Landlord
shall charge interest for late payments.


 


4.4                               FISCAL YEAR


 


The
term “Fiscal Year” as used herein shall mean each twelve (12) calendar month
period from January 1 through December 31.


 


19

















 


ARTICLE 5


LANDLORD’S
COVENANTS/REPRESENTATIONS


 


5.1                               LANDLORD’S
COVENANTS DURING THE TERM


 


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


 


5.1.1                                                                     Building
Services - To furnish, through Landlord’s employees or
independent contractors, the services listed in Exhibit D-1;


 


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


 


5.1.3                                                                     Repairs - Except as
otherwise provided in Article 7, to make such repairs to the roof,
ceilings, windows, exterior and common area doors, exterior walls, floor slabs,
structural components, elevators, stairs, loading docks, common area
components, and all common building systems, specifically sanitary, plumbing,
electrical and life safety systems (per Exhibit D-1) which are shared in
common with other tenants of the Building (excluding the HVAC system and other
certain components of the life safety systems serving the Building which shall
be maintained by Tenant pursuant to Section 6.1.2 hereof as specifically identified
in Exhibit D-2) as may be necessary to keep them in good and serviceable
condition and in the condition set forth in Section 5.1.5 below.  Landlord shall also maintain in good order
and condition the other buildings and improvements located within the Park,
including, but not limited to, the Common Areas of the Park;


 


5.1.4                                                                     Quiet Enjoyment - That
Landlord has the right to make this Lease and that Tenant, on paying the Rent
and performing its obligations hereunder, shall peacefully and quietly have,
hold and enjoy the Premises throughout the Term without any manner of hindrance
or molestation from Landlord or anyone claiming under Landlord, or other
tenants, subject, however, to all the terms and provisions hereof;


 


5.1.5                                                                     Common Areas - To keep and maintain
the Common Areas and parking facilities of the Building in good order,
condition and repair, including, without limitation, to snowplow and sand the
parking areas and sidewalks located upon the Lot up to the entrances of the
Building, in a safe, clean, sightly and sanitary condition in accordance with
good and accepted Building practices and in a manner consistent with
first-class buildings of a similar size and nature to that of the Building;


 


5.1.6                                                                     Insurance - Throughout
the Term of this Lease, Landlord shall purchase and keep in force and effect,
or cause to be purchased and kept in force and effect, Commercial General
Liability Insurance, written on an occurrence and not on a


 


20














 


claims-made
basis, containing provisions adequate to protect Landlord from and against
claims for bodily injury, and claims for property damage occurring upon the Lot
or the Building located thereon and/or occurring on the Premises due to the
acts or omissions of Landlord or its officers, agents, employees or independent
contractors, or due to Landlord’s failure to comply with, or default or other
breach of, the provisions of this Lease, such insurance having bodily injury
and property damage combined limits of liability of not less than $2,000,000
per occurrence, which coverage may be provided by supplementing the Commercial
General Liability policy with an Umbrella Liability policy.


 


Landlord
shall also purchase and keep in force, or cause to be purchased and kept in
force, insurance upon the Lot and Building (including the Premises, but
excluding any of Tenant’s personal property within the Premises, and any
alterations made by or for Tenant, unless Landlord has consented in writing to
such alterations and has consented in writing to provide insurance for such
alterations, which consent may be withheld in Landlord’s sole discretion)
against loss or damage by a hazard insured under a so-called “Special Form”
policy and such additional insurance as would customarily be carried by prudent
owners of similar buildings in the same locale as the Building, and in all
events including collapse, vandalism, water damage and sprinkler leakage,
comprehensive boiler and machinery insurance, in an amount equal to the actual
replacement cost thereof, including the value of all additions, alterations,
replacements and repairs thereto made by Landlord (and alterations in addition
to the Tenant Work made by or for Tenant, provided Landlord has consented in
writing to such alterations and has consented in writing to provide insurance
for such alterations, which consent may be withheld in Landlord’s sole
discretion) as well as machinery, equipment and their systems forming a part
thereof.  The phrase “actual replacement
cost” shall mean the actual replacement cost (excluding cost of excavations,
foundations, and footings) without diminution of such cost for depreciation or
obsolescence.  The foregoing policy shall
contain an agreed-amount clause waiving co-insurance, and Landlord shall
annually update the amount of insurance coverage and arrange to continue the
agreed-amount clause.  The foregoing
policy shall also contain, to the extent applicable, endorsements providing
coverage for demolition costs, increased cost of construction, and contingent
liability from operation of building laws. 
Landlord shall also maintain the requisite flood insurance as is
customary and as may be required by Landlord’s mortgagee(s), and customary
rental interruption insurance.


 


The
annual costs paid by Landlord in maintaining the foregoing insurance during the
Term shall be included in Landlord’s Actual Operating Costs set forth in Article 4
hereof, and Tenant shall pay its Pro Rata Share as specified in said Article 4.


 


All
insurance required in this Section shall be effected under valid and
enforceable policies issued by insurers of recognized responsibility licensed
to do business in the State in which the Building is located and rated by Best’s
Insurance Reports or any successor publication of comparable standing and 


 


21

















 


carrying
a rating of A-VIII or better, or the then equivalent of such rating.  All such policies shall be written as primary
policies not contributing with or in excess of coverage which Landlord may
carry.


 


Nothing
contained in this Article or elsewhere in this Lease shall prohibit
Landlord from obtaining a policy or policies of blanket insurance which may
cover other property of the insuring party provided that: (x) any such blanket
policy expressly allocates to the properties hereunder to be insured not less
than the amount of insurance required hereunder, and (y) such blanket
policy shall not diminish the obligations of the insuring party so that the
proceeds from such policies shall be an amount no less than the amount of the
proceeds that would be available if the insuring obtained the required
insurance under policies separately insuring the risks which this Lease
requires to be insured.


 


Landlord
agrees to have included in each of its insurance policies a waiver of the
insurer’s rights of subrogation against Tenant to the extent applicable without
payment of any additional premiums. Landlord agrees to furnish evidence of the
foregoing insurance by providing Tenant with Certificate(s) of Insurance
on or before the Commencement Date hereunder and from time to time hereafter
during the Term of this Lease upon the reasonable request of Tenant;


 


5.1.7                                                                        Building
Security - Landlord shall maintain existing outdoor lighting
around areas of the entrance walkways of the Building and the parking lots,
substantially similar to that generally provided in similar first class office
spaces in the area, to illuminate the parking areas and the entrance walkway
areas around the Building;


 


5.1.8                                                                        Compliance — Landlord
represents and warrants that, to the best of Landlord’s knowledge, the Premises
as of the Term Commencement Date are free of Hazardous Materials (as defined in
Section 6.1.17) and are in compliance with all laws, ordinances, rules and
regulations pertaining to the Building and the Premises, including the
Americans With Disabilities Act then in effect at the time of construction, as
applicable.  Landlord hereby represents
and warrants that Tenant’s Permitted Use is allowed as of right at the Premises
and is not in violation of any applicable laws, rules and regulations;


 


5.1.9                                                                        Indemnity — Subject to
the provisions of Section 10.13, to defend, with counsel reasonably
acceptable to Tenant, save harmless, and indemnify Tenant, its agents, directors
and employees, from any liability for injury, loss, accident or damage to any
person or property and from any claims, actions, proceedings and expenses and
costs in connection therewith (including, without implied limitation,
reasonable counsel fees) to the extent arising from the omission, fault,
willful act, negligence or other misconduct of Landlord, Landlord’s agents,
employees, invitees or contractors).  The
within covenants shall survive the expiration, or earlier expiration, of the
Term;


 


5.1.10                                                                  Tenant’s Costs - In case
Tenant shall, without any fault on its part, be made party to any litigation
commenced against Landlord or by or against any parties 


 


22

















 


in possession of the Premises, the Building or the Park or any part
thereof claiming under Landlord (other than Landlord), Landlord shall pay all
costs including, without implied limitation, reasonable counsel fees and
judgments or amounts incurred by or imposed upon Tenant in connection with such
litigation.  Landlord shall also pay all
reasonable such costs and fees incurred by Tenant in connection with the
successful enforcement by Tenant of any obligations of Landlord under this
Lease; and


 


5.1.11                                                                  Hazardous
Materials.  Landlord
shall not (either with or without negligence) cause or permit the escape,
disposal or release of any Hazardous Materials (as defined in Section 6.1.17
below) onto or in the vicinity of the Lot. 
Landlord shall not allow the storage or use of such materials in any
manner not sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such materials, nor allow to be brought
into the Lot any such materials or substances except to use in the ordinary
course of Landlord’s business.  Landlord
shall be responsible for compliance with any lender or governmental agency
requirement for testing to ascertain whether or not there has been any release
of Hazardous Materials.  If Landlord
receives from any federal, state or local governmental agency any notice of
violation or alleged violation of any Hazardous Waste Law (as defined in Section 6.1.17)
on the Lot, Landlord agrees to forward to Tenant a copy of any such notice
within three (3) business days of Landlord’s receipt or transmittal
thereof. In all events, Landlord shall defend, save harmless and indemnify
Tenant from any liability for injury, loss, accident or damage to any person or
property and from any claims, actions, proceedings and expenses and costs to
the extent arising from any release of Hazardous Materials or substances caused
by Landlord or persons acting under Landlord on the Premises, in the Building,
on the Lot, or elsewhere in the Park, whether prior to or during the Term,
including any Extension Term, if applicable. 
The within covenants shall survive the expiration or earlier termination
of the Term.  The indemnifications in
this section specifically include, without limitation, costs reasonably
incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any governmental
authority.


 


5.2                                                                                                                                 INTERRUPTIONS


 


a.                                       Except to the
extent caused by Landlord’s negligence or willful misconduct, Landlord shall
not be liable to Tenant for any compensation or reduction of rent by reason of:
(a) inconvenience or annoyance or for loss of business arising from power
losses or shortages; or (b) necessity of Landlord’s entering the Premises
for any of the purposes in this Lease authorized; or (c) repairing the
Premises or any portion of the Building or Lot. 
After the Term Commencement Date, if Landlord is prevented or delayed
from making any repairs, alterations or improvements, or furnishing any service
or performing any other covenant or duty to be performed on Landlord’s part, or
by reason of any cause reasonably beyond Landlord’s control, Landlord shall not
be liable to Tenant therefore, nor, except as expressly otherwise provided in Article 7,
shall Tenant be entitled to any abatement or reduction of rent by reason
thereof, nor shall the same give rise to a claim in Tenant’s favor that such
failure constitutes, actual or constructive, total or partial, eviction from
the Premises.  In connection 


 


23

















 


therewith, Landlord shall
take reasonably appropriate action to remedy the situation and assist with
reasonable diligence to pursue such remedy.


 


b.                                      Landlord
reserves the right to stop any service or utility system when necessary by
reason of emergency.  Except in case of
emergency repairs, Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.


 


c.                                       Notwithstanding
any terms of this Lease to the contrary, if any Building service is interrupted
for a period of three (3) consecutive business days due solely to the
negligence or willful acts of Landlord, its agents, servants, employees,
contractors or subcontractors (and not due to acts or failure to act by Tenant,
its agents, servants, employees, contractors or subcontractors), and such
failure adversely and materially affects Tenant’s use of the Premises for
Tenant’s normal business operations, then there shall be an abatement on a
square footage pro rata basis of Fixed Rent and additional rent from and after
said time period until such services are restored.  In no event shall Tenant have any abatement
if any such interruption is due to the actions of Tenant or its employees or
agents as aforesaid.


 


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


 


ARTICLE 6


TENANT’S COVENANTS


 


6.1                                 TENANT’S
COVENANTS DURING THE TERM


 


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


 


6.1.1                                                                        Tenant’s
Payments - To pay when due (a) all Fixed Rent and
additional rent, (b)  all taxes which may be imposed on Tenant’s personal
property in the Premises (including, without limitation, Tenant’s fixtures and
equipment) regardless to whomever assessed, provided however that Tenant shall
have the right, at its cost,  to
challenge or contest any such assessments in which case Tenant shall not be
declared in default under this Lease for such non-payment provided reasonable
documentation evidencing the same is provided to Landlord; (c) all charges
by public utility for telephone and other utility services (including service
inspections therefore) rendered to the Premises not otherwise required
hereunder to be furnished by Landlord without charge and not consumed in
connection with any services required to be furnished by Landlord without
charge, (d) as additional rent, all charges of Landlord for services
rendered pursuant to Section 5.1 (except as otherwise set forth therein to
the contrary), and (e) any and all other charges due in accordance with
the terms and provisions of this Lease;


 


6.1.2                                                                        Repairs and
Yielding Up - Except as otherwise provided in Article 7 or
in Section 5.1, or elsewhere within this Lease, to keep the Premises in
good order, repair and condition (including any supplemental air conditioning,
UPS and 


 


24

















 


computer
room equipment, to the extent such is the property of Tenant, if applicable),
reasonable wear and tear and damage caused by negligence or willful misconduct
of Landlord excepted.  Tenant shall also
be responsible to keep in good order, repair and condition, reasonable wear and
tear thereof excepted, the HVAC systems serving the Building, the elevators and
certain components of the life safety systems within the Building, and shall
perform all of such services as set forth in Exhibit D-2.  Landlord and its agents reserve the right to
inspect the foregoing to insure proper maintenance at all reasonable times, and
if in Landlord’s reasonable judgment such systems are not being adequately
maintained and/or such services set forth on Exhibit D-2 are not being
adequately provided, as required herein, then Landlord shall provide Tenant
with written notice regarding such failure, which shall include specific
reference to items of concern and Tenant shall promptly remedy such maintenance
deficiency upon receipt from Landlord of notification thereof.   In the event that Tenant does not have a
good faith objection to such request for maintenance, Tenant shall complete the
requested maintenance and provide Landlord with reasonable proof thereof within
fifteen (15) business days after receipt of Landlord’s notice.  If after expiration of such cure period,
Tenant fails to correct the same, then Landlord may revoke its prior approval
of such in-house maintenance and require that Tenant allow Landlord (or its
agents) to maintain such HVAC systems and/or elevators and/or to perform such
other services as provided in Exhibit D-2, whereupon the parties shall
execute an amendment to this Lease wherein the Fixed Rent and Exhibit D-1
and Exhibit D-2 of this Lease shall be modified accordingly.  In addition, Tenant agrees to supply heating,
ventilation and air conditioning as required to provide reasonable comfortable
temperatures for normal business day occupancy and after hours (as so
requested) to the remaining space within the Building not included within the
Premises, at a commercially reasonable cost, and to provide cleaning to such
areas and any other services as set forth in Exhibit D-2.  Tenant agrees to supply to Landlord
inspection records within one (1) business day of Landlord’s written
request for such records for the services being provided by Tenant hereunder.


 


At
the expiration or termination of this Lease peaceably to yield up the Premises
and all changes and additions therein in such order, repair and condition,
first removing all personal property, goods and effects of Tenant and any
items, the removal of which is required by agreement or specified therein to be
removed at Tenant’s election and which Tenant elects to remove, and repairing
all damage caused by such removal and restoring the Premises and leaving them
clean and neat, reasonable wear and tear excepted.  Any property not so removed shall be deemed
abandoned and may be removed and disposed of by Landlord, in such manner as
Landlord shall determine, and Tenant shall pay Landlord the entire cost and
reasonable expense incurred by it by effecting such removal and disposition and
any damage resulting therefrom.  It being
agreed that the exclusion of reasonable use and wear shall not apply so as to
permit Tenant to keep the Premises in anything less than suitable, tenantable
and usable condition, considering the nature of the Premises and the use
reasonably made thereof, or in less than good and tenantable repair;


 


25

















 


6.1.3                                                                        Occupancy and
Use - From the Term Commencement Date, to use and occupy the Premises only
for the Permitted Uses; and not to injure or deface the Premises, Building or
Lot; and not to permit in the Premises any auction sale, nuisance, or the
emission from the Premises of any reasonably objectionable noise or odor; nor
any use thereof which is improper, offensive, contrary to law or ordinances or
liable to invalidate or increase the premiums for any insurance on the Building
or its contents or liable to render necessary any alteration or addition to the
Building (unless at Landlord’s election in its sole discretion, Landlord
permits, and Tenant does, pay for such increase in premiums or make such
necessary alterations in connection therewith);


 


6.1.4                                                                        Rules and
Regulations - To comply with the Rules and Regulations set
forth in Exhibit E and all other reasonable Rules and Regulations
hereafter made by Landlord (that are commercially reasonable are enforced in a
non-discriminatory manner and do not adversely affect any of the rights of
Tenant contained in this Lease), of which Tenant has been given notice, for the
care and use of the Building, Lot and Common Areas of the Park (and their
facilities and approaches as further described in the Park Covenants attached
hereto as Exhibit F), it being understood that Landlord shall not be
liable to Tenant for the failure of other tenants of the Building or Park to
conform to such Rules and Regulations. 
In the event of a conflict between any Rules and Regulations, and
this Lease, the Lease shall control;


 


6.1.5                                                                        Safety Appliances
/ Laws - To keep the Premises equipped with all safety appliances required by
law or ordinance or any other regulation of any public authority because of
Tenant’s use or occupancy of the Premises, or Tenant’s conduct of its business
within the Premises, and to procure all licenses and permits so required and,
if requested by Landlord and required by law, to do any work so required, it
being understood that the foregoing provisions shall not be construed to
broaden in any way Tenant’s Permitted Uses.  Tenant shall timely take all action required
to cause Tenant’s use of the Premises to comply in all respects and at all
times with all laws, ordinances, building codes, rules, regulations, orders and
directives of any governmental authority having jurisdiction now or in the
future with respect to Tenant’s use or occupancy of the Premises and the
conduct of its business in the Premises;


 


6.1.6                                                                        Assignment and
Subletting - Not without prior written consent of Landlord
which consent shall not be unreasonably withheld, conditioned or delayed by
Landlord, to assign this Lease, to make any sublease, or to permit occupancy of
the Premises or any part thereof by anyone other than Tenant, voluntarily or by
operation of law.  Tenant shall, as
additional rent, reimburse Landlord promptly after receiving Landlord’s written
request, which shall include copies of paid invoices for reasonable legal and
other expenses incurred by Landlord in connection with any request by Tenant
for consent to assignment or subletting in the amount not to exceed Five
Hundred and NO/100 Dollars ($500.00). 
Landlord’s consent shall not be deemed to have been withheld
unreasonably if the proposed assignment or subletting violates any existing
exclusive use 


 


26

















 


restrictions
and/or exclusions relating to the Building or the Park as set forth in Exhibit J
hereto (“Existing Exclusives”).  Tenant
hereby acknowledges and agrees that the foregoing sentence is not intended to
be and is not an exclusive list of the reasons for which Landlord may
reasonably withhold consent to any proposed assignment or subletting.  No assignment or subletting shall affect the
continuing primary liability of Tenant unless Tenant is dissolved and ceases to
operate as a separate business entity. 
Following an assignment, Tenant’s liability shall be joint and several
with the assignee.  No consent to any of
the foregoing in a specific instance shall operate as waiver in any subsequent
instance.


 


Landlord
and Tenant hereby further agree that if Landlord approves a sublease with a
total sublease amount greater than the total rent due from Tenant to Landlord
under this Lease, then Tenant shall pay to Landlord forthwith upon Tenant’s
receipt of each such installment of such excess rent during the term of any
approved sublease, as additional rent hereunder, an amount equal to fifty
percent (50%) of the positive excess between all rent received by Tenant under
the sublease (after reimbursement to Tenant of all reasonable brokerage fees,
reasonable attorney fees, reasonable tenant improvement allowances and any
other subletting costs reasonably incurred by Tenant) and the Fixed Rent and
additional rent owed to Landlord under this Lease.  In the event the sublease is less than the
full Premises hereunder, the above rent adjustment shall be equally prorated on
a square foot basis.


 


Notwithstanding
the foregoing, Tenant shall have the right, upon prior written notice to Landlord, but without Landlord’s
consent, to sublet, assign or otherwise transfer its interest in this Lease to
any Tenant Affiliate, as hereinafter defined, or to an entity with which it may
merge or consolidate, or to which all, or substantially all, of its assets may
be sold or to any entity under the common control of Tenant, provided, however,
that: (v) any assignee or transferee agrees to be bound by all the terms
and provisions of this Lease, including the Security Deposit obligations
hereunder (and/or Guaranty, as applicable); and (w) any assignee or
transferee shall have a net worth equal to or greater than Tenant prior to such
merger or consolidation, and (x) any subtenant agrees that it will not
breach any of the obligations of Tenant under the Lease, and (y) in either
event, the assignee, transferee, or subtenant shall execute and deliver to
Landlord written documentation evidencing the foregoing; and (z) such does
not violate any Existing Exclusives. A “Tenant Affiliate” shall mean any entity
which controls, is controlled by, or is under common control with Tenant.  No assignment, transfer or subletting
contemplated by this paragraph, even if such is consented to by Landlord or if
no such consent is required, shall affect the continuing primary liability of
Tenant (which, in the event of an assignment or other transfer, shall be joint
and several with the assignee, subtenant or transferee, as applicable), unless
Tenant ceases to operate as a separate business entity.


 


Anything
contained in the foregoing provisions of this Section to the contrary
notwithstanding, neither Tenant nor any other person having interest in the 


 


27

















 


possession,
use, occupancy or utilization of the Premises shall enter into any lease,
sublease, license, concession or other agreement for use, occupancy or
utilization of space in the Premises which provides for rental or other payment
for such use, occupancy or utilization based, in whole or in part, on the net
income or profits derived by any person from the Premises leased, used,
occupied or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and any such purported lease, sublease,
license, concession or other agreement shall be absolutely void and ineffective
as a conveyance of any right or interest in the possession use, occupancy or
utilization of any part of the Premises;


 


6.1.7                                                                        Indemnity — Subject to
the provisions of Section 10.13, to defend, with counsel reasonably
acceptable to Landlord, save harmless, and indemnify Landlord, its agents,
employees, mortgagee(s) and the Managing Agent, from any liability for
injury, loss, accident or damage to any person or property and from any claims,
actions, proceedings and expenses and costs in connection therewith (including,
without implied limitation, reasonable counsel fees):  (i) to the extent arising from the
omission, fault, willful act, negligence or other misconduct of Tenant, Tenant’s
agents, employees, invitees or contractors, or (ii) to the extent
resulting from the failure of Tenant to perform and discharge its covenants and
obligations under this Lease.  The within
covenants shall survive the expiration, or earlier expiration, of the Term;


 


6.1.8                                                                        Tenant’s
Liability and Property Insurance —  To
maintain at all times during the Term of this Lease commercial general
liability insurance in the Premises in amounts which shall, at the beginning of
the Term, be at least equal to the limits set forth in Section 1.1. Tenant
shall furnish Landlord with certificates thereof prior to occupancy hereunder
naming Landlord as additional insured thereon. 
Tenant shall also procure and maintain, at its sole expense:  “special form” property insurance, in an
amount not less than one hundred percent (100%) of replacement cost covering (i) all
leasehold and tenant improvements in and to the Premises (except for the Tenant’s
Work as insured by Landlord herein), and (ii) Tenant’s office furniture,
business and personal trade fixtures, equipment, furniture system, inventory
and other personal property from time to time situated in the Premises.


 


All
insurance required in this Section and Section 6.1.9 below shall be
effected under valid and enforceable policies issued by insurers of recognized
responsibility licensed to do business in the Commonwealth of Massachusetts and
rated by Best’s Insurance Reports or any successor publication of comparable
standing and carrying a rating of A-VIII or better, or the then equivalent of
such rating.  All such policies shall be
written as primary policies not contributing with or in excess of coverage
which Landlord may carry.


 


Tenant
shall also have each such insurance policy properly endorsed, if necessary, to
prevent the invalidation of such insurance coverage by reason of the waiver of
subrogation contained in Section 10.13 herein, and furnish evidence to
Landlord of the insurer’s consent to such waiver;


 


28

















 


6.1.9                                                                        Tenant’s
Workmen’s Compensation Insurance - To keep all Tenant’s
employees working in the Premises covered by workmen’s compensation insurance
in statutory amounts and to furnish Landlord with certificates thereof;


 


6.1.10                                                                  Landlord’s
Right of Entry — To permit Landlord and Landlord’s agents entry: (i) to
examine the Premises at reasonable times upon 48 hours prior written notice to
Tenant (except in the event of an emergency where notice shall be given as soon
as practicable) and, if Landlord shall so elect, to make repairs or
replacements; (ii) to remove, at Tenant’s expense, any changes, additions,
signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the like
erected in violation of the terms of this Lease which Landlord has not
previously approved; and (iii) to show the Premises to prospective tenants
during the nine (9) months preceding expiration of the Term and to prospective
purchasers and mortgagees at all reasonable times, subject to 48 hours prior
written notice.  Any such entry by
Landlord (or its agents, employees, contractors, or invitees as permitted
herein) hereunder shall be conducted in such a manner as to reasonably minimize
any disruption to Tenant’s operations therein;


 


6.1.11                                                                  Loading - Not to place
a load upon the Premises exceeding an average rate of one hundred (100) pounds
of live load per square foot of floor area; Tenant’s business machines and
mechanical equipment which cause vibration or noise that may be transmitted to
the Building structure or to any other leased space in the Building shall be
placed and maintained by Tenant in settings of cork, rubber, spring, or other
types of vibration dampers sufficient to mitigate such vibration or noise;


 


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


 


6.1.13                                                                  Tenant’s
Property - All the furnishings, fixtures, equipment, effects
and property of every kind, nature and description of Tenant and of all persons
claiming by, through or under Tenant which, during the continuance of this
Lease or any occupancy of the Premises by Tenant or anyone claiming under
Tenant, that may be on the Premises or elsewhere in the Building or on the Lot
(or the Park) shall be at the sole risk and hazard of Tenant, unless any
damages or casualty are the result of Landlord’s negligence or willful
misconduct, and if the whole or any part thereof shall be destroyed or damaged
by fire, water or otherwise, or by the leakage or bursting of water pipes,
steam pipes, or other pipes, by theft, or from any other cause, no part of said
loss or damage is to be charged to or to be 


 


29

















 


borne
by Landlord, unless and to the extent caused by the negligence of Landlord or
its agents;


 


6.1.14                                                                  Labor or
Materialmen’s Liens - To pay promptly when due the entire cost of any
work done on the Premises by Tenant, its agents, employees, or independent
contractors; not to cause or permit any liens for labor or material performed
or furnished in connection with any work performed at Tenant’s direction to
attach to the Premises; and upon receipt of written notice of such liens, to
within thirty (30) days following attachment discharge or bond any such liens
which may so attach;


 


6.1.15                                                                  Changes or
Additions - Not to make any changes or additions to the
Premises except for Tenant’s Work without Landlord’s prior written consent, such
consent not to be unreasonably withheld, conditioned or delayed,  except if the same affects the structure of
the Building (including roof) or any of its building or life safety systems or
other space(s) leased by tenants, in which case Landlord’s consent may be
withheld in its sole discretion, and any such changes or additions shall be in
compliance with Landlord’s reasonable insurance requirements (including
obtaining Owner’s and Contractor’s Protective Liability coverage);


 


6.1.16                                                                  Holdover - To pay to
Landlord at a rate equal to two hundred percent (200%) of the Rent then
applicable for each month or portion thereof Tenant shall retain possession of
the Premises or any part thereof after the expiration or earlier termination of
this Lease, whether by lapse of time or otherwise, and also to pay all
reasonable damages sustained by Landlord on account thereof.  Notwithstanding the foregoing, Landlord
agrees that during any initial holdover not to exceed sixty (60) days, then
only one hundred fifty percent (150%) and not two hundred percent (200%) of
said Rent shall be due and no damages shall be due.  The provisions of this subsection shall not
operate as a waiver by Landlord of any right or re-entry provided in this Lease;


 


6.1.17                                                                  Hazardous
Materials - Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any Hazardous
Materials onto or in the vicinity of the Premises.  Tenant shall not allow the storage or use of
such materials in any manner not sanctioned by law or by the highest standards
prevailing in the industry for the storage and use of such materials, nor allow
to be brought into the Premises any such materials or substances except to use
in the ordinary course of Tenant’s business. 
Tenant agrees to furnish, upon Landlord’s request, a written inventory
of the identity of such substances or materials used in the ordinary course of
Tenant’s business.  Without limitation,
the term “Hazardous Materials” shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., the
Massachusetts Hazardous Waste Management Act, as amended, M.G.L. c.21C, the
Massachusetts Oil and Hazardous Material Release Prevention and Response Act,
as amended, M.G.L. c.21E, any applicable local ordinance or bylaw, and


 


30














 


the
regulations adopted under these acts (collectively, the “Hazardous Waste Laws”).
If any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of Hazardous Materials as a direct
result of Tenant’s occupancy of the Premises, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Premises and only if such release is determined
by a third party consultant to have been caused solely by Tenant.  If Tenant receives from any federal, state or
local governmental agency any notice of violation or alleged violation of any
Hazardous Waste Law, Tenant agrees to forward to Landlord a copy of any such
notice within three (3) business days of Tenant’s receipt or transmittal
thereof. In addition, Tenant shall execute affidavits, representations and the
like from time to time at Landlord’s request concerning Tenant’s best knowledge
or belief regarding the presence of Hazardous Materials on the Premises.  In all events, Tenant shall defend, save
harmless and indemnify Landlord from any liability for injury, loss, accident
or damage to any person or property and from any claims, actions, proceedings
and expenses and costs to the extent arising from any release of Hazardous
Materials or substances if caused by Tenant or persons acting under Tenant on
the Premises, in the Building, on the Lot, or elsewhere in the Park.  Landlord retains the right to inspect the
Premises at all reasonable times, upon reasonable prior notice to Tenant, to
ensure compliance with this paragraph. 
The indemnifications in this section specifically include, without
limitation, costs reasonably incurred in connection with any investigation of
site conditions or any cleanup, remedial, removal or restoration work required
by any governmental authority.  The
within covenants shall survive the expiration or earlier termination of the
Term;


 


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


 


Landlord
will furnish and install, at Landlord’s sole cost and expense, standard
building signage including a clean and professionally lettered panel
designating Tenant on the monument sign for the Building.  See also Exhibit D-2, Paragraph VI.


 


Tenant
shall also have the right, at its sole cost and expense, subject to applicable
sign ordinances and to Landlord’s prior written approval (which shall not be
unreasonably withheld, conditioned or delayed) and any such approval required
under the Park Covenants and subject to receipt by Landlord of all required
permits therefore, to have installed signage supplied by Tenant at Tenant’s
expense, customary or appropriate in the conduct of Tenant’s business and with
other signage in the Park designating Tenant on the exterior of the
Building, at the location to be agreed upon by both Landlord and Tenant (“Tenant’s
Signage”), provided that Tenant shall be leasing and occupying at all times at
least seventy-five thousand (75,000) square feet of the Building.  In the 


 


31

















 


event
Tenant’s square footage falls below such threshold, Landlord shall have the
right to remove Tenant’s Signage, at Tenant’s expense.  Tenant’s right to install signage on the
Building is exclusive.


 


Landlord
and Tenant hereby further acknowledge and agree that Landlord, upon Tenant’s
request, shall use reasonable efforts to obtain all necessary permits and
approvals in compliance with local codes and ordinances for Tenant’s Signage,
at Tenant’s sole cost and expense.  In no
event shall Landlord be required to obtain such necessary permits and approvals
therefore as a condition of the Premises being deemed Ready for Occupancy as
determined in accordance with Section 3.4. 
Tenant shall reimburse Landlord for the actual third-party reasonable
costs and expenses incurred by Landlord in connection with obtaining said
permits and approvals, including reasonable attorney’s fees and
disbursements.  Tenant agrees to
cooperate with Landlord during the permitting process by (i) promptly
executing the necessary documentation reasonably requested by Landlord, and (ii) by
furnishing the same to Landlord promptly upon Landlord’s request, but in no
event later than five (5) business days following Landlord’s request.


 


6.1.19                                                              Security - All security
to the Premises shall be the Tenant’s sole responsibility, except for those
items designated in Section 5.1.7 and in Exhibit D-1 as Landlord’s
responsibility.  In no event shall
Landlord be responsible for providing any security to the Premises or to the
Building and its common areas, including the parking facilities, except for the
Building and exterior lighting as provided for in Section 5.1.7 and as set
forth in Exhibit D-1.


 


ARTICLE 7


CASUALTY AND TAKING


 


7.1                               CASUALTY AND
TAKING


 


a.                                      In case during
the Term all or any substantial part of the Premises, the Building, or Lot or
any one (1) or more of them, are damaged materially by fire or any other
cause or by action of public or other authority in consequence thereof or are
taken by eminent domain or Landlord receives compensable damage by reason of
anything lawfully done in pursuance of public or other authority, this Lease
shall terminate at Landlord’s or Tenant’s election, which may be made to the
other party by giving written notice within thirty (30) days after the
occurrence of the event giving rise to the election to terminate, which notice
shall specify the effective date of termination which shall be not less than
thirty (30) nor more than sixty (60) days after the date of notice of such
termination.  If in any such case the
Premises are rendered unfit for use and occupation and the Lease is not so
terminated, Landlord shall use due diligence to put the Premises, or in case of
taking, what may remain thereof (excluding any items installed or paid for by
Tenant which Tenant may be required or permitted to remove) into proper
condition for use and occupation to the standard that existed immediately
preceding such damage or taking to the extent permitted by the net award of
insurance or damages, and a just proportion of the Fixed Rent and additional
rent according to the nature and extent of the injury shall be abated
until the Premises or such remainder shall have been put by Landlord in such
condition; and in case of a taking or any other aforementioned cause which
permanently reduces the area of the Premises, a just proportion of the Fixed
Rent and additional rent shall be abated for the remainder of 


 


32

















 


the Term and an appropriate
adjustment shall be made to the Annual Estimated Operating Costs For the
Building.


 


b.                                      In the event
less than all or a substantial part of the Premises, the Building, or Lot are
damaged by fire or any other cause or by action of public or other authority in
consequence thereof or are taken by eminent domain, as long as Tenant is able
to use the Premises for the Permitted Use, Landlord shall use due diligence to
put the Premises, or in case of taking, what may remain thereof (excluding any
items installed or paid for by Tenant which Tenant may be required or permitted
to remove) into proper condition for use and occupation to the extent permitted
by the net award of insurance or damages, and a just proportion of the Fixed
Rent and additional rent according to the nature and extent of the injury
shall be abated until the Premises or such remainder shall have been put by
Landlord in such condition; and in case of a taking or any other aforementioned
cause which permanently reduces the area of the Premises, a just proportion of
the Fixed Rent and additional rent shall be abated for the remainder of the
Term and an appropriate adjustment shall be made to the Annual Estimated
Operating Costs For the Building.


 


c.                                       In the case of
any casualty or taking described in subsections (a) and (b)  above
which results in the requirement of the Landlord to restore the Premises,
Landlord with reasonable promptness after such event shall cause a general
contractor to provide Landlord and Tenant with a written estimate of the amount
of time required, using standard working methods, to substantially repair and
restore the Premises and any Common Areas necessary to provide access to the
Premises to the condition immediately preceding such event (the “Completion
Estimate”).  If the casualty or taking
effects all or substantial part of the Premises, and the Completion Estimate
states that such restoration will not be complete within three hundred (300)
days from the date of such casualty or taking, the Tenant may terminate this
Lease at its election, by written notice given to Landlord within ten (10) business
days of receipt of the Completion Estimate. 
If the casualty or taking is less than total or less than substantial
then Landlord shall use due diligence to complete such restoration within the
time-frame set forth in the Completion Estimate, which in any event shall be
less than three hundred (300) days after the date of such casualty or
taking.  In the event that Landlord does
not complete such restoration within the time-frame set forth in the Completion
Estimate plus any Force Majeure Delays and/or Tenant Delays, as defined in Section 3.4,
but shall be made applicable to restoration under this Section, the Tenant may
terminate this Lease at its election, by written notice given to Landlord.  In the event of any such termination under
this subsection, this Lease and the obligations of the parties hereto shall
cease as of the date of such termination.


 


7.2                               RESERVATION OF
AWARD


 


Landlord reserves to itself any and all rights to receive awards made
for damages to the Premises, Building or Lot and the leasehold hereby created,
or any one or more of them, accruing by reason of exercise of eminent domain or
by reason of anything lawfully done in pursuance of public or other
authority.  Tenant hereby releases and
assigns to Landlord all Tenant’s rights to such awards, and covenants to
deliver such further assignments and assurances thereof as Landlord may from
time to time request.  It is agreed and
understood, however, that Landlord does not reserve to itself, and Tenant does
not assign to Landlord and the parties agree that Tenant may pursue any damages
payable for (i) movable trade fixtures installed by Tenant or anybody
claiming under Tenant (which are not the property of Landlord as provided in
this Lease), at its own expense, or (ii) relocation expenses recoverable
by Tenant from such authority in a separate action.


 


33

















 


ARTICLE 8


RIGHTS OF MORTGAGEE


 


8.1                               PRIORITY OF
LEASE


 


Landlord
shall have the option to subordinate this Lease to any future mortgagee or deed
of trust of the Lot or Building, or both (“the mortgaged premises”), provided
that the holder thereof enters into an agreement (substantially in the form
attached hereto as Exhibit H or such other form reasonably requested by
such mortgagee, the “SNDA”) with Tenant by the terms of which the holder will agree
to recognize the rights of Tenant under this Lease and to accept Tenant as
tenant of the Premises under the terms and conditions of this Lease in the
event of acquisition of title by such holder through foreclosure proceedings or
otherwise and Tenant will agree to recognize the holder of such mortgage as
Landlord in such event, which agreement shall be made to expressly bind and
inure to the benefit of the successors and assigns of Tenant and of the holder
and upon anyone purchasing the mortgaged premises at any foreclosure sale.  Any such mortgage to which this Lease shall
be subordinated may contain such terms, provisions and conditions as the holder
deems usual or customary.  At Tenant’s
future request, and prior to the Term Commencement Date, Landlord shall use
diligent efforts to obtain the SNDA from its current mortgagee.


 


8.2                               LIMITATION ON
MORTGAGEE’S LIABILITY


 


Upon
entry and taking possession of the mortgaged premises for any purpose other
than foreclosure, the holder of a mortgage shall have all rights of Landlord
and the duty to perform all Landlord’s obligations hereunder.  No such holder shall be liable, either as
mortgagee or as holder of a collateral assignment of this Lease, to perform, or
be liable in damages for failure to perform any of the obligations of Landlord
unless and until such holder shall enter and take possession of the mortgaged
premises for the purpose of foreclosing a mortgage or takes title to the
mortgaged premises.  Upon entry for the
purpose of foreclosing a mortgage, such holder shall also be liable to perform
all of the obligations of Landlord, provided that a discontinuance of any
foreclosure proceeding shall be deemed a conveyance under the provisions of Section 10.5
to the owner of the equity of the mortgaged premises.


 


8.3                               MORTGAGEE’S
ELECTION


 


Notwithstanding
any other provision to the contrary contained in this Lease, if prior to the
substantial completion of Landlord’s obligations under Article 3, any
holder of a first mortgage on the mortgaged premises enters and takes
possession thereof for the purpose of foreclosing the mortgage, such holder may
elect, by written notice given to Tenant and Landlord at any time within thirty
(30) days after such entry and taking of possession, not to perform Landlord’s
obligations under Article 3, and in such event such holder and all persons
claiming under it shall be relieved of all obligations to perform, and all
liability for failure to perform, said Landlord’s obligations under Article 3,
and Tenant may terminate this Lease and all its obligations hereunder by
written notice to Landlord and such holder given within thirty (30) days after
the day on which such holder shall have given its notice as aforesaid.


 


8.4                               NO PREPAYMENT
OR MODIFICATION, ETC.


 


No
Fixed Rent, additional rent, or any other charge shall be paid more than one (1) month
prior


 


34

















 


to the due dates thereof,
and payments made in violation of this provision shall (except to the extent
that such payments are actually received by a mortgagee in possession or in the
process of foreclosing its mortgage) be a nullity as against such mortgagee,
and Tenant shall be liable for the amount of such payments to such
mortgagee.  No assignment of this Lease
and no agreement to make or accept any surrender, termination or cancellation
of this Lease and no agreement to modify so as to reduce the rent, change the
Term, or otherwise materially change the rights of Landlord under this Lease,
or to relieve Tenant of any obligations or liability under this Lease, shall be
valid unless consented to in writing by Landlord’s mortgagees of record, if
any.


 


8.5                               NO RELEASE OR
TERMINATION


 


No
act or failure to act on the part of Landlord which would entitle Tenant under
the terms of this Lease, or by law, to be relieved of Tenant’s obligations
hereunder or to terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (i) Tenant shall
have first given written notice of Landlord’s act or failure to act to Landlord’s
mortgagees which Tenant has received written notice, if any, (Landlord shall
provide Tenant written notice of its current mortgagee’s notice address, if
any, by Term Commencement Date and upon any future change in such mortgagee
notice address) specifying the act or failure to act on the part of Landlord
which could or would give basis to Tenant’s rights, and (ii) such
mortgagees, after receipt of such notice, have failed or refused to correct or
cure the condition complained of within a reasonable time thereafter, but
nothing contained in this Section 8.5 shall be deemed to impose any
obligation on any such mortgagee to correct or cure any such condition.  “Reasonable time” as used above means and
includes a reasonable time to obtain possession of the mortgaged premises, if
the mortgagee elects to do so, and a reasonable time to correct or cure the
condition if such condition is determined to exist, but in no event more than
thirty (30) days from the delivery of such notice.


 


8.6                               CONTINUING
OFFER


 


The
covenants and agreements contained in this Lease with respect to the rights,
powers and benefits of a mortgagee (particularly, without limitation thereby,
the covenants and agreements contained in this Article 8) constitute,
during the Term of this Lease, a continuing offer to any person, corporation or
other entity, which by accepting or requiring an assignment of this Lease or by
entry or foreclosure assumes the obligations herein set forth with respect to
such mortgagee, and such mortgagee shall be entitled to enforce such provisions
in its own name.  Tenant agrees on
request of Landlord to execute and deliver from time to time any agreement
which may reasonably be deemed necessary to implement the provisions of this Article 8.


 


8.7                               MORTGAGEE’S
APPROVAL


 


Landlord’s
obligation to perform its covenants and agreements hereunder is subject to the
condition precedent that this Lease be approved by the holder of any mortgage
of which the Premises are a part and by the issuer of any commitment to make a
mortgage loan which is in effect on the date hereof.  Unless Landlord gives Tenant written notice
within fifteen (15) business days after the date upon which both parties have
executed the Lease that such holder or issuer, or both, disapprove this Lease,
then this condition shall be deemed to have been satisfied or waived and the
provisions of this Section 8.7 shall be of no further force or
effect.  If Landlord provides such notice
of disapproval to Tenant within fifteen (15) business days after the Effective
Date, then all of Landlord’s and Tenant’s


 


35

















 


obligations hereunder shall
be deemed terminated and this Lease shall terminate without recourse to the
parties hereto.


 


8.8                               SUBMITTAL OF
FINANCIAL STATEMENT


 


At
any time and from time to time during the Term of this Lease, but not more than
annually, within thirty (30) days after request therefore by Landlord and/or
its mortgagee, Tenant shall supply to Landlord and/or its mortgagee its most
recent audited annual financial statement (including, without limitation, a
balance sheet and income statement) or such current financial statement
(unaudited), which Tenant has in its possession at the time of such request, as
may be reasonably required by any such party. However, as long as Tenant is a
public corporation, then Tenant’s obligations hereto will be satisfied by
providing electronic access to Tenant’s Security and Exchange Commission
filings.


 


ARTICLE 9


DEFAULT


 


9.1                                                                               EVENTS OF
DEFAULT BY TENANT


 


It
shall be an “Event of Default” under this Lease, if (i) Tenant fails to
pay Fixed Rent or additional rent for more than seven (7) days, after
notice thereof specifying such failure and that such failure may be an Event of
Default hereunder; or (ii) Tenant fails to perform its non-monetary
obligations hereunder for more than thirty (30) days after notice thereof from
Landlord, together with such additional time, if any, as is reasonably required
to cure the default if the default is of such a nature that it cannot
reasonably be cured in thirty (30) days; or (iii) Tenant makes any
assignment for the benefit of creditors, or files a petition under any
bankruptcy or insolvency law and such petition is not dismissed within one
hundred fifty (150) days; or (iv) if a receiver becomes entitled to Tenant’s
leasehold hereunder and it is not returned to Tenant within one hundred fifty
(150) days; or (v) such leasehold is taken on execution or other process
of law in any action against Tenant; then, and in any such cases, Landlord and
the agents and servants of Landlord may, in addition to and not in derogation
of any remedies for any preceding breach of covenant, immediately or at any
time thereafter while such default continues and without further notice enter
into and upon the Premises or any part thereof in the name of the whole or mail
a notice of termination addressed to Tenant at the address for notices
contained in this Lease and repossess the same as of Landlord’s former estate
and expel Tenant and those claiming through or under Tenant and remove its and
their effects without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or
prior breach of covenant, and upon such entry or mailing as aforesaid, this
Lease shall terminate.  After any such
termination, Tenant hereby waives all statutory rights of redemption, if any to
the extent such rights may be lawfully waived, and Landlord, without notice to
Tenant, may store Tenant’s effects and those of any person claiming through or
under Tenant at the expense and risk of Tenant and, if Landlord so elects, may
sell such effects at public auction or private sale and apply the net proceeds
to the payment of all sums due to Landlord from Tenant, if any, and pay over
the balance, if any, to Tenant, but only if Tenant fails to claim such effects
within forty-five (45) days of the termination of the Lease.


 


If
Tenant shall at any time default in the performance of any obligation under
this Lease which default shall remain uncured after the expiration of any
applicable notice and cure periods therefore and Landlord does not have notice
that Tenant is disputing such obligation in good faith, Landlord shall have the
right, but shall not the obligation, to enter upon the Premises and to perform
such 


 


36

















 


obligation.  In performing such obligation, Landlord may
make any payment of money or perform any other act.  All sums so paid by Landlord, together with
interest at the rate of twelve percent (12%) per annum, and all necessary
incidental costs and expenses, provided such are reasonable, in connection with
the performance of any such acts by Landlord, shall be deemed to be additional
rent under this Lease and shall be payable to Landlord within twenty (20) days
of demand.  Landlord may exercise the
foregoing rights without waiving any other of its rights or releasing Tenant
from any of its obligations under this Lease.


 


9.2                               TENANT’S
OBLIGATIONS AFTER TERMINATION


 


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


 


(a)                                 to pay
forthwith to Landlord, as compensation, a lump sum equal to the total rent
reserved for the residue of the Term.  In
calculating the rent reserved, there shall be included, in addition to the
Rent, the value of all other consideration agreed to be paid or performed by
Tenant for said residue, less the net proceeds of any rents obtained by
Landlord in reletting the Premises as provided in (b)(ii) below; and


 


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


 


Landlord
agrees to use commercially reasonable efforts to relet the Premises following
termination provided, however, that Landlord: (x) may
relet the Premises or any part or parts thereof for a term or terms which may,
at Landlord’s option, be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term, and may grant such
concessions and free rent as Landlord in its reasonable judgment considers
advisable or necessary to relet same in the market; (y) may
make such alterations, repairs and decorations in the Premises as Landlord, in
its sole judgment, considers advisable or necessary to relet the same, and no
action of Landlord in accordance with the foregoing sub clauses (x) and/or (y), or Landlord’s
failure to relet, shall operate or be construed to release or reduce Tenant’s
liability as aforesaid; and (z) shall
have no duty to relet the Premises to a prospective tenant who is also
interested in leasing other space that Landlord (or its affiliate(s)) then has
available.


 


37

















 


So
long as at least twelve (12) months of the Term remain unexpired at the time of
such termination, in lieu of any other damages of indemnity and in lieu of full
recovery by Landlord of all sums payable under all the foregoing provisions of
this Section 9.2, Landlord may, by written notice to Tenant, at any time
after this Lease is terminated under any of the provisions contained in Section 9.1,
or is otherwise terminated for breach of any obligation of Tenant and before
such full recovery, elect to recover, and Tenant shall thereupon pay, as
liquidated damages, an amount equal to the aggregate of the Rent accrued under Article 4
in the twelve (12) months ended prior to such termination (or if the Term has
not yet commenced, the Rent that would be due for the first twelve (12) months)
plus the amount of Rent of any kind accrued and unpaid at the time of
termination.


 


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


 


9.3                               EVENTS OF
DEFAULT BY LANDLORD.


 


It
shall be an “Landlord Event of Default” under this Lease, if Landlord fails to
perform its obligations hereunder for more than thirty (30) days after notice
thereof from Tenant, together with such additional time, if any, as is
reasonably required to cure the default if the default is of such a nature that
it cannot reasonably be cured in thirty (30) days.  In the event of a Landlord Event of Default,
without limitation to any other rights Tenant may have at law and equity (each
of which rights Tenant expressly reserves), which default shall remain uncured
after the expiration of any applicable notice and cure periods and Tenant does
not have notice that Landlord is disputing such obligation in good faith,
Tenant shall have the right, but shall not the obligation, to perform such
obligation.  Notwithstanding any language
to the contrary set forth in this Section, in no event shall Tenant have any
right to perform any obligations that are outside of the Premises, that affect
any space not leased by Tenant, that affect any Common Area of the Building,
the Lot or the Park, that affect the structure of the Building, or that affect
any of the life safety or building systems of the Building (except as set forth
in Section 6.1.2 to the contrary). 
In performing such obligation, Tenant may make any payment of money or
perform any other act.  All sums so paid
by Tenant, together with interest at the rate of twelve percent (12%) per
annum, and all necessary incidental costs and expenses, provided such are
reasonable, in connection with the performance of any such acts by Tenant,
shall be payable by Landlord to Tenant within twenty (20) days of demand.  Tenant may exercise the foregoing rights
without waiving any other of its rights or releasing Landlord from any of its
obligations under this Lease.


 


ARTICLE 10


MISCELLANEOUS


 


10.1                        TITLES


 


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


 


38

















 


10.2                        NOTICE OF LEASE


 


Upon
the request of either party and after the determination of the actual Term
Commencement Date, both parties shall execute and deliver a short form of this
Lease in a form substantially similar to that attached hereto as Exhibit L.  If this Lease is terminated before the Term
expires, the parties shall execute and deliver a mutually acceptable,
recordable instrument acknowledging the date of termination within twenty (20)
days of such written request.


 


10.3                        ACCESS


 


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


 


10.4                        NOTICES FROM
ONE PARTY TO THE OTHER


 


No
notice, approval, consent requested or election required or permitted to be given
or made pursuant to this Lease shall be effective unless the same is in
writing.  Communications shall be
addressed, if to Landlord, at Landlord’s Address, together with a copy to
Gloria M. Gutierrez, Executive Vice President and Corporate Counsel, The Gutierrez
Company, One Wall Street, Burlington, MA 01803, or at such other address or
addresses as may have been specified by prior notice to Tenant and, if to
Tenant, at Tenant’s Address with a copy as specified in Article 1.1, or
such other place or places as may have been specified by prior notice to
Landlord.  Any communication so addressed
shall be served if mailed by registered or certified mail, return receipt
requested, delivered by hand, or delivered by a recognized overnight courier by
a carrier providing a receipt of delivery, and deemed delivered three (3) days
after mailing by registered or certified mail, return receipt requested, the
day of delivery if delivered by hand, the next business day if sent via
recognized overnight courier, or the day of receipt if send via a carrier
providing receipt of delivery.  Landlord
or Tenant may from time to time designate any other address for this purpose by
providing written notice to the other party.


 


10.5                        BIND AND INURE


 


The
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Landlord named herein and
each successive owner of the Premises shall be liable only for the obligations
accruing during the period of its ownership. 
Neither the Landlord named herein nor any successive owner of the
Premises whether an individual, trust, a corporation or otherwise shall have
any personal liability beyond their equity interest in the Premises.


 


10.6                        NO SURRENDER


 


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


 


39

















 


10.7                        NO WAIVER, ETC.


 


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


 


10.8                        NO ACCORD AND
SATISFACTION


 


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


 


10.9                        CUMULATIVE
REMEDIES


 


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


 


10.10                 PARTIAL
INVALIDITY


 


If
any term of this Lease, or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.


 


10.11                 Intentionally
Deleted


 


40














 


10.12       ESTOPPEL CERTIFICATE


 


Tenant
and Landlord agree from time to time upon not less than fifteen (15) days’
prior written request by the other, to execute, acknowledge and deliver to the
other a statement in writing in substantially the form attached hereto as Exhibit G
(or such other form reasonably requested by Landlord’s lender), certifying that
this Lease is unmodified and in full force and effect; that Tenant has no
defenses, offsets or counterclaims against its obligations to pay the Fixed
Rent and additional rent and to perform its other covenants under this Lease
except as provided for in this Lease; that there are no uncured defaults of
Landlord or Tenant under this Lease (or, if there are any modifications,
defenses, offsets, counterclaims, or defaults, setting them forth in reasonable
detail); and the dates to which the Fixed Rent, additional rent and other
charges have been paid, and such other readily verifiable factual matters for
which certification is reasonably requested by the other party, provided such
information is accurate and in which case additional information may be added
to the proposed estoppel certificate to correct the information.  Any such statements delivered pursuant to
this Section 10.12 may be relied upon by any prospective purchaser or
mortgage of premises which include the Premises or any prospective assignee of
any such mortgagee, and any persons reasonably specified in the notice
requesting such certificate.


 


10.13       WAIVER OF SUBROGATION


 


Landlord
and Tenant mutually agree, with respect to any hazard which is covered by
casualty or property insurance (including worker’s compensation insurance) then
being carried by them, or required to be carried hereunder (whether or not such
insurance is then in effect) to release each other from any and all claims with
respect to such loss; and they further mutually agree that their respective
insurance companies shall have no rights of, or agree to waive, subrogation
against the other on account thereof. 
Landlord and Tenant agree that any policies presently existing or to be
obtained on or after the date hereof (including renewals of present policies)
shall include a clause or endorsement to the effect that any such release shall
not adversely affect or impair said policies or prejudice the right of the
insured to recover thereunder.


 


10.14       BROKERAGE


 


Tenant
and Landlord represent and warrant that they have dealt with no broker in
connection with this transaction other than those listed in Section 1.1,
and agrees to defend, indemnify and save the other, as the case may be,
harmless from and against any and all claims for a commission arising out of
this Lease made by anyone other than those listed in Section 1.1.  Landlord agrees to pay all brokerage
commissions or fees due to said brokers listed in Section 1.1 pursuant to
Landlord’s separate agreement with such brokers.


 


10.15       CONFIDENTIALITY


 


This
Lease document is a confidential document by and between Landlord and Tenant,
and the parties agree that this Lease shall not be disclosed, copied,
distributed or circulated to any person(s) other than to such parties and
their respective mortgagees, prospective or actual successors or assigns, their
legal counsel, their accountants, their architects, their relocation
specialists or as required by law, without prior written consent of Landlord
and Tenant, which consent shall not be unreasonably withheld or delayed;
provided, however, that nothing contained in this Section 10.15 shall
prevent either party from promptly making all filings with any authority or
securities exchange as may, in its 


 


41

















 


reasonable judgment, be
required or advisable in connection with the executive and delivery of this
Lease, the consummation of the transactions contemplated hereby, by applicable
law or by the rules and regulations of any securities exchange.


 


10.16       GOVERNING LAW; COUNTERPARTS


 


This
Lease shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts and any dispute shall be litigated in the
appropriate state or federal court closest to the Premises.


 


10.17       SECURITY DEPOSIT


 


a.             Security in the amount of
Five Hundred Thousand Dollars ($500,000.00) shall be delivered by Tenant to
Landlord on or prior to the Term Commencement Date (the “Security”).  Such Security shall be, at Tenant’s sole
option, in the form of (i) cash, or (ii) a Letter of Credit in
substantially the form attached hereto as Exhibit “K”, and in the case of
such Letter of Credit shall (a) name the Landlord as its beneficiary, (b) expire
not less than one (1) year after the issuance thereof, and (c) be
drawn on an FDIC-insured financial institution reasonably satisfactory to
Landlord.  Tenant shall, from time to
time, as necessary, renew or replace or amend the Letter of Credit no fewer
than twenty-five (25) banking days prior to the expiration date of the Letter
of Credit then held by Landlord, and if Tenant fails to renew or replace or
amend said Letter of Credit or provide cash in the applicable amount by not
later than twenty-five (25) banking days prior to expiry date of the Letter of
Credit, Landlord may draw upon such Letter of Credit and hold the proceeds
thereof in an account as Security, without interest until Tenant provides to
Landlord a replacement letter of credit complying with the requirements for the
original Letter of Credit as set forth above. 
In such event, within ten (10) days after Landlord’s receipt of the
replacement Letter of Credit, Landlord shall reimburse to Tenant such proceeds previously
drawn.


 


b.             Landlord may, from time to
time, without prejudice to any other remedy, use all or a portion of the
Security to cure any continuing Event of Default, including any uncured default
in connection with any arrearages of Rent, costs incurred by Landlord to repair
damage to the Premises caused by Tenant, and any costs incurred by Landlord to
repair (other than normal wear and tear or damage caused by Landlord, its
agents or employees) the Premises upon termination of this Lease.  Following any such application of the
Security, Tenant shall, within ten (10) business days after receipt of
written demand, restore the cash security or Letter of Credit to the then
applicable full amount.  Tenant shall not
have the right to call upon Landlord to apply all or any part of the Security
to cure any continuing Event of Default, but such use shall be solely in the
discretion of Landlord.  If there is no
continuing Event of Default, at the termination of this Lease, after Tenant
surrenders the Premises to Landlord in accordance with this Lease and all
amounts then due Landlord from Tenant are finally determined and paid by Tenant
or through application of the Security, the balance of the Security, either
cash or the Letter of Credit, as applicable, shall be returned to Tenant within
sixty (60) days of expiration of the Term and surrender of the Premises,
whichever may be later.  If Landlord
transfers its interest in the Premises during the Term, Landlord shall assign the
Security to the transferee, Landlord shall promptly notify Tenant of the
assignment in advance and thereafter have no further liability for the return
of the Security.  If the Security is in
the form of a Letter of Credit, Landlord shall have no further liability for
the return of such Letter of Credit once the Letter of Credit has been
appropriately assigned to the assignee, the assignee has assumed all of
Landlord’s obligations under this Lease, and Landlord has notified Tenant, in
writing, of both.  Upon any such delivery
and assignment, Tenant 


 


42

















 


hereby releases the then
existing Landlord of any and all liability with respect to the Letter of
Credit, its application and return, and Tenant agrees to look solely to such
assignee or transferee.  It is further
understood that this provision shall also apply to subsequent assignees or
transferees.  Upon request by Tenant,
Landlord shall provide Tenant with a copy of the assignment and assumption or
other written documentation that was entered into to effectuate the transfer of
the Letter of Credit and this Lease. 
Landlord shall not be required to segregate the Security from its other
accounts or, except as otherwise specified herein, to pay interest thereon, as
aforesaid.


 


c.             In the event the Lease is
assigned by Tenant, Tenant’s assignee may provide a replacement Letter of
Credit and the original Letter of Credit held by Landlord shall be promptly
returned to Tenant, provided that such assignees Letter of Credit shall remain
subject to all of the terms and conditions of this Article 10.17.  Landlord shall deliver the original prior
Letter of Credit to the prior tenant simultaneously upon the delivery of the
replacement Letter of Credit by Tenant’s assignee or as soon as possible
thereafter.


 


d.             Provided that Tenant has
timely paid all Fixed Rent and additional rent due under this Lease during the
twelve (12) month period immediately preceding the effective date of any
reduction of the Security Deposit, Tenant shall have the right to reduce the amount
of the Security Deposit so that the reduced amounts will be as follows: (i) Four
Hundred Fifty Thousand and NO/100 Dollars ($450,000.00) as of the first
anniversary of the Term Commencement Date, (ii) Four Hundred Thousand and
NO/100 Dollars ($400,000.00) as of the second anniversary of the Term
Commencement Date, (iii) Three Hundred Fifty Thousand and NO/100 Dollars
($350,000.00) as of the third anniversary of the Term Commencement Date, and (iv) Three
Hundred Thousand and NO/100 Dollars ($300,000.00) as of the fourth anniversary
of the Term Commencement Date.  Any
reduction in the Security in the form of a Letter of Credit shall be
accomplished by Tenant providing Landlord with a substitute letter of credit in
the reduced amount, in which case Landlord shall return the original previous
letter of credit to Tenant within three (3) business days after receipt of
the reduced letter of credit.


 


10.18       GUARANTY


 


Intentionally
Deleted.


 


10.19       JOINT INSPECTION AT
TERMINATION


 


The
parties shall perform a joint inspection of the Premises upon the lease
expiration or termination to jointly document the state of the Premises and any
damages.  In the event Landlord fails to
perform and document the joint inspection within twenty (20) days of such
expiration or termination, then the Premises shall be deemed to have been
returned in an acceptable manner and the full amount of the Security shall be
refunded to Tenant.


 


10.20       ROOFTOP
EQUIPMENT/GENERATOR/SMOKING SHELTER


 


a.             Landlord hereby grants to
Tenant the right, at Tenant’s own cost and expense, but without payment of rent
or additional rent under this Lease, to install a satellite dish(es) on the
roof and/or an additional back-up generator/mechanical pad on the Lot, and any
associated equipment required in connection therewith, all at mutually
agreeable locations and/or a mutually agreeable size as may be required for the
proper conduct of Tenant’s business, subject to applicable state and local 


 


43

















 


laws, codes, rules and
regulations.  Tenant shall operate Tenant’s
satellite dish(es) on the roof and such generator/mechanical pad on the Lot,
together with any such related equipment, in a manner that will not cause
interference to Landlord and other tenants of the Building or Park, and all
operations by Tenant shall be in compliance with all applicable laws, rules,
codes or restrictions.  Tenant shall be
responsible to obtain all permits associated with any work contemplated in this
Section, and copies shall be furnished to Landlord upon Landlord’s written
request.  All work shall be completed
pursuant to and subject to the provisions of Section 6.1.15 hereof.  Tenant shall be required to maintain all of
such equipment at its sole cost in accordance with best industry standards and
Landlord’s agent shall accompany Tenant or any agent when making necessary
repairs to any of such equipment.  In the
event that Tenant proceeds with the installation itself, subject to the
provisions of Section 6.1.15 as aforesaid, then Tenant shall be
responsible to repair, at Tenant’s sole cost and expense, within a reasonable
period of time established by Landlord, any damage caused by installation,
operation and/or removal of Tenant’s aforesaid installed equipment, or due to
the acts or omissions of Tenant, its employees, contractors, agents, customers
and business partners and invitees. 
Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all liability or loss arising from or out of the installation,
maintenance or removal of such equipment. 
Upon expiration of the Term, Tenant shall be responsible for the removal
of such equipment and for repairing any damage resulting therefrom.


 


b.             Landlord shall install a
patio and smoking shelter on the Lot and Tenant shall be responsible for its
Pro Rata share of such cost.  Tenant
shall have the right to approve the location of the patio and smoking shelter,
such approval shall not be unreasonably withheld, conditioned or delayed.  This Section shall survive the
expiration or earlier termination of this Lease.


 


10.21       FURNITURE/EQUIPMENT/EXISTING
BACK-UP GENERATOR


 


All
furniture, equipment and the existing backup generator currently located in the
Premises and identified in the inventory attached hereto and incorporated
herein as Exhibit N shall, for the price of $1.00, become the property of
the Tenant as of the Term Commencement Date (collectively, the “Sold Property”).  On September 1, 2010, or such later date
on which Landlord acquires title to the Sold Property from IBM, Landlord hereby
agrees to convey, transfer set over, and grant to Tenant all of Landlord’s
right, title and interest in and to all the Sold Property, and, in connection
therewith execute and deliver to Tenant a Bill of Sale with respect to such
Sold Property, in the form attached hereto as Exhibit O.  To the extent Tenant does not want to use any
or all of such Sold Property, then upon the giving of written notice specifying
such items to Landlord on or before such date which is fifteen (15) days
following the execution of this Lease by both Landlord and Tenant, Landlord
shall remove and dispose of such furniture specified in Tenant’s notice, at
Landlord’s sole cost and expense, prior to the Term Commencement Date, or
earlier, if necessary.


 


10.22       IBM CONTINGENCY


 


Notwithstanding
anything set forth in this Lease to the contrary, the obligations of both
Landlord and Tenant are expressly contingent on Landlord obtaining a mutually
satisfactory termination of that certain existing lease at the Building with
IBM.  Landlord shall use diligent efforts
to secure such termination provided above within ten (10) days of the
Effective Date.  In the event that
Landlord does not provide Tenant with reasonable satisfactory evidence of such
termination within ten (10) days of the Effective Date, either party may
immediately terminate this Lease upon written notice to the other.


 


44

















 


10.23       TERMINATION OF SUBLEASE
CONTINGENCY.


 


Notwithstanding
anything to the contrary in this Lease, the obligations of both Landlord and
Tenant are expressly contingent on Tenant and Landlord obtaining a mutually
satisfactory termination of that certain existing sublease with Teradyne, Inc.
for space at Building 5, 7 Technology Park Drive, Westford. Tenant shall use
diligent efforts to secure such termination provided above within two (2) days
of the Effective Date.  In the event that
the Lender (as defined in that termination agreement) does not provide the
consent required under that termination agreement within twelve (12) days of
the Effective Date, either party may immediately terminate this Lease upon
written notice to the other.


 


Remainder of Page Intentionally Left Blank


Signature Page to Follow


 


45

















 


EXECUTED as a sealed
instrument in two (2) or more counterparts on the day and year first above
written.  The effective date of this
Lease is the date of execution by the last party to sign (the “Effective Date”).


 


 


	
  TENANT:

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
  SONUS NETWORKS, INC.

  	
   

  	
  MICHELSON
  FARM-WESTFORD TECHNOLOGY PARK IV LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  The Gutierrez Company, its Sole General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Wayne Pastore

  	
   

  	
  By:

  	
  /s/
  Arthur J. Gutierrez, Jr.

  
	
  Printed Name: Wayne Pastore

  	
   

  	
  Printed
  Name: Arthur J. Gutierrez, Jr.

  
	
  Title:

  	
  Senior
  Vice President and Chief Financial Officer

  	
   

  	
  Title:

  	
  President

  
	
  Date:

  	
  August 11,
  2010

  	
   

  	
  Date:

  	
  August 11,
  2010

  



 


46

















 


EXHIBIT A-1


PLAN SHOWING PREMISES


 


(SEE ATTACHED)


 


47

















 


EXHIBIT A-2


PRELIMINARY TENANT’S PLANS


 


(SEE ATTACHED)


 


48

















 


EXHIBIT B


DESCRIPTION OF THE LOT


 


The land in Westford,
Middlesex County, Massachusetts, shown as Lot 4B as shown on a plan entitled “Definitive
Plan of Land, Westford Technology Park, Westford, Massachusetts”, prepared by
Howe Surveying Associates, Inc., Scale 1”=100; Dated June 3, 1996,
Revised July 12, 1996 and recorded with the Middlesex North Registry of
Deeds in Plan Book 192, Plan 24.


 


49

















 


EXHIBIT C


BASE BUILDING IMPROVEMENT


 


Landlord agrees to perform
the following base building work:


 


	
   

  	
  ·

  	
  Landlord will deliver all
  mechanical, HVAC, plumbing, life safety, elevators and electrical equipment
  in good working order;

  
	
   

  	
  ·

  	
  Landlord will add enclosed
  weather separation vestibule at entrance to the Building;

  
	
   

  	
  ·

  	
  Landlord will add a canopy
  at the front entry curtainwall of the Building;

  
	
   

  	
  ·

  	
  Landlord will replace the
  floor tile with new tile and stair service with carpet at the rear stair
  vestibule;

  
	
   

  	
  ·

  	
  Landlord and Tenant to
  mutually agree to selective landscape trimming and Landlord to provide such
  landscape trimming;

  
	
   

  	
  ·

  	
  Landlord shall relocate
  existing flagpole to a location approved by Tenant;

  
	
   

  	
  ·

  	
  Landlord to remove
  existing mobile and replace with pendant lighting and other access lighting
  in the Building lobby;

  
	
   

  	
  ·

  	
  Landlord shall remove
  existing revolving door and replace with one pair of doors, along with a
  vestibule;

  
	
   

  	
  ·

  	
  Landlord shall paint
  existing exterior lobby curtainwall system and adjacent window elevations;

  
	
   

  	
  ·

  	
  Landlord shall replace
  glass in lobby curtainwall to match adjacent building;

  
	
   

  	
  ·

  	
  Landlord shall furnish and
  install two new glass tenant entries in Building lobby — one for Tenant and
  one for future third party tenant;

  
	
   

  	
  ·

  	
  Landlord shall remove
  outdoor brick seating area and replace with loam and grass;

  
	
   

  	
  ·

  	
  Landlord shall remove
  metal railings at the front stair and at the second floor lobby and replace
  with glass rail;

  
	
   

  	
  ·

  	
  Landlord shall remove
  existing lobby tile and replace with 12”x 12” porcelain tile;

  
	
   

  	
  ·

  	
  Landlord shall paint lobby
  area in a color approved by Tenant from Landlord’s standard color selections,
  not to be unreasonably withheld or delayed by Tenant;

  
	
   

  	
  ·

  	
  Landlord shall remove the
  shed located behind the Building by the loading dock; and

  
	
   

  	
  ·

  	
  In the event another
  tenant occupies the vacant portion of the Building, Landlord shall construct
  a demising wall on the first floor of the Building. In no event shall Tenant
  be responsible for such construction. Tenant shall have the right to approve
  the location of the demising wall, such approval shall not be unreasonably
  withheld, conditioned or delayed.

  



 


For clarity, the cost of the
services noted in this Exhibit C shall not be included in the Lab Upgrade
Allowance or the TI Allowance.


 


50






 










 


EXHIBIT D-1


 


LANDLORD’S SERVICES


 


The Landlord shall provide
the following services:


 


I.             WATER


 


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


 


II.            BUILDING SYSTEMS


 


All
Building systems, including but not limited to electrical, fire safety and
sprinkler, and water (but excluding HVAC and elevators, which are Tenant’s
responsibility pursuant to Exhibit D-2), operate 24 hours per day, 7 days per
week, subject to repairs, failures and interrupted service beyond Landlord’s
control.  Landlord shall control all of
the aforesaid Building systems, except for the HVAC, elevators, and certain
components of the life safety systems, as set forth in Exhibit D-2.


 


III.          SECURITY TO BUILDING AND
COMMON AREAS/ACCESS


 


Landlord
shall maintain and be responsible for providing the Building with an electronic
keypad at the exterior doors of the Building, but not the Premises, for after
hours Building access.


 


Landlord
shall control keying for perimeter exterior doors of the Building, the common
areas and mechanical, electrical and sprinkler rooms, and Landlord shall
provide Tenant with the key(s) for such areas.


 


51

















 


EXHIBIT D-2


TENANT’S SERVICES


 


The Tenant shall provide the
following services pursuant to, and subject to, the provisions of Section 6.1.2
of the Lease:


 


I.             CLEANING


 


Tenant shall be responsible
for securing janitorial service for the Premises, including all restrooms and
the main lobby of the Building, at such times and services that are consistent
with other class “A” office and laboratory buildings in the Merrimack Valley
area.  Notwithstanding the foregoing, in
the event that another tenant occupies the Building, Landlord will require such
other tenant to contribute it’s pro-rata share for cleaning the common areas.


 


II.            HEATING, VENTILATING AND AIR
CONDITIONING


 


1.             Tenant shall control and be
responsible for heating, ventilation and air conditioning (“HVAC”) to the
Premises and the Building.  Landlord
represents and warrants that the HVAC equipment is in good working order and
that it will provide adequate service to the Building and to the Premises and
is able to provide reasonably comfortable temperatures for normal occupancy.


 


2.             Upon occupancy of any future
tenant(s) of said remaining space, or portion thereof, Landlord shall reimburse
Tenant for providing such HVAC at a rate equal to $1.25/RSF based on the
occupied square footage for normal office use and a pro-rated portion of the
Common Area, subject to adjustment as electric costs increase.  Tenant shall provide HVAC service to such
remaining space from Monday through Friday, from 8:00 AM to 6:00 PM, and for
Saturday occupancy from 8:00 AM to 1:00 PM if so requested by Landlord and/or
its tenant(s) of said remaining space, by providing at least 24 hours prior
notice to Tenant.  Landlord shall be
responsible for maintenance and repairs of heating, ventilation and air
conditioning systems contained within such remaining space and exclusively
servicing such remaining space.  HVAC
services beyond the aforesaid hours can be made available to Landlord and/or
its tenant(s) of such remaining space, if so requested, by providing at least
24 hours prior written notice and at a current cost of $50.00 per hour per
unit, subject to adjustment as electric costs increase.  The request shall clearly state the start and
stop hours of the “off-hour” service. 
Landlord shall submit to Tenant a list of personnel who are authorized
to make sure requests.


 


3.             Maintenance on any
additional or special air conditioning equipment owned or installed by Tenant
for exclusive service to the Premises, and the associated operating cost
thereof, will be at Tenant’s expense.


 


III.          ELEVATORS


 


Elevators
for the use of all tenants of the Building and the general public for access to
and from all floors of the Building, programming of elevators (including, but
not limited to, service elevators), shall be as Tenant from time to time
determines best for the Building as a whole, taking into account reasonable recommendations
from Landlord.  The elevators shall
operate 


 


52

















 


24
hours per day, 7 days per week, subject to repairs, failures and interrupted
service beyond Tenant’s control.


 


IV.          SECURITY/ACCESS


 


Twenty-four
(24) hour entry to the Building and Premises is available to Tenant and Tenant’s
employees.  Tenant shall have
unrestricted access to its Premises at all times, and not just during normal
building hours and operation.  All
security within the Premises shall be the responsibility of the Tenant.  Tenant shall have the right to install its
own interior and exterior security card access system.  Landlord shall control keying for perimeter
exterior doors of the Building, the common areas and mechanical, electrical and
sprinkler rooms, and Landlord shall provide Tenant with the key(s) for such
areas.  Tenant shall provide Landlord and
the Westford Fire Department with reasonable access to the Premises.  In the event that another tenant occupies the
Building, this Lease shall be amended to provide that Tenant is not responsible
for providing security to such other tenant’s area and that Landlord shall be
responsible for providing security to the common areas.


 


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


 


1.             Any space to be
used primarily for lunchroom or cafeteria operation within the Premises shall
be Tenant’s responsibility to keep clean and sanitary.  Cafeteria, vending machines or refreshment
service installations by Tenant must be approved by Landlord in writing.  All maintenance, repairs and additional
cleaning necessitated by such installations shall be at Tenant’s expense.


 


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


 


3.             All lavatories
and showers located within the Premises (if applicable) shall be Tenant’s
responsibility to maintain, repair and clean. 
At Tenant’s request, Landlord shall perform the same at reasonable and
competitive rates from time to time established by Landlord to be paid by
Tenant.


 


VI.          SIGNAGE


 


Tenant
shall be entitled to the Building’s standard signage at Tenant’s main entry and
on the Building’s lobby directories, as well as monument style signage at the
Building.  See
also Section 6.1.18 of the Lease regarding signage on the exterior of the
Building and other signage related provisions.


 


VII.         ELECTRICITY


 


1.             Tenant shall pay for all
electricity consumed in the Building (subject to such reimbursement as
hereinafter provided).  Landlord shall
install, at Landlord’s sole cost and expense, a sub-meter(s) in the future
tenant space(s) contained in said remaining area of the Building that are not
part of the Premises for all lights and plugs. 
Landlord shall invoice Tenant for the cost of Tenant’s electricity at
the rate charged by the utility service provider on a monthly basis based on
the meter readings for the Building measuring Tenant’s actual electrical
consumption, less the future tenant sub-meter consumption referenced above and
such future


 


53

















 


tenant
pro-rata share for Common Area charges, and Tenant shall reimburse Landlord, as
additional rent, for such consumption within thirty (30) days upon receipt of
Landlord’s invoice therefore.


 


2.             Tenant’s use of electrical
service in the Premises shall not at any time exceed the capacity of any of the
electrical conductors or other equipment in or otherwise serving the Premises or
the Building standard, as hereinafter provided. 
To ensure that such capacity is not exceeded and to avert possible
adverse effects upon the Building’s electrical system, Tenant shall not,
without at least thirty (30) days prior written notice to and consent of
Landlord in each instance and compliance with the alteration section of this
Lease, connect to the Building electric distribution system any fixtures,
appliances or equipment which operates on a voltage in excess of 277/480 volts
nominal, or make any alteration or addition to the electric system of the
Premises.  In the event Tenant shall use
(or request that it be allowed to use) electrical service in excess of that
deemed by Landlord to be standard for the Building, Landlord may refuse to
provide such excess usage or refuse to consent to such usage or may consent
upon such conditions as Landlord reasonably elects (including, but not limited
to, the installation of utility service upgrades, air handlers or cooling
units), and all such additional usage (except to the extent prohibited by law),
installation and maintenance thereof shall be paid for by Tenant, as additional
rent, upon Landlord’s demand, so long as no other tenants are receiving excess
usage.


 


3.             It is understood that the
electrical generated service to the Premises may be furnished by one or more
generators of electrical power and that the cost of electricity may be billed
as a single charge or divided into and billed in a variety of categories, such
as distribution charges, transmission charges, generation charges, congestion
charges, capacity charges, public good charges, and other similar categories,
and that Tenant shall not be responsible for any fee, commission or other
charge by an unaffiliated broker, aggregator or other intermediary for
obtaining or arranging the supply of generated electricity.  Landlord shall have the right to select the
generator of electricity to the Premises and the Building and to purchase
generated electricity for the Premises and the entire Building through a
broker, aggregator or other intermediary and/or buyers group or other group and
to change the generator of electricity and/or manner of purchasing electricity
from time to time.


 


4.             If Landlord successfully
undertakes electrical generation activities for the purpose of reducing Tenant’s
electrical related operating costs (such as negotiating an agreement with a
utility or another energy generator or engaging an energy consultant or
undertaking conservation or other energy efficient measures that may require
capital expenditures), Tenant shall pay its proportionate share of such
electric related increases with respect to Landlord’s electrical generator
activities hereunder, however, such amount shall in no event exceed 10% of the
prior year’s Operating Costs.  In no
event shall the foregoing be a cap on actual electrical utility charges payable
by Tenant hereunder.  In no event shall
Tenant pay for capital expenditures related to such electrical generation
activities, either directly or through a Landlord Operating Cost charge.


 


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


 


54

















 


VIII.       OTHER UTILITIES


 


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


 


IX.          LIFE SAFETY


 


Tenant
shall control and maintain, in good order and repair and in compliance with all
applicable laws and codes, the fire extinguishers for the Premises and the fire
suppression system for the cafeteria.


 


55

















 


EXHIBIT E


RULES AND REGULATIONS


 


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


 


2.             No curtains,
blinds, shades, screens, advertisements, or signs, or the like other than those
furnished by Landlord, shall be attached to, hung in, affixed to, or used in
connection with any window or door of the Premises or to any other area of the
Premises (including without limitation on interior windows, walls and doors)
that is visible from the outside of the Building or visible from any common
area of the Building without the prior written consent of the Landlord (taking
into account such factors such as size, color and style and compatibility with
the Building).  If Tenant is not the sole
Building tenant, interior signs on doors on the common areas of the Building
shall be painted or affixed for Tenant by Landlord, or by sign painters first
approved by Landlord, at the expense of Tenant and shall be of a size, color
and style acceptable to Landlord and shall be compatible to the Building.


 


3.             Tenant shall
furnish Landlord with master keys or access devices for any security (door
access) system provided and installed by Tenant, so long as the same has been
approved by Landlord.  Tenant shall be
allowed to place additional locks or bolts upon doors and windows within the
Premises, as long as Tenant provides master keys to Landlord as aforesaid as
these additional locks and bolts could prove to be a hindrance to Landlord
providing building services, such as cleaning and maintenance.  Tenant must, upon the termination of its
tenancy, remove all additional locks and bolts and restore all original door
hardware and provide Landlord all Building keys either furnished to or
otherwise procured by Tenant; and in the event of the loss of any keys so
furnished, Tenant shall pay to Landlord the reasonable replacement cost
thereof.


 


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


 


5.             Tenant shall
comply with all reasonably necessary security measures from time to time
established by Landlord for the Building or Park, if any; however, the parties
acknowledge that Landlord has no obligation to provide any security, except for
the keypad lock to the exterior of the Building and standard exterior lighting,
as aforesaid in Section 5.1.7.


 


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


 


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


 


56

















 


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


 


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


 


57

















 


EXHIBIT F


PARK COVENANTS — WESTFORD TECHNOLOGY PARK


 


Landlord agrees to enforce, or cause to be enforced,
these Park Covenants with all due diligence to preserve the quality and
appearance of the Park.


 


The Lot is located in an approximately ninety (90)
acre office/research and development park shown on the Plan of the Park and
elsewhere in this Lease, as the same, including without limitation the Common
Areas of the Park, may be amended by Landlord from time to time in accordance
with and subject to the provisions of Section 2.1 of this Lease.


 


All lots of land comprising the Park (which lots,
including without limitations the Lot, are individually called the “Parcel” and
collectively the “Parcels”) are subject to the following restrictions which
shall bind Michelson Farm-Westford Technology Park Trust (collectively
“Grantor”) as original owner of the Park and its successors in title.


 


A.            All Parcels shall have facilities for parking, loading
and unloading sufficient to serve any uses of the Parcels without using
adjacent streets for such purpose. On-street parking shall be prohibited. All
parking, trucking and vehicular maneuvering areas for a Parcel shall be
contained within such Parcel.


 


B.            No exterior loading platforms shall be visible from
any primary way or proposed primary way serving the Park. Screening and
planting may be used for this purpose.


 


C.            No open or outside storage shall be done on any
Parcel, other than normal and customary trash compactors and containers on
locations to be reasonably approved by Landlord in advance.


 


D.            Signs shall conform to the sign ordinances of the Town
of Westford. Any variance from such ordinance granted by the Town of Westford
must also be approved by Grantor the manner provided below in Section I.


 


E.            No condition or use of any Parcel will be permitted
which is objectionable by reason of noise, odor, vibration, smoke, radiation,
the hazardous nature of the use, or the violation of environmental laws or
regulations adopted by the Town of Westford, the Commonwealth of Massachusetts,
the Federal Government or any Court.


 


F.             All utilities serving a Parcel shall be placed
underground, unless prohibited by the utility company. Any exterior lighting on
a Parcel shall either be indirect or of such controlled focus and intensity as
not to disturb street traffic or the occupancy of any adjacent Parcel.


 


G.            The exterior appearance of any buildings in the Park,
including landscaping thereon, shall be kept neat and orderly and free from
litter.


 


H.            No building, exterior sign, fence, wall,
exterior lighting or other structure shall be erected or allowed to maintain on
any portion of the Park or exterior structural alteration or addition


 


58

















 


made, except pursuant to
plans approved in writing by Grantor as to landscaping, parking and
architectural conformity with existing buildings in the Park.


 


I.             The Grantor may
from time to time by written instrument in recordable form grant variance from
any one or more of these restrictions (except restriction H for which variances
may not be granted) where the Grantor reasonably determines that the variance
can be granted without substantial detriment to the intent and purpose of the
restrictions and without substantial detriment to the Land, and portions of the
Park theretofore built upon.


 


J.             Written approval by
the Grantor as to any buildings, signs, structures, alterations, additions and
landscaping approved by Grantor in good faith shall be conclusive evidence of
compliance with these restrictions. The Grantor agrees to furnish to any
grantee such written instruments in recordable form as may reasonably be
requested by the grantee as evidence of such compliance.


 


K.            The term “Grantor”,
as herein used, shall mean Arthur J. Gutierrez and John A. Cataldo, Class A
Trustees, and Howard Stock and Marc D. Levy, Class B Trustees, all as Trustees
of Michelson Farm-Westford Technology Park Trust, u/d/t dated October 1, 1984
and recorded with the Middlesex North District Registry of Deeds in Book 2863,
Page 235, and any of its successors in title to whom the Grantor has expressly
granted of record the rights to enforce these restrictions.


 


59

















 


EXHIBIT G


Tenant Estoppel Certificate


 


ESTOPPEL CERTIFICATE


 


                              ,
20


 


TO:                           Capmark Finance
Inc., its successors and assigns (the “Lender”)


116 Welsh Road


Horsham, PA  19044


 


RE:                           Confirmation of
Lease Agreement for premises located at
                                    
(the “Premises”) forming part of the property
commonly known as
                                                            
(the “Property”)


 


The undersigned Tenant
hereby certifies as follows:


 


1.  The undersigned,
                                                                                          ,
as “Tenant”, and
                                                                                          ,
as “Landlord”, entered into a written lease
dated
                                        
for the Premises (the “Lease”).  A true and correct copy of the Lease,
together with each and every amendment (if any) is attached hereto as Exhibit
A.


 


2.  The Lease is in full force and effect and has
not been amended, modified, supplemented or superseded (except as specifically
stated above) and together herewith constitutes the entire agreement between
the undersigned and Landlord with respect to the Premises.  There is no other agreement (except for the
agreements contained herein) between the Tenant and the Landlord with respect
to the Premises or any other space at the Property.


 


3.  As of the date of this certificate, neither
the Tenant nor the Landlord is in default under the Lease.  All rent-free periods, if any, under the
Lease have expired, and no rent credit or concession is due Tenant pursuant to
the Lease.  Tenant has no setoffs,
credits, claims or defenses to Tenant’s obligation to pay rent or to
enforcement of the Lease.  There is no
defense, offset, claim or counterclaim by or in favor of the undersigned
against the Landlord under the Lease or against the obligations of the
undersigned under the Lease.


 


4.  The Tenant has accepted possession of and
taken occupancy of the Premises and is currently using the Premises in
accordance with the terms of the Lease.


 


5.  The term of the Lease commenced on
                  
and will expire on                 .   The Tenant has options to renew the terms of
the Lease for periods of       years each.


 


6.  The Tenant has commenced the payment of full
unabated rent(s) subject to the Lease; the monthly base or minimum rent due
under the Lease is
                                  
and has been paid through
                                        .


 


7.  A security deposit in the amount of
$                                    
[insert amount or “none” if no security deposit is required] in the form of                                                        has
been paid/tendered to Landlord.  No
portion of the security deposit has been utilized by Landlord and not restored
by Tenant.


 


60














 


8.  Tenant
understands that a condition of the loan from Lender to Landlord prohibits
Landlord from receiving any payment of rent or additional rent more than one
(1) month prior to the due date of such payment.


 


9.  All work
required to be performed by the Landlord under the Lease has been completed in
accordance with the Lease provisions and has been accepted by the Tenant and
all allowances and/or reimbursements due to the Tenant under the Lease in
connection with any work performed by the Landlord or the Tenant have been paid
in full.


 


10.  Tenant has
none of the following rights:  Right to
expand the Premises; right to relocate the Premises; right of first refusal
(offer) with respect to any space in the Property; or option or right of first
refusal (offer) to purchase the Property.


 


11.  Tenant is
conducting business at the Premises in compliance with all applicable laws.
Tenant has not, at any time since taking possession of the Premises, received
notice of any kind that the Premises have violated any applicable law,
regulation, ordinance or directive of any governmental authority or agency.


 


12.  Tenant has
not, at any time since taking possession of the Premises, stored, generated,
manufactured, refined, treated, transported, disposed or in any way used
materials which are considered hazardous substances or wastes under applicable
environmental laws and regulations in any part of the Premises or Property,
except possibly for de minimus quantities thereof incidental to the cleaning
and operation of Tenant’s business.


 


13.  Tenant has
not entered into any agreement pertaining to the Premises to sell, hypothecate,
transfer, sublet, encumber, assign or otherwise transfer all or any portion of
the Premises or the Lease.


 


14.  There are
no actions, voluntary or otherwise, pending or, to the best knowledge of the
Tenant, threatened against the Tenant under the bankruptcy, reorganization,
moratorium or similar laws of the United States, any state thereof or any other
jurisdiction.


 


15.  The Tenant
is executing this certificate with the understanding that the Lender has
provided or is providing financing which affects the Premises and
Property.   The Tenant acknowledges and
agrees that the Landlord and Lender shall be entitled to rely on the Tenant’s
certifications set forth herein.


 


16.  This
Estoppel Certificate is invalid if not dated as provided for herein.


 


17.  Listed
below are exceptions, if any, asserted by Tenant to the foregoing statements:


 


 


.


 


[Signature page of
Tenant appears on following page.]


 


The undersigned is duly authorized to execute this
certificate.


 


Dated this
           day of
                              
20      .


 


61

















 


	
  TENANT:

  	
   

  
	
   

  	
   

  
	
   

  	
  (“Tenant”)

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  
				



 


62

















 


EXHIBIT H


SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT


 


[FORM TO
BE SUPPLIED BY LENDER]


 


63

















 


EXHIBIT A
TO EXHIBIT H


 


LEGAL
DESCRIPTION OF THE LAND


 


The land in Westford, Middlesex County, Massachusetts,
shown as Lot 4B as shown on a plan entitled “Definitive Plan of Land, Westford
Technology Park, Westford, Massachusetts”, prepared by Howe Surveying
Associates, Inc., Scale 1”=100; Dated June 3, 1996, Revised July 12,
1996 and recorded with the Middlesex North Registry of Deeds in Plan Book 192,
Plan 24.


 


64

















 


EXHIBIT I


OPTION
TO EXTEND


 


Provided that there does not then exist an uncured,
continuing Event of Default under this Lease at the time such right is
exercised, Tenant shall have two (2) options to extend the Term of this
Lease for consecutive periods of five (5) years each (each an “Extended
Term” or collectively the “Extended Terms”) commencing at the expiration of the
previous Term.  Such option to extend is
to be exercised by Tenant notifying Landlord in writing thereof, no later than
twelve (12) months prior to the end of the initial Term, or the first extended
term, as applicable.


 


Time is of the essence with respect to such exercise,
and failure to exercise precisely by such date shall render this option null
and void.


 


The exercise of such option shall automatically extend
the Term of this Lease, except that:  (i) there
shall be no additional option to extend after the expiration of the second
Extended Term, or the failure to exercise the second or first option, whichever
shall be the first to occur; and (ii) the applicable Fixed Rent payable by
Tenant during such Extended Terms shall be at ninety five percent (95%) of the
then Fair Market Rent as defined herein. 
For the purposes of this Exhibit I, “Fair Market Rent” shall mean
the then fair market rental value for similar space in similar Class A
office buildings in the Town of Westford (taking into consideration free rent,
tenant improvement allowances, brokerage commissions, and other tenant
concessions offered to other tenants by landlords), determined in accordance
with the following provisions.


 


The Fair Market
Rent for the Premises shall be determined as follows:


 


(a)           The Fair Market Rent shall be proposed by
Landlord in writing within twenty (20) days of receipt of Tenant’s notice that
it intends to exercise its option to extend the Term (the “Landlord’s Proposed
Fair Market Rent”).  Tenant shall notify
Landlord in writing, within twenty (20) days of Tenant’s receipt of Landlord’s
Proposed Fair Market Rent, that Landlord’s Proposed Fair Market Rent is (I) accepted,
in which case that amount shall be the Fair Market Rent, or (II) not
satisfactory to Tenant (in which case, such notice shall be “Tenant’s Rejection
Notice”).  Failure by Tenant to so notify
Landlord within said twenty (20) day period shall be deemed as Tenant’s
acceptance of Landlord’s Proposed Fair Market Rent.


 


(b)           If the Fair Market Rent is not otherwise
agreed upon by Landlord and Tenant within ten (10) days after Landlord’s
receipt of Tenant’s Rejection Notice, then the Fair Market Rent shall be
determined by written agreement of Landlord and Tenant, in the following
manner:


 


(i)            Within five (5) days after receipt of Tenant’s
Rejection Notice, the parties shall each notify the other of the name and
address of their designated appraiser.


 


(ii)           Such two (2) appraisers shall, within twenty (20)
days after their designation deadline, make their determinations of the Fair
Market Rent in writing and give notice thereof to each other and to Landlord
and Tenant.  In the event that the
parties do not agree to the Fair Market Rent based on such determinations
within five (5) business days of receipt of such terminations, Landlord
and Tenant shall notify their appraisers of such failure to agree and the two (2) appraisers
shall have ten (10) days after the receipt of such notice to confer with
each other and to attempt to reach an agreement as to the


 


65

















 


determination of the Fair Market Rent.  If such appraisers shall concur in such
determination, they shall give written notice thereof to Landlord and Tenant
and such concurrence shall be final and binding upon Landlord and Tenant.  If such appraisers shall fail to concur as to
such determination within said ten (10) day period, they shall give notice
thereof to Landlord and Tenant and the two (2) appraisers shall
immediately designate a third appraiser. 
If the two (2) appraisers shall fail to agree upon the designation
of such third appraiser within five (5) days after said ten (10) day
period, then they or either of them shall give notice of such failure to agree
to Landlord and Tenant, and if Landlord and Tenant fail to agree upon the
selection of such third appraiser within five (5) days after the appraiser(s) appointed
by parties give notice as aforesaid, then either party on behalf of both may
apply to the American Arbitration Association, or any successor thereto, or on
his or her failure, refusal, or inability to act, to a court of competent
jurisdiction, for the designation of such third appraiser.


 


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


 


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


 


(v)           If none of the determinations of the appraisers varies
from the average of the determination of the other appraisers by more than ten
percent (10%), the average of the determinations of the three (3) appraisers
shall be the Fair Market Rent for the Premises. 
If, on the other hand, the determination of any single appraiser varies
from the average of the determinations of the other two (2) appraisers
whose determinations are closest in number by more than ten percent (10%), then
the average of the determinations of the two (2) closest appraisers shall
be the Fair Market Rent.  The
determination of the appraisers, as provided above, shall be conclusive upon
the parties and shall have the same force and effect as a judgment made in a
court of competent jurisdiction.


 


(vi)          Each party shall pay fees, costs and expenses of the
appraiser selected by it pursuant to this Exhibit I (and its own counsel
fees) and one-half (1⁄2) of all other expenses and fees of any such third
appraisal. In the event Landlord or Tenant fail to timely pay their share of
the appraisal fees or participate in the process and such default is not cured
within ten (10) days of written notice, then the non-defaulting party’s
last written offer of Fair Market Rent shall be deemed determinative.


 


(vii)         Notwithstanding the foregoing, in no event shall the
Fixed Rent and additional rent payable by Tenant for the first Extended Term be
less than the Fixed Rent plus any operating cost escalation payable by Tenant
for the last year of the initial Term, and in no event shall the Fixed Rent and
additional rent payable by Tenant for the second Extended Term be less than the
Fixed Rent plus any operating escalation payable by Tenant for the last year of
the first extended Term.


 


66

















 


EXHIBIT J


LIST OF
EXISTING EXCLUSIVE USES AND EXCLUSIONS


IN THE
BUILDING OR THE PARK


 


Building and Park
Exclusions (The companies may not lease or occupy any space in the Building or
Park):


 


(a)           Novell


(b)           Netscape


(c)           Microsoft


(d)           Hewlett Packard


 


List of Exclusive Uses
(These uses are not allowed in the Building or Park):


 


(a)           Restaurant Uses (excluding cafeterias in the Building
or Park)


(b)           Medical and/or Diagnostic Treatment Services and/or
health education and Wellness promotion educational services.


 


67

















 


EXHIBIT K


 


FORM OF
LETTER OF CREDIT — (IF APPLICABLE)


 


(THE
ACTUAL FORM WILL DEPEND ON THE ISSUING BANK)


 


IRREVOCABLE STANDBY
LETTER OF CREDIT NUMBER:


 


DATE:   DELIVERY
BY COURIER SERVICE


 


	
  BENEFICIARY:

  	
  APPLICANT:

  
	
   

  	
   

  
	
  Michelson Farm-Westford
  Technology Park IV Limited Partnership

  	
   

  
	
  c/o The Gutierrez
  Company

  	
   

  
	
  One Wall Street,
  Burlington, MA 01803

  	
   

  
	
   

  	
   

  
	
  AMOUNT:

  	
  USD

  	
  $

  	
  EXPIRY

  
	
  DATE:

  	
   

  	
   

  
	
   

  	
   

  	
  AT OUR COUNTERS
  IN
                      

  



 


LADIES AND GENTLEMEN:


 


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


 


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


 


2.             A NOTARIZED STATEMENT FROM MICHELSON FARM-WESTFORD
TECHNOLOGY PARK IV LIMITED PARTNERSHIP AS FOLLOWS:


 


“REFERENCE IS HEREBY MADE
TO THAT CERTAIN LEASE (THE “LEASE”) DATED
                          ,
2010 BETWEEN MICHELSON FARM-WESTFORD TECHNOLOGY PARK LIMITED PARTNERSHIP, AS
LANDLORD (THE “LANDLORD”) AND SONUS NETWORKS, INC., AS TENANT (THE “TENANT”).  I HEREBY CERTIFY THAT I AM AN AUTHORIZED
REPRESENTATIVE OF LANDLORD OR PERMITTED TRANSFEREE AND FURTHER CERTIFY THAT:


 


(I)            EITHER (A) AN EVENT OF DEFAULT (AS DEFINED IN THE
LEASE) HAS OCCURRED AND REMAINS UNCURED BEYOND THE APPLICABLE CURE PERIOD, OR (B) 
HAS NOT RENEWED, REPLACED OR AMENDED THE LETTER OF CREDIT BY NOT LATER THAN
TWENTY-FIVE (25) BANKING DAYS PRIOR TO THE EXPIRATION THEREOF OR PROVIDED A
CASH DEPOSIT, IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 11 OF
THE LEASE; AND


 


68

















 


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


 


THIS LETTER OF CREDIT IS
TRANSFERABLE IN ITS ENTIRETY (BUT NOT IN PART) TO ANY PERSON OR ENTITY THAT
SUCCEEDS LANDLORD UNDER THE LEASE AND TO BANK OF AMERICA, N.A., AS THE HOLDER
OF A FIRST MORTGAGE ON THE PROPERTY TO WHICH THE LEASE RELATES AND TO ANY
PERSON OR ENTITY THAT SUCCEEDS BANK OF AMERICA, N.A. AS HOLDER OF THE FIRST MORTGAGE
ON SUCH PROPERTY.  TRANSFER OF THIS
LETTER OF CREDIT TO SUCH TRANSFEREE SHALL BE EFFECTED ONLY BY PRESENTATION TO
THE ISSUING BANK OF THE ORIGINAL OF THIS LETTER OF CREDIT TOGETHER WITH
AMENDMENTS, IF ANY, ACCOMPANIED BY A SIGNED AND COMPLETED TRANSFER
CERTIFICATE IN THE FORM ATTACHED HERETO AS EXHIBIT “A” AND PAYMENT OF
A TRANSFER FEE EQUAL TO
                                                  .  UPON SUCH PRESENTATION, THE BANK SHALL
FORTHWITH TRANSFER THE LETTER OF CREDIT TO THE DESIGNATED TRANSFEREE, OR IF SO
REQUESTED BY SUCH TRANSFEREE, ISSUE A NEW LETTER OF CREDIT TO THE
TRANSFEREE IN THE SAME FORM AS THIS LETTER OF CREDIT.  THIS LETTER OF CREDIT MAY NOT BE
TRANSFERRED TO ANY PERSON OR ENTITY WITH WHICH U.S. PERSONS ARE PROHIBITED FROM
DOING BUSINESS UNDER U.S. FOREIGN ASSETS REGULATIONS OR OTHER APPLICABLE U.S.
LAWS AND REGULATIONS.


 


ADDITIONAL
CONDITION:  PARTIAL DRAWINGS ARE ALLOWED.


 


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


 


EACH DRAFT PRESENTED
HEREUNDER MUST BE ACCOMPANIED BY THIS ORIGINAL LETTER OF CREDIT FOR OUR
ENDORSEMENT THEREON OF THE AMOUNT OF SUCH DRAFT(S).


 


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


 


DOCUMENTS MUST BE SENT TO
US VIA OVERNIGHT COURIER (I.E. FEDERAL EXPRESS, UPS, DHL OR ANY OTHER EXPRESS
COURIER) AT OUR ADDRESS: 
                                                                                

ATTENTION:
                                                      .


 


WE HEREBY ENGAGE WITH
DRAWERS AND/OR BONAFIDE HOLDERS THAT DRAFT(S) DRAWN UNDER AND NEGOTIATED
IN CONFORMANCE WITH THE TERMS AND CONDITIONS OF THE SUBJECT CREDIT WILL BE DULY
HONORED ON PRESENTATION.


 


69

















 


EXCEPT SO FAR AS
OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE “UNIFORM CUSTOMS
AND PRACTICES FOR DOCUMENTARY CREDIT (1993 REVISION), INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION NO. 500”.


 


	
  VERY TRULY YOURS,

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AUTHORIZED OFFICIAL

  	
   

  



 


70














 


Exhibit “A”


 




	
  TO:

  	
  BANK

  	
   

  	
  DATE:

  
	
   

  	
   

  	
   

  	
  RE:
  LETTER OF CREDIT ISSUED BY:

  
	
   

  	
   

  	
   

  	
  LETTER
  OF CREDIT NO. AVAILABLE AMOUNT

  
	
   

  	
  ATTN:

  	
   

  	
   

  






 


GENTLEMEN:


 


	
  FOR
  VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:

  
	
   

  	
   

  
	
  (NAME
  OF TRANSFEREE)

  	
   

  
	
   

  	
   

  
	
  (ADDRESS)

  	
   

  



 


ALL
RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT
UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS TRANSFER.


 


BY
THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE. 
TRANSFEREE SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING
SOLE RIGHTS RELATING TO ANY AMENDMENTS, WHETHER INCREASES OR EXTENSIONS OR
OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR HEREAFTER MADE.  ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO
THE TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED
BENEFICIARY.


 


THE
ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO
ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECT TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.


 


	
   

  	
   

  	
  YOURS
  VERY TRULY,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (BANK)

  	
   

  	
  SIGNATURE
  OF BENEFICIARY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AUTHORIZED
  SIGNATURE

  	
   

  	
   

  



 


71

















 


EXHIBIT L


 


NOTICE OF LEASE


 


In
accordance with the provisions of Massachusetts General Laws (Ter. Ed.) Chapter
183, Section 4, as amended, notice is hereby given of a certain lease
(hereinafter referred to as the “Lease”) dated as of August     ,
2010 by and between Michelson Farm-Westford Technology Park IV Limited
Partnership (hereinafter referred to as “Landlord”) and Sonus Networks, Inc.
(hereinafter referred to as “Tenant”).


 


W I T N E S S E T H:


 


1.                                      The address of
the Landlord is c/o The Gutierrez Company, One Wall Street, Burlington,
Massachusetts 01803.


 


2.                                      The address of
the Tenant is 4 Technology Park Drive, Westford, MA 01886 (Building 4), with
copy to
                                                                                .


 


3.             The Lease was executed on August     ,
2010.


 


4.                                      The Term of the
Lease is a period beginning on December 15, 2010 and expiring seven (7) years
and eight (8) months thereafter on August 14, 2018.


 


5.                                      Subject to the
provisions of the Lease, the Tenant has the option to extend the term of the
Lease for two (2) consecutive periods equal to five (5) years each.


 


6.                                      The demised
premises is approximately
           square feet
located within a two (2) story building containing approximately 97,500
rentable square feet located at 4 Technology Park Drive, Westford, MA 01886,
and the areas of which are the subject of all appurtenant rights and easements
set forth in Section 2.1 of the Lease.


 


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


 


72

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Notice of Lease as
of this        day of
                          ,
2010.


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  MICHELSON
  FARM-WESTFORD

  
	
   

  	
  TECHNOLOGY
  PARK IV

  
	
   

  	
  LIMITED
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  BY:

  	
  THE
  GUTIERREZ COMPANY,

  
	
   

  	
   

  	
  ITS
  SOLE GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Arthur J. Gutierrez, Jr.

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
  SONUS
  NETWORKS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  
				



 


73

















 


THE COMMONWEALTH OF MASSACHUSETTS


 


MIDDLESEX, SS


 


On
this          day of
                          ,
2010, before me, the undersigned notary public, personally appeared Arthur J.
Gutierrez, Jr., the President, of The Gutierrez Company, Sole General
Partner of Michelson Farm-Westford Technology Park IV Limited Partnership,
proved to me through satisfactory evidence of identification, which was
personal knowledge of the undersigned, to be the person whose name is signed on
the preceding or attached document(s), and acknowledged to me that he signed it
voluntarily for its stated purpose.


 


(official seal)


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  My
  Commission Expires:

  



 


STATE OF                              


 


COUNTY


 


On
this          day of
                  ,
2010, before me, the undersigned notary public, personally appeared
                                            
of Sonus Networks, Inc., proved to me through satisfactory evidence of
identification, which was o photographic identification
with signature issued by a federal or state governmental agency, o oath or
affirmation of a credible witness, o personal knowledge of the
undersigned, to be the person whose name is signed on the preceding or attached
document(s), and acknowledged to me that he/she signed it voluntarily for its
stated purpose.


 


 


(official seal)


 


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  My
  Commission Expires:

  



 


74

















 


EXHIBIT M


 


EARLY TERMINATION OPTION


 


So long as there does not
then exist an uncured, continuing, material, Event of Default as defined in Section 9.1
of this Lease, Tenant may, at its sole option, terminate this Lease (the “Termination
Option”) effective on the first (1st) day of month eighty (80) of the Term (the “Early
Termination Date”), by delivering notice of Tenant’s election to terminate (the
“Termination Notice”) at least twelve (12) months prior to the Early
Termination Date, provided that Tenant pays to Landlord on or before the Early
Termination Date a payment equal to the “Termination Fee” as set forth below.


 


If Tenant fails to timely
deliver its Termination Notice or pay the Termination Fee as provided below,
then Tenant will be deemed to have waived such Termination Option.


 


The Termination Fee shall be
equal to the unamortized balance of all Landlord’s Transaction Costs as of the
Early Termination Date.  The term “Landlord’s
Transaction Costs” as used above shall only be calculated to include the
unamortized eight (8) months of Fixed Rent, unamortized Tenant
improvements (which only consists of the TI Allowance and the Lab Upgrade Allowance),
unamoritzed brokerage leasing fees, and two (2) months rent.  The amortization rate shall be 6.5%.   The Exhibit C items shall not be
included within the Landlord’s Transaction Costs.    Promptly upon the determination of the
actual rentable square footage of the Premises and the TI allowance and Lab
Upgrade Allowance are finalized, Landlord shall prepare an amortization table
showing the calculation of the Termination Fee (“Amortization Table”). The
Amortization Table shall be submitted to Tenant for review and comment.  Upon agreement by the parties that the
Amortization Table accurately reflects the costs and calculations that are part
of the Termination Fee, the parties shall enter into an amendment to this Lease
to incorporate the Amortization Table.


 


If
Tenant properly exercises its Termination Option in accordance with the
foregoing, then the Lease shall automatically terminate as of the Early
Termination Date without the necessity of any additional documentation, except
for a termination of the Notice of Lease, if applicable.


 


75

















 


EXHIBIT N


 


FURNITURE AND EQUIPMENT INVENTORY


 


NOTE:  Notwithstanding any language in the Lease to
the contrary, the following list may be a partial list and the Sold Property
shall consist of items remaining in the Building on September 1, 2010, or
such later date on which Landlord acquires title to the Sold Property from IBM
as the parties agree that Landlord is not making any representation whatsoever
as to the Sold Property (including the condition thereof or the completeness or
accuracy of such inventory list).


 


[To Be Attached]


 


76

















 


EXHIBIT O


 


BILL OF SALE


 


As
of this        day of                          ,
2010, Michelson Farm-Westford Technology Park IV Limited
Partnership (“Seller”), in connection with its lease of space
located at and commonly known as 4 Technology Park Drive, Westford,
Massachusetts (the “Property”), for and in consideration of the sum of  ONE DOLLAR ($1.00) and other good and
valuable consideration to it paid by Sonus Networks, Inc.
(“Buyer”), the receipt and sufficiency of which are hereby acknowledged, does
hereby grant, bargain, sell, transfer and deliver unto Buyer all personal
property, fixtures and equipment located at the Property set forth in Exhibit A
attached hereto and made a part hereof (the “Personal Property”).  Seller conveys to Buyer the Personal Property
in its physical condition AS IS WHERE IS, without any warranty or representation
of any kind.


 


Seller
does hereby warrant to Buyer that, to Seller’s knowledge, it has good and
marketable title to the Personal Property and Seller has the right to, and
hereby does, as of the date of execution hereof, convey the Personal Property
to Buyer, free and clear of all liens and security interests.


 


TO
HAVE AND TO HOLD the Personal Property unto Buyer, its successors and assigns,
to its own use forever.


 


IN WITNESS WHEREOF, the Seller has hereunto set its hand and seal as of
the date first set forth above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  MICHELSON
  FARM-WESTFORD TECHNOLOGY PARK IV LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:
  The Gutierrez Company, its Sole General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Printed
  Name: 

  	
  Arthur
  J. Gutierrez, Jr.

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
  Date:

  	
   

  



 


77

















 


EXHIBIT A


TO BILL OF SALE


 


NOTE:  Notwithstanding any language in the Lease to
the contrary, the following list may be a partial list and the Personal
Property shall consist of items remaining in the Building on September 1,
2010, or such later date on which Landlord acquires title to the Personal
Property from IBM as the parties agree that Landlord is not making any
representation whatsoever as to the Personal Property (including the condition
thereof or the completeness or accuracy of such inventory list).


 


[To Be Attached]


 


78

















 


EXHIBIT P


 


AGREEMENT TO ACKNOWLEDGE FINAL PLANS


 


AGREEMENT made this       day of              ,
2010, by and between Michelson Farm-Westford Technology Park IV Limited
Partnership (as “Landlord”) and Sonus Networks, Inc. (as “Tenant”).


 


WITNESSETH:


 


WHEREAS, Landlord and Tenant entered into a certain Lease
dated as of August              ,
2010 (the “Lease”) for space at the Building located at and commonly
known as 4 Technology Park Drive, Westford, Massachusetts; and


 


WHEREAS, Landlord and Tenant desire to memorialize the
Final Plans for the Tenant’s Work.


 


NOW, THEREFORE, the parties do hereby agree as follows:


 


1.             The parties hereby acknowledge and
agree that the plans attached hereto as Exhibit A are the Final Plans, as
that term is defined in the Lease.  Such
Final Plans shall be deemed incorporated into the Lease as of the date of this
Agreement.


 


2.             All capitalized terms used herein
and not otherwise defined herein have the meaning given in the Lease.


 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.


 


 


	
  TENANT:

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
  SONUS
  NETWORKS, INC.

  	
   

  	
  MICHELSON
  FARM-WESTFORD TECHNOLOGY PARK IV LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  The Gutierrez Company, its Sole General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
  Printed
  Name:

  	
   

  	
   

  	
   

  	
  Printed
  Name: 

  	
  Arthur
  J. Gutierrez, Jr.

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  



 


79

















 


EXHIBIT A


TO AGREEMENT
TO ACKNOWLEDGE FINAL PLANS


 


80














 


EXHIBIT Q


 


DEFINITION OF COST OF TENANT’S WORK


 


REIMBURSEABLE COSTS:


 


The following 15 numbered
items shall be used to determine and calculate the Cost of the Tenant’s Work:


 


1.                                       The term “Cost
of the Work” shall mean costs necessarily incurred and paid by the Contractor
in the proper performance of the work. 
Such costs shall be at rates not higher than the standard paid in the
Merrimack Valley area for similar Class “A” office buildings and shall
include the items set forth below.


 


2.                                       Wages paid for
labor in the direct employ of Gutierrez Construction Co., Inc. (“Contractor”)
in the performance of the work under applicable collective bargaining
agreements, or under a salary or wage schedule agreed upon by the Landlord, and
Contractor, and including such welfare or other benefits, if any, as may be
payable with respect thereto.


 


3.                                       Cost of
contributions, assessments or taxes incurred during the performance of the work
for such items as unemployment compensation and social security, insofar as
such cost is based on wages, salaries or other remuneration paid to employees
of the Contractor and included in the Cost of the Work under subsection 2.


 


4.                                       Cost of all
materials, supplies and equipment incorporated in the work, including costs of
transportation thereof.


 


5.                                       Payments made
by the Contractor to subcontractors for work performed pursuant to
subcontracts.


 


6.                                       Cost, including
transportation and maintenance, of all materials, supplies, equipment,
temporary facilities and hand tools not owned by the workers, which are
consumed in the performance of the work, and cost less salvage value on such
items used by not consumed which remain the property of the Contractor.


 


7.                                       Rental charges
of all necessary machinery and equipment, exclusive of hand tools, used at the
site in performance of the work, whether rented from the Contractor or others
including installation, minor repairs and replacements, dismantling, removal,
transportation and delivery costs thereof, at rental charges consistent with
those prevailing in the greater Merrimack Valley area for similar Class “A”
office buildings.


 


8.                                       Cost of
premiums for all bonds and insurance, which the Contractor is required by the
construction contract or this Lease, to purchase and maintain.


 


81

















 


9.                                       Sales, use, or
similar taxes related to the work and for which the Contractor is liable, which
are imposed by any governmental authority.


 


10.                                 Permit fees,
royalties, damage or infringement of patents and costs of defending suits therefore,
and deposits lost for causes other than due to the Contractor’s negligence.


 


11.                                 Losses and
expenses, not compensated by insurance or otherwise, sustained by the
Contractor in connection with the work, provided they have resulted from causes
other than the fault or neglect of the Contractor.  Such losses shall include settlements made
with the written consent and reasonable approval by Landlord and Tenant.  If, however, such loss requires
reconstruction and the Contractor is placed in charge thereof, he shall be paid
for his services a fee of six percent (6%) of the cost of such work.


 


12.                                 Cost of all
removal of debris and clean up.


 


13.                                 Costs incurred
due to an emergency affecting the safety of persons and property.


 


14.                                 Other costs
incurred in the performance of the work if and to the extent approved in
advance in writing by the Tenant.


 


15.                                 The cost of
temporary power and heat.


 


82

















 


EXHIBIT R


 


RIGHT OF FIRST OFFER


 


A.            Grant of Option;
Conditions.  Tenant shall have a
one-time right of first offer (the “Right of First Offer”) with respect to any
space becoming available in the Building during the Term (the “Offering Space”).
 Tenant’s
Right of First Offer shall be exercised, if at all, as follows:  Tenant shall provide Landlord with written
notice expressing its interest in leasing the Offering Space, whether or not
Landlord has received Tenant’s notice, Landlord shall advise Tenant (the “Advice”)
of the terms under which Landlord is prepared to lease the Offering Space to
Tenant for the remainder of the Term, which terms shall reflect the Prevailing
Market (hereinafter defined) rate for such Offering Space as reasonably
determined by Landlord.  Tenant may lease
such Offering Space in its entirety and on such terms as set forth in the
Advice, by delivering written notice of exercise to Landlord (the “Notice of
Exercise”) within ten (10) Business Days after the date of the Advice,
except that Tenant shall have no such Right of First Offer and Landlord need
not provide Tenant with an Advice, if:


 


1.             Tenant is in Default under the
Lease beyond any applicable cure periods at the time that Tenant delivers its
letter of interest to Landlord; or


 


2.             Tenant or any Affiliate of Tenant
is not occupying substantially all of the Premises on the date Landlord would
otherwise deliver the Advice.


 


B.            Terms for
Offering Space.


 


1.             The term for the Offering Space
shall commence upon the commencement date stated in the Advice, and Landlord
shall deliver such space by such date in the condition stated in the Advice and
thereupon such Offering Space shall be considered a part of the Premises,
provided that all of the terms stated in the Advice shall govern Tenant’s
leasing of the Offering Space and only to the extent that they do not conflict
with the Advice, the terms and conditions of this Lease shall apply to the
Offering Space.


 


2.             Tenant shall pay Base Rent and
Additional Rent for the Offering Space in accordance with the terms and
conditions of the Advice, which terms and conditions shall reflect the
Prevailing Market rate for the Offering Space as determined in Landlord’s
reasonable judgment.


 


3.             The Offering Space (including
improvements and personalty, if any) shall be accepted by Tenant in its
condition and as-built configuration existing on the earlier of the date Tenant
takes possession of the Offering Space or as of the date the term for such
Offering Space commences, unless the Advice specifies any work to be performed
by Landlord in the Offering Space, in which case Landlord shall perform such
work in the Offering Space prior to such space becoming part of the
Premises.  If Landlord is delayed in
delivering possession of the Offering Space due to the holdover or unlawful
possession of such space by any party, Landlord shall use reasonable efforts to
obtain possession of the space, and the commencement of the term for the
Offering Space shall be postponed until the date Landlord delivers possession
of the Offering Space to Tenant free from occupancy by any party.


 


83

















 


C.            Termination of
Right of First Offer.  The rights of
Tenant hereunder with respect to the Offering Space shall terminate on the
earlier to occur of:  (i) October 31,
2015 (unless Tenant simultaneously exercises its right to extend the Term as
set forth in Exhibit I above and; (ii) Tenant’s failure to exercise
its Right of First Offer within the ten-(10)-Business-Day period provided in Section A
above (as the parties agree that this right is a one-time right); and (iii) the
date Landlord would have provided Tenant an Advice if Tenant had not been in
violation of one or more of the conditions set forth in Section A above.


 


D.            Offering
Amendment.  If Tenant exercises its
Right of First Offer, Landlord shall prepare an amendment (the “Offering
Amendment”) adding the Offering Space to the Premises on the terms set forth in
the Advice and reflecting the changes in the Base Rent, Rentable Square Footage
of the Premises, Tenant’s Pro Rata Share and other appropriate terms.  A copy of the Offering Amendment shall be
sent to Tenant within a reasonable time after Landlord’s receipt of the Notice
of Exercise executed by Tenant, and Tenant shall negotiate in good faith
thereafter, but an otherwise valid exercise of the Right of First Offer shall
be fully effective whether or not the Offering Amendment is executed.


 


E.             Definition of
Prevailing Market.  For purposes of
this Right of First Offer provision, “Prevailing Market” shall mean the greater
of (x) the annual rental rate per square foot for space comparable to the
Offering Space in the Building or Complex and office buildings comparable to
the Building in the Merrimack Valley rental market of Massachusetts under
leases and renewal and expansion amendments being entered into at or about the
time that Prevailing Market is being determined, giving appropriate
consideration to tenant concessions, brokerage commissions, tenant improvement
allowances, existing improvements in the space in question, and the method of
allocating operating expenses and taxes and (y) the rate from time to time
applicable to the remainder of the Premises.


 


84