EXHIBIT 10.2


 


NETWORK
DRIVE AT NORTHWEST PARK


 


OFFICE
LEASE


 


NETVIEW
1,2,3,4 & 9 LLC


 


AS
LANDLORD


 


AND


 


AVID
TECHNOLOGY, INC.


 


AS
TENANT


 


FOR
PREMISES AT


 


75
NETWORK DRIVE


BURLINGTON,
MA


 

















 


TABLE OF CONTENTS


 


	
  TABLE OF CONTENTS

  	
  2

  
	
   

  	
   

  
	
  ARTICLE 1 REFERENCE DATA

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  SUBJECT REFERRED TO

  	
  4

  
	
  1.2

  	
  EXHIBITS

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 PREMISES AND TERM

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  PREMISES

  	
  7

  
	
  2.2

  	
  TERM

  	
  7

  
	
  2.2.1

  	
       Condition Precedent

  	
  8

  
	
  2.3

  	
  EXTENSION OPTION

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 IMPROVEMENTS

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  BASE BUILDING WORK; TENANT IMPROVEMENT WORK

  	
  9

  
	
  3.2

  	
  LATE DELIVERY

  	
  10

  
	
  3.3

  	
  PLANS AND SPECIFICATIONS

  	
  10

  
	
  3.4

  	
  COST OF TIW; TENANT’S SHARE

  	
  11

  
	
  3.5

  	
  WORK CHANGE ORDERS

  	
  12

  
	
  3.6

  	
  ACCEPTANCE OF THE PREMISES

  	
  12

  
	
  3.7

  	
  PRE-COMMENCEMENT ENTRY

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 RENT

  	
  13

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  THE FIXED RENT

  	
  13

  
	
  4.2

  	
  ADDITIONAL RENT

  	
  13

  
	
  4.2.1

  	
       Real Estate Taxes

  	
  13

  
	
  4.2.2

  	
       Personal Property Taxes

  	
  14

  
	
  4.2.3

  	
       Operating Costs

  	
  14

  
	
  4.2.4

  	
       Insurance

  	
  17

  
	
  4.2.5

  	
       Utilities

  	
  18

  
	
  4.3

  	
  LATE PAYMENT OF RENT

  	
  18

  
	
  4.4

  	
  LETTER OF CREDIT

  	
  18

  
	
  4.4.1

  	
       Amount of Letter of Credit

  	
  18

  
	
  4.4.2

  	
       Renewal of Letter of Credit

  	
  18

  
	
  4.4.3

  	
       Draws to Cure Defaults

  	
  19

  
	
  4.4.4

  	
       Draws to Pay Damages

  	
  19

  
	
  4.4.5

  	
       Issuing Bank

  	
  19

  
	
  4.4.6

  	
       Draws for Failure to Deliver
  Substitute Letter of Credit

  	
  19

  
	
  4.4.7

  	
       Transferability

  	
  19

  
	
  4.4.8

  	
       Return of Letter of Credit at
  End of Term

  	
  19

  
	
  4.4.9

  	
       Reduction in Letter of Credit
  Amount

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 LANDLORD’S COVENANTS

  	
  20

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  AFFIRMATIVE COVENANTS

  	
  20

  
	
  5.1.1

  	
       Heat and Air-Conditioning

  	
  20

  
	
  5.1.2

  	
       Electricity

  	
  20

  
	
  5.1.3

  	
       Cleaning; Water

  	
  20

  
	
  5.1.4

  	
       Elevator; Fire Alarm

  	
  21

  
	
  5.1.5

  	
       Repairs

  	
  21

  
	
  5.2

  	
  INTERRUPTION

  	
  21

  
	
  5.3

  	
  OUTSIDE SERVICES

  	
  21

  
	
  5.4

  	
  ACCESS

  	
  21

  
	
  5.5

  	
  BUILDING AMENITIES

  	
  21

  
	
  5.6

  	
  ENVIRONMENTAL

  	
  21

  
	
  5.7

  	
  INSURANCE

  	
  22

  
	
  5.8

  	
  REPRESENTATIONS

  	
  22

  
	
  5.9

  	
  INDEMNIFICATION

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 TENANT’S ADDITIONAL COVENANTS

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  AFFIRMATIVE COVENANTS

  	
  22

  
	
  6.1.1

  	
       Perform Obligations

  	
  22

  
	
  6.1.2

  	
       Use

  	
  22

  
	
  6.1.3

  	
       Repair and Maintenance

  	
  23

  
	
  6.1.4

  	
       Compliance with Law

  	
  23

  
	
  6.1.5

  	
       Indemnification

  	
  23

  
	
  6.1.6

  	
       Landlord’s Right to Enter

  	
  23

  
	
  6.1.7

  	
       Personal Property at Tenant’s
  Risk

  	
  23

  
	
  6.1.8

  	
       Payment of Landlord’s Cost of
  Enforcement

  	
  23

  
	
  6.1.9

  	
       Yield Up

  	
  24

  
	
  6.1.10

  	
            Rules and
  Regulations

  	
  24

  
	
  6.1.11

  	
            Estoppel
  Certificate

  	
  24

  
	
  6.1.12

  	
            Landlord’s
  Expenses Re Consents

  	
  25

  
	
  6.1.13

  	
            Representation

  	
  25

  



 

















 


	
  6.2

  	
  NEGATIVE COVENANTS

  	
  25

  
	
  6.2.1

  	
       Assignment and Subletting

  	
  25

  
	
  6.2.2

  	
       Nuisance

  	
  26

  
	
  6.2.3

  	
       Hazardous Wastes and
  Materials

  	
  26

  
	
  6.2.4

  	
       Floor Load; Heavy Equipment

  	
  27

  
	
  6.2.5

  	
       Installation, Alterations or
  Additions

  	
  27

  
	
  6.2.6

  	
       Abandonment

  	
  28

  
	
  6.2.7

  	
       Signs

  	
  28

  
	
  6.2.8

  	
       Parking and Storage

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 CASUALTY OR TAKING

  	
  28

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  TERMINATION

  	
  28

  
	
  7.2

  	
  RESTORATION

  	
  28

  
	
  7.3

  	
  AWARD

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 DEFAULTS

  	
  29

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  EVENTS OF DEFAULT

  	
  29

  
	
  8.2

  	
  REMEDIES

  	
  29

  
	
  8.3

  	
  REMEDIES CUMULATIVE

  	
  30

  
	
  8.4

  	
  LANDLORD’S RIGHT TO CURE DEFAULTS

  	
  30

  
	
  8.5

  	
  EFFECT OF WAIVERS OF DEFAULT

  	
  30

  
	
  8.6

  	
  NO WAIVER, ETC.

  	
  30

  
	
  8.7

  	
  NO ACCORD AND SATISFACTION

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 RIGHTS OF MORTGAGE HOLDERS

  	
  30

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  RIGHTS OF MORTGAGE HOLDERS

  	
  30

  
	
  9.2

  	
  LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 MISCELLANEOUS PROVISIONS

  	
  31

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  NOTICES FROM ONE PARTY TO THE OTHER

  	
  31

  
	
  10.2

  	
  QUIET ENJOYMENT

  	
  31

  
	
  10.3

  	
  LEASE NOT TO BE RECORDED

  	
  31

  
	
  10.4

  	
  LIMITATION OF LANDLORD’S LIABILITY

  	
  31

  
	
  10.5

  	
  FORCE MAJEURE

  	
  31

  
	
  10.6

  	
  LANDLORD’S DEFAULT

  	
  31

  
	
  10.7

  	
  BROKERAGE

  	
  32

  
	
  10.8

  	
  APPLICABLE
  LAW AND CONSTRUCTION; MERGER; JURY TRIAL

  	
  32

  



 


3
















 


L
E A S E


 


ARTICLE 1 


Reference Data


 


1.1                                Subject
Referred To.


 


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


 


	
  Date
  of this Lease:

  	
  November 20, 2009

  
	
   

  	
   

  
	
  Building:

  	
  The two-story building
  in Burlington Massachusetts, located on the parcel of land identified as Lot
  4 as shown on the “Definitive Subdivision Plan, Sun Microsystems” prepared by
  Vanasse Hangen Brustlin, Inc., recorded with Middlesex County (South
  District) Registry of Deeds as Plan 672 of 2007, and known as 75 Network
  Drive (the Building and such parcel of land hereinafter being collectively
  referred to as the “Property”). The Property is located within the office
  park located off Network Drive in Burlington, Massachusetts, known Network
  Drive at Northwest Park (the “Park”). The Park is shown on the site plan
  attached hereto as Exhibit A-1.

  
	
   

  	
   

  
	
  Premises:

  	
  The entire Building,
  substantially as shown on Exhibit A attached hereto.

  
	
   

  	
   

  
	
  Rentable
  Floor

  	
   

  
	
  Area
  of Premises:

  	
  99,765 rentable square
  feet.

  
	
   

  	
   

  
	
  Landlord:

  	
  NetView
  1,2,3,4 &9 LLC

  
	
   

  	
   

  
	
  Original
  Notice

  	
   

  
	
  Address
  of Landlord:

  	
  c/o Nordblom Management
  Company, Inc.

  
	
   

  	
  15 Third Avenue

  
	
   

  	
  Burlington,
  Massachusetts 01803

  
	
   

  	
   

  
	
  Tenant:

  	
  Avid
  Technology, Inc., a Delaware corporation

  
	
   

  	
   

  
	
  Original
  Notice

  	
   

  
	
  Address
  of Tenant:

  	
  Prior to Tenant’s
  occupancy:

  
	
   

  	
   

  
	
   

  	
  One Park West

  
	
   

  	
  Tewksbury, MA 01876

  
	
   

  	
  Attn: Director of Real
  Estate

  
	
   

  	
   

  
	
   

  	
  On and after Tenant’s
  occupancy:

  
	
   

  	
   

  
	
   

  	
  75 Network Drive

  
	
   

  	
  Burlington, MA 01803

  
	
   

  	
  Attn:  Director of Real Estate

  
	
   

  	
   

  
	
  Expiration
  Date:

  	
  The last day of the
  tenth (10th) Lease Year (defined in Section 2.2)

  
	
   

  	
   

  
	
  Commencement
  Date:

  	
  The later of
  (a) the date on which Landlord’s Work in the Building, the 65 Premises
  and the 10 North Premises is Substantially Completed (defined in
  Section 2.2) and (b) June 1, 2010.

  
	
   

  	
   

  
	
  Original
  Term:

  	
  Ten Lease Years.

  
	
   

  	
   

  
	
  Target
  Commencement Date:

  	
  June 1, 2010.

  
	
   

  	
   

  
	
  Design
  Development

  	
   

  
	
  Permitting/Pricing
  Plans Date:

  	
  November 13, 2009.

  
	
   

  	
   

  
	
  Final
  Plans Date:

  	
  December 11, 2009.

  
	
   

  	
   

  
	
  Rent
  Commencement

  	
   

  
	
  Date:

  	
  The date that is 240
  days from, and including, the Commencement Date, subject to Sections 3.2 and
  4.1.

  



 


4

















 


	
  Annual
  Fixed Rent Rate:

  	
  Commencement Date until
  day prior Rent Commencement 

  	
   

  
	
   

  	
  Date:

  	
  $0.00

  
	
   

  	
   

  	
   

  
	
   

  	
  Rent Commencement Date
  - end of the

  	
   

  
	
   

  	
  2nd Lease Year:

  	
  $2,593,890.00

  
	
   

  	
  3rd and 4th Lease Years:

  	
  $2,743,537.56

  
	
   

  	
  5th and 6th Lease Years:

  	
  $3,092,715.00

  
	
   

  	
  7th Lease Year:

  	
  $3,167,538.72

  
	
   

  	
  8th Lease Year:

  	
  $3,192,480.00

  
	
   

  	
  9th and 10th Lease Years:

  	
  $3,242,362.56

  
	
   

  	
   

  	
   

  
	
  Monthly
  Fixed Rent Rate:

  	
  Commencement Date until
  day prior to Rent Commencement Date:

  	
  $0.00

  
	
   

  	
   

  	
   

  
	
   

  	
  Rent Commencement Date
  - end of the

  	
   

  
	
   

  	
  2nd Lease Year:  [i.e.,
  $26.00 psf of entirety of Premises]

  	
  $216,157.50

  
	
   

  	
  3rd and 4th Lease Years:

  	
  $228,628.13

  
	
   

  	
  5th and 6th Lease Years:

  	
  $257,726.25

  
	
   

  	
  7th Lease Year:

  	
  $263,961.56

  
	
   

  	
  8th Lease Year:

  	
  $266,040.00

  
	
   

  	
  9th and 10th Lease Years:

  	
  $270,196.88

  
	
   

  	
   

  	
   

  
	
  Letter
  of Credit Amount:

  	
  $1,398,788.00 (i.e., 6 times the average monthly rent over 10
  years), subject to reduction pursuant to Section 4.4.9.

  
	
   

  	
   

  
	
  TI
  Allowance:

  	
  $2,992,950.00

  
	
   

  	
   

  
	
  Construction
  Escrow Agreement:

  	
  That certain
  Construction Escrow Agreement dated as of the date hereof by and among the
  Building 65 Landlord, Tenant and Lawyers Title Insurance Corporation.

  
	
   

  	
   

  
	
  Tenant’s
  Percentage:

  	
  The ratio of the
  Rentable Floor Area of the Premises to the total rentable area of the
  Building, which shall initially be deemed to be one hundred 100% percent.

  
	
   

  	
   

  
	
  Base
  Taxes:

  	
  Taxes for 2011 fiscal
  tax year (i.e., July 1, 2010 — June 30, 2011)

  
	
   

  	
   

  
	
  Base
  Operating Costs:

  	
  Operating Costs for
  calendar year 2010.

  
	
   

  	
   

  
	
  Permitted
  Uses:

  	
  General business
  offices, and technology software and hardware research and development.

  
	
   

  	
   

  
	
  Public
  Liability Insurance Limits:

  	
   

  
	
   

  	
   

  
	
  Commercial
  General Liability:

  
	
   

  	
   

  
	
   

  	
  $3,000,000 per
  occurrence

  
	
   

  	
  $5,000,000 general
  aggregate

  
	
   

  	
   

  
	
  Brokers:

  	
  Jones Lang LaSalle

  
	
   

  	
  FHO Partners, LLC

  
	
   

  	
   

  
	
  Building
  65 Premises:

  	
  Portions of the
  building located at 65 Network Drive, Burlington, MA owned by Landlord’s
  affiliate, NetView 5 and 6 LLC.

  
	
   

  	
   

  
	
  Building
  65 Landlord:

  	
  NetView 5 and 6 LLC.

  
	
   

  	
   

  
	
  Building
  65 Lease:

  	
  That certain lease
  between NetView 5 and 6 LLC, and Tenant for the Building 65 Premises,
  executed concurrently herewith.

  
	
   

  	
   

  
	
  10
  North Avenue Premises:

  	
  The  entire building located at 10 North
  Avenue, Northwest Park, Burlington, MA owned by Landlord’s affiliate, N.W.
  Building 28 Trust.

  
	
   

  	
   

  
	
  10
  North Landlord:

  	
  N.W. Building 28 Trust.

  
	
   

  	
   

  
	
  10
  North Lease:

  	
  That certain lease
  between N.W. Building 28 Trust and Tenant for the 10 North Avenue Premises,
  executed concurrently herewith.

  
	
   

  	
   

  
	
  Avid
  Spaces:

  	
  The Premises, the
  Building 65 Premises and the 10 North Avenue Premises, collectively.

  



 


5

















 


1.2                                Exhibits.


 


The Exhibits
listed below in this section are incorporated in this Lease by reference and
are to be construed as a part of this Lease.


 


EXHIBIT A                           Plan showing the
Premises.


 


EXHIBIT A-1                        Plan showing the Park


 


EXHIBIT B                            Commencement Date
Agreement


 


EXHIBIT C                            List of Schematic
Design Plans


 


EXHIBIT D                            Work Change Order
Form


 


EXHIBIT E                            Rules and
Regulations


 


EXHIBIT F                            Form Tenant
Estoppel Certificate


 


EXHIBIT G                            Form of Notice
of Lease


 


EXHIBIT H                            Form Letter of
Credit


 


EXHIBIT I                             Intentionally
Deleted


 


EXHIBIT J                             Intentionally
Deleted


 


EXHIBIT K                            Cleaning
Specifications


 


EXHIBIT L                            Form of
Subordination, Nondisturbance and Attornment Agreement


 


6
















 


ARTICLE 2 


Premises and Term


 


2.1                                 Premises. 
Landlord hereby leases the Premises to Tenant and Tenant hereby leases
the Premises from Landlord, subject to and with the benefit of the terms,
covenants, conditions and provisions of this Lease, and of any agreements,
cross easements and restrictions, as the same may be amended from time to time,
applicable to the Park, all of which Tenant and Landlord shall observe and
perform insofar as the same are applicable to the Property.  Excluded from the Premises are the roof,
exterior surfaces of exterior walls, and the pipes, ducts, conduits, wires and
appurtenant fixtures of the Building (and any areas such as the space above the
ceiling or in the walls, that may contain such pipes, ducts, conduits, wires or
appurtenant fixtures).  However, Tenant
shall have the right, in common with Landlord, to use the pipes, ducts,
conduits, wires and appurtenant fixtures of the Building as reasonably
necessary for Tenant’s telecommunications cabling and wiring.  Tenant shall have, as appurtenant to the
Premises, rights to use in common, subject to reasonable rules of general
applicability to tenants of the Park, from time to time made by Landlord of
which Tenant is given notice:  (a) 
the common walkways, roadways, and driveways necessary for access to the
Building and the Property, (b)  the common parking areas serving the
Building, and (c) all so-called common areas and amenities of the Park
serving the Property for the benefit of tenants for access, egress and the like,
including the common on-site cafeteria, and including exclusive use of two
(2) one (1) inch innnerducts of conduit currently available in the
existing campus wide underground communications conduit network owned and
controlled by Landlord to run Tenant’s fiber cable at Tenant’s sole cost and
expense;  it being understood that in
order to utilize the empty four (4) inch conduit between TMH-11 and the
RCN vault tenant will be required to install innerduct in said conduit.
Landlord makes no representations regarding future availability of conduit
space for Tenant’s use but agrees to cooperate with Tenant for Tenant’s future
needs. The areas and facilities described in clauses (a) through
(d) above are referred to as “Building Common Areas.”  The areas, facilities and amenities of the
Park described to in clause (e) are referred to as “Campus Common Areas.”


 


Tenant shall have
the exclusive right to use the two loading docks serving the Building.


 


Tenant shall be
permitted, on an unreserved first-come first-served basis, to use up to 3.6
spaces per 1000 rentable square feet of the Premises in the parking area
serving the Building, or in a parking area reasonably proximate to the
Building.  So long as Avid
Technology, Inc. is the Tenant under both this Lease and the Building 65
Lease, Landlord will not grant any new tenant of the Building 65 Premises a
greater parking ratio than granted to Tenant, or reserved or exclusive parking
rights.  If Landlord does grant any other
new tenant greater rights than those afforded Tenant under this paragraph, then
Landlord shall also grant Tenant similar rights, on a pro rata basis.


 


Landlord reserves
the right from time to time, without unreasonable interference with use of the
Premises:  (a)  to install, use,
maintain, repair, replace and relocate pipes, ducts, conduits, wires and
appurtenant fixtures, wherever located in the Building, (b) to make any
repairs and replacements to the Premises which Landlord may deem necessary, and
(c)  in connection with any excavation made upon adjacent land of Landlord
or others, to enter, and to license others to enter, upon the Premises to do
such work as the person causing such excavation deems necessary to preserve the
wall of the Building from injury or damage and to support the same.  In exercising such rights, Landlord shall use
commercially reasonable efforts to avoid or minimize inconvenience to Tenant’s
operations in the Premises.


 


2.2                                 Term. 
TO HAVE AND TO HOLD for the Original Term, which shall begin on the
Commencement Date,  and end on the Expiration
Date, unless sooner terminated as hereinafter provided.  The term “Substantially Completed” as used
herein shall mean that the work to be performed by Landlord pursuant to
Exhibit C and the Final Plans (defined below) has been completed with the
exception of minor items which can be fully completed without material
interference with Tenant and other items which because of the season or weather
or the nature of the item are not practicable to do at the time, provided that
none of said items is necessary to make the Premises tenantable for the
Permitted Uses, that the Premises are delivered broom clean, free of prior
tenants and occupants and their personal property, and a Certificate of
Occupancy (which may be a temporary Certificate of Occupancy, provided that
Landlord uses diligence to obtain a permanent Certificate of Occupancy within a
reasonable time) has been issued by the Town of Burlington and all other
requirements of “Substantial Completion” set forth in Section 3.1 have
been completed. However, if Landlord cannot obtain a temporary or permanent
certificate of occupancy by the Target Commencement Date because of a Tenant
Delay (defined in Section 3.1.B), then the Commencement Date shall be
deemed to have occurred and the Landlord’s work deemed to be “Substantially
Completed” on the date that such work would have been Substantially Completed
but for such Tenant Delay (but Landlord shall not be relieved of the obligation
to actually complete Landlord’s Work (defined in Section 3.2 below) and
obtain a permanent Certificate of Occupancy). 
When the Commencement Date, the Expiration Date, the Rent Commencement
Date, and the beginning and end of the 1st Lease Year have been determined, as well as
the notice dates for exercising the Extension Options, such dates shall be
evidenced by a document, in the form attached hereto as Exhibit B and
executed by Landlord and Tenant.  If
Landlord’s Work in the Premises is Substantially Completed prior to completion
of the other Avid Spaces, and Tenant occupies the Premises for the conduct of
its business nonetheless, then the Commencement Date for the Premises under
this Lease will be deemed to have occurred as of the date of Tenant’s
occupancy.  In that event, the first Lease
Year under this Lease shall be extended by the number of days necessary to make
the last day of such first Lease Year the same as the last day of the first
lease year under the Building 65 Lease or the 10 North Lease, whichever lease
has a first lease year expiring latest.


 


7

















 


The term “Lease
Year” as used herein shall mean a period of twelve (12) consecutive full
calendar months.  The first Lease Year
shall begin on the Commencement Date if the Commencement Date is the first day
of a calendar month; if not, then the first Lease Year shall commence upon the
first day of the calendar month immediately following the calendar month in
which the Commencement Date occurs.  Each
succeeding Lease Year shall commence upon the anniversary date of the first
Lease Year.


 


2.2.1                        Condition Precedent. 
Reference is made to the fact that Wing B of the Premises is currently
leased to and occupied by Sun Microsystems, Inc. (“Sun”) pursuant to a
lease dated June 27, 2007 (the “Sun Lease”), between Landlord and Sun for
premises in certain buildings in the Park, including Wing B of the
Building.  Pursuant to the terms the Sun
Lease, Sun has elected to contract its premises and surrender Wing B effective
as of June 30, 2010.  Landlord, the
Building 65 Landlord, and the 10 North Landlord and Tenant now desire that Sun
accelerate the surrender date to January 31, 2010.  Therefore, it is an express condition
precedent to this Lease, the Building 65 Lease and the 10 North Lease that Sun
shall agree to an earlier termination and surrender of Wing B of the Building
and execute a letter agreement to that effect (the “Sun Letter Agreement”).
Landlord shall use diligent efforts to obtain the Sun Letter Agreement as soon
as is reasonably practicable. If the Sun Letter Agreement is not executed by
Landlord and Sun and a copy delivered to Tenant by the date that is ten
(10) days after the full execution of this Lease, Tenant shall have the
right to terminate this Lease, the Building 65 Lease and the 10 North Lease by
giving Landlord written notice of termination any time after the expiration of
such 10-day period, but prior to and until such time that Landlord delivers the
executed Sun Letter Agreement.  If Tenant
gives such notice, then this Lease, the Building  65 Lease and the 10 North Lease shall be
terminated immediately as of the date of Tenant’s notice.   If Tenant has not elected to so terminate
the leases, and Landlord, despite having used diligent efforts, has not
obtained a fully executed Sun Letter Agreement by the date that is 30 days
after full execution of this Lease, then Landlord shall have the right to
terminate this Lease, the Building 65 Lease and the 10 North Lease by giving
Tenant written notice of termination at any time after the expiration of such
30-day period, but prior to and until such time that Landlord delivers the
executed Sun Letter Agreement, such termination to be effective immediately as
of the date of the notice. If this Lease and the Building 65 Lease and the 10
North Lease are terminated by either party, no documentation other than a
party’s notice of termination shall be required to effectuate such termination,
and neither party shall have any liability to the other on account of
termination.


 


2.3                                 Extension Option. A. 
Tenant shall have two options (each, an “Extension Option”) to extend
the term of this Lease, each for an additional period of five
(5) years.  The first such five—year
period (the “First Extended Term”) shall begin immediately upon the expiration
of the Original Term of this Lease, and the second such five-year period (the
“Second Extended Term”) shall begin immediately upon the expiration of the
First Extended Term, provided that each of the following conditions has been
satisfied:


 


(i)                                    As of the date of an Extension Notice
(defined below) and as of the commencement of the First Extended Term and, if
applicable, the Second Extended Term, Tenant has not been in default of its
monetary obligations beyond the expiration of any applicable cure periods under
this Lease more than two times during the Term, including any Extended Term;


 


(ii)                                 Tenant simultaneously exercises an extension
option under the Building 65 Lease; and


 


(iii)                              Tenant has not subleased 20% or more of the sum total of (a) the
rentable square footage of the Premises plus (b) the rentable square
footage of the premises under the Building 65 Lease , both at the time of the
Extension Notice and as of the commencement of the First Extended Term and, if
applicable, the Second Extended Term.


 


B.                                     All of the terms, covenants and provisions of
this Lease shall apply to each Extended Term except that the Annual Fixed Rent
Rate for each such Extended Term shall be the then- fair market rental rate for
premises of comparable size and quality to the Premises, in comparable
buildings in the competitive market area 
as of the commencement of the applicable Extended Term, (the “Fair
Market Rate”), excluding the annual charge-off for the bridge connecting the
Premises to the Building 65 Premises (the “Connector Bridge”), but in no event
less than the average Annual Fixed Rent Rate in effect during the term
immediately preceding the Extended Term in question.  For the avoidance of doubt, the Annual Fixed
Rent Rate during the First Extended Term shall be no less than $28.04 per
rentable square foot of Premises (i.e., the average rental rate per rentable
square foot of Premises during the Original Term), and during the Second
Extended Term, the Annual Fixed Rent Rate shall be no less than the average
Annual Fixed Rent Rate in effect during the First Extended Term.  In addition, it is expressly understood and
agreed that the annual charge-off for the amortized cost of the Connector
Bridge pursuant to Section 3.8 of the Building 65 Lease is payable in
addition to and apart from the Fixed Rent during the Term and shall not be
included in the determination of the Fair Market Rent during any Extended Term.
At the time of commencement of an Extended Term, Tenant’s Base Operating Costs
shall be revised to be Operating Costs for first full calendar year of the
Extended Term grossed up if necessary to reflect full occupancy, and Base Taxes
shall be revised to be Taxes for the first fiscal year which begins during the
first Lease Year of the Extended Term, grossed up if necessary to reflect full
assessment.  If Tenant shall elect to
exercise an Extension Option, it shall do so by giving Landlord written notice
(the “Extension Notice”) of its election not later than fifteen (15) months
prior to the expiration of the Original Term of this Lease, or fifteen (15) months
prior to the expiration of the First Extended Term, as the case may be.  If Tenant gives such notice and satisfies the
conditions specified above, the extension of this Lease shall be automatically
effected without the 


 


8

















 


execution
of any additional documents, but the parties subsequently shall enter into a
lease amendment as contemplated under Section 2.3.F below..  The Original Term and each Extended Term are
hereinafter collectively sometimes called the “Term” or the “term”.


 


C.                                     Not later than fourteen (14) months prior to
the expiration of the Original Term or the First Extended Term, as applicable,
Landlord shall notify Tenant of Landlord’s determination of the Fair Market
Rate for the applicable Extended Term. 
Within fifteen (15) days after Landlord gives Tenant Landlord’s proposal
for Fair Market Rate, Tenant shall notify Landlord whether Tenant accepts or
disputes such rate.  If Tenant disagrees
with Landlord’s designation, Landlord and Tenant shall commence negotiations to
agree upon the Fair Market Rate.  If
Landlord and Tenant are unable to reach agreement on the Fair Market Rate
within thirty (30) days after the date on which Landlord first gave Tenant Landlord’s
proposal for the Fair Market Rate, then the Fair Market Rate shall be
determined as provided below.


 


D.                                    If Landlord and Tenant are unable to agree on
the Fair Market Rate by the end of said thirty (30)-day period, then within
five (5) days thereafter, Landlord and Tenant shall each simultaneously
submit to the other in a sealed envelope its good faith estimate of the Fair
Market Rate, including anticipated steps in rent, if any.  If the higher of such estimates is not more
than one hundred five  percent (105%) of
the other estimate, then the Fair Market Rate shall be the average of the two
estimates. If the matter is not resolved by the exchange of estimates, then
Fair Market Rate shall be determined by an independent arbitrator as set forth
below.


 


E.                                      Within seven (7) days after the exchange
of estimates, the parties shall select, as an arbitrator, a mutually acceptable
commercial real estate broker or appraiser licensed in the Commonwealth of
Massachusetts specializing in the field of commercial office leasing in the
suburban Boston area, having no less than ten (10) years’ experience (an
“Approved Arbitrator”).  If the parties
cannot agree on such person, then within a second period of seven
(7) days, each shall select one Approved Arbitrator and the two appointed
Arbitrators shall, within five (5) days, select a third Approved
Arbitrator who shall be the final decision-maker (the “Final Arbitrator”).  If one party shall fail to timely make such
appointment, then the person chosen by the other party shall be the sole
arbitrator. Once the Final Arbitrator has been selected as provided for above,
then, as soon thereafter as practicable, but in any case within fourteen (14)
days after his or her appointment, the arbitrator shall determine the Fair
Market Rate by selecting either the Landlord’s estimate of Fair Market Rate or
the Tenant’s estimate of Fair Market Rate. 
Such arbitrator must choose the proposed Fair Market Rate that he/she
determines is closest to the actual market rental rate for the Premises, taking
into account that the Annual Fixed Rent Rate must in no event be less than the
average Annual Fixed Rent Rate in effect during the immediately preceding term,
as specifically set forth in Section 2.3 (B). There shall be no discovery
or similar proceedings. The arbitrator’s decision as to which estimate shall be
the Fair Market Rate for the Extended Term shall be rendered in writing to both
Landlord and Tenant and shall be final and binding upon them and shall be the
Annual Fixed Rent Rate for the Extended Term. 
The costs of the Final Arbitrator will be equally divided between
Landlord and Tenant.  Any fees of any
counsel engaged by Landlord or Tenant, however, shall be borne by the party
that retained such counsel.


 


F.                                      Once the Fair Market Rate has been
determined, the parties shall promptly execute an amendment to this Lease
setting  forth the Fixed Rent for the
Premises during the applicable Extended Term. 
For any part of the Extended Term during which the Fixed Rent Rate is in
dispute, or has not yet been finally determined, Tenant shall make payments to
Landlord on account of Fixed Rent at the rate per square foot of Rentable Floor
Area of the Premises last paid under this Lease.  The parties shall adjust for any overpayments
or underpayments upon final determination of such rent.


 


ARTICLE
3 

Improvements


 


3.1                                 Base Building Work;
Tenant Improvement Work.  A. Landlord
shall cause to be performed, at its expense, the work to demise the common area
bathrooms for the Amenities Center, substantially in accordance with the
Schematic Design Plans attached hereto as Exhibit C.  In addition, Landlord shall, at its sole
cost, install in the Premises check-meters for utilities and chilled water for
Tenant’s special needs areas, and shall insure that all restrooms and
access/egress ways are in compliance with applicable building codes, including
those requiring removal of architectural barriers to disabled persons (all of
the foregoing is called, the “Base Building Work”).  All Landlord’s Base Building Work shall be
done in a good and workmanlike manner employing building standard materials and
finishes.


 


B.                                     Landlord shall cause to be performed the
alterations and improvements desired by Tenant to prepare the Premises for
Tenant’s use (the “TIW”), substantially in accordance with the Schematic Design
Plans attached hereto as Exhibit C and pursuant to the Final Plans.  The TIW will be performed at Landlord’s
expense up to the TI Allowance and subject to payment by Tenant of the Tenant’s
Share (defined in Section 3.4). The TI Allowance may be applied at
Tenant’s discretion toward architectural and engineering fees, the construction
management fee to Nordblom Development Company (referred to below), consulting
fees, hard construction costs, air-conditioning and special electrical power
distribution, telephone and security systems and the cost of furniture,
fixtures or equipment.  All Base Building
Work and the TIW (collectively, the “Landlord’s Work”) shall be done in a good
and workmanlike manner and in compliance with all applicable building laws.  Tenant
shall have the right to require Landlord to use, to the extent practical and
where possible, the existing building materials and equipment currently on-site
within the Premises (but excluding current furniture) and the so-called “attic
stock” within Building 65, an inventory of which is attached to the Building 65
Lease.  Tenant shall advise Landlord on
or before 


 


9

















 


November 24,
2009, which of the items listed in such inventory Tenant desires.  Tenant agrees that Landlord may make any
non-material changes in the Landlord’s Work which may become reasonably
necessary or advisable to accommodate field conditions or to substitute
materials of equal or better quality to meet availability schedules, without approval
of Tenant, provided written notice is promptly given to Tenant; and Landlord
may make other changes in such work reasonably necessary to accommodate
unforeseen conditions, with the written approval of Tenant, which shall not be
unreasonably withheld or delayed. 
Landlord shall use diligence to cause Landlord’s Work to be
Substantially Completed by the Target Commencement Date, subject to Force
Majeure events (defined in Section 10.5 hereof) and any Tenant Delay
(defined below).  Tenant shall be required
to pay to Nordblom Development Company a project management fee equal to 1.5%
of the total construction cost of the TIW for both the Premises and the
Building 65 Premises, excluding project management costs, costs for
architectural and engineering fees, moving costs and telecommunications wiring
and cabling costs.  It is understood that
the phrases “TIW”, “Landlord’s Work” and the “Final Plans,” referred to in this
Article 3 shall mean the base building work, the tenant improvement work
and the plans for both the Premises and the Building 65 Premises together as
one integrated tenant improvement project, with the exception of subparagraph A
above and Sections 3.6 and 3.7, where the respective meanings of such terms
shall only be applicable to the Premises.


 


C.                                     The phrase, “Tenant Delay”, shall be defined
as any delay in the completion of Landlord’s Work actually caused by
(i) work, upgrades or long lead-time items for which Landlord identifies a
specified period of delay, and in either instance Tenant does not withdraw or
alter such special work, upgrade, long lead-time item which avoids such delay,
(ii) any changes to any plans, including the Final Plans, made by Tenant,
or any Tenant’s Change Order, in any case for which Landlord identifies a specified
period of delay at the time of its approval and for which Tenant does not
withdraw such change to avoid delay, (iii) any change in the design of the
TIW or any component thereof made by Tenant that results in a delay in the
Landlord’s construction start date beyond January 3, 2010, (iv) the
delay of Tenant or its architects and engineers in providing or approving the
Construction Plans or the Proposed GMP, or supplying, submitting or approving
any other plans, specifications, pricing or estimates or giving authorizations
or supplying information reasonably required by Landlord or its General
Contractor or the Town of Burlington by the dates stipulated in
Section 1.1, and in this Article 3, or in any other instance if no
time period is specified, then within three (3) business days after
request therefor, (v) any failure by any contractors employed by Tenant
including, without limitation, contractors furnishing telecommunications, data
processing or other service or equipment directly to Tenant (and not via Landlord’s
contractors) to comply with the agreed upon timetables for coordination of the
parties’ respective components of work, as established at on-site progress
meetings between Landlord’s representative and Tenant’s representative, each
acting reasonably and in good faith, (vi) any failure to comply with this
Article 3 or any material interference with the performance of Landlord’s
Work by Tenant or any of its agents, employees, architects, engineers or
contractors, or (vii) Tenant’s delay in delivering the Original Letter of
Credit required pursuant to Section 4.4. No event shall constitute a
“Tenant Delay” unless Landlord advises Tenant in writing (which may be by email
with a copy to Paul.Jakubowski@WilmerHale.com) of such event within three (3) business
days after Landlord becomes aware of its occurrence; however, Landlord need not
give Tenant notice of any failure of Tenant to act by the dates stipulated in
Section 1.1 and in this Article 3, it being acknowledged that a
failure to timely act by such stipulated dates is ipso facto a “Tenant Delay on
a day for day basis.


 


3.2                                 Late Delivery. A. 
In the event that Landlord’s Work is not Substantially Complete by
July 1, 2010, for any reason other than a Tenant Delay or Force Majeure
event, then the Fixed Rent first coming due as of the Rent Commencement Date
shall be abated by one day for each day of delay during the period beginning on
July 1, 2010, and ending on the day the Landlord’s Work is in fact
Substantially Complete.  If Landlord’s
Work is still not Substantially Complete by August 1, 2010, for any reason
other than a Tenant Delay or Force Majeure event, then the Fixed Rent shall be
further abated by 2 days for each day of delay during the period beginning on
August 1, 2010, and continuing until the day the Landlord’s Work is in
fact Substantially Complete.  Further, if
the Landlord’s Work is not Substantially Complete by September 1, 2010,
for any reason other than a Tenant Delay or Force Majeure event,  then the Fixed Rent shall be further abated
by 3 days for each day of delay during the period beginning on
September 1, 2010 and continuing until the day Landlord’s Work is
Substantially Complete.


 


B.                                     If the Landlord’s Work is not Substantially
Complete by October 31, 2010, for any reason other than a Tenant Delay or
Force Majeure event, then Tenant may elect to perform the incomplete Landlord’s
Work itself, utilizing the funds held under the Construction Escrow Agreement
for any incomplete TIW, with any reasonable expenditures for the Base Building Work
to be reimbursed by Landlord within 30 days after request therefore with
back-up documentation to substantiate the request), failing which, Tenant shall
have the right to offset such expenditures against the Fixed Rent next coming
due as of the Rent Commencement Date, except that such monthly offset shall not
exceed fifteen (15%) percent of the monthly installment of Fixed Rent then
payable as stipulated in Section 1.1.C. 
If the Landlord’s Work is still not Substantially Complete by
May 31, 2011, despite Landlord having used diligent efforts to complete
the Landlord’s Work, and provided the reason for Landlord’s inability to
complete such work by May 31, 2011 is not due solely to Tenant Delay, then
either Landlord or Tenant may terminate this Lease by giving written notice of
termination to the other party.  If
either party timely and properly gives the termination notice, then this Lease
shall terminate immediately upon the date of a party’s notice.


 


3.3                                 Plans and
Specifications   A. Tenant shall be solely responsible for
the preparation and submission to Landlord of (a)  the Schematic Design
Plans, (b) a full set of architectural, electrical, mechanical and
plumbing, construction, design development drawings, including demolition plans
sufficient for pricing and permitting equivalent in design completion to more
than 50% of the TIW Plans (the “Design Development Permitting/Pricing Plans”),
and (c) a full CD set of architectural and MEP construction plans and 


 


10

















 


specifications
sufficient to permit and construct the TIW, (called “TIW Plans”), and all other
information reasonably required by Landlord and the General Contractor (defined
below) necessary obtain a building permit from the Town of Burlington and otherwise
to perform and complete the TIW.  All
plans shall emanate from and be consistent with the approved Schematic Design
Plan attached hereto as Exhibit C. 
Tenant has assured itself by direct communication with the architect and
engineers that the Design Development/ Permitting/Pricing Plans can be
submitted to Landlord by the respective dates set forth in
Section 1.1.  Additionally, Tenant
agrees to cause the TIW Plans to be delivered to Landlord for review before the
Final Plans Date and agrees to devote such time as may be necessary in
consultation with said architect and engineers to enable them to complete the
Final Plans by the Final Plans Date. 
Tenant shall cause its architect and engineers to cooperate with
Landlord and the General Contractor, as reasonably necessary to enable Landlord
to obtain a building permit from the Town of Burlington for the TIW by
January 2, 2010.  Tenant shall also
cause its architects and engineers to reasonably cooperate with Landlord or the
General Contractor, as applicable, as reasonably necessary to obtain a
Certificate of Occupancy from the Town of Burlington. Time is of the essence in
respect of the preparation and submission of all plans by Tenant.  If in Landlord’s judgment, Tenant’s
architects and engineers are not cooperating fully or progressing diligently,
then Landlord shall have the right, but not the obligation, to engage its own
architects and engineers to complete any necessary plans and to supply
information, and the like to obtain a building permit by January 2, 2010,
or to meet construction schedules and to otherwise avoid delay, but such right
to take action on Tenant’s behalf to speed the approval process shall not
entitle Landlord to make material changes to the Final Plans (defined in paragraph
B below); provided, however, if the Town of Burlington requires any change to
the Final Plans in order to issue a building permit, Tenant shall cooperate
reasonably with Landlord to address the Town’s concerns and requests.  The fees of any architect and engineer
engaged by Landlord pursuant to the preceding sentence will be paid by Tenant
within thirty (30) days after invoice from Landlord.


 


B.                                     All plans shall require Landlord’s approval,
which shall not be unreasonably withheld, delayed or conditioned.  Landlord shall give Tenant notice, in
reasonable detail, of any reasonable objections or concerns Landlord may have
with respect to any plans or revised plan, within ten (10) business days
after submission by Tenant of its plans and all necessary supporting information.  Landlord shall not be deemed unreasonable for
withholding or conditioning approval of plans which (i) involve or are
reasonably likely to materially adversely affect any structural element or
exterior element of the Building or any portion thereof, or (ii)are reasonably
likely, in Landlord’s reasonable opinion, to materially adversely affect the
value of the Building or any portion thereof, or (iii) are reasonably
likely to materially adversely affect the proper functioning of the Building
systems.  If Landlord objects to any
plans, or any portion thereof,  Tenant
shall cause the plans to be revised in a manner sufficient to remedy Landlord’s
objections and respond to Landlord’s concerns and redelivered to Landlord
within five (5) business days after Tenant’s receipt of Landlord’s notice
of objection.   The aforesaid process
shall be repeated until the plans are approved by Landlord.   The final TIW Plans approved by Landlord
shall be called the “Final Plans” and will be used to obtain a building permit
for the TIW.  Tenant shall use diligence
to submit the TIW Plans and any revisions in order to complete the Final Plans
by the Final Plans Date.


 


C.                                     Tenant agrees to cause its architect to issue
the following early release packages by the dates listed below:


 


(i)                                     Roof Top Chiller — To service customer
success area by 11/20/09;


 


(ii)                                  HVAC LIEBERT UNITS or Lab Fan Coil Units by
11/20/09;


 


(iii)                               HVAC VAV Boxes by 12/1/09;


 


(iv)                              Structural Reinforcing for RTU’s and Vitrines by 11/20/09;


 


(v)                                 Major Electrical Distribution
Equipment/Switchgear by 11/20/09;


 


(vi)                              Pad Mounted Transformers by 11/20/09;


 


(vii)                           UPS Units by 11/20/09;


 


(viii)                        Main Chiller Plant by 11/20/09; and


 


(ix)                                Ceiling Mounting Fan Coils for Engineering Areas by 11/20/09.


 


3.4                                 Cost of TIW; Tenant’s
Share.  It is understood that totality of the tenant
improvement work being performed in the Premises and in the Building 65
Premises is one integrated construction project pursuant to a single
construction contract, and, for the purposes of this Section 3.4, all
references to “TIW” shall mean the aggregate tenant improvement work in the
Premises and in the Building 65 Premises as shown on the Final Plans. Landlord
shall cause the TIW to be performed by Erland Construction (the “General Contractor”)
and by major subcontractors (which shall be Subguard
re-insured) selected and engaged by Landlord and the General Contractor, and
approved by Tenant, which approval shall not be unreasonably withheld,
conditioned or delayed.  Landlord shall
cause the General Contractor to reasonably bid each major trade of
subcontractor work involved in the TIW, and shall cause the General Contractor
to accept the lowest qualified bid submitted for each such trade unless such
bid fails to conform to the Final Plans or if Landlord, Tenant and General
Contractor reasonably agree otherwise. 
Landlord shall provide Tenant with periodic pricing once Landlord
receives the Schematic Design Plans. 
Within 14 days after receipt of


 


11

















 


the Design
Development Permitting/Pricing Plans, Landlord shall cause the General
Contractor to provide Tenant a proposed Guaranteed Maximum Price (the “Proposed
GMP”) for the TIW.  Within five
(5) business days of receipt of the Proposed GMP Tenant shall either give
Landlord its written approval of the Proposed GMP, or shall cause the Design
Development Permitting/Pricing Plans to be value engineered and revised by
means of a “deductive alternative” process for budget control rather than a
redesign effort.  The revised Design
Development Permitting/Pricing Plans shall be subject to Landlord’s approval
and shall be submitted by Landlord to General Contractor for revised
pricing.  The foregoing process shall be
repeated utilizing the TIW Plans, if necessary, until the Proposed GMP is
approved by Tenant in writing.  Tenant
agrees to cause its architects and engineers to use diligence to revise the
plans as necessary to achieve an approved GMP no later than December 30,
2009 (as approved, the “Contract Price”). 
It is expressly understood that any delay by Tenant in approving the GMP
by December 30, 2009, will constitute a Tenant Delay on a day-for-day
basis for each day from December 30, 2009 until the date the GMP is
finally approved by Tenant, and if such period of Tenant Delay actually delays
Landlord in achieving Substantial Completion of Landlord’s Work by June 1,
2010, then Landlord shall have the right to deem the Commencement Date to have
occurred on the date that such Landlord’s Work would have been Substantially
Completed but for such period of Tenant Delay (but Landlord shall not be
relieved of the obligation to actually complete Landlord’s Work and obtain a
permanent certificate of occupancy). 
Promptly after approval of the Contract Price and receipt of the Final
Plans, Landlord shall release the General Contractor to perform the TIW in
accordance with the Final Plans, at Landlord’s cost, subject to payment by
Tenant of the amount (the “Tenant’s Share”) by which the Contract Price
(subject to adjustment pursuant to the next paragraph) exceeds the TI
Allowance.


 


Landlord’s
affiliate, the Building 65 Landlord, and Tenant have entered into the
Construction Escrow Agreement to ensure that funds will be available to pay for
the TIW and the Connector Bridge.  Within
21 days after the full execution of this Lease, Landlord shall fund
$2,992,950.00 (representing the TI Allowance under this Lease) into an escrow
account (the “Escrow Account”) established 
pursuant to the terms of the Construction Escrow Agreement, and Tenant
shall fund into the Escrow Account the Tenant’s Share (adjusted pursuant to the
Construction Escrow Agreement once the Tenant’s Share is finally
determined).  In the event either
Landlord or Tenant fails to fully fund its share into the Escrow Account within
the aforesaid 21-day period, then the other party may elect to terminate this
Lease by giving written notice to the other, effective immediately upon the
giving of the notice.


 


Landlord
acknowledges that its affiliate, the Building 65 Landlord, is obligated
pursuant to Section 3.10 of the Building 65 Lease, to construct the
Connector Bridge in order to connect Building 65 to the Premises, and agrees to
allow such construction to proceed, in accordance with the Building 65 Lease.  Landlord further acknowledges that
$1.600,000.00 will be deposited into the Escrow Account by the Building 65
Landlord to fund the construction of the Connector Bridge, and hereby
recognizes Tenant’s right, pursuant to the terms of
Section 3.10(C) of the Building 65 Lease, to complete any incomplete
construction of the Connector Bridge if the Building 65 Landlord has not
Substantially Completed construction of the Connector Bridge by the date that
is ninety (90) days after the later of (i) the Commencement Date or (ii) the
date Tenant opens for business in the Building 65 Premises, utilizing the funds
deposited into the Escrow Account for the Connector Bridge.  In the event Tenant properly exercises its
right to self-help to complete the Connector Bridge, Landlord shall not take
any action against Tenant’s exercise of its self-help right nor its right to
draw on the funds available in the Escrow Account for completion of the
Connector Bridge.


 


After the TIW has
been completed, if it is determined that the total payments under the contract
with the General Contractor were actually less than the Contract Price, the
savings shall be refunded to Tenant, and any savings in the cost of
constructing the Connector Bridge shall belong to Landlord, as more
specifically set forth in the Construction Escrow Agreement.


 


3.5                                 Work Change Orders. 
After the Final Plans and the Contract Price have been approved, Tenant
may elect to propose changes to the Final Plans (“Tenant’s Change Order”).
Tenant shall submit each proposed Tenant’s Change Order to Landlord for its
approval, such approval not to be unreasonably withheld, conditioned or
delayed, provided Tenant’s requested change will not affect the compliance of
the Building or the Premises with applicable laws.  Landlord agrees to respond to any Tenant’s
Change Order within such time as is reasonably necessary under the
circumstances (taking into consideration the information contained in such
Change Order), and in any event no later than five (5) business days
following submission by Tenant, advising Tenant of any anticipated increase in
costs associated with such Tenant Change Order as well as an estimate of any
delay in Landlord’s Work (it being understood that a delay, if any, in
Landlord’s Work caused by such Change Order could result in a deemed
Commencement Date pursuant to Section 2.1).  Tenant shall then have the right to approve
or withdraw such Tenant’s Change Order. 
If any Tenant’s Change Order is approved as aforesaid, and the
applicable Tenant Change Order increases the cost of construction, then before
implementing any such change, Landlord will prepare a Work Change Order Form,
in the form attached hereto as Exhibit D, setting forth any adjustment in
the Contract Price.  To be valid, the
Work Change Order Form must be signed by both parties.  Landlord will maintain an accurate log of all
Tenant’s Change Orders and will invoice Tenant monthly for the cost of each
Tenant Change Order.  Tenant will be
required to pay each invoice within thirty (30) days of receipt, except for any
Tenant’s Change Order of $20,000.00 or more, in which case Tenant will deposit
such amount into Escrow Account under the Construction Escrow Agreement the
cost of such Tenant’s Change Order upon signing the Work Change Order Form.  Landlord shall have no obligation to proceed
with any Tenant’s Change Order until payment is received or made as aforesaid.


 


3.6                                 Acceptance of the
Premises.   Tenant or its representatives may, at
reasonable times, enter upon the


 


12

















 


Premises during
the progress of the work to inspect the progress thereof and to determine if
the work is being performed in accordance with the requirements of
Section 3.1. Tenant shall promptly give to Landlord notices of any alleged
failure by Landlord to comply with those requirements.  Landlord’s Work shall be deemed approved by
Tenant when Tenant occupies the Premises for the conduct of its business,
except for items of Landlord’s Work which are uncompleted or do not conform to
Exhibit C and the Final Plans and as to which Tenant shall, in either
case, have given written notice to Landlord within thirty (30) days following
the Commencement Date as set forth in a punch-list as set forth below.  A certificate of completion by Landlord’s
architect or engineer and a Certificate of Occupancy shall be evidence that
Landlord’s Work has been completed except for items stated in such certificate
to be incomplete or not in conformity with Exhibit C and the Final Plans.  Within five (5) days after the Town of
Burlington issues a temporary Certificate of Occupancy, Landlord and Tenant
shall meet for the purpose of determining the work remaining in order for
Landlord to achieve a final Certificate of Occupancy, each acting reasonably
and in good faith, and to select a subsequent date for a joint walk-through of
the Premises in order to prepare a punch-list identifying items of Landlord’s
Work which are incomplete (the “Punch-list Items”).  Landlord shall cause such Punch-list Items to
be completed within thirty (30) days after the preparation of the list by the
parties, unless the parties agree upon any longer time periods.  If Tenant notifies Landlord in writing of the
existence of a latent defect in Landlord’s Work within one year following the
Commencement Date, then Landlord at its expense subject to its General
Contractor’s warranty will repair such defect. 
A “latent defect” is a defect in the construction of the Premises which
defect would not ordinarily be observed during a walk-through inspection.


 


3.7                                 Pre-Commencement Entry. 
With Landlord’s prior consent, which shall not be unreasonably withheld,
Tenant and its agents and architects shall have the right to enter the Premises
after full execution and delivery of this Lease during customary business hours
and without payment of rent, but otherwise subject to all of the terms and
conditions of this Lease, to facilitate Tenant’s preparation of its plans for
the TIW so long as such work does not interfere with the performance of any
Base Building Work or Landlord’s Work and is coordinated with Building
management.


 


ARTICLE
4 

Rent


 


4.1                                 The Fixed Rent. 
Commencing as of the Rent Commencement Date, Tenant covenants and agrees
to pay rent to Landlord, by electronic fund transfer (or by such other method,
as set forth below, or to such other person or entity as Landlord may by notice
in writing to Tenant from time to time direct), at the Annual Fixed Rent Rate,
in equal installments at the Monthly Fixed Rent Rate (which is 1/12th of the
Annual Fixed Rent Rate), in advance, without notice or demand, and without
setoff, abatement, suspension, deferment, reduction or deduction, except as
otherwise expressly provided herein, on the first day of each calendar month
included in the term; and for any portion of a calendar month following the
Rent Commencement Date, at the rate for the first Lease Year payable in advance
for such portion. It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent covenants and
agreements, that the Annual Fixed Rent, the Additional Rent and all other sums
payable by Tenant to Landlord shall continue to be payable in all events and
that the obligations of Tenant hereunder shall continue unaffected, unless the
requirement to pay or perform the same shall have been terminated pursuant to
an express provision of this Lease.


 


If Landlord shall
give notice to Tenant that all rent and/or other payments due hereunder are to
be made to Landlord by check, or by any other commercially reasonable means,
Tenant shall make all such payments as shall be due after receipt of said
notice by means as designated by Landlord, with such payments to be made to
such address and to such person or entity as is specified by Landlord.


 


The Annual Fixed
Rent, the Additional Rent and all other sums payable by Tenant to Landlord
under this Lease are sometimes referred to herein as “Rent.”


 


4.2                                 Additional Rent. 
Tenant covenants and agrees to pay, as Additional Rent, insurance costs,
utility charges, personal property taxes and its pro rata share of increases in
taxes and operating costs with respect to the Premises and the Property as
provided in this Section 4.2 as follows:


 


4.2.1                       Real Estate Taxes.  
If Taxes (as hereinafter defined) for any Tax Year during the Term shall
exceed Base Taxes, Tenant shall reimburse Landlord, as additional rent, for
Tenant’s Percentage of such excess (such amount hereinafter referred to as “Tax
Excess”).  Tenant shall remit to
Landlord, on the first day of each calendar month, estimated payments on
account of Tax Excess, such monthly amounts to be sufficient to provide
Landlord, by the time real estate tax payments are due and payable to any
governmental authority responsible for collection of same, a sum equal to the
Tax Excess, as reasonably estimated by Landlord from time to time on the basis
of the most recent tax data available. 
If the total of such monthly remittances for any Tax Year is greater
than the actual Tax Excess for such Tax year, Landlord shall promptly pay to
Tenant, or credit against the next accruing payments of Rent to be made by
Tenant, the difference; if the total of such remittances is less than the
actual Tax Excess for such Tax Year, Tenant shall pay the difference to
Landlord within thirty (30) days after a written  notice to Tenant, which notice shall set
forth the manner of computation of Tax Excess).


 


13

















 


If, after Tenant
shall have made reimbursement to Landlord pursuant to this subsection 4.2.1,
Landlord shall receive a refund of any portion of Taxes paid by Tenant with
respect to any Tax Year during the term hereof as a result of an abatement of
such Taxes by legal proceedings, settlement or otherwise (without either party
having any obligation to undertake any such proceedings), Landlord shall
promptly pay to Tenant, or credit against the next accruing payments of Rent to
be made by Tenant, the Tenant’s Percentage of the refund (less the
proportional, pro rata expenses, including attorneys’ fees and appraisers’ fees,
incurred in connection with obtaining any such refund), as relates to the Tax
Excess paid by Tenant to Landlord with respect to any Tax Year for which such
refund is obtained.  At the request of
Tenant, from time to time but in no event more than three (3) times during
the Original Term, Landlord shall file applications seeking abatements or
reductions of Taxes or shall institute proceedings to reduce the assessed
valuation of the Property or portions thereof including the Premises with the
applicable tax commission or in a court of competent jurisdiction for judicial
review of such assessed valuation. 
Landlord shall diligently, timely and fully prosecute all such
applications and/or proceedings filed or instituted by Landlord.


 


In the event this
Lease shall commence, or shall end (by reason of expiration of the term or
earlier termination pursuant to the provisions hereof), on any date other than
the first or last day of the Tax Year, or should the Tax Year or period of
assessment of real estate taxes be changed or be more or less than one
(1) year, as the case may be, then the amount of Tax Excess which may be
payable by Tenant as provided in this subsection 4.2.1 shall be appropriately
apportioned and adjusted.


 


The term “Taxes”
shall mean all taxes, assessments, betterments and other charges and
impositions (including, but not limited to, fire protection service fees and
similar charges) levied or assessed, or which may be equitably attributable to
the Property, for or in respect of the Property, at any time during the term by
any governmental authority, or taxes in lieu thereof, and additional types of
taxes to supplement real estate taxes due to legal limits imposed thereon.  If, at any time during the term of this
Lease, any tax or excise on rents or other taxes, however described, are levied
or assessed against Landlord with respect to the rent reserved hereunder,
either wholly or partially in substitution for, or in addition to, real estate
taxes assessed or levied on the Property, such tax or excise on rents shall be
included in Taxes.  Taxes shall include
any estimated payment made by Landlord on account of a fiscal tax period for
which the actual and final amount of taxes for such period has not been determined
by the governmental authority as of the date of any such estimated
payment.  The following shall be excluded
from Taxes and shall be paid solely by Landlord: inheritance, estate,
succession, transfer, gift, franchise, or capital stock tax, or any income
taxes arising out of or related to ownership and operation of income-producing
real estate; or any excise taxes imposed upon Landlord based upon gross or net
rentals or other income received by it, any increase in taxes and assessments
resulting solely from Landlord’s sale of, or other transfer of its interest in,
the Building, and assessments, charges, taxes, rents, rates, levies, excises,
license fees, permit fees, inspection fees, or other authorization fees or
charges to the extent allocable to or caused by the development or installation
of off-Premises improvements or utilities (including without limitation street
and intersection improvements, roads, rights of way, lighting, and
signalization) necessary for any past, present or future system development
reimbursement schedule or sinking fund related to any of the foregoing, except
to the extent any of the foregoing may be properly allocable to and charged
against the Premises pursuant to another provision of this Lease.


 


Currently, the
Building and the adjacent buildings known as 95 Network Drive, 45 Network Drive
and 35 Network Drive are located on land which is identified as a single tax
parcel included in one tax bill from the Town of Burlington.  Until such time that separate tax parcels are
defined and assessed by the Town to include a separately identified tax parcel
including the Building and the Premises, Taxes hereunder shall include the
Tenant’s Percentage of the portion of such Taxes allocated by the Town of
Burlington to the Building.


 


4.2.2                       Personal Property Taxes. 
Tenant shall pay all taxes charged, assessed or imposed upon the
personal property of Tenant in or upon the Premises.


 


4.2.3                       Operating Costs. 
If, during the Term hereof, Operating Costs (as hereinafter defined)
incurred by Landlord in any calendar year shall exceed Base Operating Costs,
Tenant shall reimburse Landlord, as additional rent, for Tenant’s Percentage of
any such excess (such amount being hereinafter referred to as the “Operating
Costs Excess”).  Tenant shall remit to
Landlord, on the first day of each calendar month, estimated payments on
account of Operating Costs Excess, such monthly amounts to be sufficient to
provide Landlord, by the end of the calendar year, a sum equal to the Operating
Costs Excess, as reasonably estimated by Landlord from time to time.  If, at the expiration of the year in respect
of which monthly installments of Operating Costs Excess shall have been made as
aforesaid, the total of such monthly remittances is greater than the actual
Operating Costs Excess for such year, Landlord shall  within 30 days after such determination pay
to Tenant, or credit against the next accruing payments of Rent to be made by
Tenant, the difference; if the total of such remittances is less than the
Operating Costs Excess for such year, Tenant shall pay the difference to
Landlord within thirty (30) days from the date Landlord shall furnish to Tenant
an itemized statement of the Operating Costs Excess, prepared, allocated and
computed in accordance with generally accepted accounting principles.


 


14
















 


Landlord shall
keep, in the Building Manager’s office, complete books and records regarding
Operating Costs and Taxes.  Tenant and
its representatives, at Tenant’s sole expense, shall have the right, during
customary business hours, to inspect at Landlord’s offices, Landlord’s books
and records relating to Operating Costs for the immediately preceding calendar
year.  As a condition to performing any
such inspection, Tenant and its examiners shall be required to execute and
deliver to Landlord an agreement, in form reasonably acceptable to Landlord,
agreeing to keep confidential any information which Tenant and the examining
party discover about the Building in connection with such examination, except
for disclosures required by law, court order or regulatory authorities, or to
Tenant’s attorneys, accountants, auditors, or potential purchasers of  the Tenant company.  If Tenant elects to exercise such right, it
must provide reasonable prior written notice to Landlord given no later than
one hundred and twenty (120) days following Tenant’s receipt of Landlord’s
Statement of Operating Costs for any calendar year and it must complete any
such inspection within 60 days of commencement. 
Landlord agrees to reasonably cooperate with Tenant to enable Tenant to
complete its inspection within the time period specified in the preceding
sentence.  If Landlord is obligated to
reimburse Tenant for the cost of the audit as provided below, Tenant shall give
Landlord a complete copy of the results of its inspection.  If it is determined that Tenant is entitled
to a refund, then such refund shall either be in cash or applied as a credit to
the next due installment of Rent, at the election of Landlord.  If it is determined Tenant has underpaid,
then Tenant shall pay such amount within thirty (30) days of Landlord’s invoice
therefor.  Tenant agrees to use for such
inspection a firm that is reasonably acceptable to Landlord and that is not
being paid on a contingency fee basis. If Operating Costs were overstated by
more than three percent (3%), then Landlord shall reimburse Tenant the
reasonable cost of the audit.


 


Any reimbursement
for Operating Costs due and payable by Tenant with respect to periods of less
than twelve (12) months shall be equitably prorated.


 


The term
“Operating Costs” shall mean all costs and expenses incurred for the operation,
cleaning, maintenance, repair and upkeep of the Property, and the portion of
such costs and expenses with  regard to
the Campus Common Areas which is equitably allocable to the Property, including,
without limitation, all costs of maintaining and repairing the Property and the
Park (including snow removal, landscaping and grounds maintenance, operation
and maintenance of parking lots, sidewalks, walking paths, access roads and
driveways, Building exterior and service areas, security, operation and repair
of heating and air-conditioning equipment, elevators, lighting and any other
Building equipment or systems) and of all repairs and replacements (other than
repairs or replacements for which Landlord has received full reimbursement from
contractors or from others) necessary to keep the Property and the Park in good
working order, repair, appearance and condition; all payments under any cross
easement agreement, declaration of restrictive covenants and like instruments
pertaining to the sharing of costs by the Building and other buildings in the
Park; all costs of maintenance and repair of the Connector Bridge; all costs,
including material and equipment costs, for cleaning and janitorial services to
the Building and the Connector Bridge, including window cleaning of the
Building and the Connector Bridge; all costs of any reasonable insurance
carried by Landlord relating to the Property; all costs related to provision of
heat (including electric, and/or gas), chilled water for air-conditioning, and
water (including sewer charges) and other utilities to the Premises, if not
sub-metered, and to the Property, including all charges for electricity and
chilled water furnished by the Building systems to the Connector Bridge;
payments under all service contracts relating to the foregoing; all
compensation, fringe benefits, payroll taxes and workmen’s compensation
insurance premiums related thereto with respect to any employees of Landlord or
its affiliates engaged in security and maintenance of the Property and the
Park; costs of maintaining and operating any amenities available for the
general use of all tenants now or hereafter located in the Campus Common Areas
including an on-site cafeteria (including a monthly cafeteria subsidy, if any);
attorney’s fees and disbursement in connection with tax abatement proceedings;
auditing and other professional fees and expenses; and a management fee in line
with local market rates for similar Class — A buildings (during the
Original Term, 3% of the gross collected Rents).


 


The following
items shall be excluded in Landlord’s calculation of Operating Costs:


 


1.             leasing commissions, fees and
costs, advertising and promotional expenses and other costs incurred in procuring
tenants or in selling the Building or the Park;


 


2.             attorney’s fees except as set forth
above;


 


3.             costs of renovating or otherwise
improving or decorating space for any tenant or other occupant of the Building
or the Park, including Tenant, or relocating any tenant;


 


4.             financing costs including interest
and principal amortization of debts and the costs of providing the same;


 


5.             depreciation, except on materials,
tools, supplies and vendor-type equipment purchased by Landlord to enable
Landlord to supply services Landlord might otherwise contract for with a third
party where such depreciation and interest payments would otherwise have been
included in the charge for such third party’s services, all as determined in
accordance with generally accepted accounting principles, consistently applied,
and when depreciation is permitted or required;


 


15

















 


6.             rental on ground leases or other
underlying leases and the costs of providing the same;


 


7.             wages, bonuses and other
compensation of employees above the grade of Property Manager;


 


8.             costs of any items for which
Landlord is or is entitled to be paid or reimbursed by insurance, other
tenants, or any other sources;


 


9.             increased insurance specifically
attributable to any tenant of the Building or the Park for which Landlord is
entitled to reimbursement from any other tenant;


 


10.           charges for electricity, water, or
other utilities, services or goods and applicable taxes for which Tenant or any
other tenant, occupant, person or other party is obligated to reimburse
Landlord or to pay to third parties;


 


11.           cost of any HVAC, janitorial or other
services provided to tenants on an extra cost basis after regular business
hours;


 


12.           with the exception of operating and maintaining
the cafeteria, fitness facility and putting green, and the like, cost of
installing, operating and maintaining any specialty service, such as an
observatory, broadcasting facilities, child or daycare; provided, however, that
Tenant may elect to opt out of any specialty service provided to tenants (and
therefore not be obligated to pay Operating Costs with respect to such
service), if Landlord reasonably determines that it is feasible to limit
Tenant’s access to such service;


 


13.           cost of any enhanced work or service
performed for any tenant in the Building or the Park to a materially greater
extent or in a materially more favorable manner than furnished generally to the
tenants and other occupants;


 


14.           cost of any work or services
performed for any facility other than the Building or Park;


 


15.           any cost representing an amount paid
to a person firm, corporation or other entity related to Landlord that is in
excess of the amount which would have been paid in the absence of such
relationship;


 


16.           any cost of decorating or decorative
painting any interior parts of the Building or the Park other than common
areas;


 


17.           cost of initial cleaning and rubbish
removal from the Building to be performed before final completion of Tenant’s
space;


 


18.           lease payments incurred by the
Landlord or Managing Agent for rental equipment (other than equipment for which
depreciation is properly charged as an expense) that would constitute a capital
expenditure if the equipment were purchased, except for shuttle buses;


 


19.           cost of the initial stock of tools
and equipment for operation, repair and maintenance of the Building or the
Park;


 


20.           late fees or charges incurred by
Landlord due to late payment of expenses;


 


21.           cost of acquiring sculptures,
paintings and other works of art;


 


22.           charitable or political
contributions;


 


23.           all other items for which another
party compensates or pays for in its entirety, so that Landlord shall not
recover any item of cost more than once;


 


24.           Landlord’s general overhead and any
other expenses not directly attributable to the operation and management of the
Building and the Park (e.g. the activities of Landlord’s officers and
executives), except to the extent included in the management fee permitted
hereby;


 


25.           costs and expenses incurred in
connection with compliance with or contesting or settlement of any claimed
violation of law or requirements of law on the part of Landlord;


 


26.           costs of complying with the
applicable local building codes regarding handicap accessibility enacted prior
to the Date of this Lease;


 


27.           costs of mitigation or impact fees or
subsidies (however characterized), imposed or incurred prior to the Date of
this Lease or imposed or incurred solely as a result of another tenant’s or
tenants’ use of the Park or their respective premises;


 


28.           costs related to public
transportation, transit or vanpools, except for shuttle buses and other local
public transportation services such as the B-Line bus in Burlington;


 


16

















 


29.           reserves of any kind;


 


30.           costs or expenses associated with or
incurred in connection with the removal, enclosure, encapsulation or other
handling or of hazardous materials or hazardous substances (as referenced in
Section 6.2.3 below), (exclusive of Landlord’s normal and routine handling
and disposal of hazardous materials, such as paint or computers, for example,
in the ordinary course of maintenance of the Property and Park, not to exceed
$10,000 in any calendar year);


 


31.           costs of defending against claims in
regard to the existence or release of hazardous materials or substances at the
Building or the Park which arise during the Term; and


 


32.           any cost associated with operating an
off-site management office for the Building.


 


If, during the
Term of this Lease (except as provided for in clause (c) below), Landlord
shall replace any capital items or make any capital expenditures which
(a) are intended to reduce Operating Costs or (b) are required to
comply with laws enacted after the date of this Lease or (c) are required
after the expiration of the 1st Lease Year to replace worn-out items as may be
necessary to maintain the Building in good working order, repair, appearance
and in first-class condition, and not to enhance the Building over and above its
current appearance and condition, (the items in clauses (a), (b) and
(c) are collectively called “capital expenditures”), the total amount of
which is not properly included in Operating Costs for the calendar year in
which they were made, there shall nevertheless be included in Operating Costs
for each calendar year in which and after such capital expenditure is made the
annual charge-off of such capital expenditure. 
The annual charge-off shall be determined by (i)  dividing the
original cost of the capital expenditure by the number of years of useful life
thereof  as  reasonably determined by Landlord; and
(ii)  adding to such quotient an interest factor computed on the unamortized
balance of such capital expenditure based upon an interest rate reasonably
determined by Landlord as being the interest rate then being charged for
long-term mortgages by institutional lenders on like properties within the
locality in which the Building is located. 
Except for the annual charge-off described above, no portion of any
capital expenditures shall be included within Operating Costs. Landlord
covenants that it will not grant to any future tenant of the Park (to the
extent Landlord, or its affiliates, controls other buildings in the Park)
rights regarding capital expenditures that are more favorable in such regard
than this provision is for Tenant.


 


If during the
calendar year for which Base Operating Costs are being computed, the Building
was not fully occupied by tenants or if Landlord was not supplying all tenants
with the services, amenities or benefits being supplied hereunder, the
categories of Operating Costs which vary with occupancy shall be reasonably
extrapolated by Landlord to the estimated Operating Costs that would have been
incurred if the Building were fully occupied by tenants or if such services
were being supplied to all tenants, and such extrapolated amount shall, for the
purposes of this Section 4.2.3, be deemed to be the Base Operating Costs.


 


4.2.4                        Insurance. 
Tenant shall, at its expense, as Additional Rent, take out and maintain
throughout the term the following insurance protecting Landlord:


 


4.2.4.1               Commercial
general liability insurance naming Landlord, Tenant, and Landlord’s managing
agent and any mortgagee of which Tenant has been given notice as additional
insureds and indemnifying the parties so named against all claims and demands
for death or any injury to person or damage to property which may be claimed to
have occurred on the Premises, including the Connector Bridge (or the Property,
insofar as used by customers, employees, servants or invitees of the Tenant),
in amounts which shall, at the beginning of the term, be at least equal to the
limits set forth in Section 1.1, and, which, from time to time during the
term, shall be for such higher limits, if any, as are customarily carried in
the area in which the Premises are located on property similar to the Premises
and used for similar purposes; and workmen’s compensation insurance with
statutory limits covering all of Tenant’s employees working on the Premises.


 


4.2.4.2               “Special
Risk” property insurance with the usual extended coverage endorsements covering
all Tenant’s furniture, furnishings, fixtures and equipment, and business
interruption insurance with extra expense coverage.


 


4.2.4.3               All
such policies shall be obtained from responsible companies qualified to do
business and in good standing in Massachusetts, which companies and the amount
of insurance allocated thereto shall be subject to Landlord’s approval.  Tenant agrees to furnish Landlord with
certificates evidencing all such insurance prior to the beginning of the term
hereof and evidencing renewal thereof at least thirty (30) days prior to the
expiration of any such policy.  Each such
policy shall be non-cancelable with respect to the interest of Landlord and the
insurer will endeavor to notify Landlord at least ten (10) days’ prior
written notice of any policy, but in any event no later than five (5) days
following cancelation thereof.


 


4.2.4.4               All
insurance which is carried by either Landlord or Tenant with respect to the
Building, Premises or to furniture, furnishings, fixtures, or equipment therein
or alterations or improvements thereto, whether or not required, shall include
provisions which either 


 


17

















 


designate
the other party as one of the insured or deny to the insurer acquisition by
subrogation of rights of recovery against the other party to the extent such
rights have been waived by the insured party prior to occurrence of loss or
injury, insofar as, and to the extent that, such provisions may be effective
without making it impossible to obtain insurance coverage from responsible
companies qualified to do business in the state in which the Premises are
located (even though extra premium may result therefrom).  In the event that extra premium is payable by
either party as a result of this provision, the other party shall reimburse the
party paying such premium the amount of such extra premium.  If at the request of one party, this
non-subrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this subsection shall derogate from or otherwise affect releases
elsewhere herein contained of either party for claims.  Each party shall be entitled to have
certificates of any policies containing such provisions.  Each party hereby waives all rights of recovery
against the other for loss or injury against which the waiving party is protected
by insurance containing said provisions, reserving, however, any rights with
respect to any excess of loss or injury over the amount recovered by such
insurance.


 


4.2.5                        Utilities. Tenant shall reimburse Landlord through
Operating Costs, pursuant to Section 4.2.3, for all charges for gas and
chilled water for normal office heating and air-conditioning to the Premises
and chilled water and electricity to the Connector Bridge, and water for
ordinary cleaning and lavatory use during the Term.  Tenant shall pay to Landlord by means of
monthly escrow payments (as hereinafter set forth) for all charges for the cost
of electricity for Tenant’s lights, outlets and VAV boxes, and for usage of
electricity and chilled water for Tenant’s special requirements at the
Premises. Commencing as of the Commencement Date, Tenant shall pay to Landlord,
as Additional Rent, estimated charges (the “Utilities Charges”) on account of
Tenant’s consumption of electricity in the Premises for its lights, outlets,
and VAV boxes, and for usage of electricity and chilled water consumption for
Tenant’s special requirements at the Premises. 
Landlord shall reasonably estimate the amount of Utilities Charges
payable by Tenant per month and shall notify Tenant prior to the Commencement
Date of the initial estimate of Utilities Charges to be paid by Tenant.  Tenant shall pay the Utilities Charges on the
first day of each calendar month included in the Term, in the same manner as
Tenant pays Fixed Rent pursuant to Section 4.1 above. Following Landlord’s
receipt of utility provider invoices, Landlord will reconcile the estimated
Utilities Charges paid by Tenant with the actual amounts owing from Tenant
based on the number of kilowatt hours of electricity used in the Premises for
the preceding month as registered on the sub-meters for the Premises based on
the excess chilled water consumption as registered on the BTU meters for the
areas of excess use.  If it is determined
Tenant has been overcharged, then such overpayment will be refunded to Tenant
within thirty (30) days after such determination or credited against Tenant’s
account for the following month.  If
Tenant has underpaid, then Landlord will invoice Tenant for the amount owed and
Tenant shall pay such amount within thirty (30) days after billing. Landlord
reserves the right to adjust the monthly Utilities Charges from time to time
based on the most current data available for Tenant’s electrical  and chilled water consumption in the
Premises, and Tenant shall thereafter pay the adjusted Utilities Charges to
Landlord until further notice. 
Additionally, Tenant shall pay all charges for telephone and other
utilities or services not supplied by Landlord, whether designated as a charge,
tax, assessment, fee or otherwise, all such charges to be paid as the same from
time to time become due.  Except as
otherwise provided in Article 5, it is understood and agreed that Tenant
shall make its own arrangements for the installation or provision of all such utilities
and that Landlord shall be under no obligation to furnish any utilities to the
Premises and shall not be liable for any interruption or failure in the supply
of any such utilities to the Premises.


 


4.3                                 Late Payment of Rent. 
If any installment of Fixed Rent is paid five (5) or more days after
notice that the same is overdue, and if on a prior occasion in the twelve (12)
month period prior to the date such installment was due an installment of rent
was paid after the same was due, then Tenant shall pay Landlord a late payment
fee equal to five (5%) percent of the current overdue payment.


 


4.4                                 Letter of Credit. The performance of Tenant’s obligations
under this Lease shall be secured by a letter of credit throughout the term
hereof in accordance with and subject to the following terms and conditions:


 


4.4.1        Amount of Letter of Credit.  
Concurrently with Tenant’s execution and delivery of this Lease,  Tenant shall deliver to Landlord an
irrevocable standby letter of credit (the “Original Letter of Credit”) which
shall be (i) in the form of Exhibit H attached to this Lease (the
“Form LC”), (ii) issued by a commercial bank reasonably satisfactory
to Landlord upon which presentment may be made in Boston, Massachusetts,
(iii) in the amount equal to the Letter of Credit Amount, and
(iv) for a term of at least 1 year, subject to the provisions of
Section 4.4.2 below.  The Original
Letter of Credit, any Additional Letters(s) of Credit and Substitute
Letter(s) of Credit are referred to herein as the “Letter of Credit.”


 


4.4.2        Renewal of Letter of Credit.  Each Letter of Credit shall be automatically
renewable in accordance with the second to last paragraph of the Form LC;
provided however, that Tenant shall be required to deliver to Landlord a new
letter of credit (a “Substitute Letter of Credit”) satisfying the requirements
for the Original Letter of Credit under Section 4.4.1 on or before the
date 30 days prior to the expiration of the term of the Letter of Credit then
in effect, if the issuer of such Letter of Credit gives notice of its election
not to renew such Letter of Credit for any additional period pursuant
thereto.  Should any Letter of Credit
contain a final expiration date, in addition to a current expiration date, such
final expiration date shall be no earlier than 45 days following the Expiration
Date of this Lease.  If Tenant does not
deliver a Substitute 


 


18

















 


Letter of Credit
30 days prior to the expiration of the current Letter of Credit, Landlord shall
be permitted to draw down the entire Letter of Credit Amount and hold the cash
as “Security Proceeds” pursuant to Section 4.4.6 below.


 


4.4.3        Draws to Cure Defaults. 
If the Fixed Rent, Additional Rent or any other sum payable to Landlord
hereunder shall be overdue and unpaid or should Landlord make payments on
behalf of the Tenant, or Tenant shall fail to perform any of the terms of this
Lease in all cases beyond the expiration of all applicable notice and cure
periods, then Landlord shall have the right, at any time thereafter to draw
down from the Letter of Credit the amount necessary to cure such default. In
the event of any such draw by the Landlord, Tenant shall, within 30 days of
written demand therefor, deliver to Landlord either (a) an additional
Letter of Credit (“Additional Letter of Credit”) satisfying the requirements
for the Original Letter of Credit, except that the amount of such Additional
Letter of Credit shall be the amount of such draw, or (b) a substitute
Letter of Credit in the Letter of Credit Amount (to be exchanged for the Original
Letter of Credit).


 


4.4.4        Draws to Pay Damages. 
In addition, if (i) this Lease shall have been terminated as a
result of Tenant’s default under this Lease beyond the expiration of the
applicable cure period, and/or (ii) this Lease shall have been rejected in
a bankruptcy or other creditor-debtor proceeding, then Landlord shall have the
right at any time thereafter to draw down from the Letter of Credit an amount
sufficient to pay any and all damages payable by Tenant on account of such
termination or rejection, as the case may be, pursuant to Article 8
hereof. In the event of bankruptcy or other creditor-debtor proceeding against
Tenant, all proceeds of the Letter of Credit shall be deemed to be applied
first to the payment of rent and other charges due Landlord for all periods
prior to the filing of such proceedings.


 


4.4.5        Issuing Bank.  In the event
the issuer of any Letter of Credit becomes insolvent or is placed into
receivership or conservatorship by the Federal Deposit Insurance Corporation, or
any successor or similar entity, or if a trustee, receiver or liquidator is
appointed for the issuer, then, effective as of the date of such occurrence,
the Letter of Credit shall be deemed to not meet the requirements of this
Section 4.4 and Tenant shall, within five (5) business days of
written notice from Landlord, deliver to Landlord a Substitute Letter of Credit
which otherwise meets the requirements of this Section, or, alternatively,
Tenant shall, within such five (5) business-day period deliver cash to
Landlord in the Letter of Credit Amount, which Landlord shall hold as “Security
Proceeds”, governed by the provisions of Section 4.4.6 below.


 


4.4.6        Draws for Failure to 
Deliver Substitute Letter of Credit. 
If Tenant fails timely to deliver to Landlord a Substitute Letter of
Credit, then Landlord shall have the right, at any time thereafter, without
giving any notice to Tenant, to draw down the Letter of Credit and to hold the
proceeds thereof  (“Security Proceeds”)
in a bank account in the name of Landlord, which may be withdrawn and applied
by Landlord under the same circumstances and for the same purposes as if the
Security Proceeds were a Letter of Credit. Upon any such application of
Security Proceeds by Landlord, Tenant shall, within 30 days of written demand
therefor, deliver to Landlord either (a) an Additional Letter of Credit in
the amount of Security Proceeds so applied, or (b) a Substitute Letter of
Credit in the Letter of Credit Amount (to be exchanged for the Security Proceeds.


 


4.4.7        Transferability. Landlord shall be entitled to transfer its beneficial
interest under the Letter of Credit or any Security Proceeds in connection with
(i) Landlord’s sale or transfer of the Building, or (ii) the
addition, deletion or modification of any beneficiaries under the Letter of
Credit, and the Letter of Credit shall specifically state on its face that it
is transferable by Landlord, its successors and assigns.  Landlord 
shall be responsible for all costs and fees charged to effect such
transfer.


 


4.4.8        Return of Letter of Credit at End of Term. Within 45 days after the expiration
of  the term, to the extent Landlord has
not previously drawn upon any Letter of Credit or Security Proceeds held by
Landlord, Landlord shall return the same to Tenant, less so much thereof that
Landlord reasonably estimates is necessary to compensate Landlord toward the
curing of any continuing default of any of Tenant’s obligations under this
Lease, specifically including any restoration obligations under Section 6.1.9.


 


4.4.9        Reduction in Letter of Credit Amount. On the condition that (a) Tenant is
not in default at the time of the applicable reduction, (b) has not been
in default of its monetary obligations under this Lease more than two times
during the Term, (c) Tenant has had a net income for the immediately preceding
fiscal year of Tenant prior to the applicable reduction (the “Profitability
Test”) as shown on Tenant’s Consolidated Statement of Operations in its most
recent audited annual report, and (d) to the extent Tenant is no longer a
public company, Tenant provides Landlord with an audited statement reporting
satisfaction of the Profitability Test, then the Letter of Credit Amount shall
be reduced as follows:


 


(i)                                     at the end of the 2nd Lease Year, by $233,131.00;


 


(ii)                                  at the end of the  3rd Lease Year, by $233,131.00; and


 


(iii)                               at the end of the  5th Lease Year, by $233,131.00.


 


If Tenant fails to
qualify for any reduction in the Letter of Credit Amount due solely to Tenant’s
inability to satisfy the Profitability Test as of the date of the applicable
reduction, Tenant shall nevertheless be permitted to effect a reduction of
$233,131.00 at any time after the stated reduction date once Tenant satisfies
the Profitability Test and delivers proof thereof to Landlord, provided that
Tenant otherwise satisfies the remaining conditions listed above in this
Section 4.4.9.  Any reduction in the
Letter of Credit 


 


19

















 


Amount for which Tenant
qualifies after the applicable reduction date shall not diminish or postpone
any subsequent reduction.  Except as
provided above, there shall be no reductions in the Letter of Credit Amount, it
being understood that at no time shall the Letter of Credit Amount be less than
$699,395.00.  Tenant shall be
responsible, at its sole expense, for taking all necessary steps to effect a
reduction, provided however that Landlord shall reasonably cooperate with
Tenant to amend the Letter of Credit or obtain a Substitute Letter of Credit,
as applicable, at no cost to Landlord.


 


ARTICLE
5 

Landlord’s Covenants


 


5.1                                 Affirmative Covenants. 
Landlord covenants with Tenant:


 


5.1.1                        Heat and
Air-Conditioning.  To furnish to the Premises heat
and air-conditioning (reserving the right, at any time, to change energy or
heat sources) sufficient to maintain the Premises at comfortable temperatures
(subject to all federal, state, and local regulations relating to the provision
of heat), during the hours of 7:00 a.m. until 6:00 p.m. on Mondays
through Fridays and 7:00 a.m. until 1:00 p.m. on Saturdays (“Normal
Business Hours”), excluding all legal holidays on which the Building is
normally closed.  All charges for gas and
chilled water furnished to the Premises for normal office heating and normal
office air-conditioning, and to the Connector Bridge, will be included in
Operating Costs pursuant to Section 4.2.3 and paid for by Tenant pursuant
to said Section 4.2.3.  Tenant
understands that approximately 8 tons of process chilled water and some hot
water will be furnished by the Building systems to cool and heat the Connector
Bridge.  Heat and air-conditioning for
the Premises will be available to Tenant after Normal Business Hours by prior
request of Landlord’s managing agent at least 24 hours in advance.  As of the date of this Lease, Landlord
estimates the after-hours charge for heating or cooling an entire wing is
$80.00 per wing per hour based on current utility costs.  The after-hours cost is allocated per wing
not per floor, and shall be based upon utility costs to Landlord, taking into
account wear and tear on equipment.  The
rate of increase in the after-hours charges shall not exceed the rate of
increase in the utility costs to Landlord. 
If Tenant shall use chilled water after Normal Business Hours and if
such after-hours use shall result in an additional cost to Landlord on account
thereof, Tenant shall, upon demand, reimburse Landlord for the actual utility
costs plus any additional costs as reasonably estimated by Landlord (such as
wear and tear on the equipment).  If
Tenant shall use chilled water in excess of reasonable quantities for normal
office air-conditioning, then Landlord reserves the right to install a separate
meter or sub-meter, at Tenant’s expense, to measure the flow of chilled water
to the Premises, if deemed necessary by Landlord, and Tenant shall pay
Utilities Charges for the excess chilled water pursuant to Section 4.2.5
above.  The phrase “normal office
air-conditioning” wherever used in this Lease means cooling at 1 CFM per square
foot averaged over the square footage of the Premises with 55° discharge air
and 75° thermostat set points.


 


5.1.2                        Electricity. 
To furnish to the Premises, separately sub-metered and paid for by
Tenant directly to Landlord, as provided in Section 4.2.5 above, electricity
for Tenant’s lights, outlets and VAV boxes. If Tenant shall require electricity
in excess of normal office use for Tenant’s Permitted Uses, then Landlord
reserves the right to install a sub-meter, at Tenant’s expense, to measure
Tenant’s excessive usage and will bill Tenant separately for its excessive
usage.  In addition, if (i)  in
Landlord’s reasonable judgment, Landlord’s facilities are inadequate for such
excess requirements, or (ii) such excess use shall result in an additional
burden on the Building utilities systems and additional cost to Landlord on
account thereof, as the case may be, (a)  Tenant shall, upon demand,
reimburse Landlord for such additional cost, as aforesaid, or (b) 
Landlord, upon written request, and at the sole cost and expense of Tenant,
will furnish and install such additional wire, conduits, feeders, switchboards
and appurtenances  and other electrical
system upgrades as reasonably may be required to supply such additional
requirements of Tenant (if electricity therefor is then available to Landlord),
provided that the same shall be permitted by applicable laws and insurance
regulations and shall not cause permanent damage or injury to the Building or
cause or create a dangerous or hazardous condition or entail excessive or unreasonable
alterations or repairs. Tenant shall be entitled to use at least the Tenant’s
Percentage of the Building’s available conduit and chase space.


 


5.1.2.1              Building
Generator.  The Building is equipped with a 800 kw
standby generator (the “Building Generator”) which is utilized for
building-wide emergency systems.  Tenant
shall be permitted to use its proportionate share (i.e., based on the Premises
rentable square footage) of the Building Generator’s available capacity for
Tenant’s “special needs” areas.  If
Tenant requires additional generator capacity, Landlord shall use reasonable
efforts to accommodate Tenant’s needs. 
Tenant acknowledges that the life safety loads shall remain priority one
in the Building Generator


 


5.1.3                        Cleaning; Water. 
To provide cleaning to the Premises in accordance with cleaning and
janitorial standards generally prevailing throughout the term hereof in
comparable office buildings within the municipality in which the Building is
located, but at least to the standards outlined in


 


Exhibit K ;
and to furnish water to the Premises for ordinary cleaning, lavatory and toilet
facilities.


 


20

















 


5.1.4                        Elevator; Fire Alarm. 
To furnish elevator service (if any) from the lobby to the Premises; and
to maintain fire alarm systems within the Building.


 


5.1.5                        Repairs. 
Except as otherwise expressly provided herein, to make such repairs and
replacements to the roof, exterior walls, floor slabs and other structural
components of the Building, and to the elevators and elevator shafts, and the
plumbing, electrical, heating, ventilating and air-conditioning systems of the
Building and to the common areas and facilities of the Property and the Park as
may be necessary to keep them in good repair and condition (exclusive of
equipment installed by Tenant and except for those repairs required to be made
by Tenant pursuant to Section 6.1.3 hereof and repairs or replacements
occasioned by any act or negligence of Tenant, its servants, agents, customers,
contractors, employees, invitees, or licensees).


 


5.2                                 Interruption. 
Landlord shall be under no responsibility or liability for failure or
interruption of any of the above-described services, repairs or replacements
caused by breakage, accident, strikes, repairs, inability to obtain supplies,
labor or materials, or for any other causes beyond the control of the Landlord,
and in no event for any indirect or consequential damages to Tenant; and
failure or omission on the part of the Landlord to furnish any of same for any
of the reasons set forth in this paragraph shall not be construed as an
eviction of Tenant, actual or constructive, nor entitle Tenant to an abatement
of rent (except with respect to an “Abatement Event” as provided below, nor
render the Landlord liable in damages, nor release Tenant from prompt
fulfillment of any of its covenants under this Lease.


 


An “Abatement
Event” shall be defined as an event or circumstance (other than those addressed
in Article 7) that reasonably prevents Tenant from using the entire
Premises, or any material portion thereof, or the parking areas of the Property
as a result of Landlord’s failure to provide any service required to be
provided by Landlord under this Lease that is essential for Tenant’s use and
enjoyment of the Premises, or to provide reasonable access to the Premises,
provided that such failure or Landlord’s inability to remedy such event or
circumstance is not due to a cause beyond Landlord’s reasonable control
generally affecting other buildings in the vicinity of the Premises (such as a
neighborhood power outage).  Tenant shall
give Landlord notice (an “Abatement Notice”) of any such Abatement Event, and
if such Abatement Event continues beyond the “Eligibility Period” (as that term
is defined below), then the Monthly Fixed Rent and monthly charges on account
of Operating Costs Excess and Tax Excess shall be abated entirely or
proportionately, as the case may be, after the expiration of the Eligibility
Period for such time that Tenant continues to be so prevented from using, and
does not use, the Premises or a portion thereof, in the proportion that the
rentable area of the portion of the Premises that Tenant is prevented from
using, and does not use, bears to the total rentable area of the Premises.  Tenant shall not be entitled to an abatement
of Rent if Tenant is then in default of its monetary obligations beyond the
expiration of all notice and cure periods under this Lease.  The term “Eligibility Period” shall mean a
period of five (5) consecutive business days after Landlord’s receipt of
any Abatement Notice(s).


 


5.3                                 Outside Services.With Landlord’s prior reasonable
approval, Tenant may, at its sole cost and expense, contract for outside
services for the Premises over and above those services to be provided by
Landlord as set forth herein, including security services, which Landlord
acknowledges may involve the installation of cameras, monitory devices and
alarms, (which installation shall be subject to the requirements of
Section 6.2.5 below).  Tenant may
also elect to perform certain of the Landlord-provided services (such as
cleaning) utilizing outside vendors. If Landlord approves the installation
and/or utilization of such services, such installation and utilization shall be
at Tenant’s sole cost, risk and expense, in which event all costs relating to
the provision of such services shall be excluded from “Operating Costs”.


 


5.4                                 Access. 
Subject to Landlord’s security requirements (if any), Tenant shall have
access to the Building and the parking area serving the Building 24 hours per
day, 7 days per week.


 


5.5                                 Building Amenities. 
During the Term of this Lease, Landlord shall cause to be operated a
full-service café with catering service for use by all tenants.  Landlord shall construct or provide, at its
sole expense, and maintain throughout the Term an unstaffed fitness center in
the Park for general availability to all tenants, with no user or membership
fees charged to Tenant and its employees. 
The fitness center will contain men’s and women’s locker rooms with
shower facilities, cardio equipment, free weights, strength training equipment
and stretching areas.  Landlord agrees to
complete such fitness center no later than the Commencement Date and operate
the same throughout the Term.  Regarding
the conference center, Landlord shall assist Tenant in arranging for access to
a shared conference facility, which is currently leased to Sun.  Sun has indicated to Landlord that it will
work with other tenants of the Park to provide reasonable access to such conference
facility, at Sun’s discretion.  Landlord
agrees to continue to operate a café and catering service and fitness center of
substantially comparable quality, general size and services throughout the
Term.  Within 60 days following the date
of this Lease, Landlord will provide Tenant with general rules and
guidelines relating to the use of the Park amenities center and the Sun
conference facility.


 


5.6                                 Environmental. Landlord represents to Tenant to
Landlord’s actual knowledge that, except as may be disclosed in that certain
Phase 1 Environmental Site Assessment Report prepared by Sleeman
Hanley & DiNitto dated June 15, 2007 (the “Phase 1 Report”),
there are no hazardous materials in, on, about, under or emanating from the
Premises or the Park in violation of any laws. 
Landlord shall indemnify and defend, with counsel reasonably acceptable
to Tenant, and hold Tenant harmless from and against, any and all liabilities,
costs, expenses, damages, claims, fees, penalties,  and fines incurred by Tenant as a result of
the existence prior to and on the Date of this Lease of hazardous materials, or
oil  in, on or about the Premises or the
Park; provided, however, that with respect to claims against Tenant by
employees or former employees of Tenant relating to such pre-existing hazardous
materials or oil, Landlord shall have no duty to 


 


21

















 


defend Tenant, and
Landlord’s obligation to indemnify Tenant in such cases shall apply only if
such employee’s claim prevails, despite Tenant having used reasonable efforts
to defend such claim, in a judicial proceeding in a court of competent
jurisdiction through final judgment, with no further appeal.  Landlord shall not be responsible for any
claims for consequential damages or lost profits of Tenant.  Tenant hereby acknowledges receipt of the
Phase 1 Report.


 


5.7                                 Insurance. Landlord shall maintain in full force
throughout the Term, a policy of insurance upon the Building insuring against
all risks of physical loss or damage under a “special” coverage form in an
amount at least equal to the full replacement value of the Building, with an
Agreed Amount endorsement, as well as insurance against breakdown of boilers
and other machinery as customarily insured against.


 


5.8                                 Representations.Landlord represents and warrants to
Tenant as of the date hereof that (a) Landlord holds fee simple title to
the Property, subject to no mortgage other than a mortgage to Bank of America
and related participants; (b) Landlord has full power and authority to
enter into this Lease; (c) no other party has any possessory right to the
Premises or has claimed the same; and (d) Landlord has not received notice
within the 12-month period preceding the Date of this Lease of any
noncompliance with any land use laws or environmental laws relating to the
Building that would adversely affect Tenant’s ability to use the Premises
specifically excluding any notifications relating to any pre-existing condition
described in the Phase 1 Report.


 


5.9                                 Indemnification Landlord shall save harmless, exonerate
and indemnify Tenant, its agents and employees (such agents and employees being
referred to collectively as the “Tenant Related Parties”) from and against any
and all claims, liabilities or penalties asserted by or on behalf of any
person, firm, corporation or public authority on account of injury, death,
damage or loss to person or property occurring outside the Building (excluding
the Connector Bridge) or on the Campus Common Areas arising out of the
negligence, fault or misconduct of Landlord or Landlord’s failure to perform
and observe the obligations expressly assumed under the provisions of this
Lease, except if the same was caused by the negligence, fault or misconduct of
Tenant or the Tenant Related Parties.  In
respect of all of the foregoing, Landlord shall indemnify Tenant and the Tenant
Related Parties from and against all costs, expenses (including reasonable
attorneys’ fees), and liabilities incurred in or in connection with any such
claim, action or proceeding brought thereon; and, in case of any action or
proceeding brought against Tenant or the Tenant Related Parties by reason of
any such claim, Landlord, upon notice from Tenant and at Landlord’s expense,
shall resist or defend such action or proceeding and employ counsel therefor
reasonably satisfactory to Tenant provided that Tenant shall be deemed to have
approved counsel provided by Landlord’s liability insurer.


 


ARTICLE
6 

Tenant’s Additional Covenants


 


6.1                                 Affirmative Covenants. 
Tenant covenants at all times during the term and for such further time
(prior or subsequent thereto) as Tenant occupies the Premises or any part
thereof:


 


6.1.1                        Perform Obligations. 
To perform promptly all of the obligations of Tenant set forth in this
Lease; and to pay when due the Fixed Rent and Additional Rent and all charges,
rates and other sums which by the terms of this Lease are to be paid by Tenant.


 


6.1.2                        Use. 
To use the Premises only for the Permitted Uses, and from time to time
to procure all licenses and permits necessary therefor, at Tenant’s sole
expense.  With respect to any licenses or
permits for which Tenant may apply, pursuant to this subsection 6.1.2 or any
other provision hereof, Tenant shall furnish Landlord copies of applications
therefor on or before their submission to the governmental authority.


 


6.1.2.1            Prohibited
Occupants. Tenant
acknowledges and agrees that the Premises, and any other premises in the Park
subsequently leased to Tenant, may not be leased to, or used or occupied by any
of the following entities (the “Prohibited Occupants”):


 


	
  Cisco

  	
  Dell

  	
  Yahoo

  
	
  EMC

  	
  Google

  	
   

  
	
  Hewlett-Packard

  	
  IBM

  	
   

  
	
  Microsoft

  	
  Network Appliance

  	
   

  
	
  Red Hat

  	
  VMWare

  	
   

  



 


It is understood
that Landlord has imposed the foregoing prohibition for the benefit of Sun, and
Tenant acknowledges that Sun is a third party beneficiary of the foregoing
restriction and use prohibition.  If
Tenant allows of the Premises to be used or occupied by any of the Prohibited
Occupants in violation of this provision, Landlord may take any and all action
necessary to cause such use or occupancy to cease.  During the Term of this Lease, if Sun seeks
to reduce the premises under the Sun Lease, Landlord agrees to use reasonable
efforts to obtain an agreement by Sun to eliminate the foregoing described use
restriction.


 


22
















 


6.1.3                        Repair
and Maintenance.   To maintain
the Premises in neat order and condition and to perform all routine and
ordinary repairs to the Premises and to any plumbing, heating, electrical,
ventilating and air-conditioning systems or other specialty systems located
within or outside of the Premises and installed by Tenant such as are necessary
to keep them in good working order, appearance and condition, as the case may
require, reasonable use and wear thereof and damage by fire or by unavoidable
casualty only excepted; to keep all glass in windows and doors of the Premises
(except glass in the exterior walls of the Building) whole and in good
condition with glass of the same quality as that injured or broken; and to make
as and when needed as a result of misuse by, or neglect or improper conduct of
Tenant or Tenant’s servants, employees, agents, invitees or licensees or
otherwise, all repairs necessary, which repairs and replacements shall be in
quality and class equal to the original work. 
(Landlord, upon default of Tenant beyond the expiration of the
applicable notice and cure periods hereunder [except in emergencies where
immediate action may be taken], may elect, at the expense of Tenant, and upon
three (3) business days’ prior written notice or fewer if reasonable under
the circumstances, to perform all such cleaning and maintenance and to make any
such repairs or to repair any damage or injury to the Building or the Premises
caused by moving property of Tenant in or out of the Building, or by installation
or removal of furniture or other property, or by misuse by, or neglect, or
improper conduct of, Tenant or Tenant’s servants, employees, agents,
contractors, customers, patrons, invitees, or licensees.)


 


6.1.4                        Compliance
with Law.  To make all repairs,
alterations, additions or replacements to the Premises required by any law or
ordinance or any order or regulation of any public authority; to keep the
Premises equipped with all safety appliances so required; and to comply with
the orders and regulations of all governmental authorities with respect to
zoning, building, fire, health and other codes, regulations, ordinances or laws
applicable to the Premises, except that Tenant may defer compliance so long as
the validity of any such law, ordinance, order or regulations shall be
contested by Tenant in good faith and by appropriate legal proceedings, if
Tenant first gives Landlord appropriate assurance or security against any loss,
cost or expense on account thereof.  Notwithstanding
the foregoing, however, Tenant shall not be responsible for compliance with any
such laws, regulations, or the like requiring (a) structural repairs or
modifications; or (b) repairs or modifications to the utility or building
service equipment; or (c) installation of new building service equipment,
such as fire detection or suppression equipment, unless such repairs,
modifications, or installations shall be due to Tenant’s particular manner of
use of the Premises (as opposed to office use generally) or required on account
of any work done by or on behalf of Tenant.


 


6.1.5                        Indemnification.   To save harmless, exonerate and indemnify
Landlord, its agents (including, without limitation, Landlord’s managing agent)
and employees (such agents and employees being referred to collectively as the “Landlord
Related Parties”) from and against any and all claims, liabilities or penalties
asserted by or on behalf of any person, firm, corporation or public authority
on account of injury, death, damage or loss to person or property in or upon
the Premises, including the Connector Bridge, and the Property or on the Campus
Common Areas arising out of the use or occupancy of the Premises by Tenant or
by any person claiming by, through or under Tenant (including, without
limitation, all patrons, employees and customers of Tenant), or arising out of
any delivery to or service supplied to the Premises, or on account of or based
upon anything whatsoever done on the Premises, except if the same was caused by
the willful negligence, fault or misconduct of Landlord or the Landlord Related
Parties.  In respect of all of the
foregoing, Tenant shall indemnify Landlord and the Landlord Related Parties
from and against all costs, expenses (including reasonable attorneys’ fees),
and liabilities incurred in or in connection with any such claim, action or
proceeding brought thereon; and, in case of any action or proceeding brought
against Landlord or the Landlord Related Parties by reason of any such claim,
Tenant, upon notice from Landlord and at Tenant’s expense, shall resist or
defend such action or proceeding and employ counsel therefor reasonably
satisfactory to Landlord.  The preceding
indemnification shall expressly survive the expiration or earlier termination
of this Lease.


 


6.1.6                        Landlord’s
Right to Enter.   To permit
Landlord and its agents to enter into and examine the Premises at reasonable
times, and upon reasonable prior notice when practical, and to show the
Premises, and to make repairs to the Premises, and, during the last six (6) months
prior to the expiration of this Lease, to keep affixed in suitable places
notices of availability of the Premises. Landlord’s entry shall be subject to
Tenant’s reasonable security rules, including the requirement that Landlord be
accompanied by a Tenant representative (except in emergency circumstances).


 


6.1.7                        Personal
Property at Tenant’s Risk.   All
of the furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Tenant and of all persons claiming by, through or
under Tenant which, during the continuance of this Lease or any occupancy of
the Premises by Tenant or anyone claiming under Tenant, may be on the Premises,
shall be at the sole risk and hazard of Tenant and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other pipes, by theft or
from any other cause, no part of said loss or damage is to be charged to or to
be borne by Landlord, except that Landlord shall in no event be indemnified or
held harmless or exonerated from any liability to Tenant or to any other
person, for any injury, loss, damage or liability to the extent prohibited by
law.


 


6.1.8                        Payment
of Landlord’s Cost of Enforcement. 
To pay on demand Landlord’s expenses, including 


 


23

















 


reasonable
attorneys’ fees, incurred in enforcing any obligation of Tenant under this
Lease or in curing any default by Tenant under this Lease as provided in Section 8.4.


 


6.1.9                        Yield Up.   At the expiration of the Term or earlier
termination of this Lease:  to surrender
all keys to the Premises; to remove all of its trade fixtures and personal
property in the Premises; to deliver to Landlord stamped architectural plans
showing the Premises at yield up (which may be the Final Plans  if Tenant has made no installations after the
Commencement Date); to remove all wiring and cabling; to remove all rooftop
equipment, and such installations and alterations made by it, including the
TIW, as Landlord had designated for removal at the time of Landlord’s approval
of such installations or alterations, as set forth below and all Tenant’s signs
wherever located; to repair all damage caused by such removal and restore any
damaged areas to normal office finishes standard for the Building; and to yield
up the Premises (including all installations and improvements made by Tenant
(which shall be intact and in good working order, reasonable wear and tear and
casualty damage excepted) except for Tenant’s trade fixtures and such of said
installations or improvements as Landlord shall have requested Tenant to remove
at the time of plan approval as set forth below.  Landlord reserves the right to require
removal of any alterations for which plans were not required pursuant to the
provisions of Section 6.2.5 of this Lease, if Tenant had failed to so
request Landlord’s designation for removal as set forth in Section 6.2.5.  Tenant shall surrender the Premises
broom-clean and in the condition the same were in on the Commencement Date,
reasonable wear and tear and casualty damage excepted. Tenant, at the time of
requesting Landlord’s approval of any installations or alterations in the
Premises, including the TIW and any Tenant’s Work Change Orders (whether or not
plans are required for the installation) shall request in writing that Landlord
designate which such installations or alterations must be removed at the
expiration or earlier termination of this Lease.  After receipt of Tenant’s request, Landlord
shall notify Tenant in writing which such installations or alterations must be
removed from the Premises at the expiration or earlier termination of this
Lease.  If Landlord does not indicate
that a particular installation must be removed, then Landlord shall not later
have the right to request its removal. 
Likewise, if Tenant, when making any installations or alterations, fails
to so request in writing whether Landlord will require removal of such
installation or alteration, then Landlord reserves the right to require Tenant
to remove the installation or alteration at the end of the Term.  With respect to the TIW, Tenant need not make
a formal written request; however, Landlord shall, as part of its approval of
the Schematic Design Plans provide a preliminary summary of which items, if
any, it requires be removed.  Landlord
will provide Tenant with a progress summary of items designated for removal as
soon as practical following receipt of the Design Development
Permitting/Pricing Plans, taking into consideration that the resulting Final
Plans may necessitate amendment of Landlord’s summary of items that require end
of term removal.  In any event, Landlord
agrees to be reasonable in determining whether any installation or alteration
must be removed and agrees to limit its removal requirements to those
installations or alterations that Landlord deems specialized for Tenant’s use
and not typical for normal office tenant use (such as specialty process
electrical systems, chillers, generators, and nitrogen tanks, by way of example,
but not finishes and architectural elements included in the TIW).  Any property required to be removed that is
not so removed shall be deemed abandoned and, if Landlord so elects, deemed to
be Landlord’s property, and may be retained or removed and disposed of by
Landlord in such manner as Landlord shall determine and Tenant shall pay
Landlord the entire cost and expense incurred by it in effecting such removal
and disposition and in making any incidental repairs and replacements to the
Premises.  Tenant shall further indemnify
Landlord against all loss, cost and damage resulting from Tenant’s failure and
delay in surrendering the Premises as above provided; however, notwithstanding
the foregoing, Tenant shall not be liable for any consequential damages if
Tenant occupies the Premises for fewer than thirty (30) days beyond the
expiration or earlier termination of this Lease.  Except as specifically provided for in this Section 6.1.9,
Tenant shall not be liable for any consequential damages for breach of any
provision of this Lease.


 


If the Tenant remains in the Premises beyond the
expiration or earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy, but the Tenant
shall be a tenant at sufferance only at a daily rate equal to one and one-half
(1.5) times the Rent in effect under this Lease as of the day prior to the date
of expiration of this Lease, for the first thirty (30) days of such holding
over, and thereafter at a daily rate of two (2) times the Rent in effect
as of the day prior to the date of expiration of this Lease.


 


6.1.10                  Rules and
Regulations.  To comply with the Rules and
Regulations set forth in Exhibit E, and with all reasonable Rules and
Regulations of general applicability to all tenants of the Park hereafter made
by Landlord, and of which Tenant has been given notice, concerning, among other
things, the use of the cafeteria and fitness center and conference center.
Landlord shall not be liable to Tenant for the failure of other tenants to
conform to such Rules and Regulations, of which Tenant has been given
notice. Landlord shall use reasonable efforts to enforce the Rules and
Regulations and shall apply the same in a non-discriminatory manner.


 


6.1.11                  Estoppel
Certificate.   Upon not less than
ten (10) days’ prior written request by Landlord, to execute, acknowledge
and deliver to Landlord a statement in writing, which may be in the form
attached hereto as Exhibit F or in another form reasonably similar
thereto, or such other commercially reasonable form as Landlord may provide
from time to time, certifying all or any of the following to the extent
true:  (i) that this Lease is
unmodified and in full force and effect, (ii) whether the term has
commenced and Fixed Rent and Additional Rent have become payable 


 


24

















 


hereunder and, if
so, the dates to which they have been paid, (iii) whether or not Landlord
is in default in performance of any of the terms of this Lease, (iv) whether
Tenant has accepted possession of the Premises, (v) whether Tenant has
made any claim against Landlord under this Lease and, if so, the nature thereof
and the dollar amount, if any, of such claim, (vi) whether there exist any
offsets or defenses against enforcement of any of the terms of this Lease upon
the part of Tenant to be performed, and (vii) such further information
with respect to the Lease or the Premises as Landlord may reasonably
request.  Any such statement delivered
pursuant to this subsection 6.1.11 may be relied upon by any prospective
purchaser or mortgagee of the Premises, or any prospective assignee of such
mortgage.  Tenant shall also deliver to
Landlord such financial information as may be reasonably required by Landlord
to be provided to any mortgagee or prospective purchaser of the Premises.  The requirement of the immediately preceding
sentence shall not apply as long as Tenant is a publicly traded company.


 


6.1.12                  Landlord’s
Expenses Re Consents.  To
reimburse Landlord promptly on demand for all reasonable legal expenses
incurred by Landlord in connection with all requests by Tenant for consent or
approval hereunder.


 


6.1.13                  Representation
Tenant represents and warrants to Landlord that the person signing below has
full power and authority to bind Tenant and that Tenant has the authority to
enter into this Lease and has obtained all consents and approvals and taken all
actions necessary in connection therewith.


 


6.2                                 Negative
Covenants.   Tenant covenants at
all times during the term and such further time (prior or subsequent thereto)
as Tenant occupies the Premises or any part thereof:


 


6.2.1                        Assignment
and Subletting.  Except in
connection with a Permitted Transfer, not to assign, transfer, mortgage or
pledge this Lease or to sublease (which term shall be deemed to include the
granting of concessions and licenses and the like) all or any part of the
Premises or suffer or permit this Lease or the leasehold estate hereby created
or any other rights arising under this Lease to be assigned, transferred or
encumbered, in whole or in part, whether voluntarily, involuntarily or by
operation of law, or permit the occupancy of the Premises by anyone other than
Tenant without the prior written consent of Landlord.  In the event Tenant desires to assign this
Lease or sublet any portion or all of the Premises (whether to a Successor or
Affiliate or to a third party), Tenant shall notify Landlord in writing of
Tenant’s intent to so assign this Lease or sublet the Premises and the proposed
effective date of such subletting or assignment, and in the case of a transfer
to a third party, shall request in such notification that Landlord consent
thereto.  Except in connection with a
Permitted Transfer, Landlord may terminate this Lease in the case of a proposed
assignment or any proposed sublet of all or any portion of the Premises for the
remainder of the Term; and, in the case of any proposed subletting that results
in more than 30% of Tenant’s space in the Premises and in the Building 75
Premises, in the aggregate, being sublet space, whether via one sublease or
multiple subleases, (but in no event resulting in more than fifty (50%) of the
Premises being sublet) Landlord may recapture that space proposed for
subletting and terminate this Lease in part with respect to the entire sublet
space or the newly proposed sublet space, as applicable. If Landlord exercises
its recapture right, it shall do so by giving written notice of termination to
Tenant within ten (10) days after Tenant’s request for consent and Landlord’s
receipt of all relevant information reasonably required by Landlord, with such
termination to be effective as of the effective date of such assignment or
subletting.  Landlord agrees to respond
to Tenant’s request for consent within ten (10) days following Landlord’s
receipt of all information reasonably requested by Landlord to evaluate Tenant’s
request.  If Landlord fails to respond by
the expiration of such 10-day period, Tenant shall send Landlord a second
notice captioned, “SECOND REQUEST FOR CONSENT,” and Landlord’s failure to
respond within five (5) business days after receiving Tenant’s second
request shall be deemed a waiver of its recapture right.  If Landlord does not so terminate or is
deemed to have waived its right to terminate, Landlord’s consent shall not be
unreasonably withheld to an assignment or to a subletting, provided that the
following conditions are met:


 


(i)                                     the assignee or
subtenant shall use the Premises only for the Permitted Uses;


 


(ii)                                  the proposed assignee
or subtenant has a net worth and, in the case of an assignee, creditworthiness,
reasonably sufficient to enable it to perform the obligations of Tenant under
this Lease, or the sublease, as applicable;


 


(iii)                               the amount of the
aggregate rent to be paid by the proposed subtenant is not less than eighty
(80%) percent of the then current market rate for the Premises; and


 


(iv)                              the proposed assignee or
subtenant is not then a tenant in the Building or the Park, or an entity with
which Landlord is dealing or has dealt within the preceding six months
regarding the possibility of leasing space in the Building or the Park and
Landlord actually has available reasonably comparable space in the Park;


 


(v)                                 the proposed assignee or subtenant is not a
Prohibited Occupant as defined under subsection 6.1.2.1.


 


25

















 


Tenant shall furnish Landlord with any information
reasonably requested by Landlord to enable Landlord to determine whether the
proposed assignment or subletting complies with the foregoing requirements,
including without limitation, financial statements relating to the proposed
assignee or subtenant.  Tenant’s rights
under Sections 2.3, and 6.2.5.1 are personal to the initial named Tenant and
may not be assigned except (a) in connection with an assignment of this
Lease to an Affiliate or Successor, and (b) in connection with an
assignment of this Lease and the Building 65 Lease together in their entirety
to a single assignee of both leases.


 


Tenant shall, as Additional Rent, reimburse Landlord
promptly for Landlord’s reasonable legal expenses incurred in connection with
any request by Tenant for such consent. 
If Landlord consents thereto, no such subletting or assignment shall in
any way impair the continuing primary liability of Tenant hereunder, and no
consent to any subletting or assignment in a particular instance shall be
deemed to be a waiver of the obligation to obtain the Landlord’s written
approval in the case of any other subletting or assignment.


 


If for any assignment or sublease consented to by
Landlord hereunder Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in excess of the rent
called for hereunder, or in case of sublease of part, in excess of such rent fairly
allocable to the part. Tenant shall pay to Landlord as additional rent fifty
(50%) percent of the excess of each such payment of rent or other consideration
received by Tenant promptly after its receipt. 
In calculating any excess rent payable by Tenant to Landlord pursuant to
this provision, Tenant shall first be entitled to deduct (a) the gross
Fixed Rent and Additional Rent paid to Landlord by Tenant with respect to the
subject portion of the Premises during the period commencing on the date Tenant
vacates the subject portion of the Premises until the date the assignee or
sublessee is obligated to pay rent pursuant to its assignment or sublease; (b) improvement
allowances or other economic concessions granted by Tenant to the assignee or
sublessee; (c) the unamortized costs of initial and subsequent
improvements to the sublet portion of the Premises paid for by Tenant and
amortized over the sublease term; (d) costs incurred by Tenant to buy out
or take over the previous lease of the assignee or sublessee; (e) all
costs incurred by Tenant to advertise the subject portion of the Premises for
assignment or sublease; (f) brokerage commissions and legal fees paid by
Tenant in connection with the assignment or sublease, and (g) all other
costs reasonably incurred by Tenant.


 


Except as otherwise expressly provided, the preceding
provisions of this Section 6.2.1 shall not apply to a sublet of all or any
portion of the Premises or an assignment of this Lease to either (i) an
entity which is controlled by, is under common control with, or which controls
Tenant (any of the foregoing, an “Affiliate”) or (ii) an entity into or
with which Tenant is merged or consolidated or which acquires all or
substantially all of Tenant’s stock or assets (any of the foregoing, a “Successor”),
provided that in the case of an assignment of this Lease to an Affiliate or
Successor (1) such Affiliate or Successor, as the case may be, agrees
directly with Landlord, by written instrument in form reasonably satisfactory
to Landlord, to assume and perform all the obligations of Tenant; (2) Tenant
continues to remain primarily liable under this Lease; and (3) Tenant
notifies Landlord of the merger, consolidation, or purchase of assets, stock or
membership interests at least ten (10) days prior to the effective date of
such transfer (except where the transaction must for legal and reasonable
business purposes remain confidential, in which event such proof of net worth
shall be delivered promptly after consummation of the transaction).  The transaction for which consent from the
Landlord is not required pursuant to this paragraph shall be referred to as a “Permitted
Transfer.”


 


If at any time during the term of this Lease, there is
a name change, reformation or reorganization of the Tenant entity, Tenant shall
so notify Landlord and deliver evidence reasonably satisfactory to Landlord
documenting such name change, reformation or reorganization.  If, at any time during the term of this
Lease, there is a transfer of a controlling interest in the stock, membership
or general partnership interests of Tenant, Tenant shall so notify Landlord and
(whether or not Tenant so notifies Landlord) such a transfer will be deemed an
assignment subject to the provisions of this Section 6.2.1. The provisions
of the preceding sentence shall not be applicable as long as Tenant is a
publicly traded company.


 


6.2.2                        Nuisance.  Not to injure, deface or otherwise harm the
Premises; nor commit any nuisance; nor permit in the Premises any vending
machine (except such as is used for the sale of merchandise to employees of
Tenant) or inflammable fluids or chemicals (except such as are customarily used
in connection with standard office equipment); nor permit any cooking to such
extent as requires special exhaust venting; nor permit the emission of any
objectionable noise or odor; nor make, allow or suffer any waste; nor make any
use of the Premises which is improper, offensive or contrary to any law or
ordinance or which will invalidate any of Landlord’s insurance; nor conduct any
auction, fire, “going out of business” or bankruptcy sales.


 


6.2.3                        Hazardous
Wastes and Materials.  Except for
customary office and cleaning supplies (which shall be handled in compliance
with all applicable laws), not to dispose of any hazardous wastes, hazardous
materials or oil on the Premises or the Property, or into any of the plumbing,
sewage, or drainage systems thereon, and to indemnify and save Landlord
harmless from all claims, liability, loss or damage arising on account of the
use or disposal of hazardous wastes, hazardous materials or oil, including,
without limitation, liability under any federal, state, or local laws,
requirements and regulations, or damage to any of the aforesaid systems.  Tenant shall comply with all 


 


26

















 


governmental
reporting requirements with respect to hazardous wastes, hazardous materials
and oil, and shall deliver to Landlord copies of all reports filed with
governmental authorities. The preceding indemnification shall expressly survive
the expiration or earlier termination of this Lease.


 


6.2.4                        Floor
Load; Heavy Equipment.  Not to
place a load upon any floor of the Premises exceeding the floor load per square
foot area which such floor was designed to carry and which is allowed by
law.  Landlord reserves the right to
prescribe the weight and position of all heavy business machines and equipment,
including safes, which shall be placed so as to distribute the weight.  Business machines and mechanical equipment
which cause vibration or noise shall be placed and maintained by Tenant at
Tenant’s expense in settings sufficient to absorb and prevent vibration, noise
and annoyance.  Tenant shall not move any
safe, heavy machinery, heavy equipment, freight or fixtures into or out of the
Premises except in such manner and at such time as Landlord shall in each
instance authorize.


 


6.2.5                        Installation,
Alterations or Additions. A. Not to make any installations, alterations
or additions in, to or on the Premises nor to permit the making of any holes in
the walls, partitions or ceilings (except for holes for normal office wall
hangings such a pictures and the like) or floors, nor the installation or
modification of any locks or security devices without on each occasion
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed with respect to interior,
nonstructural alterations or installations that do not adversely affect the
structural integrity of the Building, impact the Building systems, or involve
penetration of the roof or exterior walls, and then only pursuant to plans and
specifications approved by Landlord (acting reasonably) in advance in each
instance.  Landlord agrees to respond to
Tenant’s request for consent and approval within ten (10) days following
Landlord’s receipt of all information reasonably requested by Landlord to
evaluate Tenant’s request.  If Landlord
fails to respond by the expiration of such 10-day period, Tenant shall send
Landlord a second notice captioned, “SECOND REQUEST FOR CONSENT,” and Landlord’s
failure to respond within five (5) business days after receiving Tenant’s
second request shall be deemed approval. Notwithstanding the foregoing, Tenant,
without the prior consent of Landlord, may make nonstructural, interior
alterations or installations at a cost not to exceed $1.00 per rentable square
foot of the Premises per alteration/installation project (and then only up to
$3.00 per rentable square foot of the Premises in any 12-month period), only if
such alterations or installations do not adversely affect the structural
integrity of the Building, impact the Building systems, involve penetration of
the roof or exterior walls. In addition, Tenant may, without Landlord’s prior
consent, paint and carpet interior areas of the Premises that are not visible
from outside the Premises.  In any
instance where Tenant is permitted to make an installation or alteration
without Landlord’s prior consent, then Tenant shall, at the time of making such
installation or alteration, request in writing if such installation or
alteration must be removed at the expiration or earlier termination of this
Lease.  If Landlord so designates such
installation or alteration for removal, then Tenant shall remove the same in
accordance with the provisions of Section 6.1.9 above.  If Tenant fails to make such request, then
Landlord shall have the option to require Tenant to remove such installation or
alteration at the end of the Term.


 


B.  Tenant
agrees to employ for any work one or more responsible contractors of whom
Landlord has given prior approval, and whose labor will work without
interference with other labor working on the Property, and to cause such
contractors employed by Tenant to carry worker’s compensation insurance in
accordance with statutory requirements and comprehensive public liability
insurance covering such contractors on or about the Premises in amounts at
least equal to the limits set forth in Section 1.1 and to submit
certificates evidencing such coverage to Landlord prior to the commencement of
such work.  Tenant shall pay promptly
when due the entire cost of any work to the Premises undertaken by Tenant so
that the Premises shall at all times be free of liens for labor and materials,
and at Landlord’s request (which shall be made reasonably in light of the scope
and cost of the proposed work, among other factors) Tenant shall furnish to
Landlord a bond or other security acceptable to Landlord assuring that any work
commenced by Tenant will be completed in accordance with the plans and
specifications theretofore approved by Landlord and assuring that the Premises
will remain free of any mechanics’ lien or other encumbrance arising out of
such work.  In any event, Tenant shall,
within ten days after the institution of such liens or encumbrances, bond
against or discharge any mechanics’ liens or other encumbrances that may arise
out of such work.  Tenant shall procure
all necessary licenses and permits at Tenant’s sole expense before undertaking
such work.  All such work shall be done
in a good and workmanlike manner employing materials of good quality and so as
to conform with all applicable zoning, building, fire, health and other codes,
regulations, ordinances and laws.  Tenant
shall save Landlord harmless and indemnified from all injury, loss, claims or
damage to any person or property occasioned by or growing out of such work.


 


6.2.5.1               Rooftop Equipment.  Without waiver of any of the requirements of Section 6.2.5,
Tenant shall have the right, at its sole cost and expense, to install,
maintain, and use one or more satellite dishes or antennae on the roof of the
Building, subject in all cases to Landlord’s approval regarding number, size,
location and the manner of installation, including conformance with Landlord’s
reasonable design criteria and any other reasonable requirements (including
visual shielding such that it cannot be seen from street level) and provided
that such installation does not void any roof bonds or affect the integrity of
the roof.  The installation, operation,
maintenance and removal of any rooftop equipment 


 


27

















 


shall be Tenant’s
responsibility, at its sole cost and expense and shall be performed in
accordance with the terms of the Lease (including but not limited to Section 6.2.5)
and all applicable laws and requirements of applicable governmental
authorities.  Landlord shall not charge
Tenant for the right to use the roof to install the rooftop equipment.  Tenant shall indemnify, defend and hold
Landlord harmless from and against any liability, claims, damage or loss
arising from the installation, maintenance, repair replacement and operation of
any rooftop equipment, unless caused by Landlord, its agents, employees or
contractors.  Tenant shall have the right
to use its pro rata share of available shaft space, if any, in the Building as
reasonably necessary to connect the Premises to the rooftop equipment.  Tenant shall have access to the roof upon
reasonable notice to Landlord  for the
purpose of installing, operating, maintaining, repairing, or removing the
rooftop equipment.   Upon the expiration
or earlier termination of this Lease, Tenant shall remove all rooftop equipment
from the roof and repair any damage to the roof caused thereby.  The right to install the rooftop equipment is
personal to the initial named Tenant and may not be used by, or assigned or
otherwise transferred to, any other party, except as otherwise provided in Section 6.2.1.


 


6.2.6                        Abandonment.  Not to abandon the Premises during the term,
it being understood and agreed that vacancy of the Premises shall not be
construed as abandonment so long as all of Tenant’s other obligations under
this Lease continue to be timely performed and reasonable measures are taken by
Tenant to manage the vacant space.


 


6.2.7                        Signs.  Not without Landlord’s prior written approval
to paint or place any signs or place any curtains, blinds, shades, awnings,
aerials, or the like, visible from outside the Premises.  Notwithstanding the foregoing, Landlord, at
its sole cost and expense, shall provide Tenant with building standard
identification on the digital directory in the lobby of the Building and on the
monument signs located outside the main entrance of the Building and on Network
Drive, as allowed by the Town of Burlington. 
In addition, Tenant shall have the exclusive right to install an
identification sign on the exterior Building facade, the
size and location of which must first be approved by Landlord (which approval
shall not be unreasonably withheld) and be in compliance with the Network Drive
Sign Policy (the receipt of which Tenant hereby acknowledges).  All signage is subject to and must comply
with applicable building codes and zoning ordinances of the Town of
Burlington.  Tenant shall be solely
responsible for all costs of installing, maintaining and removing its exterior
sign.


 


6.2.8                        Parking
and Storage.  Not to permit any
storage of materials outside of the Premises; nor to permit the use of the
parking areas for either temporary or permanent storage of trucks; nor permit
the use of the Premises for any use for which heavy trucking would be
customary.


 


ARTICLE 7 


Casualty or Taking


 


7.1                                 Termination.
 In the event that the Premises
or the Building, or any material part thereof, (a) shall  be taken by any public authority or for any
public use, or (b) shall be Substantially Damaged (as hereinafter defined)
by fire or casualty, or by the action of any public authority, or (c) the
net proceeds of insurance recovered or damages awarded is insufficient to pay
for the cost of restoration work, then this Lease may be terminated at the
election of Landlord.  The term “Substantially
Damaged” as used herein shall mean damage so extensive that thirty-five (35%)
percent or more of the Rentable Floor Area of the Building is destroyed.  Such election, which may be made
notwithstanding the fact that Landlord’s entire interest may have been
divested, shall be made by the giving of notice by Landlord to Tenant within
sixty (60) days after the date of the taking or casualty.  In the event that the Premises are destroyed
or damaged by fire or casualty, or if there is a taking of a material part of
the Premises or Building, and in either case, in the reasonable opinion of an
independent architect or engineer selected by Landlord, cannot be repaired or
restored within three hundred and sixty five (365) days from the date of such
event, then this Lease may be terminated at the election of Landlord or Tenant,
which election shall be made by the giving of notice to the other party within
thirty (30) days after the date the opinion of the architect or engineer is
made available to the parties.  If any
taking affecting the parking area serving the Building reduces the number of parking
spaces afforded Tenant pursuant to Section 2.1, by more than twenty-five
(25%) percent, and if Landlord does not provide Tenant with permanent
substitute parking elsewhere in the Park within ninety (90) days of the taking,
then this Lease may be terminated at the election of Tenant by written notice
to Landlord within twenty (20) days after at the expiration of such 90-day
period.  In addition, with respect to a
taking or casualty occurring during the last twelve (12) months of the Term (if
Tenant has declined to exercise any remaining Extension Option) which causes
the Premises or the Building, or any material part thereof, to be damaged to
the extent that 30% or more of the Rentable Floor Area of the Premises or the
Building is destroyed, then either Landlord or Tenant may elect to terminate
this Lease, which election shall be made within twenty (20) days after the
taking or casualty and effective as of the date that is 45 days after the date
of a party’s written notice of its election.


 


7.2                                 Restoration.  If neither Landlord nor Tenant elects to so
terminate, this Lease shall continue in force and a just proportion of the rent
reserved, according to the nature and extent of the damages sustained by the
Premises, shall be suspended or abated until the Premises, or what may remain
thereof, shall be put by Landlord in proper condition for use (which shall at
least be the same as immediately prior to the taking or casualty), which
Landlord covenants to do with reasonable diligence to the extent permitted by
the net proceeds of insurance recovered, or recoverable if Landlord carried the
coverage required to be carried 


 


28

















 


hereunder, or damages
awarded for such taking, destruction or damage and subject to zoning and
building laws or ordinances then in existence. 
“Net proceeds of insurance recovered or damages awarded” refers to the
gross amount of such insurance or damages less the reasonable expenses of
Landlord incurred in connection with the collection of the same, including
without limitation, fees and expenses for legal and appraisal services.


 


7.3                                 Award.  Irrespective of the form in which recovery
may be had by law, all rights to damages or compensation shall belong to
Landlord in all cases, except for awards made for Tenant’s moving expenses and
equipment and trade fixtures.  Except for
such awards, Tenant hereby grants to Landlord all of Tenant’s rights to such
damages and covenants to deliver such further assignments thereof as Landlord
may from time to time request.


 


ARTICLE 8 


Defaults


 


8.1                                 Events
of Default.  (a)  If Tenant
shall default in the performance of any of its obligations to pay the Fixed
Rent, Additional Rent or any other sum due Landlord hereunder and if such
default shall continue for ten (10) days after written notice from Landlord
designating such default or if within thirty (30) days after written notice
from Landlord to Tenant specifying any other default or defaults Tenant has not
commenced diligently to correct the default or defaults so specified or has not
thereafter diligently pursued such correction to completion, or (b)  if
any assignment shall be made by Tenant or any guarantor of Tenant for the
benefit of creditors, or (c)  if Tenant’s leasehold interest shall be
taken on execution, or (d)  if a lien or other involuntary encumbrance is
filed against Tenant’s leasehold interest or Tenant’s other property, including
said leasehold interest, and is not discharged within  fifteen (15) days thereafter, or (e)  if
a petition is filed by Tenant or any guarantor of Tenant for liquidation, or
for reorganization or an arrangement under any provision of any bankruptcy law
or code as then in force and effect, or (f)  if an involuntary petition
under any of the provisions of any bankruptcy law or code is filed against
Tenant or any guarantor of Tenant and such involuntary petition is not
dismissed within  ninety (90) days
thereafter, then, and in any of such cases, Landlord and the agents and
servants of Landlord lawfully may, in addition to and not in derogation of any
remedies for any preceding breach of covenant, immediately or at any time
thereafter without demand or notice and with or without process of law
(forcibly, if necessary) 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,
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
(forcibly,  if necessary) 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 covenants,
and upon such entry or mailing as aforesaid this Lease shall terminate, Tenant
hereby waiving all statutory rights to the Premises (including without
limitation 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.


 


8.2                                 Remedies.
 In the event that this Lease is
terminated under any of the provisions contained in Section 8.1 or shall
be otherwise terminated for breach of any obligation of Tenant, Tenant
covenants to pay punctually to Landlord all the sums and to perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had
not been terminated.  In calculating the
amounts to be paid by Tenant pursuant to the next preceding sentence Tenant
shall be credited with any amount paid to Landlord as compensation as in this Section 8.2
provided and also with the net proceeds of any rent obtained by Landlord by
reletting the Premises, after deducting all Landlord’s expense in connection
with such reletting, including, without limitation, all repossession costs,
brokerage commissions, fees for legal services and expenses of preparing the
Premises for such reletting, it being agreed by Tenant that Landlord may (i) 
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 sole judgment considers advisable
or necessary to relet the same and (ii)  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 or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant’s liability
as aforesaid.


 


In lieu of full recovery by Landlord of the sums
payable under the foregoing provisions of this Section 8.2 (except for the
amount of any rent of any kind accrued and unpaid at the time of termination)
Landlord may by written notice to Tenant, elect to recover, and Tenant shall
thereupon pay forthwith to Landlord, as compensation, the discounted present
value (calculated using a discount factor equal to the then “Prime Rate” as is
used by the Bank of America or its successor) of the excess of the total rent
reserved for the residue of the term over the rental value of the Premises for
said residue of the term.  In calculating
the rent reserved there shall be included, in addition to the Fixed Rent and
Additional Rent, the value of all other considerations agreed to be paid or
performed by Tenant for said residue.


 


Nothing contained in this Lease shall, however, limit
or prejudice the right of Landlord to prove for 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 than, equal to, or less than the
amount of the loss or damages referred to above.


 


29
















 


8.3                                 Remedies
Cumulative.  Any and all rights
and remedies which Landlord may have under this Lease, and at law and equity,
shall be cumulative and shall not be deemed inconsistent with each other, and
any two or more of all such rights and remedies may be exercised at the same
time insofar as permitted by law.


 


8.4                                 Landlord’s
Right to Cure Defaults.  Landlord
may, but shall not be obligated to, cure, at any time, without notice, any
default by Tenant under this Lease; and whenever Landlord so elects, all costs
and expenses incurred by Landlord, including reasonable attorneys’ fees, in
curing a default shall be paid, as Additional Rent, by Tenant to Landlord on
demand, together with lawful interest thereon from the date of payment by
Landlord to the date of payment by Tenant.


 


8.5                                 Effect
of Waivers of Default.  Any
consent or permission by Landlord to any act or omission which otherwise would
be a breach of any covenant or condition herein, shall not in any way be held
or construed (unless expressly so declared) to operate so as to impair the
continuing obligation of any covenant or condition herein, or otherwise, except
as to the specific instance, operate to permit similar acts or omissions.


 


8.6                                 No
Waiver, etc.  The failure of
Landlord to seek redress for violation of, or to insist upon the strict
performance of, any covenant or condition of this Lease shall not be deemed a
waiver of such violation nor prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation.  The receipt by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed to have been a waiver of such breach by Landlord.  No consent or waiver, express or implied, by
Landlord 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.


 


8.7                                 No
Accord and Satisfaction.  No
acceptance by Landlord of a lesser sum than the Fixed Rent, Additional Rent or
any other charge then due shall be deemed to be other than on account of the
earliest installment of such rent or charge due, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
or other charge be deemed an 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.


 


ARTICLE 9 


Rights of Mortgage Holders


 


9.1                                 Rights
of Mortgage Holders.  The word “mortgage”
as used herein includes mortgages, deeds of trust or other similar instruments
evidencing other voluntary liens or encumbrances, and modifications,
consolidations, extensions, renewals, replacements and substitutes
thereof.  The word “holder” shall mean a
mortgagee, and any subsequent holder or holders of a mortgage.  Until the holder of a mortgage shall enter
and take possession of the Property for the purpose of foreclosure, such holder
shall have only such rights of Landlord as are necessary to preserve the
integrity of this Lease as security. 
Upon entry and taking possession of the Property for the purpose of
foreclosure, such holder shall have all the rights of Landlord.  No such holder of a mortgage shall be liable
either as mortgagee or as assignee, 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 Property for the purpose of foreclosure.  Upon entry for the purpose of foreclosure,
such holder shall be liable to perform all of the obligations of Landlord,
subject to and with the benefit of the provisions of Section 10.4,
provided that a discontinuance of any foreclosure proceeding shall be deemed a
conveyance under said provisions to the owner of the equity of the Property.


 


The covenants and agreements contained in this Lease
with respect to the rights, powers and benefits of a holder of a mortgage
(particularly, without limitation thereby, the covenants and agreements
contained in this Section 9.1) constitute a continuing offer to any
person, corporation or other entity, which by accepting a mortgage subject to
this Lease, assumes the obligations herein set forth with respect to such
holder; such holder is hereby constituted a party of this Lease as an obligee
hereunder to the same extent as though its name were written hereon as such;
and such holder 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 be necessary to
implement the provisions of this Section 9.1.


 


9.2                                 Lease
Superior or Subordinate to Mortgages. 
A.  It is agreed that the rights
and interest of Tenant under this Lease shall be (i)  subject or
subordinate to any present or future mortgage or mortgages and to any and all
advances to be made thereunder, and to the interest of the holder thereof in
the Premises or any property of which the Premises are a part if Landlord shall
elect by notice to Tenant to subject or subordinate the rights and interest of
Tenant under this Lease to such mortgage or (ii)  prior to any present or
future mortgage or mortgages, if Landlord shall elect, by notice to Tenant, to
give the rights and interest of Tenant under this Lease priority to such
mortgage; in the event of either of such elections and upon notification by
Landlord to that effect, the rights and interest of Tenant under this Lease
should be deemed to be subordinate to, or have priority over, as the case may
be, said mortgage or mortgages, irrespective of the time of execution or time
of recording of any such mortgage or mortgages (provided that, in the case of
subordination of this Lease to any future mortgages, the holder thereof agrees
to recognize Tenant’s rights under this Lease and not to disturb the possession
of Tenant.  Tenant agrees it will, upon
not less than fifteen (15) days’ prior written request by Landlord, execute,
acknowledge and deliver any and all reasonably acceptable instruments deemed by
Landlord necessary or desirable to give effect to or notice of 


 


30

















 


such subordination or
priority.  Tenant agrees that any future
SNDA that is similar in all material respects to the form of SNDA attached
hereto as Exhibit L will be deemed “reasonably acceptable”. Any Mortgage
to which this Lease shall be subordinated may contain such terms, provisions
and conditions as the holder deems usual or customary.


 


B.            Landlord agrees to use diligent
efforts to cause its current mortgagee to deliver to Tenant a “subordination,
nondisturbance and attornment agreement” in the form attached to this Lease as Exhibit M
(the “SNDA”), no later than 5 business days after full execution of this
Lease.  It is agreed that it shall be an
express condition precedent to the validity of this Lease that Landlord’s
current mortgagee provides such an SNDA to Tenant, and if such SNDA is not
provided to Tenant by the aforesaid date, then Tenant shall have the right to
terminate this Lease by giving written notice of termination to Landlord no
later than 10 business days after the full execution of this Lease, effective
upon the giving of such notice.


 


ARTICLE 10 


Miscellaneous Provisions


 


10.1                           Notices
from One Party to the Other.  All
notices required or permitted hereunder shall be in writing and addressed, if
to the Tenant, at the Original Notice Address of Tenant or such other address
as Tenant shall have last designated by notice in writing to Landlord (with a
copy by similar means to Wilmer Cutler Pickering Hale and Dorr LLP, 60 State
Street, Boston, Massachusetts 02109, Attn: 
Paul Jakubowski)  and, if to
Landlord, at the Original Notice Address of Landlord or such other address as
Landlord shall have last designated by notice in writing to Tenant.  Any notice shall be deemed duly given upon
receipt or rejection when mailed to such address postage prepaid, by certified
mail, return receipt requested, or on the next business day when sent by nationally
recognized overnight courier, or when delivered to such address by hand.


 


10.2                           Quiet
Enjoyment.  Landlord agrees that
upon Tenant’s paying the rent and performing and observing the agreements,
conditions and other provisions on its part to be performed and observed,
Tenant shall and may peaceably and quietly have, hold and enjoy the Premises
during the term hereof without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord, subject, however, to the terms of
this Lease.


 


10.3                           Lease
not to be Recorded.  Each party
agrees that it will not record this Lease. 
Both parties shall, upon the request of either, execute and deliver a
notice or short form of this Lease in such form, if any, as may be permitted by
applicable statute.  Following
satisfaction of the contingencies set forth in Sections 2.2.1 and 9.2B, either
party may record a notice of lease in the form attached hereto as Exhibit G,
which notice of lease shall be executed at Lease signing but held until
satisfaction of such contingencies. 
Tenant agrees to execute, acknowledge and deliver a notice of
termination of lease in Tenant’s name upon its execution of this Lease which is
to be held in escrow by Landlord until the expiration or earlier termination of
this Lease.


 


10.4                           Limitation
of Landlord’s Liability.  The
term “Landlord” as used in this Lease, so far as covenants or obligations to be
performed by Landlord are concerned, shall be limited to mean and include only
the owner or owners at the time in question of the Property, and in the event
of any transfer or transfers of title to said property, the Landlord (and in
case of any subsequent transfers or conveyances, the then grantor) shall be
concurrently freed and relieved from and after the date of such transfer or
conveyance, without any further instrument or agreement of all liability as
respects the performance of any covenants or obligations on the part of the
Landlord contained in this Lease thereafter to be performed, it being intended
hereby that the covenants and obligations contained in this Lease on the part
of Landlord, shall, subject as aforesaid, be binding on the Landlord, its
successors and assigns, only during and in respect of their respective
successive periods of ownership of said leasehold interest or fee, as the case
may be.  Tenant, its successors and
assigns, shall not assert nor seek to enforce any claim for breach of this
Lease against any of Landlord’s assets other than Landlord’s interest in the
Property and in the rents, issues and proceeds thereof, and Tenant agrees to
look solely to such interest for the satisfaction of any liability or claim
against Landlord under this Lease, it being specifically agreed that in no
event whatsoever shall Landlord (which term shall include, without limitation,
any general or limited partner, trustees, beneficiaries, officers, directors,
or stockholders of Landlord) ever be personally liable for any such liability.


 


10.5                           Force
Majeure.  In any case where
either party hereto is required to do any act, delays caused by or resulting
from Acts of God, war, civil commotion, fire, flood or other casualty, labor
difficulties, shortages of labor, materials or equipment, government
regulations, unusually severe weather, or other causes beyond such party’s
reasonable control (any of the foregoing causes being referred to herein as “Force
Majeure”) shall not be counted in determining the time during which work shall
be completed, whether such time be designated by a fixed date, a fixed time or
a “reasonable time,” and such time shall be deemed to be extended by the period
of such delay. No event shall constitute “Force Majeure” unless the party
invoking the benefit of this Section 10.5 advises the other party of the
occurrence of the alleged Force Majeure event within 5 business days after such
party’s awareness of the occurrence of such event.


 


10.6                           Landlord’s
Default. A.  Landlord shall not
be deemed to be in default in the performance of any of its obligations
hereunder unless it shall fail to perform such obligations and such failure
shall continue for a period of thirty (30) days or such additional time as is
reasonably required to correct any such default after written notice has been
given by Tenant to Landlord (with copies of such notice delivered simultaneously
to all mortgagees of which Tenant has notice) specifying the nature of Landlord’s
alleged default.  


 


31

















 


Landlord shall not be
liable in any event for incidental or consequential damages to Tenant by reason
of Landlord’s default, whether or not notice is given.  Tenant shall have no right to terminate this
Lease for any default by Landlord hereunder and no right, for any such default,
to offset or counterclaim against any rent due hereunder, except as expressly
provided below.


 


B.  If
Landlord fails, after the expiration of the cure periods specified in Paragraph
(A) above, to cure any default, Tenant may, after ten (10) days prior
written notice to Landlord captioned “NOTICE — SELF-HELP REMEDY TO BE INVOKED”
advising Landlord that Tenant intends to exercise its self-help rights under
this Section 10.6, undertake to cure any default by Landlord under this
Lease relating to the Premises and/or building systems exclusively serving the
Premises, provided however, that Tenant shall not have the right to cure any
such default to the extent that such cure would relate to (i) areas
outside of the Premises, (ii) the structure or mechanical or life safety
systems of the Building or (iii) any Building systems (such as air
handlers, for example) that feed into the Central Utility Plant. 
Whenever Tenant so elects to cure a default by Landlord as set forth
herein, Landlord shall, within thirty (30) days after receipt of Tenant’s
written demand (which shall include reasonably detailed supporting
documentation), reimburse Tenant for all costs and expenses incurred by Tenant
in curing a default; provided, however, Landlord shall only be responsible for
the incremental cost in excess of the cost that would ordinarily be part of Operating
Costs under this Lease, if applicable. 
If Landlord fails to make any payment to Tenant as and when due, in
addition to all other remedies at law or in equity, Tenant shall have the right
to offset such owed amounts against its payments of Fixed Rent coming due under
this Lease; provided, however, that the amount of each such monthly offset
shall not exceed twenty (20%) percent of the monthly installment of Fixed Rent
then payable as stipulated under Section 1.1.  Notwithstanding the foregoing, if Landlord
has undertaken curative action (which may include providing Tenant with a
remedial plan and timetable for rectifying the default) and is proceeding with
diligence, but has been unable to fully complete such cure by the expiration of
thirty (30) days from Tenant’s first notice of such default, Landlord shall be
afforded a reasonable time thereafter in which to complete its curative efforts
before Tenant may effect a cure.  If
Tenant elects to exercise self-help under this Section 10.6, then Tenant may
not avail itself of any other remedy at law or in equity.


 


10.7                           Brokerage.
 Each of Landlord and Tenant
warrants and represents that it has dealt with no broker in connection with the
consummation of this Lease, other than the Brokers, and each agrees to
indemnify, defend and hold the other harmless form and against any and all
loss, cost, damage, claim or expense resulting from the breach of the foregoing
warranty.  Landlord shall pay the Brokers
pursuant to a separate agreement.  Tenant
shall have no liability for any amounts due the Brokers.


 


10.8                           Applicable
Law and Construction; Merger; Jury Trial.  This Lease may be executed in counterpart
copies, and shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts and, if any provisions of this Lease shall to
any extent be invalid, the remainder of this Lease shall not be affected
thereby.  This Lease and the Exhibits
attached hereto and forming a part hereof constitute all the covenants,
promises, agreements, and understandings between Landlord and Tenant concerning
the Premises and the Building and there are no covenants, promises, agreements
or understandings, either oral or written, between them other than as are set
forth in this Lease.  Neither Landlord
nor Landlord’s agents shall be bound to any representations with respect to the
Premises, the Building or the Property except as herein expressly set forth,
and all representations, either oral or written, shall be deemed to be merged
into this Lease. Each of Landlord and Tenant shall and does hereby waive trial
by jury in any action, proceeding, or claim regarding any matter arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant or Tenant’s use or occupancy of the Premises.  The titles of the several Articles and
Sections contained herein are for convenience only and shall not be considered
in construing this Lease.  Unless
repugnant to the context, the words “Landlord” and “Tenant” appearing in this
Lease shall be construed to mean those named above and their respective heirs,
executors, administrators, successors and assigns, and those claiming through
or under them respectively.  If there be
more than one tenant, the obligations imposed by this Lease upon Tenant shall
be joint and several.


 


[Signatures appear on the following page]


 


32

















 


WITNESS the execution hereof under seal on the day and
year first above written:


 


	
   

  	
  Landlord:

  
	
   

  	
  NETVIEW
  1,2,3,4 & 9 LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NetView
  Investments LLC, a Delaware limited liability company, its Manager

  
	
   

  	
   

  	
  By:

  	
  NetView
  Holdings LLC, a Massachusetts limited liability company, its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Nordbloom
  Development Company, Inc., a Massachusetts corporation, its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Og Hunnewell

  



 


 


	
   

  	
  Tenant:

  
	
   

  	
  AVID
  TECHNOLOGY, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/
  Ken Sexton

  
	
   

  	
  By:

  	
  Ken
  Sexton

  
	
   

  	
  Its:

  	
  Executive
  Vice President, Chief Financial Officer and Chief Administrative Officer

  



 


33
















 


EXHIBIT A


 


PLAN SHOWING THE PREMISES


 


(Graphics Omitted)


 


34

















 


EXHIBIT A-1


 


PLAN SHOWING THE PARK


 


(Graphics Omitted)


 


35

















 


EXHIBIT B


 


COMMENCEMENT DATE AGREEMENT


 


Pursuant
to Section          of the Lease
dated
                      
(“Lease”)  between
                                    (“Landlord”)
and
                            (“Tenant”)
in the building known as
                                                                
in
                                ,
Massachusetts,  Landlord and Tenant
hereby acknowledge and agree that:


 


1.               The Commencement Date of the
Lease is
                              -;


 


2.               The 1st Lease Year commenced on
                                            ;


 


3.               The Expiration Date is
                                        ;


 


4.               The Rent Commencement Date
occurred on
                                        
;


 


5.               The Date by which the
Extension Options must be exercised:


 


a.               First Option:                           


 


b.              Second Option:                        


 


Executed under seal this
                  
day of
                                            .


 


	
   

  	
  Landlord:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  
	
   

  	
  Print
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  Tenant:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  
	
   

  	
  Print Title:

  	
   

  
				



 


36

















 


EXHIBIT C


 


SCHEMATIC
DESIGN PLANS


 


(Graphics Omitted)


 


37
















 


EXHIBIT D


 


WORK CHANGE ORDER


 


	
  Lease
  Date:

  	
  Date:

  
	
   

  	
   

  
	
  Landlord:

  	
  Work
  Change Order No.:

  
	
   

  	
   

  
	
  Tenant:

  	
  Building
  Address:

  
	
   

  
	
  Premises:

  	
   

  



 


Tenant directs Landlord to make the following additions to Landlord’s
work:


 


 


Description of additional work:


 


 


Work Change Order Amount:


 


 


Amount of Previous Work Change Orders:


 


This Work Change Order:


 


Total Amount of Work Change Orders :


 


Landlord approves this Work Change Order and Tenant agrees to pay to
Landlord the Total Amount of Work Change Orders within ten days following
Landlord’s invoice, unless this Work Change Order is for $20,000 or more, in
which case Tenant will deposit the amount into the construction escrow account.


 


	
  Tenant:

  	
   

  	
  Landlord:

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


38

















 


EXHIBIT E


 


RULES AND REGULATIONS


 


1.                                       Campus
Common Areas and Building Common Areas, such as sidewalks, doorways,
vestibules, halls, stairways and other similar areas, shall not be obstructed
by Tenant or used by Tenant for any purposes other than ingress and
egress.  No rubbish, litter, trash or
material shall be placed, emptied, thrown or stored in those areas.


 


2.                                       Tenant
shall not place objects against glass partitions, doors or windows which would
be unsightly from the Building corridor or from the exterior of the Building.
Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance.


 


3.                                       Tenant
shall not waste electricity or water in the Building and shall cooperate fully
with Landlord to assure the most effective operation of the Building heating
and air conditioning systems.  All
regulating and adjusting of heating and air-conditioning apparatus shall be
done by the Landlord’s agents or employees. Tenant shall not install, operate
or maintain in the Premises, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe operation
as determined solely by Landlord.  Tenant
shall not furnish cooling or heating to the Premises, including, without
limitation, the use of electric or gas heating devices, without Landlord’s
prior written consent.


 


4.                                       Tenant
shall obtain Landlord’s approval before any use or disruption of the Campus,
underground telecommunications infrastructure.


 


5.                                       Tenant
shall not use the Premises so as to cause any increase above normal insurance
premiums on the Building.


 


6.                                       No
or vehicles of any kind shall be brought into or kept in or about the Premises.
No bicycles shall be brought into the Premises, except through the loading
docks.  No animals, with the exception of
those assisting handicapped persons, shall be brought into the Building or kept
in or about the Premises.  “Fred the Dog”
will be housed at the property within the Sun Microsystems Premises for the
purpose of Geese control.


 


7.                                       No
space in the Building shall be used for the sale of merchandise of any kind at
auction or for storage thereof preliminary to such sale.


 


8.                                       Tenant
shall cooperate with Landlord in minimizing loss and risk thereof from fire and
associated perils.


 


9.                                       The
water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were designed and constructed and no
sweepings, rubbish, rags, acid or like substance shall be deposited
therein.  All damages resulting from any
misuse of the fixtures shall be borne by the Tenant.


 


10.                                 Landlord
reserves the right to establish, modify, and enforce reasonable parking rules and
regulations, provided such rules and obligations do not diminish Tenant’s
rights under the Lease.


 


11.                                 Landlord
reserves the right at any time to rescind, alter or waive any rule or
regulation at any time prescribed for the Building and to impose additional
reasonable rules and regulations when in its judgment deems it necessary,
desirable, provided such rules and regulations do not diminish Tenant’s
rights under the Lease.  Landlord shall
not be responsible for the nonobservance or violation by any other tenant of
the Park however resulting of any rules or regulations at any time
prescribed for the Park.


 


12.                                 Tenant
acknowledges that the Building has been designated a non-smoking building.  At no time shall Tenant permit its agents,
employees, contractors, guests or invitees to smoke in the Building or, except
in specified locations, directly outside the Building.


 


13.                                 The
work of cleaning personnel shall not be hindered by Tenant after 6:00 P.M.,
and cleaning work may be done at any time when the offices are vacant.  Windows, doors, fixtures, and floors when
necessary, may be cleaned at any time. 
Tenant shall provide adequate waste, rubbish, and recycling receptacles
to prevent unreasonable hardship to the cleaning service.


 


14.                                 Landlord
may from time to time adopt systems and procedures for the security and safety
of the Building and Property, their occupants, entry, use and contents.  Tenant, its agents, employees, contractors,
guests and invitees shall comply with Landlord’s systems and procedures.


 


15.                                 Landlord
shall have the right to prohibit the use of the name of the Property or any
other publicity by Tenant that in Landlord’s sole opinion might impair the
reputation of the Property or its desirability. 
Tenant shall have the ability to submit requests for publicity uses of
the Property to the Landlord for approval, which will not be unreasonably
denied.


 


16.                                 Tenant
shall not operate or permit to be permit to be operated a coin or token
operated vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for sale
of beverages, foods, candy, cigarettes and other goods), except for machines
for the exclusive use of Tenant’s employees and invitees.


 


39

















 


17.                                 Tenant
shall not use or occupy the Premises in any manner or for any purpose which in
Landlord’s sole opinion might injure the reputation or impair the present or
future value of the Building.  Tenant
shall not use, or permit any part of the Premises to be used for lodging,
sleeping or for any illegal purpose.


 


18.                                 Tenant
shall not take any action which would violate Landlord’s labor contracts or
which would cause a work stoppage, picketing, labor disruption or dispute or
interfere with Landlord’s or any other tenant’s or occupant’s business or with
the rights and privileges of any person lawfully in the Building (“Labor
Disruption”).  Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets removed
and, at the request of Landlord, immediately terminate any work in the Premises
that gave rise to the Labor Disruption, until Landlord gives its written
consent for the work to resume.  Tenant
shall have no claim for damages against Landlord or any of the Landlord Related
Parties nor shall the Commencement Date of the Term be extended as a result of
the above action.


 


Tenant shall notify Landlord in
the event that any employee is terminated, or if for that or any other reason a
security or police presence is deemed necessary at the Property.


 


19.                                 All
contractors, contractor’s representatives and installation technicians
performing work in the Building or on the Property shall be subject to Landlord’s
prior approval, which approval shall not be unreasonably withheld, and shall be
required to comply with Landlord’s standard rules, regulations, policies and
procedures, which may be revised from time to time.  All of the aforementioned parties will be
required to submit a Certificate of Insurance, in accordance with the Property
insurance requirements, to the Landlord before beginning any work.


 


20.                                 Movement
in or out of the Building of furniture or office equipment, or dispatch or
receipt by Tenant of merchandise or materials requiring the use of elevators,
stairways, lobby areas or loading dock areas, shall be restricted to hours
reasonably designated by Landlord. 
Tenant shall obtain Landlord’s prior approval by providing a detailed
listing of the activity, which approval will not be unreasonably withheld.  If approved by Landlord, the activity shall
be under the supervision of Landlord and performed in the manner required by
the Landlord.


 


Deliveries to and from the
Premises shall be made only in the areas and through the entrances reasonably
designated by the Landlord.  Tenant shall
not make deliveries to or from the Premises in a manner that might interfere
with the use by any other tenant of its premises or of the Common Areas, and
pedestrian use, or any use which is inconsistent with good business practice.


 


There shall be no moving of any
materials through the Amenities Center.


 


Tenant shall assume all risk
for damage to articles moved and injury to any person resulting from the
activity.  If the Property, equipment, or
personnel of Landlord or of any other party is damaged or injured as a result
of or in connection with the activity, Tenant shall be solely liable for any
resulting damage, loss or injury.


 


21.                                 Landlord
shall have the right to approve the weight, size, or location of heavy
equipment or articles in and about the Premises, which approval shall not be
unreasonably withheld.  Damage to the
Building by the installation, maintenance, operation, existence or removal of
Tenant’s Property shall be repaired at Tenant’s sole expense.


 


22.                                 Tenant
shall not:  (1) make or permit any
improper, objectionable or unpleasant noises or odors in the Building, or
otherwise interfere in any way with other tenants or persons having business
with them; (2) conduct or permit other activities in the Building that might,
in Landlord’s sole opinion, constitute a nuisance; or (3) solicit business
or distribute or cause to be distributed, in any portion of the Building,
handbills, promotional materials or other advertising, without Landlord
approval.


 


23.                                 No
signs, advertisements or notices shall be painted or affixed to windows, doors
or other parts of the Building or the Property, except those of such color size
and style and in such places as are first approved in writing by Landlord.  All tenant identification at the entrance to
the Premises shall be installed by Tenant, at Tenant’s cost and expense, using
the standard graphics for the Building per the Network Drive Sign Policy and
with prior Landlord approval.


 


24.                                 Landlord
may provide and maintain in the first floor (main lobby) of the Building an
alphabetical directory board or other directory device listing tenants and no
other directory or free standing signs shall be permitted unless previously
consented to by Landlord in writing.


 


40
















 


EXHIBIT F


 


TENANT ESTOPPEL CERTIFICATE


 


TO: 
                                              
(“Mortgagee” or “Purchaser”)


 


THIS IS TO CERTIFY THAT:


 


1.                                       The
undersigned is the tenant (the “Tenant”) under that certain lease (the “Lease”)
dated
                    ,
20  , by and between
                        
as landlord (the “Landlord”), and the undersigned, as Tenant, covering those
certain premises commonly known and designated as
                              
(the “Premises”) in the building located at                             ,
                                ,
Massachusetts.


 


2.                                       The
Lease is attached hereto as Exhibit A and (i) together with the
Construction Escrow Agreement, Notice of Lease and Subordination,
Nondisturbance and Attornment Agreement constitutes the entire agreement
between the undersigned and the Landlord with respect to the Premises, (ii) is
the only Lease between the undersigned and the Landlord affecting the Premises
and (iii) has not been modified, changed, altered or amended in any
respect, except (if none, so state):


 


3.                                       The
undersigned has accepted and now occupies the Premises as of the date hereof,
and all improvements, if any, required by the terms of the Lease to be made by
the Landlord have been completed and all construction allowances to be paid by
Landlord have been paid (except as follows). 
In addition, the undersigned has made no agreement with Landlord or any
agent, representative or employee of Landlord concerning free rent, partial
rent, rebate of rental payments or any other type of rental or other economic
inducement or concession except as set forth in the Lease.


 


4.


 


(a)           The term of the Lease began (or is
scheduled to begin) on
                  ,
20    and will expire on
                  ,
20    ;


 


(b)           The fixed rent for the Premises has
been paid to and including
                              ,
20    ;


 


(c)           The fixed rent being paid pursuant to
the Lease is at the annual rate of
$                        ;
and


 


(d)           The escalations payable by Tenant
under the Lease are currently
$            , on
an estimated basis, based on a pro rata share of
            %, and
have been reconciled through               ,
20     .


 


5.                                       To
Tenant’s knowledge, no party to the Lease is in default and the Lease is in
full force and effect.  As of the date
hereof, to Tenant’s knowledge, the undersigned has no charge, lien or present
claim of off-set (and no present claim for any credit or deduction) under the
Lease or otherwise, against rents or other charges due or to become due thereunder
or on account of any prepayment of rent more than one (1) month in advance
of its due date, and to Tenant’s knowledge, as of the date hereof, Tenant has
no present claim against Landlord for any security, rental, cleaning or other
deposits, except (if none, so state):


 


 


6.                                       Since
the date of the Lease there are no voluntary actions pending against the
undersigned under the bankruptcy, reorganization, arrangement, moratorium or
similar laws of the United States, any state thereof of any other jurisdiction.


 


7.                                       Tenant
has not sublet, assigned or hypothecated or otherwise transferred all or any
portion of Tenant’s leasehold interest, except as follows:


 


8.                                       Neither
Tenant nor Landlord has commenced any action or given or received any notice
for the purpose of terminating the Lease.


 


9.                                       Tenant
has no option or preferential right to purchase all or any part of the Premises
(or the real property of which the Premises are a part).  Tenant has no right to renew or extend the
term of the Lease or expand the Premises except as set forth in the Lease.


 


 


41

















 


10.                                 The
undersigned acknowledges that the parties named herein are relying upon this
estoppel certificate and the accuracy of the information contained herein in
making a loan secured by the Landlord’s interest in the Premises, or in
connection with the acquisition of the Property of which the Premises is a
part.


 


	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Duly
  Authorized

  



 


42

















 


EXHIBIT G


 


NOTICE OF LEASE


 


In accordance with the
provisions of Massachusetts General Laws Chapter 183, Section 4, as
amended, notice is hereby given of the following described lease:


 


Parties to Lease:


 


Lessor:                                 NetView 1, 2, 3, 4, & 9 LLC, having a mailing
address of c/o Nordblom Management Company, Inc., 15 Third Avenue,
Burlington, Massachusetts 01803.


 


Lessee:                                Avid Technology, Inc., a Delaware corporation,
having a place of business at 75 Network Drive, Burlington, Massachusetts
01803.


 


Date of Execution:                    November      , 2009


 


Description of Leased Premises:


 


The entire
building located at 75 Network Drive, Burlington, Middlesex County,
Massachusetts, said entire building being described on Exhibit A
attached hereto and made a part hereof.


 


Terms of Lease,
Rights of Extension and Other Lease Matters are set forth on Exhibit B attached
hereto and made a part hereof


 


The purpose of this
Notice of Lease is solely to provide record notice of the Lease and shall not
be construed to alter, modify or supplement the Lease.  The provisions of the Lease itself shall be
controlling with respect to all matters set forth herein.  In the event of any discrepancy between the
provisions of the Lease and this Notice of Lease, the provisions of the Lease
shall take precedence and prevail over the provisions of this Memorandum.


 


WITNESS the execution hereof under seal by said
parties to said Lease.


 


	
  LESSOR:

  	
   

  	
  LESSEE:

  
	
   

  	
   

  	
   

  
	
  NETVIEW 1, 2, 3,
  4 & 9 LLC,

  	
  AVID TECHNOLOGY, INC.,

  
	
  a Delaware limited
  liability company

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
  By:

  	
  NETVIEW INVESTMENTS
  LLC,

  	
   

  	
  By:

  	
   

  
	
  a Delaware limited
  liability company,

  	
  Name:

  	
   

  
	
  its Manager

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  NETVIEW HOLDINGS LLC,

  	
   

  	
   

  
	
  a Massachusetts limited
  liability company,

  	
   

  	
   

  
	
  its Manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  NORDBLOM DEVELOPMENT COMPANY,
  INC.,

  	
   

  	
   

  
	
  a Massachusetts
  corporation, its Manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
								



 


 


COMMONWEALTH OF
MASSACHUSETTS


 


	
  County of Middlesex

  	
  , 2009

  



 


On this
           day of
                      ,
2009, before me, the undersigned notary
public, personally appeared
                                ,
proved to me through satisfactory evidence of identification, which was
                                      ,
to be the person whose name is signed on the preceding or attached document,
and acknowledged to me that he/she signed it voluntarily for its stated purpose
as the
                          
of Nordblom Development Company, Inc., a Massachusetts Corporation, in its
capacity as manager of Netview Holdings LLC, in its capacity as manager of
Netview Investments LLC, in its capacity as manager of Netview 1, 2, 3, 4 &
9 LLC.


 


	
   

  	
   

  
	
   

  	
  Signature and seal of
  notary

  
	
   

  	
  My commission expires:

  



 


COMMONWEALTH OF
MASSACHUSETTS


 


43

















 


	
  County of Middlesex

  	
  , 2009

  



 


On this
           day of
                      ,
2009, before me, the undersigned notary
public, personally appeared
                                ,
proved to me through satisfactory evidence of identification, which was
                                      ,
to be the person whose name is signed on the preceding or attached document,
and acknowledged to me that he/she signed it voluntarily for its stated purpose
as
                                  
of Avid Technology, Inc., a Delaware Corporation.


 


	
   

  	
   

  
	
   

  	
  Signature and seal of
  notary

  
	
   

  	
  My commission expires:

  



 


44
















 


EXHIBIT A
to Notice of Lease


 


The two-story building in
Burlington Massachusetts, located on the parcel of land identified as Lot 4 as
shown on the “Definitive Subdivision Plan, Sun Microsystems” prepared by
Vanasse Hangen Brustlin, Inc., recorded with Middlesex County (South
District) Registry of Deeds as Plan 672 of 2007, and known as  75 Network Drive (the Building and such
parcel of land hereinafter being collectively referred to as the “Property”)
comprising approximately 99,765 rentable square feet.  The Property is located within the office park
located off Network Drive in Burlington, Massachusetts, known Network Drive at
Northwest Park (the “Park”).


 


45

















 


EXHIBIT B TO Notice of Lease


 


Terms of Lease, rights of
extension and other Lease matters:


 


	
  1.

  	
   

  	
  Term of Lease:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The term of the Lease
  is for ten (10) Lease Years as defined in the Lease.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Rights of Extension:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Two (2) Extension
  Options to extend the Lease Term for a period of five (5) years each.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Other Lease Matters:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  There are no options to
  purchase contained in the Lease.

  



 


46
















 


EXHIBIT H


 


FORM LETTER OF CREDIT


 


IRREVOCABLE STANDBY LETTER OF
CREDIT NO.


 


ISSUANCE DATE:                                       ,           


 


	
  BENEFICIARY:

  	
  ISSUING
  BANK:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  APPLICANT: 

  	
  MAXIMUM/AGGREGATE
  CREDIT AMOUNT:

  
	
   

  	
  USD $

  



 


 


EXPIRATION:


 


LADIES AND GENTLEMEN:


 


We hereby establish our
irrevocable letter of credit in your favor for account of the Applicant up to
an aggregate amount not to exceed
                        
                                                    
US Dollars
($                  )
available by your draft(s) drawn on ourselves at sight accompanied by:


 


The original Letter of Credit
and all amendment(s), if any.


 


Your statement, purportedly
signed by an authorized officer or signatory of the Beneficiary certifying that
the Beneficiary is entitled to draw upon this Letter of Credit (in the amount
of the draft submitted herewith) pursuant to Section 4.4 of the lease (the
“Lease”) dated
                  
      ,
         by and between
                                  ,
as Landlord, and
                                      ,
as Tenant, relating to the premises at
                                                        .


 


Draft(s) must indicate
name and issuing bank and credit number and must be presented at this office.


 


You shall have the right to
make partial draws against this Letter of Credit, from time to time.


 


This Letter of Credit is
transferrable by Beneficiary from time to time in accordance with the
provisions of Section 4.4 of the Lease.


 


Except as otherwise expressly
stated herein, this Letter of Credit is subject to the “International Standby
Practices 1998, International Chamber of Commerce Publication No. 590 (ISP
98).”


 


This Letter of Credit shall
expire at our office on
                                ,
         (the “Stated Expiration Date”).


 


It is a condition of this
Letter of Credit that the Stated Expiration Date shall be deemed automatically
extended without amendment for successive one (1) year periods from such
Stated Expiration Date, unless at least forty-five (45) days prior to such
Stated Expiration Date) or any anniversary thereof) we shall notify the
Beneficiary and the Applicant in writing by registered mail (return receipt)
that we elect not to consider this Letter of Credit extended for any such additional
one (1) year period.


 


We engage with you that all
drafts drawn under and in compliance with the terms of this letter of credit
will be duly honored on presentation to us.


 


	
   

  	
   

  
	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


47

















 


EXHIBIT I


 


INTENTIONALLY DELETED


 


48

















 


EXHIBIT J


 


INTENTIONALLY DELETED


 


49
















 


EXHIBIT K


 


CLEANING SPECIFICATIONS


 


SCOPE OF WORK FOR TENANT SPACES


 


TENANTS GENERAL OFFICE AREA - NIGHTLY


 


1.                                       Empty
waste containers and dispose of contents to a designated area.


2.                                       Clean
and sanitize drinking fountains.


3.                                       Spot
mop tile floors.


4.                                       Vacuum
carpeting.


5.                                       Spot
clean desktops and conference tables that have been cleared of papers.


6.                                       Spot
clean walls and partitions.


7.                                       Collect
paper for recycling.


8.                                       Spot
clean carpeting to remove stains and spills.


 


TENANTS GENERAL OFFICE AREA - WEEKLY


 


1.                                       Thoroughly
vacuum all carpeting corner-to-corner.


2.                                       Clean
and sanitize telephones/handsets.


3.                                       Dust
bottoms of chairs, computer/typewriter tables, partitions, and windowsills.


4.                                       Spot
clean carpeting as necessary.


5.                                       Polish
desktops and conference tables that have been cleared of papers.


6.                                       Clean
both sides of interior partition glass doors.


7.                                       Dust
furniture, fixtures, office equipment, ledges, bookshelves, and windowsills.


8.                                       Remove
finger marks, smudges from walls, doors, light switches, etc.


9.                                       Wet
mop tile floors.


 


TENANTS LUNCH ROOM &
KITCHEN AREAS - NIGHTLY


 


1.                                       Sweep
and wash floors.


2.                                       Clean
outside and wipe down inside of microwave oven. 
Wipe down top and doors of refrigerator.


3.                                       Clean
and disinfect water coolers.


4.                                       Spot
clean walls.


5.                                       Wash
counter tops, sink, and kitchen tables.


6.                                       Organize
seating area.


 


DEDICATED RESTROOMS
- NIGHTLY


 


7.                                       Clean
and polish all chrome fittings and brightwork, including shelves, flushometers,
and metal dispensers.


8.                                       Clean,
sanitize, and polish all vitreous fixtures, including toilet bowls, urinals and
sinks, using a germicidal detergent solution.


9.                                       Clean
and sanitize both sides of all toilet seats with a germicidal detergent
solution.


10.                                 Clean
and sanitize entrance of grime and handprints.


11.                                 Clean
and polish all mirrors and glass.


12.                                 Dust
and spot clean all toilet partitions, tile walls, and receptacles.


13.                                 Refill
all dispensers, including: sanitary napkins, soap, toilet tissue, paper towels,
cups, etc.


14.                                 Dust
mop or sweep floors thoroughly, wash, and rinse using a germicidal detergent
solution.


15.                                 Empty
all trash receptacles and remove collected waste to dumpster, replace liners as
necessary.


16.                                 Wipe
down baseboard after washing floor.


17.                                 Shower
stalls to be cleaned nightly, clean and polish all chrome fittings and
brightwork, including shelves and metal dispensers.


18.                                 Pour
water in floor drains as needed.


 


CARPET CLEANING


 


A complete shampoo and extraction of the carpet areas
throughout occupied tenant spaces will take place once a year, generally in the
Spring.


 


WINDOW CLEANING


 


All exterior and interior perimeter windows will be
cleaned on a semi-annual basis, generally in the Spring and Fall.


 


50

















 


EXHIBIT L


 


SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT


 


AFTER RECORDING
RETURN TO:


Hinckley, Allen &
Snyder LLP


50 Kennedy Plaza, Suite 1500


Providence, Rhode
Island 02903


Attention:  Joseph P. Curran, Esq.


 


LEASE SUBORDINATION, NON-DISTURBANCE


 


AND ATTORNMENT AGREEMENT


 


This agreement (“Lease Subordination, Non-Disturbance and Attornment
Agreement” or “Agreement”) is made as of the
         day of November, 2009, among
BANK OF AMERICA, N.A., a national banking association organized under the laws
of the United States, and having a place of business at, Mail Stop: RI
1-102-12-06, 111 Westminster Street, Suite 1200, Providence, Rhode Island
02903, as Agent (the “Agent”) for the Lenders (as that term is defined in a
certain Loan Agreement, as may be amended from time to time, by and between the
hereinafter defined Borrower, the Agent and the Lenders), NETVIEW 1, 2, 3, 4
AND 9 LLC, a Delaware limited liability company, having a place of business at
c/o Nordblom Management Company, Inc., 15 Third Avenue, Burlington,
Massachusetts 01803 (“Landlord” or “Borrower”), and AVID TECHNOLOGY, INC., a
Delaware corporation, having a place of business at One Park West, Tewksbury,
Massachusetts 01876 (“Tenant”).


 


Introductory Provisions


 


A.                                    Agent and the
Lenders are relying on this Agreement as an inducement to Lenders in
maintaining a term loan in the amount of Seventy-Four Million Two Hundred
Thirty Thousand and no/100 Dollars ($74,230,000) (“Loan”) secured by, among
other things:


 


(i) a
Mortgage, Security Agreement and Fixture Filing, dated as of July 23,
2008, executed by Borrower in favor of the Agent, recorded with the Middlesex
County (South District) Registry of Deeds on July 24, 2008 in Book 51482
at Page 1 (the “Mortgage”); and


(ii) an Assignment of Leases and Rents, dated July 23, 2008,
executed by Borrower in favor of the Agent, recorded in the Middlesex County
(South District) Registry of Deeds on July 24, 2008 in Book 51482 at Page 37
(the “Assignment”).


 


B.                                      Tenant is the
tenant under that certain lease (“Lease”) dated November     ,
2009, made with Landlord, covering certain premises (“Premises”) at the
Property as more particularly described in the Lease and in the “Notice of
Lease” dated November     , 2009 which has been
recorded with the Middlesex County (South District) Registry of Deeds at Book
          , Page             .


 


C.                                      Lenders require
that the Mortgage be and remain superior to the Lease and that Agent’s rights
under the Assignment be recognized.


 


D.                                     Tenant requires
as a condition to the Lease being subordinate to the Mortgage that its rights under
the Lease be recognized.


 


E.                                       Agent,
Landlord, and Tenant desire to confirm their understanding with respect to the
Mortgage and the Lease.


 


NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein, and other valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and with the understanding by
Tenant that Lenders shall rely hereon in maintaining the Loan, Agent, Landlord,
and Tenant agree as follows:


 


1.                              Subordination.  The Lease and the rights of Tenant thereunder
are subordinate and inferior to the Mortgage and the Assignment and any
amendment, renewal, substitution, extension or replacement thereof and each
advance made thereunder, and to Agent’s right to enforce the Mortgage and the
lien and security interest granted therein, as though the Mortgage and the
Assignment, and each such amendment, renewal, substitution, extension or
replacement were executed and recorded, and the advance made, before the
execution of the Lease, all on the terms and conditions herein provided.


 


2.                              Non-Disturbance
and Recognition.  So long as
Tenant is not in default (beyond any period expressed in the Lease within which
Tenant may cure such default) in the payment of rent, (i) Tenant’s
occupancy of the Premises shall not be disturbed by Agent in the exercise of
any of its rights under the Mortgage during the term of the Lease, or any
extension or renewal thereof made in accordance with the terms of the Lease; provided,
however, Agent will have all the rights and remedies of the Landlord
upon any default by Tenant under the Lease, (ii) Agent will not join
Tenant as a party defendant in any action or proceeding for the purpose of
terminating Tenant’s interest and estate under the Lease because of any default
under the Mortgage, and (iii) upon succeeding to the interest of Borrower
as Landlord under the Lease, except as provided in Sections 4 and 6 of this
Agreement, Agent and Lenders shall recognize all of Tenant’s rights under the
Lease, including, without limitation, all rights of rent offset set forth in
the Lease and all rights under that certain Construction Escrow Agreement dated
as of November     , 2009 by and between Landlord,
Tenant and Lawyers Title Insurance Corporation, as escrow agent; 


 


51

















 


provided, however, Agent shall have no obligations
under the Lease and under the Construction Escrow Agreement with respect to the
construction of the Property or any improvements of the Premises or the Property
or the funding thereof.  Agent acknowledges that
Tenant has self-help rights under the Lease relating to Landlord’s Work (as
such term is defined in the Lease), as described in Section 6 hereof; the
right to draw funds for completion of Landlord’s Work pursuant to the
Construction Escrow Agreement; and a right of offset against rent under Section 3.2(B) of
the Lease with respect to certain costs of completing the Base Building Work
(as such term is defined in the Lease); and Agent agrees that none of the
foregoing shall impair Tenant in any manner in the exercise of those rights.


 


3.                                        Attornment and
Certificates.  In the
event Agent succeeds to the interest of Borrower as Landlord under the Lease,
or if the Property or the Premises are sold pursuant to any foreclosure of the
Mortgage, Tenant shall attorn to Agent, or a purchaser upon any such
foreclosure sale, and shall recognize Agent, or such purchaser, thereafter as
the Landlord under the Lease.  Such
attornment shall be effective and self-operative without the execution of any
further instrument.   Tenant agrees,
however, to execute and deliver at any time and from time to time, upon the
request of any holder(s) of any of the indebtedness or other obligations
secured by the Mortgage, or upon request of any such purchaser, (a) any
instrument or certificate which, in the reasonable judgment of such holder(s),
or such purchaser, may be necessary or appropriate in any such foreclosure
proceeding or otherwise to evidence such attornment, and (b) an instrument
or certificate regarding the status of the Lease, consisting of statements, if
true (and if not true, specifying in what respect), (i) that the Lease is
in full force and effect, (ii) the date through which rentals have been
paid, (iii) the duration and date of the commencement of the term of the
Lease, (iv) the nature of any amendments or modifications to the Lease, (v) that
no default, or state of facts, which with the passage of time, or notice, or
both, would constitute a default, exists on the part of either party to the
Lease, and (vi) the dates on which payments of additional rent, if any,
are due under the Lease.


 


4.                                        Limitations.  If Agent exercises any of its rights under
the Assignment or the Mortgage, or if Agent shall succeed to the interest of Landlord
under the Lease in any manner, or if any purchaser acquires the Property, or
the Premises, upon or after any foreclosure of the Mortgage, or any deed in
lieu thereof, Agent or such purchaser, as the case may be, shall have the same
remedies by entry, action or otherwise in the event of any default by Tenant
(beyond any period expressed in the Lease within which Tenant may cure such
default) in the payment of rent or in the performance or observance of any of
the terms, covenants and conditions of the Lease on Tenant’s part to be paid,
performed or observed that the Landlord had or would have had if Agent or such
purchaser had not succeeded to the interest of the present Landlord.  From and after any such attornment, Agent or
such purchaser shall be bound to Tenant under all the terms, covenants and
conditions of the Lease, and Tenant shall, from and after such attornment to
Agent, or to such purchaser, have the same remedies against Agent, or such
purchaser, for the breach of an agreement contained in the Lease that Tenant
might have had under the Lease against Landlord, if Agent or such purchaser had
not succeeded to the interest of Landlord. 
Provided, however, that Agent or such purchaser shall only
be bound during the period of its ownership, and that in the case of the
exercise by Agent of its rights under the Mortgage, or the Assignment, or any
combination thereof, or a foreclosure, or deed in lieu of foreclosure, Agent’s
liability under the Lease shall be limited to, and all Tenant claims shall be
satisfied only out of, the interest, if any, of Agent, or such purchaser, in
the Property, and Agent and such purchaser shall not be (a) liable for any
act or omission of any prior landlord (including the Landlord); or (b) liable
for or incur any obligation with respect to the construction of the Property or
any improvements of the Premises or the Property; or (c) liable for or
subject to any offsets or defenses which Tenant might have against any prior
landlord (including the Landlord), except and only to the extent such offset or
defense does not relate to monetary damages accruing as a result of any acts or
omissions occurring before the period of Agent’s, or any such purchaser’s,
ownership; provided  however, that this limitation does not limit
Tenant’s exercise of its rights to offset or defense under law and/or as
expressly provided in the Lease; or (d) bound by any rent or additional
rent which Tenant might have paid for more than the then current rental period
to any prior landlord (including the Landlord); or (e) bound by any
amendment or modification of the Lease that is made without Agent’s prior
written consent; or (f) bound by any assignment of the Lease or any
encumbrance of Tenant’s interest thereunder or any sublet thereunder (except if
expressly permitted without Landlord’s consent under the terms of the Lease)
that is made without Agent’s prior written consent; or (g) bound by or
responsible for any security deposit not actually received by Agent; or (h) liable
for or incur any obligation with respect to any breach of warranties or
representations of any nature under the Lease or otherwise including without
limitation any warranties or representations respecting use, compliance with
zoning, landlord’s title, landlord’s authority, habitability and/or fitness for
any purpose, or possession; or (i) liable for consequential damages.  The foregoing shall not, however:  (i) relieve Agent or such purchaser, of
the obligation to remedy or cure any conditions at the Premises the existence
of which constitutes a Landlord default under the Lease and which continue at
the time of such succession or acquisition, provided, however, that Agent shall
in no event be liable for actual damages caused by such conditions; or (ii) deprive
the Tenant of the right to terminate the Lease for a breach of Landlord
covenant which is not cured as provided for herein and in the Lease and as a
result of which there is a material interference with Tenant’s permitted use
and occupation of the Premises or any permitted business conducted therein; or (iii) deprive
Tenant of accrued but unapplied rent offset rights, as set forth in the Lease,
relating to periods prior to Agent’s or purchaser’s succession to the interest
of Borrower as Landlord.


 


5.                                        Rights Reserved.  Nothing herein contained is intended, nor
shall it be construed, to abridge or adversely affect any right or remedy
of:  (a) the Landlord under the
Lease, or any subsequent Landlord, against the Tenant in the event of any
default by Tenant (beyond any period expressed in the Lease within which Tenant
may cure such default) in the payment of rent or in the performance or
observance of any of the terms, covenants or conditions of the Lease on Tenant’s
part to be performed or observed; or (b) the Tenant under the Lease against
the original or any prior Landlord in the event of any default by the original
Landlord to pursue claims against such original or prior Landlord whether or
not such claim is barred against Agent or a subsequent purchaser.


 


6.                                        Notice and
Right to Cure.  Tenant
agrees to provide Agent with a copy of each notice of default given to Landlord
under the Lease, at the same time as such notice of default is given to the
Landlord, and that in the event of any default by the Landlord under the Lease,
Tenant will take no action to terminate the Lease (a) if the default is
not curable by Agent (so long as the default does not interfere with Tenant’s
use and occupation of the 


 


52

















 


Premises), or (b) if the default is curable by Agent, unless the
default remains uncured for a period of thirty (30) days after written notice
thereof shall have been given, postage prepaid, to Agent at the address
provided in Section 7 below; provided, however, that if any
such default is such that it reasonably cannot be cured within such thirty (30)
day period, such period shall be extended for such additional period of time as
shall be reasonably necessary (including, without limitation, a reasonable
period of time to obtain possession of the Property and to foreclose the
Mortgage), if Agent gives Tenant written notice within such thirty (30) day
period of Agent’s election to undertake the cure of the default and if curative
action (including, without limitation, action to obtain possession and
foreclose) is instituted within a reasonable period of time and is thereafter
diligently pursued.  Agent shall have no
obligation to cure any default under the Lease. 
Provided, however, nothing in this Section 6 shall
derogate from Tenant’s self-help rights as set forth in (i) Section 3.2(B) of
the Lease in connection with Landlord’s Work (as such term is defined in the
Lease).


 


7.                                        Notices.  Any notice or communication required or
permitted hereunder shall be in writing, and shall be given or delivered:  (i) by United States mail, registered or
certified, postage fully prepaid, return receipt requested, or (ii) by
recognized courier service or recognized overnight delivery service; and in any
event addressed to the party for which it is intended at its address set forth
below:


 


To Agent:                                                    Bank of
America, N.A., as Agent


Mail Stop: RI 1 102 12 06


Suite 1200


111 Westminster Street


Providence, Rhode Island  02903


Attention: Commercial Real Estate Loan Administration


 


To Tenant:                                                Avid Technology, Inc.


One Park West


Tewksbury, MA  01876


Attention: Director of Real Estate


(if prior to Commencement Date under the Lease)


 


Avid Technology, Inc.


75 Network Drive


Burlington, MA  01803


Attention: Director of Real Estate


(if on or after Commencement Date under the Lease)


 


With a copy to:                                                                        WilmerHale


60 State Street


Boston, MA  02109


Attention:  Paul Jakubowski, Esq.


 


or such other address as such party may have previously specified by
notice given or delivered in accordance with the foregoing.   Any such notice shall be deemed to have been
given and received on the date delivered or tendered for delivery during normal
business hours as herein provided.


 


8.                                        Payment of Rent
To Agent.  Tenant
acknowledges that it has notice that the Lease and the rent and all sums due
thereunder have been assigned to Agent as part of the security for the
obligations secured by the Mortgage.  In
the event Agent notifies Tenant of a default under the Loan and demands that
Tenant pay its rent and all other sums due under the Lease to Agent, Tenant agrees
that it will honor such demand and pay its rent and all other sums due under
the Lease to Agent, or Agent’s designated agent, until otherwise notified in
writing by Agent.  Borrower
unconditionally authorizes and directs Tenant to make rental payments directly
to Agent following receipt of such notice and Borrower further agrees that
Tenant may rely upon such notice without any obligation to further inquire as
to whether or not any default exists under the Mortgage or the Assignment and
notwithstanding any notice from or claim of Borrower to the contrary.  Borrower shall have no right or claim against
Tenant for or by reason of any payments of rent or other charges made by Tenant
to Agent following Tenant’s receipt of any such notice.


 


9.                                        No Amendment or
Cancellation of Lease.  As
long as the Mortgage remains undischarged of record, Tenant shall not agree to
amend or modify the Lease in any material respect, or agree to cancel or
terminate the Lease or agree to subordinate the Lease to any other mortgage or
deed of trust, without Agent’s prior written consent in each instance.


 


10.                                  No Waiver.  This Agreement does not:


 


(a)                      constitute a
waiver by Agent of any of its rights under the Mortgage or any of the other
Loan Documents (as defined in the Mortgage); or


 


(b)                     in any way release Borrower
from its obligations to comply with the terms, provisions, conditions,
covenants and agreements and clauses of the Mortgage and other Loan Documents.


 


11.                                  Borrower
Compliance.  The
provisions of the Mortgage remain in full force and effect and must be complied
with by Borrower.


 


53

















 


12.                                  Captions.  Captions and headings of sections are not
part of this Agreement and shall not be deemed to affect the meaning or
construction of any of the provisions of this Agreement.


 


13.                                  Counterparts.  This Agreement may be executed in several
counterparts each of which when executed and delivered is an original, but all
of which together shall constitute one instrument.


 


14.                                  Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State where the Property is
located.


 


15.                                  Entire
Agreement.  This
Agreement constitutes the entire agreement between Agent and Tenant regarding
the subordination of the Lease to the Mortgage and the rights and obligations
of Tenant and Agent as to the subject matter of this Agreement.


 


16.                                  Interaction
with Lease and with Mortgage.  If this agreement conflicts with the Lease,
then this Agreement shall govern as between the parties, including upon any
attornment pursuant to this Agreement. 
This Agreement supersedes, and constitutes full compliance with any
provisions in the Lease that provide for subordination of the Lease to, or for
delivery of nondisturbance agreements by the holder of, the Mortgage.


 


17.                                  Agent’s Rights
and Obligations.  Except as
expressly provided for in this Agreement, Agent shall have no obligations to
Tenant with respect to the Lease.


 


18.                                  Amendments; No
Oral Change.  This
Agreement may be amended, discharged or terminated, or any of its provisions
waived, only by a written instrument executed by the party to be charged.  This Agreement may not be modified orally or
in any manner other than by an agreement in writing signed by the parties
hereto or their respective successors in interest.


 


19.                                  Successors and
Assigns.  This Agreement shall inure to
the benefit of and be binding upon Agent, Lenders, Tenant and Borrower and
their respective heirs, personal representatives, successors and assigns, and
any purchaser or purchasers at foreclosure of the Property or any portion
thereof, and their respective heirs, personal representatives, successors and
assigns.


 


[Signatures on Following
Page(s).]


 


54
















 


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


 


	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A., as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
    Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AVID
  TECHNOLOGY, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
    Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NETVIEW
  1, 2, 3, 4 AND 9 LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NetView
  Investments LLC,

  	
   

  
	
   

  	
   

  	
  a
  Delaware limited liability company,

  	
   

  
	
   

  	
   

  	
  its
  Manager and Member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NetView
  Holdings LLC,

  
	
   

  	
   

  	
   

  	
  a
  Massachusetts limited liability company,

  
	
   

  	
   

  	
   

  	
  its
  Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Nordblom
  Development Company, Inc.,

  
	
   

  	
   

  	
   

  	
   

  	
  a
  Massachusetts corporation,

  
	
   

  	
   

  	
   

  	
   

  	
  its
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
							



 


[Acknowledgements on Following Page(s)]


 


55

















 


STATE
OF RHODE ISLAND


COUNTY
OF PROVIDENCE


 


On
the        day of
                    ,
2009, before me,                                 ,
a Notary Public in and for said State, personally appeared
                                                    ,
a
                                              
of Bank of America, N.A., personally known to me, or proved to me on the basis
of satisfactory evidence, to be the person whose name is subscribed to the
within instrument and she acknowledged to me that she executed same in her
authorized capacity, and that by her signature on the instrument the person, or
entity upon behalf of which the person acted, executed the instrument.


 


WITNESS my hand and official
seal.


 


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  Print
  Name:

  	
   

  
	
   

  	
           My
  Commission Expires:

  



 


 


THE COMMONWEALTH OF MASSACHUSETTS


 


County
of


 


On this   day
of
                                ,
2009, before me, the undersigned notary public, personally
appeared                              ,
proved to me through satisfactory evidence of identification, which was o photographic
identification with signature issued by a federal or state governmental agency,
or o personal
knowledge of the undersigned, to be the person whose name is signed on the
preceding document, and acknowledged to me that he/she signed it voluntarily
for its stated purpose and that it was the free act and deed of
                                  .


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  Print
  Name of Notary:

  	
   

  
	
   

  	
  My
  commission expires:

  



 


[Acknowledgements
continue on Following Page]


 


56

















 


THE
COMMONWEALTH OF MASSACHUSETTS


 


County
of


 


On this   day
of
                                ,
2009, before me, the undersigned notary public, personally
appeared                              ,
proved to me through satisfactory evidence of identification, which was o photographic
identification with signature issued by a federal or state governmental agency,
or o personal
knowledge of the undersigned, to be the person whose name is signed on the
preceding document, and acknowledged to me that he/she signed it voluntarily
for its stated purpose and that it was the free act and deed of
                                  .


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  Print
  Name of Notary:

  	
   

  
	
   

  	
  My
  commission expires:

  



 


57

















 


ARTICLE
11  EXHIBIT A


 


Legal Description


 


EXHIBIT “A”


 


Those certain parcels of land located in Burlington, County of
Middlesex, Commonwealth of Massachusetts, being Lots 5 and 9 as shown on that
certain Subdivision Plan entitled, “Definitive Subdivision Plan, Sun
Microsystems, Burlington, Massachusetts” prepared by Vanasse Hangen Brustlin, Inc.,
Date Issued: April 8, 1999, Latest Issue: June 7, 2000, recorded with
the Middlesex County (South District) Registry of Deeds as Plan No. 672 of
2007.


 


Said Lots 5 and 9 are particularly shown on Drawing Number C-4, Sheet 4
of 7 (entitled “Lotting Plan”) and Drawing Number C-5, Sheet 5 of 7 (entitled “Lot
Plans Road ‘A’ & Road ‘B’”) of such Definitive Subdivision Plan.


 


TOGETHER
WITH the rights to pass and repass over Network Drive, and to use Network Drive
for all purposes that streets and ways are commonly used in the Town of
Burlington, Massachusetts, including installation and use of utilities, in
common with all others lawfully entitled thereto including but not limited to
rights in the Town of Burlington deriving from a Grant of Easement
recorded in Book 28562, Page 151.


 


Together with the rights contained in that Declaration of Covenants and
Cross Access and Easement Agreement by and among NetView 1, 2, 3, 4 and 9 LLC,
NetView 5 and 6 LLC, NetView 7, 8 and 10 LLC and Bank of America, N.A of even
date herewith and recorded with the Middlesex County (South District) Registry
of Deeds on or about the date hereof.


 


58