EXHIBIT 10.1


 


NETWORK
DRIVE AT NORTHWEST PARK


 


OFFICE
LEASE


 


NETVIEW
5 AND 6 LLC


 


AS
LANDLORD


 


AND


 


AVID
TECHNOLOGY, INC.


 


AS
TENANT


 


 


FOR
PREMISES AT


 


 


65
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

  
	
  2.4

  	
  CONTRACTION OPTION

  	
   

  	
  9

  
	
  2.5

  	
  RIGHT OF FIRST OFFER

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 IMPROVEMENTS

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  BASE BUILDING WORK; TENANT IMPROVEMENT WORK. A

  	
   

  	
  11

  
	
  3.2

  	
  LATE DELIVERY

  	
   

  	
  11

  
	
  3.3

  	
  PLANS AND SPECIFICATIONS

  	
   

  	
  12

  
	
  3.4

  	
  COST OF TIW; TENANT’S SHARE

  	
   

  	
  13

  
	
  3.5

  	
  TENANT’S UPGRADE WORK

  	
   

  	
  13

  
	
  3.6

  	
  COOLING PLANT

  	
   

  	
  13

  
	
  3.7

  	
  WORK CHANGE ORDERS

  	
   

  	
  14

  
	
  3.8

  	
  ACCEPTANCE OF THE PREMISES

  	
   

  	
  14

  
	
  3.9

  	
  PRE-COMMENCEMENT ENTRY

  	
   

  	
  14

  
	
  3.10

  	
  CONNECTOR BRIDGE

  	
   

  	
  14

  
	
  3.11

  	
  CONNECTOR ROAD

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 RENT

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  THE FIXED RENT

  	
   

  	
  15

  
	
  4.2

  	
  ADDITIONAL RENT

  	
   

  	
  15

  
	
  4.2.1

  	
  Real Estate Taxes

  	
   

  	
  16

  
	
  4.2.2

  	
  Personal Property Taxes

  	
   

  	
  16

  
	
  4.2.3

  	
  Operating Costs

  	
   

  	
  17

  
	
  4.2.4

  	
  Insurance

  	
   

  	
  19

  
	
  4.2.5

  	
  Utilities

  	
   

  	
  20

  
	
  4.3

  	
  LATE PAYMENT OF RENT

  	
   

  	
  21

  
	
  4.4

  	
  LETTER OF CREDIT

  	
   

  	
  21

  
	
  4.4.1

  	
  Amount of Letter of Credit

  	
   

  	
  21

  
	
  4.4.2

  	
  Renewal of Letter of Credit

  	
   

  	
  21

  
	
  4.4.3

  	
  Draws to Cure Defaults

  	
   

  	
  21

  
	
  4.4.4

  	
  Draws to Pay Damages

  	
   

  	
  21

  
	
  4.4.5

  	
  Issuing Bank

  	
   

  	
  21

  
	
  4.4.6

  	
  Draws for Failure to Deliver Substitute Letter of Credit

  	
   

  	
  21

  
	
  4.4.7

  	
  Transferability

  	
   

  	
  21

  
	
  4.4.8

  	
  Return of Letter of Credit at End of Term

  	
   

  	
  21

  
	
  4.4.9

  	
  Reduction in Letter of Credit Amount

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 LANDLORD’S COVENANTS

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  22

  
	
  5.1.1

  	
  Heat and Air-Conditioning

  	
   

  	
  22

  
	
  5.1.2

  	
  Electricity

  	
   

  	
  22

  
	
  5.1.3

  	
  Cleaning; Water

  	
   

  	
  23

  
	
  5.1.4

  	
  Elevator; Fire Alarm

  	
   

  	
  23

  
	
  5.1.5

  	
  Repairs

  	
   

  	
  23

  
	
  5.2

  	
  INTERRUPTION

  	
   

  	
  23

  
	
  5.3

  	
  OUTSIDE SERVICES

  	
   

  	
  23

  
	
  5.4

  	
  ACCESS

  	
   

  	
  23

  
	
  5.5

  	
  BUILDING AMENITIES

  	
   

  	
  24

  
	
  5.6

  	
  ENVIRONMENTAL

  	
   

  	
  24

  
	
  5.7

  	
  INSURANCE

  	
   

  	
  24

  
	
  5.8

  	
  REPRESENTATIONS

  	
   

  	
  24

  
	
  5.9

  	
  INDEMNIFICATION

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 TENANT’S ADDITIONAL COVENANTS

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  24

  
	
  6.1.1

  	
  Perform Obligations

  	
   

  	
  24

  
	
  6.1.2

  	
  Use

  	
   

  	
  24

  
	
  6.1.3

  	
  Repair and Maintenance

  	
   

  	
  25

  
	
  6.1.4

  	
  Compliance with Law

  	
   

  	
  25

  
	
  6.1.5

  	
  Indemnification

  	
   

  	
  25

  
	
  6.1.6

  	
  Landlord’s Right to Enter

  	
   

  	
  26

  
									



 

















 


	
  6.1.7

  	
  Personal Property at Tenant’s Risk

  	
   

  	
  26

  
	
  6.1.8

  	
  Payment of Landlord’s Cost of Enforcement

  	
   

  	
  26

  
	
  6.1.9

  	
  Yield Up

  	
   

  	
  26

  
	
  6.1.10

  	
  Rules and Regulations

  	
   

  	
  27

  
	
  6.1.11

  	
  Estoppel Certificate

  	
   

  	
  27

  
	
  6.1.12

  	
  Landlord’s Expenses Re Consents

  	
   

  	
  27

  
	
  6.1.13

  	
  Representation

  	
   

  	
  27

  
	
  6.2

  	
  NEGATIVE COVENANTS

  	
   

  	
  27

  
	
  6.2.1

  	
  Assignment and Subletting

  	
   

  	
  27

  
	
  6.2.2

  	
  Nuisance

  	
   

  	
  29

  
	
  6.2.3

  	
  Hazardous Wastes and Materials

  	
   

  	
  29

  
	
  6.2.4

  	
  Floor Load; Heavy Equipment

  	
   

  	
  29

  
	
  6.2.5

  	
  Installation, Alterations or Additions

  	
   

  	
  29

  
	
  6.2.6

  	
  Abandonment

  	
   

  	
  30

  
	
  6.2.7

  	
  Signs

  	
   

  	
  30

  
	
  6.2.8

  	
  Parking and Storage

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 CASUALTY OR TAKING

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  TERMINATION

  	
   

  	
  30

  
	
  7.2

  	
  RESTORATION

  	
   

  	
  31

  
	
  7.3

  	
  AWARD

  	
   

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 DEFAULTS

  	
   

  	
  31

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  EVENTS OF DEFAULT

  	
   

  	
  31

  
	
  8.2

  	
  REMEDIES

  	
   

  	
  31

  
	
  8.3

  	
  REMEDIES CUMULATIVE

  	
   

  	
  32

  
	
  8.4

  	
  LANDLORD’S RIGHT TO CURE DEFAULTS

  	
   

  	
  32

  
	
  8.5

  	
  EFFECT OF WAIVERS OF DEFAULT

  	
   

  	
  32

  
	
  8.6

  	
  NO WAIVER, ETC.

  	
   

  	
  32

  
	
  8.7

  	
  NO ACCORD AND SATISFACTION

  	
   

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 RIGHTS OF MORTGAGE HOLDERS

  	
   

  	
  32

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  RIGHTS OF MORTGAGE HOLDERS

  	
   

  	
  32

  
	
  9.2

  	
  LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES

  	
   

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 MISCELLANEOUS PROVISIONS

  	
   

  	
  33

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  NOTICES FROM ONE PARTY TO THE OTHER

  	
   

  	
  33

  
	
  10.2

  	
  QUIET ENJOYMENT

  	
   

  	
  33

  
	
  10.3

  	
  LEASE NOT TO BE RECORDED

  	
   

  	
  33

  
	
  10.4

  	
  LIMITATION OF LANDLORD’S LIABILITY

  	
   

  	
  33

  
	
  10.5

  	
  FORCE MAJEURE

  	
   

  	
  34

  
	
  10.6

  	
  LANDLORD’S DEFAULT

  	
   

  	
  34

  
	
  10.7

  	
  BROKERAGE

  	
   

  	
  34

  
	
  10.8

  	
  APPLICABLE LAW AND CONSTRUCTION; MERGER; JURY TRIAL

  	
   

  	
  34

  
						



 


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
  four-story building in Burlington Massachusetts, located on the parcel of
  land identified as Lot 6 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 65 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.

  
	
   

  	
   

  
	
  Initial
  Premises:

  	
  A
  Portion of Wing B of the first floor, a portion on Wing A on the first floor
  and the entirety of the second floor of the Building, containing 68,953
  rentable square feet, substantially as shown on Exhibit A attached
  hereto.

  
	
   

  	
   

  
	
  Additional
  Premises:

  	
  The
  balance of Wing B of the first floor, containing 4,000 rentable square feet.

  
	
   

  	
   

  
	
  Premises:

  	
  The
  Initial  Premises and the Additional Premises.

  
	
   

  	
   

  
	
  Rentable
  Floor

  	
   

  
	
  Area
  of Premises:

  	
  72,953
  rentable square feet.

  
	
   

  	
   

  
	
  Landlord:

  	
  NetView
  5 and 6 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 75
  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.

  



 


4

















 


	
  Initial
  Premises

  	
   

  
	
  Rent
  Commencement

  	
   

  
	
  Date:

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

  
	
   

  	
   

  
	
  Additional
  Premises

  	
   

  
	
  Rent
  Commencement Date:

  	
  The date that is 365
  days from, and including, the Commencement Date, subject to Sections 3.2 and
  4.1.

  
	
  Annual
  Fixed Rent Rate:

  	
  Commencement
  Date until

  	
   

  
	
   

  	
  day
  prior to Initial
  Premises

  	
   

  
	
   

  	
  Rent
  Commencement Date:

  	
  $0.00

  
	
   

  	
   

  
	
   

  	
  Initial
  Premises Rent

  	
   

  
	
   

  	
  Commencement
  Date until

  	
   

  
	
   

  	
  day
  prior to Additional Premises

  	
   

  
	
   

  	
  Rent
  Commencement Date:

  	
  $1,792,778.04

  
	
   

  	
   

  	
  [i.e.,
  $26.00 psf times 68,953]

  
	
   

  	
   

  
	
   

  	
  Additional
  Premises Rent Commencement

  	
   

  
	
   

  	
  Date
  until end of the 2nd Lease Year:

  	
  $1,896,777.96

  
	
   

  	
   

  	
  [i.e.,
  $26.00 psf times 72,953]

  
	
   

  	
   

  
	
   

  	
  3rd and 4th Lease Years:

  	
  $2,006,207.52

  
	
   

  	
  5th and 6th Lease Years:

  	
  $2,261,543.04

  
	
   

  	
  7th Lease Year:

  	
  $2,316,257.76

  
	
   

  	
  8th Lease Year:

  	
  $2,334,495.96

  
	
   

  	
  9th and 10th Lease Years:

  	
  $2,370,972.50

  
	
   

  	
   

  
	
  Monthly
  Fixed Rent Rate:

  	
  Commencement
  Date until

  	
   

  
	
   

  	
  day
  prior to Initial Premises

  	
   

  
	
   

  	
  Rent
  Commencement Date:

  	
  $0.00

  
	
   

  	
   

  
	
   

  	
  Initial
  Premises Rent

  	
   

  
	
   

  	
  Commencement
  Date until

  	
   

  
	
   

  	
  day
  prior to Additional Premises

  	
   

  
	
   

  	
  Rent
  Commencement Date:

  	
  $149,398.17

  
	
   

  	
   

  	
  [i.e.,
  $26.00 psf times 68.953]

  
	
   

  	
   

  
	
   

  	
  Additional
  Premises Rent Commencement Date -

  	
   

  
	
   

  	
  end
  of the 2nd Lease Year:

  	
  $158,064.83

  
	
   

  	
   

  	
  [i.e.,
  $26.00 psf times 72,953]

  
	
   

  	
   

  
	
   

  	
  3rd and 4th Lease Years:

  	
  $167,183.96

  
	
   

  	
  5th and 6th Lease Years:

  	
  $188,461.92

  
	
   

  	
  7th Lease Year:

  	
  $193,021.48

  
	
   

  	
  8th Lease Year:

  	
  $194,541.33

  
	
   

  	
  9th and 10th Lease Years:

  	
  $197,581.04

  
	
   

  	
   

  
	
  Letter
  of Credit Amount:

  	
  $1,022,862.00
  (i.e., 6 times the average monthly rent over 10
  years), subject to reduction pursuant to Section 4.4.9.

  
	
   

  	
   

  
	
  TI
  Allowance:

  	
  $2,438,590.00
  (i.e $2,188,590.00 plus $250,000.00 for upgrade work pursuant to
  Section 3.5)

  
	
   

  	
   

  
	
  Construction
  Escrow Agreement:

  	
  That
  certain Construction Escrow Agreement dated as of the date hereof by and
  among 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 (178,608 square feet), which shall initially be deemed to be
  40.85%.

  
	
   

  	
   

  
	
  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.

  



 


5

















 


	
  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
  75 Premises:

  	
  The  entire building located at 75 Network Drive, Burlington,
  MA owned by Landlord’s affiliate, NetView 1,2,3,4 & 9 LLC.

  
	
   

  	
   

  
	
  Building
  75 Lease:

  	
  That
  certain lease between NetView 1,2,3,4 &9 LLC (the “Building 75
  Landlord”), and Tenant for the Building 75 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 Lease:

  	
  That
  certain lease between N.W. Building 28 Trust (the “10 North Ave Landlord”) and
  Tenant for the 10 North Avenue Premises, executed concurrently herewith.

  
	
   

  	
   

  
	
  Avid Spaces:

  	
  The Premises, the Building 75 Premises and the 10 North Avenue
  Premises, collectively.

  



 


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 Notification

  
	
   

  	
   

  
	
  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

  	
  e-Dialog’s
  expansion rights and Unleased Space

  
	
   

  	
   

  
	
  EXHIBIT
  J

  	
  Inventory
  Of Existing Equipment and Materials

  
	
   

  	
   

  
	
  EXHIBIT
  K

  	
  Cleaning
  Specifications

  
	
   

  	
   

  
	
  EXHIBIT
  L

  	
  Design
  Plan for Connector Road

  
	
   

  	
   

  
	
  EXHIBIT M

  	
  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 roof, exterior
faces of exterior walls, the common stairways, stairwells, elevators and
elevator shafts, and pipes, ducts, conduits, wires, and appurtenant fixtures
serving exclusively or in common other parts 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), and if Tenant’s space
includes less than entire rentable area of any floor, excluding the central
core area of such floor.  Tenant shall have,
as appurtenant to the Premises, rights to use in common, subject to reasonable rules of
general applicability to tenants of the Building from time to time made by
Landlord of which Tenant is given notice: 
(a)  the common lobbies, hallways, stairways, stairwells, and
elevators of the Building, (b)  common walkways, roadways, and driveways
necessary for access to the Building and the Property, (c)  the common
parking areas serving the Building, and (d)  if the Premises include less
than the entire rentable area of any floor, the common loading dock, the common
toilets and other common facilities in the central core area of such floor; (e) 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.”  The term “Premises” as used in this Lease
means the Initial Premises and the Additional Premises, collectively, unless
expressly stated otherwise.


 


Tenant shall have the right to use the loading docks
serving the Building, depicted on Exhibit A.  Tenant understands that a portion of the
Premises on the first floor contains an area that runs from the central core
area to the loading dock at the rear of the Wing B Premises.  Tenant agrees to permit other Building
tenants to utilize and have access, from time to time, to the loading dock via
such areas of the Wing B Premises necessary for the same, upon reasonable prior
notice from Landlord (which may be oral), and subject to other reasonable rules and
regulations established by Tenant from time to time, which have been approved
by Landlord, acting reasonably.  Landlord
shall have no liability to Tenant arising by virtue of the use of the Wing B Premises
by other tenants and their agents to access the loading dock.  However, Landlord shall obtain from any third
parties having access through the Wing B Premises and deliver to Tenant a
waiver of all claims against Landlord and Tenant, in form reasonably acceptable
to Landlord and Tenant, prior to such third parties being granted access.  Tenant acknowledges that the cleaning vendor
for the Building will have access to the loading dock at the rear of Wing B to
access the compactor during routine cleaning.


 


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. 
Landlord will not grant any other new tenant of the Building 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 for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures,
wherever located in the Premises or Building, (b)  to alter or relocate
any other common facility, (c)  to make any repairs and replacements to
the Premises which Landlord may deem necessary, and (d)  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 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, the Premises are delivered broom clean and free of all
occupants and 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 3.8 have been completed. However, if
Landlord cannot obtain a temporary 


 


7

















 


or permanent certificate
of occupancy by the Target Commencement Date because of a Tenant Delay (defined
in Section 3.1.B below), 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 and obtain a permanent certificate of occupancy).  When the Commencement Date, the Expiration
Date, the Rent Commencement Dates, the beginning and end of the 1st Lease Year have been determined, as well as
the notice dates for exercising the Extension Option and the Contraction
Option, 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 75 Lease or
the 10 North Lease, whichever lease has a first lease year expiring latest.


 


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 Building 75 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’s affiliate, the Building 75 Landlord
and Sun for premises in certain buildings in the Park, including Wing B of
Building 75.  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 75 Landlord, the 10 North Ave 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 75 Lease and the 10 North Lease that Sun
shall agree to an earlier termination and surrender of Wing B of Building 75
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 75 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 75 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 75 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
75 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 75 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 75
  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 Connector Bridge pursuant to Section 3.8
below, but in no event less than the 


 


8

















 


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 below 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 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.


 


2.4                                 Contraction
Option.Tenant shall have the option (the “Contraction Option”) to
contract the Premises by surrendering in its entirety Wing A of the 2nd floor of the Building or the portion of Wing A
of the 1st floor of the Building that is then leased to
Tenant (the “Contraction Space”), effective as of the last day of the 7th Lease
Year (the “Effective Contraction Date”). 
If Tenant elects to exercise its Contraction Option, Tenant shall do so
by giving Landlord written notice (the “Contraction Notice”) no later than the
last day of the 6th Lease Year.  If
Tenant properly and timely gives the Contraction Notice, then as of the
Effective Contraction Date, Tenant shall, at its expense, separately demise the
Contraction Space from the remainder of the Premises, including separately
metering as necessary, and Tenant shall vacate and yield up the Contraction
Space in accordance with the terms and requirements of Section 6.1.9 of
this Lease, with its 


 


9

















 


failure to do so being
treated as a holdover under Section 6.1.9. 
From and after the Effective Contraction Date, the Contraction Space
shall no longer be included in the Premises and shall be deemed deleted from
this Lease.


 


2.5                                 Right
of First Offer.  A.  During the Term of this Lease, Tenant shall
have an ongoing right of first offer to lease the ROFO Space (hereinafter
defined) as it becomes available for lease after the Date of this Lease, subject
to the terms and conditions contained below.


 


B.                                     “ROFO
Space” shall mean all tenant space in the Building.  Tenant’s rights shall be subject to all
rights of E-Dialog to lease such space, as identified in Exhibit I
attached hereto, whether by expansion, extension, rights of first offer, or
otherwise, but shall be superior to all other tenant’s rights (without limiting
the foregoing, Landlord acknowledges that Tenant’s superior rights hereunder
apply with respect to space for which a lease is expiring, whether or not
Landlord and such tenant desire to extend that tenant’s lease of such
space).  With respect to space that is
vacant and not subject to a lease as of the Date of this Lease, as shown on Exhibit I
attached hereto. Tenant’s rights under this Section 2.5 shall arise only
after the expiration of any lease for such space entered into after the Date of
this Lease.


 


C.                                     If
any ROFO Space becomes available to lease during the Term of this Lease and
Landlord desires to market such ROFO Space, then prior to marketing such space,
Landlord shall first notify Tenant in writing of the opportunity to lease such
ROFO Space, on the condition that (i) Tenant has not subleased as of the
date of Landlord’s notification more than 10% of the Premises and the Building
75 Premises in the aggregate , (ii) Tenant has not previously been in
default of its monetary obligations under this Lease beyond the expiration of
all applicable grace and cure periods hereunder during the 5-year period
preceding the time any ROFO Space becomes available, (iii) Tenant had not
previously exercised the Contraction Right, and (iv) Tenant confirms that,
during the immediately preceding fiscal year of Tenant prior to the date of
Landlord’s notification pursuant to this paragraph, Tenant has had a net
income, adjusted for the impairment of goodwill, as shown on Tenant’s
Consolidated Statement of Operations in its audited annual report (proof of
which shall be provided to Landlord as set forth in the next paragraph below).


 


D.                                    Within
fifteen (15) days after Landlord’s written notification, Tenant shall provide
written notice to Landlord indicating whether it is interested in the
possibility of leasing such ROFO Space, including its most recent annual
reports, or if Tenant is no longer a publicly traded company, an audited
statement reporting satisfaction of the requirement of clause (iv) of
Paragraph C above.  If Tenant timely so
indicates its interest in the offered space, and satisfies the condition
precedent set forth in subparagraph (C), then Landlord shall notify Tenant in
writing (“Landlord’s Offer Notice”) specifying all material terms on which
Landlord intends to offer to lease the ROFO Space to the general market except
that the term of the ROFO Space will be coterminous with the then remaining
portion of the Term of this Lease. 
Landlord’s offer notice shall identify the ROFO Space and the terms of
the offer in reasonable detail and shall include Landlord’s determination of
the market rate for the ROFO Space. 
Tenant shall within fifteen (15) days after the date of Landlord’s Offer
Notice either accept or decline such offer in writing, with Tenant’s failure to
respond within such fifteen (15) day period being deemed to be an election to
decline the offer.


 


E.                                      
If Tenant has declined Landlord’s offer or is deemed to have declined, then
Landlord shall be free to offer the subject ROFO Space to the general
market.  However, if Tenant has declined
or is deemed to have declined the offer, Landlord shall deliver a new Landlord’s
Offer Notice prior to entering into a lease for any such ROFO Space that
provides for an effective rent that is 95% or less than the effective rent
specified in the initial Landlord’s Offer Notice for the ROFO Space, or is
otherwise on terms materially more favorable to the prospective tenant than the
terms contained in Landlord’s Offer Notice. 
If Landlord has not entered into a lease for the ROFO Space within 180
days after the date of Tenant’s decline or deemed decline of the offer, then
Tenant’s rights under this Section 2.5 shall again apply with respect to
such ROFO Space.


 


F.                                      If
Tenant timely elects to lease such ROFO Space, then the space shall, without
further action by the parties, be leased by Tenant on the terms and conditions
set forth in the Landlord’s Offer Notice, and otherwise on all of the other
terms and conditions of the Lease, and the parties shall memorialize such facts
with a lease amendment.


 


G.                                     If
there are fewer than 36 months remaining in the Term at the time of any
Landlord’s Offer Notice, Landlord shall have the option to require Tenant to
concurrently exercise its next Extension Option if Tenant intends to accept the
ROFO Space. In such event, Landlord’s Offer Notice will specify the terms on
which Landlord intends to lease the ROFO Space during the remainder of the
Term, but will also stipulate that the term for the ROFO Space will be extended
by the applicable 5-year Extended Term, and will include Landlord’s
determination of the Fair Market Rate (as defined in Section 2.3) for the
entire Premises, as enlarged by the ROFO Space, during the applicable Extended
Term.  The Annual Fixed Rent Rate for the
entire Premises, including the ROFO Space, during the applicable Extended Term
will be determined in the same manner as set forth in Section 2.3 (B) for
determining the Annual Fixed Rent Rate during an Extended Term.  Tenant shall, within thirty (30) days
following receipt of Landlord’s Offer Notice, in writing, either (i) accept
such offer, including exercising the First Extension Option at the rental rate
stated in Landlord’s Offer Notice, or (ii) decline the offer in its
entirety.  It is expressly understood
that Tenant shall have no right to arbitrate Landlord’s determination of the
Fair Market Rate stipulated in the Landlord’s Offer Notice, and Paragraphs (D) and
(E) of Section 2.3 shall have no force or effect with respect to this
Section 2.5.  If there are fewer
than 36 months remaining in the Term and Tenant has no remaining Extension
Option, then Tenant shall have no further rights to any ROFO Space under this Section 2.5.


 


10

















 


ARTICLE 3


Improvements


 


3.1                                 Base
Building Work; Tenant Improvement Work. 
A.  Landlord shall, at its
sole cost, cause to be performed the work to demise the Second Floor Premises,
and Wing B on the first floor and Wing A on the first floor, substantially as
shown on the Schematic Design Plans attached hereto, and to 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, with reasonable upgrades to the demising work
to be compatible with existing conditions, in Landlord’s discretion.


 


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 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 and the
so-called “attic stock” elsewhere within the Building.  An inventory of such equipment is attached
hereto as Exhibit J.  Tenant shall
advise Landlord on or before November 24, 2009 which items listed in the
attached inventory Tenant desires, and all other inventory items not selected
by Tenant shall be removed from the Premises prior to delivery of the Premises
to Tenant.  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 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
tenant improvement work and the plans for both the Premises and the Building 75
Premises together as one integrated tenant improvement project, with the
exception of Sections 3.8 and 3.9 where the 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) special 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, 


 


11

















 


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, and with
any reasonable expenditures for the completion of the Base Building Work
(estimated costs being $42,000.00 for demising and $50,000.00 for
sub-metering), to be reimbursed by Landlord within 30 days after Tenant’s
request therefor 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 Initial Premises 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 specifications
sufficient to permit and construct the TIW, including the electrical upgrade
work and the Cooling Plant and construction control affidavits (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 date 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;


 


12
















 


(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 75
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 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 and
Tenant have entered into the Construction Escrow Agreement to ensure that funds
will be available to pay for the TIW and Connector Bridge.  Within 21 days after the full execution of
this Lease, Landlord shall fund $2,379,970.00 (i.e., TI Allowance) plus $1.6M
for Connector Bridge 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.


 


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                                 Tenant’s
Upgrade Work.  Included as part
of the TIW, Landlord, through the General Contractor, shall cause to be
performed the work required by Tenant to upgrade the electrical capacity at the
Premises and increase the cooling capacity at the Premises subject to Landlord’s
prior written approval of the work to be performed and the plans and
specifications therefor, which approval in either case shall not be
unreasonably withheld or delayed; provided, however, that it shall be
reasonable for Landlord to withhold its consent or require certain conditions
to be satisfied if Tenant’s proposed work (A) is reasonably likely to
diminish the electrical supply capacity or the cooling supply capacity of the
Central Utility Plant available to other tenants at the Park; (B) does not
conform with the aesthetic design of the Park, (C) is reasonably likely to
adversely affect the structural integrity of the Building, (D) would
require special permits, including an emissions discharge permit, or approvals
from the Town of Burlington (excluding site plan approval), (E) is
reasonably likely to cause electrical interference with other tenant’s uses in
the Park or (F) might require noise attenuation or visual screening.


 


3.6                                 Cooling
Plant.  Also
included in the TIW, Landlord, through the General Contractor, shall cause to
be performed the work to install a cooling plant, which shall include chillers,
condensers, and cooling towers 


 


13

















 


(collectively, the
“Cooling Plant”), to serve the Premises located on a pad site between the
Building and Building 75, subject to Landlord’s approval regarding type,
number, size, location, noise attenuation measures, visual screening, and the
manner of installation, and in conformance with all requirements of the Town of
Burlington, including site plan modification and approval.  Tenant shall at its expense, install a
separate meter to measure water and electricity consumption.


 


3.7                                 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.


 


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


 


3.9                                 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.


 


3.10                           Connector
Bridge.A. Landlord agrees to cause to be constructed, at Landlord’s
sole cost and expense, a connector bridge (the “Connector Bridge”) to connect
the Building to Building 75, similar in quality, design and scope as the
existing bridge between the Building and Building 55.  Structural Systems
will work with General Contractor to perform the structural steel work in a
design/build manner.  Landlord shall
cause the General Contractor to obtain competitive bids for the “main
components” of the Connector Bridge work and shall accept the lowest qualified
bid unless Tenant agrees otherwise.  The “main
components” of the Connector Bridge work are: structural steel, metal deck,
steel erection, glazing, metal panel, HVAC (if any), paint, roofing, electric,
ceilings, flooring, fire protection, plumbing, drywall, excavation, and
concrete work.  Landlord shall use
diligent efforts to complete the Connector Bridge by the Commencement Date,
subject to Force Majeure, Tenant Delays, and any delays in obtaining necessary
permits and approvals from the Town of Burlington, including site plan review
and approval.  Once the Connector Bridge
is completed as evidenced by a Certificate of Occupancy (which may be
temporary), an annual charge-off of the amortized cost thereof (on a level payment
basis over a 25 year period in accordance with generally accepted accounting
principles, together with interest on the unamortized balance at the rate of 8%
per year) shall be paid by Tenant to Landlord, as Additional Rent, in monthly
installments during the Term, and any Extended Term, that falls within the
amortization period; provided such annual charge-off shall apply only with
respect to Landlord’s actual, reasonable, out-of-pocket costs, fees and
expenses in constructing the Connector Bridge, and if such actual, reasonable,
out-of-pocket costs, fees and expenses exceed the principal amount of $1.6
million in the aggregate, the annual charge-off shall nevertheless be based
upon a $1.6 million principal amount. 
The annual charge-off is in addition to and independent of the Fixed
Rent payable during the Term and shall not be included in determination of the
Fair Market Rent during any Extended Term, it being understood that the monthly
amortization amount will be payable in addition to the Fixed Rent payable by
Tenant 


 


14

















 


during the Term.


 


B.                                             If
Landlord has not Substantially Completed construction of the Bridge by the date
(“the “Outside Bridge Date”) that is thirty (30) days after the later of (i) the
Commencement Date and (ii) the date Tenant opens for business in the
Premises, then Tenant shall be entitled to a reduction in the Fixed Rent coming
due under this Lease as of the Initial Premises Rent Commencement Date on a
day-for-day basis until the Connector Bridge is Substantially Completed:


 


	
  (i)

  	
  The
  Fixed Rent shall be
  reduced by $2,000.00 per day beginning on 31st day following the Outside Bridge Date and
  continuing until the earlier to occur of the date the Connector Bridge is
  Substantially Completed and the 60th day following the Outside Bridge Date;

  
	
   

  	
   

  
	
  (ii)

  	
  If
  the Connector Bridge is still not Substantially Completed on the 60th day following the Outside Bridge Date, then
  the Fixed Rent shall be reduced by $4,000.00 per day beginning on the
  sixty-first (61st) day following the Outside Bridge Date and ending on the
  earlier to occur of Substantial Completion and the 90th day following the Outside Bridge Date; and

  
	
   

  	
   

  
	
  (iii)

  	
  Beginning on the 91st day following
  the Outside Bridge Date, the Fixed Rent shall no longer be subject to a daily
  reduction, it being understood that Tenant will be obligated to pay the Fixed
  Rent at the full rate set forth in Section 1.1 of this Lease.  The reduction, if any, in the Fixed Rent
  under this Section 3.10.B will be credited on a day-for-day basis
  against the Fixed Rent coming due each month beginning on the Initial
  Premises Rent Commencement Date.

  



 


C.                                     If
Landlord still 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
Premises, then Tenant shall be permitted to complete construction of the
Connector Bridge utilizing the funds allocated to the Connector Bridge under
the Construction Escrow Agreement, using the General Contractor and in
accordance with Landlord’s plans and specifications therefor and in compliance
with all requirements of the Town of Burlington and otherwise in accordance
with applicable laws. If Tenant incurs reasonable costs (excluding construction
overtime costs and upgrades) in performing the work in excess of the principle
$1.6 Million construction cost of the Connector Bridge, then Tenant shall have
the right to offset against payments of Fixed Rent coming due as of the Initial
Premises Rent Commencement Date (i) the excess direct costs of the work
and, (ii) up to $50,000 in total of any actual, reasonable, third-party
out-of-pocket costs incurred by Tenant to complete construction of the
Connector Bridge; provided, however, the amount of each such monthly offset
shall not exceed fifty (50%) percent of the monthly installment of Fixed Rent
then payable, as stipulated in Section 1.1.  If Tenant elects to exercise self-help under
this Section 3.8, then Tenant may not avail itself of any other remedy at
law, in equity or pursuant to any other provision of this Lease.


 


3.11                           Connector
Road.  Landlord shall, at its
expense, cause a road to be constructed to provide a connection from the Park
to North Avenue at Northwest Park (substantially as shown on the design plan
for the road attached hereto as Exhibit L) by June 30, 2010, subject
to Force Majeure and delays in obtaining permits and other required approvals
from the Town of Burlington.


 


ARTICLE 4


Rent


 


4.1                                 The
Fixed Rent.  Commencing as of the
Initial Premises 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
Initial Premises 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 


 


15

















 


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).  The Base Taxes shall be
reasonably extrapolated to reflect full assessment of the Building by the Town
of Burlington, using the tax valuation of the building at 55 Network Drive as a
model.


 


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 building
known as 55 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 


 


16

















 


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.


 


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 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, other tenants of the Building 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, including material
and equipment costs, for cleaning and janitorial services to the Building
(including window cleaning of the Building); 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 Building Common Areas and the
Property (exclusive of amounts reimbursable to Landlord as a result of direct
billing to any tenant of the Building and excluding charges for electricity for
lights and plugs to unleased or vacant tenant space in the Building); 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); attorneys 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).  In addition to
the foregoing, Tenant shall pay to Landlord, through Operating Costs, 100% of
all 


 


17

















 


charges for electricity and chilled water furnished by
the Building systems to the Connector Bridge, as measured by sub-meter or
reasonably estimated by Landlord.


 


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;


 


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, 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;


 


18

















 


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 the 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;


 


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, control other buildings in the Park) rights regarding capital
expenditures that are more favorable in such regard than this provision is for
Tenant.


 


If during any portion of any year for which Operating
Costs are being computed, the Building was not fully occupied by tenants or if
not all of such tenants were paying fixed rent 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 and all such tenants
were then paying fixed rent 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 Operating Costs for such year.  Similarly, if during calendar year 2010, the
Building was not fully occupied, then Base Operating Costs shall be comparably “grossed
up” to reflect the Operating Costs that would have been incurred had the
Building been fully occupied.


 


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 

  



 


19

















 


	
   

  	
  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 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, 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.


 


20

















 


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 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 


 


21

















 


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 $170,477.00;


 


(ii)                                  at the end of the 3rd
Lease Year, by $170,477.00; and


 


(iii)                               at the end of the 5th
Lease Year, by $170,477.00.


 


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 $170,477.00 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 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 $511,431.00.  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 will be included in Operating Costs
pursuant to Section 4.2.3 and paid for by Tenant pursuant to said Section 4.2.3.  Heat and air-conditioning 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.  In addition,
Tenant shall be able to utilize up to 200 tons of process cooling capacity for
its labs in Wing B on the 1st Floor, which will be separately sub-metered
and paid for by Tenant pursuant to the provisions of Section 4.2.5.


 


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.  Landlord will provide Tenant with 1,300 KVA
of electricity for normal office use from the house system for the Building,
and any electrical needs of Tenant above the foregoing capacity will be
satisfied by Tenant’s electrical service upgrade work, pursuant to Section 3.5
of this Lease.  If at any time after such
initial electrical upgrade work, (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 


 


22

















 


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 1,400 kw (1,750 KVA) standby generator (the “Building Generator”).  As of the Date of this Lease, the Building
Generator has available capacity for non-exclusive use by tenants of the
Building.  Tenant shall be permitted to
use up to 725 KVA of the available capacity for Tenant’s “special needs”
areas.  If Tenant requires additional
generator capacity above what is stated in this Section 5.1.2.1, Tenant
will be required to make its own arrangements to accommodate Tenant’s
needs.  Tenant acknowledges and agrees
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.


 


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 common
areas, facilities and plumbing, electrical, heating, ventilating and
air-conditioning systems of the Building and 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.


 


23
















 


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 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 excluded are 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 Premises but within 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 


 


24

















 


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.


 


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. Additionally, Tenant shall maintain
the Cooling Plant and keep it in good condition and repair throughout the
Term.  (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 


 


25

















 


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 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 of such alterations 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 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, 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 


 


26

















 


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 Building and 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 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 has 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 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 


 


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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.


 


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, 2.4, 2.5 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 75 Lease, together and in their
entirety, to a single assignee.


 


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.”


 


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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 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 


 


29

















 


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 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.  For so
long as Tenant is the largest or second largest tenant in the Building
(determined by the Rentable Floor Area of the Premises, from time to time)
Tenant shall have the right to install an identification sign on the exterior
façade of the Building,  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 


 


30

















 


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.  If Landlord elects to terminate this Lease,
it shall also terminate the leases of all other similarly situated tenants of
the Building.  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 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 


 


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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.


 


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.  


 


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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 such subordination or priority. 
Tenant agrees that any future SNDA that is similar in all materially
respects to the form of SNDA attached as Exhibit M 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 


 


33

















 


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.  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 systems serving any portion of the
Building other than the Premises. 
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 


 


34

















 


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.


 


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


 


 


	
   

  	
  Landlord:

  
	
   

  	
  NETVIEW 5 AND 6 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

  



 


35
















 


EXHIBIT A


 


PLAN SHOWING THE PREMISES


 


(Graphics Omitted)


 


36

















 


EXHIBIT A-1


 


PLAN SHOWING THE PARK


 


(Graphic Omitted)


 


37

















 


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 Periods must be exercised:


 


a.               First Option:                                


 


b.              Second Option:                              


 


5.               The date by
which the Contraction Option must be exercised: 
                                  .


 


Executed under seal this                   
day of                                             .


 


	
   

  	
  Landlord:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Print
  Name:

  
	
   

  	
  Print
  Title

  
	
   

  	
   

  
	
   

  	
  Tenant:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Print
  Name:

  
	
   

  	
  Print
  Title:

  
				



 


38

















 


EXHIBIT C


 


SCHEMATIC
DESIGN PLAN


 


(Graphic Omitted)


 


39

















 


EXHIBIT D


 


WORK CHANGE ORDER FORM


 


	
  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 such amount into
the construction escrow account.


 


	
  Tenant:

  	
   

  	
  Landlord:

  
	
   

  	
   

  	
   

  
	
  By:  

  	
   

  	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title: 

  	
   

  	
   

  	
  Title: 

  	
   

  



 


40
















 


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 premises 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 or
  in any other area of the Building, 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
  bicycles, or vehicles of any kind shall be brought into or kept in or about
  the Premises.  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 Park 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 or proper for its best interest and for the best
  interest of the tenants and no alteration or waiver of any rule or
  regulation in favor of one tenant shall operate as an alteration or waiver in
  favor of any other tenant, provided such rules and regulations do not
  diminish Tenant’s rights under the Lease. 
  Landlord shall not be responsible to any tenant for the nonobservance
  or violation by any other tenant however resulting of any rules or regulations
  at any time prescribed for the Building, but Landlord shall enforce the
  rules and regulations in a non-discriminatory manner.

  
	
   

  	
   

  
	
  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.

  



 


41

















 


	
  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.

  
	
   

  	
   

  
	
  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 Premises or 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.

  



 


42

















 


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.


 


43

















 


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

  



 


44
















 


EXHIBIT G


 


FORM OF NOTICE OF LEASE


 


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 5 and 6 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:


 


A portion of the entire
building located at 65 Network Drive, Burlington, Middlesex County,
Massachusetts, said entire building being located on the land described on Exhibit A
attached hereto and made a part hereof.


 


The portion of the
building thereof comprising the Leased Premises is described on Exhibit B
attached hereto and made a part hereof.


 


Terms of Lease, Rights of
Extension and Other Lease Matters are set forth on Exhibit C
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.


 


45

















 


	
  LESSOR:

  	
   

  	
  LESSEE:

  
	
   

  	
   

  	
   

  
	
  NETVIEW 5 AND 6 LLC,

  	
   

  	
  AVID TECHNOLOGY, INC.

  
	
  a Delaware limited
  liability company

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  By:

  	
  NETVIEW INVESTMENTS LLC,

  	
   

  	
  Name:

  	
   

  
	
  a Delaware limited
  liability company, 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                           
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 5 and 6 LLC.


 


	
   

  	
   

  
	
   

  	
  Signature and seal of
  notary

  
	
   

  	
  My commission expires:

  



 


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                                   
of Avid Technology, Inc., a Delaware Corporation.


 


	
   

  	
   

  
	
   

  	
  Signature and seal of
  notary

  
	
   

  	
  My commission expires:

  



 


46
















 


EXHIBIT A


to


NOTICE OF
LEASE


 


The four-story building
in Burlington Massachusetts, located on the parcel of land identified as Lot 6
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 65 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”).


 


47

















 


EXHIBIT B


to


NOTICE OF
LEASE


 


A certain portion (the “Leased
Premises”) of the entire Premises described on Exhibit A, said Leased
Premises consisting of the following: 
the entirety of Wing B of the first floor, a portion of Wing A of the
first floor and the entirety of the second floor of the building comprising
approximately 72,953 rentable square feet.


 


48

















 


EXHIBIT C


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:


 


Certain rights of first
offer relating to the tenant space in the Building during the term of the
Lease, as set forth in the Lease.


 


Tenant maintains a
contraction option for the entirety of Wing A of the 2nd floor or Wing A
of the first floor of the Leased premises that can be exercised at the end of
the 6th Lease Year with an effective termination date
at the end of the 7th Lease Year.


 


There are no options to
purchase contained in the Lease.


 


49
















 


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

  



 


50

















 


EXHIBIT I


 


SUMMARY OF E-DIALOG EXPANSION RIGHTS


 


AND


 


LIST OF UNLEASED SPACE


 


E-Dialog’s Expansion
Rights and ROFO Rights


 


1.                                       Expansion Space:
e-Dialog has an option to expand into 50% of Wing A on the 3rd floor of 65
Network Drive, exercisable any time prior to the expiration of its 1st lease
year (6/30/10).


2.                                       Additional
Expansion Space: e-Dialog has an additional expansion option exercisable at any
time prior to the end of its 2nd lease year (6/30/2011), to lease either the
balance of Wing A on the third floor or the entire Wing B on the third floor
provided the space is then available for lease.


3.                                       ROFO — e-Dialog
has an ongoing Right of First Offer, during its initial lease term, on the 50%
of Wing A on the third floor or the entire Wing B on the third floor after
initial lease up of such space.


 


Space that is vacant and
not subject to lease as of the Date of this Lease:


 


First Floor — The portion
of Wing A not leased to Avid.


 


The entire Third Floor of
the Building.


 


51

















 


EXHIBIT J


 


INVENTORY OF EXISTING
EQUIPMENT AND MATERIALS


 


	
  1.

  	
  HVAC

  
	
   

  
	
  Liebert
  Evaporator section - 22 TONS

  
	
  Carrier
  Condenser section - 20 TONS

  
	
  3
  x 5 ton Liebert units

  
	
  2
  x 3 ton Liebert units

  
	
  1
  x Nordyne AHU & Condensing unit

  
	
  1
  x Fan Powered box

  
	
  1
  x Powerex air compressor

  
	
  1
  x Prevac air compressor

  
	
  2
  x hotwater reheat coils

  
	
  27
  x Enviro-Tec fan powered boxes

  
	
  10
  x Airtherm fan coil units

  
	
  8
  x Liebert mini mates

  
	
   

  
	
  2.

  	
  LIGHTING
  FIXTURES

  
	
   

  	
   

  
	
  27

  	
  In
  boxes 8’ Corelite pendant fixtures.

  
	
  32

  	
  Used
  8’ Corelite pendant fixtures

  
	
  92

  	
  Used
  4’ Corelite pendant fixtures

  
	
  40

  	
  In
  boxes 12’ Corelite pendant fixtures

  
	
  4

  	
  Used
  12’ Corelite pendant fixtures

  
	
  39

  	
  Corelite
  pendant fixture end plates

  
	
  55

  	
  4’
  Finelite Inc. pendant fixtures

  
	
  7

  	
  12’
  Finelite Inc. pendant fixtures

  
	
  2

  	
  8’
  Finelite Inc. pendant fixtures

  
	
  111

  	
  1x4
  12 cell parabolic/Cooper Lighting

  
	
  150

  	
  2x4
  18 cell parabolic (3T8 lamps) Cooper

  
	
  5

  	
  Lumark/Cooper
  Lighting 1000watt flood

  
	
  20

  	
  Cooper
  Lighting-4” fl. rough-in

  
	
  39

  	
  Used
  Cooper Lighting-4” fl. rough-in

  
	
  44

  	
  Cooper
  Lighting-Halo trim 4”

  
	
  26

  	
  Cooper
  Lighting-recessed rough-ins

  
	
  54

  	
  Used
  same as above H800277

  
	
  30

  	
  Cooper
  Lighting/Trims

  
	
  32

  	
  Used
  Halo 6” recessed rough-ins

  
	
  7

  	
  Cooper
  Lighting 120v 6” recessed adjustable incandescent housing

  
	
  53

  	
  277v
  to 120v 150va transformers

  
	
  4

  	
  Metalux
  Cat # ESH6 edge-lit exit housing

  
	
  5

  	
  Metalux
  Cat # ES61WHRC glass edge-lit exit signs

  
	
  18

  	
  Sure-Lites/SLX60
  RWH exit signs-Used

  
	
  48

  	
  Used Halo/incandescent 6” recess rough-ins

  



 


52

















 


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


 


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


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


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


4.                                      Clean
and sanitize entrance of grime and handprints.


5.                                      Clean
and polish all mirrors and glass.


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


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


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


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


10.                                Wipe
down baseboard after washing floor.


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


12.                                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.


 


53

















 


EXHIBIT L


 


DESIGN PLAN FOR CONNECTOR
ROAD


 


(Graphic Omitted)


 


54
















 


EXHIBIT M


 


FORM OF
SUBORDINATION, NON-DISTURBANCE 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 5 AND 6 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 One Hundred Fifty Two Million Three
Hundred Seventeen Thousand and no/100 Dollars ($152,317,000) (“Loan”) secured
by, among other things:


 


(i)                                     (a) a
Mortgage, Security Agreement and Fixture Filing, dated as of June 27,
2007, executed by NetView Investments LLC, a Delaware limited liability company
(“Original Mortgagor”) in favor of the Agent, recorded with the Middlesex
County (South District) Registry of Deeds on June 28, 2007 in Book 49683
at Page 110, and filed with the Registry District as Document No. 1447374
(the “Original Mortgage”),


 


(b) Subsequently, the Property was conveyed by the Original
Mortgagor to the Landlord by Deed dated June 27, 2007 and recorded with
the Middlesex County (South District) Registry of Deeds in Book 49683, Page 229
and filed with the Registry District as Document No. 1447378 (the “Conveyance
Deed”);


 


(c) Subsequently, the Borrower assumed the obligations under the
Loan pursuant to an Assumption Agreement, dated as of June 27, 2007, by
and among Landlord, Original Mortgagor and Mortgagee, recorded with the
Middlesex County (South District) Registry of Deeds at Book 49683, Page 246
and filed with the Registry District as Document No. 1447380 (the “Assumption
Agreement”); and


 


(d) Subsequently, the Original Mortgage was amended pursuant to a
First Amendment to Mortgage, Security Agreement and Fixture Filing, dated July 23,
2008 and recorded with the Middlesex County (South District) Registry of Deeds
in Book 51482, Page 49 and filed with the Registry District as Document No. 2008-00122283
(the Original Mortgage, as assumed and amended is referred to as the “Mortgage”)
given by Borrower to Agent covering property located in the County of
Middlesex, State of Massachusetts and which is further described in Exhibit A
attached hereto (“Property”).


 


(ii)                                  (a) an
Assignment of Leases and Rents, dated June 27, 2007, executed by Original
Mortgagor in favor of the Agent, recorded in the Middlesex County (South
District) Registry of Deeds on June 28, 2007 in Book 49683 at Page 147,
and filed with the Registry District as Document No. 1447375 (the “Original
Assignment”);


 


(b) Subsequently, the Property was conveyed pursuant to the
Conveyance Deed;


 


(c) Subsequently, the Borrower assumed the obligations under the
Loan pursuant to the Assumption Agreement; and


 


(d) Subsequently, the Original Assignment was amended pursuant to
a First Amendment to Assignment of Leases and Rents, dated July 23, 2008 and
recorded with the Middlesex County (South District) Registry of Deeds at Book
51482, Page 60 and filed with the Registry District as Document No. 2008-00122284
(the Original Assignment, as assumed and amended, is referred to as the “Assignment”)
from Borrower with respect to the Property.


 


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.


 


55

















 


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; provided, however, Agent’s
obligations under the Lease and under the Construction Escrow Agreement shall
be limited to obligations related to TIW (as such term is defined in the Lease)
and, in connection therewith, Agent’s obligations are further limited to the
amount allocated to, and available under, the Loan for TIW for the Premises
that has not already been advanced. 
Tenant and Borrower confirm and agree, upon succeeding to the interest
of Borrower as Landlord under the Lease, Agent’s obligations under the Lease
and under the Construction Escrow Agreement specifically exclude any
obligations relating to the Base Building Work, the Connector Bridge and any
other Landlord’s Work (as such terms are defined under the Lease).  Agent acknowledges that Tenant has self-help
rights under the Lease relating to Landlord’s Work and the Connector Bridge, as
described in Section 6 hereof; the right to draw funds for completion of
Landlord’s Work and the Connector Bridge pursuant to the Construction Escrow
Agreement; and a right of offset against rent under Section 3.10(C) of
the Lease with respect to certain costs of completing the Connector Bridge; 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 


 


56

















 


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 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) Sections 3.10(B) and
3.10(C) of the Lease in connection with the Connector Bridge (as such term
is defined in the Lease) and (ii) Sections 3.2(A) and 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)

  



 


57

















 


	
  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.


 


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).]


 


58

















 


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 5 AND 6
  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:

  	
  Nordblom
  Development Company, Inc.,

  
	
   

  	
   

  	
   

  	
   

  	
  a Massachusetts
  corporation, its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


[Acknowledgements
on Following Page(s)]


 


59
















 


STATE OF RHODE
ISLAND


 


COUNTY OF
PROVIDENCE


 


On the       day of February, 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 0
photographic identification with signature issued by a federal or state
governmental agency, or 0 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:

  	
   

  
	
   

  	
  My Commission Expires:

  



 


 


[Acknowledgements
continue on Following Page]


 


60

















 


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 0
photographic identification with signature issued by a federal or state
governmental agency, or 0 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:

  	
   

  
	
   

  	
  My Commission Expires:

  



 


61
















 


EXHIBIT
A


 


Tract 1
(Unregistered Land)


 


That certain
parcel of land located in Burlington, County of Middlesex, Commonwealth of
Massachusetts, being Lot 6 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, BUT EXCLUDING those certain
three parcels of registered land shown as Lots 18, 19 and 20 thereon and upon
Land Court Plan No. 29283D, which three parcels are included with Tract 3
as described below.


 


Said Lot 6 is
particularly shown on Drawing Number C-4, Sheet 4 of 7 (entitled “Lotting Plan”)
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.


 


Tract 2
(Unregistered Land)


 


That certain
parcel of land situated east of Route 3 in the Town of Bedford, County of
Middlesex, Commonwealth of Massachusetts, being shown as the “Bedford” parcel
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, being bounded and described as follows:


 


Beginning at a
stone bound at the intersection of the easterly sideline of Route 3 and the
Bedford Town Line, being the southeast corner of the parcel hereinafter
described; thence


 


N 36° 48’26” W a
distance of eight hundred fifty six and twenty six hundredths feet (856.26’) by
said sideline to a point; thence


 


N 04° 15’37” E a
distance of one hundred twelve and seventy one hundredths feet (112.71’) by
said land now or formerly of Quincy Campanelli, L.L.C. to a point; thence


 


N 03° 39’10” E a
distance of eighty three and thirty two hundredths feet (83.32’) by said land
now or formerly of Quincy Campanelli, L.L.C. to a point; thence


 


N 16° 04’33” E a
distance of one hundred ninety one and forty two hundredths feet (191.42’) by
said land now or formerly of Quincy Campanelli, L.L.C. to a point; thence


 


N 15° 50’14” E a
distance of three hundred eighty one and forty five hundredths feet (381.45’)
by said land now or formerly of Quincy Campanelli, L.L.C. to a point; thence


 


S 78° 16’20” E a
distance of two hundred fourteen and seven hundredths feet (214.07’) by said
land now or formerly of Walford Company to a point; thence


 


S 70° 39’40” E a
distance of two hundred fifty one and ninety three hundredths feet (251.93’) by
Lot 22 of Land Court  29283D to a point;
thence


 


S 14° 25’01” W a
distance of one hundred twenty three and no hundredths feet (123.00’) by Lot 23
of Land Court 29283D to a point; thence


 


S 65° 34’30” E a
distance of one hundred seventy nine and seventy eight hundredths feet (179.78’)
by Lot 23 of Land Court  29283D to a
point; thence


 


S 75° 34’59” E a
distance of one hundred ninety six and no hundredths feet (196.00’) by Lot 23
of Land Court  29283D to a point; thence


 


Southwesterly a
distance of approximately one thousand one hundred forty six feet (1146’+/-) by
the Bedford Town Line to the point of beginning


 


Said parcel
containing seven hundred sixty one thousand one hundred fifteen square feet of
land, more or less (761,115+/- S.F.).


 


62

















 


BUT EXCLUDING
those certain five parcels of registered land shown as Lots 15, 16, 17, 25 and
26 thereon and upon Land Court Plan No. 29283D, which five parcels are
included with Tract 3 as described below.


 


Said “Bedford”
parcel is particularly shown on Drawing Number C-4, Sheet 4 of 7 (entitled “Lotting
Plan”) 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.


 


Tract 3
(Registered Land)


 


Those certain
parcels of land situated partially in Bedford and partially in Burlington in
the County of Middlesex and said Commonwealth:


 


Being lots
numbered as follows:


 


Lots 15 and
26, Sheet 1, as shown on plan hereinafter mentioned;


 


Lots 16 and
25, Sheet 2, on said plan; and


 


Lots 17, 18
and 19, Sheet 3, on said plan.


 


Also another
certain parcel of land, situated in said Burlington, bounded and described as
follows:


 


Northeasterly
by land now or formerly of Warrenton Corporation, about sixty-eight feet;


 


Southwesterly
by Vine Brook; and


 


Northwesterly
by Lot 24 as shown on said plan hereinafter mentioned, fifty-five and 20/100
feet.


 


Said parcel is
shown as Lot 20, Sheet 4, on said plan.


 


All of said
boundaries, except the line of Vine Brook, are determined, by the Land Court to
be located as shown on a subdivision plan, as approved by the Court filed in
the Land Registration Office as Land Court Plan No. 29283D, a copy of
which is filed in the Registry of Deeds for the South Registry District of
Middlesex County in Registration Book 718, Page 26, with Certificate
117576.


 


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.


 


63