NORTHWEST PARK LEASE BY AND BETWEEN AND AVID TECHNOLOGY, INC. 10 NORTH AVENUE AT NORTHWEST PARK BURLINGTON, MASSACHUSETTS

EXHIBIT 10.3

NORTHWEST PARK

LEASE

BY AND BETWEEN

N.W. BUILDING 28 TRUST

AND

AVID TECHNOLOGY, INC.
00 XXXXX XXXXXX

XX XXXXXXXXX XXXX

XXXXXXXXXX, XXXXXXXXXXXXX

TABLE OF CONTENTS

TABLE OF CONTENTS		1
ARTICLE 1 REFERENCE DATA		3
1.1	SUBJECT REFERRED TO	3
1.2	EXHIBITS	5
ARTICLE 2 PREMISES AND TERM		6
2.1	PREMISES	6
2.2	TERM	6
2.2.1	Condition Precedent	6
2.3	EXTENSION OPTION	7
2.4	TERMINATION OPTION	8
ARTICLE 3 IMPROVEMENTS		8
3.1	BASE BUILDING CONDITION; TENANT IMPROVEMENT WORK	8
3.2	LATE DELIVERY	9
3.3	PLANS AND SPECIFICATIONS	9
3.4	COST OF TIW; TENANT’S SHARE	10
3.5	WORK CHANGE ORDERS	10
3.6	ACCEPTANCE OF THE PREMISES	11
3.7	PRE-COMMENCEMENT ENTRY	11
ARTICLE 4 RENT		11
4.1	THE FIXED RENT	11
4.2	ADDITIONAL RENT	12
4.2.1	Real Estate Taxes	12
4.2.2	Personal Property Taxes	13
4.2.3	Operating Costs	13
4.2.4	Insurance	15
4.2.5	Utilities	16
4.3	LATE PAYMENT OF RENT	16
4.4	LETTER OF CREDIT	16
4.4.1	Amount of Letter of Credit	16
4.4.2	Renewal of Letter of Credit	16
4.4.3	Draws to Cure Defaults	16
4.4.4	Draws to Pay Damages	16
4.4.5	Issuing Bank	17
4.4.6	Draws for Failure to Deliver Substitute Letter of Credit	17
4.4.7	Transferability	17
4.4.8	Return of Letter of Credit at End of Term	17
4.4.9	Reduction in Letter of Credit Amount	17
ARTICLE 5 LANDLORD’S COVENANTS		17
5.1	AFFIRMATIVE COVENANTS	17
5.1.1	Heat and Air-Conditioning	17
5.1.2	Electricity	17
5.1.3	Water	18
5.1.4	Fire Alarm	18
5.1.5	Repairs	18
5.2	INTERRUPTION	18
5.3	TENANT’S SECURITY; OUTSIDE SERVICES; SNOW REMOVAL	18
5.4	ACCESS	18
5.5	ENVIRONMENTAL	18
5.6	INSURANCE	19
5.7	REPRESENTATIONS	19
5.8	INDEMNIFICATION	19
ARTICLE 6 TENANT’S ADDITIONAL COVENANTS		19
6.1	AFFIRMATIVE COVENANTS	19
6.1.1	Perform Obligations	19
6.1.2	Use	19
6.1.3	Repair and Maintenance	19
6.1.4	Compliance with Law	20
6.1.5	Indemnification	20
6.1.6	Landlord’s Right to Enter	20
6.1.7	Personal Property at Tenant’s Risk	20
6.1.8	Payment of Landlord’s Cost of Enforcement	21
6.1.9	Yield Up	21
6.1.10	Rules and Regulations	21
6.1.11	Estoppel Certificate	21
6.1.12	Landlord’s Expenses Re: Consents	22

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6.1.13	Representation	22
6.2	NEGATIVE COVENANTS	22
6.2.1	Assignment and Subletting	22
6.2.2	Nuisance	23
6.2.3	Hazardous Wastes and Materials	23
6.2.4	Heavy Equipment	23
6.2.5	Installation, Alterations or Additions	24
6.2.6	Abandonment	25
6.2.7	Signs	25
6.2.8	Parking and Storage	25
ARTICLE 7 CASUALTY OR TAKING		25
7.1	TERMINATION	25
7.2	RESTORATION	26
7.3	AWARD	26
ARTICLE 8 DEFAULTS		26
8.1	EVENTS OF DEFAULT	26
8.2	REMEDIES	26
8.3	REMEDIES CUMULATIVE	27
8.4	LANDLORD’S RIGHT TO CURE DEFAULTS	27
8.5	EFFECT OF WAIVERS OF DEFAULT	27
8.6	NO WAIVER, ETC.	27
8.7	NO ACCORD AND SATISFACTION	27
ARTICLE 9 RIGHTS OF MORTGAGE HOLDERS		27
9.1	RIGHTS OF MORTGAGE HOLDERS	27
9.2	LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES	27
ARTICLE 10 MISCELLANEOUS PROVISIONS		28
10.1	NOTICES FROM ONE PARTY TO THE OTHER	28
10.2	QUIET ENJOYMENT	28
10.3	LEASE NOT TO BE RECORDED	28
10.4	LIMITATION OF LANDLORD’S LIABILITY	28
10.5	FORCE MAJEURE	28
10.6	LANDLORD’S DEFAULT	29
10.7	BROKERAGE	29
10.8	APPLICABLE LAW AND CONSTRUCTION; MERGER; JURY TRIAL	29

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NORTHWEST PARK

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 single-story building in Northwest Park in Burlington, Massachusetts (hereinafter referred to as the “Park”) on a parcel of land described in deed filed with the Middlesex South Registry of Deeds in Book 11445, Page 176 and known as 00 Xxxxx Xxxxxx (the Building and such parcel of land hereinafter being collectively referred to as the “Property”).
Premises:	The entire Building, substantially as shown on Exhibit A attached hereto.
Rentable Floor
Area of Premises:	30,208 square feet.
Landlord:	Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxxx and Xxxx X. Xxxxxxxx, as Trustees of N.W. Building 28 Trust under Declaration of Trust dated December 11, 1967 and recorded in Middlesex South Registry of Deeds, Book 11445, Page 169.
Original Notice
Address of Landlord:	c/x Xxxxxxxx Management Company, Inc.
	00 Xxxxx Xxxxxx
	Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant:	Avid Technology, Inc., a Delaware corporation
Original Notice
Address of Tenant:	Prior to Tenant’s occupancy:
	Xxx Xxxx Xxxx
	Xxxxxxxxx, XX 00000
	Attn: Director of Real Estate
	On and after Tenant’s occupancy:
	00 Xxxxxxx Xxxxx
	Xxxxxxxxxx, XX 00000
	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 Building 65 Premises (as defined below) and the Building 75 Premises (as defined below) is Substantially Completed (defined in Section 2.2) and (b) June 1, 2010.
Original Term:	Ten Lease Years.
Target Commencement Date:	June 1, 2010.
Design Development
Permitting/Pricing Plans Date:	November 13, 2009.
Final Plans Date:	December 11, 2009.
Rent Commencement Date:	The date that is 180 days from, and including, the Commencement Date, subject to Sections 3.2 and 4.1.

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Annual Fixed Rent Rate:	Commencement Date – Rent Commencement Date:	$0.00
	Rent Commencement Date – end of 1st Lease Year:	$286,976.04
	2nd – 5th Lease Years:	$286,976.04
	6th – 10th Lease Years:	$317,184.00
Monthly Fixed Rent Rate:	Commencement Date – Rent Commencement Date:	$0.00
	Rent Commencement Date – end of 1st Lease Year:	$23,914.67
	2nd – 5th Lease Years:	$23,914.67
	6th – 10th Lease Years:	$26,432.00
Letter of Credit Amount:	$143,866.00 (i.e. 6 times the average monthly rent over 10 years), subject to reduction pursuant to Section 4.4.9
TI Allowance:	$604,160.00
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, which is One Hundred percent (100%).
Initial Estimate of
Tenant’s Percentage of
Taxes for the Tax Year:	$59,997.00 (based on 2009 fiscal tax year)
Initial Estimate of
Tenant’s Percentage of
Operating Costs for the
Calendar Year:	$77,456.00
Permitted Uses:	General business offices, and technology software and hardware research and development.
Public Liability Insurance Limits:
Commercial General Liability:
	$3,000,000 per occurrence
	$5,000,000 general aggregate
Brokers:	FHO Partners, LLC
Building 75 Premises:	The entire building located at 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 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.
Building 65 Premises:	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 located at 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX owned by Landlord’s affiliate, NetView 5 and 6, LLC.
Building 65 Lease:	That certain lease between NetView 5 and 6, LLC (the “Building 65 Landlord”) and Tenant for the Building 65 Premises, executed concurrently herewith.
Avid Spaces:	The Premises, the Building 65 Premises and the Building 75 Premises, collectively.

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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 B	Commencement Date Notification
EXHIBIT B-1	Termination Payment
EXHIBIT C	List of Schematic Design Plans
EXHIBIT C-1	Preliminary Plan of Loading Dock
EXHIBIT D	Work Change Order Form
EXHIBIT E	Rules and Regulations
EXHIBIT F	Form Tenant Estoppel Certificate
EXHIBIT G	Form Notice of Lease
EXHIBIT H	Form Letter of Credit
EXHIBIT I	Form of Subordination, Nondisturbance and Attornment Agreement

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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.  Excluded from the Premises are the roof and the exterior surfaces of the exterior walls of the Building.  Tenant shall have, as appurtenant to the Premises, rights to use in common, subject to reasonable rules of general applicability to tenants of the Park from time to time made by Landlord of which Tenant is given notice:  (a)  common walkways, roadways, and driveways necessary for access and egress to the Building and the Property, and (b) the common parking areas serving the Building.  There are currently 82 parking spaces in the parking area serving the Building, which Tenant shall be permitted to use, exclusively, provided, however, that Landlord shall have the right, from time to time, to reconfigure the layout of some or all of the parking area serving the Building as long as the parking area remains in the same approximate vicinity around the Building as exists as of the Date of this Lease, and provided, further, such reconfiguration will not result in a net loss of the parking area as existed prior to such reconfiguration.  Landlord shall have no obligation to police the use of the parking area.  In no event will Landlord impact the functionality of the Building loading dock or the associated access driveways serving it in any exercise of its right under this paragraph.

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

2.2 Term.  TO HAVE AND TO HOLD for the Original Term, which shall begin on the Commencement Date,  and end on the Expiration Date, unless sooner terminated as hereinafter provided.  The term “Substantially Completed” as used herein shall mean that the work to be performed by Landlord pursuant to Exhibit C and the Final Plans (defined below) has been completed with the exception of minor items which can be fully completed without material interference with Tenant and other items which because of the season or weather or the nature of the item are not practicable to do at the time, provided that none of said items is necessary to make the Premises tenantable for the Permitted Uses, that the Premises are delivered to Tenant broom clean and free of prior tenants and occupants and their personal property, and a Certificate of Occupancy (which may be a temporary Certificate of Occupancy, provided that Landlord uses diligence to obtain a permanent Certificate of Occupancy within a reasonable time) has been issued by the Town of Burlington and all other requirements of “Substantial Completion” set forth in Section 3.6 have been completed. However, if Landlord cannot obtain a temporary or permanent certificate of occupancy by the Target Commencement Date because of a Tenant Delay (defined in Section 3.1.B), then the Commencement Date shall be deemed to have occurred and the Landlord’s Work deemed to be “Substantially Completed” on the date that such work would have been Substantially Completed but for such Tenant Delay (but Landlord shall not be relieved of the obligation to actually complete Landlord’s Work (defined in Section 3.2 below) and obtain a permanent Certificate of Occupancy).  When the Commencement Date, the Expiration Date, the Rent Commencement 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 Termination 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 Building 65 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 adjacent park known as Network Drive at Northwest 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.  The Building 75 Landlord, the Building 65 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 Building 65 Lease that Sun shall agree to an earlier termination and surrender of Wing B of

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Building 75 and execute a letter agreement to that effect (the “Sun Letter Agreement”). Landlord shall cause the Building 75 Landlord to use diligent efforts to obtain the Sun Letter Agreement as soon as is reasonably practicable. If the Sun Letter Agreement is not executed by the Building 75 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 Building 65 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 Building 65 Lease shall be terminated immediately as of the date of Tenant’s notice.  If Tenant has not elected to so terminate the leases, and the Building 75 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 Building 65 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 Building 65 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; and

(ii) Tenant has not subleased 20% or more of the rentable square footage of the Premises, 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”), but in no event less than the average Annual Fixed Rent Rate in effect during the immediately preceding term of this Lease (i.e., during the Original Term and during the First Extended Term, as applicable).  For the avoidance of doubt, the Annual Fixed Rent Rate during the First Extended Term shall be no less than $9.53 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.  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

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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 Termination Option.  Provided that as of the date of the notice specified below and as of the Effective Termination Date (hereinafter defined), Tenant is not in default of its obligations beyond any applicable grace period under this Lease, Tenant shall have the right to terminate this Lease effective as of the last day of the fifth (5th) Lease Year (such date the “Effective Termination Date”).  If Tenant shall elect to exercise such right, it shall do so by giving written notice to Landlord no later than twelve (12) months prior to the Effective Termination Date, such notice to be accompanied by a payment of the Termination Payment.  As used herein, the term “Termination Payment” shall mean the sum of: (a) the unamortized cost of Landlord’s Work, plus (b) Landlord’s unamortized transaction costs incurred in connection with this Lease (including legal fees and real estate commissions).  The Termination Payment shall be as set forth on Exhibit B-1, attached hereto.  It is agreed that time is of the essence of this Section 2.4.  Accordingly, if Tenant fails timely to exercise its right to terminate the Lease on or before the applicable exercise date specified above, and/or timely make the payments set forth herein, then Tenant shall have no further right to terminate this Lease hereunder.  This Termination Option is personal to Avid Technology, Inc. and may not be assigned except in accordance with Section 6.2.1.

ARTICLE 3
Improvements

3.1 Base Building Condition; Tenant Improvement Work.  A. Landlord shall , at its sole cost, insure that all restrooms and access/egress ways are in compliance with applicable building codes, including those requiring removal of architectural barriers to disabled persons (all of the foregoing is called, the “Base Building Work”).  All Landlord’s Base Building Work shall be done in a good and workmanlike manner employing building standard materials and finishes.

B.            Landlord shall cause to be performed the alterations and improvements desired by Tenant to prepare the Premises for Tenant’s use (the “TIW”) substantially in accordance with the Schematic Design Plans attached hereto as Exhibit C and pursuant to the Final Plans.  Landlord shall also cause a loading dock to be constructed as part of the TIW, substantially in accordance with the preliminary plan attached hereto as Exhibit C-1 and 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 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.

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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 Xxxx.Xxxxxxxxxx@XxxxxxXxxx.xxx) of such event within three (3) business days after Landlord becomes aware of its occurrence; however, Landlord need not give Tenant notice of any failure of Tenant to act by the dates stipulated in Section 1.1 and in this Article 3, it being acknowledged that a failure to timely act by such stipulated dates is ipso facto a “Tenant Delay” on a day for day basis.

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

B.            If the Landlord’s Work is not Substantially Complete by October 31, 2010, for any reason other than a Tenant Delay or Force Majeure event, then Tenant may elect to perform the incomplete Landlord’s Work, itself, utilizing the funds held under the Construction Escrow Agreement for any incomplete TIW, with any reasonable expenditures for the Base Building Work to be reimbursed by Landlord within 30 days after request therefore with back-up documentation to substantiate the request, failing which, Tenant shall have the right to offset such expenditures against the Fixed Rent coming due as of the Rent Commencement Date, except that such monthly offset shall not exceed fifteen (15%) percent of the monthly installment of Fixed Rent then payable as stipulated in Section 1.1.

C.            If the Landlord’s Work is still not Substantially Complete by May 31, 2011, despite Landlord having used diligent efforts to complete the Landlord’s Work, and provided the reason for Landlord’s inability to complete such work by May 31, 2011 is not due solely to Tenant Delay, then either Landlord or Tenant may terminate this Lease by giving written notice of termination to the other party.  If either party timely and properly gives the termination notice, then this Lease shall terminate immediately upon the date of a party’s notice.

3.3 Plans and Specifications  A. Tenant shall be solely responsible for the preparation and submission to Landlord of (a) the Schematic Design Plans, (b) a full set of architectural, electrical, mechanical and plumbing, construction, design development drawings, including demolition plans sufficient for pricing and permitting equivalent in design completion to more than 50% of the TIW Plans (the “Design Development Permitting/Pricing Plans”), and (c) a full CD set of architectural and MEP construction plans and specifications sufficient to permit and construct the TIW (called “TIW Plans”), and all other information reasonably required by Landlord and the General Contractor (defined below) necessary obtain a building permit from the Town of Burlington and otherwise to perform and complete the TIW.  All plans shall emanate from and be consistent with the approved Schematic Design Plan attached hereto as Exhibit C.  Tenant has assured itself by direct communication with the architect and engineers that the Design Development/Permitting/Pricing Plans can be submitted to Landlord by the respective dates set forth in Section 1.1.  Additionally, Tenant agrees to cause the TIW Plans to be delivered to Landlord for review before the Final Plans Date and agrees to devote such time as may be necessary in consultation with said architect and engineers to enable them to complete the Final Plans by the Final Plans Date.  Tenant shall cause its architect and engineers to cooperate with Landlord and the General Contractor, as reasonably necessary to enable Landlord to obtain a building permit from the Town of Burlington for the TIW by January 2, 2010.  Tenant shall also cause its architects and engineers to reasonably cooperate with Landlord or the General Contractor, as applicable, as reasonably necessary to obtain a Certificate of Occupancy from the Town of Burlington. Time is of the essence in respect of the preparation and submission of all plans by

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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 reasonably cooperate 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; provided however, that notwithstanding this provision Landlord shall not unreasonably withhold, delay, or condition it approval of changes to the exterior loading dock described in Section 3.1 and which changes are reasonably consistent with Exhibit C-1, 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.

3.4 Cost of TIW; Tenant’s Share.  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 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.  Within 21 days after the full execution of this Lease Landlord shall fund $604,160.00 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 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, as more specifically set forth in the Construction Escrow Agreement.

3.5 Work Change Orders.  After the Final Plans and the Contract Price have been approved, Tenant may elect

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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 into the Escrow Account under the Construction Escrow Agreement the cost of such Tenant’s Change Order upon signing the Work Change Order Form.  Landlord shall have no obligation to proceed with any Tenant’s Change Order until payment is received or made as aforesaid.

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

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

ARTICLE 4
Rent

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

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

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

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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 taxes and operating costs with respect to the Premises and the Property as provided in this Section 4.2 as follows:

4.2.1 Real Estate Taxes.  Tenant shall pay to Landlord, as additional rent, for each tax period partially or wholly included in the Term, Tenant’s Percentage of Taxes (as hereinafter defined).  Tenant shall remit to Landlord, on the first day of each calendar month, estimated payments on account of Taxes, 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 Tenant’s Percentage of Taxes, as reasonably estimated by Landlord from time to time on the basis of the most recent tax data available.  The initial calculation of the monthly estimated payments shall be based upon the Initial Estimate of Tenant’s Percentage of Taxes for the Tax Year and upon quarterly payments being due to the governmental authority on August 1, November 1, February 1 and May 1, and shall be made when the Commencement Date has been determined.  If the total of such monthly remittances for any Tax Year is greater than the Tenant’s Percentage of Taxes for such Tax year, Landlord shall promptly pay to Tenant, or credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.1, the difference; if the total of such remittances is less than the Tenant’s Percentage of Taxes for such Tax Year, Tenant shall pay the difference to Landlord at least ten (10) days prior to the date or dates within such Tax Year that any Taxes become due and payable to the governmental authority (but in any event no earlier than ten (10) days following a written notice to Tenant, which notice shall set forth the manner of computation of Tenant’s Percentage of Taxes).

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 to be made by Tenant pursuant to this subsection 4.2.1, 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 Taxes paid by Tenant to Landlord with respect to any Tax Year for which such refund is obtained.  Provided Landlord is not prosecuting an abatement with respect thereto, Tenant may, upon prior notice to Landlord, prosecute appropriate proceedings for abatement or reduction of any tax with respect to which Tenant is required to make payments as hereinbefore provided, such proceedings to be conducted jointly with any other parties, including Landlord, who have contributed to the payment of such taxes, and Tenant agrees to save Landlord harmless from all costs and expenses incurred on account of Tenant’s participation in such proceedings.  Landlord, without obligating itself to incur any costs or expenses in connection with such proceedings, shall cooperate with Tenant with respect to such proceedings so far as reasonably necessary.  Any abatement or reduction effected by such proceedings shall accrue to the benefit of Tenant and Landlord and such other parties as their interests may appear according to their respective contributions to the taxes involved in any such proceedings.

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 Taxes 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, assessed or imposed at any time during the term by any governmental authority upon or against the Property, 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.

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

4.2.3 Operating Costs.  Tenant shall pay to Landlord the Tenant’s Percentage of Operating Costs (as hereinafter defined) incurred by Landlord in any calendar year.  Tenant shall remit to Landlord, on the first day of each calendar month included in the Term, estimated payments on account of Operating Costs, such monthly amounts to be sufficient to provide Landlord, by the end of the calendar year, a sum equal to the Operating Costs, as reasonably estimated by Landlord from time to time.  The initial monthly estimated payments shall be in an amount equal to 1/12th of the Initial Estimate of Tenant’s Percentage of Operating Costs for the Calendar Year.  If, at the expiration of the year in respect of which monthly installments of Operating Costs shall have been made as aforesaid, the total of such monthly remittances is greater than the actual Operating Costs for such year, Landlord shall promptly pay to Tenant, or credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.3, the difference; if the total of such remittances is less than the Operating Costs 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, 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 the cost of 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 common areas, facilities and amenities of the Park 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, lighting and any other Building equipment or systems) and of all repairs and replacements (other than repairs or replacements for which Landlord has received full reimbursement from contractors, or from others) necessary to keep the Property and the Park in good working order, repair, appearance and condition; all costs of any reasonable insurance carried by Landlord relating to the Property; all costs related to provision of heat (including electric, and/or gas), air-conditioning, and water (including sewer charges) and other utilities to 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; attorneys’ fees and disbursements in connection with tax abatement proceedings;  auditing and other professional fees and expenses; and a management fee in line with local market rates for similar Class — A buildings (during the Original Term, 3% of the gross collected Rents).

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

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

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

3.             costs of the Base Building Work;

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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, or any other sources;

9.             increased insurance specifically attributable to any tenant of 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 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 of the Park on an extra cost basis after regular business hours;

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

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

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

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

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

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

22.           charitable or political contributions;

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

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

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

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

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

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

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;

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

33. costs of cleaning, trash removal, and janitorial services to the Premises.

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.

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

4.2.4.1 Commercial general liability insurance naming Landlord, Tenant, and Landlord’s managing agent and any mortgagee of which Tenant has been given notice as additional insureds  and indemnifying the parties so named against all claims and demands for death or any injury to person or damage to property which may be claimed to have occurred on the Premises (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

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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 pay directly to the applicable utility provider all charges made by such utility provider for the cost of electricity and gas furnished or consumed on the Premises, which are separately metered; Tenant shall pay to Landlord, through Operating Costs, all charges for water (including sewer charges) supplied by Landlord pursuant to Subsection 5.1.3.  Tenant shall pay all charges for telephone and other utilities or services not supplied by Landlord pursuant to Subsections 5.1.1 and 5.1.3, whether designated as a charge, tax, assessment, fee or otherwise, all such charges to be paid as the same from time to time become due.  Except as otherwise provided in Article 5, it is understood and agreed that Tenant shall make its own arrangements for the installation or provision of all such utilities and that Landlord shall be under no obligation to furnish any utilities to the Premises and shall not be liable for any interruption or failure in the supply of any such utilities to the Premises.

4.3 Late Payment of Rent.  If any installment of Fixed Rent is paid five (5) or more days after notice 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.

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

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

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

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

4.4.9 Reduction in Letter of Credit Amount. On the condition that (a) Tenant is not in default at the time of the applicable reduction, (b) has not been in default of its monetary obligations under this Lease more than two times during the Term, (c) Tenant has had a net income for the immediately preceding fiscal year of Tenant prior to the applicable reduction (the “Profitability Test”) as shown on Tenant’s Consolidated Statement of Operations in its most recent 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 $23,977.00;

(ii) at the end of the 3rd Lease Year, by $23,977.00; and

(iii) at the end of the 5th Lease Year, by $23,977.00.

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 $23,977.00 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 $71,935.00.  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, separately metered for gas and at the direct expense of Tenant as hereinabove provided, 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).

5.1.2 Electricity.  To furnish to the Premises, separately metered and at the direct expense of Tenant as hereinabove provided, reasonable electricity for Tenant’s Permitted Uses.  If Tenant shall require electricity in excess of reasonable quantities for Tenant’s Permitted Uses and if (i)  in Landlord’s reasonable judgment, Landlord’s facilities are inadequate for such excess requirements, or (ii)  such excess use shall result in an additional burden on the Building utilities systems and additional cost to Landlord on account thereof, as the case may be, (a)  Tenant shall, upon demand,

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reimburse Landlord for such additional cost, as aforesaid, or (b)  Landlord, upon written request, and at the sole cost and expense of Tenant, will furnish and install such additional wire, conduits, feeders, switchboards and appurtenances 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.

5.1.3 Water.  To furnish water for ordinary cleaning, lavatory and toilet facilities.

5.1.4 Fire Alarm.  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 plumbing, electrical, heating, ventilating and air-conditioning systems of the Building and to the areas of the Property outside of the Building 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 and Taxes 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 Tenant’s Security; Outside  Services; Snow Removal  Tenant may, at its sole cost and expense, contract for security services for the Premises, which Landlord acknowledges may involve the installation of cameras, monitory devices and alarms, (which installation shall be subject to all of the requirements of Section 6.2.5 below).  Tenant shall be permitted to provide outside services within the Premises over and above those services to be provided by Landlord as set forth herein (subject to Landlord’s reasonable approval if relating to HVAC maintenance), in which event all costs relating to the provision of such outside services shall be excluded from “Operating Costs”, if applicable.  Landlord will contract with its snow removal vendor for snow and ice to be removed from the Property.  If Landlord is unable to cause the snow to be removed to Tenant’s satisfaction, Landlord shall not be deemed in default of this Lease, but Tenant may elect to provide its own snow and ice removal and opt out of the services provided by Landlord by giving Landlord written notification of its election, which election will remain fixed for the remainder of the then current winter season, and in which event all costs relating to the provision of snow removal services shall be excluded from “Operating Costs” and Landlord shall have no obligation to provide Tenant with the same until the following winter season.

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

5.5 Environmental. A. Landlord represents to Tenant to Landlord’s actual knowledge that, except as may be disclosed in that certain Remedial Monitoring Report Xx. 00, Xxxxxxxxx Xxxx, Xxxxxxxxx 00 and 37, Burlington, MA (RTN 3-0263) prepared by GEI Consultants, Inc., dated September 29, 2009 (the “RMR Report”), there are no hazardous materials in, on, about, under or emanating from the Premises or the Site (as that term is defined in the RMR Report) 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

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or the Site; 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 RMR Report.

B. Landlord shall, prior to the Commencement Date, conduct indoor air quality testing, and may conduct testing of other environmental media, to confirm the absence of vapor intrusion into the Building from contamination in soil or groundwater at or near the Building that poses a significant risk to future occupants (office workers) and users of the Building, as determined under the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq.  Prior to conducting the testing, Landlord shall provide Tenant with a copy of the proposed sampling plan.  If the testing yields data indicating that indoor air quality (or other media) that results from vapor intrusion from contaminated soil or groundwater poses a significant risk to future occupants or users of the Building, as determined under the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq., then Landlord promptly shall at its sole cost and expense take necessary response actions as recommended by Landlord’s Licensed Site Professional (“LSP”) to eliminate any significant risk to occupants or users of the Building.  Landlord shall obtain from its LSP a reliance letter reasonably acceptable to Tenant that will allow Tenant to rely upon the findings and recommendations contained in the reports produced by the LSP.  Landlord’s LSP shall be Xxxxxxx Xxxxxx or another LSP reasonably acceptable to Tenant.

5.6 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.

5.7 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 Xxxxxxx Bank; (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.

5.8 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 in the areas of the Property outside of the Premises arising out of the negligence, fault or misconduct of Landlord or Landlord’s failure to perform and observe the obligations expressly assumed under the provisions of this Lease, except if the same was caused by the negligence, fault or misconduct of Tenant or the Tenant Related Parties.  In respect of all of the foregoing, Landlord shall indemnify Tenant and the Tenant Related Parties from and against all costs, expenses (including reasonable attorneys’ fees), and liabilities incurred in or in connection with any such claim, action or proceeding brought thereon; and, in case of any action or proceeding brought against Tenant or the Tenant Related Parties by reason of any such claim, Landlord, upon notice from Tenant and at Landlord’s expense, shall resist or defend such action or proceeding and employ counsel therefor reasonably satisfactory to Tenant provided that Tenant shall be deemed to have approved counsel provided by Landlord’s liability insurer.

ARTICLE 6
Tenant’s Additional Covenants

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

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

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

6.1.3 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 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

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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. In addition, Tenant shall, at its sole expense, contract for cleaning and janitorial services to the Premises, including window cleaning.  A trash dumpster enclosure is currently located on the Property in an area designated by Landlord.  Tenant shall, at its expense, contract directly for a trash dumpster to be housed on the Property in such enclosure and to be emptied on a regular basis. However, Tenant shall have the right to relocate the dumpster, from time to time, to a location on the Property reasonably approved by Landlord, subject to all permitting and other requirements of the Town of Burlington and  Landlord’s reasonable requirements as to size and screening.  Subject to Tenant’s compliance with all requirements of the Town of Burlington, Tenant shall be permitted to keep a cardboard recycling container in an area on the Property reasonably approved by Landlord.  (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 and the Property arising out of the use or occupancy of the Premises by Tenant or by any person claiming by, through or under Tenant (including, without limitation, all patrons, employees and customers of Tenant), or arising out of any delivery to or service supplied to the Premises, or on account of or based upon anything whatsoever done on the Premises, except if the same was caused by the willful negligence, fault or misconduct of Landlord or the Landlord Related Parties.  In respect of all of the foregoing, Tenant shall indemnify Landlord and the Landlord Related Parties from and against all costs, expenses (including reasonable attorneys’ fees), and liabilities incurred in or in connection with any such claim, action or proceeding brought thereon; and, in case of any action or proceeding brought against Landlord or the Landlord Related Parties by reason of any such claim, Tenant, upon notice from Landlord and at Tenant’s expense, shall resist or defend such action or proceeding and employ counsel therefor reasonably satisfactory to Landlord.  The preceding indemnification shall expressly survive the expiration or earlier termination of this Lease.

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

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

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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 as set forth in Section 6.2.5.  Tenant shall surrender the Premises broom-clean and in the condition the same were in on the Commencement Date, reasonable wear and tear and casualty damage excepted. Tenant, at the time of requesting Landlord’s approval of any installations or alterations in the Premises, including the TIW and any Tenant’s Work Change Orders (whether or not plans are required for the installation) shall request in writing that Landlord designate which such installations or alterations must be removed at the expiration or earlier termination of this Lease.  After receipt of Tenant’s request, Landlord shall notify Tenant in writing which such installations or alterations must be removed from the Premises at the expiration or earlier termination of this Lease.  If Landlord does not indicate that a particular installation must be removed, then Landlord shall not later have the right to request its removal.  Likewise, if Tenant, when making any installations or alterations, fails to so request in writing whether Landlord will require removal of such installation or alteration, then Landlord reserves the right to require Tenant to remove the installation or alteration at the end of the Term. With respect to the TIW, Tenant need not make a formal written request; however Landlord shall, as part of its approval of the Schematic Design Plans provide a preliminary summary of which items, if any, it requires be removed. Landlord will provide Tenant with a progress summary of items designated for removal as soon as practical following receipt of the Design Development Permitting/Pricing Plans, taking into consideration that the resulting Final Plans may necessitate amendment of Landlord’s summary of items that require end of term removal..  In any event, Landlord agrees to be reasonable in determining whether any installation or alteration must be removed and agrees to limit its removal requirements to those installations or alterations that Landlord deems specialized for Tenant’s use and not typical for normal office tenant use (such as specialty process electrical systems, chillers, generators, nitrogen tanks, by way of example, but not finishes and architectural elements included in the TIW.  Any property required to be removed that is not so removed shall be deemed abandoned and, if Landlord so elects, deemed to be Landlord’s property, and may be retained or removed and disposed of by Landlord in such manner as Landlord shall determine and Tenant shall pay Landlord the entire cost and expense incurred by it in effecting such removal and disposition and in making any incidental repairs and replacements to the Premises.  Tenant shall further indemnify Landlord against all loss, cost and damage resulting from Tenant’s failure and delay in surrendering the Premises as above provided; however, notwithstanding the foregoing, Tenant shall not be liable for any consequential damages if Tenant occupies the Premises for fewer than thirty (30) days beyond the expiration or earlier termination of this Lease.  Except as specifically provided for in this Section 6.1.9, Tenant shall not be liable for any consequential damages for breach of any provision of this Lease.

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

6.1.10 Rules and Regulations.  To comply with the Rules and Regulations set forth in Exhibit E, and with all reasonable Rules and Regulations of general applicability to all tenants of the Park hereafter made by Landlord, of which Tenant has been given notice.  Landlord shall not be liable to Tenant for the failure of other tenants to conform to such Park-wide Rules and Regulations of which Tenant has been given notice.  Landlord shall use reasonable efforts to enforce the Park-wide 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

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

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

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

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

6.2.1 Assignment and Subletting.  Except in connection with a Permitted Transfer, not to assign, transfer, mortgage or pledge this Lease or to sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any other rights arising under this Lease to be assigned, transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the occupancy of the Premises by anyone other than Tenant without the prior written consent of Landlord.  In the event Tenant desires to assign this Lease or sublet any portion or all of the Premises  (whether to a Successor or Affiliate or to a third party), Tenant shall notify Landlord in writing of Tenant’s intent to so assign this Lease or sublet the Premises and the proposed effective date of such subletting or assignment, and, in the case of a transfer to a third party, shall request in such notification that Landlord consent thereto.  Except in connection with a Permitted Transfer, Landlord may terminate this Lease in the case of a proposed assignment or any proposed sublet of the Premises for the remainder of the Term, and, in the case of any proposed subletting that results in 50% or more of the Rentable Floor Area of the Premises being sublet. If Landlord exercises its recapture right, it shall do so by giving written notice of termination to Tenant within ten (10) days after Tenant’s request for consent and Landlord’s receipt of all relevant information reasonably required by Landlord, with such termination to be effective as of the effective date of such assignment or subletting.  Landlord agrees to respond to Tenant’s request for consent within ten (10) days following Landlord’s receipt of all information reasonably requested by Landlord to evaluate Tenant’s request.  If Landlord fails to respond by the expiration of such 10-day period, Tenant shall send Landlord a second notice captioned, “SECOND REQUEST FOR CONSENT,” and Landlord’s failure to respond within five (5) business days after receiving Tenant’s second request shall be deemed a waiver of its recapture right.  If Landlord does not so terminate or is deemed to have waived its right to terminate, Landlord’s consent shall not be unreasonably withheld to an assignment or to a subletting of the entire Premises, 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.

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, and 6.2.5.1 are personal to the initial named Tenant and may not be assigned except in connection with an assignment of this Lease to an Affiliate or Successor.

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

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

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

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

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

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

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

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

C.  Tenant shall be permitted to install an underground conduit to connect the Premises to its other Avid Spaces, subject to Landlord’s approval of the plans therefor, which approval shall not be unreasonably withheld, conditioned or delayed, including conduit size, location, access into the Building and method of installation, and subject further to the requirements of Paragraph B above, and in compliance with all requirements of the Town of Burlington.

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 the available shaft space 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,

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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.

6.2.5.2 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 back-up generator on the roof of the Building, subject in all cases to Landlord’s approval regarding size, location and the manner of installation, including conformance with Landlord’s reasonable design criteria and any other reasonable requirements (including structural reinforcements, and 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 generator shall be Tenant’s responsibility, at its sole cost and expense and shall be performed in accordance with the terms of the Lease and all applicable laws and requirements of the applicable governmental authorities.  Landlord shall not charge Tenant for the right to use the roof to install the rooftop generator.  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 access to the roof upon reasonable notice to Landlord  for the purpose of installing, operating, maintaining, repairing, or removing the rooftop generator.  Upon the expiration or earlier termination of this Lease, Tenant shall remove the generator from the roof and repair any damage to the roof caused thereby.  The right to install the generator 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, Tenant shall have the exclusive right to install an identification sign on the exterior Building facade, the size and location of which must first be approved by Landlord and be in compliance with the Northwest Park 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 25% of the parking spaces serving the same, or any material part thereof, (a) shall be taken by any public authority or for any public use, and in the case of the parking areas, Landlord does not provide reasonable permanent alternative parking within 90 days of the taking, or (b) shall be Substantially Damaged (as hereinafter defined) by fire or casualty, or by the action of any public authority, or (c) the net proceeds of insurance recovered or damages awarded is insufficient to pay for the cost of restoration work, then this Lease may be terminated at the election of Landlord.  The term “Substantially Damaged” as used herein shall mean damage so extensive that thirty-five (35%) percent or more of the Rentable Floor Area of the Building is destroyed.  Such election, which may be made notwithstanding the fact that Landlord’s entire interest may have been divested, shall be made by the giving of notice by Landlord to Tenant within sixty (60) days after the date of the taking or casualty.  In the event that the Premises are destroyed or damaged by fire or casualty, or if there is a taking of a material part of the Premises or Building, and in either case, in the reasonable opinion of an independent architect or engineer selected by Landlord, cannot be repaired or restored within three hundred and sixty five (365) days from the date of such event, then this Lease may be terminated at the election of Landlord or Tenant, which election shall be made by the giving of notice to the other party within thirty (30) days after the date the opinion of the architect or engineer is made available to the parties.  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.

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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 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

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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.  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

27

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 material respects to the form of SNDA attached hereto as Exhibit I 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 I (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 Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn:  Xxxx Xxxxxxxxxx) and, if to Landlord, at the Original Notice Address of Landlord or such other address as Landlord shall have last designated by notice in writing to Tenant.  Any notice shall be deemed duly given upon receipt or rejection when mailed to such address postage prepaid, by certified mail, return receipt requested, or on the next business day when sent by nationally recognized overnight courier, or when delivered to such address by hand.

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

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

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

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

28

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, or (ii) the structure or mechanical or life safety systems of the Building.  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 Broker (which is Tenant’s broker), and each agrees to indemnify, defend and hold the other harmless from and against any and all loss, cost, damage, claim or expense resulting from the breach of the foregoing warranty.  Landlord shall pay Broker pursuant to a separate agreement.  Xxxxx, Xxxx LaSalle (“Landlord’s Broker”) is representing Landlord with respect to the leases for the other Avid Spaces (i.e., the Building 75 Lease and the Building 65 Lease).  Although Landlord’s Broker’s involvement in the Building 65 Lease and the Building 75 Lease has covered some matters common to all leases for the Avid Spaces, the parties have not dealt directly with Landlord’s Broker in consummating this Lease.  Landlord shall pay Landlord’s Broker pursuant to a separate agreement relating to the leases for the other Avid Spaces.  Tenant shall have no liability for any amounts due Broker, nor for claims, if any, by Landlord’s Broker in connection with this Lease.

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

[Signatures appear on the following page.]

29

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

	Landlord:
	/s/ Xxxxx Xxxxxxxxx
	As Trustee, but not individually
	/s/ Xxxx Xxxxxxxx
	As Trustee, but not individually
	TENANT:
	AVID TECHNOLOGY, INC.
	/s/ Xxx Xxxxxx
	By:	Xxx Xxxxxx
	Its:	Executive Vice President, Chief Financial Officer and Chief Administrative Officer

30

EXHIBIT A

PLAN SHOWING THE PREMISES

(Graphic Omitted)

31

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 Expiration Date is                                           ;

3. The Rent Commencement Date occurred on                                            ;

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

a. First Option:                           

b. Second Option:                           

5. The Date by which the Termination Option must be exercised is                          ,

Executed under seal this                           day of                                         .

Landlord:

By:

Print Name:

Print Title

Tenant:

By

Print Name:

Print Title:

32

EXHIBIT B-1

TERMINATION PAYMENT

Principal		$	931,240.00				TI		$	604,160.00
Rate		8.000		%			LEASING COM		$	302,080.00
Term		120 months					LEGAL		$	25,000.00
									$	931,240.00

Pmt #		Payment			Interest			Principal			Balance			Rem. Pmts.
											$	931,240.00
1		$	11,298.51		$	6,208.27		$	5,090.24		$	926,149.76		119
2		$	11,298.51		$	6,174.33		$	5,124.18		$	921,025.58		118
3		$	11,298.51		$	6,140.17		$	5,158.34		$	915,867.24		117
4		$	11,298.51		$	6,105.78		$	5,192.73		$	910,674.51		116
5		$	11,298.51		$	6,071.16		$	5,227.35		$	905,447.16		115
6		$	11,298.51		$	6,036.31		$	5,262.20		$	900,184.96		114
7		$	11,298.51		$	6,001.23		$	5,297.28		$	894,887.68		113
8		$	11,298.51		$	5,965.92		$	5,332.59		$	889,555.09		112
9		$	11,298.51		$	5,930.37		$	5,368.14		$	884,186.95		111
10		$	11,298.51		$	5,894.58		$	5,403.93		$	878,783.02		110
11		$	11,298.51		$	5,858.55		$	5,439.96		$	873,343.06		109
12		$	11,298.51		$	5,822.29		$	5,476.22		$	867,866.84		108
13		$	11,298.51		$	5,785.78		$	5,512.73		$	862,354.11		107
14		$	11,298.51		$	5,749.03		$	5,549.48		$	856,804.63		106
15		$	11,298.51		$	5,712.03		$	5,586.48		$	851,218.15		105
16		$	11,298.51		$	5,674.79		$	5,623.72		$	845,594.43		104
17		$	11,298.51		$	5,637.30		$	5,661.21		$	839,933.22		103
18		$	11,298.51		$	5,599.55		$	5,698.96		$	834,234.26		102
19		$	11,298.51		$	5,561.56		$	5,736.95		$	828,497.31		101
20		$	11,298.51		$	5,523.32		$	5,775.19		$	822,722.12		100
21		$	11,298.51		$	5,484.81		$	5,813.70		$	816,908.42		99
22		$	11,298.51		$	5,446.06		$	5,852.45		$	811,055.97		98
23		$	11,298.51		$	5,407.04		$	5,891.47		$	805,164.50		97
24		$	11,298.51		$	5,367.76		$	5,930.75		$	799,233.75		96
25		$	11,298.51		$	5,328.22		$	5,970.29		$	793,263.46		95
26		$	11,298.51		$	5,288.42		$	6,010.09		$	787,253.37		94
27		$	11,298.51		$	5,248.36		$	6,050.15		$	781,203.22		93
28		$	11,298.51		$	5,208.02		$	6,090.49		$	775,112.73		92
29		$	11,298.51		$	5,167.42		$	6,131.09		$	768,981.64		91
30		$	11,298.51		$	5,126.54		$	6,171.97		$	762,809.67		90
31		$	11,298.51		$	5,085.40		$	6,213.11		$	756,596.56		89
32		$	11,298.51		$	5,043.98		$	6,254.53		$	750,342.03		88
33		$	11,298.51		$	5,002.28		$	6,296.23		$	744,045.80		87
34		$	11,298.51		$	4,960.31		$	6,338.20		$	737,707.60		86
35		$	11,298.51		$	4,918.05		$	6,380.46		$	731,327.14		85
36		$	11,298.51		$	4,875.51		$	6,423.00		$	724,904.14		84
37		$	11,298.51		$	4,832.69		$	6,465.82		$	718,438.32		83
38		$	11,298.51		$	4,789.59		$	6,508.92		$	711,929.40		82
39		$	11,298.51		$	4,746.20		$	6,552.31		$	705,377.09		81
40		$	11,298.51		$	4,702.51		$	6,596.00		$	698,781.09		80
41		$	11,298.51		$	4,658.54		$	6,639.97		$	692,141.12		79
42		$	11,298.51		$	4,614.27		$	6,684.24		$	685,456.88		78
43		$	11,298.51		$	4,569.71		$	6,728.80		$	678,728.08		77
44		$	11,298.51		$	4,524.85		$	6,773.66		$	671,954.42		76
45		$	11,298.51		$	4,479.70		$	6,818.81		$	665,135.61		75
46		$	11,298.51		$	4,434.24		$	6,864.27		$	658,271.34		74
47		$	11,298.51		$	4,388.48		$	6,910.03		$	651,361.31		73
48		$	11,298.51		$	4,342.41		$	6,956.10		$	644,405.21		72
49		$	11,298.51		$	4,296.03		$	7,002.48		$	637,402.73		71
50		$	11,298.51		$	4,249.35		$	7,049.16		$	630,353.57		70
51		$	11,298.51		$	4,202.36		$	7,096.15		$	623,257.42		69
52		$	11,298.51		$	4,155.05		$	7,143.46		$	616,113.96		68
53		$	11,298.51		$	4,107.43		$	7,191.08		$	608,922.88		67
54		$	11,298.51		$	4,059.49		$	7,239.02		$	601,683.86		66
55		$	11,298.51		$	4,011.23		$	7,287.28		$	594,396.58		65
56		$	11,298.51		$	3,962.64		$	7,335.87		$	587,060.71		64
57		$	11,298.51		$	3,913.74		$	7,384.77		$	579,675.94		63
58		$	11,298.51		$	3,864.51		$	7,434.00		$	572,241.94		62
59		$	11,298.51		$	3,814.95		$	7,483.56		$	564,758.38		61
60		$	11,298.51		$	3,765.06		$	7,533.45		$	557,224.93		60
TERMINATION PAYMENT AMOUNT														$	557,224.93

33

EXHIBIT C

SCHEMATIC DESIGN PLANS

(Graphics Omitted)

34

EXHIBIT C-1

PRELIMINARY PLAN SHOWING LOADING DOCK

(Graphic Omitted)

35

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 the amount into the construction escrow account under the Construction Escrow Agreement upon Tenant’s execution of this Change Order.

Tenant:			Landlord:
By:			By:
Title:			Title:

36

EXHIBIT E

RULES AND REGULATIONS

1. The sidewalks, entrances, passages, corridors, vestibules, halls in Building shall not be obstructed by Tenant.

2. Tenant shall not place objects against glass doors or windows which would be unsightly from the exterior of the Building.

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

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

5. No vehicles, or animals of any kind shall be brought into or kept in or about the Premises.  No bicycles shall be brought into the Building, except through the loading dock.   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.

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

7. 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.

8. 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.

9. 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 tenants of the Park 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 Park.

10 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.

37

EXHIBIT F

TENANT ESTOPPEL CERTIFICATE

The undersigned,                                                                              , a                                                                    (“Tenant”), and                                             a                                                                  (“Landlord”), are parties to that certain lease dated                            (the lease as amended as set forth on Schedule A annexed hereto and made a part hereof, the “Lease”) with respect to Tenant’s occupancy of approximately                                 square feet of the premises (the “Leased Premises”) situated at and known as                            ,                        ,                   (the “Building”).  Landlord has informed Tenant that XXXXXXX BANK, NATIONAL ASSOCIATION, a national banking association (“Lender”), has committed to make to Landlord a loan, which will be secured by, among other things, a Mortgage Deed, Security Agreement, Assignment of Rents and Leases and Fixture Filing in respect of the Building and a collateral assignment of rents and leases (collectively, the “Mortgage”).

Tenant, with full knowledge that Lender, in making the aforementioned loan, is relying upon the truth, accuracy and completeness of the statements made by Tenant herein, hereby certifies, represents and warrants to Lender that:

1.             The Lease is in full force and effect, has not been modified, amended, added onto, extended or renewed, except as specified in Schedule A, and is binding upon, and enforceable against, Tenant in accordance with its terms.  Attached hereto as Schedule B is a true, correct and complete copy of the Lease.  Tenant agrees that no future amendment of the Lease shall be enforceable unless such amendment has been consented to by Lender in writing.  The Lease contains all of the understandings and agreements between Tenant and Landlord.

2.             The commencement and termination dates of the Lease are set forth on Schedule A.  There are no options to renew the Lease or to extend the term of the Lease.  Tenant has accepted and taken possession of the Leased Premises.  All alterations, improvements and work to be performed by Landlord, if any, have been completed in a manner fully satisfactory to Tenant and in accordance with the terms of the Lease.

3.             The base rent, additional rent and all other charges payable to Landlord under the Lease (collectively, “Rent”) are described on Schedule A.  Tenant’s obligation to pay Rent has commenced, and all Rent due and payable has been paid in full by Tenant.  No prepayment of any Rent for more than one month has been made to date or hereafter will be made.

4.             Neither Tenant nor Landlord is in breach of, or in default under the Lease, and Tenant knows of no (a) event or condition which, with the passage of time or the giving of notice or both, would constitute such a breach or default by Tenant or Landlord under the Lease or (b) claims by third parties against Landlord relating to the Leased Premises or the Building, or their respective uses.

5.             Neither Tenant nor Landlord has commenced any action, or received any notice, with respect to the termination of the Lease.

6.             Tenant has no existing or inchoate credit, offset or defense against (a) the obligation to pay Rent or any other payments to be made by Tenant to Landlord under the Lease, howsoever characterized, by reason of prepayment or otherwise under the Lease or (b) the enforcement of any of the other terms and conditions of the Lease.  There is no basis for withholding of Rent nor any claims or counterclaims against Landlord for any failure of performance under the Lease.  There exists no present or future free Rent or any present or future concession in or abatement of Rent except as provided on Schedule A.  Tenant’s interest in the Lease has not been assigned, pledged or encumbered and no part of the Leased Premises has been sublet.

7.             The Lease and all of Tenant’s right, title and interest under the Lease are, and at all times shall be, subject and subordinate in all respects to (a) the lien of the Mortgage and all renewals, modifications, extensions, increases, replacements and consolidations of, and substitutions for, the Mortgage and (b) each and every advance under any of the foregoing, all without regard to the execution and delivery or to the order or recordation, if applicable, of the Mortgage and the Lease or any memorandum thereof.

8.             All items of an executory nature have been completed under the terms of the Lease as of the date hereof.

9.             The Tenant has not sublet the Leased Premises to any sublessee and has not assigned any of its rights under the Lease.  No one except the Tenant and its employees occupies the Premises.

10.           The address for notices to be sent to the Tenant is as set forth in the Lease.

11.           The amount of the security deposit retained by Landlord under the Lease is set forth on Schedule A.  No portion of the security deposit has been utilized or applied by Landlord.

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12.           There are no actions, whether voluntary or otherwise, pending against the undersigned and/or any guarantor of the undersigned’s obligations under the Lease pursuant to the bankruptcy or insolvency laws of the United States or any state thereof and, to the best knowledge of the undersigned, none have been threatened.

13.           No commission or other payment is due any real estate broker by Tenant in connection with the leasing of the Leased Premises to Tenant, and there are no agreements, oral or written, under which any real estate broker is entitled to any future payment or commission by Tenant in connection with the leasing of the Leased Premises to Tenant.

14.           Tenant does not have any purchase or other options or right of first refusal with respect to the Leased Premises.  Tenant does not have any right or option for additional space in the Building, nor does Tenant have any termination options or exclusive business rights under the Lease.  Except as provided on Schedule A, Tenant has no renewal, extension or modification rights under the Lease.

15.           Upon the receipt by Tenant of any written notice from Lender to do so, all Rent shall be paid by Tenant directly to Lender until further notice from Lender in writing.

16.           To the best of Tenant’s knowledge, the use, maintenance or operation of the Leased Premises complies with, and will at all times comply with, all applicable federal, state, county or local statutes, laws, rules and regulations of any governmental authorities relating to environmental, health or safety matters (being hereinafter collectively referred to as the “Environmental Laws”).  The Leased Premises have not been used and the Tenant does not plan to use the Premises for any activities which, directly or indirectly, involve the use, generation, treatment, storage, transportation or disposal or any petroleum product or any toxic or hazardous chemical, material, substance, pollutant or waste.

17.           Tenant has not received any notices, written or oral, of violation of any environmental law or of any allegation which, if true, would contradict anything contained herein, and there are no writs, injunctions, decrees, orders or judgments outstanding, no lawsuits, claims, proceedings or investigations pending or threatened, relating to the use, maintenance or operation of the Leased Premises, nor is Tenant aware of a basis for any such proceeding.

18.           This Certificate shall be binding upon Tenant and its successors and assigns and shall inure to the benefit of and be enforceable by Lender and its successors, assigns and designees, including, but not limited to, any subsequent holder of the Mortgage or obligations secured thereby, any purchaser at a foreclosure sale or person or entity receiving a deed in lieu of foreclosure (which successors, assigns, designees, purchaser, person or entity shall be deemed to be included within the term “Lender” for purposes of this Certificate).

IN WITNESS WHEREOF, Tenant has duly executed, acknowledged and delivered this Certificate as of                    , 20     .

TENANT:

By:

Name:

Title:

[Add Schedule A and B]

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EXHIBIT G

FORM 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: Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxxx and Xxxx X. Xxxxxxxx, as Trustees of N.W. Building 28 Trust under Declaration of Trust dated December 11, 1967, and recorded in Middlesex South Registry of Deeds, Book 11445, Page 169, having a mailing address of c/x Xxxxxxxx Management Company, Inc., 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.

Lessee: Avid Technology, Inc., a Delaware corporation, having a place of business at 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.

Date of Execution:   November    ,  2009

Description of Leased Premises:

The entire building located at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx, said building being described in Exhibit A attached hereto and made a part hereof.

Terms of Lease, Rights of Extension, and other lease matters are set forth in Exhibit B attached hereto and made a part hereof.

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

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

LESSOR:		LESSEE:
		Avid Technology, Inc.
		By:
As Trustee, but not individually		Name:
		Title:
As Trustee, but not individually

00

XXXXXXXXXXXX XX XXXXXXXXXXXXX

Xxxxxx xx Xxxxxxxxx                                                                                                                              , 0000

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 trustee of the N.W. Building 28 Trust.

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:

41

EXHIBIT A

The single-story building in Northwest Park in Burlington, Massachusetts on a parcel of land described in deed filed with the Middlesex South Registry of Deeds in Book 11445, Page 176 and known as 00 Xxxxx Xxxxxx comprising approximately 30,208 rentable square feet.

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EXHIBIT B

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

3. Other Lease Matters:

Tenant has termination option that can be exercised no later than the end of the fourth Lease Year to be effective at the end of the fifth Lease Year.

There are no options to purchase contained in the Lease.

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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

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EXHIBIT I

FORM SNDA

SUBORDINATION, NONDISTURBANCE

AND ATTORNMENT AGREEMENT

THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”), dated as of                                     , 2009 is made among XXXXXXX BANK, NATIONAL ASSOCIATION, a national banking association having an office and place of business at CityPlace II, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (“Mortgagee”), XXXXX X. XXXXXXXX and XXXX X. XXXXXXXX, not personally, but as TRUSTEES OF NW BUILDING 28 TRUST, having an address of 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Landlord” or “Borrower”), and AVID TECHNOLOGY, INC., a Delaware corporation having an office and mailing address at Xxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Tenant”).

W I T N E S S E T H:

WHEREAS, Tenant has entered into a certain lease dated November       , 2009  being hereinafter referred to as the “Lease”), as more particularly described in the “Notice of Lease” dated November       , 2009 which has been recorded in the records of the Middlesex County Registry of Deeds at Book                  , Page             ,  with Landlord, covering premises (the “Demised Premises”) located at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx being the real property described in Schedule A attached hereto and made a part hereof (such real property, together with the improvements thereon, being hereinafter referred to as the “Mortgaged Property”); and

WHEREAS, Mortgagee has made a mortgage loan (the “Loan”) to Landlord in the amount of $2,300,000, which Loan is evidenced by a certain promissory note to dated December 20, 2006 in the principal amount of $2,300,000 (as presently in effect and as the same may be amended or restated from time to time and together with any notes given in substitution or replacement thereof, the “Note”), and secured by, among other things, a certain mortgage deed and security agreement dated December 20, 2006, a financing statement recorded on January 9, 2007, encumbering the Mortgaged Property (as amended, restated or supplemented from time to time, the “Mortgage”), and an assignment of leases and rents dated December 20, 2006 and recorded in the Land Records, on the date of and prior to the recording hereof (as amended, restated or supplemented from time to time, the “Assignment of Leases”), assigning all of Landlord’s interest in and to the leases and rents accruing or arising from the Mortgaged Property; and

WHEREAS, Mortgagee, Tenant and Landlord desire to set forth their agreement to the matters set forth below;

NOW, THEREFORE, consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows:

1.             The Lease is and shall be subject and subordinate to the Mortgage and to all rights of Mortgagee thereunder, and to all renewals, modifications, consolidations, amendments, increases, replacements and extensions thereof, all on the terms and conditions herein provided.  Tenant requires as a condition to the Lease being subordinate to the Mortgage that its rights under the Lease be recognized by the Mortgagee.

2.             If the interest of Landlord in and to the Demised Premises, or the interest of any subsequent owner of the Demised Premises, shall be transferred by reason of a foreclosure of the Mortgage, a conveyance in lieu of such foreclosure, or other proceedings to enforce the Mortgage, Tenant shall attorn to Mortgagee and recognize Mortgagee as its landlord for the unexpired balance (and any extension or renewals, if exercised) of the term of the Lease.  As used herein, the term “Mortgagee” shall include Mortgagee named above; together with any person that is a purchaser or transferee in foreclosure or conveyance in lieu of foreclosure and the successors, heirs, executors and assigns of any such person.  Notwithstanding the foregoing, if the Lease shall be terminated as a matter of law as a result of any such proceedings, Tenant shall attorn to and recognize Mortgagee as its landlord for a term equal to the unexpired balance (and any extension or renewals, if exercised) of the term of such terminated Lease under the terms and conditions of the Lease.

3.             In the event of any foreclosure of the Mortgage, Mortgagee will not terminate the Lease, nor join Tenant in summary or foreclosure proceedings, nor disturb the right of possession of Tenant to the Demised Premises, so long as Tenant is not in default under any of the terms, covenants or conditions of the Lease. Upon succeeding to the interest of the Landlord under the Lease, Mortgagee shall recognize all of the Tenant’s rights under the Lease including all rights of rent offset and all rights under that certain Construction Escrow Agreement dated as of November    , 2009 by and between Landlord, Tenant, and Lawyers Title Insurance Corporation.

4.             If Mortgagee succeeds to the interest of Landlord or any successor to Landlord, Mortgagee shall not be:

(a)           liable for any act, omission, warranty or representation of any prior landlord (including, but not limited to, Landlord) in connection with or arising out of the Lease;

(b)           liable for the return of any security deposits held pursuant to the Lease, except to the extent any such security deposits are transferred to Mortgagee;

(c)           bound by any rent or additional rent which Tenant might have paid for more than the then current month to any prior landlord (including, but not limited to, Landlord); or

45

(d)           bound by any amendment or modification of the Lease made without Mortgagee’s consent.

In no event shall Mortgagee have any personal liability as successor to Landlord and Tenant shall look only to the estate and property of Mortgagee in and to the Mortgaged Property for the satisfaction of Tenant’s remedies for the collection of a judgment (or other judicial process) requiring the payment of money in the event of any default by Mortgagee as landlord under the Lease, and no other property or assets of Mortgagee shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under or with respect to the Lease.

5.             Tenant acknowledges having been notified that Landlord’s interest in and to the Lease has been assigned to Mortgagee pursuant to the Assignment of Leases and Rents and that Landlord has been granted the license to collect all rent and other amounts payable under the Lease (collectively, “Rent”), provided no Event of Default exists under, and as defined in, the Mortgage.  Tenant further acknowledges that if an Event of Default shall exist, Mortgagee has the right, power and authority to direct Tenant to make payment of all Rent directly to Mortgagee or its agents and agrees that upon such direction Tenant shall make such payment of Rent to Mortgagee or its agents in accordance with the written direction of Mortgagee. By its signature below, Landlord unconditionally authorizes and directs Tenant to make rental payments directly to Mortgagee following receipt of such notice from Mortgagee and Landlord further agrees that Tenant may rely upon such notice without any obligation to further inquire as to whether or not any Event of Default exists under the Mortgage or the Assignment and notwithstanding any notice from or claim of Landlord to the contrary.  Landlord shall have no right or claim against Tenant for or by reason of any payments of rent or other charges made by Tenant to Mortgagee following Tenant’s receipt of any such notice. Until further notice from Mortgagee, however, Tenant will continue to make all payments under the Lease to Landlord and otherwise look solely to Landlord for the performance of the lessor’s obligations under the Lease.

6.             So long as the Mortgage is in effect, Tenant will not, without Mortgagee’s prior written consent, (i) agree to any adjustment, modification, supplement or amendment to, the Lease, (ii) pay any rent under the Lease more than one (1) month in advance, or (iii) agree to any termination, cancellation or surrender of the Lease.  Tenant will allow Mortgagee’s employees and representatives to inspect the Demised Premises from time to time upon reasonable advance notice.

7.             Tenant agrees to send a copy of all notices of default under the Lease to the Mortgagee at the address provided herein.

8.             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 Mortgagee:	XXXXXXX BANK, NATIONAL ASSOCIATION
	CityPlace II
	000 Xxxxxx Xxxxxx
	Xxxxxxxx, Xxxxxxxxxxx 00000
	Attention:
To Tenant:	AVID TECHNOLOGY, INC.
	Xxx Xxxx Xxxx
	Xxxxxxxxx, XX 00000
	Attention: Director of Real Estate
	(if prior to Commencement Date under the Lease)
	AVID TECHNOLOGY, INC.
	00 Xxxxxxx Xxxxx
	Xxxxxxxxxx, XX 00000
	Attention: Director of Real Estate
	(if on or after Commencement Date under the Lease)
With a copy to:	WilmerHale
	00 Xxxxx Xxxxxx
	Xxxxxx, XX 00000
	Attention: Xxxx Xxxxxxxxxx, 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.

9.             Tenant shall afford Mortgagee a reasonable opportunity to cure any defaults of Landlord under the Lease (not to exceed 60 days more than the cure period as provided to Landlord under the Lease), and upon request by Mortgagee from time to time shall provide Mortgagee with an estoppel certificate covering such matters as Mortgagee shall reasonably request.  Mortgagee’s cure of Landlord’s default shall not be considered an assumption by Mortgagee of Landlord’s other obligations under the Lease.  If Mortgagee or any successor or assign becomes obligated to perform as landlord under the Lease, Mortgagee or such successor or assign will be released from such

46

Lease obligations when such person or entity assigns, sells or otherwise transfers its interest in the Premises or the Property.

10.           This Agreement shall inure to the benefit of, and be binding upon, Tenant, Landlord, Mortgagee and the successors and assigns of each.

11.           This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute and be construed as one and the same instrument.

[Remainder of page intentionally left blank; signature page follows.]

47

IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.

	MORTGAGEE:
Signed, Sealed and Delivered in the Presence of	XXXXXXX BANK, NATIONAL ASSOCIATION
	By:
	Name:
	Vice President
	TENANT:
	AVID TECHNOLOGIES, INC.
	By:
	Name:
	Title:
	LANDLORD:
	TRUSTEES OF NW BUILDING 28 TRUST
	By:
	Name:
	Title:

[Signature page to Subordination, Attornment and Nondisturbance Agreement.]

48

STATE OF	)
	) ss.
COUNTY OF	)

On this       day of                                    , 200  , before me personally appeared                                   ,                                    of                                     , a                                   , to me known to be the person who executed the foregoing instrument, and he thereupon duly acknowledged to me that he executed the same to be his free act and deed on behalf of such                                         .

Name:

Notary Public

My Commission Expires:

[SEAL]

STATE OF	)
	) ss.
COUNTY OF	)

On this       day of                                    , 200  , before me personally appeared                                   ,                                    of                                     , a                                   , to me known to be the person who executed the foregoing instrument, and he thereupon duly acknowledged to me that he executed the same to be his free act and deed on behalf of such                                         .

Name:

Notary Public

My Commission Expires:

[SEAL]

STATE OF CONNECTICUT	)
	) ss: Hartford                                        , 2009
COUNTY OF HARTFORD	)

On this       day of                                    , 200  , personally appeared                                           , Vice President of XXXXXXX BANK, NATIONAL ASSOCIATION, signer of the foregoing instrument and acknowledged the same to be his free act and deed as such officer and the free act and deed of said bank, before me this day.

Name:

Notary Public

My Commission Expires:

[SEAL]

[Acknowledgement page to Subordination, Nondisturbance and Attornment Agreement]

49

SCHEDULE A

Legal Description

A certain parcel of land with the buildings thereon, situated in Burlington, Middlesex County, Massachusetts, shown as Lot “M” on a plan entitled “Land in Burlington, Mass. Surveyed for Middlesex Turnpike Industrial Trust,” prepared by Xxxxxxx X. Xxxxxxx Co., Inc., dated September, 1967 recorded with said Deeds in Book 11445, Page 176, bounded and described according to said plan as follows:

SOUTHEASTERLY	by Fourth Avenue, forty-one and 90/100 (41.90) feet;
SOUTHERLY	by a curved line forming the intersection of said Fourth Avenue and a Proposed Way, one hundred and 14/100 (100.14) feet;
SOUTHWESTERLY	by said Proposed Way, three hundred eighty-two and 85/100 (382.85) feet;
NORTHWESTERLY	by land now and formerly of Middlesex Turnpike Industrial Trust by two lines, measuring respectively, two hundred eighty-four and 79/100 (284.79) feet and one hundred eighteen and 49/100 (118.49) feet; and
NORTHEASTERLY	by said land now or formerly of Middlesex Turnpike Industrial Trust and by Lot J, four hundred eighty-seven and 36/100 (487.36) feet.

Containing 2 acres and 29,079 square feet according to said plan.  Said Proposed Way referred to above is known as North Avenue.

Said premises have the benefit of and are subject to the following appurtenant rights and easements:

1.                     Easement to park not more than twenty (20) automobiles on Lot “O” shown on plan entitled “Land in Burlington, Mass., surveyed for Middlesex Turnpike Industrial Trust”, prepared by Xxxxxxx X. Xxxxxxx Co., Inc., dated March, 1968, recorded with said Deeds in Book 11513, Page 608 created by deed of easement from the Trustees of Middlesex Turnpike Industrial Trust to the Trustees of N.W. Building 28 Trust dated May 21, 1968, recorded with said Deeds in Book 11513, Page 612, as affected by an Agreement dated October 17, 1968 recorded with said Deeds in Book 11591, Page 227 and by an Amendment to Easement dated April 3, 1973 recorded with said Deeds in Book 12446, Page 496.

2.                     Easement establishing common passageway rights in the “25’ wide right of way” and the “20’ wide right of way” shown on said March, 1968 plan created by the owners of Lots “J”, “M”, “N”, “O”, “R”, and “Q” shown on said March, 1968 plan by deed of easement dated May 21, 1968, recorded with said Deeds in Book 11513, Page 614, as affected by First Amendment to Easement dated May 1, 1969 recorded with said Deeds in Book 11681, Page 375 and by Second Amendment to easement dated April 30, 1973 recorded with said Deeds in Book 12446, Page 499.

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