Massachusetts-Westford-Westford Technology Park West Lease - Nashoba Westford Realty Trust and NetScout Systems Inc.
LEASE BETWEEN
ARTURO J. GUTIERREZ AND JOHN A. CATALDO,
TRUSTEES OF NASHOBA WESTFORD REALTY TRUST,
U/D/T DATED APRIL 27, 2000 AND RECORDED
WITH THE MIDDLESEX NORTH REGISTRY OF DEEDS
IN BOOK 10813, PAGE 38
AND
NETSCOUT SYSTEMS, INC.
FOR
WESTFORD TECHNOLOGY PARK WEST
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INDEX
PAGE NO.
ARTICLE I - TERMS DEFINED...........................................................1
1.1 Subjects Referred To...................................................1
1.2 Exhibits...............................................................3
ARTICLE II - DESCRIPTION OF PREMISES................................................4
2.1 Demise of Premises.....................................................4
ARTICLE III - TERM..................................................................5
3.1 Original Term..........................................................5
3.2 Extended Terms.........................................................5
ARTICLE IV - RENT...................................................................5
4.1 Fixed Rent.............................................................5
4.2 Payments...............................................................6
4.3 Market Rent............................................................6
ARTICLE V - OPERATING AND MAINTENANCE COSTS AND REAL ESTATE TAXES...................7
5.1 Common Area Maintenance................................................7
5.2 Tax Expense...........................................................12
5.3 Tax Abatement.........................................................13
ARTICLE VI - LANDLORD'S COVENANTS..................................................14
6.1 Landlord's Covenants During the Term..................................14
6.2 Interruptions.........................................................15
ARTICLE VII - LANDLORD'S WARRANTIES................................................15
ARTICLE VIII - USE OF PREMISES.....................................................16
ARTICLE IX - PREPARATION OF THE PREMISES...........................................16
9.1 Initial Construction..................................................16
9.1.1 Tenant's Work.........................................................20
9.1.2 Tenant's Construction Work............................................22
9.2 Preparation of Premises for Occupancy.................................22
9.2.1 Partial Occupancy and Rent Commencement...............................25
9.3 General Provisions Applicable to Construction.........................26
9.4 Representatives.......................................................26
9.5 Force Majeure.........................................................27
9.6 Arbitration by Architects.............................................27
9.7 Warranty of Landlord's Work and Tenant's Work.........................27
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ARTICLE X - COMPLIANCE WITH LAW....................................................28
10.1 Tenant Compliance.....................................................28
10.2 Notice................................................................28
ARTICLE XI - ALTERATIONS, ADDITIONS AND IMPROVEMENTS...............................28
11.1 Alterations...........................................................28
11.2 Landlord Performance of Alterations...................................29
11.3 Tenant Performance of Alterations.....................................29
11.4 Removal of Alterations................................................29
11.5 General Provisions....................................................29
ARTICLE XII - TENANT'S COVENANTS...................................................30
12.1 Maintenance and Repair................................................30
12.2 Signs.................................................................31
12.3 Entry and Inspection..................................................32
12.4 Miscellaneous.........................................................32
12.5 Safety Appliances.....................................................33
12.6 Loading...............................................................33
12.7 Labor or Materialmen's Liens..........................................33
12.8 Rules and Regulations.................................................33
12.9 Tenant's Covenants....................................................34
ARTICLE XIII - CASUALTY AND CONDEMNATION...........................................34
13.1 Casualty..............................................................34
13.2 Additional Casualty Provisions........................................35
13.3 Condemnation/Eminent Domain...........................................35
13.4 Reservation of Award..................................................36
ARTICLE XIV - RIGHTS OF MORTGAGEES.................................................36
14.1 Priority of Lease.....................................................36
14.2 Limitation on Mortgagee's Liability...................................37
14.3 No Prepayment or Modification, etc....................................37
14.4 No Release of Termination.............................................37
14.5 Mortgagee's Election..................................................37
14.6 Continuing Offer......................................................38
14.7 Submittal Of Financial Statement......................................38
ARTICLE XV - INSURANCE.............................................................38
15.1 Insurance.............................................................38
15.2 Tenant Liability Insurance/Workmen's Compensation.....................39
15.3 Waiver of Subrogation.................................................39
ARTICLE XVI - INDEMNIFICATION......................................................40
16.1 Tenant's and Landlord's Indemnity.....................................40
16.2 Hazardous Materials...................................................41
16.3 Landlord's Indemnification for Hazardous Materials....................42
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ARTICLE XVII - ASSIGNMENT AND SUBLETTING...........................................42
17.1 Tenant Sublet.........................................................42
17.2 Intentionally Deleted.................................................43
17.3 Landlord's Response...................................................43
17.4 Subsidiary Assignment.................................................43
17.5 Sublease and Assignment Rent Differential.............................43
ARTICLE XVIII - TENANT'S PROPERTY..................................................44
18.1 Tenant's Personal Property............................................44
18.2 Removal...............................................................45
18.3 No Lien...............................................................45
ARTICLE XIX - TENANT'S DEFAULT.....................................................45
19.1 Events of Default.....................................................45
19.2 Repossession..........................................................47
ARTICLE XX - NOTICES...............................................................47
ARTICLE XXI - QUIET ENJOYMENT......................................................47
ARTICLE XXII - HOLDING OVER........................................................47
ARTICLE XXIII - MEMORANDUM OF LEASE................................................48
ARTICLE XXIV - SURRENDER OF PREMISES...............................................48
ARTICLE XXV - ESTOPPEL CERTIFICATES................................................48
ARTICLE XXVI - ADDITIONAL PROVISIONS...............................................49
26.1 Broker................................................................49
26.2 Bind and Inure........................................................49
26.3 Provisions Separable..................................................49
26.4 Entire Agreement......................................................50
26.5 Governing Law.........................................................50
26.6 No Waiver.............................................................50
26.7 Rights Separate.......................................................50
26.8 Singular and Plural...................................................50
26.9 Headings..............................................................50
26.10 Parking...............................................................50
26.11 Non-Recourse..........................................................51
26.12 No Surrender..........................................................51
26.13 No Accord and Satisfaction............................................51
26.14 Access................................................................52
26.15 Security Deposit......................................................52
26.16 Rooftop Communication Equipment.......................................53
26.17 Early Termination Option..............................................53
26.18 Landlord's and Tenant's Right to Cure.................................54
26.19 Ground Lease Provisions...............................................54
Signature Page.....................................................................56
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ARTICLE I
TERMS DEFINED
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following terms shall mean:
Landlord: Arturo J. Gutierrez and John A. Cataldo,
Trustees of Nashoba
Westford Realty Trust,
u/d/t dated April 27,
2000 and recorded with
the Middlesex North
Registry of Deeds in Book
10813, Page 38
Managing Agent: The Gutierrez Company
Landlord's and Managing Agent's Address: c/o The Gutierrez Company
One Wall Street
Burlington, Massachusetts 01803
Landlord's Representative: John A. Cataldo
Landlord's Construction Representatives: Arthur J. Gutierrez, John A. Cataldo or
P. Agustin Rios
Tenant: NetScout Systems, Inc.
Tenant's Address: Prior to Term Commencement Date:
(for Notice and Billing) 4 Technology Park Drive
Westford, Massachusetts 01886
After Term Commencement Date:
At the Premises
Tenant's Representative: David Sommers
Tenant's Construction Representative(s): David Sommers
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Building: Three (3) story building containing approximately 175,000
rentable square feet (as measured per 1980 AIA Document D
101) to be constructed on the lot containing approximately
twelve (12) acres (the "Lot") described on Exhibit A
attached hereto in accordance with the final Landlord's
Plans and Tenant's Plans (as defined in Article IX hereof)
and any replacements thereof and any alterations and
additions thereto, including the Tenant's Work (as
hereinafter defined), as the same may be expanded pursuant
to Exhibit J hereto. The legal description of the Lot is
attached hereto as Exhibit A-1.
Scheduled Tenant's Design Completion Date: January 15, 2001
Scheduled Term Commencement Date: August 31, 2001
Outside Delivery Date: Per Section 9.2
Term: Twelve (12) years, subject to extension in accordance with
Section 3.2
Term Expiration Date: Twelve (12) years following the Term Commencement Date
determined in accordance with Section 9.2, subject to extension
in accordance with Section 3.2.
Fixed Rent: Years 1-5: $2,878,749.96/Year;
$239,895.83/Month;
($16.45/RSF)
Years 6-12: $3,222,500.00/Year;
$276,875.00/Month;
($18.99/RSF)
[To be adjusted by Section 9.1.1, if applicable]
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Permitted Uses: General office, research and development, light assembly (including
design, assembly, reassembly and testing of electronic products and
components) and ancillary warehousing, as long as such uses are
permitted uses with respect to local zoning bylaws and ordinances.
Premises: The Building.
Broker: Insignia/ESG, Inc.
Special Provisions: Option to Extend .................................Section 3.2
Allowances.............................Section 9.1, Exhibit H
Parking.........................................Section 26.10
Security Deposit................................Section 26.15
Expansion Option....................................Exhibit J
1.2. EXHIBITS The Exhibits listed below in this Section are
incorporated in this Lease by reference and are to be construed as part of this
Lease:
EXHIBIT A Plan Showing Premises, Plan Showing the Lot and the
Park, Plan Showing Common Areas of the Park
EXHIBIT A-1 Legal Description of the Lot
EXHIBIT B-1 Preliminary Base Building Plans
EXHIBIT B-2 Base Building Outline Specifications
EXHIBIT C-1 Form of Certificate of Substantial Completion
EXHIBIT C-2 Form of Certificate of Final Completion
EXHIBIT D Rules and Regulations
EXHIBIT E Office Park Covenants
EXHIBIT F Copy of Deed of Lot
EXHIBIT G-1 Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT G-2 Recognition Agreement
EXHIBIT H Allowances
EXHIBIT I Estoppel Certificate
EXHIBIT J Expansion Option
EXHIBIT K Form of Work Change Order
EXHIBIT L Definition of Cost of the Work and General Conditions
EXHIBIT M Schedule
EXHIBIT N Form of Notice of Lease
EXHIBIT O Sign Specifications
EXHIBIT P Proposed Expanded Building Footprint and Site Plan
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ARTICLE II
DESCRIPTION OF PREMISES
2.1 DEMISE OF PREMISES: In consideration of the rents and covenants
herein stipulated to be paid and performed and upon the terms and conditions
hereinafter specified and subject to and with the benefit of the provisions of
that certain ground lease dated May 11, 2000 and executed by and between Albert
L. Nardone and Anthony B. Nardone, Trustees of Two Littleton Road Realty Trust,
u/d/t dated January 30, 1997 and recorded with the Middlesex North Registry of
Deeds in Book 8425, Page 143 and as Trustees of One Littleton Road Realty Trust,
u/d/t dated December 30, 1991 and recorded with said deeds in Book 5768, Page
183, as "Landlord" and Landlord, as "Tenant", notice of which was recorded in
said Deeds in Book 10832, Page 7 relating to the Lot (the "Ground Lease"),
Landlord hereby demises and lets to Tenant, and Tenant hereby leases from
Landlord, for the respective terms hereinafter described, the Premises as
described in Article I hereof. Tenant shall have the right to expand the
Premises, as set forth on Exhibit J attached hereto.
Tenant shall have, as appurtenant to the Premises, the exclusive right
to use the areas shown on the Plans attached hereto as Exhibit A as "Building
Parking Area", including all loading docks and loading areas, service areas and
the like located on the Lot, all subject to and as further provided in Section
26.10 and elsewhere in this Lease.
Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto, subject to reasonable rules and regulations
of general applicability to tenants and owners of other lots in the Westford
Technology Park West (the "Office Park" or the "Park") from time to time made by
Landlord according to Section 12.8 of this Lease of which Tenant is given
notice: (a) all common areas now or hereafter located at the Park, including
without limitation, the Common Areas (the "Common Areas") shown on the Plan of
Common Areas of the Park attached as part of Exhibit A, as such Common Areas may
be amended or modified by Landlord from time to time during the Term hereof, (b)
a right of access to the Premises and parking areas serving the Premises, at all
times, use of all access, service areas, utility lines including those for
electricity, gas, water and sewage disposal, (c) use of all facilities for
drainage of surface water runoff, including storm drainage systems and detention
areas, (d) use of all means of access to and from the Building to the Common
Areas, including without limitation, all grades, driveways, sidewalks and
footways, lighting systems and traffic flow patterns and, if any, all parking
areas designated as common or visitors parking areas for use of the entire
Office Park, and (e) all rights appurtenant to the Lot and the Building created
in the deed attached hereto as Exhibit F.
Landlord reserves the right from time to time without unreasonable
interference with Tenant's use, but subject to Tenant's prior written consent
(which shall not be unreasonably withheld, conditioned or delayed) to alter or
relocate any other common facility, including without limitation, lot lines and
parking areas, provided that substitutions are substantially
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equivalent or better and provided that Landlord does not materially and
adversely affect any of Tenant's rights hereunder.
ARTICLE III
TERM
3.1 ORIGINAL TERM - To have and to hold for a period (the "Term")
commencing on the Term Commencement Date determined in accordance with Section
9.2 (which said date is hereafter referred to at times as the "Commencement
Date") and continuing until the Term Expiration Date, unless sooner terminated
as provided in Section 9.2, Article XIII, Article X1X or Section 26.17, or
unless extended as provided in Section 3.2 or pursuant to Exhibit J.
Landlord shall deliver possession of the Premises on the Commencement
Date in broom clean condition, free of all tenants and occupants and in
accordance with the terms and provisions of Article IX and Article VII (c) of
this Lease.
3.2 EXTENDED TERMS - The Tenant has the option to extend this Lease for
two (2) successive terms of five (5) years each ("Extended Terms" and
separately, the "First Extended Term" and the "Second Extended Term") provided
that there does not exist any Event of Default (as defined in Article XIX
hereof) at such time and provided the Tenant shall give to the Landlord written
notice of the exercise of the first option at least twelve (12) months but not
more than eighteen (18) months prior to the end of the initial Term hereunder,
and as to the second option at least twelve (12) months but no more than
eighteen (18) months prior to the end of the First Extended Term. The Extended
Terms shall be upon the same terms, covenants and conditions hereof, except that
(i) there shall be no additional option to extend after the termination of the
Second Extended Term or the failure to exercise the first option, whichever
shall first occur, (ii) the Fixed Rent for the First Extended Term shall be the
then Market Rent (as hereinafter defined in Section 4.3), and (iii) the Fixed
Rent for the Second Extended Term shall be the then Market Rent (as hereinafter
defined in Section 4.3). Landlord shall, within fifteen (15) days of receipt of
notice of Tenant's election to extend the Term of this Lease, or the First
Extended Term, as the case may be, provide Tenant with notice of the Market Rent
whereupon Landlord and Tenant shall establish the Market Rent for the Extended
Terms in accordance with the provisions of Section 4.3 of this Lease.
ARTICLE IV
RENT
4.1 FIXED RENT - The Fixed Rent for the Premises during the Term shall
be as set forth in Article I of this Lease and shall be payable on the first day
of each calendar month during the Term hereof in equal monthly installments also
as set forth in said Article, except that the rent (including both said Fixed
Rent and additional rent pursuant to Section 5.1 hereof) for any portion of a
calendar month during the Term hereof shall be apportioned for such portions on
a per diem basis based on the number of days in such partial month. The term
"Annual Rent" for any period of twelve calendar months shall mean Fixed Rent
plus any additional rent payable under the Lease with respect to such period.
All rent payable by Tenant pursuant to this Lease shall be paid without setoff,
adjustment, deduction or abatement. Landlord hereby acknowledges
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and agrees that all deposits paid by Tenant to Landlord under that certain
Exclusive Option to Negotiate letter dated June 28, 2000 shall be applied to
Tenant's first and subsequent (if applicable) rental payments due hereunder.
4.2 PAYMENTS - All such monthly payments of Annual Rent shall be made
to Managing Agent as set forth in Article I hereof, or to such other person as
Landlord may from time to time designate by written notice to Tenant. If any
installment of Annual Rent is paid more than five (5) business days after
written notice from Landlord that such rent has not been paid, it shall bear
interest at a rate equal to the prime commercial rate from time to time
established by Fleet Bank, or its successor, plus four percent (4%) per annum
(or, if lower, the maximum rate permitted by law) from the date such installment
was due, which interest shall be immediately due and payable as further
additional rent.
4.3 MARKET RENT - The market rent for the Premises shall be the then
fair market rent for similar space in similar Class A office buildings in the
Route 495 corridor market (including any concessions like rent abatement or
refurbishing allowances being offered to tenants), which such rent (the "Market
Rent") shall be determined as follows:
A. The Market Rent shall be proposed by Landlord within fifteen
(15) days of receipt of Tenant's notice that it intends to exercise its option
to extend the Term pursuant to Section 3.2 hereof (the "Landlord's Proposed
Market Rent"). The Landlord's Proposed Market Rent shall be the Market Rent
unless Tenant notifies Landlord, within fifteen (15) days of Tenant's receipt of
Landlord's Proposed Market Rent, that Landlord's Proposed Market Rent is not
satisfactory to Tenant and that Tenant desires (i) to withdraw its election to
renew, whereupon the provisions of Section 3.2 shall, as to the applicable
Extended Term, be null and void or (ii) to have appraisers determine the Market
Rent ("Tenant's Appraisal Notice"), which notice shall specify the name and
address of the appraiser designated by Tenant. Landlord shall within five (5)
days after receipt of Tenant's Appraisal Notice, notify Tenant of the name and
address of the appraiser designated by Landlord. Such two appraisers shall,
within twenty (20) days after the Landlord's designation of an appraiser, make
their determinations of the Market Rent in writing and give notice thereof to
each other and to Landlord and Tenant. Such two (2) appraisers shall have twenty
(20) days after the receipt of notice of each other's determination to confer
with each other and to attempt to reach agreement as to the determination of the
Market Rent. If such appraisers shall concur in such determination, they shall
give notice thereof to Landlord and Tenant and such concurrence shall be final
and binding upon Landlord and Tenant. If such appraisers shall fail to concur as
to such determination within said twenty (20) day period, they shall give notice
thereof to Landlord and Tenant and shall immediately designate a third
appraiser. If the two appraisers shall fail to agree upon the designation of
such third appraiser within five (5) days after said twenty (20) day period,
then they or either of them shall give notice of such failure to agree to
Landlord and Tenant and if Landlord and Tenant fail to agree upon the selection
of such third appraiser within five (5) days after the appraiser(s) appointed by
the parties give notice as aforesaid, then either party on behalf of both may
apply to the American Arbitration Association or any successor thereto, or on
his or her failure, refusal or inability to act, to a court of competent
jurisdiction, for the designation of such third appraiser.
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1. All appraisers shall be real estate appraisers or consultants who
shall have had at least seven (7) years continuous experience in
the business of appraising or leasing real estate in the suburban
Boston area.
2. The third appraiser shall conduct such hearings and investigations
as he or she may deem appropriate and shall, within ten (10) days
after the date of his or her designation, make an independent
determination of the Market Rent.
3. If none of the determinations of the appraisers varies from the
mean of the determinations of the other appraisers by more than ten
(10%) percent, the mean of the determinations of the three (3)
appraisers shall be the Market Rent for the Premises. If, on the
other hand, the determination of any single appraiser varies from
the mean of the determinations of the other two (2) appraisers by
more than ten (10%) percent, the mean of the determination of the
two (2) appraisers whose determinations are closest shall be the
Market Rent.
4. The determination of the appraisers, as provided above, shall be
conclusive upon the parties and shall have the same force and
effect as a judgment made in a court of competent jurisdiction.
5. Each party shall pay fees, costs and expenses of the appraiser
selected by it and its own counsel fees and one-half (1/2) of all
other expenses and fees of any such appraisal.
Notwithstanding the foregoing or any other language in this Lease to
the contrary, the Fixed Rent for the First Extended Term shall not be less than
the Fixed Rent in effect as of the last day of the original Term and the Fixed
Rent for the Second Extended Term shall not be less than the Fixed Rent for the
First Extended Term.
ARTICLE V
OPERATING AND MAINTENANCE COSTS AND REAL ESTATE TAXES
5.1 COMMON AREA MAINTENANCE - Tenant shall pay to Landlord as
additional rent an additional payment on the first day of each month occurring
during the Term hereof one-twelfth (1/12) of the amount of "Common Area
Maintenance Costs" (as hereinafter defined) for each twelve (12) month period
beginning on each December 1st occurring within the Term, as reasonably
estimated by Landlord from time to time according to this Section 5.1 (Common
Area Maintenance Costs are currently estimated at $236,250.00 ($1.35/sf) for the
year ending December 31, 1999). The "Common Area Maintenance Costs" include the
expenses in the following categories and shall be prorated in accordance with
the prorations set forth within each category:
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1. BUILDING AND LOT RELATED EXPENSES, which shall be allocated one
hundred percent (100%) to Tenant, shall include maintenance of
watertight integrity of the roof, exterior walls, windows and
skylights of the Building (Landlord and Tenant hereby agreeing that
in the event that any item for maintenance of the watertight
integrity not covered by warranty exceeds $5,000, then Tenant shall
have the right to require Landlord to obtain three (3) competitive
bids from a list of subcontractors mutually agreed upon by
Landlord, Tenant and Landlord's manufacturer of the item so being
maintained); monthly payment of the annual amortized amount of
Landlord's cost of Capital Replacements, as defined in Section 6.1,
for any capital items purchased by Landlord in accordance with
Section 6.1; maintenance and repair of sewer (i.e. on site sewer
system), utility, fire main and fire hydrant facilities, and
drainage facilities exclusively serving the Building; maintenance
of the Building entrance sign; maintenance, repair and striping,
snow removal and sanding of the parking and loading area(s) and
driveways, walkways and Building entrances on the Lot;
fertilization, mowing, and watering of lawns on the Lot and
landscaping and care of shrubbery and general grounds upkeep of the
Lot; changing of street-lamp lights, walk-way lights, and parking
lights on the Lot, and keeping same in proper working condition;
and any other services, repairs, or maintenance performed solely
for the benefit of the Building; Building management supervision
fees equal to no more than two and one-half percent (2.5%) of gross
collected rent; and insurance premiums procured by Landlord on
Tenant's behalf as specified in Article XV;
2. TRAFFIC RELATED EXPENSES, which shall be allocated on the basis of
the ratio of the number of parking spaces exclusively for Tenant's
use under this Lease to the aggregate total number of parking
spaces within the Office Park, shall include snow removal and
sanding of common drives and parking lots, maintenance and repair
of the Office Park entrance signs, maintenance and repair of Office
Park lighting, traffic signals, and traffic control personnel
required for the Office Park, maintenance and repair of Office Park
walks, and Office Park non-exclusive parking and any other traffic
or common Office Park roadway or walk-way related expenses;
3. LANDSCAPING/DRAINAGE/OTHER GENERAL OFFICE PARK RELATED EXPENSES,
which shall be allocated on the basis of the ratio of the square
footage of the Building to the aggregate square footage of all
completed buildings including the Building in the Office Park, as
such buildings are completed from time to time, shall consist of
the maintenance and repair of sewer, utilities, and drainage
facilities, maintenance and repair of detention and fire main and
fire hydrant facilities which service the Office Park generally and
are not exclusive to any single building within the Office Park;
fertilization, mowing, and watering of lawns and landscaping and
care of shrubbery and general grounds upkeep of access drives,
entrance areas and other such portions of the Office Park the
landscaping of which
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actually and substantially benefit the Premises; and liability
insurance costs for the Common Areas of the Office Park;
4. SEWER TREATMENT PLANT EXPENSES, including real estate taxes
associated with sewer treatment plant land and buildings, shall
consist of the expenses of operating, maintaining and repairing the
sewage treatment plant, including without limitation, the annual
amortized portion for Capital Replacements or improvements to the
plant, which expenses shall be allocated on the basis of the ratio
of the square footage of the Building to the aggregate square
footage of all completed buildings including the Building on all
lots in the Park, as such buildings are completed and connected for
service from time to time to the sewer treatment plant.
Notwithstanding any contrary provision of this Lease, if Landlord
incurs any Common Area Maintenance Cost that is properly classifiable as a
capital expenditure according to generally accepted accounting principles and
good building management practices and the regulations and directives of the
Internal Revenue Service, except for Building structural repairs and
replacements which could be classified as capital expenditures, then such Common
Area Maintenance Cost shall be amortized at a commercially reasonable discount
rate over its useful life according to such principles, practices, regulations
and directives, and only the annual amortized portion shall be included in
Common Area Maintenance Costs for any twelve (12) month period within the Term.
Notwithstanding anything to the contrary in this Lease contained,
Tenant shall not be required to pay any Common Area Maintenance Costs
attributable to:
1. Structural repairs and replacements (including any structural
capital expenditures as aforesaid) which are the responsibility of
Landlord as set forth in the first full paragraph of Section 6.1;
repairs and replacements, structural or otherwise, covered by
warranties or insurance; and repairs or other work occasioned by
fire or other casualty or by the exercise of eminent domain;
2. Leasing commissions, attorneys' fees, costs and disbursements and
other expenses incurred in connection with negotiations or disputes
with other tenants, occupants or prospective tenants or occupants
of the Office Park;
3. Interest, principal, ground rent, or other payments under any
mortgage, ground lease or other financing of the Lot or the Office
Park;
4. Any advertising or promotional expenditures;
5. Services or work provided for other tenants and occupants of the
Office Park and not substantially benefiting Tenant on a
commensurate basis and any expense for which Landlord is entitled
to be reimbursed directly by any such other tenant or tenants;
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6. Overhead or profit increment paid to subsidiaries or affiliates of
Landlord for services on or to the Premises to the extent that the
costs of such services exceed competitive costs of such services
were they not so rendered by a subsidiary or affiliate.
7. Expenses related to salaries, wages, benefits and other expenses of
executives, principals, administration staff and other employees of
Landlord or Landlord's Management Agent not involved directly in
the operations of the Building or Office Park;
8. Expenses related to leasehold improvements made in connection with
the preparation of any portion of the Building or Office Park or
occupancy by a new or existing tenant which is not generally
beneficial to all tenants of the Building;
9. Expenses related to efforts to procure new tenants for other
buildings or premises located in the Office Park, including
advertising expenses, leasing commissions and attorneys fees;
10. Expenses related to Landlord's general overhead not directly
related to the management or operations of the Building or Office
Park;
11. Expenses related to depreciation of the Building and buildings in
the Office Park;
12. Expenses related to Landlord or Landlord's Managing Agents breach
or violation of a law, lease or other obligations, including fines,
penalties and attorney's fees;
13. Expenses related to compensation paid to employees or other persons
in connection with commercial concessions operated by Landlord or
Landlord's Managing Agent;
14. Expenses related to fees for licenses, permits or inspections
resulting from the act or negligence of Landlord, Landlord's
Management Agent or any other tenant of the Office Park;
15. Expenses related to any items with respect to which Landlord
receives reimbursement from insurance proceeds or from a third
party;
16. Costs and expenses of construction related to an expansion of the
rentable area of the Building or Office Park or the parking areas
serving the Building or Office Park and any landscaping in
connection therewith;
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17. Expenses related to or costs or charges properly chargeable or
attributable to a particular occupant, tenant or tenants of the
Office Park;
18. Expenses related to any utility or other service used or consumed
by other tenants or occupants of the Office Park;
19. Expenses related to environmental testing, remediation and
compliance, Landlord and Tenant hereby agreeing that this exclusion
is not intended to limit the provisions of Section 16.2 of this
Lease;
20. Expenses related to compliance by Landlord with laws existing as of
the date of this Lease, including without limitation the American
with Disabilities Act and the regulations of the standards
thereunder, except to the extent that any such non- compliance was
created by Tenant's use of the Premises;
21. Building management supervision fees exceeding two and one-half
percent (2.5%) of the gross collected rent; and
22. Real estate taxes on other lots and buildings in the Office Park.
Tenant shall be solely responsible for paying all utilities including,
but not limited to electricity, water, gas and sewer, consumed in the Building
or on the Lot, and the electrical, water and gas bills shall be placed in the
Tenant's name and billed directly by the utility to Tenant. If Tenant fails to
pay any such bills and such failure continues after written notice to Tenant and
the expiration of the applicable grace period, Landlord shall have the right to
pay such bills, and to recover such payment from Tenant with any interest and/or
penalties chargeable thereon as additional rent. Written notice to Tenant and
the expiration of the applicable grace period as aforesaid will not be
applicable in the case of emergency with respect to potential damage to persons
or property.
Tenant recognizes that Landlord may retain the services of such
independent contractors or affiliates as may be necessary for Landlord to
fulfill its obligations hereunder. Landlord shall provide to Tenant within one
hundred twenty (120) days of the end of each calendar year an annual accounting,
in writing, of actual Common Area Maintenance Costs for such calendar year, and
Landlord shall maintain complete books and records relating to Common Area
Maintenance Costs sufficient to verify these charges and Tenant, its accountants
and agents shall have access to such books and records at reasonable times with
prior written notice. If the total of Tenant's estimated payments on account of
Common Area Maintenance Costs for such calendar year exceeds the actual Common
Area Maintenance Costs for such year, Landlord shall repay to Tenant such excess
within thirty (30) days after the delivery to Tenant of such annual accounting.
If the total of Tenant's estimated payments on account of Common Area
Maintenance Costs for such calendar year falls short of the actual Common Area
Maintenance Costs for such year, Tenant shall pay to Landlord such shortage
within thirty (30) days after Tenant's receipt of such accounting.
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Based on reasonable estimates of increases in costs covered by this
Section, Landlord reserves the right to adjust the amount of Tenant's estimated
payments on account of Common Area Maintenance Costs annually at the time of
such accounting effective on the first day of each calendar year during the Term
hereof upon thirty (30) days' prior written notice to Tenant and upon providing
Tenant with documentation supporting such estimates. Any such change shall be
effective retroactively to the first day of the calendar year during which the
adjustment is made. Notwithstanding anything contained herein, Landlord reserves
the right to separately invoice Tenant for Tenant's proportionate share of any
actual Common Area Maintenance Costs which exceeds the amount for such item in
Landlord's then current estimate of Common Area Maintenance Costs by greater
than five percent (5%). Any such change shall be effective retroactively to the
first day of the calendar year during which the adjustment is made. Except for
the management fee set forth herein, none of such Common Area Maintenance Costs
shall exceed amounts which are charged for such expenses in the Westford,
Massachusetts area for property of the same general type and size as in the
Office Park. Except for the management fee set forth herein, Landlord agrees
that all services to be provided as part of Common Area Maintenance Costs shall
be obtained by Landlord at commercially reasonable, competitive market rates
consistent with the operation of comparable Class A office buildings in the
Route 495 corridor market.
5.2 TAX EXPENSE - Tenant shall pay directly to the relevant taxing
authority (or to Landlord if required by Landlord's mortgagee), real estate
taxes assessed with respect to any period included in the Term hereof (on a pro
rata basis at the beginning or end of the Term) attributable to the Lot and the
Building and improvements and any assessment, levy, penalty (arising directly
from Tenant's acts), imposition or tax (including any tax which may replace or
be assessed in lieu of any of the foregoing), and any interest due thereon,
assessed with respect to any period included in the Term by any authority and
agency having the direct power to tax against the Lot and the Building (the "Tax
Expense"); provided, however, (i) if the amount of any real estate taxes or any
such assessment, levy, penalty (arising directly from Tenant's acts), imposition
or tax may lawfully be paid in installments, Tenant may pay such amount over the
maximum period permitted by law, and only the portion of such amount required to
be paid with respect to any period in the Term shall be included in the Tax
Expense for such period, (ii) if the Term includes a partial fiscal tax year at
its beginning or end, the real estate taxes or any such assessment, levy,
penalty (arising directly from Tenant's acts), imposition or tax for such tax
years shall be prorated according to the fraction of the total number of days in
such tax year that are within the Term, and only such prorated portion shall be
included in the Tax Expense, and (iii) Tenant shall have no obligation to pay
any assessment, levy, penalty, imposition or tax arising out of a breach or
violation by Landlord or any previous owner or occupancy of the Lot or the
Building of any law or obligation. The term "real estate taxes" means the real
estate taxes, betterment assessments, water and sewer use rents, rates or
charges, and such other governmental charges and impositions which are or may be
charged, levied, assessed, imposed or become due and payable with respect to the
Lot, Building, and other improvements comprising the Premises. All such payments
shall be made no later than ten (10) days prior to the date when interest or
penalty would accrue for non-payment or ten (10) days after Landlord provides
Tenant with the real estate tax bill, whichever is later. Tenant shall furnish
to Landlord copies of such bills and receipts evidencing payment for Landlord's
records. Real estate taxes are currently estimated at $166,250.00 for fiscal
year 2000 ($.95/sf).
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Tenant shall also pay all personal property taxes for Tenant's personal
property on the Premises or used in connection therewith. To the extent
permitted by law, Tenant shall pay, when due, taxes levied or assessed against
Landlord by reason of this Lease on the rental or any other payment required to
be made hereunder whether said taxes are assessed solely on the rental payment
hereunder or jointly with other rentals collected pursuant to any law or
ordinance now existing or hereafter enacted (other than taxes levied on the net
income of Landlord derived therefrom as part of a state or federal income tax
law applicable to Landlord's income, and any income, franchise, gross receipts,
corporation, capital levy, excess profits, revenue, rent, inheritance,
devolution, gift, estate, payroll or stamp tax by whatsoever authority imposed
or howsoever designated ox .any tax upon the sale, transfer and/or assignment of
Landlord's title or estate which at any time may be assessed against or become a
lien upon all or any part of the Premises or this leasehold). Notwithstanding
the foregoing, Tenant shall have no responsibility for late payment penalty or
interest if Tenant's payment was timely as above provided.
5.3 TAX ABATEMENT - Tenant shall have the right to contest in good
faith by appropriate proceedings diligently pursued the imposition or amount of
any real estate taxes assessed against the Lot or the Building or such personal
property taxes payable by it hereunder, including the right on behalf of, and in
the name of the Landlord, to seek abatements thereto. The Landlord shall
reasonably cooperate with Tenant, at Tenant's sole expense, in any such contest
or abatement proceedings. In the event that Tenant determines not to contest
such taxes and Landlord desires to file such contest, Landlord shall give
written notice of that fact to Tenant and shall have the sole right as to such
tax bill to contest in good faith by appropriate proceedings diligently pursued
the imposition or amount of any real estate taxes assessed against the Lot or
the Building or such other taxes payable by Tenant hereunder, including the
right to seek abatements thereto. In such event, the Tenant shall reasonably
cooperate with Landlord, at Landlord's sole expense, in any such contest or
abatement proceedings. Any tax abatement or rebate received shall be allocated
to the parties in the same proportion as payment.
If Landlord shall receive on behalf of the Lot or the Building a rebate
or abatement on any tax paid by Tenant, then after deducting therefrom any costs
reasonably incurred by Landlord in obtaining such rebate or abatement, all of
such net rebate or abatement relating to the Lot or the Building or to personal
property taxes assessed against the Tenant's personal property shall be returned
to Tenant to the extent that such rebate or abatement relates to payment made by
the Tenant and not reimbursed by Landlord. If Tenant shall receive on behalf of
the Lot or the Building a rebate or abatement on any tax paid by Tenant, then
after deducting therefrom any costs reasonably incurred by Tenant in obtaining
such rebate or abatement, all of such net rebate or abatement related to the
Lot, the Building or to personal property taxes assessed against the Tenant's
property shall be retained by Tenant, as its sole property, to the extent such
rebate or abatement relates to a payment made by Tenant and not reimbursed by
Landlord. The remaining portion of such net rebate or abatement shall promptly
be returned to Landlord.
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ARTICLE VI
LANDLORD'S COVENANTS
6.1 LANDLORD'S COVENANTS DURING THE TERM - Landlord shall be
responsible during the Term, at Landlord's expense and not as a cost allocable
to Tenant under Section 5. 1, to perform necessary repairs and replacements to
maintain the structural integrity of the Building, including but not limited to
the roof, exterior walls, windows and skylights, but excluding the cost of the
watertight integrity thereof not covered by warranties (except that such repairs
or replacements shall not be required in the case of settling or sagging of the
within standard engineering tolerance provided that the settling and sagging
does not affect the surface or structural integrity of the Building or render
the Building unsafe or unfit for normal use). In addition, Landlord agrees to
extend, at its sole cost and expense, the warranty on the roof of the Building
for ten (10) additional years, such that the roof shall be warranted for twenty
(20) years, and to extend the warranty on the windows to ten (10) years (in the
aggregate). Such warranty, however, shall be held in Landlord's name and shall
not be assigned to Tenant.
Landlord shall also be responsible for (i) all exterior maintenance,
repairs and replacements necessary to keep in good condition and working order
the trees, shrubs, plants, landscaping, parking areas, driveways and walkways on
the Lot, including, but not limited to, all lighting and other fixtures and
equipment serving such parking areas, driveways and walkways, and the onsite
septic system, (ii) providing the services and performing the maintenance work
set forth in Section 5.1 and Article XIII hereof, (iii) compliance with all laws
applicable to the Premises, the Lot or Office Park, (iv) all Capital
Replacements (as hereinafter defined) to the heating, ventilating, air
conditioning, plumbing, electrical, emergency, elevator and other mechanical
equipment and systems of the Premises (collectively, the "Premises Systems"), so
long as such replacement was not required due to negligence or excessive use of
such capital items by Tenant and (v) performing necessary repairs and
replacements to maintain the watertight integrity of the Building, including but
not limited to the roof, exterior walls, windows and skylights. "Capital
Replacement" shall mean any replacement, the cost of which is classifiable as a
capital expenditure as described in Section 5.1. Landlord will be commercially
reasonable and shall use good building management standards in making Capital
Replacement decisions. Landlord shall make all of such repairs and replacements
necessary to maintain the foregoing in good condition and working order and in
compliance with all laws, and all costs and expenses therefor (i.e. under this
Section 6.1) shall be chargeable to Tenant pursuant to the provisions of Article
V, except as otherwise expressly provided in Section 5.1 or this Section 6.1.
All other repairs and maintenance, except as specifically otherwise provided
herein, shall be the responsibility of the Tenant.
In the event that Tenant gives notice to Landlord of a condition which
Tenant believes requires Landlord's repairs or a condition which, if left
uncorrected, will necessitate Landlord's repair, then, in accordance with the
terms of this Section 6.1, Landlord shall respond promptly to investigate such
condition, and, if such repairs are Landlord's obligation hereunder, Landlord
shall commence promptly to repair same and to diligently complete said repair.
Tenant agrees during the Term to provide Landlord notice as soon as reasonably
possible of any condition known to Tenant which might require, or if left
uncorrected will necessitate Landlord's repair pursuant to this Section 6.1.
Tenant shall have the right to require, at reasonable times and with
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reasonable notice, a representative of Landlord to inspect the Premises for
repairs which may be the responsibility of Landlord.
6.2 INTERRUPTIONS - Landlord shall not be liable to Tenant for any
compensation or reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from power losses or shortages to the Building or from
the necessity of Landlord's entering the Premises, subject to Section 12.3, for
any of the proposes in this Lease authorized, or for repairing the Premises or
any portion of the Building or improvements on the Lot or within the Office
Park, provided, however, (i) Landlord shall use reasonable efforts to remedy
such losses or shortages as quickly as possible and (ii) Landlord, in making any
such entry, repairs or improvements shall not materially interfere with Tenant's
use and occupancy of the Premises. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any service or
performing any other covenant or duty to be performed on Landlord's part, by
reason of any cause beyond Landlord's reasonable control, Landlord shall not be
liable to Tenant therefor, nor, except as expressly otherwise provided in
Article XIII hereof, shall Tenant be entitled to any abatement or reduction of
rent by reason thereof, nor shall the same give rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Premises. Landlord agrees to provide Tenant with reasonable
advance notice prior to entering the Premises, except in the case of emergency.
Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency or until necessary repairs have
been completed, provided that (i) the Landlord shall complete repairs as soon as
reasonably possible and (ii) Landlord makes reasonable efforts to end the
stoppage. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use reasonable
efforts to avoid interference with Tenant's use and occupancy of the Premises.
ARTICLE VII
LANDLORD'S WARRANTIES
Landlord warrants and represents and covenants and agrees as follows:
(a) Landlord is the Tenant under the Ground Lease (as defined in
Section 2.1 hereof).
(b) Landlord has the power and authority to enter into this Lease and
perform the obligations of Landlord hereunder. This Lease and all other
documents executed and delivered by Landlord constitute legal, valid, binding
and enforceable obligations of Landlord, and there are no claims or defenses,
personal or otherwise, or offsets whatsoever to the enforceability or validity
of the Lease.
(c) Landlord agrees that all HVAC, mechanical and electrical equipment
in the Building shall, on the Term Commencement Date, be in good operating
condition.
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ARTICLE VIII
USE OF PREMISES
Tenant may use the Premises only for the Permitted Uses specified in
Section 1.1 of this Lease.
ARTICLE IX
PREPARATION OF THE PREMISES
9.1 INITIAL CONSTRUCTION
A complete set of final base building and Lot improvements plans and
construction drawings and specifications, such drawings and specifications to
include a detail schedule of core base Building finish items such as, but not
limited to, carpets, doors, hardware, ceiling grids/tiles, lavatory fixtures,
light fixtures, window blinds, lobby finishes and paint/wall coverings and
based on the preliminary base building plans, including, without limitation,
floor plans, elevations and site plan(s) (collectively, the "PBBP") and Base
Building Outline Specifications attached hereto as Exhibits B-1 and B-2,
respectively (collectively, the "Landlord's Plans") shall be prepared by
Landlord, at its sole cost and expense (all of such work shown on the
Landlord's Plans being collectively referred to as the "Landlord's Work"). In
the event of differences between the PBBP or the Landlord's Plans and the
Base Building Outline Specifications, the Base Building Outline
Specifications shall govern and control until the Landlord's Plans are
prepared. Landlord and Tenant agree to work together with Landlord's
architect, Symmes, Maini and McKee Associates, Inc. in order to achieve a
design that meets the standard set forth below. Furthermore, Landlord agrees
to use good faith and diligent efforts to deliver the Landlord's Plans to
Tenant on or before September 21, 2000, with the exception of electrical,
plumbing, and HVAC plans which shall be developed after said September 21,
2000 and shall, if coordinated with Tenant's MEP engineer, shall be delivered
to Tenant in accordance with Tenant's design development schedule, otherwise
such electrical, plumbing and HVAC plans shall be delivered by October 15,
2000 if Landlord elects not to use Tenant's MEP engineer. Upon receipt,
Tenant shall have ten (10) business days to comment upon the Landlord's
Plans. Landlord and Tenant shall use reasonable efforts to reach agreement on
the Landlord's Plans as soon thereafter possible. Tenant's approval of
Landlord's Plans shall not be unreasonably withheld, conditioned or delayed.
In reaching agreement, Landlord and Tenant shall each approve portions of the
Landlord's Plans that are in acceptable form and shall note their respective
objections to the portions that are unacceptable to each of them so as to
enable Landlord to continue construction and order materials in a timely
manner. Provided that the PBBP are finalized and attached to this Lease upon
execution of this Lease by Tenant, in the event that Landlord's Plans conform
with the PBBP, but Tenant does not approve the Landlord's Plans within ten
(10) business days of receipt thereof from Landlord, then the Scheduled Term
Commencement Date shall be extended for a number of days equal to the number
of Tenant Plan Delay Days, as such term is hereinafter defined. The number of
Tenant Plan Delay Days are defined as and shall be calculated by determining
the actual number of days as certified by Landlord and its architect that the
Term Commencement Date was delayed by such Tenant's failure to approve the
Landlord's Plans within the required ten (10) business days. Landlord agrees
to provide Tenant with written notice of such determination, such notice to
include reasonable detail describing the cause of the delay
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and the number of Tenant Plan Delay Days as certified by Landlord and its
architect. If Tenant and Tenant's Architect (as hereinafter defined) disagree
with the existence or calculation of Tenant Plan Delay Days as determined by
Landlord and its architect, then Tenant shall, within ten (10) business days of
receipt of Landlord's notice, notify Landlord of its disagreement, whereupon the
dispute shall be determined pursuant to the arbitration procedures described in
Section 9.6 hereof.
Landlord and Tenant hereby acknowledge and agree that, except as
otherwise set forth herein, following approval by Landlord and Tenant (which
shall be in writing as hereinafter provided), no amendments, modifications or
changes shall be made to the Landlord's Plans, the PBBP and/or the Base Building
Outline Specifications (during or after the permitting process) without Tenant's
prior written approval in each instance, which such approval shall not be
unreasonably withheld or delayed; provided, however, no such prior approval of
Tenant shall be required if the proposed amendments, modifications or changes
are, in Landlord's reasonable opinion (i) non-material in nature, (ii) replaced
by substantially equivalent or better items and at all times equal to or better
than that of the building located at 4 Technology Park Drive, Westford,
Massachusetts, and (iii) do not adversely affect the Premises. Without limiting
the foregoing, Landlord shall provide Tenant with prior written notice of all
proposed amendments, modifications or changes to the Landlord's Plans.
A complete set of construction plans and specifications for Tenant's
Work (as hereinafter defined) shall be prepared by Tenant's Architect, as
hereinafter defined (collectively, the "Tenant's Plans"). The Tenant's Plans
shall be furnished to Landlord as herein provided. Landlord and Tenant hereby
acknowledge and agree that Tenant shall notify Landlord within two (2) weeks
following the date of this Lease of its selection of an architect to be Tenant's
Architect for preparation of Tenant's Plans, and the costs of services of such
Tenant's Architect shall be borne solely by Tenant. Tenant's Architect (and
Tenant's Representatives) shall be actively involved in the design decisions and
shall be allowed reasonable access to the Lot and the Premises during
construction to monitor Landlord's compliance with the terms and provisions of
this Lease. Landlord and Tenant hereby further agree that Tenant shall be solely
responsible for coordinating with Tenant's Architect for the timely preparation
of Tenant's Plans in accordance with the terms and provisions of this Section
9.1. Attached as Exhibit M is a schedule (the "Schedule") setting forth the
respective dates by which Landlord and Tenant anticipate that (i) Landlord's
Plans shall have been delivered to and approved by Tenant, (ii) Tenant's Plans
shall have been delivered to and approved by Landlord, and (iii) certain
portions of Landlord's Work and Tenant's Work shall be substantially completed.
The parties agree to cooperate with each other and to exercise reasonable
efforts to complete the tasks described in the Schedule by the respective dates
set forth therein, Landlord and Tenant hereby further agreeing that, unless
otherwise expressly set forth herein, failure to meet any of such dates on the
Schedule shall not constitute a default or a delay of any type hereunder.
Tenant shall deliver the Tenant's Plans to the Landlord by not later
than the Scheduled Tenant's Design Completion Date, provided, however, that
Tenant furnishes to Landlord by not later than October 1, 2000 (i) any such
information to be contained in the Tenant's Plans that affects Landlord's Work,
and (ii) a list of "long lead items", including specifications thereto, for
those certain portions of Tenant's Work as determined by Landlord and Tenant
prior to such
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time. Notwithstanding the preceding sentence, Landlord and Tenant hereby
acknowledge and agree that the Scheduled Tenant's Design Completion Date and
said date of October 1, 2000 shall be extended for a number of days equal to the
number of actual days Landlord delayed delivering the Landlord's Plans and, so
long as such delay was not due to a Tenant's Delay as hereinafter defined, such
electrical, HVAC and plumbing plans described in the first paragraph of this
Section 9.1.1, to Tenant beyond the time periods hereinabove provided. Tenant
shall permit Landlord to review and provide input during the preparation of
Tenant's Plans. Upon receipt, Landlord shall have ten (10) business days to
comment upon the Tenant's Plans. Landlord's notice to Tenant shall include
reasonable detail describing the reason for such comment and/or the extent of
the incompatibility with reasonable specificity. Landlord and Tenant shall use
reasonable efforts to reach agreement on the Tenant's Plans within ten (10) days
of Tenant's receipt of Landlord's comments thereto. In reaching such agreement,
Landlord and Tenant shall each approve portions of Tenant's Plans that are
acceptable and shall note their respective objections to the portions that are
unacceptable to each of them so as to enable Landlord to continue construction
and order materials in a timely manner. If Tenant fails to deliver Tenant's
Plans (or any modifications thereto) by the date set forth above, Landlord may
require by prompt written notice to Tenant a reasonable adjustment in the
Scheduled Term Commencement Date for each day of actual delay. Any such
extension in time, whether mutually agreed to by Landlord and Tenant or
determined by their respective architects in the event of dispute pursuant to
Section 9.6, shall result in Tenant's Plan Delay Days as hereinbefore
determined. In addition, Landlord will not approve Tenant's Plans which involve
any construction, alterations or additions requiring unusual expense to readapt
the Premises to normal office use on the Term Expiration Date, unless Tenant
first gives assurances reasonably acceptable to Landlord that such readaptation
shall be made prior to such termination without expense to Landlord. All
revisions and modifications to the Tenant's Plans shall be made promptly by
Tenant and revised sets of Tenant's Plans shall be forthwith furnished to
Landlord upon Tenant's receipt thereof, Landlord hereby agreeing to inform
Tenant during the plan approval process and, in any event, prior to the
installation thereof, of any such items that may require unusual expense to
readapt the Premises as aforesaid. All revisions and modifications to the
Tenant's Plans shall be made promptly by Tenant and revised sets of Tenant's
Plans shall be forthwith furnished to Landlord upon Tenant's receipt thereof.
Landlord and Tenant hereby further agree to acknowledge in writing when final
approval by Landlord and Tenant of Tenant's Plans (and Landlord's Plans) has
occurred. Landlord's approval of Tenant's Plans shall not be unreasonably
withheld, conditioned or delayed.
Landlord shall have twenty (20) days after final approval of Tenant's
Plans and Landlord's receipt of final and complete sets of approved Tenant's
Plans, which such final approval has been acknowledged in writing by Landlord
and Tenant as aforesaid, to price the cost of Tenant's Work (as hereinafter
defined) in accordance with the second to last paragraph of Section 9.1.1.
Landlord and Tenant shall cooperate during the above time periods so
that each party makes the other aware of their progress with respect to the
foregoing plans, selections and pricing, as well as timing, availability or cost
constraints of Tenant's selections or specifications and proposed alternates.
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Landlord shall cause, at its sole cost and expense, except as expressly
set forth in this Lease, the Premises and all improvements on the Lot to be
completed in accordance with Landlord's Plans and Tenant's Plans, all of such
work to be performed by Landlord's general contractor, Gutierrez Construction
Co., Inc. After final approval of Landlord's Plans and Tenant's Plans (i.e. one
hundred percent (100%) completed) by Landlord and Tenant, the Tenant may request
changes to Landlord's Work or Tenant's Work (as applicable) by altering, adding
to, or deducting from Landlord's Work or Tenant's Work (as applicable) as set
forth in the agreed form of Landlord's Plans or Tenant's Plans, as applicable
(each such requested change is referred to herein as a "Change Order"). Landlord
shall perform Change Orders subject to the provisions hereinafter provided. A
Change Order requested by Tenant in Landlord's Work (or in Tenant's Work as such
term is defined in Section 9.1.1 hereof) which affects Landlord's Work may also
necessitate an adjustment in the Scheduled Term Commencement Date (as defined in
Section 9.2 hereof) and may result in Tenant Alteration Delay Days (as
hereinafter defined), in accordance with and subject to the terms and conditions
set forth below. Landlord shall notify Tenant in writing if such requested
Change Order shall result in Tenant Alteration Delay Days, and therefore an
adjustment in the Scheduled Term Commencement Date. In addition, Landlord agrees
to provide Tenant, upon Tenant's request, with sufficient itemization and
back-up documentation to facilitate analysis and to confirm the cost of any such
changes in the Landlord's Work or the Tenant's Work initiated by Tenant. Tenant
shall pay to Landlord an amount equal to the actual cost (as defined in Section
9.1.1 hereof) of any such changes initiated by Tenant, less any appropriate
credits for any Landlord's Work deleted, (hereinafter, the "Net Additional Cost
of Landlord's Work"). The Net Additional Cost of Landlord's Work shall be due
and payable to Landlord in the manner provided for in Section 9.1.1 hereof.
In the event that Tenant requests a Change Order which would, due to
materials or equipment having long delivery times or due to resulting sequencing
delays, and notwithstanding Landlord's diligent efforts, result in a delay in
the Term Commencement Date, then Tenant shall be deemed to have agreed that it
will pay Fixed Rent (as provided in Section 4.1) and additional rent hereunder
for a number of days equal to the actual number of days (the "Tenant Alteration
Delay Days") as certified by Landlord and its architect, by which the Term
Commencement Date would be delayed by such alterations or additions, giving due
consideration to Landlord's obligation to use diligent efforts to accelerate
construction to make up for lost time due to delays. Landlord agrees to
promptly, prior to Tenant's approval of any Change Order, provide Tenant with
written notice of such determination, such notice to include reasonable detail
describing the cause of the delay and the number of Tenant Alteration Delay Days
as certified by Landlord and its architect. Should Tenant and Tenant's Architect
disagree with the calculation of Tenant Alteration Delay Days as hereinabove
determined, then such disagreement shall be resolved pursuant to the provisions
of Section 9.6 hereof.
All Tenant improvements, changes and additions shall be part of the
Premises (and shall remain therein at the end of the Term), except for Tenant's
business fixtures, equipment and personal property (which such personal property
shall include, without limitation, demountable partitions, equipment and
telephone or computer systems except for telephone and computer systems wiring),
all of which fixtures, equipment and personal property shall remain the property
of the Tenant and shall be removed at the expiration of the Term; and such other
items shall be removed or left as the Landlord and Tenant agree in writing at
the time of Landlord's approval of
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the plans and specifications therefor. Tenant agrees to repair, at its sole cost
and expense, any damage to the Premises caused by any such removal by Tenant in
accordance with this paragraph.
9.1.1 TENANT'S WORK.
So long as Landlord has approved Tenant's Plans in writing, as
hereinabove referenced, and so long as Landlord receives the complete Tenant's
Plans (i.e. one hundred percent (100%) completed) by the Scheduled Tenant's
Design Completion Date (which such date may be extended as aforesaid), Landlord
and Tenant agree that Landlord's general contractor will construct the tenant
improvements set forth on the Tenant's Plans (hereinafter "Tenant's Work") with
respect to the Premises under a "Guaranteed Maximum Price" contract ("GMP"),
which shall include an amount for Landlord's contractors fee of six percent (6%)
of cost plus seven percent (7%) of cost for General Conditions (defined in
Exhibit L), whereupon all savings shall be divided equally between Landlord and
Tenant. Tenant shall have access to Landlord's books and records and may review
all bids and contracts to ensure appropriate savings are achieved. In order to
provide for payment by Tenant of the cost of Tenant's Work, the Net Additional
Cost of Landlord's Work, and any additional costs due to Change Orders provided
for hereunder, less said allowance(s), Tenant expressly covenants with Landlord
that Tenant agrees to pay Landlord, or its contractor, as the case may be,
within ten (10) business days of receipt of each of Landlord's monthly
requisitions therefor (not to be submitted more than once per calendar month),
the amount of such requisition for the Tenant's Work, the Net Additional Cost of
Landlord's Work and/or any Change Order, less such allowance(s) as aforesaid,
performed in the Premises for preceding month based on a percentage of
completion basis; provided, however that Tenant shall retain ten percent (10%)
of such monthly amounts due from Tenant to Landlord hereunder until Substantial
Completion of the Premises has been achieved as hereinafter provided in Section
9.2 and Landlord has provided to Tenant reasonably satisfactory evidence that
all liens have been released or lien waivers have been provided. Notwithstanding
any provisions of this Lease to the contrary, it is expressly agreed that all
costs of Tenant's Work shall be paid for out of the allowance(s) first and that
Tenant shall not be required to make any contribution to such costs and/or any
Net Additional Cost of Landlord's Work and/or any cost of Change Orders until
the full amount of the allowance(s) is expended.
Notwithstanding the foregoing, it is hereby acknowledged and agreed
that Landlord shall use good faith efforts to obtain third party permanent
non-recourse financing for the financing of an additional allowance equal to Ten
Dollars ($10.00) per rentable square foot, or $1,750,000, to be applied towards
Tenant's Work, which shall be subject to the financeability of Tenant. If such
financing is obtained, Landlord agrees to notify Tenant and to amortize such
applicable amount into the Fixed Rent due hereunder over the initial Term
hereunder, at a rate equal to nine and one-half percent (9.5%) per annum.
Landlord and Tenant hereby further agree to amend the Fixed Rent set forth in
Article I of this Lease so as to reflect any amount so provided to Tenant as an
additional allowance by Landlord hereunder.
At Tenant's request, each requisition shall include copies of all
subcontractor's and supplier's applications for payment and satisfactory
evidence of payment of all previous invoices submitted by subcontractors and
suppliers. In addition, Landlord's architect, Tenant's Architect
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and Tenant's Project Manager shall certify that the subject work specified in
each of such monthly requisitions has been substantially completed, and a copy
of such certification shall accompany each requisition furnished to Tenant
hereunder. Tenant's Architect and Tenant's Project Manager shall have the right
to inspect such work prior to certification. In no event shall any of such costs
due and payable hereunder remain unpaid by Tenant as of the Term Commencement
Date, except for any holdback amount as set forth in Section 9.2 hereof.
For purposes hereof, Landlord and Tenant further agree that the
certification of cost by Landlord's contractor, Gutierrez Construction Co.,
Inc., shall be based on the definition of cost of the work as more particularly
set forth in Exhibit L hereto. Any changes to the Tenant's Plans after the
approval of the Tenant's Plans (and any changes to Landlord's Plans after the
approval thereof as set forth in Section 9.1 above) or increase in such cost
shall be in accordance with the form of Work Change Order attached hereto as
Exhibit K.
Promptly after approval of Tenant's Plans, Landlord shall bid out the
major contracts in the pricing of the cost of Tenant's Work (specifically
excluding Landlord's Work hereunder), Landlord agrees to use good faith,
diligent efforts to obtain three (3) qualified bids from subcontractors selected
from a master list of subcontractors mutually prepared and agreed upon by
Landlord and Tenant prior to the soliciting of bids for any item of Tenant's
Work exceeding twenty-five thousand dollars ($25,000.00). The subcontractor
selected for the performance of the work shall be the subcontractor with the
lowest bid price; provided, however, that if Landlord, in its reasonable
judgment, determines that due to changed conditions (such as increased work
commitments on the part of the respective subcontractor, or other pertinent
factors) the selection of such low bidder could result in Subcontractor Delay
Days (as hereinafter defined), then Landlord shall provide written notice (a
"Landlord's Subcontractor Notice") thereof to Tenant, which notice shall
identify the low bidder and next lowest bidder and indicate the number of
Subcontractor Delay Day(s) that would result from selection of the low bidder
(giving due consideration of Landlord's obligations to use diligent efforts to
accelerate construction to make up for lost time to delays). Tenant shall have
four (4) business days upon receipt of such Landlord's Subcontractor Notice to
notify Landlord that either (i) Landlord should proceed with the original low
bidder (in which event the Scheduled Term Commencement Date shall be extended
for the number of days (the "Subcontractor Delay Day(s)") equal to the number of
Subcontractor Delay Days indicated in Landlord's Subcontractor Notice), or (ii)
Landlord's selection of the next lowest bidder is acceptable to Tenant (in which
event the Scheduled Term Commencement Date shall not be extended). Failure by
Tenant to respond within said four (4) business day period shall be deemed to
constitute acceptance by Tenant of Landlord's selection of the next lowest
bidder. Landlord agrees to use reasonable efforts to notify Tenant
simultaneously or forthwith upon Tenant's notification to Landlord as to its
election set forth in (i) and (ii) above, if Landlord has knowledge or a
reasonable basis to believe that a Subcontractor Delay Day(s) will likely result
due to Landlord's notification requirements hereunder, regardless of whether or
not Tenant elects to proceed with the original lowest bidder or not. In
addition, in the event that Landlord and Tenant are unable to agree on the cost
of any portion of said work, any disagreement shall be resolved pursuant to the
provisions of Section 9.6 hereof. Landlord shall obtain all permits, approvals
and certificate of occupancy for Tenant's Work, the cost of which shall be
included in said GMP. After receipt of Landlord's bids for such twenty-five
thousand dollars ($25,000.00) plus work, Landlord shall submit its GMP to
Tenant.
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Tenant may, within five (5) days after receipt thereof, propose revisions to
Tenant's Plans in order to reduce the GMP. Landlord agrees to work in good faith
with Tenant to reduce the GMP based on revised Tenant's Plans. Any such
revisions by Tenant to the Tenant's Plans hereunder may result in Tenant's
Alteration Delay Days, Landlord hereby agreeing to give Tenant prompt notice
upon receipt of a requested revision to Tenant's Plans setting forth the number
of Tenant Alteration Delay Days in the manner set forth in Section 9.1 above.
Upon commencement of the Tenant's Work, Landlord and Tenant hereby
further agree, each acting reasonably and in good faith, to attend and
participate in weekly construction meetings with Landlord's general contractor's
construction manager(s) during such construction process.
9.1.2 TENANT'S CONSTRUCTION WORK.
Tenant agrees that any construction included in Tenant's Plans which
Tenant specifies to be done by itself or its contractors (hereinafter referred
to as "Tenant's Construction Work"), which shall include, for example, Tenant's
installation of furniture, furnishings, telephones, movable equipment, security
and later changes or additions, shall be completed by and coordinated with any
work being performed by Landlord in such manner as to maintain harmonious labor
relations and not materially damage the Premises or Lot or materially interfere
with the operation of the Building or with any of Landlord's construction work
hereunder, including but not limited to the construction of the Landlord's Work
and Tenant's Work. Tenant (including its contractors, agents or employees) shall
have access to the Premises and may perform Tenant's Construction Work prior to
the Scheduled Term Commencement Date and prior to the commencement of the Term
so as to prepare the Premises for occupancy by Tenant, provided that (i)
Tenant's contractors, agents or employees work in a harmonious labor
relationship with Landlord's general contractor, (ii) reasonable prior written
notice is given to Landlord's general contractor specifying the work to be done,
and (iii) no work, as reasonably determined by Landlord, shall be done or
fixtures or equipment installed by Tenant in such manner as to materially
interfere with the completion of Landlord's Work and the Tenant's Work being
done by or for Landlord on the Premises. During the period of preoccupancy of
the Premises by Tenant in connection with Tenant's Construction Work prior to
the commencement of the Term, no Fixed Rent or additional rent or other charges
shall accrue or be payable, but otherwise such preoccupancy shall be subject to
all the terms, covenants and conditions contained in this Lease.
9.2 PREPARATION OF PREMISES FOR OCCUPANCY.
Landlord shall perform the Landlord's Work and Tenant's Work, and,
therefore, Landlord agrees to use diligent efforts to have the Premises ready
for occupancy on the Scheduled Term Commencement Date.
Landlord and Tenant agree that time is of the essence, and Landlord
agrees to use diligent efforts to accelerate construction to make up for time
lost due to any delay. Unless sooner terminated by Tenant pursuant to the
provisions of Section 9.2, the Term of this Lease shall commence on the date the
entire Premises are deemed "ready for occupancy" as set forth below,
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expressly excluding partial occupancy pursuant to Section 9.2.1 hereof (the
"Term Commencement Date").
The Premises shall be deemed "ready for occupancy" on the earlier of:
(a) the date on which Tenant occupies all or any portion of the
Premises for the Permitted Uses (occupancy under Section 9.1.2 shall not be
deemed occupancy for purposes of this Section); or
(b) (1) the date on which the construction of all of the Landlord's
Work and the Tenant's Work is Substantially Completed, as defined below, and (2)
Landlord has delivered to Tenant a permanent certificate of occupancy from the
Town of Westford or a temporary certificate of occupancy from the Town of
Westford which allows Tenant to use and occupy the Premises, including in all
cases use of the elevator(s), and which temporary certificate of occupancy is
not conditional on the performance of any work other than the Punch List Work as
defined below, except that such permit shall not be required as a condition of
Substantial Completion if Landlord is unable to secure the same due solely to
Tenant's failure to complete Tenant's Construction Work as specified in Section
9.1.2 above (which such date, subject to additional terms and provisions of this
Section 9.2, shall hereinafter be referred to as the date of "Substantial
Completion" or which such work shall hereinafter be referred to as
"Substantially Completed"). In any event, notwithstanding the achievement of
Substantial Completion, all Punch List Work shall be completed by no later than
thirty (30) days after the date of Substantial Completion, except as hereinafter
provided.
An AIA Certificate of Substantial Completion by the Landlord's
architect, Tenant's Architect and satisfactorily reviewed by Tenant's Project
Manager (which such Certificate shall be in the form attached hereto as Exhibit
C-1) shall evidence the Landlord's determination that it has performed all such
obligations, except for completing the landscaping work and completing the final
paving course, and minor items stated in such Certificate to be incomplete or
not in conformity with such requirements, or will not unreasonably interfere
with Tenant's use or occupancy of the Premises and all of which work shall be
identified and specified in the Certificate of Substantial Completion
(collectively such landscaping work, finish paving course work and minor items
are referred to herein as the "Punch List Work") shall be promptly completed on
or prior to the date of Substantial Completion. Tenant shall have the right
within fifteen (15) days after Tenant's receipt of said Certificate of
Substantial Completion to notify Landlord of its disagreement with said
Certificate and to identify additional items of Punch List Work, all of which
shall be completed by Landlord within thirty (30) days after notice thereof from
Tenant. Landlord and Tenant hereby further agree that on the date of Substantial
Completion and following preparation of the list describing the Punch List Work,
the ten percent (10%) retainage previously applied and withheld by Tenant as
aforesaid shall be forwarded to Landlord, subject to the terms and provisions of
Section 9.1.1, less two hundred percent (200%) of the cost of completion of the
Punch List Work (which shall be retained by Tenant pursuant to the terms of this
Section 9.2), unless previously withheld by Tenant from the last Landlord's
requisition.
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If weather materially and adversely interferes with Landlord's ability
to finish the final course of paving and outside work or such other Punch List
Work, which such work does not unreasonably interfere with Tenant's occupancy,
and the operation of Tenant's business therein, said work can be completed by
Landlord reasonably thereafter, so long as such delay does not and will not
interfere with or prevent Landlord from obtaining a certificate of occupancy
upon completion of all other work herein described.
After Landlord has completed all Landlord's Work and Tenant's Work,
including all Punch List Work, Landlord's architect shall forward to Tenant its
Certificate of Final Completion, such Certificate to be in the form attached
hereto as Exhibit C-2 and to be satisfactorily reviewed by Tenant's Architect
and Tenant's Project Manager, whereupon all amounts so withheld by Tenant
hereunder as security for completion of the Punch List Work shall be promptly
forwarded to Landlord. In addition, within sixty (60) days after completion of
all such work, including all Tenant's Construction Work by Tenant, Landlord
shall forward to Tenant a final, unconditional certificate of occupancy from the
Town of Westford, exclusive of any days due to Tenant's Delay. In the event that
Landlord fails to deliver the final, unconditional certificate of occupancy
within said sixty (60) day time period and the Town of Westford has issued a
cease and desist order (due solely to Landlord's responsibilities hereunder),
then Tenant shall have, in addition to such cure rights described in Section
26.18(b) of this Lease, the right to abate one hundred percent (100%) of the
Fixed Rent and additional rent due hereunder until such time as such certificate
has been obtained, so long as Landlord has been provided with at least three (3)
days prior written notice after issuance of such cease and desist order and
Landlord has not provided such certificate to Tenant within said three (3) day
period.
The phrase "Tenant's Delay" shall mean the aggregate number of days
(excluding any days of delay caused by or resulting from Force Majeure) equal to
the actual number of days that, notwithstanding its diligent and good faith
efforts to complete construction by the Scheduled Term Commencement Date, the
Landlord is delayed in completing its construction by the Scheduled Term
Commencement Date due to (i) the failure of the Tenant to deliver the Tenant's
Plans (or modifications thereto) to Landlord on the dates established pursuant
to Section 9.1 hereof, or (ii) a delay caused by Tenant performing the Tenant's
Construction Work pursuant to Section 9.1.2 hereof, or (iii) the number of
Subcontractor Delay Days pursuant to Section 9.1.1 hereof, or (iv) a delay or
stoppage requested in writing by Tenant, or (v) the number of Tenant Alteration
Delay Days resulting from Change Orders requested by Tenant pursuant to Section
9.1 hereof, or (vi) the number of Tenant Plan Delay Day(s) pursuant to Section
9.1 hereof, then the Term Commencement Date shall be deemed to have occurred on
the date, as certified in good faith by Landlord and its architect, that
Substantial Completion would have occurred had there not occurred such Tenant's
Delay, calculated by determining the number of days of Tenant's Delay as
aforesaid, giving consideration to Landlord's obligation under the second
paragraph of this Section 9.2 to accelerate to make up for time lost due to any
delays. Landlord agrees to promptly provide Tenant with written notice of such
Tenant's Delay promptly after the occurrence of such Tenant's Delay, such notice
to include reasonable detail describing the cause of the delay as certified by
Landlord's architect.
Notwithstanding the foregoing provisions, if the Premises are not
deemed ready for occupancy on or before the Outside Delivery Date (as defined
below) for whatever reason,
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Tenant may elect (i) to cancel this Lease at any time thereafter while the
Premises are not deemed ready for occupancy by giving notice to Landlord of such
cancellation which shall be effective ten (10) days after such notice, unless
within such ten (10) day period Landlord delivers the Premises ready for
occupancy as defined herein, in which event such notice of cancellation shall be
rendered null and void and of no further force or effect, or (ii) to enforce
Landlord's covenants to construct the Premises in accordance with the terms of
this Lease. In the event Tenant elects to enforce Landlord's agreement to
construct the Premises in accordance with this Lease, Tenant shall also have the
right to terminate this Lease if Landlord fails to complete the Premises within
the period of time set by any court of competent jurisdiction for such work to
be completed, or within such additional period of time from the date of
Landlord's default as may be mutually agreed to by Landlord and Tenant. Further,
notwithstanding any provisions of this Lease to the contrary, in the event that
the Premises are not deemed ready for occupancy on or prior to such date which
is sixty (60) days following the Scheduled Term Commencement Date (as such date
may be extended for reasons due to Force Majeure and/or to Tenant's Delay), then
the Tenant may elect to receive from Landlord as liquidated damages an abatement
of Fixed Rent (following commencement of rental obligations pursuant to Section
4.1 hereof) equal to one hundred percent (100%) of the daily Fixed Rent and
additional rent for each day the Tenant's Work and Landlord's Work is not
Substantially Completed sixty (60) days beyond the Scheduled Term Commencement
Date (as extended as aforesaid). In addition, in the event that the Premises are
not deemed ready for occupancy by the Scheduled Term Commencement Date (as such
date may be extended as aforesaid), Landlord agrees to use best efforts to
provide Tenant with "swing space" until the Premises are Substantially
Completed, such space to be leased to Tenant on such terms to be mutually agreed
upon by the parties. The foregoing remedies shall be Tenant's sole and exclusive
remedies for not having the Premises completed on or before the Outside Delivery
Date.
For purposes hereof, the Outside Delivery Date shall be deemed to refer
to that certain date which is ninety (90) days following the Scheduled Term
Commencement Date, as such date may be extended for a period equal to that of
(i) any delays due to Force Majeure as defined in Section 9.5 hereof, (ii) the
number of delay days caused by a Tenant's Delay as hereinbefore determined.
9.2.1 PARTIAL OCCUPANCY AND RENT COMMENCEMENT.
If the entire Premises are not ready for occupancy on the Scheduled
Term Commencement Date, the Tenant may elect, but shall have no obligation to,
occupy any portion or portions of the Premises which are ready for occupancy
when, in Landlord's opinion, it can be done without material interference with
remaining work. In such event, Tenant agrees not to materially interfere with
Landlord's construction of the Premises. In the event Tenant elects to take
occupancy of a portion of the Premises, that portion shall be deemed ready for
occupancy as to said portion on the date of occupancy of such portion and
Tenant's obligation to pay Fixed Rent and additional rent shall commence on said
date pro rata based on the square footage occupied compared to the total square
footage in the Premises. The foregoing provisions of this Section 9.2.1 shall
not apply to the rights of Tenant set forth in Section 9.1.2 hereof.
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9.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant (or their respective subcontractors), shall be done in a
good and workmanlike manner and in compliance with all applicable laws and all
lawful ordinances, regulations and orders of governmental authority and insurers
of the Building. Either party may inspect the work of the other at reasonable
times and shall promptly give notice of observed defects. Notice of said defects
shall be in writing and shall be rectified by Landlord or Tenant, as the case
may be, within thirty (30) days of the original date of notice. Failure to
provide notice hereunder shall not be the basis for any liability or for injury
or damage caused by such defect of or waiver of right to cause any defect to be
corrected.
9.4 REPRESENTATIVES
Landlord hereby acknowledges and agrees that only the following
persons, David Sommers, or any successors to either of them holding the same
title or any other person delegated the authority from either of them in writing
(hereinafter "Tenant's Construction Representatives") have the authority to act
on Tenant's behalf and represent Tenant's interest with respect to all matters
requiring Tenant's action in this Article. No consent, authorization or other
action by Tenant with respect to matters set forth in this Article shall bind
Tenant unless in writing and signed by one of the aforementioned persons.
Landlord hereby expressly recognizes and agrees that no other person claiming to
act on behalf of Tenant is authorized to do so. If Landlord complies with any
request or direction presented to it by anyone claiming to act on behalf of
Tenant who does not have the title and position mentioned above, such compliance
shall be at Landlord's sole risk and responsibility and shall not in any way
alter or diminish the obligations and requirements created and imposed by this
Article, and Tenant shall have the right to enforce compliance with this Article
without suffering any waiver or abrogation of any of its rights hereunder. All
actions requiring Tenant's Architect's review and/or certification shall be
subject to Tenant's Project Manager's satisfactory review and reasonable
approval. For purposes of this Article IX, the term "Tenant's Project Manager"
shall refer to Albert M. Livermore.
Tenant hereby acknowledges and agrees that only the following persons,
Arturo J. Gutierrez, John A. Cataldo, Dennis G. Bailey or P. Agustin Rios or any
successors to either of them holding the same title or any other person
delegated the authority from either of them in writing (hereinafter "Landlord's
Construction Representatives") have the authority to act on Landlord's behalf
and represent Landlord's interests with respect to all matters requiring
Landlord's action in this Article. No consent, authorization or other action by
Landlord with respect to matters set forth in this Article shall bind Landlord
unless in writing and signed by one of the aforementioned persons. Tenant hereby
expressly recognizes and agrees that no other person claiming to act on behalf
of Landlord is authorized to do so. If Tenant complies with any request or
direction presented to it by anyone claiming to act on behalf of Landlord who
does not have the title and position mentioned above, such compliance shall be
at Tenant's sole risk and responsibility and shall not in any way alter or
diminish the obligations and requirements created and imposed by this Article,
and Landlord shall have the right to enforce compliance with this Article
without suffering any waiver or abrogation of any of its rights hereunder.
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9.5 FORCE MAJEURE.
As used in this Article and elsewhere in the Lease, "Force Majeure"
shall mean a time extension equal to that of any delays when the party required
to perform the respective obligation is prevented from doing so, despite the
exercise of reasonable diligence, and such delay is caused by: (i) Acts of God,
(ii) changes in government regulations, (iii) casualty, (iv) strike or other
such labor difficulties, (v) unusual weather conditions, (vi) unusual scarcity
of or inability to obtain supplies, parts or employees to furnish such services,
or (vii) other acts reasonably beyond Landlord's control despite diligent
efforts to cure the same, but in no event shall the term include economic or
financing difficulties. Landlord shall provide Tenant with written notice of the
occurrence of a Force Majeure event promptly after the occurrence thereof, and
shall comply with its respective obligations) as soon as the cause for the delay
has (have) been eliminated.
9.6 ARBITRATION BY ARCHITECTS.
Whenever there is a disagreement between the parties with respect to
construction by Landlord of Landlord's Work or Tenant's Work, such disagreement
shall be definitively determined by the following procedure: Each of Landlord
and Tenant shall appoint one (1) independent architect (which such architect may
be Landlord's Architect and Tenant's Architect referenced in Section 9.1 above),
such two (2) architects will then (within five (5) days of their appointment)
appoint a third independent architect licensed in the Commonwealth of
Massachusetts with not less than ten (10) years experience. Each architect shall
establish within ten (10) days of their appointment the matter in dispute. In
case of any dispute with respect to dollar amounts or lengths of time or dates
such as the date of Substantial Completion, the dollar amount or length of time
or date shall be the average of the two closest determinations by the three (3)
architects, with the determination of the architect which was not closest to
another architect's determination excluded from such calculation. In case of any
dispute not involving dollar amounts or lengths of time or dates (i.e. the
approval of plans) the determination by at least two (2) of the three (3)
architects shall be required in order to resolve the matter in dispute. Landlord
and Tenant shall each bear the cost of the architect selected by them
respectively and shall share equally the cost of the third architect. During
such arbitration period, the parties agree to cooperate with one another so as
to proceed with construction and with their respective obligations hereunder in
a timely manner. Each determination under this Section 9.6 shall be binding upon
Landlord and Tenant.
9.7 WARRANTY OF LANDLORD'S WORK AND TENANT'S WORK.
Landlord hereby warrants and guarantees, at no extra cost to Tenant,
that the Landlord's Work and the Tenant's Work shall be free from defects in
workmanship and materials for a period of one (1) year after the Term
Commencement Date. Upon the expiration of said one (1) year period and except as
provided in Section 6.1 to the contrary and/or except as relating to a Landlord
repair, replacement and maintenance obligation set forth in said Section 6.1,
including without limitation roof, glass and exterior wall warranties, Landlord
shall assign to Tenant any and all warranties and guarantees with respect to
Landlord's Work and Tenant's Work and, to the extent that any such warranties
and guarantees are not assignable, Landlord agrees to enforce the same for the
benefit of Tenant, at Tenant's sole cost and expense. Tenant shall not be
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responsible to pay for any such warranties of less than one (1) year duration or
enforcement by Landlord against its own employees or against Gutierrez
Construction Co., Inc. or against any of its other affiliates (including their
respective employees). Landlord agrees to repair, at its sole cost and expense
any defects in Landlord's Work or Tenant's Work promptly after receipt of notice
therefrom from Tenant, provided that such notice from Tenant is received by
Landlord within said one (1) year period. In connection therewith, Tenant shall
notify Landlord promptly after it becomes aware of any such defects. Any repairs
or replacements or alterations to Landlord's Work or Tenant's Work after said
initial one (1) year period shall be chargeable to Tenant in accordance with and
subject to the provisions of Section 5.1 hereof.
ARTICLE X
COMPLIANCE WITH LAW
10.1 TENANT COMPLIANCE - Tenant shall comply, at Tenant's sole expense,
with all applicable laws, ordinances, regulations and orders of any governmental
authority (collectively "the Laws") if such compliance is necessitated by reason
of Tenant's actual use of the Premises, which use shall in any event be in
conformity with the Permitted Uses as specified in Section 1.1 of this Lease.
Except for Tenant's obligations under the preceding sentence, Landlord shall
comply with all Laws applicable to the Building, the Lot or the Office Park.
10.2 NOTICE - Tenant shall have the right upon giving notice to
Landlord to contest any obligation imposed upon Tenant pursuant to the
provisions of this Article and provided the enforcement of such requirement or
law is stayed during such contest and such contest will not subject the Landlord
to criminal penalty or jeopardize the title to the Premises or otherwise affect
the Premises in any material adverse way. Landlord and Tenant shall each
cooperate with the other in any such contest and shall execute any documents
reasonably required in the furtherance of such purpose.
ARTICLE XI
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
11.1 ALTERATIONS - Tenant may, from time to time, at its own cost and
expense and without the consent of Landlord, make non-structural non-roof
alterations, additions or improvements to the interior of the Premises
(collectively herein called "Alterations") whose cost in any one instance is
Fifty Thousand and 00/100 Dollars ($50,000.00) or less, provided Tenant first
notifies Landlord in writing of any such Alterations. If Tenant desires to make
any nonstructural non-roof Alterations costing in excess of Fifty Thousand and
00/100 Dollars ($50,000.00) in any one instance or any other alteration, Tenant
must first obtain the consent of Landlord thereto, which consent shall not be
unreasonably withheld, conditioned or delayed. In the instances where Landlord
consent is required above, if Landlord reasonably concludes that the Alterations
involve any construction, alterations or additions requiring unusual expense to
readapt the Premises so that the Premises can be used for the Permitted Uses as
defined in this Lease on the Term Expiration Date, then Landlord shall require
by written notice to Tenant at the time of approval that such readaptation will
be made prior to such Term Expiration Date without expense to Landlord.
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If Tenant desires to make any structural or roof alterations to the
Premises, Tenant must first obtain the consent of Landlord thereto. If Landlord
consents to alterations affecting such structural components or the roof,
Landlord shall be relieved of further maintenance and repair responsibility for
the structural components affected by such alterations, and Tenant shall assume
such responsibility, with respect to that portion of the structural components
(in its entirety), if any, to which the consent relates, except that Landlord
agrees upon request of Tenant to have such alterations be performed by Landlord
or a contractor hired by Landlord, at Tenant's expense, in which event Landlord
shall not be relieved of any responsibility it may have to the component to be
altered.
If Tenant desires to make any alterations to the precast panels, or to
the exterior of the Building or Lot, Tenant must first obtain the prior written
consent of Landlord thereto, which may be withheld in Landlord's sole
discretion.
Any and all such Alterations may be done by any general contractor
chosen by Tenant provided any such general contractor is reputable, bondable by
reputable bonding companies, carries the kind of insurance and in the amounts
set forth in Section 11.5 below. Notwithstanding the foregoing, no such bonding
is required for non-structural, non-roof Alterations.
11.2 LANDLORD PERFORMANCE OF ALTERATIONS - If Tenant, in its sole
discretion, wishes Landlord to perform the work of making Alterations for
Tenant, other than the Tenant's Work to be completed under Article IX, such work
shall be performed at actual cost, plus a fee of fifteen (15%) percent.
11.3 TENANT PERFORMANCE OF ALTERATIONS - Tenant in making any
Alterations shall cause all work to be done in a good and workmanlike manner
using materials equal to or better than those used in the construction of the
Tenant's Work and shall comply with or cause compliance with all laws and with
any direction given by any public officer pursuant to law. Tenant shall obtain
or cause to be obtained and maintain in effect, as necessary, all building
permits, licenses, temporary and permanent certificates of occupancy and other
governmental approvals which may be required in connection with the making of
the Alterations. Landlord shall cooperate with Tenant in the obtaining thereof
and shall execute any documents reasonably required in furtherance of such
purpose, provided any such cooperation shall be without expense and/or liability
to Landlord.
11.4 REMOVAL OF ALTERATIONS - At any time during the Term of this
Lease, or on the Term Expiration Date, Tenant may remove any Alterations made,
unless Landlord has indicated in writing at the time of approval of such
Alterations that such Alterations are required to remain on the Premises. In the
event of a removal of any Alterations by Tenant, Tenant shall, at its sole cost,
repair any damage to the Premises caused by such removal.
11.5 GENERAL PROVISIONS - At least annually if such Alterations have
occurred during the past calendar year, Tenant shall furnish to Landlord
as-built sepias and, if applicable, operating manuals, of the work done by
Tenant during such past year and copies of all permits issued in connection
therewith for all of Tenant's Alterations, whose cost in any one instance is in
excess of Fifty Thousand and 00/100 Dollars ($50,000.00). All of such
construction drawings
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must be prepared at Tenant's expense by an architect or engineer approved by the
Landlord and Landlord's engineer, which approval shall not be unreasonably
withheld or delayed. Landlord and Tenant shall initial the construction drawings
after the same have been submitted by Tenant to Landlord and approved by
Landlord. All of Tenant's Alterations which cost in any instance is in excess of
Fifty Thousand and 00/100 Dollars ($50,000.00), shall be constructed by a
reputable general contractor, and Landlord may require that the electrical,
heating ventilation and air conditioning, and sprinkler subcontractors be
approved by Landlord, such approval not to be unreasonably withheld or delayed.
Tenant shall have its contractor procure and maintain in effect during
the term of such Alterations, the following insurance coverages with an
insurance company or companies authorized to do business in the Commonwealth of
Massachusetts.
(a) Worker's Compensation and Occupational Disease Insurance in
accordance with the laws of the Commonwealth of Massachusetts, along with a "All
States" and "Voluntary Compensation" coverage endorsement.
(b) Employer's Liability insurance with a limit of $100,000.00 per
person per accident, $100,000.00 per person by disease, and $500,000.00 per
policy by disease.
(c) Comprehensive General Liability including Personal Injury and
Property Damage in the amount of a combined single limit of $2,000,000.00 each
occurrence. Coverage must include the following:
(1) premises - operations;
(2) elevators and hoists;
(3) independent contractor;
(4) contractual liability assumed under this contract.
(d) Comprehensive Auto Liability including Personal Injury and Property
Damage in the amount of a combined single limit of $500,000.00 each occurrence.
Coverage must include the following:
(1) owned vehicles;
(2) leased vehicles;
(3) hired vehicles;
(4) non-owned vehicles.
(e) Owner and Contractor Protective Liability including Personal Injury
and Property Damage in the amount of a combined single limit of $1,000,000.00
each occurrence.
ARTICLE XII
TENANT'S COVENANTS
12.1 MAINTENANCE AND REPAIR - Except as provided in Section 6.1 with
respect to maintenance, repair and other such obligations of Landlord and
Article XIII with respect to
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repair and restoration of damage or destruction arising out of a fire or other
casualty or the exercise of eminent domain, and except as to reasonable wear and
tear, Tenant shall: keep the Premises and all fixtures thereon and therein in
good repair, operating condition and working order; make and perform or cause to
be made or performed all interior maintenance, repairs, and replacements
necessary to keep the Premises in such condition, including, without limitation,
by their inclusion, interior repainting, and replacement of glass damaged or
broken and of floor and wall coverings worn or damaged; keep all roof drains
clear of blockage by snow and other obstructions or debris; except for Capital
Replacements (except as otherwise set forth in Section 6.1), keep all plumbing,
lighting, elevator, heating, ventilating, air conditioning and other utility and
mechanical systems in the Premises properly maintained and operating in good
operating condition; and except for Capital Replacements (except as otherwise
set forth in Section 6.1), properly maintain the plumbing, lighting, elevator,
heating, ventilating, air conditioning and other utility and mechanical systems
in accordance with any manufacturers warranty and product standards with fully
licensed contractors and under contracts, each reasonably acceptable to
Landlord, qualified to perform the service. Landlord and its agents reserve the
right to inspect the systems to insure proper maintenance in accordance with
Section 12.3 of this Lease. If Landlord, in Landlord's reasonable judgment,
determines such systems have not been properly and adequately maintained, as
herein required, then Landlord, after written notice to Tenant and the
expiration of the applicable grace period, shall have the right to remedy such
maintenance deficiency and apportion all reasonable costs of such inspections
and maintenance to Tenant's Common Area Maintenance Costs specified in Article
V, Landlord and Tenant hereby agreeing that written notice or grace period not
to be applicable in case of emergency with respect to persons or property.
Tenant further covenants to (i) neither commit nor suffer waste and
(ii) at the expiration or termination of this Lease peaceably to yield up the
Premises in such order, repair and condition as Tenant is required to maintain
hereunder, first removing all goods and effects of Tenant which Tenant is
required to remove or which Tenant is permitted to remove and desires to remove
and (iii) to repair all damage caused by such removal leaving the Premises clean
and neat and in a condition as required under the terms of this Lease. Any
property not so removed by Tenant shall be deemed abandoned and may be removed
by Landlord, at Tenant's cost.
12.2 SIGNS - Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed (but may be withheld in Landlord's sole discretion if Tenant (or any
permitted assignee or subtenant) is not leasing or subleasing and occupying at
least seventy-five percent (75%) of the Building), (a) paint, place or replace
any signs on the Lot or the Premises or anywhere on the exterior of the Building
(notwithstanding the provisions of Section 11.1 to the contrary), or (b) place
any curtains, blinds (other than standard vertical blinds), shades, awnings, or
flagpoles, or the like, in the Premises or anywhere on or in the Building
visible from outside the Building. Tenant shall pay the expenses involved in the
erection of any sign and of obtaining permits therefor. Except as otherwise
provided below with respect to initial Building signage, Tenant warrants that it
shall obtain (and furnish copies thereof to Landlord) all necessary permits and
approvals in compliance with local codes and ordinances prior to erecting any
such sign(s) and, at Landlord's request, Tenant shall remove said sign(s) upon
the termination of this Lease.
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In connection with Tenant's initial Building signage, Landlord shall
use reasonable efforts to obtain, on Tenant's behalf, all necessary permits and
approvals required pursuant to local codes and ordinances for the building and
site signage (i.e., up to two (2) wall signs on the Building and up to two (2)
monument signs providing for Tenant's identity at the entrances of the Office
Park, the location of which shall be mutually agreed upon by Landlord and
Tenant) set forth and described in Exhibit O hereto. Tenant's signage on the
Building shall be exclusive until such time as Tenant (or any permitted assignee
or subtenant) fails to lease, sublease and/or occupy at least seventy-five
percent (75%) of the Building. Tenant shall reimburse Landlord for the actual
third-party reasonable costs and expenses incurred by Landlord in connection
with obtaining said permits and approvals, including reasonable attorneys' fees
and disbursements. Tenant agrees to cooperate with Landlord during the
permitting process by (i) promptly executing the necessary documentation
reasonably requested by Landlord, and (ii) by furnishing the same to Landlord
promptly upon Landlord's request, but in no event later than seven (7) days
following Landlord's request. Further, the construction and erection of the
Building signage shall be Tenant's sole responsibility and at Tenant's sole cost
and expense. In the event that Tenant elects to expand the Premises, as set
forth in Exhibit J attached hereto, Tenant shall also have the right to up to
two (2) additional monument signs and up to two (2) additional wall signs on the
Expansion Space and/or Modified Expansion Space, as applicable, subject to the
aforesaid provisions. It is hereby acknowledged and agreed to by Landlord and
Tenant that the cost of the base for such monument signs shall be borne by
Landlord as provided in Exhibit B-2, Section 2B.
12.3 ENTRY AND INSPECTION - Tenant shall permit Landlord and Landlord's
agents and invitees at reasonable times and upon reasonable advance notice
except in emergency in which case notice may be given by telephone or in person,
during Tenant's regular business hours: to examine the Premises; and, if
Landlord shall so elect, to exercise its rights and perform its obligations
under this Lease; to show the Premises to prospective purchasers, prospective or
actual mortgagees, and prospective or actual institutional investors; and, at
any time within twelve (12) months preceding the expiration of the Term, to show
the Premises to prospective tenants, and to affix to any suitable part of the
exterior of the Building and/or the Premises, but not so as to interfere
unreasonably with any of the signs or the windows of the Tenant, a notice to
letting or selling the Premises, and to keep the same so affixed without
hindrance; provided, however, Landlord shall not unreasonably interfere with
Tenant's use or occupancy of the Premises.
12.4 MISCELLANEOUS - Tenant agrees during the Term and so long as
Tenant's occupancy continues:
(a) Not to permit its employees and officers to use any
parking spaces other than those described in Exhibit A and in Section 2.1 of
this Lease, and to make every reasonable effort to keep its invitees from using
any spaces other than those on the Lot; any governmental charges or surcharges
or other monetary obligations imposed by a governmental agency relative to
parking rights with respect to the Premises shall be considered as a Tax Expense
and shall be payable by Tenant in the manner and to the extent provided under
the provisions of Article V, subject to the Tenant's right to contest the same
at Tenant's expense in good faith and by appropriate proceedings.
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(b) Not to injure or deface the Premises, or Lot; and not to
permit in the Premises any public auction, nuisance or the emission from the
Premises of any objectionable noise or odor, nor any use thereof which is
contrary to law or ordinances (subject to the provisions of Article X hereof) or
liable to invalidate or materially increase the premiums for any insurance on
the Building or its contents, Landlord hereby agreeing that, as of the Term
Commencement Date the Permitted Uses will not, and thereafter during the Term,
to the best of Landlords knowledge, the Permitted Uses specified hereunder shall
not, cause an increase in premiums paid on such insurance carried by Landlord
hereunder.
(c) In case Landlord shall, without any fault on its part, be
made party to any litigation commenced by or against Tenant or by any party
claiming under Tenant, to pay, as additional rent, all actual third party
reasonable costs including, without implied limitation, reasonable counsel fees
incurred by or imposed upon Landlord in connection with such litigation, and, as
additional rent, also to pay all such reasonable costs and fees incurred by
Landlord in connection with the successful enforcement by Landlord of any
obligations of Tenant under this Lease.
12.5 SAFETY APPLIANCES - Tenant agrees to keep the interior of the
Building equipped with all safety appliances, required by law or ordinance or
any other regulation of any public authority and to procure all licenses and
permits so required because of the Permitted Uses.
12.6 LOADING - Tenant covenants and agrees not to place a load upon the
Premises exceeding 100 pound load per square foot of floor area above the first
floor of which the Premises are constructed, and 200 pounds live load per square
foot of floor area for at grade slab. In addition, Tenant agrees not to move any
safe, vault or other heavy equipment in, about or out of the Premises except in
such a manner which complies with the foregoing load limits. Tenant's business
machines and mechanical equipment which cause vibration or noise that may be
transmitted to the Building structure shall be placed and maintained by Tenant
in settings of cork, rubber, spring, or other types of vibration eliminators
sufficient to eliminate such vibration or noise.
12.7 LABOR OR MATERIALMEN'S LIENS - Tenant covenants and agrees not to
cause or permit any liens for labor or materials performed or furnished at the
request of Tenant or its agents, employees or contractors to attach to the
Premises, or in the event of any such lien so attached to the Premises, Tenant,
within fifteen (15) days after receiving notice of such lien, shall discharge or
bond over any such liens which may so attach. Tenant may contest any such lien
in good faith at Tenant's sole expense and by appropriate proceedings so long as
the Landlord's interest in the Premises is not jeopardized.
12.8 RULES AND REGULATIONS - Tenant agrees to comply with the Rules and
regulations set forth in Exhibit D hereof and all other reasonable Rules and
Regulations of general applicability to tenants and owners of other lots in the
Office Park, hereafter made by Landlord, of which Tenant has been given advance
written notice, for the care and use of the Premises, the Building, the Common
Areas and the Office Park and approaches as further described in the Office Park
Covenants attached hereto as Exhibit E. Such Rules and Regulations shall not
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unreasonably interfere with Tenant's use or occupancy of the Premises, and to
the extent any such Rules and Regulations conflict with this Lease, this Lease
shall control. Landlord shall enforce all such Rules and Regulations uniformly
against all tenants.
12.9 TENANT'S COVENANTS
(a) Tenant has the power and authority to enter into this
Lease and perform the obligations of Tenant hereunder. This Lease and all other
documents executed and delivered by Tenant constitute legal, valid, binding and
enforceable obligations of Tenant.
(b) Tenant covenants to pay when due all Fixed Rent and
additional rent due under this Lease and to pay directly to the utility provider
(if not payable to Landlord), all charges by public utility for telephone and
other utility services rendered to the Premises.
(c) This Lease document is a confidential document by and
between Landlord and Tenant and Tenant agrees that this Lease shall not be
copied and distributed or circulated to any person(s) other than to such
parties, and their respective mortgagees, successors or assigns, their legal
counsel or their accountants or to any prospective sublessees and assignees or
affiliates of Tenant, or to any prospective acquirers, investors, or lenders of
Tenant, or to regulatory authorities, or to the directors, shareholders or
officers of Tenant, consultants and contractors of Tenant (to the extent
required for them to adequately perform their duties) or as required by law,
without the prior written consent of Landlord. Nothing contained in this Section
shall prohibit the disclosure by Tenant of the essential terms of this Lease.
ARTICLE XIII
CASUALTY AND CONDEMNATION
13.1 CASUALTY - In case during the Term all or any substantial part
(i.e. requiring greater than twelve (12) months to rebuild, as reasonably
determined by Landlord's architect) of the Premises is damaged by fire or any
other casualty ("Substantial Casualty"), then this Lease shall, except as
hereinafter provided, terminate at Landlord or Tenant's election, which may be
made by written notice given to the other party within thirty (30) days after
the casualty, which notice of termination shall specify the effective date of
termination which shall not be more than sixty (60) days after the date of
receipt of notice of such termination. In the event of any such Substantial
Casualty, the Fixed Rent and additional rent shall be abated entirely as of the
date of such casualty. In the event of any fire or casualty to the Premises,
unless the Lease is so terminated, Landlord shall with reasonable diligence,
repair, replace and restore the Premises into substantially the same condition
as it was prior to the casualty for use and occupation to the extent of the
proceeds of insurance, less adjuster's fees, and other reasonable expenses of
collection plus insurance deductibles to be paid by Tenant as hereunder
provided. However, if such damage is not repaired and the Premises restored to
substantially the same condition as it was prior to such damage within a period
of twelve (12) full calendar months from the date of such damage, Tenant within
thirty (30) days from the expiration of such period or from the expiration of
any extension thereof pursuant to the terms hereof may terminate this Lease by
notice to Landlord, specifying a date not more than sixty (60) days after the
giving of such notice on which the term of this Lease shall terminate. The
period within which the required repairs
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may be accomplished shall also be extended by the number of days lost as a
result of unavoidable delays, which term shall be defined to include all delays
referred to as Force Majeure in Section 9.5 up to a maximum period of sixty (60)
days, and by the number of days lost as a result of Tenant's Delay (as defined
in Section 9.2 hereof). Tenant shall, in any fire or other casualty which
creates a Landlord repair obligation in accordance with the terms of this
Article, upon receipt of written notice and supporting back up documentation,
pay to Landlord prior to Landlord commencing construction of such repair, the
then applicable insurance deductible. In addition, Tenant shall pay Fixed Rent
as required by this Lease for any portion of the Term not covered by rent
insurance as required to be obtained by Landlord in Section 15.1.
If the Premises shall be damaged by fire or other casualty, the Fixed
Rent and other charges payable by Tenant under this Lease shall abate or be
reduced proportionately for the period in which, by reason of such damage, there
is substantial interference with Tenant's use and/or occupancy of the Premises.
Such abatement or reduction shall end, if and when, Landlord shall have restored
the Premises to substantially the same condition in which the Premises were
prior to such damage.
13.2 ADDITIONAL CASUALTY PROVISIONS
(a) Landlord shall not be required to repair or replace any of
Tenant's business machinery, equipment, cabinet work, furniture, personal
property and no damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises, necessitated by a fire or other
casualty; provided, however, Landlord shall use reasonable efforts not to
interfere with Tenant's use and occupancy of the Premises.
(b) In the event of any termination of this Lease pursuant to
this Article XIII, the Term of this Lease shall expire as of the effective
termination date as fully and completely as if such date were the date herein
originally scheduled as the Term Expiration Date. Tenant shall have access to
the Premises at Tenant's sole risk for a period of thirty (30) days after the
date of termination in order to remove Tenant's personal property except as
prohibited by any applicable governmental agency or official.
13.3 CONDEMNATION/EMINENT DOMAIN - In the event that the whole or
substantially all of the Building shall be permanently taken or appropriated by
eminent domain or shall be condemned for any public or quasi-public use, then
(and in any such event) this Lease and the Term hereof shall automatically be
terminated as of the effective date of such taking, appropriation or
condemnation.
In the event that more than a material part (i.e. greater than thirty
percent (30%)) of the floor area of the Premises, or any material part of the
means of access ( "material" in the case of access shall mean so as to
substantially interfere with the use of the Premises), or any material parking
("material" in the case of parking shall mean the reduction of parking spaces to
less than three and three tenths(3.3) parking spaces per one thousand (1,000)
square feet of Premises), shall be so taken, appropriated or condemned for a
period in excess of one (1) year, then (and in any such event) this Lease and
the Term hereof may be terminated at the election of Tenant by a
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notice in writing to Landlord of its election so to terminate within sixty (60)
days following the effective date of such taking, appropriation or condemnation.
With respect to reductions in parking, Landlord may suspend the effectiveness of
such notice by giving its own notice to Tenant within five (5) days of receipt
of Tenant's notice that Landlord shall either (i) remove the impairment to
Tenant's use of the Premises by repairing the Premises as soon as practicable,
or (ii) provide substitute parking spaces equal to the number taken within
reasonable proximity to the Premises within a reasonable time period, it being
agreed that reasonable time includes weather - related delays associated with
winter and spring site work and paving.
In the event of any such termination, this Lease and Term hereof shall
expire as of the date specified in such notice of termination from Tenant, which
date shall not be more than sixty (60) days after the date of such notice, as
fully and completely as if such date were the date herein originally scheduled
as the Term Expiration Date. If this Lease is not terminated as above set forth,
Landlord shall, with reasonable diligence and up to the amount of the award,
restore the remainder of the Premises, and the remainder of the means of access,
as nearly as practicably may be to the same condition as obtained prior to such
taking, appropriation or condemnation in which event (i) a just proportion of
the Fixed Rent and additional rent, according to the nature and extent of the
taking, appropriation or condemnation and the resulting permanent injury to the
Premises and the means of access thereto and parking shall be permanently
abated, and (ii) a just proportion of the remainder of the Fixed Rent and
additional rent, according to the nature and extent of the taking, appropriation
or condemnation and the resultant injury sustained by the Premises and the means
of access thereto and parking shall be abated until what remains of the Premises
and the means of access thereto and parking, shall have been restored as fully
as may be for permanent use and occupation by Tenant hereunder.
13.4 RESERVATION OF AWARD - Landlord reserves to itself any and all
rights to receive awards made for damages to the Premises, Building or Lot and
the leasehold hereby created, or any one or more of them, accruing by reason of
exercise of eminent domain and Tenant hereby releases and assigns to Landlord
all Tenant's rights to such awards, and covenants to deliver such further
assignments and assurances thereof as Landlord may from time to time request. It
is understood and agreed, however, that Landlord does not reserve to itself, and
Tenant does not assign to Landlord, any damages payable for (i) Tenant's
Property as defined in Section 18.1 of this Lease, or (ii) relocation expenses
recoverable by Tenant from such authority in a separate action.
ARTICLE XIV
RIGHTS OF MORTGAGEES
14.1 PRIORITY OF LEASE - Landlord shall use good faith, diligent
efforts to provide to Tenant a Subordination Non- Disturbance and Attornment
Agreement (in the form attached as Exhibit G-1) from any present holder (a
"Mortgagee") of any mortgage (a "Mortgage") and/or a Recognition Agreement (in
the form attached as Exhibit G-2) from any ground lessor now affecting the
Premises. Landlord shall use good faith, diligent efforts to obtain from any
future Mortgagee and any future lessor under any ground lease or superior lease
affecting the Premises, a Subordination, Non-Disturbance and Attornment
Agreement or Recognition Agreement, as applicable (substantially in the form
attached as Exhibit G-1 and Exhibit G-2, respectively, or in
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such other form as may be reasonably acceptable to Tenant, Landlord and such
Mortgagee or ground lessor, as applicable). Provided that Landlord has delivered
to Tenant such a Subordination, Non-Disturbance and Attornment Agreement from
each such present or future Mortgagee this Lease shall be subject and
subordinate to the lien of any Mortgage of the Landlord's leasehold interest in
the Lot and the Premises.
14.2 LIMITATION ON MORTGAGEE'S LIABILITY - Upon entry and taking
possession of the Premises for any purpose, the holder of a Mortgage and/or
ground lessor, as applicable, shall have all rights of Landlord and, during the
period of such possession or ownership, the duty to perform all Landlord's
obligations hereunder. Except during such period of possession, no such holder
shall be liable, either as mortgagee or as holder of a collateral assignment of
this Lease, to perform, or be liable in damages for failure to perform, any of
the obligations of Landlord, unless and until such holder shall enter and take
possession of the mortgaged premises for the purpose of foreclosing a Mortgage.
Upon entry for the purpose of foreclosing a Mortgage, such holder shall be
liable to perform all of the obligations of Landlord accruing after said entry,
provided that a discontinuance of any foreclosure proceeding shall terminate the
liability of the holder as Landlord.
14.3 NO PREPAYMENT OR MODIFICATION, ETC. - No Fixed Rent, additional
rent, or any other charge shall be paid more than thirty (30) days prior to the
due dates thereof, and payments made in violation of this provision shall
(except to the extent that such payments are actually received by a Mortgagee in
possession or in the process of foreclosing its mortgage) be a nullity as
against such Mortgagee, and, Tenant shall be liable to such Mortgagee for the
amount of such advance payments made from and after a default under the
applicable Mortgage. No agreement to modify this Lease so as to reduce the rent,
reduce the area of the Premises, shortens the Term, or otherwise materially
impairs the rights of Mortgagee shall be binding unless consented to in writing
by Landlord's Mortgagee(s) of record, if any.
14.4 NO RELEASE OF TERMINATION - No act or failure to act on the part
of Landlord which would entitle Tenant under the terms of this Lease, or by law,
to be relieved of Tenant's obligations hereunder or to terminate this Lease,
shall result in a release or termination of such obligations or a termination of
this Lease unless (i) Tenant shall have first given written notice of Landlord's
act or failure to act to Landlord's Mortgagees of record, if any, of which
Landlord has given written notice to Tenant of their name and address,
specifying the act or failure to act on the part of Landlord which could or
would give a basis to Tenant's rights and (ii) such Mortgagee(s), after receipt
of such notice, have failed or refused to correct or cure the condition
complained of within a reasonable time thereafter, but nothing contained in this
Section 14.4 shall be deemed to impose any obligation on any such Mortgagee to
correct or cure any such condition. "Reasonable time" as used above means and
includes a reasonable time to obtain possession of the mortgaged premises, if
the Mortgagee elects to do so, and a reasonable time to correct or cure the
condition if such condition is determined to exist, however, in no event shall
such time extend beyond sixty (60) days from the date Tenant provides notice to
Landlord's Mortgagee(s) as aforesaid.
14.5 MORTGAGEE'S ELECTION - Notwithstanding any other provision to the
contrary contained in this Lease, if prior to the Substantial Completion of
Landlord's obligations under
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Article IX, any holder of a first mortgage on the mortgaged premises enters and
takes possession thereof for the purpose of foreclosing the mortgage, such
holder may elect, by written notice given to Tenant and Landlord at any time
within thirty (30) days after such entry and taking of possession, not to
perform Landlord's obligations under Article IX, and in such event such holder
and all persons claiming under it shall be relieved of all obligations to
perform, and all liability for failure to perform, said Landlord's obligations
under Article IX, and Tenant may terminate this Lease and all its obligations
hereunder by written notice to Landlord and such holder given within thirty (30)
days after the day on which such holder shall have given its notice as
aforesaid.
14.6 CONTINUING OFFER - The covenants and agreements contained in this
Lease with respect to the rights, powers and benefits of a Mortgagee
(particularly, without limitation thereby, the covenants and agreements
contained in this Article XIV) constitute a continuing offer to any person,
corporation or other entity, which by accepting or requiring an assignment of
this Lease or by entry or foreclosure assumes the obligations herein set forth
with respect to such Mortgagee, and such Mortgagee shall be entitled to enforce
such provisions in its own name.
14.7 SUBMITTAL OF FINANCIAL STATEMENT - At any time, but not more than
annually during the Term of this Lease, within fifteen (15) days after request
therefor by Landlord (i.e. if requested by Landlord's Mortgagee(s)), Tenant
shall supply to Landlord and/or any Mortgagee of Landlord a current financial
statement, which such financial statement may be given by Tenant to Landlord in
the form of Tenant's current annual report, or such other then publicly
available financial information as may be reasonably required by any such party.
ARTICLE XV
INSURANCE
15.1 INSURANCE - Landlord shall procure and continue in force during
the construction of the Landlord's Work and Tenant's Work, Builders Risk
insurance (in commercially reasonable amounts given the size and scope of
Landlord's Work and Tenant's Work hereunder) whereby Tenant shall be named
additional insured. In addition, Landlord shall procure and continue in force
during the Term and the Extended Term(s) hereof, at Tenant's expense payable in
the manner set forth in Article V, fire and extended coverage insurance,
including vandalism, sprinkler leakage, and malicious mischief, upon the
Building on a full replacement basis, agreed value endorsement with agreed
values for the Building. The beginning coverage shall be in the amount as is
required by Landlord and its mortgagee up to the full replacement cost of the
Building and the improvements, on the Lot. The policies evidencing such
insurance shall provide that loss, if any, payable thereunder shall be payable
to the Landlord and/or the Tenant and/or any mortgagee of the Premises as their
respective interests may appear. A certificate of insurance evidencing the
foregoing shall be delivered to the Tenant prior to the execution of this Lease,
and certificates evidencing the renewal of such insurance shall be delivered to
Tenant, upon Tenant's request, at least thirty (30) days before the expiration
of any such policies and providing that the insurance shall not be canceled
within thirty (30) days prior written notice to Tenant. All such policies shall
be placed with responsible companies authorized to do business in, the State
wherein the Premises are located. The coverages required by this Article may be
provided by a single "package" policy. Any such policies shall carry a
deductible of five
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thousand dollars ($5,000) or such other amount mutually agreed upon by Landlord
and Tenant, and any such single "package" policy should include an endorsement
that the aggregate limit of such policy shall not be reduced below the minimum
limit required under this Lease due to claims relating to other properties
covered by such policy.
Tenant shall be responsible for notifying Landlord of additions,
alterations and improvements completed to the interior of the Premises for which
Tenant intends to insure under this Section 15.1. Notification shall include the
cost and description of such work and the date on which coverage should
commence.
Landlord shall also procure and continue in force during the Term and
Extended Term hereof, at Tenant's expense payable in the manner set forth in
Article V (i) rental interruption insurance for twelve (12) months; and (ii)
commercial general liability insurance, or the equivalent then customary form
providing for comparable coverages, written out on an occurrence basis
containing provisions adequate to protect the Landlord from and against claims
for bodily injury, including death and personal injury and claims for property
damage occurring within the Office Park and/or the Premises, such insurance
having body injury and property damage combined limits of not less than five
million dollars ($5,000,000) per occurrence.
15.2 TENANT LIABILITY INSURANCE/WORKMEN'S COMPENSATION - The Tenant
shall maintain Commercial General Liability Insurance at Tenant's expense,
including a standard contractual liability endorsement, with respect to the
Premises throughout the Term with combined single limit coverage of Two Million
Dollars ($2,000,000). The Tenant shall deliver to the Landlord within thirty
(30) days of Landlord's written request a certificate evidencing the aforesaid
coverage issued by insurance companies authorized to do business in
Massachusetts and providing that the insurance indicated therein shall not be
canceled without at least thirty (30) days prior written notice to Landlord. The
Landlord (and/or its Mortgagee(s)) be named as an additional named insured on
such policy. Tenant shall also keep, at Tenant's expense, all Tenant's employees
working in the Premises covered by workmen's compensation insurance in statutory
amounts and Tenant agrees to furnish Landlord with certificates thereof, upon
Landlord's reasonable request.
15.3 WAIVER OF SUBROGATION - The Landlord and Tenant hereby waive all
causes and rights of recovery against each other, their agents, officers and
employees for any loss occurring to the real or personal property of Landlord or
Tenant, regardless of cause or origin. Landlord and Tenant agree that any
policies presently existing or obtained on or after the date hereof (including
renewals of present policies) shall include a clause or endorsement (a "Waiver
of Subrogation") to the effect that any such release shall not adversely affect
or impair said policies or prejudice the right of the insured to recover
thereunder and that the insurer expressly waives its rights of subrogation
against Landlord or Tenant as the case may be, with respect to any claims under
any such policies. The parties further agree that if said Waiver of Subrogation
shall become unobtainable or unenforceable or shall void the respective
policies, then the respective insurance policies shall not be invalidated, and
said waiver shall become null and void and of no further force and effect.
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ARTICLE XVI
INDEMNIFICATION
16.1 TENANT'S AND LANDLORD'S INDEMNITY
(a) TENANT'S INDEMNITY - The Tenant shall, upon timely receipt of
written notice, indemnify, defend and hold the Landlord harmless from and
against any and all suits, claims, and demands (i) arising out of injury or
damage occurring at the Premises or Lot or Office Park because of the negligence
or willful acts of Tenant, its agents, servants, contractors and/or employees
including any construction activity undertaken by Tenant pursuant to the terms
of this Lease and/or (ii) resulting from the failure of Tenant to perform and
discharge its covenants and obligations under this Lease. In no event is Tenant
obligated to indemnify, defend or save harmless Landlord from any loss, injury,
or damage, or part thereof, not attributable to Tenant's negligence or willful
act or those of its agents, servants, or employees.
In the event the Landlord is notified of a claim, action or proceeding,
or becomes aware of an occurrence, which may result in indemnification by Tenant
as provided above, the Landlord shall give prompt written notice to Tenant and
provide complete particulars known by the Landlord. The Landlord shall
immediately forward to the Tenant every demand, notice, summons or other process
received by Landlord or its representatives.
Tenant has the exclusive right and obligation to defend any claim,
action, or proceeding wherein Landlord is entitled to indemnification under the
provisions of this Article, and Tenant may settle any such claim, action, or
proceeding without Landlord's consent or approval.
The Landlord will fully cooperate with the Tenant in the defense or
settlement of any claim, action, or proceeding.
The covenants and indemnifications set forth in this Section shall
survive the expiration or earlier termination of this Lease.
(b) LANDLORD'S INDEMNITY - The Landlord shall, upon timely receipt
of written notice, indemnify, defend and hold the Tenant harmless from and
against any and all suits, claims, and demands (i) arising out of injury or
damage occurring at the Premises or Lot or Office Park because of the negligence
or willful acts of Landlord, its agents, servants, contractors and/or employees
including any construction activity undertaken by Landlord pursuant to the terms
of this Lease and/or (ii) resulting from the failure of Landlord to perform and
discharge its covenants and obligations under this Lease. In no event is
Landlord obligated to indemnify, defend or save harmless Tenant from any loss,
injury, or damage, or part thereof, not attributable to Landlord's negligence or
willful act or those of its agents, servants, or employees.
In the event the Tenant is notified of a claim, action or proceeding,
or becomes aware of an occurrence, which may result in indemnification by
Landlord as provided above, the Tenant shall give prompt written notice to
Landlord and provide complete particulars known by the Tenant. The Tenant shall
immediately forward to tire Landlord every demand, notice, summons or other
process received by Tenant or its representatives.
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Landlord has the exclusive right and obligation to defend any claim,
action, or proceeding wherein Tenant is entitled to indemnification under the
provisions of this Article, and Landlord may settle any such claim, action, or
proceeding without Tenant's consent or approval.
The Tenant will fully cooperate with the Landlord in the defense or
settlement of any claim, action, or proceeding.
The covenants and indemnifications set forth in this Section shall
survive the expiration or earlier termination of this Lease.
16.2 HAZARDOUS MATERIALS - Tenant shall not (either with or without
negligence) cause or permit its employees, agents, contractors or invitees to
cause the escape, disposal or release of any "Hazardous Substances and
Materials" (as defined below) onto or in the vicinity of the Premises other than
the ordinary disposal or release of customary office and cleaning supplies.
Tenant shall not allow the storage or use of such substances or materials in any
manner not sanctioned by law, nor allow to be brought into the Premises any such
materials or substances (except to use in the ordinary course of Tenant's
business). Upon Landlord's request, Tenant shall furnish to Landlord an
inventory of the identity of such substances or materials used in the ordinary
course of Tenant's business. Without limitation, for purposes of this Lease,
"Hazardous Substances and Materials" shall include biohazardous materials and
those materials or substances regulated by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq., the Massachusetts Hazardous Waste Management Act, as
amended, M.G.L. c.21C, the Massachusetts Oil and Hazardous Material Release
Prevention and Response Act, as amended, M.G.L. c.21E, any applicable local
ordinance or bylaw, and the regulations adopted under these acts (collectively,
the "Hazardous Waste Laws"). If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
hazardous substances or materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises and if on such reasonable basis it is
determined Tenant caused the release. If Tenant receives from any federal, state
or local governmental agency any notice of violation or alleged violation of any
Hazardous Waste Law, or if Tenant is obligated to give any notice under any
Hazardous Waste Law, Tenant agrees to forward to Landlord a copy of any such
notice within three (3) days of Tenant's receipt or transmittal thereof. In
addition, Tenant shall execute affidavits, representations and the like from
time to time at Landlord's reasonable request concerning Tenant's best knowledge
of belief regarding the presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify Landlord in the manner provided
in Section 16.1 of this Lease from any release of hazardous substances or
materials on the Premises occurring while Tenant is in possession, or elsewhere
if caused by Tenant, its agents, employees or contractors. Landlord retains the
right to inspect the Premises at all reasonable times, upon reasonable notice to
Tenant, to ensure compliance with this Section. The within covenants shall
survive the expiration or earlier termination of the Lease Term.
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16.3 LANDLORD'S INDEMNIFICATION FOR HAZARDOUS MATERIALS. Landlord
represents and warrants to Tenant that (i) Landlord has delivered to Tenant
copies of all reports, assessments, tests, notices and other documentation in
Landlord's possession relating to the presence, use, storage, release or
disposal of any biologically or chemically active or other hazardous substances
or materials on, in, under, onto, from or in the vicinity of the Premises and
the Lot, and (ii) to the best of Landlord's knowledge, no such substances or
materials have been used, stored, released or disposed of on, in, under, onto,
from or in the vicinity of the Premises and the Lot, except for the use,
storage, release or disposal of customary office and cleaning supplies in
customary quantities and in accordance with all applicable laws. If Landlord
receives from any federal, state or local governmental agency any notice of
violation or alleged violation of any Hazardous Waste Law, or if Landlord is
obligated to give any notice under any Hazardous Waste Law in connection with
the Office Park, Landlord agrees to forward to Tenant a copy of any such notice
within three (3) days of Landlord's receipt or transmittal thereof.
Landlord shall indemnify, defend and hold harmless Tenant from all
suits, claims, demands, liabilities, damages, costs and expenses arising out of
the use, storage, release or disposal of any such substances or material on, in,
under, onto, from or in the vicinity of the Premises and the Lot because of the
negligence or willful acts of Landlord, its agents, servants, or employees
including any construction activity undertaken by Landlord pursuant to the terms
of this Lease. In no event is Landlord obligated to defend or hold harmless
Tenant from any loss, injury, or damage, or part thereof, not attributable to
Landlord's negligence or willful act or those of its agents, servants, employees
or contractors.
In the event the Tenant is notified of a claim, action or proceeding,
or becomes aware of an occurrence, which may result in indemnification by
Landlord as provided above, the Tenant shall give prompt written notice to
Landlord and provide complete particulars known by the Tenant. The Tenant shall
immediately forward to the Landlord every demand, notice, summons or other
process received by Tenant or its representatives.
Landlord has the exclusive right and obligation to defend any claim,
action, or proceeding wherein Tenant is entitled to indemnification under the
provisions of this Article, and Landlord may settle any such claim, action, or
proceeding without Tenant's consent or approval.
The Tenant will fully cooperate with the Landlord in the defense or
settlement of any claim, action or proceeding.
ARTICLE XVII
ASSIGNMENT AND SUBLETTING
17.1 TENANT SUBLET - Landlord hereby grants to Tenant the right to
assign this Lease or to sublet all or any portion of the Premises throughout the
Term, provided Tenant first obtains Landlord's consent to such assignment or
subletting in writing. Landlord's consent shall not be unreasonably withheld,
delayed or conditioned. Landlord's consent to an assignment or subletting shah
be accompanied by a statement addressed to Tenant and the assignee or subtenant,
upon which statement Tenant and the assignee or subtenant may conclusively rely,
stating that Tenant is not in default under the Lease (or setting forth what
respects Tenant is in
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default), that this Lease has not been amended or modified (or setting forth
such amendments or modifications), the expiration date of this Lease, and the
date to which rent has been paid to Landlord hereunder. It shall not be
unreasonable for Landlord to withhold its consent or disapprove a sublease or
assignment if the proposed sublessee or assignee conflicts with any exclusionary
provision (s) of other leases in the Office Park. As additional rent, Tenant
shall reimburse Landlord promptly for reasonable legal and other expenses
incurred by Landlord in connection with any request by Tenant for consent to
assignment or subletting. No assignment or subletting shall affect the
continuing primary liability of Tenant (which, following assignment, shall be
joint and several with the assignee).
17.2 Intentionally Deleted.
17.3 LANDLORD'S RESPONSE - In the event Landlord does not respond to
the written request for such consent within thirty (30) days of the date of such
request from Tenant, Landlord's consent shall be deemed given.
17.4 SUBSIDIARY ASSIGNMENT - Notwithstanding anything to the contrary
herein contained, Tenant may assign or sublet all or any portion(s) of the
Premises at any time to a subsidiary of Tenant, to the entity with which or into
which Tenant may merge, to any entity with which Tenant is affiliated, or to a
successor to all or substantially all the assets of Tenant or a division of
Tenant without the need for Landlord's consent to such assignment or subletting,
so long as Tenant remains primarily liable (with respect to such an assignment
or sublet to a division of Tenant) and so long as such assignee agrees directly
with Landlord by written instrument reasonably satisfactory to Landlord and to
such assignee to be bound by all of the obligations of Tenant. In the event of
any such assignment or subletting for which no consent by Landlord is required,
Tenant shall not be obligated to share Rent Differential as set forth in Section
17.5.
17.5 SUBLEASE AND ASSIGNMENT RENT DIFFERENTIAL - If this Lease shall be
assigned, or if the Premises or any part hereof shall be sublet or occupied by
any person other than Tenant, Landlord may, at any time and from time to time,
collect rent from the assignee, subtenant or occupant and apply the net amount
collected to the annual Fixed Rent, additional rent and all other charges herein
reserved, but no such assignment, subletting, occupancy or collection shall be
deemed a waiver of the provisions of this Section 17.5, or acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
further performance of the terms, covenants and conditions of this Lease on the
part of Tenant to be performed. Further, no liability hereunder of Tenant shall
be discharged, reduced, released or impaired in any respect by any waiver,
indulgence or extension of time which Landlord may grant to the then owner of
Tenant's interest in this Lease, whether or not notice thereof has been given or
consent from Tenant has been obtained.
Landlord shall have the option to require that any portion of rental
received by Tenant from subtenant or assignee to which Landlord is entitled
pursuant to this Section 17.5 be remitted directly to Landlord, provided that
such amounts are credited pro rata against Tenant's rental obligations.
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If Landlord consents to a sublease or assignment, and said sublease or
assignment is for a greater rent than the Fixed Rent or additional rent due from
Tenant to Landlord under this Lease, Tenant shall pay to Landlord (or to any
mortgagee in possession or successor to Landlord through a Foreclosure) on a
monthly basis during the term of any approved sublease or assignment as
additional rent hereunder, in addition to the Fixed Rent and other payments due
under this Lease, an amount equal to fifty percent (50 %) of the difference
between all fixed rent and additional rent from the time actually received by
Tenant under the sublease or assignment and the Fixed Rent and additional rent
and other payments due under this Lease, after Tenant has recouped its
out-of-pocket expenses with respect to such sublease or assignment including
without limitation, reasonable real estate brokerage commissions, reasonable
legal fees and the reasonable costs of refurbishment of the Premises for such
sublease or assignment (the "Rent Differential"). In case any Fixed Rent or
additional rent is prepaid to Tenant under the sublease or assignment, only so
much as exceeds the net present value of Tenant's obligations to pay Fixed Rent
and additional rent (reasonably estimated) for the balance of the Term for the
portion of the Premises subject to such sublease or assignment shall be taken
into account in computing the Rent Differential or the amounts due any
foreclosing mortgagee or other successor landlord under the next succeeding
sentence. In the event that a tax exempt entity becomes a mortgagee in
possession or a landlord under this Lease through foreclosure or deed in lieu of
foreclosure by reason of a default under the applicable mortgage or through a
participating mortgage transaction or otherwise, in calculating the amount due
in the immediately preceding sentence, there shall be no credit given to Tenant
for its out-of pocket expenses involved in such assignment or subletting. In the
event the sublease is for less than the full Premises hereunder, the above rent
adjustment shall be pro rated on a square foot basis.
Anything contained in the foregoing provisions of this Section to the
contrary notwithstanding, neither Tenant nor any other person having interest in
the possession, use, occupancy, or utilization of the Premises shall enter into
any lease, sublease, license, concession, or other agreement for use, occupancy,
or utilization of space in the Premises which provides for rental or other
payment for such use, occupancy, or utilization based, in whole or in part, on
the net income or profits derived by any person from the Premises leased, used,
occupied, or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and any such purported lease, sublease,
license, concession, or other agreement shall be absolutely void and ineffective
as a conveyance of any right or interest in the possession, use, occupancy, or
utilization of any part in the Premises.
ARTICLE XVIII
TENANT'S PROPERTY
18.1 TENANT'S PERSONAL PROPERTY - Tenant's trade fixtures,
equipment and personal property (collectively called "Tenant's Property")
however installed or located on the Premises shall be and remain the property of
the Tenant and may be removed. Tenant shall repair any damage caused by such
removal or installation. Tenant's Property 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, unless caused by the
negligence or intentional misconduct of
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Landlord, its employees, agents or contractors, no part of said loss or damage
is to be charged to or be borne by Landlord.
18.2 REMOVAL - Upon the expiration or termination of this Lease, the
Tenant will remove Tenant's Property from the Premises; if within ten (10) days
after such expiration or termination, Tenant shall not have removed same, it
shall be deemed abandoned by Tenant. Tenant shall pay to Landlord upon demand
the costs and expenses thereafter incurred by Landlord in removing and storing
Tenant's Property and repairing any damage caused to the Premises or to the
Building caused by the removal of same.
18.3 NO LIEN - In no event (including a default under this Lease) shall
Landlord have any lien or other security interest in any of Tenant's Property
located in the Premises or elsewhere and Landlord hereby expressly waives and
releases any such lien or other security interest however created or arising.
ARTICLE XIX
TENANT'S DEFAULT
19.1 EVENTS OF DEFAULT.
(a) If the Tenant shall default in the payment of rent or other
payments required by this Lease and shall fail to cure said default within seven
(7) business days after receipt of written notice of said default from the
Landlord; or
(b) If the Tenant shall default in the performance or observance of any
other agreement or condition on its part to be performed or observed, and if the
Tenant shall fail to cure said default within thirty (30) days after receipt of
written notice of said default from the Landlord (or if said default shall
require longer than thirty (30) days to cure and the Tenant fails to commence
curing said default within thirty (30) days after receipt of written notice
thereof and to prosecute the curing of the same to completion with due
diligence); or
(c) If the Tenant shall file a voluntary petition in bankruptcy or
shall be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking any arrangement, composition, liquidation or dissolution under
any present or future Federal, State, or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for debtors, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of the Tenant or of all or any substantial part of its properties, or
of the Premises, or shall make any general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due; or
(d) If a court shall enter an order, judgment or decree approving a
petition filed against the Tenant seeking any arrangement, composition,
liquidation, dissolution or similar relief under the present or future Federal,
State or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors, and such order, judgment or decree shall remain
un-vacated or un-stayed for an aggregate of sixty (60) days (whether or not
consecutive) (any of the events or conditions described in (a), (b), (c) or (d)
above being called an "Event of
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Default" in this Lease), then, if any Event of Default has occurred, the
Landlord at any time thereafter may give written notice to the Tenant specifying
the occurrence giving rise to such Event of Default and stating that this Lease
and the Term hereby demised shall expire and terminate on the date specified in
such notice which shall be at least ten (10) days after the giving of such
notice, and upon the date specified in such notice, this Lease and the Term,
estate and interest hereby demised shall expire and terminate by limitation and
all rights of the Tenant under this Lease shall cease.
In the event that this Lease is terminated under any of the provisions
contained in this Section 19.1, Tenant covenants to pay forthwith to Landlord,
as compensation, a single lump-sum payment equal to the excess of the net
present value of the total rent reserved for the residue of the Term (exclusive
of any unexercised Extended Term(s) remaining at the time of termination) over
the fair market rental value of the Premises (including additional rent) for
said residue of the Term estimated as of the date of termination. If Landlord
does not receive a single lump-sum payment from Tenant as aforesaid, Tenant
covenants and agrees to pay punctually to Landlord all the sums and 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 under the
foregoing covenants, Tenant shall be credited with any amount paid to Landlord
as compensation as provided in the first sentence of this Section 19.1 and also
with the net proceeds of any rents obtained by Landlord by reletting the
Premises, after deducting all Landlord's expenses in connection with such
reletting, including, without implied limitation, all repossession costs,
brokerage commissions, reasonable fees for legal services and reasonable expense
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 reasonable judgment
considers advisable or necessary to relet the same, and no action of Landlord in
accordance with the foregoing on failure to relet or to collect rent under
reletting shall operate or be construed to Tenant's liability as aforesaid.
So long as at least twelve (12) months of the Term remain unexpired at
the time of such termination, in lieu of any other damages of indemnity and in
lieu of full recovery by Landlord of all sums payable under all the foregoing
provisions of this Section 19.1, Landlord may, by written notice to Tenant, at
any time after this Lease is terminated under any of the provisions contained in
Section 19.1, or is otherwise terminated for breach of any obligation of Tenant
and before such full recovery, elect to recover, and Tenant shall thereupon pay,
as liquidated damages, an amount equal to the aggregate of the Fixed Rent and
additional rent accrued under Article IV in the twelve (12) months ended next
prior to such termination plus the amount of Fixed Rent and additional rent of
any kind accrued and unpaid at the time of termination and less the amount of
any recovery by Landlord under the foregoing provisions of this Section 19.1 up
to the time of payment of such liquidated damages.
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Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
19.2 REPOSSESSION - At any time after any such expiration or
termination of this Lease, the Landlord, without further notice, may enter upon
and reenter the Premises to repossess itself of the Premises, by summary
proceedings, ejectment or otherwise, and may remove the Tenant and all other
persons and any and all property from the Premises (including without limitation
Tenant's Property) as hereinabove provided.
ARTICLE XX
NOTICES
All notices, demands, requests and other instruments which may or are
required to be given by either party to the other under this Lease shall be
given in writing. All notices, demands, requests and other instruments from the
Landlord to the Tenant shall be deemed to have been given when mailed by United
States Registered or Certified Mail, postage prepaid, return receipt requested,
addressed to the Tenant at Tenant's Address with a copy to Testa, Hurwitz &
Thibeault, LLP, 125 High Street, Boston, Massachusetts 02110 Attention: Real
Estate Department; and all notices, demands, requests and other instruments from
Tenant to the Landlord shall be deemed to have been given when mailed by United
States Registered or Certified Mail, postage prepaid, return receipt requested,
addressed to the Landlord at Landlord's Address with a copy to Hinckley, Allen &
Snyder LLP, 28 State Street, Boston, Massachusetts 02109-1775 Attn: Gloria M.
Gutierrez, Esq.; except that where any period of time commences under this Lease
with notice, such notice shall be deemed given, and such period shall be deemed
to commence, when postal records indicate delivery was first attempted or
rendered for delivery if refused.
ARTICLE XXI
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant paying the
fixed rent and additional rent and observing the terms, covenants and conditions
on Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Premises demised hereby.
ARTICLE XXII
HOLDING OVER
In the event that Tenant occupies any portion of the Premises beyond
the Team Expiration Date, such holding over shall constitute an agreement by
Tenant to pay one hundred fifty percent (150%) of the Fixed Rent and additional
rent then applicable for each month or portion thereof in which Tenant shall
retain possession of the Premises or any part there after termination of this
Lease, whether by lapse of time or otherwise due hereunder. In addition,
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Tenant agrees to pay all damages (including consequential damages) sustained by
Landlord on account of such holdover. The provisions of this subsection shall
not operate as a waiver by Landlord of any right of re-entry provided in this
Lease.
ARTICLE XXIII
MEMORANDUM OF LEASE
At the time of the execution of this Lease, Landlord and the Tenant
shall execute an instrument recordable in form containing those provisions
including but not limited to the Term, the commencement and expiration date, and
such other information as necessary or appropriate to protect the interests of
Tenant hereunder and to satisfy the notice of lease statute of Massachusetts.
Such instrument shall be substantially in the form attached hereto as Exhibit N.
The Landlord or Tenant may record the same following the execution of this
Lease.
ARTICLE XXIV
SURRENDER OF PREMISES
Upon the expiration of the Term or early termination thereof, Tenant
shall promptly peaceably yield up and surrender the Premises in a good and clean
condition, and in the same condition as Tenant is required to maintain the
Premises hereunder during the Term, reasonable wear and tear and damage by fire,
casualty or eminent domain excepted.
ARTICLE XXV
ESTOPPEL CERTIFICATES
Upon the written request of either party, at any time and from time to
time, Landlord and Tenant agree to execute and deliver to the other within
fifteen (15) business days after receipt of such request, a written instrument
(substantially in the form attached hereto as Exhibit I), duly executed:
(1) Certifying that, if true, this Lease has not been modified and is
in full force and effect or, if there has been a modification of
this Lease, that this Lease is in full force and effect as
modified, stating such modifications;
(2) Specifying the date to which the rent has been paid;
(3) Stating whether or not to the best knowledge, information and
belief of the party executing such instrument, the other party
hereto is in default and, if such party is in default, stating the
nature of such default;
(4) Stating the commencement date of the Term; and
(5) Stating which options to extend the Term have been exercised, if
any.
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Any such statement delivered pursuant to this Article may be relied
upon by any prospective purchaser or mortgagee of the Premises or any
prospective assignee of any such mortgagee.
ARTICLE XXVI
ADDITIONAL PROVISIONS
26.1 BROKER - Landlord and Tenant warrant to each other that no broker
other than those specified in Section 1.1 of the Lease have been retained by the
warranting party in connection with the negotiation and consummation of this
Lease. Each party agrees to defend, indemnify and save the other harmless from
and against any and all claims for a commission arising out of a breach of the
warranty made by such party in the first sentence of this Section 26.1. Landlord
agrees to pay the commission due to said broker specified in Section 1.1 hereof.
This Section 26.1 shall survive the expiration or earlier termination of this
Lease.
26.2 BIND AND INURE - The obligations of this Lease shall run with the
land, and this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that only the
Landlord named herein shall be liable for obligations accruing before the
beginning of the Term and thereafter each successive owner of Landlord's
interest in the Lot and the Premises shall be liable only during its ownership
period as hereafter provided. Each successive owner of the Landlord's interest
in the Lot and Premises shall give Tenant written notice of its assumption of
the obligations of Landlord under this Lease and upon such written notice to
Tenant shall be liable only for obligations accruing during the period of its
ownership, said liability terminating as to future liability upon termination of
such ownership and passing to the successor in ownership and the giving of such
notices to Tenant. Except as expressly provided below with request to an
"Affiliate" of Landlord, Landlord shall not transfer its interest in the
Premises or the Lot under this Lease prior to the full completion of the
Landlord's Work and Tenant's Work (including, but not limited to the completion
of all punch-list items and the issuance of the permanent Certificate of
Occupancy by the Town of Westford) without the prior consent of Tenant, which
may be withheld in Tenant's sole discretion. Notwithstanding the foregoing,
Landlord shall have the right to transfer its interest in the Premises or the
Lot, without Tenant's prior written consent and prior to such time, to a limited
partnership controlled by The Gutierrez Company and having The Gutierrez Company
as its sole general partner so long as Landlord provides Tenant with a written
assignment and assumption agreement evidencing such assignees agreement to
assume all of Landlord's obligations under this Lease.
26.3 PROVISIONS SEPARABLE - It is agreed that if any provisions of this
Lease shall be determined to be void by any court of competent jurisdiction in
Massachusetts, then such determination shall not affect any other provision of
this Lease, all of which other provisions shall remain in full force and effect;
and it is the intention of the parties hereto that if any provision of this
Lease is capable of two constructions, one of which would render the provision
void, and the other of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
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26.4 ENTIRE AGREEMENT - This instrument contains the entire and only
agreement between the parties as to the Premises, and no oral statements or
representations or prior written matter not contained in this instrument shall
have any force or effect. This Lease shall not be modified in any way except by
a writing subscribed by both parties.
26.5 GOVERNING LAW - This Lease shall be governed by and construed and
enforced in accordance with the laws and courts of the Commonwealth of
Massachusetts.
26.6 NO WAIVER - Failure of either party to complain of any actor
omission on the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver of any rights hereunder. No waiver
by either party at any time, express or implied, or any breach of any provisions
of this Lease shall be deemed a waiver of a breach of any other provision of
this Lease or a consent to any subsequent breach of the same or any other
provision. The receipt by Landlord of Fixed Rent or additional rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach by Landlord, unless such waiver shall be signed by
Landlord. If any action of any party shall require the consent or approval of
the other party, the consent to or approval of such action on any one occasion
shall not be deemed a consent to or approval of said action on any subsequent
occasion or a consent to or approval of any other action on the same or any
subsequent occasion, and such consent or approval shall not be unreasonably
withheld or delayed.
26.7 RIGHTS SEPARATE - Any and all rights and remedies which either
party may have under this Lease or by operation of law, either at law or in
equity, upon any breach, shall be distinct, separate and cumulative and shall
not be deemed inconsistent with each other; no one of them whether exercised by
the other party or not, shall be deemed to be exclusive of any other, and any
two or more of all of such rights and remedies may be exercised at the same
time.
26.8 SINGULAR AND PLURAL - Words and phrases used in the singular shall
be deemed to include the plural and vice versa, and nouns and pronouns used in
any particular gender shall be deemed to include any other gender.
26.9 HEADINGS - The various terms which are defined in Articles of this
Lease or are defined in Exhibits annexed hereto shall have the meanings
specified in such Articles and such Exhibits for the purposes of this Lease and
all agreements supplemental thereto, unless the context clearly indicates the
contrary.
26.10 PARKING - Tenant's occupancy of the Premises shall include the
exclusive use of six hundred eighty-five (685) parking spaces on the Lot.
Tenant's parking spaces shall be known and referred to in this Lease as the
"Building Parking Area" (excluding any Expansion Space as may be hereinafter
included pursuant to Exhibit J), and shall be shown as such on the Landlord's
Plans. As set forth in Section 2.1 hereof, the Building Parking Area may be
expanded pursuant to Exhibit J hereto). In the event that the Expansion Space is
constructed by Landlord pursuant to the provisions of Exhibit J, then, subject
to the provisions of Exhibit J, the Building Parking Area shall (i) be relocated
to an area designated by Landlord within the parking area (or expanded in such
area(s)) as shown on Exhibit P attached hereto and designated as such on said
Exhibit P,
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Tenant hereby agreeing that such relocation area designated by Landlord on said
Exhibit P is acceptable to Tenant, and (ii) be increased by two hundred
forty-nine (249) parking spaces.
26.11 NON-RECOURSE - Tenant agrees to look solely to Landlord's then
equity interest in the Premises and the lot and the proceeds thereof at the time
owned or the proceeds of any insurance carried by Landlord pursuant to this
Lease for recovery of any judgment from Landlord; it being agreed that neither
Landlord (original or successor), nor any partner (general or limited),
associate, participant, principal (disclosed or undisclosed), agent, employee,
trustee or other fiduciary, beneficiary, officer, or other person or entity in
or of any partnership, association, joint venture, corporation or other entity,
trust, or estate from time to time owning Landlord's interest in this Lease,
shall ever be personally liable for any such judgment or for the payment of any
monetary obligation to Tenant with respect to matters arising out of this Lease
(it being agreed by Tenant that such exoneration from personal liability is and
shall be absolute and complete with no exception whatsoever). With respect to
any services to be furnished or obligations to be performed by Landlord to
Tenant, except with respect to the negligence of Landlord, its employees, agents
or contractors, Landlord shall never be liable for failure to furnish or perform
the same when prevented from doing so by strike or lockout (not limited to the
Premises or the Office Park), breakdown, accident, order or regulation of or by
any governmental authority, or failure of supply, or inability by the exercise
of good faith, diligent efforts to obtain supplies, parts or employees necessary
to furnish such services, or because of war or other emergency, or for any act
of God or other Force Majeure, as defined in Section 9.5 above, causes beyond
Landlord's reasonable control, or for any cause due to any Tenant's Delay (as
defined in Article IX hereof) or negligence or willful misconduct of Tenant,
Tenant's invitees, customers, servants, agents, employees, licensees or any
person claiming by, through or under Tenant.
With respect to any obligations to be performed by Tenant to Landlord,
other than the payment of rent and other sums due under this Lease, except with
respect to the negligence Tenant, its employees, agents or contractors, Tenant
shall never be liable for failure to furnish or perform the same when prevented
from doing so by strike or lockout (not limited to the Premises or the Office
Park), breakdown, accident, order or regulation of or by any governmental
authority, or failure of supply, or inability by the exercise of good faith,
diligent efforts to obtain supplies, parts or employees necessary to furnish
such services, or because of war or other emergency, or for any act of God or
other Force Majeure, as defined in Section 9.5 above, causes beyond Tenant's
reasonable control, or for any cause due to any act or negligence or willful
misconduct of Landlord, Landlord's invitees, customers, servants, agents,
employees, licensees or any person claiming by, through or under Landlord.
26.12 NO SURRENDER - The delivery of keys to any employees of Landlord
or to Landlord's agent or any employee thereof shall not operate as a
termination of this Lease or a surrender of the Premises.
26.13 NO ACCORD AND SATISFACTION - No acceptance by Landlord of a
lesser sum than the Fixed Rent and additional rent then due shall be deemed to
be other than on account of the earliest installment of such rent due, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed as accord and satisfaction, and
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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.
26.14 ACCESS - Subject to the terms and provisions of this Lease,
Tenant shall have twenty-four (24) hours, seven (7) days per week access to the
Premises.
26.15 SECURITY DEPOSIT
A. A "Security Deposit" in the initial amount equal to $3,158,750.00
shall be delivered to Landlord upon the Term Commencement Date. Such Security
Deposit shall be held by Landlord without liability for interest and as security
for the performance of Tenant's obligations under this Lease. The Security
Deposit shall be in the form of a letter of credit, which letter of credit shall
(a) be in form and substance reasonably acceptable to Landlord, (b) name
Landlord as its beneficiary, (c) expire no earlier than sixty (60) days after
the Term Expiration Date, except as noted below, and (d) be drawn on an
FDIC-insured financial institution satisfactory to Landlord. Landlord
acknowledges that, as of the date hereof, Fleet National Bank and Citizens Bank
are acceptable financial institutions for the issuance of the letter of credit.
If the initial term of the letter of credit will expire prior to sixty (60) days
after the Term Expiration Date, Tenant shall from time to time, as necessary,
renew or replace the original and any subsequent letter of credit not less than
sixty (60) days prior to the stated expiration date so that it will remain in
full force and effect until sixty (60) days after the Term Expiration Date of
the Lease. If Tenant fails to furnish such renewal or replacement at least sixty
(60) days prior to the stated expiration date of the letter of credit then held
by Landlord, Landlord may draw upon such letter of credit and hold the proceeds
thereof (and such proceeds need not be segregated) as a Security Deposit
pursuant to the terms of this Section 26.15. Following any such draw upon the
letter of credit, however, Tenant shall have the right to substitute a letter of
credit meeting the requirements set forth herein for the cash Security Deposit
then held by Landlord and thereafter Landlord shall promptly return any cash
held from any cash draw to Tenant. Any renewal or replacement for the original
or any subsequent letter of credit shall meet the requirements for the original
letter of credit as set forth above, except that such replacement or renewal
shall be issued by a national bank reasonably satisfactory to Landlord at the
time of the issuance thereof.
B. Landlord may, from time to time, without prejudice to any other
remedy, use all or a portion of the Security Deposit to cure any default by
Tenant that remains uncured after the expiration of any applicable notice and
grace periods. Following any such application of the Security Deposit, Tenant
shall, within thirty (30) days of demand, at Tenant's option, either (i) restore
the letter of credit to its full amount (as the same may have previously been
reduced in accordance with the terms hereof), or (ii) provide Landlord with an
additional cash security deposit in an amount equal to the amount of Security
Deposit applied by Landlord. If Tenant is not in default at the termination of
this Lease, after Tenant surrenders the Premises to Landlord in accordance with
this Lease and all amounts due Landlord from Tenant are finally determined and
paid by Tenant or through application of the Security Deposit, the balance of
the Security Deposit shall be returned to Tenant. If Landlord transfers its
interest in the Premises during the Term, Landlord shall assign the Security
Deposit to the transferee and, provided the transferee accepts such assignment
and assumes Landlord's obligations with respect to the return of the Security
Deposit, in writing, Landlord shall thereafter have no further liability for the
return of
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such Security Deposit. Upon request by Tenant, Landlord shall provide Tenant
with a copy of the assignment and assumption or other written documentation that
was entered into to effectuate the transfer of the Security Deposit. Landlord
shall not be required to segregate the Security Deposit from its other accounts.
Landlord may only draw on the letter of credit to cure a default by Tenant that
remains uncured after the expiration of any applicable notice and cure period.
C. In the event the Lease is assigned by Tenant (subject to the terms
of this Lease), the letter of credit to be furnished hereunder as a Security
Deposit may be procured by either Tenant or Tenant's assignee, provided that
such letter of credit shall remain subject to all of the terms and conditions of
this Section 26.15. Landlord shall deliver the original prior letter of credit
to the prior tenant simultaneously upon the delivery of the replacement letter
of credit.
D. Notwithstanding the foregoing, Landlord agrees that the Security
Deposit shall be returned to Tenant upon expiration of the fifth (5th) year of
the Term if Tenant has not been in default beyond any applicable notice and cure
periods under this Lease more than twice in any calendar year and is not in
default beyond any applicable notice and cure periods under this Lease at the
end of the fifth (5th) year of the Term.
26.16 ROOFTOP COMMUNICATION EQUIPMENT - Subject to the provisions
hereinafter provided and so long as Tenant (or any permitted assignee or
subtenant) is leasing, subleasing and occupying at least seventy-five percent
(75%) of the Premises, Tenant shall have the exclusive right from time to time
during the Term hereof to install rooftop communication equipment (i.e.
satellite or antenna devices) on the roof of the Building. Subject to applicable
law, matters of title, and the consent of Landlord (which consent shall not be
unreasonably withheld, conditioned or delayed), Tenant, at its sole cost and
expense, has the right to install such equipment on the roof of the Building.
The size and location of the installation shall be at a site acceptable to
Landlord, and the approval of any such size and location shall not be
unreasonably withheld, conditioned or delayed by Landlord. Tenant shall install
the equipment in accordance with sound construction practices, and in accordance
with all applicable laws, rules, codes and ordinances, and in a good and
workmanlike manner. Tenant shall use such roofing contractor required to comply
with the existing roof warranties, as designated by Landlord. Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
liability or loss arising from or out of the installation or removal of such
rooftop communication equipment. Upon expiration of the Term, Tenant shall be
responsible for the removal of the same and for repairing any damage caused
therefrom.
26.17 EARLY TERMINATION RIGHT - In the event that Landlord has not
secured all applicable permits and approvals (with all appeal periods having
expired and no appeals having been filed) to commence construction of the
Landlord's Work by November 30, 2000, then Tenant shall have the right to
terminate this Lease by giving written notice thereof on or after December 1,
2000 to Landlord (unless within thirty (30) days after such notice, Landlord
procures such permits and approvals and furnishes Tenant with copies thereof, in
which event such notice of termination shall be rendered null and void and of no
further force or effect),unless the delay was caused directly by Tenant. Said
termination right shall be Tenant's sole and exclusive remedy at law or in
equity for Landlord's failure to secure the applicable permits and approvals on
or before November 30, 2000.
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26.18 LANDLORD'S AND TENANT'S RIGHT TO CURE
(a) LANDLORD'S RIGHT TO CURE - If Tenant shall at any time
fail to perform its obligation in accordance with the provisions of this Lease
and Tenant does not commence the cure of such failure within thirty (30) days of
notice thereof (except in the event of emergencies), and thereafter diligently
prosecute such cure to completion, then Landlord shall have the right, but shall
not be obligated, to enter upon the Premises and to perform such obligation,
notwithstanding the fact that no specific provision for such substituted
performance by Landlord is made in this Lease with respect to such default. In
performing such obligation, Landlord may make any reasonable payment of money or
perform any other reasonable act. All reasonable sums so paid by Landlord
(together with interest at the rate set forth in Section 4.2 hereof), and all
necessary incidental reasonable third party costs and expenses in connection
with the performance of any such acts by Landlord, shall be deemed to be
additional rent under this Lease and shall be payable to Landlord within ten
(10) days after receipt by Tenant of a detailed invoice setting forth such costs
and expenses. Landlord may exercise the foregoing rights without waiving any
other of its rights or releasing Tenant from any of its obligations under this
Lease.
(b) If Landlord fails to perform any obligation under this
Lease (except with respect to the common areas and facilities of the Office Park
in the event that Tenant is not the sole Tenant in the Office Park) which
obligation is material to Tenant's use and enjoyment of the Premises and such
failure continues for more than thirty (30) days after written notice from
Tenant (provided that, if correction of such failure reasonably requires a
period longer than thirty (30) days, and if Landlord commences such correction
within thirty (30) days and prosecutes such correction to completion with
diligence and continuity, Landlord shall be allowed such longer period as may be
reasonably necessary to complete such correction), Tenant may, upon ten (10)
business days' notice to Landlord of its intention so to do and Landlord's
failure to commence such cure within said ten (10) day period, but Tenant shall
not be obligated to, cure any such failure, and all reasonable costs and
expenses incurred by Tenant in curing such failure (including without limitation
reasonable attorney's fees and interest on such costs and expenses at an annual
rate equal to the so-called prime rate of interest published from time to time
by THE WALL STREET JOURNAL (or substitute publication reasonably selected by
Landlord if THE WALL STREET JOURNAL ceases to publish such information) plus
three percentage points) shall be reimbursed by Landlord to Tenant within ten
(10) days after Landlord receives a written detailed bill from the Tenant. If
Landlord fails to reimburse Tenant for any such costs and expenses within thirty
(30) days after Landlord receives said detailed written bill therefor, Tenant
shall have the right to apply such unreimbursed amounts against fifteen percent
(15%) of the monthly Fixed Rent due hereunder until such amounts due to Tenant
hereunder have been reimbursed in full by Landlord.
26.19 GROUND LEASE PROVISIONS
(a) If the Ground Lease terminates or Tenant incurs any
liabilities, costs or expenses as a result of a default or breach of Landlord
under the Ground Lease (not due because of the negligence or willful acts of
Tenant, its agents, servants or employees), then (i) Landlord shall indemnify
and hold harmless Tenant from and against all damages, costs, and expenses
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suffered by Tenant and arising out of such termination, default or breach, in
the manner provided in Section 16.1(b) hereof and in addition, (ii) Tenant shall
have such self-help rights set forth in Section 26.18(b). Landlord covenants not
to commit or suffer any act or omission that will breach or cause a default
under the Ground Lease.
(b) Landlord shall use diligent and good faith efforts to
cause the ground lessor under the Ground Lease to fulfill its obligations under
the Ground Lease. Tenant shall be entitled to participate with Landlord in the
enforcement of the Landlord's rights under the Ground Lease.
(c) Landlord hereby agrees to waive its right to terminate
the Ground Lease pursuant to Article II, Section 1(b) of the Ground Lease or
otherwise terminate the Ground Lease prior to the Term Expiration Date of this
Lease.
(d) Landlord hereby agrees not to make any amendments or
modifications to the terms and provisions of the Ground Lease which would
materially affect Tenant's rights, obligations and interests under this Lease
without Tenant's prior written consent, such consent not to be unreasonably
withheld, conditional or delayed.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as
of this 17th day of August , 2000.
LANDLORD: Nashoba Westford Realty Trust
By: /s/ Arturo J. Gutierrez
---------------------------------------------------
Arturo J. Gutierrez, as Trustee but not individually
By: /s/ John A. Cataldo
---------------------------------------------------
John A. Cataldo, as Trustee but not individually
TENANT: NetScout Systems, Inc.
By: /s/ David P. Sommers
---------------------------------------------------
Its: Chief Financial Officer
--------------------------------------------------
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EXHIBIT "A"
PLANS SHOWING PREMISES, THE LOT AND PARK
AND COMMON AREAS OF THE PARK
(INCLUDING THE BUILDING PARKING AREA)
Plans entitled A1.1, A1.2 and A1.3 prepared by Symmes, Maini & McKee
Associates, Inc., Sheet C3 - "Layout and Materials Plan" prepared by Symmes,
Maini & McKee Associates dated 8-10-00.
[PLANS OF PREMISES]
<PAGE>
EXHIBIT "A-1"
LEGAL DESCRIPTION OF THE LOT
A certain parcel of land located on Littleton Road, Westford, Middlesex
County, Massachusetts consisting of approximately twelve (12) areas shown as
"Lot" on Exhibit A. Landlord and Tenant hereby acknowledge and agree that this
Exhibit A-1 shall be replaced by an amendment to this Lease upon creation of the
Lot and the recording of the necessary subdivision plan(s) (i.e. ANR plan).
Landlord hereby covenants and agrees to obtain ANR approval and subdivide the
Lot as soon as possible, and upon doing so and recording the Plan, a copy shall
be appended to this Lease.
<PAGE>
EXHIBIT "B-1"
PRELIMINARY BASE BUILDING PLANS
o Plans entitled A1.1, A1.2 and A1.3 prepared by Symmes, Maini & McKee
Associates, Inc. (Please see plans attached to Exhibit "A".)
o Exterior Elevations Plan A2.1 prepared by Symmes, Maini & McKee Associates,
Inc.
o Sheet C3 "Layout & Materials Plan" prepared by Symmes, Maini & McKee
Associates, Inc. (Please see plan attached to Exhibit "A".)
[BUILDING PLANS]
<PAGE>
EXHIBIT B-2
GUTIERREZ CONSTRUCTION CO., INC.
OUTLINE SPECIFICATIONS
FOR
WESTFORD TECHNOLOGY PARK - WEST
BUILDING ONE
WESTFORD, MASSACHUSETTS
JUNE 7, 2000
REVISED JULY 28, 2000
REVISED AUGUST 4, 2000
REVISED AUGUST 9, 2000
<PAGE>
21
OUTLINE SPECIFICATIONS
INDEX
PAGE NO.
DIVISION 1 - GENERAL REQUIREMENTS 3
---------------------------------
SECTION 1A - SCOPE OF THE WORK
SECTION 1B - ASSUMPTIONS
SECTION 1C - AREA SUMMARY
DIVISION 2 - SITE WORK 4
----------------------
SECTION 2A - SITE PREPARATION AND EARTHWORK
SECTION 2B - SITE IMPROVEMENTS
SECTION 2C - LAWNS AND PLANTINGS
SECTION 2D - SITE DRAINAGE
SECTION 2E - SITE UTILITIES
SECTION 2F - IRRIGATION
DIVISION 3 - CONCRETE 6
---------------------
SECTION 3A - CONCRETE
SECTION 3B - PRECAST CONCRETE
DIVISION 5 - METALS 7 7
---------------------
SECTION 5A - STRUCTURAL STEEL
SECTION 5B - MISCELLANEOUS AND ORNAMENTAL IRON
DIVISION 6 - CARPENTRY 8
----------------------
SECTION 6A - ROUGH CARPENTRY
SECTION 6B - MILLWORK
DIVISION 7 - MOISTURE PROTECTION 9
--------------------------------
SECTION 7A - ROOFING AND FLASHING
SECTION 7B - WATERPROOFING, DAMPPROOFING AND CAULKING
DIVISION 8 - DOORS, WINDOWS AND GLASS 10
-------------------------------------
SECTION 8A - WOOD DOORS
SECTION 8B - METAL DOOR FRAMES
SECTION 8C - FINISH HARDWARE
SECTION 8D - ALUMINUM ENTRANCE
SECTION 8E - GLASS AND GLAZING
OUTLINE SPECIFICATIONS - INDEX
DIVISION 9 - FINISHES 12
---------------------
SECTION 9A - RESILIENT BASE
SECTION 9B - ACOUSTICAL
1
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SECTION 9C - PAINTING AND VINYL WALLCOVERING
SECTION 9D - GYPSUM DRYWALL
SECTION 9E - EXTERIOR SOFFITS
SECTION 9F - INSULATION
SECTION 9G - SPECIAL LOBBY FINISHES
SECTION 9H - CARPETING
SECTION 9I - CERAMIC TILE
DIVISION 10- SPECIALTIES 14
------------------------
SECTION L0A- TOILET PARTITIONS
SECTION L0B- TOILET ACCESSORIES
SECTION L0C- DOCK EQUIPMENT
DIVISION 12 - FURNISHINGS 15
-------------------------
SECTION 12A - BLINDS
DIVISION 14 - CONVEYING SYSTEM 16
------------------------------
SECTION 14A - ELEVATOR
DIVISION 15 - MECHANICAL 17
------------------------
SECTION 15A - PLUMBING
SECTION 15B - HEATING, VENTILATING AND AIR CONDITIONING
SECTION 15C - SPRINKLERS
DIVISION 16 - ELECTRICAL 20
------------------------
SECTION 16A - ELECTRICAL WORK
DIVISION 17 - EXCLUSIONS 23
------------------------
2
<PAGE>
DIVISION 1
GENERAL REQUIREMENTS
SECTION 1A - SCOPE OF THE WORK
1A-01 GUTIERREZ CONSTRUCTION CO., INC. WILL PROVIDE, AT ITS SOLE COST AND EXPENSE, ALL LABOR,
MATERIAL AND EQUIPMENT NECESSARY TO COMPLETE THE CONSTRUCTION OF THE SUBJECT BUILDING IN
ACCORDANCE WITH THESE OUTLINE SPECIFICATIONS DATED JUNE 7, 2000, REVISED JULY 28, 2000, AUGUST
4, 2000 AND AUGUST 9, 2000, THE PRELIMINARY DRAWINGS AS PREPARED BY SYMMES, MAINI & MCKEE
ASSOCIATES, INC. DATED AND THE SITE PLAN OF LAND DATED , AS PREPARED BY
------------ -----------
SYMMES, MAINI & MCKEE ASSOCIATES, INC.
SECTION 1B - ASSUMPTIONS
1B-01 ALL REQUIRED UTILITIES OF ADEQUATE SIZE AND CAPACITY WILL BE AVAILABLE AT THE PROPERTY LINE OR
THE TOWN ROAD IMMEDIATELY ADJACENT TO THE PROPERTY LINE.
1B-02 THIS PROPOSAL IS BASED ON CLASS II-C CONSTRUCTION AS SPECIFIED IN THE MASSACHUSETTS STATE BUILDING
CODE, SIXTH EDITION, AND WILL COMPLY WITH FEDERAL, STATE AND LOCAL APPLICABLE CODES AND IN
ACCORDANCE WITH ALL ADA REQUIREMENTS.
SECTION 1C - AREA SUMMARY
1C-01 THE BUILDING IS A THREE (3) STORY "OPEN SHELL" OFFICE BUILDING TOTALING APPROXIMATELY 175,000
SQUARE FEET.
1C-02 SIX HUNDRED EIGHTY FIVE (685) PARKING SPACES WILL BE PROVIDED.
3
<PAGE>
DIVISION 2
SITE WORK
SECTION 2A - SITE PREPARATION AND EARTH WORK
2A-01 THE BUILDING SITE, INCLUDING LANDSCAPED AREAS, SHALL BE GRADED TO +/-0.1' ELEVATIONS WITH
POSITIVE DRAINAGE, FREE OF POCKETS, USING EXISTING GRANULAR MATERIALS. ALL GRADING IS TO
BE DONE IN ACCORDANCE WITH THE SITE PLAN DEVELOPED FROM THE PRELIMINARY DRAWINGS ADJUSTED
SO AS TO PRODUCE A BALANCED SITE.
2A-02 THE BUILDING PAD SHALL BE GRADED AND COMPACTED WITH SIX INCHES (6")( OR AS RECOMMENDED BY
THE GEOTECHNICAL ENGINEER) OF SUITABLE GRANULAR MATERIAL TO AN ELEVATION OF MINUS FIVE INCHES (-5")
FROM FINISHED FLOOR ELEVATION. COMPACTION SHALL BE 95% PROCTOR METHOD, ASTM D 1557.
2A-03 ALL PAVED AREAS SHALL RECEIVE A MINIMUM OF EIGHT INCHES (8") (OR AS RECOMMENDED BY THE
GEOTECHNICAL ENGINEER) OF SUITABLE GRANULAR MATERIAL COMPACTED TO 92% OF ITS MAXIMUM DENSITY.
SECTION 2B - SITE IMPROVEMENTS
2B-01 PARKING AREAS SHALL BE PAVED WITH TWO AND ONE HALF INCHES (2 1/2") OF BITUMINOUS CONCRETE TO
CONSIST OF ONE AND ONE-HALF (1 1/2") BINDER COURSE AND ONE INCH (1") FINISH.
2B-02 ROADS SHALL BE PAVED AS SPECIFIED FOR PARKING AREAS.
2B-03 SIDEWALKS SHALL BE PAVED WITH FOUR INCHES (4") OF CONCRETE NEXT TO THE BUILDING AND TWO INCHES
(2") OF BITUMINOUS CONCRETE PAVEMENT AT PARKING LOTS AS SHOWN ON THE SITE PLANS.
2B-04 ALL NECESSARY CURBING SHALL BE GRANITE OR BITUMINOUS BERET AS SHOWN ON THE DRAWINGS.
SECTION 2C - LAWNS AND PLANTINGS
2C-01 LAWNS AND PLANTINGS WILL BE PROVIDED TO MEET THE PLANNING BOARD'S REQUIREMENTS.
SECTION 2D - SITE DRAINAGE
2D-01 PARKING AREAS, ROADWAYS AND TRUCKING AREAS SHALL BE SURFACE DRAINED AND UNDERGROUND DRAINAGE
SHALL BE INSTALLED AS REQUIRED.
4
<PAGE>
DIVISION 2 - SITE WORK (CONTINUED)
SECTION 2E - SITE UTILITIES
2E-01 DOMESTIC WATER SERVICE AND FIRE SPRINKLER SHALL BE FROM A WATER MAIN AT THE PROPERTY LINE OR
AT THE TOWN ROAD ABUTTING THE SITE. THE WATER METER AND PIPING SHALL BE SIZED TO SUIT THE
BUILDING REQUIREMENTS. FIRE SPRINKLER SERVICE WILL BE SIZED PER NFPA 13 FOR LIGHT HAZARD.
2E-02 SANITARY SEWER SHALL BE CONNECTED TO THE PROPOSED PARK SEWER TREATMENT SYSTEM.
2E-03 ELECTRICAL SERVICE SHALL BE PROVIDED BY THE ELECTRIC UTILITY COMPANY'S PAD-MOUNTED TRANSFORMER
AT NO COST TO GUTIERREZ CONSTRUCTION CO., INC.
2E-04 PROVIDE SIX (6) 4" PVC CONDUIT FOR TELECOMMUNICATIONS FROM ROUTE 110 TO A MANHOLE IN THE
SUBDIVISION ROAD IN FRONT OF THE FUTURE BUILDING. PROVIDE SIX (6) 4" PVC CONDUIT FROM THIS
MANHOLE TO BEYOND THE ROADWAY FOR THE FUTURE BUILDING AND PROVIDE EIGHT (8) 4" PVC CONDUIT FROM
THIS MANHOLE TO THE TELECOMMUNICATIONS ROOM IN BUILDING ONE.
SECTION 2F - IRRIGATION
2F-01 THE UNDERGROUND AUTOMATIC LAWN IRRIGATION SYSTEM WILL BE PROVIDED FOR LAWN AREAS AROUND THE
BUILDING.
5
<PAGE>
DIVISION 3
CONCRETE
SECTION 3A - CONCRETE
3A-01 PROVIDE ALL PLAIN AND REINFORCED CONCRETE WORK, INCLUDING ALL NECESSARY FORM WORK, SLEEVES,
INSERTS, ETC. CONCRETE MATERIAL SHALL BE 3,000 P.S.I.
3A-02 FLOOR SLAB-ON-GRADE SHALL BE FIVE INCH (5") THICK CONCRETE REINFORCED WITH WELDED WIRE FABRIC
FOR A LIVE LOAD RATING OF 200 P.S.F. SECOND AND THIRD FLOOR SLABS SHALL BE DESIGNED FOR A LOAD
OF 100 P.S.F. WITH LIVE LOAD REDUCTION ALLOWED BY THE MASSACHUSETTS STATE CODE.
3A-03 FOUNDATIONS SHALL BE CONTINUOUS REINFORCED CONCRETE FOOTINGS AND WALLS AND INDIVIDUAL SPREAD
REINFORCED CONCRETE FOOTINGS UNDER COLUMNS. ALL FOUNDATIONS SHALL BEAR ON ENGINEERED FILL,
NATURAL SOIL OR LEDGE.
3A-04 FLOORS SHALL MEET THE FOLLOWING LEVEL AND FLATNESS CRITERIA. SLAB ON GRADE SHALL BE WITHIN FF
(FLATNESS) 25 AND F1 (LEVEL) 20. SUSPENDED SLABS SHALL BE WITHIN FF (FLATNESS) = 20.
SECTION 3B - PRECAST CONCRETE
3B-01 PRECAST CONCRETE EXTERIOR SPANDREL PANELS SHALL BE DESIGNED TO MEET WIND LOADING AS REQUIRED
BY THE GOVERNING CODE(S) AND SHALL HAVE AN EXPOSED AGGREGATE FINISH AS APPROVED BY THE
ARCHITECT AND OWNER.
6
<PAGE>
DIVISION 5
METALS
SECTION 5A - STRUCTURAL STEEL
5A-01 ALL STRUCTURAL STEEL WORK SHALL CONFORM TO THE "SPECIFICATIONS FOR DESIGN, FABRICATION AND
ERECTION OF STRUCTURAL STEEL FOR BUILDINGS" OF THE AMERICAN INSTITUTE OF STEEL CONSTRUCTION AND
THE REQUIREMENTS OF THE LOCAL BUILDING CODE. ALL STEEL SHALL BE ASTM-A-36.
5A-02 THE STRUCTURE SHALL BE STEEL COLUMNS, BEAMS OR TRUSSES, AND BAR JOISTS. THE BUILDING SHALL BE
DESIGNED IN ACCORDANCE WITH THE BUILDING CODE REQUIREMENTS.
5A-03 THE ROOF CONSTRUCTION SHALL BE 22 GAUGE, PRIME-PAINTED METAL ROOF DECKING. ROOF SHALL BE DESIGNED
TO SUPPORT A LIVE LOAD OF 35 P.S.F. PLUS THE LOADING REQUIRED FOR A RUBBER OR BALLASTED EPDM
ROOFING SYSTEM.
5A-04 SECOND AND THIRD FLOOR FRAMING SYSTEMS SHALL BE DESIGNED TO SUPPORT A TOTAL (LIVE) LOAD OF
100 P.S.F. WITH LIVE LOAD REDUCTION ALLOWED BY THE MASSACHUSETTS STATE CODE. FLOOR DECKING SHALL
BE 28 GAUGE FAB-FORM METAL DECK OR EQUAL.
5A-05 PROVIDE THIRTEEN FEET (13'-0") FROM FIRST FLOOR SLAB TO SECOND FLOOR SLAB. PROVIDE THIRTEEN FEET
(13'-0") FROM SECOND FLOOR SLAB TO THE THIRD FLOOR SLAB. PROVIDE THIRTEEN FEET SIX INCHES (13'-6")
FROM THIRD FLOOR SLAB TO THE TOP OF THE ROOF STEEL.
5A-06 PROVIDE WIND FRAMING AND ATTACHMENT FOR PRECAST CONCRETE.
5A-07 PROVIDE FRAMING AND SUPPORTS FOR ROOF TOP EQUIPMENT AS MAY BE REQUIRED.
SECTION 5B - MISCELLANEOUS AND ORNAMENTAL IRON
5B-01 PROVIDE MANHOLE AND CATCH BASIN FRAMES AND COVERS WHERE REQUIRED.
5B-02 STAIRS SHALL BE METAL PAN, CONCRETE FILLED TYPE. STAIRS SHALL BE PROVIDED WITH INTEGRAL NOSINGS.
HANDRAILS SHALL BE TUBULAR STEEL, EXCEPT AS OTHERWISE INDICATED ON THE DRAWINGS. THE STAIR TREADS
WILL BE 4'-9" TO 5'-0" IN WIDTH. ONE STAIR WILL SERVICE THE ROOF.
5B-03 ALL NECESSARY CHANNEL IRON SUPPORTS AND HANGING RODS FOR TOILET PARTITIONS AND GLASS ENTRANCES
SHALL BE PROVIDED.
5B-04 PROVIDE ELEVATOR SILL ANGLES.
5B-05 PROVIDE ONE ORNAMENTAL STAIR FROM THE FIRST TO THE SECOND FLOOR AT THE ATRIUM.
7
<PAGE>
DIVISION 6
CARPENTRY
SECTION 6A - ROUGH CARPENTRY
6A-01 PROVIDE ALL WOOD BLOCKING AND ROUGH CARPENTRY REQUIRED.
6A-02 INSTALL WOOD DOORS, METAL DOOR FRAMES AND FINISH HARDWARE.
6A-03 INSTALL TOILET PARTITIONS.
SECTION 6B - MILLWORK
6B-01 ALL MEN'S AND WOMEN'S TOILET ROOMS SHALL HAVE CORIAN LAVATORY COUNTER TOPS WITH
INTEGRAL BOWLS, BACKSPLASH, ENDSPLASH AND APRON.
6B-03 PROVIDE A FOUR INCH (4") OAK BASE AT THE WALLS OF THE LOBBIES AND TOILET ROOM VESTIBULE
AREAS, OR ALTERNATE TYPE BASE AS SELECTED.
6B-04 PROVIDE A PLASTIC LAMINATE SILL AT ALL PERIMETER WALL OFFICE WINDOWS.
6B-05 PROVIDE A PLASTIC LAMINATE BACKSPLASH AT THE MOP SINK IN THE JANITOR'S CLOSET.
8
<PAGE>
DIVISION 7
MOISTURE PROTECTION
SECTION 7A - ROOFING AND FLASHING
7A-01 THE ROOF SHALL BE INSULATED TO YIELD A "U" FACTOR OF .06. ROOF LOADING IS TO BE IN
ACCORDANCE WITH THE BUILDING CODE REQUIREMENTS. THE ROOFING SHALL BE A BALLASTED EDPM ROOFING
SYSTEM AS MANUFACTURED BY CARLYSLE, FIRESTONE, GENERAL TILE OR APPROVED EQUAL. A TWENTY
(20) YEAR LABOR AND MATERIAL MANUFACTURER'S STANDARD GUARANTEE IS INCLUDED.
7A-02 FLASHING AT THE PRECAST CONCRETE PARAPETS AND HVAC EQUIPMENT SHALL BE PROVIDED.
7A-03 VENT PIPE FLASHING SHALL BE PROVIDED AS REQUIRED BY THE APPLICABLE CODE.
SECTION 7B - WATERPROOFING, DAMPPROOFING AND CAULKING
7B-01 INTERIOR CAULKING SHALL BE THE TYPE APPROPRIATE FOR THE APPLICATION.
7B-02 CAULK PERIMETER OF ALL EXTERIOR DOORS AND WINDOWS WITH MONOLASTIC, MERIC THIOKOL CAULKING OR
APPROVED EQUAL.
7B-03 ALL PRECAST CONCRETE JOINTS SHALL BE CAULKED WITH MONOLASTOMERIC THIOKOL CAULKING OR APPROVED EQUAL.
7B-04 WATERPROOF AND/OR DAMPPROOF THE ELEVATOR PIT AS REQUIRED.
9
<PAGE>
DIVISION 8
DOORS, WINDOWS AND GLASS
SECTION 8A - WOOD DOORS
8A-01 INTERIOR BASE BUILDING WOOD DOORS SHALL BE 3'0" X 8'-0" BY 1
3/4" SOLID CORE, PLAIN SLICED, RED OAK AND/OR 3'0" X 7'0" BY 1
3/4" SOLID CORE, STAIN GRADE OAK. PROVIDE FIRE RATED DOORS AS
REQUIRED BY CODE. ALL OAK DOORS ARE TO HAVE MATCHING EDGES.
WOOD DOORS WILL BE PRE-MACHINED AND PRE-FINISHED IF TIME
ALLOWS, OTHERWISE THEY WILL BE MACHINED AND FINISHED ON THE
JOBSITE.
SECTION 8B - METAL DOORS AND FRAMES
8B-01 ALL INTERIOR BASE BUILDING DOOR FRAMES SHALL BE WELDED TYPE IF
TIME ALLOWS, OTHERWISE THEY WILL BE THREE PIECE, KNOCK DOWN
TYPE, PRESSED METAL, SINGLE AND/OR DOUBLE RABBET DOOR FRAMES
WITH PROPER ANCHORS FOR PARTITIONS. PROVIDE FIRE RATED FRAMES
AS REQUIRED BY CODE.
8B-02 A 3' X 7' HOLLOW METAL DOOR AND FRAME WILL BE PROVIDED AT THE EXTERIOR WALL FOR THE COMPACTOR.
SECTION 8C - FINISH HARDWARE
8C-01 FINISH HARDWARE SHALL BE HEAVY DUTY GRADE RUSSWIN, SCHLAGE, OR APPROVED
EQUAL.
8C-02 KEY SCHEDULE SHALL BE PER THE OWNER'S REQUIREMENTS.
8C-03 LOCKSET TO HAVE REMOVABLE CORES.
SECTION 8D - ALUMINUM ENTRANCE
8D-01 ALUMINUM DOOR FRAME ASSEMBLIES, INCLUDING WINDOW TRIM, SHALL
BE ANODIZED ALUMINUM AS INDICATED ON THE DRAWINGS.
8D-02 ALUMINUM ENTRANCES SHALL BE COMPLETE WITH ALL HARDWARE (PIVOT
HINGES, PUSH/PULLS, CLOSERS, ETC.) EXCEPT CYLINDER, WHICH IS
TO BE FURNISHED UNDER SECTION 8C, FINISH HARDWARE.
SECTION 8E - GLASS AND GLAZING
8E-01 GLASS FOR ENTRANCES SHALL BE 1/4" CLEAR TEMPERED. ENTRANCE DOORS SHALL BE 3'0" X 7'0" WITH
GLASS TRANSOM.
8E-02 MIRRORS SHALL BE PROVIDED OVER EACH LAVATORY AT THE MEN'S AND
WOMEN'S TOILET ROOMS. IN ADDITION, WOMEN'S TOILET ROOMS SHALL
BE PROVIDED WITH A FULL HEIGHT MIRROR LOCATED ON THE WALL
OPPOSITE THE LAVATORIES.
10
<PAGE>
8E-03 THE EXTERIOR GLASS SHALL BE 1" INSULATING, TINTED AS
MANUFACTURED BY LOF, PPG OR APPROVED EQUAL. GLASS AREA SHALL
BE KEPT UNDER 50% OF THE EXTERIOR WALL AREA. INCLUDES
MANUFACTURER'S STANDARD TEN (10) YEAR WARRANTY FOR THE
INSULATED GLASS UNITS.
8E-04 THE ALUMINUM FRAMING FOR GLASS SHALL BE ANODIZED ALUMINUM WITH
A THERMAL BREAK AS MANUFACTURED BY ALUMILINE, KAWNEER OR
APPROVED EQUAL. ALL WINDOWS ARE TO BE THE FIXED TYPE.
SECTION 8F - OVERHEAD DOORS
8F-01 PROVIDE FOUR (4) ELECTRICALLY OPERATED, 8' X 8', INSULATED OVERHEAD DOOR WITH WEATHER SEAL FOR
THE TRUCK DOCK.
11
<PAGE>
DIVISION 9
FINISHES
SECTION 9A - RESILIENT BASE FOR THE BASE BUILDING
8A-01 RESILIENT BASE SHALL BE 4" HIGH, VINYL COVE OR STRAIGHT
AS APPLICABLE.
SECTION 9B - ACOUSTICAL WORK FOR THE BASE BUILDING
9B-01 ALL BASE BUILDING TOILET ROOMS, STAIRWAYS AND MAIN LOBBY SHALL
HAVE LAY-IN, REVEAL EDGE UNITS OF 3/4" X 24" X 24", MINERAL
ACOUSTIC TILE (GLACIER U.S.G. #707). SUSPENSION SYSTEM SHALL
BE EXPOSED GRID 15/16" "T" SUSPENSION SYSTEM. CEILING HEIGHT
SHALL BE 8'-6", EXCEPT TOILET ROOMS SHALL BE 7'6". TILE AND
SUSPENSION SYSTEM SHALL BE WHITE.
SECTION 9C - PAINTING FOR THE BASE BUILDING
9C-01 ALL EXPOSED FERROUS METALS SHALL RECEIVE A PRIMER COAT AND ONE COAT OF ENAMEL.
9C-02 INTERIOR PAINTED WALLS ARE TO RECEIVE TWO COATS OF LATEX
PAINT. THE LOBBY, STAIRS AND TOILET ROOMS WILL BE PAINTED WITH
POLYMIX.
9C-03 INTERIOR, BASE BUILDING DOORS SHALL RECEIVE TWO COATS OF
SEMI-GLOSS ENAMEL PAINT, OR ONE COAT OF SEALER AND TWO COATS
OF POLYURETHANE IF THEY ARE NOT PRE-FINISHED.
9C-04 TOILET ROOM WALLS THAT ARE NOT TO RECEIVE CERAMIC TILE SHALL BE PAINTED WITH POLYMIX.
SECTION 9D - GYPSUM DRYWALL FOR THE BASE BUILDING
9D-01 INTERIOR, CEILING HIGH PARTITIONS SHALL BE 25 GA., 2 1/2"
GALVANIZED METAL STUDS, 24" O.C. WITH 5/8" GYPSUM WALLBOARD ON
EACH SIDE, TAPED, SANDED AND READY FOR PAINT. ALL FULL-HEIGHT
PARTITIONS SHALL BE 25 GA., 3 5/8" GALVANIZED METAL STUDS, 24"
O.C. WITH 5/8" GYPSUM WALLBOARD ON EACH SIDE, TAPED, SANDED
AND READY FOR PAINT. INSULATION IN PARTITIONS SHALL BE AS
INDICATED ON THE DRAWINGS. PROVIDE FIRE RATING AS REQUIRED BY
CODE. ALL REQUIRED FIRE RATED WALLS SHALL BE CONSTRUCTED WITH
APPROVED FIRE RATED DRYWALL ASSEMBLY SYSTEMS.
9D-02 THE INTERIOR OF THE EXTERIOR WALLS SHALL BE FURRED WITH METAL
STUDS, INSULATED AND COVERED WITH DRYWALL TAPED AND SANDED
READY FOR PAINT IN ALL FINISHED AREAS. THE INTERIOR FACE OF
ALL PRECAST CONCRETE WILL BE INSULATED WITH A MINIMUM OF 3
1/2" OF FIBERGLASS INSULATION.
9D-03 INCLUDES THE FIRE WALL REQUIRED IN THE STATE CODE FOR CLASS 2C
CONSTRUCTION.
12
<PAGE>
DIVISION 9 - FINISHES (CONTINUED)
SECTION 9D - GYPSUM DRYWALL FOR THE BASE BUILDING (CONTINUED)
9D-04 ALL STEEL COLUMNS WILL BE "H" COLUMNS COVERED WITH DRYWALL, TAPED,
SANDED AND PREPARED FOR FINISH.
SECTION 9E - EXTERIOR SOFFITS
9E-01 ALL EXPOSED EXTERIOR SOFFITS SHALL BE SYNTHETIC PLASTER.
SECTION 9F - INSULATION
9F-01 FIBERGLASS BLANKET TYPE INSULATION SHALL BE PROVIDED BEHIND
ALL EXTERIOR WALLS, EXCEPT BEHIND THE SPANDREL PANELS WHERE
RIGID INSULATION MAY BE USED.
9F-02 RIGID INSULATION SHALL BE PROVIDED AT THE PERIMETER FOUNDATION WALLS.
SECTION 9G - SPECIAL LOBBY FINISHES
9G-01 AN ALLOWANCE OF $50,000.00 IS INCLUDED FOR LOBBY FLOOR, WALL
AND CEILING FINISHES. THE ALLOWANCE WILL PROVIDE FINISHES
EQUAL TO THE LOBBY FINISHES AT WESTFORD TECHNOLOGY PARK,
BUILDINGS FOUR AND FIVE, NETSCOUT AND GENRAD RESPECTIVELY.
SECTION 9H - CARPETING
9H-01 AN ALLOWANCE OF TWENTY-FOUR DOLLARS ($24.00) PER SQUARE YARD
HAS BEEN INCLUDED FOR ALL CARPET AT THE STAIRWAYS AND TOILET
ROOM VESTIBULES.
SECTION 9I - CERAMIC TILE
9I-0L TOILET ROOMS AND SHOWERS SHALL HAVE 1" X 1", UNGLAZED, CERAMIC FLOOR TILE AND
4 1/4" X 4 1/4" GLAZED, CERAMIC TILE, FULL HEIGHT, AT WET WALLS.
13
<PAGE>
DIVISION 10
SPECIALTIES
SECTION 10A - TOILET PARTITIONS
10A-01 PARTITIONS SHALL BE CEILING HUNG WITH A BAKED ENAMEL FINISH.
PROVIDE TOILET PARTITIONS AS INDICATED ON THE DRAWINGS.
SECTION 10B - TOILET ACCESSORIES
10B-01 PROVIDE CHROME-PLATED OR STAINLESS STEEL ACCESSORIES AS
INDICATED ON THE DRAWINGS. ACCESSORIES SHALL INCLUDE DOUBLE
ROLL TOILET PAPER HOLDERS, RECESSED PAPER TOWEL
DISPENSER/DISPOSALS, LIQUID SOAP DISPENSERS, SANITARY NAPKIN
VENDORS AND DISPOSALS. ALSO PROVIDE MOP HOOKS AT JANITOR'S
CLOSET.
SECTION 10C - DOCK EQUIPMENT
10C-01 PROVIDE FOUR (4) MECHANICAL EDGE OF DOCK LEVELER. LEVELER
SHALL BE KELLEY E-Z RAMP SERIES STD-66, OR APPROVED EQUAL.
DOCK BUMPERS INTEGRAL WITH THE DOCK LEVELER SHALL BE PROVIDED.
ALSO PROVIDE DOCK SEAL, LIGHT AND BOLLARDS.
14
<PAGE>
DIVISION 12
FURNISHINGS
SECTION 10A - BLINDS
12A-01 VERTICAL BLINDS SHALL BE LOUVERDRAPE, MODEL EL (ELITE) OR APPROVED EQUAL, BOTH
TRAVERSING AND ROTATING TYPES.
12A-02 BLINDS SHALL HAVE TOP TRACK ONLY WITH MANUFACTURER'S STANDARD BAKED
ENAMEL FINISH.
12A-03 VERTICAL BLIND BLADES ARE TO BE PVC SOLID CORE, 3 1/2"
WIDE,.03" THICKNESS. COLOR SHALL BE MANUFACTURER'S STANDARD
COLOR AS SELECTED BY THE OWNER AND ARCHITECT.
12A-04 BLINDS SHALL BE INSTALLED AT ALL EXTERIOR WALL WINDOWS.
15
<PAGE>
DIVISION 14
CONVEYING SYSTEM
SECTION 14A - ELEVATOR
14A-01 TWO (2) STANDARD PACKAGE, HYDRAULIC PASSENGER ELEVATORS SHALL
BE PROVIDED AT THE MAIN ENTRANCE LOBBY. CAPACITY SHALL BE
4,000 POUNDS; SPEED SHALL BE 125 FEET PER MINUTE. CAB FINISH
SHALL BE STAINLESS STEEL ON FRONT PANELS AND DOORS, PLASTIC
LAMINATE WALLS, AND BAKED ENAMEL FRAME AND ENTRANCE DOORS ON
HALL SIDE. INCLUDE PROTECTIVE PADS AND HOOKS, HANDRAIL AT
REAR, TELEPHONE BOX AND CABLE, REMOVABLE CEILING, CERTIFICATE
FRAME, EMERGENCY CAR LIGHTING, EXHAUST FAN, HANDICAPPED CODE
AND ADA REQUIREMENTS AND 3'-6" CENTER OPENING DOORS.
ONE (1) STANDARD PACKAGE, HYDRAULIC PASSENGER/MATERIAL
ELEVATOR WILL BE PROVIDED AT THE TRUCK DOCKS. CAPACITY SHALL
BE 5,000 POUNDS; SPEED SHALL BE 125 FEET PER MINUTE. CAB AND
ENTRANCES SHALL BE THE SAME AS THE ELEVATORS IN THE LOBBY.
DOORS SHALL BE 4'-0" X 7'-0" SIDE OPENING TYPE.
ELEVATORS WILL BE EQUIPPED WITH A BATTERY OPERATED EMERGENCY
LOWERING DEVICE TO LOWER THE ELEVATOR TO THE FIRST FLOOR UPON
FAILURE OF THE MAIN POWER SUPPLY.
16
<PAGE>
DIVISION 15
MECHANICAL
DIVISION 15A - PLUMBING
15A-O1 CODES, ORDINANCES AND PERMITS
1. ALL MATERIAL AND WORKMANSHIP SHALL BE IN STRICT ACCORDANCE WITH THE FOLLOWING CODES:
A. MASSACHUSETTS STATE PLUMBING CODE
B. MASSACHUSETTS STATE BUILDING CODE
C. NATIONAL FIRE CODES
D. REQUIREMENTS OF THE TOWN OF WESTFORD, MASSACHUSETTS
E. DEPARTMENT OF PUBLIC HEALTH
15A-02 SANITARY WASTE AND VENT SYSTEM
1. INTERIOR WASTE AND VENT PIPING SHALL CONVEY WASTES TO THE UNDERGROUND SANITARY
WASTE SYSTEM AND SHALL BE VENTED THROUGH THE ROOF AS REQUIRED BY CODE.
2. EXTERIOR SANITARY WASTE SHALL BE CONNECTED TO THE PROPOSED PARK SEWER TREATMENT SYSTEM.
15A-03 ROOF DRAINAGE SYSTEM
1. INTERIOR ROOF DRAINS SHALL BE ADEQUATELY SIZED AND INSTALLED TO DRAIN ALL ROOF
SURFACES AND SHALL BE CONNECTED TO THE STORM DRAIN OUTSIDE THE BUILDING LINE.
15A-04 COLD AND HOT WATER SYSTEMS
1. COLD AND HOT WATER SYSTEMS SHALL BE INSTALLED TO SERVICE ALL FIXTURES AND EQUIPMENT
INDICATED ON THE DRAWINGS REQUIRING COLD AND HOT WATER.
2. COLD AND HOT WATER SHALL BE SIZED IN ACCORDANCE WITH THE LATEST REQUIREMENTS OF THE
APPLICABLE PLUMBING CODE.
3. A GREY WATER SYSTEM WILL BE UTILIZED TO PROVIDE WATER TO WATER CLOSETS AND URINALS.
15A-05 PIPING AND FITTINGS
1. PIPING AND FITTINGS SHALL BE CAST IRON FOR SANITARY AND STORM, AND COPPER FOR WATER -
ALL CONFORMING TO THE LATEST ASTM AND/OR F.S. STANDARDS.
15A-06 PIPING AND DRAINAGE ACCESSORIES
1. ROOF DRAINS, WALL/GROUND HYDRANTS, CLEANOUTS, AND FIXTURE CARRIERS SHALL BE AS
MANUFACTURED BY J.R. SMITH, JOSAM, ZURN OR APPROVED EQUAL. PRESSURE-REDUCING VALVES
AND BACK FLOW PREVENTORS SHALL BE AS MANUFACTURED BY WATTS OR APPROVED EQUAL.
17
<PAGE>
DIVISION 15 - MECHANICAL (CONTINUED)
SECTION 15A - PLUMBING (CONTINUED)
15A-07 INSULATION
1. ALL ABOVE-GROUND COLD WATER PIPING, VALVES AND FITTINGS SHALL BE INSULATED, INCLUDING
THE AIR CHAMBER. HORIZONTAL RAIN LEADERS AND ALL ROOF DRAINS SHALL BE INSULATED.
15A-08 WATER METER
1. WATER METER AND PIPING SHALL BE FURNISHED AND INSTALLED IN ACCORDANCE WITH THE TOWN OF
WESTFORD, MASSACHUSETTS' REQUIREMENTS.
15A-09 PLUMBING FIXTURES
1. WATER CLOSETS SHALL BE WALL-HUNG, ELONGATED, FLUSH VALUED CLOSETS WITH 1 1/2" TOP
SPUDS AND EXPOSED VALVES AS MANUFACTURED BY KOHLER COMPANY OR APPROVED
EQUAL, WITH WHITE, OPEN FRONT SEATS, NO COVER.
2. URINALS SHALL BE WALL-HUNG, WHITE WITH 1 1/2" TOP SPUDS, EXPOSED VALVES AS
MANUFACTURED BY KOHLER COMPANY OR APPROVED EQUAL.
3. LAVATORIES SHALL BE INTEGRAL WITH THE VANITIES.
4. DRINKING FOUNTAINS (TWO ON EACH FLOOR) SHALL BE ELECTRIC, SEMI-RECESSED, WALL-MOUNTED
TYPE AS MANUFACTURED BY HALSEY TAYLOR OR APPROVED EQUAL.
5. ELECTRIC HOT WATER HEATER(S), SIZED TO SUIT THE BUILDING REQUIREMENTS, SHALL BE
PROVIDED.
6. HANDICAP TYPE FIXTURES WILL BE PROVIDED IN THE TOILET ROOMS AS REQUIRED BY APPLICABLE
CODES.
SECTION 15B - HEATING, VENTILATING AND AIR CONDITIONING
15B-01 PROVIDE 550 TONS OF ROOFTOP, VARIABLE VOLUME HEATING, VENTILATING AND AIR CONDITIONING SYSTEM
TO PROVIDE COMFORT HEATING AND COOLING ON A YEAR-ROUND BASIS WITH CONTROLLED NIGHT SET BACK AND
ECONOMIZING FEATURES, AND SHALL MEET ALL APPLICABLE CODE REQUIREMENTS. EQUIPMENT SHALL BE AS
MANUFACTURED BY TRANE OR APPROVED EQUAL AS SELECTED BY GUTIERREZ CONSTRUCTION CO., INC.
INCLUDES NATURAL GAS MORNING WARM-UP. A LOW VOLTAGE, AUTOMATIC TEMPERATURE CONTROL SYSTEM WILL
ALSO BE PROVIDED. ABOVE THE CEILINGS WILL BE USED AS A RETURN AIR PLENUM. SUPPLY DUCTWORK WILL
NOT BE INSULATED. INCLUDES HVAC DISTRIBUTION FOR THE BASE BUILDING AREAS. DOES NOT INCLUDE HVAC
DISTRIBUTION, VAV BOXES OR CONTROLS AT THE TENANT AREAS. STUB OUTS ADEQUATELY SIZED FOR THE
TENANT DISTRIBUTION FOR SUPPLY AND RETURN AIR WILL BE PROVIDED AT THE DUCT SHAFTS ON EACH FLOOR.
INCLUDES SMOKE AND FIRE DAMPERS AT DUCT SHAFT AND ROOFTOP UNITS AS REQUIRED BY THE APPLICABLE CODE.
18
<PAGE>
DIVISION 15 - MECHANICAL (CONTINUED)
SECTION 15B - HEATING VENTILATING AND AIR CONDITIONING (CONTINUED)
15B-02 DUCT WORK
ALL DUCT WORK FOR THE BASE BUILDING AREAS AND DUCT SHAFT(S) SHALL BE GALVANIZED
STEEL TO MEET THE ASHRAE STANDARDS. FLEXIBLE DUCT RUN-OUTS SHALL NOT EXCEED SIX FEET (6').
15B-03 GRILLES AND DIFFUSERS
AS REQUIRED FOR THE BASE BUILDING.
15B-04 TOILET ROOM EXHAUST
A TOILET ROOM EXHAUST SYSTEM SHALL BE INSTALLED IN ACCORDANCE WITH THE CODE REQUIREMENTS.
SECTION 15C - SPRINKLERS
15C-01 AN AUTOMATIC WET PIPE, LIGHT HAZARD SPRINKLER SYSTEM SHALL BE PROVIDED FOR THE BASE BUILDING.
THE SYSTEM SHALL BE DESIGNED TO MEET NFPA #13 AND ISO REQUIREMENTS. HEADS AT ACOUSTICAL
CEILINGS SHALL BE CHROME PLATED, SEMI-RECESSED, PENDENT TYPE. HEADS IN OPEN AREAS SHALL BE THE
BRASS UPRIGHT TYPE. TESTING SHALL BE IN ACCORDANCE WITH NFPA PAMPHLET NO. 13. FURNISH AND
INSTALL TAMPER AND FLOW SWITCHES ON EACH FLOOR AS REQUIRED BY NFPA PAMPHLET NO. 13 AND OTHER
APPLICABLE CODES AND AUTHORITIES HAVING JURISDICTION. WIRING SHALL BE BY THE ELECTRICAL
SUBCONTRACTOR. SPRINKLER DISTRIBUTION FOR THE TENANT AREAS IS NOT INCLUDED. STUB OUTS
ADEQUATELY SIZED FOR THE TENANT AREA SPRINKLER SYSTEM WILL BE PROVIDED ON EACH FLOOR. INCLUDES
FLOW SWITCHES AND TAMPER SWITCHES ON EACH FLOOR.
19
<PAGE>
"EXHIBIT C-1"
CERTIFICATE OF OWNER / /
SUBSTANTIAL ARCHITECT / /
COMPLETION CONTRACTOR / /
FIELD / /
AIA DOCUMENT G704 OTHER / /
------------------------------------------------------------------------------
PROJECT: ARCHITECT:
(name, address)
ARCHITECT'S PROJECT NUMBER:
TO (Owner)
CONTRACTOR:
CONTRACT FOR:
CONTRACT DATE:
DATE OF ISSUANCE:
PROJECT OR DESIGNATED AREA SHALL INCLUDE:
The Work performed under this Contract has been reviewed and found to be
substantially complete. The Date of Substantial Completion is hereby established
as _________________________________which is also the date of commencement of
all warranties and guarantees required by the Contract Documents.
-------------------------------------------------------------------------------
DEFINITION OF DATE OF SUBSTANTIAL COMPLETION
The Date of Substantial Completion of the Work or designated portion thereof is
the Date certified by the Architect when construction is sufficiently complete,
in accordance with the Contract Documents, so the Owner may occupy the Work or
designated portion thereof for the use for which it is intended.
-------------------------------------------------------------------------------
A list of items to be completed or corrected, prepared by the Contractor and
verified and amended by the Architect, is appended hereto. The failure to
include any items on such list does not alter the responsibility of the
Contractor to complete all Work in accordance with the Contract Documents.
------------------------------------------- ----------------------------- --------------
ARCHITECT BY DATE
The Contractor will complete or correct the Work on the list of items appended
hereto within from the above Date of Substantial Completion.
------------------------------------------- ----------------------------- --------------
CONTRACTOR BY DATE
The Owner accepts the Work or designated portion thereof as substantially
complete and will assume full possession thereof at (time)
on (date)
------------------------------------------- ----------------------------- --------------
OWNER BY DATE
-------------------------------------------------------------------------------
The responsibilities of the Owner and the Contractor for maintenance, heat,
utilities and insurance shall be as follows: (NOTE-Owner's and Contractor's
legal and insurance counsel should determine and review insurance requirements
and coverage)
<PAGE>
EXHIBIT "C-2"
CERTIFICATE OF FINAL COMPLETION
Project: NetScout Systems, Inc. Lease Date: ___________, 2000
Location: _______________________ Date:
Westford, Massachusetts
Owner: Arturo J. Gutierrez and John A. Cataldo, Trade:
Trustees of Nashoba Westford Realty Trust
under Declaration of Trust dated April 27, 2000,
recorded with the Middlesex North District
Registry of Deeds in Book 10813, Page 038
( ) All work has been completed in accordance with Article IX of the Lease.
( ) All work has been completed in accordance with Article IX of the Lease,
except for that listed in attached schedule for which a credit has been taken.
Final Inspection was made __________________ in the presence of:
Remarks:
Landlord must have completed or corrected all punch list items or accepted
credit for unsatisfactory or incomplete work and submitted all Close-out
Documents as listed on Close-out Documents - Record & Transmittal Form.
This is to certify that NetScout Systems, Inc. will not be held responsible for
any bills, liens, claims or demands in connection with the above noted project.
All workmanship and materials are hereby guaranteed in accordance with
stipulations in the Contract Documents and Lease on Certificate of Substantial
Completion.
By:_________________________________ By:_________________________________
Title:_______________________________ Title:_______________________________
Date:_______________________________ Date:_______________________________
NOTE: See also definition of Substantial Completion in Article IX of the Lease.
<PAGE>
EXHIBIT "D"
RULES AND REGULATIONS
1. No curtains, blinds, shades, screens, or signs other than those furnished by
Landlord shall be attached to, hung in, or used in connection with any
window or door of the Premises without the prior written consent of the
Landlord, which shall not be unreasonably withheld, conditioned or delayed.
All interior Tenant signage is at Tenant's expense and must be installed or
affixed by a contractor first approved by Landlord acting reasonably and
without delay. The style, size and color of any interior signage visible
from the exterior of the Premises must also be reasonably acceptable to
Landlord.
2. As well as any security (door access) system provided and installed by
Tenant, as reasonably approved by Landlord, Tenant shall be allowed to place
additional locks or bolts upon doors and windows within the Premises. Tenant
recognizes that these additional locks and bolts could prove to be a
hindrance to Landlord providing building services such as cleaning and
maintenance. Tenant must, upon the termination of its tenancy, remove all
additional locks and bolts and restore all original door hardware and
provide Landlord all Building keys either furnished to or otherwise procured
by Tenant; and in the event of the loss of any keys so furnished, Tenant
shall pay to Landlord the reasonable cost thereof.
3. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent the same.
4. Tenant shall comply with all reasonable security measures from time to time
established by Landlord and of which Tenant receives written notice, for the
Lot or Office Park, so long as (i) the same do not breach or violate
Tenant's rights under this Lease or the requirements of any governmental
security restrictions to which Tenant is subject, and (ii) such reasonable
security measures do not deprive Tenant of reasonable access to the Premises
at all times or otherwise unreasonably interfere with Tenant's use or
occupancy of the Premises for the Office Park.
5. Should Tenant's organization have a non-smoking policy presently in effect
for their visitors and/or employees or institute such a policy during the
Term of this Lease, Tenant shall set aside a smoking area within the
Premises, properly ventilated and/or with smoke filtration units, so as not
to interfere with any fire protection devices, such as smoke detectors, or
the quality of air recirculated in the Building's HVAC system.
6. Tenant shall comply with the Park Covenants attached hereto as Exhibit "E".
<PAGE>
EXHIBIT "E"
PARK COVENANTS
Landlord agrees with Tenant to enforce, or cause to be enforced, these
Park Covenants with all due diligence to preserve the quality and appearance of
the Park.
The Lot is approximately twelve (12) acres and is located in an
approximately twenty-two (22) acre office/research and development park shown on
the Plan of the Park attached hereto as part of Exhibit A and more particularly
described therein and elsewhere in this Lease, as the same, including without
limitation the Common Areas of the Park, may be amended by Landlord from time to
time in accordance with and subject to the provisions of Section 2.1 of this
Lease.
All lots of land comprising the Park (which lots, including without
limitations the Lot, are individually called the "Parcel" and collectively the
"Parcels") are subject to the following restrictions which shall bind Nashoba
Westford Realty Trust (collectively "Grantor") as ground lessee of the Park and
its successors in title.
A. All parcels shall have facilities for parking, loading and
unloading sufficient to serve any uses of the Parcels without using adjacent
streets for such purpose. On-street parking shall be prohibited. All parking,
trucking and vehicular maneuvering areas for a Parcel shall be contained within
such Parcel.
B. No exterior loading platforms shall be visible from any
primary way or proposed primary way serving the Park. Screening and planting may
be used for this purpose.
C. No open or outside storage shall be done on any Parcel,
other than normal and customary trash compactors and containers on locations to
be reasonably approved by Landlord in advance.
D. Signs shall conform to the sign ordinances of the Town of
Westford. Any variance from such ordinance granted by the Town of Westford must
also be approved by Grantor in the manner provided below in Section I.
E. No condition or use of any Parcel will be permitted which
is objectionable by reason of noise, odor, vibration, smoke, radiation, the
hazardous nature of the use, or the violation of environmental laws or
regulations adopted by the Town of Westford, the Commonwealth of Massachusetts,
the Federal Government or any Court.
F. All utilities serving a Parcel shall be placed underground,
unless prohibited by the utility company. Any exterior lighting on a Parcel
shall either be indirect or of such controlled focus and intensity as not to
disturb street traffic or the occupancy of any adjacent Parcel.
<PAGE>
G. The exterior appearance of any buildings in the Park,
including landscaping thereon, shall be kept neat and orderly and free from
litter.
H. No building, exterior sign, fence, wall, exterior lighting
or other structure shall be erected or allowed to maintain on any portion of the
Park or exterior structural alteration or addition made, except pursuant to
plans approved in writing by Grantor as to landscaping, parking and
architectural conformity with existing buildings in the Park.
I. The Grantor may from time to time by written instrument in
recordable form grant variance from any one or more of these restrictions
(except restriction H for which variances may not be granted) where the Grantor
reasonably determines that the variance can be granted without substantial
detriment to the intent and purpose of the restrictions and without substantial
detriment to the Land, and portions of the Park theretofore built upon.
J. Written approval by the Grantor as to any buildings, signs,
structures, alterations, additions and landscaping approved by Grantor in good
faith shall be conclusive evidence of compliance with these restrictions. The
Grantor agrees to furnish to any grantee such written instruments in recordable
form as may reasonably be requested by the grantee as evidence of such
compliance.
K. The term "Grantor", as herein used, shall mean Arturo J.
Gutierrez and John A. Cataldo, Trustees Nashoba Westford Realty Trust, u/d/t
dated April 27, 2000 and recorded with the Middlesex North District Registry of
Deeds in Book 10813, Page 038, and any of its successors in title to whom the
Grantor has expressly granted of record the rights to enforce these
restrictions.
2
<PAGE>
EXHIBIT F
ALBERT L. NARDONE and ANTHONY B. NARDONE
of Middlesex County, Massachusetts
in consideration of One Dollar ($1.00) and 00/100
grant to ALBERT L. NARDONE, TRUSTEE and ANTHONY B. NARDONE, TRUSTEE OF ONE
LITTLETON ROAD REALTY TRUST recorded herewith.
of Powers Road, Westford, MA 01886
WITH QUITCLAIM COVENANTS
The land with the buildings thereon located on the southerly side of Littleton
Road, Westford, Middlesex County, Massachusetts, being shown as Lot 1 on a plan
entitled "Plan of Land in Westford, MA prepared "One Littleton Trust: dated
December 15, 19991 and prepared by L.J. Ducharme Assoc., Inc. 1092 Main Street,
Bolton, MA 01740 Scale 1" = 20' to which plan reference is made for a more
particular description.
According to said plan Lot 1 contains 40,760 +/- square feet.
Said plan to be recorded herewith at North Middlesex Registry of Deeds
in Plan Book 177 Plan 114.
Being a portion of the premises conveyed to the grantors by deed of
Rose F. McDonald dated November 25, 1952 and recorded at North Middlesex
District Registry of Deeds in Book 1211 Page 147.
Executed as a sealed instrument this 30th day of December 1991
-------------------------------------- --------------------------------
Albert L. Nardone
-------------------------------------- ---------------------------------------------
-------------------------------------- --------------------------------
Anthony B. Nardone
THE COMMONWEALTH OF MASSACHUSETTS
Middlesex ss. December 30, 1991
Then personally appeared the above named
Albert L. Nardone and Anthony B. Nardone
and acknowledged the foregoing instrument to be their free act and deed
BEFORE ME
-------------------------------------
A. JUSTIN MCCARTHY NOTARY PUBLIC
My commission expires 11/27/1998
<PAGE>
WE, ANTHONY B. NARDONE and ALBERT L. NARDONE, both of 37 Power Road, Westford,
Middlesex County, Massachusetts
in consideration of ONE AND NO/100 ($1.00) DOLLAR
grant to ANTHONY B. NARDONE and ALBERT L. NARDONE, Trustees of TWO LITTLETON
ROAD REALTY TRUST, under Declaration of Trust dated 1/30/97 and recorded
herewith at Middlesex North District Registry of Deeds
of Westford, Middlesex County, Massachusetts
WITH QUITCLAIM COVENANTS
Three separate parcels of land located on the Southerly side of Littleton Road
and the Westerly side of Concord Road in Westford, Middlesex County,
Massachusetts and being shown as Lot 5, Lot 6 and Lot 7 on a Plan entitled
"Anthony G. and Albert L. Nardone, Westford, MA, Plan of Land Proposed A.N.R.
Lots" dated July 9, 1996, prepared by Rizzo Associates, Inc. to which plan
reference is made for a more particular description. Said plan is recorded at
Middlesex North District Registry of Deeds in Plan Book 192, Plan 64.
According to said plan:
Lot 5 contains 443,772 square feet, more or less;
Lot 6 contains 197,212 square feet, more or less;
Lot 7 contains 268,936 square feet, more or less
For title reference, see Middlesex North District Registry of Deeds, Book (see
1211/147)
Witness our hands and seals this 30th day of January, 1997.
--------------------------
ANTHONY B. NARDONE
--------------------------
ALBERT L. NARDONE
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. January 30th, 1997
Then personally appeared the above named ANTHONY B. NARDONE and ALBERT
L. NARDONE and acknowledged the foregoing instrument to be their free act and
deed, before me,
-------------------------
Notary Public
My commission expires: 11/27/98
<PAGE>
EXHIBIT "G-1"
LESSEE'S LEASE STATEMENT
AND
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made and entered into as this ___ day of ________,
2000, by and among _____________________, a _______________________ (hereinafter
called the ("Lender"), __________________________ (hereinafter called the
"Tenant") and ________________________________ (hereinafter called the
"Landlord").
WITNESSETH
WHEREAS, Landlord is the ground lessee under that certain ground lease
dated May 11, 2000 and executed by and between Albert L. Nardone and Anthony B.
Nardone, Trustees of Two Littleton Road Realty Trust, u/d/t dated January 30,
1997 and recorded with the Middlesex North Registry of Deeds in Book 8425, Page
143 and as Trustees of One Littleton Road Realty Trust, u/d/t dated December 30,
1991 and recorded with said deeds in Book 5768, Page 183, as "Landlord" and
Landlord, as "Tenant", notice of which was recorded in said Deeds in Book 10832,
Page 7 (the "Ground Lease"), in connection with certain real property commonly
known as ______________________, and located in Westford, Middlesex County,
Massachusetts, and more particularly described in Exhibit "A" attached hereto
and made a part hereof (said property being hereinafter called the "Property");
and
WHEREAS, Landlord and Tenant made and entered into that certain Lease,
dated as of the ___ day of ____________ 2000, with respect to certain premises
located on the Property constituting the Premises therein described, as the same
may be expanded pursuant to Exhibit "J" of the Lease (said Lease being
hereinafter called the "Lease" and said premises being hereinafter called the
"Leased Premises"), notice of which was recorded in the Middlesex North Registry
of Deeds on __________________, 2000 as Instrument No. _____; and
WHEREAS, Landlord has entered into and delivered that certain Mortgage
and Security Agreement in favor of Lender recorded in the Middlesex North
Registry of Deeds on ______________, 2000 as Instrument No. _______ prior to the
recording of this Agreement (said Mortgage and Security Agreement being
hereinafter called the "Mortgage"), conveying the Property to secure the payment
of the indebtedness described in the Mortgage; and
WHEREAS, on or about the date hereof, Landlord has entered into and
delivered that certain Assignment of Leases and Rents in favor of Lender
recorded in the Middlesex North Registry of Deeds on ______________, ______ as
Instrument No. _________ prior to the recording of this Agreement (said
Assignment of Leases and Rents being hereinafter called the "Assignment of
Leases"), assigning all of Landlord's right, title and interest as lessor under
the Lease to further secure the indebtedness described in the Mortgage; and
<PAGE>
WHEREAS, the Mortgage and the Assignment of Leases secure the repayment
of a loan from Lender to Landlord in the principal amount of $___________ (the
"Loan") as evidenced by that certain Promissory Note of Landlord to Lender dated
____________, 2000 (the "Note"); and
WHEREAS, the proceeds of the Note are being advanced pursuant to the
terms of that certain Construction Loan Agreement between Landlord and Lender
dated __________, 2000 (the Construction Loan Agreement"): the Note, Mortgage,
Assignment of Leases, Construction Loan Agreement and all other documents
extended in connection with Mortgage, the Loan are sometimes hereinafter
collectively referred to as the "Loan Documents"; and
WHEREAS, the Lender represents that it is the sole holder of the
Mortgage and the Promissory Note and other loan documents secured thereby; and
WHEREAS, the parties hereto desire to enter into this Non-Disturbance,
Attornment and Subordination Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender, Tenant and Landlord hereby
covenant and agree as follows:
1. ESTOPPEL - Tenant hereby certifies to Lender that, as of the date of
this Agreement: (i) the Lease, as described above, is the true, correct and
complete Lease and has not been modified or amended and constitutes the entire
agreement between Landlord and Tenant, (ii) to the best of Tenant's knowledge,
without inquiry, there are no defaults of Landlord under the Lease and there are
no existing circumstances which with the passage of time, or giving of notice,
or both, would give rise to a default under the Lease and/or allow Tenant to
terminate the Lease, (iii) Tenant is satisfied with all of the work done by and
required of Landlord to date, such work has been done in accordance with plans
and specifications approved by Tenant, and as of the date hereof Tenant is not
aware of any defect in the work or has not rejected any of the work done by
Landlord on the Leased Premises [only includable if Tenant agrees with, after
work is completed], (iv) that no rent under the Lease has been paid more than
thirty (30) days in advance of its due date; (v) that the Tenant, as of this
date, has no charge, lien or claim of offset under the Lease or otherwise,
against rents or other charges due to become due thereunder; and (vi) the
Tenant's interest in the Lease has not been assigned nor has any portion of the
Leased Premises been sublet. If this Agreement is being delivered prior to
completion of all of Landlord's Work (as such term is defined in the Lease) on
the Leased Premises, Tenant agrees that, promptly after request of the Lender
therefor, it will provide an estoppel certificate to Lender following completion
of such work indicating whether Tenant has accepted the work and begun payment
of rent.
2. NON-DISTURBANCE - Lender agrees that if Lender comes into possession
of or acquires title to all or any part of the Leased Premises or the Lot (as
defined in the Lease) as a result of foreclosure or other enforcement of the
Mortgage or the Assignment of Leases, or both, then so long as no default under
the Lease by Tenant exists and continues beyond the expiration of all applicable
cure periods (after notice, if any, required by the Lease) as would entitle the
lessor under the Lease to terminate the Lease or would cause, without any
further action on the
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<PAGE>
part of such lessor, the termination of the Lease or would entitle the lessor
under the Lease to exercise any other remedy available to it on account of
Tenant defaults under the Lease, the Lease shall not be terminated, nor shall
Tenant's use, possession or enjoyment of the Leased Premises and appurtenant
rights and interests or rights under the Lease be interfered with. Following a
foreclosure or other action or proceeding in the nature of foreclosure
instituted under or in connection with the Mortgage or the Assignment of Leases,
or the acquisition of title to the Leased Premises, the person or entity
acquiring the interest of the lessor under the Lease as a result of any such
action or proceeding or deed in lieu of any such action or proceeding
(hereinafter called the "Purchaser") or Lender if Lender takes possession of the
Property shall have all rights and obligations of Landlord under the Lease,
except as expressly otherwise set forth herein, provided, however, that neither
the Purchaser nor the Lender shall be (a) liable for any act or omission of any
prior lessor under the Lease provided that nothing herein shall relieve such
Purchaser or Lender from curing any continuing defaults of lessor after receipt
of requisite notices from Tenant, all in accordance with the Lease; or (b)
liable for the return of any security deposit which lessee under the Lease has
paid under the Lease unless such security deposit is received by Lender; or (c)
subject to any offsets or defenses which the lessee under the Lease might have
against any prior lessor under the Lease unless Lender has received prior
written notice of the offset or defense and opportunity to cure the same in
accordance with Section 7 below; or (d) bound by any base rent, or any other
payments which the lessee under the Lease might have paid for more than the
current month to any prior lessor under the Lease; or (e) bound by any amendment
or modification of the Lease which reduces the rent, reduces the area of the
Leased Premises, shortens the term or materially impairs the rights of Mortgagee
thereunder without obtaining Lender's prior written consent or (f) personally
liable for any default under the Lease or any covenant or obligation on its part
to be performed thereunder as lessor, it being acknowledged that Tenant's sole
remedy in the event of such default shall be to proceed against Purchaser's or
Lender's interest in the Property and the rents, or other proceeds arising
therefrom, including but not limited to insurance proceeds for policies required
to be carried by Landlord under the Lease.
In the event that Lender or Purchaser acquires title to or possession
of all or any part of the Leased Premises, whether pursuant to a foreclosure
proceeding or otherwise, then within thirty (30) days thereafter, the Lender or
Purchaser may elect to deliver a written notice to the Tenant stating that
either (i) the Lender intends to perform the construction obligations of the
Landlord set forth in Article III of the Lease (the "Construction Obligations"),
or (ii) the Lender or Purchaser does not intend to perform the Construction
Obligations. A notice delivered by the Lender or Purchaser pursuant to clause
(i) is referred to herein as an "Opt-In Construction Notice" and a notice
delivered by the Lender pursuant to clause (ii) is referred to herein as an
"Opt-Out Construction Notice".
In the event that the Lender or Purchaser does not deliver either an
Opt-Out construction Notice or an Opt-In Construction Notice to the Tenant
within said thirty (30) days after acquisition of title or possession, then
Tenant may elect to deliver a written request (a "Construction Confirmation
Request") to the Lender or Purchaser, requesting that Lender or Purchaser
deliver either an Opt-Out Construction Notice or an Opt-In Construction Notice.
3
<PAGE>
If either (a) Lender or Purchaser delivers an Opt-Out Construction
Notice to Tenant as aforesaid, or (b) Lender or Purchaser does not deliver an
Opt-In Construction Notice to Tenant by not later than thirty (30) days after
receipt of Tenant's Construction Confirmation Request, then Lender or Purchaser
shall not be obligated to perform the Construction Obligations in accordance
with the terms and provisions the Lease. If Lender or Purchaser delivers an
Opt-In Construction Notice as aforesaid, then Lender or Purchaser shall be
obligated to perform the Construction Obligations in accordance with the terms
and provisions of the Lease. If Lender or Purchaser timely delivers an Opt-Out
Construction Notice to Tenant by not later than thirty (30) days after receipt
of Tenant's Construction Confirmation Request as aforesaid, or Lender or
Purchaser does not deliver an Opt-In Construction Notice to Tenant by not later
than thirty (30) days of its receipt of Tenant's Construction Confirmation
Request, then (a) Lender or Purchaser shall have no obligation to perform the
Construction Obligations, and (b) Tenant may elect to terminate the Lease by
providing written notice of such election to Lender or Purchaser. If Tenant
elects to terminate the Lease, the Lease shall be terminated effective as of the
date specified in Tenant's notice. Thereafter the Lease shall be null and void
and of no further force or effect, and neither the Tenant nor the Lender or
Purchaser shall have any further liabilities or obligations thereunder.
If (a) Lender sells, conveys, assigns, pledges or transfers its
interest in the Loan, or (b) Lender sells the Leased Premises, or any part
thereof, at a foreclosure sale, or (c) if Lender acquires title to the Leased
Premises and subsequently conveys the Leased Premises, then, in any such event,
concurrently with such transaction, Lender shall transfer, assign and convey all
right, title and interest of the Lender in and to the Security Deposit then held
by it, if applicable, to such purchaser, assignee, or transferee.
Notwithstanding anything to the contrary contained in this Section, if Lender so
transfers, assigns or conveys all right, title and interest of the Lender in and
to the Security Deposit, if applicable, as aforesaid, then Lender shall have no
liability for the return of the Security Deposit.
3. ATTORNMENT - Unless the Lease is terminated in accordance with
Paragraph 2 or in accordance with the terms of the Lease, if the interests of
the lessor under the Lease shall be transferred by reason of the exercise of the
power of sale contained in the Mortgage (if applicable), or by any foreclosure
or other proceeding for enforcement of the Mortgage, or by deed in lieu of
foreclosure or such other proceeding, or if Lender takes possession of the
Property pursuant to any provisions of the Mortgage, Tenant shall be bound to
the Purchaser or Lender, as the case may be, under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof and any
extensions or renewals thereof which may be effected in accordance with any
option therefor in the Leases with the same force and effect as if the Purchaser
or Lender were the lessor under the Lease, and Tenant, as lessee under the
Lease, does hereby agree to attorn to the Purchaser and Lender if it takes
possession of the Property, as its lessor under the Lease. Such attornment shall
be effective and self-operative without the execution of any further instruments
upon succession by Purchaser to the interest of the lessor under the Lease or
the taking of possession of the Property by Lender. Nevertheless, Tenant shall,
from time to time, execute and deliver such instruments evidencing such
attornment as Purchaser or Lender may reasonably require. The respective rights
and obligations of Purchaser, Lender and of the lessee under the Lease upon such
attornment, to the extent of the then remaining balance of the term of the Lease
and any such extensions and renewals, shall be and
4
<PAGE>
are the same as now set forth in the Lease, except as otherwise expressly
provided in Paragraph 2 above.
4. SUBORDINATION - Subject to the provisions of this Agreement, Tenant
hereby subordinates all of its rights, title and interest as lessee under the
Lease to the right, title and interest of Lender under the Mortgage, and Tenant
further agrees that the Lease now is and shall at all times continue to be
subject and subordinate in each and every respect to the Mortgage and to any and
all increases, renewals, modifications, extensions, substitutions, replacements
and/or consolidations of the Mortgage and to all sums secured thereby with the
same force and effect as if the Mortgage had been executed, delivered and
recorded prior to the execution and delivery of the Lease.
5. OTHER CONDITIONS - Notwithstanding anything to the contrary
contained in this Agreement or in the Lease, Lender, Tenant and Landlord agree:
(a) that to the extent required by the Lease, and provided that (i) Tenant has
not defaulted in the payment of rent or other charges under the Lease, (ii)
Landlord has not defaulted in the payment of debt service or other payments
under the loan documents and (iii) neither Landlord or Tenant has filed a
voluntary petition in bankruptcy under Title 11 of the United States Code or had
an order for relief issued against it and not dismissed within sixty (60) days
of issuance or has filed any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under any present or future federal, state or other
law or regulation relating to bankruptcy, insolvency or other relief of debtors
or consented or acquiesced in the appointment of any custodian, trustee,
receiver, conservator or liquidator for it or all or any substantial part of its
property or made an assignment for the benefit of creditors, then in the event
of an insured casualty to the Leased Premises, and if Landlord satisfies the
conditions provided for hereafter, Lender shall hold the balance of any casualty
proceeds after proof and adjustment and shall use such funds for the following
purposes: (x) to reimburse Landlord, in accordance with the terms and conditions
set forth below, for the costs of reconstruction or repair of the Leased
Premises, and (y) upon completion of such reconstruction or repair, to apply any
excess to the payment of the Secured Obligations. Such funds shall be made
available as provided above upon the Landlord's prior satisfaction of such
conditions as the Lender may reasonably establish with respect thereto (each of
which must be complied with in a manner reasonably satisfactory to the Lender,
with all documents, instruments, agreements, or evidence to be in form and
substance satisfactory to the Lender), including without limitation, the
following (hereinafter referred to as the "Funding Requirements"):
(i) delivery of estoppel certificate(s) or other satisfactory
evidence that the Lease remains in full force and effect and
will remain in full force and effect after such repair and
restoration, without any right of termination or cancellation
during the projected course of said repair or restoration;
(ii) delivery of plans and specifications, construction
budget, construction contract, and construction schedule for
such repair and restoration, satisfactory to Lender;
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<PAGE>
(iii) delivery of evidence of compliance with all applicable
state, federal, and local laws, ordinances and regulations
relating to such repair and restoration, and the issuance of
all required permits, licenses and approvals relative thereto;
(iv) delivery of evidence of the availability of any funds
necessary to complete such repairs and restoration in excess
of such proceeds, which funds, at the request of the Lender,
shall be deposited with the Lender to be disbursed with such
proceeds;
(v) builder's all risk insurance;
(vi) rent loss insurance sufficient to pay all operating costs
and debt service confirmed by the insurer to be available for
the period of repair and restoration;
(vi) evidence that the insurer under such policies of fire or
other casualty insurance does not assert any defense to
payment under such policies against Lender, Landlord or any
tenant of the Leased Premises;
(vii) execution of any documentation deemed reasonably
necessary by the Lender to provide for the disbursement of
such funds in a manner typical to a construction loan;
(viii) delivery of evidence that the repair or restoration can
be completed prior to the then applicable maturity date of the
note;
(ix) Landlord delivers to Lender a written undertaking to
expeditiously commence and to satisfactorily complete with due
diligence the necessary restoration; and
(x) compliance of such other reasonable non-financial terms
and conditions customary for construction loans of the size
and scope involved with such repairs and restoration.
6. ASSIGNMENT OF LEASES - Tenant hereby acknowledges that all of
Landlord's right, title and interest as lessor under the Lease is being duly
assigned to Lender pursuant to the terms of the Assignment of Leases, and that
pursuant to the terms thereof all rental payments under the Lease shall continue
to be paid to Landlord in accordance with the terms of the Lease unless and
until Tenant is otherwise notified in writing by Lender. Upon receipt of any
such written notice from Lender, Tenant covenants and agrees to make payment of
all rental payments then due or to become due under the Lease directly to Lender
or to Lender's agent designated in such notice and to continue to do so until
otherwise notified in writing by Lender. Landlord hereby irrevocably directs and
authorizes Tenant to make rental payments directly to Lender following receipt
of such notice and covenants and agrees that Tenant shall have the right to rely
on such notice without any obligation to inquire as to whether any default
exists under the Mortgage or the Assignment of Leases or the indebtedness
secured thereby, and notwithstanding any notice of claim of Landlord to the
contrary, that Landlord shall have no right or claim against Tenant for
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<PAGE>
or by reason of any rental payments made by Tenant to Lender following receipt
of such notice. Except as otherwise specifically set forth in the Lease, Tenant
further acknowledges and agrees: (a) without the consent of Lender, no rent may
be collected or accepted by Landlord more than one month in advance; and (b)
that the interest of Landlord as lessor under the Lease has been assigned to
Lender under the Assignment of Leases, and Lender assumes no duty, liability or
obligation under the Lease, except only under the circumstances, terms and
conditions specifically set forth in this Agreement.
7. NOTICE OF DEFAULT BY LESSOR - Tenant, as lessee under the Lease,
hereby covenants and agrees to give Lender written notice properly specifying
wherein the lessor under the Lease has failed to perform any of the covenants or
obligations of the lessor under the Lease simultaneously with the giving of any
notice of such default to the lessor under the provisions of the Lease. Tenant
agrees that Lender shall have the right, but not the obligation, within thirty
(30) days after receipt by Lender of such notice (or, with respect to
non-monetary defaults only, within such additional time as is reasonably
required to correct any such default) to correct or remedy, or cause to be
corrected or remedied, each such default before the lessee under the Lease may
take any action under the Lease by reason of such default; provided however, in
no event shall such time extend for more than thirty (30) days after Tenant
provides such notice to Lender, except if Lender has commenced to cure any such
non-monetary default under the Lease (which shall in no event include
foreclosure or exercise of other remedies available under the Mortgage) within
thirty (30) days after such written notice to Lender and is diligently
proceeding to cure such default and such non-monetary default cannot be cured
within thirty (30) days despite such diligent efforts to cure on the part of
Lender, in which event such time period may be extended for an additional period
of not more than sixty (60) days. Such notices shall be delivered in duplicate
in writing by registered or certified mail, return receipt requested, or by
depositing the same with an overnight commercial courier (such as Federal
Express) or by hand delivery, to Lender to:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Attention:
----------------------------------
With a copy to
--------------------------------------------
--------------------------------------------
--------------------------------------------
Attention:
----------------------------------
7
<PAGE>
or to such other address as the Lender shall have designated to Tenant by giving
written notice to Tenant, to Tenant, prior to the Term Commencement Date at:
Netscout Systems, Inc.
--------------------------------------------
4 Technology Park Drive
Westford, MA 01886
Attention:
----------------------------------
after the Term Commencement Date at:
Netscout Systems, Inc.
--------------------------------------------
Westford, MA 01886
Attention:
----------------------------------
With a copy to: Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
Attention: Real Estate Department
or to such other address as may be designated by written notice from Tenant to
Lender.
8. NO FURTHER SUBORDINATION - Except as expressly provided to the
contrary in Paragraph 4 hereof, Landlord and Tenant covenant and agree with
Lender that there shall be no further subordination of the interest of lessee
under the Lease to any lender or to any other party without first obtaining the
prior written consent of Lender. Any attempt to effect a further subordination
of lessee's interest under the Lease without first obtaining the first written
consent of Lender shall be null and void.
9. CONSENT - Lender hereby consents to the Lease.
10. TRADE FIXTURES OR EQUIPMENT - The lien of the Mortgage does not
encumber any trade fixtures or equipment used by Tenant in its business on the
Property.
11. AS TO LANDLORD AND TENANT - As between Landlord and Tenant;
Landlord and Tenant covenant and agree that nothing herein contained nor
anything done pursuant to the provisions hereof shall be deemed or construed to
modify the Lease.
12. AS TO LANDLORD AND LENDER - As between Landlord and Lender,
Landlord and Lender covenant and agree that nothing herein contained nor
anything done pursuant to the provisions thereof shall be deemed or construed to
modify the Mortgage or the Assignment of Leases.
8
<PAGE>
13. TITLE OF PARAGRAPHS - The titles of the paragraphs of this
agreement are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this agreement.
14. GOVERNING LAW - This agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
15. PROVISIONS BINDING - The terms and provisions hereof shall be
binding upon and shall inure to the benefit of the heirs, executors,
administrators, successors and permitted assigns, respectively, of Lender,
Tenant and Landlord. The reference contained to successors and assigns of Tenant
is not intended to constitute and does not constitute a consent by Landlord to
an assignment by Tenant where such consent is required under the Lease, but has
reference only to those instances in which the lessor under the Lease shall have
given written consent to a particular assignment by Tenant thereunder where such
consent is required under the Lease. In the event of a conflict between the
provisions of this Agreement and the provisions of the Lease, the provisions of
this Agreement shall prevail as between Lender and Tenant.
In the event of any transfer of the Mortgage or the note secured
thereby, the Lender shall transfer and deliver to the transferee any security
deposit under the Lease held by Lender or its agent, and provided the transferee
assumes the obligations of Lender hereunder or otherwise recognizes the
provisions hereof by written instrument, Lender shall thereupon become freed and
relieved of all covenants and obligations of the Lender hereunder, except with
respect to any breaches of this Agreement as shall have theretofore occurred.
16. COUNTERPARTS - 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 one and the same instrument.
17. MODIFICATION - This Agreement may not be modified orally or in any
manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
18. INFORMATION - So long as the Loan is outstanding, and upon prior
written request, Tenant covenants to provide Lender with all information,
including, but not limited to evidence of payment of taxes and insurance (if
Tenant is obligated for such payments under the Lease) to which Landlord may be
entitled under the Lease.
19. INSPECTIONS - So long as the Loan is outstanding, the Lender or its
designee may enter upon the Property at all reasonable times and upon reasonable
advance notice to inspect the Property.
20. ENFORCEABILITY - Tenant hereby represents and warrants to Landlord
and Lender that the Lease and this Agreement have been duly authorized, executed
and delivered by Tenant and constitute legal, valid and binding instruments,
enforceable against Tenant in accordance with their respective terms, except as
such terms may be limited by bankruptcy, insolvency or
9
<PAGE>
similar laws affecting creditors' rights generally. Landlord hereby represents
and warrants to Lender and Tenant that the Lease and this Agreement have been
duly authorized, executed and delivered by Landlord and constitute legal, valid
and binding instruments, enforceable against Landlord in accordance with their
respective terms, except as such terms may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally. Lender hereby represents
and warrants to Landlord and Tenant that this Agreement has been duly
authorized, executed and delivered by Lender and constitutes a legal, valid and
binding instrument, enforceable against Lender in accordance with its respective
terms, except as such terms may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally.
10
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under seal and hereunto set their respective hands and seals as of
the day, month and year first above written.
LENDER:
By:
----------------------------------------------------------
Title:
-------------------------------------------------------
TENANT:
Netscout Systems, Inc.
By:
----------------------------------------------------------
Title:
-------------------------------------------------------
LANDLORD: Nashoba Westford Realty Trust
By:
----------------------------------------------------------
Arturo J. Gutierrez, as Trustee but not individually
By:
----------------------------------------------------------
John A. Cataldo, as Trustee but not individually
11
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
County, SS. , 2000
------------------- ------------------
Then personally appeared before me _________________, the ___________________ of
_______________________, to me personally known, who I am satisfied signed the
foregoing instrument, and who did acknowledge under oath that he/she signed and
delivered the same in his/her capacity as ______________ and that the foregoing
instrument is his/her free act and deed and the free act and deed of such
_______________________.
----------------------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
County, SS. , 2000
------------------- ------------------
Then personally appeared before me _________________, the ___________________ of
Netscout Systems, Inc., to me personally known, who I am satisfied signed the
foregoing instrument, and who did acknowledge under oath that he/she signed and
delivered the same in his/her capacity as ______________ and that the foregoing
instrument is his/her free act and deed and the free act and deed of such
corporation.
----------------------------------------------
Notary Public
My Commission Expires:
12
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
, SS. , 2000
------------------ ------------------
Then personally appeared before me Arturo J. Gutierrez, Trustee as aforesaid, to
me personally known, who I am satisfied signed the foregoing instrument, and who
did acknowledge under oath that he signed and delivered the same in his capacity
as Trustee aforesaid and that the foregoing instrument is his free act and deed
as Trustee aforesaid.
----------------------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
, SS. , 2000
------------------ ------------------
Then personally appeared before me John A. Cataldo, Trustee as aforesaid, to me
personally known, who I am satisfied signed the foregoing instrument, and who
did acknowledge under oath that he signed and delivered the same in his capacity
as Trustee aforesaid and that the foregoing instrument is his free act and deed
as Trustee aforesaid.
----------------------------------------------
Notary Public
My Commission Expires:
13
<PAGE>
EXHIBIT "G-2"
RECOGNITION AGREEMENT
THIS AGREEMENT made as of the ____ day of August, 2000 by ALBERT L.
NARDONE AND ANTHONY B. NARDONE, Trustees of Two Littleton Road Realty Trust,
u/d/t dated January 30, 1997 and recorded with the Middlesex North Registry of
Deeds in Book 8425, Page 143 and as Trustees of One Littleton Road Realty Trust,
u/d/t dated December 30, 1991 and recorded with said Deeds in Book 5768, Page
183 with an address care of Nardone Industrial Estates, 37 Power Road, Westford,
Massachusetts 01886 ("Fee Owner"), and ARTURO J. GUTIERREZ AND JOHN A. CATALDO,
Trustees of Nashoba Westford Realty Trust, u/d/t dated April 27, 2000 and
recorded with the Middlesex North Registry of Deeds on May 10, 2000 as
Instrument No. 23639 having a mailing address at Burlington Office Park, One
Wall Street, Burlington, Massachusetts 01803 ("Developer"); and NETSCOUT
SYSTEMS, INC. with an address of 4 Technology park Drive, Westford,
Massachusetts 01886 ("Tenant").
WHEREAS, Fee Owner is the fee owner of a parcel of land and the
improvements thereon (said parcel of land being hereinafter called the "Ground
Leased Premises") located in Westford, Massachusetts and being more particularly
described on Exhibit A annexed hereto and made a part hereof;
WHEREAS, by a certain ground lease ("Ground Lease") dated May 11, 2000,
notice of which is recorded with the Middlesex North District, Massachusetts
Registry of Deeds in Book ____, Page ____, Fee Owner leased the Ground Leased
Premises to Developer;
WHEREAS, by a certain lease ("Lease") between Developer and Tenant
dated [__________], 2000, Developer leased to Tenant certain premises
constituting a portion of the Ground Leased Premises as described in the Lease,
(said premises and the improvements to be built thereon being hereinafter called
the "Demised Premises");
NOW THEREFORE, in consideration of the benefits inuring to Developer as
a result of the Lease, and the mutual covenants herein contained, and other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Fee Owner warrants and represents to Tenant as follows:
(a) that it is the fee owner of the Ground Leased Premises;
(b) that the Ground Lease is unmodified and is in full force and
effect;
(c) that the term of the Ground Lease expires on May 11, 2099 and there
are no renewal periods; and
(d) that Fee Owner and Developer are not in default under the Ground
Lease nor has any event occurred which would after notice to Fee Owner and
Developer and the passage of time become a default of Developer under the Ground
Lease.
<PAGE>
2. Developer warrants and represents to Tenant as follows:
(a) that it is lessee under the Ground Lease;
(b) that the Ground Lease is unmodified and is in full force and
effect; and
(c) that Fee Owner and Developer are not in default under the Ground
Lease nor has any event occurred which would after notice to Fee Owner and
Developer and the passage of time become a default of Developer under the Ground
Lease.
3. Fee Owner hereby acknowledges receipt of a copy of, and consents to
the Lease and all the terms, covenants and provisions thereof, and agrees that
the exercise by Tenant of any of the rights, remedies and options contained
therein shall not constitute a default under the Ground Lease; and further
agrees that in the event of a conflict between the terms and conditions of the
Ground Lease and the Lease, the terms and conditions of the Lease shall prevail,
provided Tenant has complied with the provisions hereof.
4. Fee Owner agrees that whenever it has an obligation with respect to
the Demised Premises, or its consent or approval is required for any action
under the Ground Lease or any instrument modifying or amending the same or
entered into in substitution, amendment or replacement thereof, then, to the
extent such obligations, consent or approval relates solely to the Demised
Premises or Tenant's use and occupation thereof pursuant to the terms of the
Lease, it will perform such obligation and/or shall provide its consent or
approval.
5. So long as Tenant is not then in default under the Lease beyond any
applicable notice and cure period, Fee Owner shall not, in the exercise of any
of the rights arising or which may arise out of the Ground Lease, or of any
instrument modifying or amending the same or entered into in substitution,
amendment or replacement thereof, disturb or deprive Tenant in, or of its
possession or its rights to possession of the Ground Leased Premises or any
right or privilege granted to or inuring to the benefit of Tenant under the
Lease, Tenant agreeing in such event to comply with the requirements of Section
7(b) hereof.
6. In the event of the termination or rejection of the Ground Lease by
reentry, notice, conditional limitation, surrender, summary proceeding or other
action or proceeding, or otherwise, or, if the Ground Lease shall terminate or
expire for any reason before any of the dates provided in the Lease for
termination of the initial or renewal terms of the Lease and if immediately
prior to such surrender, termination, rejection or expiration the Lease shall be
in full force and effect, Tenant shall not be made a party in any removal or
eviction action or proceeding nor shall Tenant be evicted or removed of its
possession or its right of possession of the Premises be disturbed or in any way
interfered with, and at the election of Tenant, the Lease shall continue in full
force and effect as a direct lease or sublease between Tenant and the Fee Owner,
Tenant agreeing in such event to comply with the requirements of Section 7(b)
hereof. If the Ground Lease is rejected by Fee Owner in a bankruptcy proceeding,
Tenant shall enjoy the same rights to possession as a non-debtor tenant or
lessee under Section 165 of the US Bankruptcy Code.
2
<PAGE>
7. (a) Except as otherwise provided in paragraph 7(b) below, or in any
instance where the Ground Lease is terminated as a result of a foreclosure of
any mortgage or other lien, if the Ground Lease terminates (i) by operation of
law, (ii) by mutual agreement between the parties, or (iii) for any other
reasons whatsoever, then in any such event Tenant may elect to continue the
Lease in full force and effect notwithstanding such termination of the Ground
Lease, as provided in this paragraph 7.
(b) On such election by Tenant, the Lease shall continue as a direct
lease between Fee Owner and Tenant for the remainder of the term of the Lease
without the necessity of executing a new lease, on the same terms and conditions
as are in effect under the Lease immediately preceding the termination of the
Ground Lease, Tenant agreeing to cure any monetary defaults of Developer not
previously cured.
8. In the event that Fee Owner acquires title to Developer's interest,
as Landlord under the Lease and/or possession of all or any part of the Demised
Premises whether pursuant to a foreclosure proceeding, termination of the Ground
Lease or otherwise, the Lease shall continue in full force and effect as a
direct lease between Tenant and Fee Owner provided that Tenant has complied with
the provisions of Section 7(b) above except that (a) Fee Owner shall have no
obligation to perform the construction obligations of Landlord set forth in
Article IX of the Lease, and (b) Tenant may elect either (i) to complete
construction in accordance with its self-help rights set forth in the Lease, or
(ii) to terminate the Lease in either case by providing written notice of such
election to Fee Owner. If Tenant elects to terminate the Lease, the Lease shall
be terminated effective as of the date specified in Tenant's notice. Thereafter
the Lease shall be null and void and of no further force or effect, and neither
the Tenant nor the Fee Owner shall have any further liabilities or obligations
thereunder.
9. Any notices, consents, approvals, submissions, demands or other
communications (hereinafter collectively referred to as ("Notice") given under
this Agreement shall be in writing. Unless otherwise required by law or
governmental regulation, notices shall be deemed given if sent by registered or
certified mail, return receipt requested, postage prepaid or nationally
recognized overnight delivery service, charges prepaid, (a) to Fee Owner or
Developer at the address of Fee Owner or Developer as hereinabove set forth, (b)
to Tenant, at the address of the Tenant as listed hereinabove, or such other
address as Tenant may designate by notice to the other parties hereto. All
notices shall become effective only on the receipt or rejection of the same by
the proper parties.
10. No modification, amendment, waiver or release of any provision of
this Agreement or of any right, obligation, claim or cause of action arising
hereunder shall be valid or binding for any purpose whatsoever unless in writing
and duly executed by the party against whom the same is sought to be asserted.
11. Fee Owner agrees that in the event of a default by the Developer
under the Ground Lease, Fee Owner shall not exercise any of its remedies under
the Ground Lease, unless: (i) Fee Owner shall have provided Tenant with a thirty
(30) day period in which to cure such default, provided, however that if any
such default shall require more than thirty (30) days to
3
<PAGE>
cure and the Tenant commences to cure such default promptly upon receipt of
notice from Fee Owner and diligently prosecutes such cure to completion, then
Tenant shall have a reasonable period of time beyond such thirty (30) day period
to cure any such default; and (ii) Tenant shall have failed to cure such default
within such thirty (30) day period, or reasonable period of time beyond such
thirty (30) day period.
Fee Owner acknowledges that Tenant has certain expansion rights
under the Lease with respect to a portion of the Ground Leased Premises. Fee
Owner agrees to execute a Recognition Agreement concerning Tenant's leasehold
interest in the Expansion Space (as defined in the Lease), which Recognition
Agreement shall contain the same terms and conditions set forth herein.
12. This Agreement shall be binding on and shall inure to the benefit
of the parties hereto and their respective heirs, legal representatives,
successors, assigns and sublessees. In the event of a transfer by Fee Owner of
its interest in the Ground Leased Premises, the terms, conditions and
obligations set forth in this Agreement shall remain binding on the Fee Owner
until Tenant has received a written agreement from any successor or assignee of
the Fee Owner, pursuant to which any such successor or assignee expressly
assumes the obligations of Fee Owner under this Agreement and the Ground Lease.
IN WITNESS WHEREOF, executed under seal the date first above written.
ALBERT L. NARDONE AND ANTHONY B.
NARDONE, Trustees of Two
Littleton Road Realty
Trust, u/d/t dated January
30, 1997 and recorded with
the Middlesex North
Registry of Deeds in Book
8425, Page 143 and as
Trustees of One Littleton
Road Realty Trust, u/d/t
dated December 30, 1991 and
recorded with said Deeds in
Book 5768, Page 183
By:
-------------------------------------
Name: Albert L. Nardone
Title: Trustee and not individually
By:
-------------------------------------
Name: Anthony B. Nardone
Title: Trustee and not individually
4
<PAGE>
ARTURO J. GUTIERREZ AND JOHN A. CATALDO, Trustees of Nashoba
Westford Realty Trust, u/d/t dated April 27, 2000 and
recorded with the Middlesex North Registry of Deeds on May
10, 2000 as Instrument No. 23639
By:
-----------------------------------------------------------
Name: Arturo J. Gutierrez
Title: Trustee and not individually
By:
-----------------------------------------------------------
Name: John A. Cataldo
Title: Trustee and not individually
NETSCOUT SYSTEMS, INC.
By:
-----------------------------------------------------------
Its:
COMMONWEALTH OF MASSACHUSETTS
SS. , 2000
------------------ ------------------
Then personally appeared before me the above named Albert L. Nardone,
Trustee of Two Littleton Road Realty Trust, and acknowledged the foregoing to be
his free act and deed.
--------------------------------------------------------------
Notary Public
My Commission Expires:
5
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
, SS. , 2000
------------------ ------------------
Then personally appeared before me the above named Anthony B. Nardone,
Trustee of Two Littleton Road Realty Trust, and acknowledged the foregoing to be
his free act and deed.
--------------------------------------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. , 2000
------------
Then personally appeared before me the above named Arturo J. Gutierrez,
Trustee of Nashoba Westford Realty Trust, and acknowledged the foregoing to be
his free act and deed.
--------------------------------------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
SS. , 2000
------------------ ------------------
Then personally appeared before me the above named John A. Cataldo,
Trustee of Nashoba Westford Realty Trust, and acknowledged the foregoing to be
his free act and deed.
--------------------------------------------------------------
Notary Public
My Commission Expires:
6
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
SS. , 2000
------------------ ------------------
Then personally appeared before me the above named
____________________, _________________ of Netscout Systems, Inc., and
acknowledged the foregoing to be his/her free act and deed.
--------------------------------------------------------------
Notary Public
My Commission Expires:
7
<PAGE>
EXHIBIT "H"
ALLOWANCES
a) $25.00 per rentable square foot for the cost of Tenant's Work
construction, architectural, engineering, wiring and furniture
installation, Landlord and Tenant hereby agreeing that such
allowance shall be reduced by $16,600.00 for Tenant's
contribution for upgrade in HVAC tonnage.
<PAGE>
EXHIBIT "I"
ESTOPPEL CERTIFICATE
THIS CERTIFICATE is made to __________________ (the "Bank") with
respect to a lease dated _________________ execute by and between Arturo J.
Gutierrez and John A Cataldo, Trustees of Nashoba Westford Realty Trust, u/d/t
dated April 27, 2000 and recorded with the Middlesex North Registry of Deeds in
Book 10813, Page 38 (the "Landlord") and the undersigned (as "Tenant"), covering
a building (a portion of a building) located at ___________ Westford,
Massachusetts (the "Lease"), as amended by (list all amendments):
The undersigned has been advised that the Bank is about to enter into a
transaction whereby the Bank is making a loan secured by the aforesaid real
estate and the Lease to the undersigned, and under which the Bank may acquire an
ownership interest in such real estate. In connection with this transaction, the
entire interest of the Landlord under the Lease to the undersigned will be
assigned to the Bank. The undersigned acknowledges that the Bank is and will be
relying upon the truth, accuracy and completeness of this letter in proceeding
with the transaction described above.
The undersigned, for the benefit of the bank, their successors and
assigns, hereby certifies, represents, warrants, agrees and acknowledges that:
1. The Lease is in full force and effect in accordance with its terms
without modification or amendment except as noted above and the undersigned is
the holder of the Tenant's interest under the Lease.
2. The undersigned is in possession of all of the Premises described in
the Lease under and pursuant to the Lease and is doing business thereon; and the
premises are completed as required by the Lease.
3. The undersigned has no claims or offsets with respect to any of its
obligations as Tenant under the Lease, and neither the undersigned nor the
Landlord is claimed to be in default under the Lease.
4. The undersigned has not paid any rental or installments thereof more
than one month in advance of the due date as set forth in the Lease.
5. The undersigned has no notice of prior assignment, hypothecation or
pledge of rents of the Lease or the Landlord's interest thereunder or of the
Tenant's interest thereunder.
6. The term of the Lease has commenced and is presently scheduled to
expire on _____________, ____. If there are any rights of extension or renewal
under the terms of the Lease, the same have not, as of the date of this letter,
been exercised.
<PAGE>
7. Each of the statements set forth in Paragraphs 1 through 7 are true,
accurate and complete except as follows (state specifically any exception):
DATED
ATTEST:
NETSCOUT SYSTEMS, INC.
By:
---------------------------------------------
Its:
--------------------------------------------
2
<PAGE>
EXHIBIT "J"
EXPANSION OPTION
Landlord agrees it shall hold available, subject to the conditions of
this Exhibit J, for Tenant the land described in Exhibit P of this Lease (the
"Expansion Land") required to support one non-contiguous expansion of the
Building by Landlord for Tenant for a total of up to seventy-five thousand
(75,000) rentable square feet of additional space as described in paragraph one
of Article II of this Exhibit J (the "Expansion Space"). Landlord acknowledges
and agrees not to construct or permit the construction of any buildings in, on
or under the Expansion Land, and not to use the Expansion Land for purposes
other than for providing the required parking to Tenant pursuant to the
provisions of Section 26.10 of the Lease, subject to the conditions of this
Exhibit J. The size and footprint of the Expansion Space shall be determined by
Landlord and Tenant provided, however, that such expansion shall be a three (3)
story building consisting of seventy-five thousand (75,000) square feet, and
shall provide Tenant with an additional two hundred forty-nine (249) parking
spaces, and that the footprint and parking of such expansion shall be within the
general building footprint and parking areas shown on the proposed expanded
building footprint and site plan, attached as Exhibit P to this Lease (the
"Expanded Building Site Plan"), or such other area as is reasonably agreed upon
by Landlord and Tenant. So long as there does not then exist any uncured,
continuing Event of Default and this Lease is then in existence and in full
force and effect, so long as Tenant is then leasing and occupying at least one
hundred percent (100%) of the Building, and so long as such expansion option has
not been terminated in accordance with paragraph I. of this Exhibit J, Landlord
shall be required to hold the Expansion Land available as aforesaid, or to cause
an affiliate of Landlord to hold the Expansion Land available as aforesaid,
necessary for said Expansion Space, until Tenant has notified or fails to notify
Landlord of its election to expand by the earlier to occur of (but not sooner
than March 1, 2001): (i) such date which is two (2) business days after Tenant's
receipt of satisfactory documentation establishing that Landlord has obtained
such necessary permits and approvals for the construction of the Expansion Space
(and that all applicable appeal periods have expired with no appeals having been
filed) as contemplated hereunder, or (ii) such date which is fifteen (15)
business days after Tenant's receipt of satisfactory documentation establishing
that Landlord has obtained such necessary permits and approvals for a
non-contiguous expansion of the Building containing less than or more than
seventy-five thousand (75,000) square feet (and that all applicable appeal
periods have expired with no appeals having been filed) (the "Modified Expansion
Space") on the Expansion Land, provided that Tenant was given a reasonable
sufficient period of time to review the Modified Expansion Space plans and was
permitted to comment on them and to work with Landlord to develop a satisfactory
Modified Expansion Space layout prior to and during the applicable permitting
process. If Tenant fails to exercise its option as to the Expansion Space or
Modified Expansion Space as hereinabove provided or exercises its option in a
timely manner, but thereafter fails to deliver the Lease for the Expansion Space
(or Modified Expansion Space, as the case may be) as required pursuant to this
Exhibit J, then subject to the terms and provisions contained in this Exhibit J,
Tenant's option as to the Expansion Space and the rights and obligations of both
Landlord and Tenant under this paragraph I. shall terminate and be of no further
force or effect. For purposes hereof, in the event that Landlord obtains all
necessary permits and approvals for the construction of the Modified
<PAGE>
Expansion Space as aforesaid, then all applicable references to "Expansion
Space" set forth in this Exhibit J shall be deemed to refer to the "Modified
Expansion Space", as applicable.
Landlord shall exercise good faith efforts to obtain, simultaneously
with the approvals and permits necessary for construction of the original
Building, any and all approvals and permits, including but not limited to all
zoning, subdivision, wetlands and environmental permits and approvals, necessary
for the construction of the Expansion Space generally similar to the footprint
and site plan shown on the Expanded Building Site Plan. In the event that any of
the applicable authorities require modifications to the Expanded Building Site
Plan, then Landlord and Tenant hereby further agree that they will work and
cooperate with each other to reach a mutual agreement on any such modifications,
provided, however, that in no event shall such modifications result in the
Expansion Space containing less than seventy-five thousand (75,000) rentable
square feet.
I. EXPANSION SPACE
(i) In the event that Tenant desires to exercise its option to lease
and occupy the Expansion Space, and there does not then exist any uncured,
continuing Event of Default hereunder, and Tenant is leasing and occupying at
least one hundred percent (100%) of the Building, written notice of Tenant's
intention to lease and occupy such Expansion Space (the "Expansion Notice") must
be given to Landlord as aforesaid (the "Expansion Exercise Date"). If Tenant
elects to expand by leasing and occupying the Expansion Space (the "Lease for
the Expansion Space") as herein provided, the annual Fixed Rent for the
Expansion Space shall be an amount equal to such rents set forth in Article I
hereof.
The Lease for the Expansion Space shall be in the same form as this
Lease, and, except as herein set forth, on the same terms and conditions as are
set forth in this Lease (including without limitation the allowances set forth
on Exhibit H attached hereto and the provisions of Section 9.1.1 relating to an
additional allowance) and shall be for a Term of twelve (12) years. The Lease
for the Expansion Space shall provide for an Expansion Scheduled Term
Commencement Date (Landlord and Tenant hereby agreeing that such date occur no
later than twelve (12) months following the Expansion Notice by Tenant) and an
Expansion Term Commencement Date, the former to be mutually agreed upon by
Landlord and Tenant in good faith, but in no event less than thirty-six (36)
weeks or more than forty-four (44) weeks after obtaining all required permits
and approvals for construction of the Expansion Space, considering such factors
as weather and material availability (it being agreed by Landlord and Tenant
that such Expansion Notice by Tenant occurring between October 1, and March 1
shall add two (2) additional months to the Expansion Scheduled Term Commencement
Date for such space beyond that which would otherwise be expected). The Lease
for the Expansion Space shall also provide (i) for an Expansion Outside Delivery
Date of ninety (90) days after the Expansion Scheduled Term Commencement Date,
(ii) Tenant the right to cancel the Lease for the Expansion Space in the event
that the Expansion Space is not delivered on or before the Expansion Outside
Delivery Date, as extended for delays due to Force Majeure or Tenant's Delay as
therein described, and (iii) that the Tenant's Plans for the Expansion Space
prepared by and being delivered by Tenant to Landlord are attached as an Exhibit
to the Lease for the Expansion Space. The proposed form of Lease for the
Expansion Space shall be delivered by
2
<PAGE>
Landlord to Tenant promptly after such Expansion Notice to Tenant, and a
mutually agreed upon form shall be executed by Landlord and Tenant within
forty-five (45) days from the date of Tenant's receipt of a proposed form of
Lease for the Expansion Space from Landlord in the form as herein required,
unless such date is extended by mutual agreement of both parties hereto. Tenant
and Landlord shall use reasonable efforts, each acting in good faith, to execute
the Lease for the Expansion Space within said forty-five (45) days from the date
of Tenant's receipt of a proposed form from Landlord. Notwithstanding the
foregoing, Landlord and Tenant agree that any such Lease for the Expansion Space
shall be in the form of a separate lease agreement and in the same form as this
Lease as aforesaid.
II. ADDITIONAL EXPANSION PROVISIONS
The building quality, plans and specifications for the Expansion Space
shall be in accordance with the Expanded Building Site Plan and specifications
substantially comparable to the Building initially leased herein, except as
hereinafter provided, which such plans and specifications shall be set forth in
the Lease for the Expansion Space. Without limiting the foregoing, the building
quality, fit and finish of the Expansion Space shall be substantially comparable
to the Premises based on Landlord's Plans and Tenant's Plans and specifications
for the Landlord's Work and Tenant's Work. All final plans shall be subject to
Tenant's review and approval prior to permitting and commencement of
construction. Any material changes to the plans after initial approval by Tenant
and/or during the permitting process shall be subject to Tenant's prior written
consent (not to be unreasonably withheld or delayed), all as more particularly
to be provided in Article IX of the Lease for the Expansion Space. In addition,
the Expansion Space shall be landscaped to the mutual satisfaction of Landlord
and Tenant, each acting reasonably.
Landlord's obligation to construct the Expansion Space is contingent
upon Landlord's ability, using a good faith diligent effort, (i) to finance a
commercially reasonable portion of the project cost of such Expansion Space, or
such portion thereof as the Landlord elects to finance, at the annual Fixed Rent
as determined in paragraph I. above, and (ii) to obtain applicable permits and
approvals required under building, zoning and environmental laws, codes, rules
and regulations and other laws then affecting the use and development of such
land in order to construct the Expansion Space in accordance with all of the
terms of this Lease. The costs of such Expansion Space shall be allocated
pursuant to Article IX of this Lease.
Further notwithstanding any language to the contrary contained in this
Exhibit J, in the event that Tenant's option as to the Expansion Space expires
or has otherwise been terminated pursuant to the above provisions of this
Exhibit J, then Landlord shall have, at any time thereafter during the Term of
this Lease, the right to construct the Expansion Space (or a portion thereof),
and lease such space to any third party upon such terms and conditions as are
negotiated by Landlord in its sole and absolute discretion and Tenant shall have
no further rights thereto. Landlord and Tenant hereby further acknowledge and
agree that in such event, the Expansion Space may be enlarged or reduced by
Landlord, in accordance with applicable laws, codes, rules and regulations. Such
Expansion Space, whether for the original contemplated square footage or greater
or less than the amount as aforesaid, shall be subject to the terms and
conditions set forth in the first complete paragraph of paragraph II. above
(i.e. conditions as to building quality, fit
3
<PAGE>
and finish). In connection therewith, and in connection with any Expansion Space
constructed pursuant to this Exhibit J, whether for Tenant or not, Landlord
shall, if necessary, (i) relocate the Building Parking Area to an area as close
to the Building as reasonably possible, specifically as designated by Landlord,
so long as such area is within the relocation parking area shown on Exhibit P
hereto, Tenant hereby agreeing that such relocation parking area described by
Landlord on Exhibit P is acceptable to Tenant and (ii) have the right to
temporarily access such portion of the Lot shown as cross-hatched on Exhibit A,
Landlord hereby agreeing to minimize any interruptions to Tenant in connection
therewith. Subject to the foregoing provisions, Landlord and Tenant hereby
further agree that they shall enter into a mutually satisfactory agreement
amending, modifying or supplementing this Lease, if necessary, in order to
reflect the occupancy of the Expansion Space by any such additional tenant(s)
other than Tenant if the Expansion Space is constructed as so permitted by
Landlord hereunder.
4
<PAGE>
EXHIBIT "K"
FORM OF WORK CHANGE ORDER
TO BE SUPPLIED
<PAGE>
EXHIBIT "K"
LANDLORD, TENANT, CONTRACTOR
CHANGE PROPOSAL FORM
Project: _______________________________
_______________________________ R________ NR_______
Proposal No. ____________ Date _____________
From: (Landlord) _______________________________ BB______ TW_______
To: (Contractor) _______________________________
CC: (Tenant) _______________________________
----------------------------------------------------------------------------------------------
Step 1: Contractor: Provide an estimate for the described work.
Architect: Develop proper plans and specifications to clarify described work.
DESCRIPTION: (List Drawings)
Landlord:_______________________ Reason:__________________________
----------------------------------------------------------------------------------------------
Step 2: Contractor: Proceed with work as definitive plans become available.
Landlord:_______________________ Date:____________________________
----------------------------------------------------------------------------------------------
Step 3: Cost of Work
a. Cost of the work $__________
(See attached breakdown)
b. Add construction fee $__________
Total Cost of Work $__________
Submitted by:_______________________ ______________________
Dennis G. Bailey, Vice President & Construction Manager Date
----------------------------------------------------------------------------------------------
Step 4: The submitted Cost of Work has been reviewed and is (not) approved.
_________________________ _____________________
Architect Date
Design Fees $__________
TOTAL COST OF PROPOSAL $__________
----------------------------------------------------------------------------------------------
Step 5: FINAL ACTION
a. The Tenant _____________________ hereby agrees to reimburse the
Name of Firm
Landlord the Total Cost of Proposal shown in Step 4 above.
<PAGE>
___________________________ _______________
Authorized Tenant's Representative Date
b. This bulletin is approved (rescinded) and the work above is (not) to
be performed. Cost of this work shall be included in Change
Order No. _____.
___________________________ _______________
Landlord Date
2
<PAGE>
EXHIBIT "L"
DEFINITION OF COST OF THE WORK AND GENERAL CONDITIONS
REIMBURSABLE COSTS:
The following 8 numbered items shall be used to determine and calculate the Cost
of the Work:
1. The term Cost of the Work shall mean costs necessarily incurred and paid by
the Contractor in the proper performance of the work. Such costs shall be at
rates not higher than the standard paid in the greater Boston area and shall
include the items set forth below.
2. Costs of all materials, supplies and equipment incorporated in the work,
including costs of transportation thereof.
3. Payments made by the Contractor to subcontractors for work performed
pursuant to subcontracts.
4. Sales, use, or similar taxes related to the work and for which the
Contractor is liable, which are imposed by any governmental authority.
5. Permit fees, royalties, damage or infringement of patents and costs of
defending suits therefor, and deposits lost for causes other than due to the
Contractor's negligence.
6. Cost of all removal of debris and labor for periodic and final clean up.
7. Other costs incurred in the performance of the work if and to the extent
approved in advance in writing by the Tenant.
8. The cost of temporary power and heat.
The following 6 numbered items shall be used to determine the General
Conditions:
1. Wages paid for labor in the direct employ of Gutierrez Construction Co.,
Inc. ("Contractor") in the performance of the work under applicable
collective bargaining agreements, or under a salary or wage schedule agreed
upon by the Landlord, and Contractor, and including such welfare or other
benefits, if any, as may be payable with respect thereto.
2. Salaries of Contractor's personnel when stationed at the field office, in
whatever capacity employed, and a proportionate share of the project manager
and construction managers' salaries, whether at the job site or in the main
office. Personnel engaged at shops or on the road in expediting the
production or transportation of materials or equipment shall be considered
as stationed a the field office and their salaries paid for that portions of
their time spent on the work.
<PAGE>
3. Cost of contributions, assessments or taxes incurred during the performance
of the work for such items as unemployment compensation and social security,
insofar as such cost is based on wages, salaries or other remuneration paid
to employees of the Contractor and included in the Cost of the Work under
subparagraphs 1 and 2.
4. The portion of reasonable travel and subsistence expenses of the Contractor
or of his officers or employees incurred while traveling in discharge of
duties connected with the work.
5. Cost, including transportation and maintenance, of all materials, supplies,
equipment, temporary facilities and hand tools not owned by the workers,
which are consumed in the performance of the work, and cost less salvage
value on such items used by not consumed which remain the property of the
Contractor.
6. Rental charges of all necessary machinery and equipment, exclusive of hand
tools, used at the site in performance of the work, whether rented from the
Contractor or others including installation, minor repairs and replacements,
dismantling, removal, transportation and delivery costs thereof, at rental
charges consistent with those prevailing in the greater Boston area.
7. Losses and expenses, not compensated by insurance or otherwise, sustained by
the Contractor in connection with the work, provided they have resulted from
causes other than the fault or neglect of the Contractor. Such losses shall
include settlements made with the written consent and reasonable approval by
Landlord and Tenant. If, however, such loss requires reconstruction and the
Contractor is placed in charge thereof, he shall be paid for his services a
fee of ten percent (10%) of the cost of such work.
8. Minor expenses such as telegrams, long distance telephone calls, telephone
service at the site, expressage, drawing reproduction, mail service, special
deliveries, and similar petty cash items incurred in connection with the
Tenant's Work.
2
<PAGE>
EXHIBIT "M"
WESTFORD TECHNOLOGY PARK - WEST
BUILDING ONE - THREE STORY -175,000 SQUARE FEET
BASE BUILDING AND NETSCOUT TENANT IMPROVEMENTS
AUGUST 2, 2000
PRELIMINARY CONSTRUCTION SCHEDULE
1) Site Plan Submittal Set to Planning Board 8/10/00
2) Base Building Architectural Floor Plans and Elevations 8/04/00
3) Sewer Treatment Plant Submittal to D.E.P. 8/02/00
4) Site Plan Submittal to Conservation Commission 8/18/00
5) Re-submit to D.E.P. 9/05/00
6) Order Base Building Structural Steel,
Precast Concrete Walt Panels, windows and
Curtain Wall, Elevators and Rooftop HVAC Equipment 8/15/00
7) Site Plans for Construction 9/15/00
8) Base Building Foundations and Structural
Drawings for Construction Released 8/10/00
Complete 9/14/00
9) Base Building Architectural Drawings for
Construction Release Released 8/10/00
Complete 9/21/00
10) Award Site Work 9/29/00
11) Schematic layout of Tenant's work provided to Landlord 10/01/00
12) Release Base Building Items in Item #3 above for Fabrication 9/21/00
13) Start Site Work 10/02/00
<PAGE>
Preliminary Construction Schedule (Continued)
C-799
Page 2
August 2, 2000
14) Tenant to Provide Drawings and Specifications on
Long Lead Tenant Improvement Items and Tenant
Improvement that affects Base Building Structure 10/01/00
15) Landlord's budget price of 10/01/00
Schematics provided to Tenant 10/15/00
16) Start Building Foundations 10/23/00
17) Start Structural Steel Erection 12/04/00
18) Tenant to provide Landlord Tenant Drawings
60 to 70 percent complete 12/01/00
19) Tenant Improvement Construction Drawings Complete 1/15/01
20) Landlord to provide Tenant budget pricing
on schematic plans provided on 12/01/00 12/15/00
21) Erect Precast Concrete 1/29/01
22) Install Windows and Curtain Wall 2/12/01
23) Install Roof 3/26/01
24) Set Rooftop HVAC Equipment 4/05/01
25) Start Building Interior Base Building and Tenant
Improvement MEP Rough-In, Drywall Framing etc. 4/16/01
26) Complete Building Interior Base Building and
Tenant Improvement - 20 weeks 8/31/01
2
<PAGE>
EXHIBIT "N"
NOTICE OF LEASE
In accordance with the provisions of Massachusetts General Laws (Ter.
Ed.) Chapter 183, Section 4, as amended, notice is hereby given of a certain
lease (hereinafter referred to as the "Lease") dated as of ____________________,
2000 by and between Arturo J. Gutierrez and John A. Cataldo, Trustees of Nashoba
Westford Realty Trust, under Declaration of Trust dated April 27, 2000, recorded
with the Middlesex North District Registry of Deeds in Book 10813, Page 038
(hereinafter referred to as "Landlord") and NetScout Systems, Inc. (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
1. The address of the Landlord is c/o The Gutierrez Company, One Wall Street,
Burlington, Massachusetts 01803.
2. The address of the Tenant is 4 Technology Park Drive, Westford,
Massachusetts 01886.
3. The Lease was executed on ______________, 2000.
4. The Term of the Lease is a period of twelve (12) years beginning on the Term
Commencement Date determined in accordance with Section 3.2 of the Lease,
currently scheduled for August 31, 2001. Such Term may be extended pursuant
to Exhibit J discussed in Paragraph 6 below.
5. Subject to the provisions of the Lease, the Tenant has the option to extend
the Term of the Lease for two (2) successive five (5) year terms pursuant to
Section 3.2 of the Lease.
6. The Tenant has an Expansion Option to lease up to seventy-five thousand
(75,000) rentable square feet of additional space in an additional three (3)
story building to be constructed by Landlord upon Tenant's election of such
expansion option, pursuant to Exhibit J of the Lease, on a portion of the
property described on Exhibit A attached hereto.
7. The Lot and the Park, as such terms are defined in the Lease, are subject to
the covenants and agreements contained in Exhibit E of the Lease.
8. The Premises under the Lease is a three (3) story building containing
approximately one hundred and seventy-five thousand (175,000) rentable
square feet located at ____________________, Westford, Massachusetts 01886,
which is leased to Tenant together with the benefit of and subject to all
appurtenant rights and easements set forth in Sections 2.1 and 26.10 of the
Lease.
9. Landlord's interest under the Lease is subject to the provisions of that
certain ground lease dated ___________ and executed by and between
_________________, as ground lessor, and Landlord, as ground lessee, notice
of which is recorded with said Deed in
<PAGE>
Book ______, Page _____. The Lot as defined in the Lease is a portion of the
property described on Exhibit A attached hereto.
This Notice of Lease has been executed merely to give notice of the
Lease, and all of the terms, conditions and covenants of which are incorporated
herein by reference. The parties hereto do not intend this Notice of Lease to
modify or amend the terms, conditions and covenants of the Lease which are
incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have duly executed this Notice
of Lease this ____ day of ________________, 2000.
LANDLORD:
NASHOBA WESTFORD REALTY TRUST
By:
--------------------------------------------------
Arturo J. Gutierrez, Trustee as aforesaid
and not individually
Dated:
-----------------------------------------------
By:
--------------------------------------------------
John A. Cataldo, Trustee as aforesaid
and not individually
Dated:
-----------------------------------------------
TENANT:
NETSCOUT SYSTEMS, INC.
By:
--------------------------------------------------
Its:
-------------------------------------------------
Dated:
-----------------------------------------------
2
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. _______________, 2000
Then personally appeared before me Arturo J. Gutierrez, as trustee of
Nashoba Westford Realty Trust and acknowledged the foregoing instrument to be
his free act and deed as trustee aforesaid.
-------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. _______________, 2000
Then personally appeared before me John A. Cataldo, as trustee of
Nashoba Westford Realty Trust and acknowledged the foregoing instrument to be
his free act and deed as trustee aforesaid.
-------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
__________________, SS. _______________, 2000
Then personally appeared before me _____________________, as
__________________ of NetScout Systems, Inc., and acknowledged the foregoing
instrument to be his/her free act and deed as _____________ aforesaid.
-------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
3
<PAGE>
EXHIBIT "A" TO EXHIBIT "N"
LOTS 1, 5, 6 AND 7, LITTLETON ROAD, WESTFORD, MASSACHUSETTS
PARCEL I - LOTS 5, 6 AND 7, LITTLETON ROAD
Three separate parcels of land located on the southerly side the Littleton Road
and the Westerly side of Concord Road in Westford, Middlesex County,
Massachusetts and being shown as Lot 5, Lot 6 and Lot 7 on a Plan entitled
"Anthony G. and Albert L. Nardone, Westford, MA, Plan of Land Proposed A.N.R.
Lots" dated July 9, 1996, prepared by Rizzo Associates, Inc. to which plan
reference is made for a more particular description. Said plan is recorded at
Middlesex North District Registry of Deeds in Plan Book 192, Plan 64.
According to said plan:
Lot 5 contains 443,722 square feet, more or less;
Lot 6 contains 197,212 square feet, more or less;
Lot 7 contains 268,936 square feet, more or less;
PARCEL II - LOT 1, LITTLETON ROAD
The land with the buildings thereon located on the southerly side of Littleton
Road, Westford, Middlesex Country, Massachusetts, being shown as Lot 1 on a plan
entitled "Plan of Land in Westford, MA, prepared for One Littleton Trust: dated
October 15, 1991 and prepared by L.J. Ducharme Assoc., Inc., 1092 Main Street,
Bolton, MA 01740." Scale 1 = 20' to which plan reference is made for a more
particular description.
According to said plan Lot 1 contains 40,760 +/- square feet.
Said plan is recorded at North Middlesex Registry of Deeds in Plan Book 177,
Plan 114.
<PAGE>
EXHIBIT "O"
TENANT SIGN SPECIFICATIONS
TO BE SUPPLIED BY TENANT AND
APPROVED BY LANDLORD SUBJECT TO SECTION 12.2
<PAGE>
EXHIBIT "P"
PROPOSED EXPANDED BUILDING FOOTPRINT
AND SITE PLAN
See Exhibit "A"
<PAGE>
NOTICE OF LEASE
In accordance with the provisions of Massachusetts General Laws (Ter.
Ed.) Chapter 183, Section 4, as amended, notice is hereby given of a certain
lease (hereinafter referred to as the "Lease") dated as of August 17, 2000 by
and between Arturo J. Gutierrez and John A. Cataldo, Trustees of Nashoba
Westford Realty Trust, under Declaration of Trust dated April 27, 2000, recorded
with the Middlesex North District Registry of Deeds in Book 10813, Page 038
(hereinafter referred to as "Landlord") and NetScout Systems, Inc. (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
1. The address of the Landlord is c/o The Gutierrez Company, One Wall Street,
Burlington, Massachusetts 01803.
2. The address of the Tenant is 4 Technology Park Drive, Westford,
Massachusetts 01886.
3. The Lease was executed on August 17, 2000.
4. The Term of the Lease is a period of twelve (12) years beginning on the Term
Commencement Date determined in accordance with Section 3.2 of the Lease,
currently scheduled for August 31, 2001. Such Term may be extended pursuant
to Exhibit J discussed in Paragraph 6 below.
5. Subject to the provisions of the Lease, the Tenant has the option to extend
the Term of the Lease for two (2) successive five (5) year terms pursuant to
Section 3.2 of the Lease.
6. The Tenant has an Expansion Option to lease up to seventy-five thousand
(75,000) rentable square feet of additional space in an additional three (3)
story building to be constructed by Landlord upon Tenant's election of such
expansion option, pursuant to Exhibit J of the Lease, on a portion of the
property described on Exhibit A attached hereto.
7. The Lot and the Park, as such terms are defined in the Lease, are subject to
the covenants and agreements contained in Exhibit E of the Lease.
8. The Premises under the Lease is a three (3) story building containing
approximately one hundred and seventy-five thousand (175,000) rentable
square feet located at 310 Littleton Road, Westford, Massachusetts 01886,
which is leased to Tenant together with the benefit of and subject to all
appurtenant rights and easements set forth in Sections 2.1 and 26.10 of the
Lease.
9. Landlord's interest under the Lease is subject to the provisions of that
certain ground lease dated May 11, 2000 and executed by and between Albert
L. Nardone and Anthony B. Nardone, Trustees of Two Littleton Road Realty
Trust, u/d/t dated January 30, 1997 and recorded with said Deeds in Book
8425, Page 143 and as Trustees
<PAGE>
of One Littleton Road Realty Trust, u/d/t dated December 30, 1991 and
recorded with said Deeds in Book 5768, Page 183, as ground lessor, and
Landlord, as ground lessee, notice of which is recorded with said Deeds in
Book 10832, Page 007. The Lot as defined in the Lease is a portion of the
property described on Exhibit A attached hereto.
This Notice of Lease has been executed merely to give notice of the
Lease, and all of the terms, conditions and covenants of which are incorporated
herein by reference. The parties hereto do not intend this Notice of Lease to
modify or amend the terms, conditions and covenants of the Lease which are
incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have duly executed this Notice
of Lease this 17th day of August, 2000.
LANDLORD:
NASHOBA WESTFORD REALTY TRUST
By:
----------------------------------------------
Arturo J. Gutierrez, Trustee as aforesaid
and not individually
Dated:
-------------------------------------------
By:
----------------------------------------------
John A. Cataldo, Trustee as aforesaid
and not individually
Dated:
-------------------------------------------
TENANT:
NETSCOUT SYSTEMS, INC.
By:
----------------------------------------------
Its:
---------------------------------------------
Dated:
-------------------------------------------
2
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. _______________, 2000
Then personally appeared before me Arturo J. Gutierrez, as trustee of
Nashoba Westford Realty Trust and acknowledged the foregoing instrument to be
his free act and deed as trustee aforesaid.
-------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. _______________, 2000
Then personally appeared before me John A. Cataldo, as trustee of
Nashoba Westford Realty Trust and acknowledged the foregoing instrument to be
his free act and deed as trustee aforesaid.
-------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
__________________, SS. _______________, 2000
Then personally appeared before me _____________________, as
__________________ of NetScout Systems, Inc., and acknowledged the foregoing
instrument to be his/her free act and deed as _____________ aforesaid.
-------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
3
<PAGE>
EXHIBIT "A"
LOTS 1, 5, 6 AND 7, LITTLETON ROAD, WESTFORD, MASSACHUSETTS
PARCEL I - LOTS 5, 6 AND 7, LITTLETON ROAD
Three separate parcels of land located on the southerly side the Littleton Road
and the Westerly side of Concord Road in Westford, Middlesex County,
Massachusetts and being shown as Lot 5, Lot 6 and Lot 7 on a Plan entitled
"Anthony G. and Albert L. Nardone, Westford, MA, Plan of Land Proposed A.N.R.
Lots" dated July 9, 1996, prepared by Rizzo Associates, Inc. to which plan
reference is made for a more particular description. Said plan is recorded at
Middlesex North District Registry of Deeds in Plan Book 192, Plan 64.
According to said plan:
Lot 5 contains 443,722 square feet, more or less;
Lot 6 contains 197,212 square feet, more or less;
Lot 7 contains 268,936 square feet, more or less;
PARCEL II - LOT 1, LITTLETON ROAD
The land with the buildings thereon located on the southerly side of Littleton
Road, Westford, Middlesex Country, Massachusetts, being shown as Lot 1 on a plan
entitled "Plan of Land in Westford, MA, prepared for One Littleton Trust: dated
October 15, 1991 and prepared by L.J. Ducharme Assoc., Inc., 1092 Main Street,
Bolton, MA 01740." Scale 1 = 20' to which plan reference is made for a more
particular description.
According to said plan Lot 1 contains 40,760 +/- square feet.
Said plan is recorded at North Middlesex Registry of Deeds in Plan Book 177,
Plan 114.
<PAGE>
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE dated as of May 12, 2000 between
MICHELSON FARM - WESTFORD TECHNOLOGY PARK IV LIMITED PARTNERSHIP, having a
mailing address c/o The Gutierrez Company, Burlington Office Park, One Wall
Street, Burlington, Massachusetts 01803, as landlord (the "Landlord"), and
NETSCOUT SYSTEMS, INC., having a mailing address at 4 Technology Park Drive,
Westford, Massachusetts 01886, as tenant (the "Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant have entered into that certain Lease dated
as of April 18, 1997 (hereinafter, the "Lease") with respect to Building Four
(as more particularly defined in the Lease as the "Premises"), located in the
Michelson Farm - Westford Technology Park, Westford, Massachusetts (as in the
Lease more particularly described, the "Office Park");
WHEREAS, the lot lines to the "Lot", as defined in the Lease, have been
modified by Landlord;
WHEREAS, Landlord has completed an expansion to the adjacent Building
known as Building 6 and in connection therewith, the parking areas located upon
the Lot and serving the Premises have been modified;
WHEREAS, Landlord and Tenant have agreed to amend this Lease to set
forth the foregoing modifications.
NOW, THEREFORE, Landlord and Tenant, in consideration of the Premises,
the covenants expressed herein and in the Lease, and other good and valuable
consideration, the receipt and the sufficiency of which are hereby acknowledged,
hereby agree that the Lease shall be amended as follows:
1. Article I, Section 1.1 of the Lease is hereby amended as follows:
By deleting the definition of "Building" in Section 1.1 in its
entirety and by replacing the same with the following:
"Building: The Building commonly known as Building Four in The
Michelson Farm - Westford Technology Park, containing
approximately 97,500 rentable square feet on the lot
(the "Lot") shown as Lot 4D on a Plan entitled "Revised
Subdivision Plan of Land" dated May 1, 2000 and recorded
with the Middlesex County North District Registry of
Deeds at Plan Book 203, Plan 97, a copy of which
Plan is attached hereto as Exhibit "A-1".
<PAGE>
2. Article I, Section 1.2 of the Lease is hereby amended as follows:
By adding after the last line thereof the following:
"Exhibit A-1 Plan Showing Lot and Parking"
3. Article II, Section 2.1 of the Lease is hereby amended by adding in
subparagraph (i) of the third paragraph thereof, the following "expressly
excluding, however, seventy-seven (77) parking spaces shown on Exhibit A-1 which
are exclusively for the benefit of Building 6 (Lot 6C)" at the end of said
subparagraph (i).
4. Article XXVI, Section 26.10 of the Lease is hereby amended by adding
at the end thereof, the following "Such parking spaces are shown on Exhibit A-1
attached hereto but expressly exclude said seventy-seven (77) spaces shown on
Exhibit A-1 which, as aforesaid, exclusively serve Building 6 (Lot 6C)."
5. Landlord and Tenant (each, a "representing party") each represents
and warrants to the other that no conversations or negotiations were had by the
representing party with any broker, finder or similar person concerning the
consummation of this First Amendment to Lease. Landlord and Tenant (each, an
"indemnifying party") each hereby indemnifies and holds the other harmless from
and against all loss, cost, liability, claim, damage, and expense (including,
without limitation, court costs and reasonable attorney's fees) incurred in
connection with or arising out of any claims for brokerage commissions, finder's
fees, or other compensation resulting from or arising out of any conversations,
negotiations or actions had by the indemnifying party or anyone acting on behalf
of such indemnifying party with any broker, finder or similar person in
connection with this First Amendment to Lease. The terms of this paragraph shall
survive expiration or earlier termination of the Lease.
6. Except as modified hereinabove set forth, the Lease (as amended by
this First Amendment) is hereby ratified and confirmed.
7. This First Amendment to Lease may be signed in any number of
counterparts and each thereof shall be deemed to be an original and all such
counterparts but one and the same agreement. Landlord's obligations to perform
hereunder is subject to the condition precedent that this First Amendment to
Lease be approved by Dynex Commercial, Inc.
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<PAGE>
IN WITNESS WHEREOF, the parties have set their hands and seals the day
and year first above written.
LANDLORD: MICHELSON FARM - WESTFORD TECHNOLOGY
PARK IV LIMITED PARTNERSHIP
By: THE GUTIERREZ COMPANY,
SOLE GENERAL PARTNER
-------------------------
Witness BY:
----------------------------------------
Arturo J. Gutierrez, as President
TENANT:
NETSCOUT SYSTEMS, INC.
------------------------- BY:
Witness ----------------------------------------
ITS:
---------------------------------------
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<PAGE>
CONSENT OF MORTGAGEE
The undersigned Mortgagee hereby consents and approves the foregoing
provisions set forth in this First Amendment to Lease dated as of May _____,
2000 by and between Michelson Farm - Westford Technology Park IV Limited
Partnership ("Landlord") and Netscout Systems, Inc. ("Tenant").
MORTGAGEE:
DYNEX COMMERICAL, INC.
------------------------- BY:
Witness ------------------------------------------------
ITS:
-----------------------------------------------
DATE:
----------------------------------------------
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<PAGE>
SMMA
---N-1 -
[DIAGRAMS of SECOND LEVEL PARKING DECK LAYOUT]
<PAGE>
SECOND AMENDMENT TO LEASE AND TERMINATION AGREEMENT
This Second Amendment to Lease and Termination Agreement (this
"Agreement") is made and entered into as of the 17th day of August, 2000 by and
between Michelson Farm-Westford Technology Park IV Limited Partnership, a
Massachusetts limited partnership (hereinafter referred to as "Landlord") having
an address c/o The Gutierrez Company, One Wall Street, Burlington, Massachusetts
01803, and NetScout Systems, Inc., having an address at 4 Technology Park Drive,
Westford, Massachusetts 01886 (hereinafter referred to as "Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant have entered into that certain lease dated
August 18, 1997, as amended by First Amendment to Lease dated as of May 12, 2000
(hereinafter collectively referred to as the "Lease") with respect to a certain
parcel of land, with the building thereon, known as Building Four, Michelson
Farm - Westford Technology Park, located in Westford, Massachusetts and commonly
referred to as 4 Technology Park Drive, together with all rights, privileges and
easements in any way pertaining thereto and as set forth in the Lease (in the
Lease more particularly described as the "Premises", hereinafter referred to as
the "Demised Premises"); and
WHEREAS, Landlord's general partner, The Gutierrez Company, and Tenant
have entered into a Proposal dated June 28, 2000 in connection with a building
to be constructed at Westford Technology Park West, Route 110/Route 225,
Westford, Massachusetts and as a result thereof, Landlord has agreed to amend
the Lease to provide for an earlier term expiration date consistent with the
commencement of the term of the lease for the new building described in general
in said Proposal (the "Termination Date"); and
WHEREAS, Landlord has agreed to recover possession of the Demised
Premises and to terminate the Lease on the Termination Date, and Tenant has
agreed to surrender the Demised Premises to Landlord on the Termination Date.
NOW, THEREFORE, in consideration of the sum of Ten and NO/100 Dollars
($10.00) and of the mutual covenants and agreements herein contained, and for
other good and valuable consideration paid, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant do hereby acknowledge and agree as
follows:
<PAGE>
1. The Lease is hereby amended by replacing the "Term Expiration Date"
as set forth in Section 1.1 of the Lease of "November 30, 2002" with the
following date, "The Term Commencement Date under that certain lease dated
August 17, 2000 and executed by and between Nashoba Westford Realty Trust, as
Landlord, and NetScout Systems, Inc., as Tenant, in connection with the property
located at Westford Technology Park West". All other terms and conditions of the
Lease are hereby ratified and confirmed, except as otherwise set forth in this
Agreement.
2. Effective on the Termination Date, the Lease will be terminated and
will be of no further force and effect, except as set forth herein and Tenant
shall surrender the Demised Premises in accordance with Section 4 below.
3. As of the Termination Date, Landlord and Tenant forever release each
other, together with their respective successors and assigns, of and from any
and all claims, demands, actions, causes of action, suits, liabilities, losses,
damages, charges, debts, dues, covenants or agreements of any nature or
description other than (i) the payment and performance of Tenant's obligations
set forth herein, and (ii) those obligations, covenants or agreements in the
Lease which by the express terms of the Lease shall survive the expiration or
termination of the Lease. The aforementioned releases are conditioned upon
Landlord's and Tenant's compliance with the provisions of this Agreement.
4. On or before the Termination Date, notwithstanding any provisions in
the Lease to the contrary, Tenant shall quit and surrender possession and yield
up the Demised Premises to Landlord in accordance with the provisions of the
Lease. If Tenant fails to surrender the Demised Premises as aforesaid, Landlord
shall have all rights and remedies afforded Landlord under the Lease, at law and
in equity, as if the Termination Date were the expiration date of the Term of
the Lease. Notwithstanding any language set forth herein or in the Lease to the
contrary, Landlord hereby agrees that Tenant shall be provided a seven (7) day
grace period in the event of a holdover by Tenant pursuant to Article XXII of
the Lease before any holdover damages shall be charged to Tenant, Tenant hereby
agreeing to pay only the holdover rent during said seven (7) day period as set
forth in said Article XXII.
5. The conditions, covenants and agreement herein contained shall be
binding upon the parties hereto and their respective successors and assigns.
2
<PAGE>
6. Landlord and Tenant hereby represent and warrant to each other that
the individuals executing this Agreement on behalf of Landlord and Tenant,
respectively, are empowered and duly authorized to so execute this Agreement on
behalf of the parties they represent.
7. This Agreement sets forth the entire agreement between the parties
with respect to the subject matter hereto and all prior negotiations or
agreements, whether oral or written, are superseded and merged herein. This
Agreement may not be altered or amended except by a writing duly authorized and
executed by the parties against whom enforcement is sought.
8. This Agreement may be signed in two or more counterparts, each of
which shall be deemed an original but all of which shall together constitute one
and the same instrument.
3
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to
be duly executed under seal, by persons hereunto duly authorized, as of the day
and year first above set forth.
LANDLORD:
Michelson Farm - WestfordTechnology Park IV
Limited Partnership
By: The Gutierrez Company, its General Partner
------------------------ -----------------------------
Witness By: Arturo J. Gutierrez, as President
TENANT:
NetScout Systems, Inc.
------------------------ By:
Witness ------------------------------------------------
Its:
-----------------------------------------------
CONSENT OF MORTGAGEE
The undersigned Mortgagee hereby consents and approves the foregoing
provisions of this Second Amendment to Lease and Termination Agreement.
MORTGAGEE:
Dynex Commerical, Inc.
---------------------- By:
Witness ------------------------------------------------
Its:
-----------------------------------------------
4