FIRST AMENDMENT TO LEASE
Exhibit 10.1
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the “First Amendment”) is entered into this
12th day of July, 2010 (but is effective as of June 1, 2010) by and between MSCP XXXXXX,
LLC, a Delaware limited liability company, having an address in care of Divco West Real Estate
Services, Inc., 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(“Landlord”), and ACME PACKET, INC., a Delaware corporation, with a current address of 00
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Tenant”).
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease dated as of November 23, 2009 (the
“Lease”) whereby Tenant has agreed to lease from Landlord a total of approximately 123,788
rentable square feet of space in the building (the “Original Premises”) located at 000
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx (the “Building”), as further described in the Lease;
and
WHEREAS, Tenant desires to lease from Landlord an additional approximately 27,161 rentable
square feet of floor area in the Building, comprised of approximately 22,337 rentable square feet
of floor area located on the first and third floors of the Building (and designated as the
“Option Space” in Section 1.1.2 of the Lease), as well as approximately 4,824 rentable
square feet of floor area located on the ground floor of the Building (collectively, the
“Expansion Premises”); and
WHEREAS, Landlord and Tenant desire to modify certain provisions of the Lease, all as further
set forth herein; and
WHEREAS, Landlord and Tenant desire to amend the Lease to enlarge the Original Premises to
include the Expansion Premises, to re-define the Term of the Lease, and to make other modifications
to the terms and conditions of the Lease, all as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties
hereto, Landlord and Tenant agree as follows:
1. Definitions. Capitalized terms not otherwise expressly defined herein shall have
the meanings ascribed to them in the Lease. The definition of “Lease” in the opening
paragraph of the Lease shall include the Lease as amended by all amendments thereto.
2. Designation of Floors. Tenant has re-designated the floors of the Building. As
such, (a) the term “first (1st) floor”, wherever used in the Lease, is deleted and
replaced with “ground floor”, (b) the term “second (2nd) floor”, wherever used in the
Lease, is deleted and replaced with “first (1st) floor”, (c) the term “third
(3rd) floor”, wherever used in the Lease, is deleted and replaced with “second
(2nd ) floor”, and (d) the
term “fourth (4th) floor”, wherever used in the Lease, is deleted and replaced with
“third (3rd) floor”.
3. Schedule of Incorporated Terms. The Schedule of Incorporated Terms, set forth on
pages 1 through 3 of the Lease, is amended as follows:
a. The definition of “Premises” is deleted in its entirety and replaced as follows:
“Premises: (a) From the Lease Commencement Date until the Expansion Premises Lease
Commencement Date, approximately 1,787 rentable square feet of floor area located on the ground
floor of the east tower of the Building, approximately 33,506 rentable square feet of floor area
located on the first (1st) floor of the east tower of the Building, approximately 53,583
rentable square feet of floor area located on the second (2nd) floor of the east tower
of the Building, and approximately 34,912 rentable square feet of floor area located on the third
(3rd) floor of the east tower of Building, all as generally shown on the plans attached
hereto as Appendix 1.1A and incorporated herein by this reference (the “Original
Premises”). The total rentable square footage of the Original Premises is approximately One
Hundred Twenty-Three Thousand Seven Hundred Eighty-Eight (123,788) rentable square feet (the
“Original Premises Rentable Area”); and
(b) From and after Expansion Premises Lease Commencement Date (as hereinafter defined), the
Original Premises, plus approximately 4,824 rentable square feet of space located on the ground
floor of the Building, approximately 3,460 rentable square feet of space located on the first
(1st) floor of the Building, and approximately 18,877 rentable square feet of floor area
located on the third (3rd) floor of the Building, all as generally shown on the plans
attached hereto as Appendix 1.1A and incorporated herein by this reference (the
“Expansion Premises”). The total rentable square footage of the Expansion Premises is
approximately Twenty-Seven Thousand One Hundred Sixty-One (27,161) rentable square feet (the
“Expansion Premises Rentable Area”). From the Lease Commencement Date until the Expansion
Premises Commencement Date, the term “Premises” shall refer to the Original Premises only,
and from and after the Expansion Premises Commencement Date, the term “Premises” shall
refer to the Original Premises plus the Expansion Premises, as shown on Appendix 1.1A (for
reference, the portion of the Expansion Premises located on the first and third floors of the
Building is shown on Appendix 1.1.2 of the Lease (before deletion of such Appendix by the
First Amendment) as the “Option Space”, and the ground floor portion of the Expansion Premises is
located on said ground floor in the area of the Building connecting the east tower to the west
tower, as shown on said Appendix 1.1A). Further, from the Lease Commencement Date until
the Expansion Premises Commencement Date, the term “Premises Rentable Area” shall refer to
the Original Premises Rentable Area only, and from and after the Expansion Premises Commencement
Date, such term shall refer to One Hundred Fifty Thousand Nine Hundred Forty-Nine (150,949) square
feet of floor area.”
b. The definition of “Lease Commencement Date” is deleted in its entirety and replaced
as follows:
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“Lease Commencement Date: The date that Landlord substantially completes the Tenant
Improvements (as hereinafter defined) and delivers to Tenant Landlord’s architect’s certificate of
substantial completion of the Tenant Improvements.”
c. The following definition of “Expansion Premises Commencement Date” is added to the
Lease after the definition of “Lease Commencement Date”:
“Expansion Premises Commencement Date: The first to occur of the following: (a) the
date on which Landlord substantially completes Landlord’s Expansion Premises Work (as hereinafter
defined) and delivers to Tenant Landlord’s architect’s certificate of substantial completion of
Landlord’s Expansion Premises Work, (b) if applicable, the date on which Landlord receives a
certificate of occupancy or temporary certificate of occupancy for the Expansion Premises from the
applicable governmental authority with respect to Landlord’s Expansion Premises Work, or (c) the
date that Tenant occupies any portion of the Expansion Premises for the conduct of its business.
d. The definition of “Rent Commencement Date” is deleted in its entirety and replaced
as follows:
“Rent Commencement Date: January 1, 2011, subject to Section 1.4.3 hereof.”
e. The following definition of “Expansion Premises Rent Commencement Date” is added to
the Lease after the definition of “Rent Commencement Date”:
“Expansion Premises Rent Commencement Date: August 1, 2011, subject to Section 1.4.3.1
hereof.”
f. The definition of “Expiration Date” is deleted in its entirety and replaced as
follows: “December 31, 2016.”
g. The definition of “Monthly Base Rent” is amended by deleting the rental chart
thereof in its entirety and replacing such chart as follows:
| “Months | Monthly Base Rent | Annual Rate p/rsf | ||||||
Commencing on the Rent
Commencement Date until the
Expansion Premises Rent
Commencement Date |
$ | 201,155.50 | $ | 19.50 | ||||
Commencing on the Expansion
Premises Rent Commencement Date
through and including the
Expiration Date |
$ | 245,292.13 | $ | 19.50 | ” | |||
h. The definition of “Tenant’s Proportionate Share” is amended by adding the
following at the end of such definition: “Notwithstanding the foregoing, as of
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the Expansion Premises Rent Commencement Date, Tenant’s Proportionate Share is 57.62%.”
4. The Lease is amended by deleting Appendix 1.1A in its entirety and replacing such
appendix with Appendix 1.1A attached hereto.
5. Section 1.1 Premises. The Lease is amended by deleting the text of Section 1.1 of
the Lease in its entirety and replacing such text as follows:
“Landlord hereby leases the Original Premises to Tenant, and Tenant hereby leases the Original
Premises from Landlord, subject to the covenants and conditions set forth in this Lease, for the
Term, commencing on the Lease Commencement Date and expiring on the Expiration Date, unless earlier
terminated as provided in this Lease. In addition, Landlord hereby leases the Expansion Premises
to Tenant, and Tenant hereby leases the Expansion Premises from Landlord, subject to the covenants
and conditions set forth in this Lease, for a term, commencing on the earlier of the Expansion
Premises Lease Commencement Date or the Expansion Premises Rent Commencement Date and expiring on
the Expiration Date, unless earlier terminated as provided in this Lease.”
6. Options. As Tenant is, pursuant to the terms hereof, leasing the Expansion
Premises (referred to in the Lease as the “Option Space”), the Lease is amended by deleting in
their entirety, without replacement, Section 1.1.2 of the Lease, Expansion Option, and Section
1.1.3 of the Lease, Right of First Refusal. In addition, Appendix 1.1.2 to the Lease is
deleted in its entirety without replacement.
7. Section 1.2.1 Parking Rights. Notwithstanding any provisions of the Lease to the
contrary, Landlord and Tenant acknowledge and agree that Tenant shall be entitled to use, in
accordance with the terms of Section 1.2.1 of the Lease, a total of 585 parking spaces in the
Parking Lot.
8. Compressor. The Lease is amended by adding a new Section 1.2.2a thereto as
follows:
“1.2.2a Compressor. Effective as of the date of the First Amendment to Lease,
Landlord grants to Tenant a license (the “Compressor License”) to use an approximately ten
(10) square foot portion of the loading dock area (the “Compressor Location”) of the
Building, as shown on Appendix 1.1 hereof, for the location of its compressor serving
Tenant’s manufacturing area of the Premises (the “Compressor”), with the location of any
ducts, piping, and/or conduits connecting the Premises to the Compressor to be approved by
Landlord. At all times during the Term hereof, Tenant shall maintain, at Tenant’s sole cost and
expense, the Compressor in good, operational working order and condition and in compliance with all
applicable laws, codes, ordinances, orders, directives, rules and regulations, all insurance
requirements, and all reasonable rules and regulations which may be promulgated by Landlord from
time to time. Tenant shall pay any and all costs associated with the Compressor, and Tenant shall
be solely responsible for the Compressor. No other Tenant equipment may be
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located in the Compressor Location without Landlord’s express written consent, which may be
withheld in Landlord’s reasonable discretion. At Landlord’s option, Tenant shall screen the
Compressor with screening reasonably approved by Landlord. At the expiration or earlier
termination of the Lease, the Compressor shall remain the property of Tenant, and shall be removed
by Tenant in accordance with the terms hereof. Upon the removal by Tenant of the Compressor,
Tenant shall repair any damage done in connection with such removal.”
9. Section 1.3.1 Condition of Premises at Lease Execution. Tenant acknowledges and
agrees that the first paragraph of Section 1.3.1 of the Lease applies to the Original Premises.
Said Section 1.3.1 is amended by adding the following as a second paragraph of said Section 1.3.1:
“Landlord agrees to deliver the Expansion Premises to Tenant in their present condition (i.e.,
as of the date of the First Amendment to Lease), subject to the construction of the Landlord’s
Expansion Premises Work by Landlord as provided in Section 1.3.4 hereof and Appendix 1.3.4,
both as amended by the First Amendment to Lease. Tenant acknowledges that the Expansion Premises
are being delivered “as is”, that Tenant has performed preliminary investigations and reviews and
has concluded on its own judgment that the Expansion Premises are suitable for the purposes
intended, without any representations or warranties of any kind (including, without limitation, any
express or implied warranties of merchantability, fitness or habitability) from Landlord or any
agent of Landlord, except as expressly provided in this Lease. Landlord represents and warrants to
Tenant that Landlord has not received any written notice from any governmental authority or any of
its consultants that improvements to the Expansion Premises will require code-compliance-related
upgrades or capital improvements to the Common Areas or other portions of the Building outside of
the Expansion Premises. Further, Landlord represents that Landlord has not received written notice
from any governmental authority or any of its consultants that the Building is in violation of any
applicable laws; provided, however, that (a) this representation does not relate to any fire
protection and electrical work with respect to the initial Tenant Improvements being required by
the Town of Bedford, and (b) Tenant acknowledges that due to its current “under construction”
condition, the Premises or components thereof may not currently comply with all applicable laws.”
10. Section 1.3.2 Acceptance of Premises. Landlord and Tenant acknowledge and agree
that Section 1.3.2 applies to each of the Original Premises and the Expansion Premises.
11. Section 1.3.3 Tenant Work. Section 1.3.3 of the Lease is amended by adding the
following at the end of said Section: “Tenant agrees to complete in accordance with the terms and
provisions of this Lease, on or before July 1, 2011, at Tenant’s sole cost and expense, the
following work in the cafeteria and the fitness room located in the Building: (a) replace all
existing cafeteria furniture with cafeteria furniture selected by Tenant and approved by Landlord
in its reasonable discretion and sufficient in number to accommodate 150 patrons, and (b) provide
and install two (2) new LCD/LED TVs, approved by Landlord in its reasonable discretion as to size
and location, in the fitness
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room. Further, Tenant shall have the right, but not the obligation, at Tenant’s sole cost and
expense, to replace the ceiling in the cafeteria, subject to and in accordance with the terms and
provisions of the Lease.”
12. Section 1.3.4.1 Landlord’s Expansion Premises Work. The Lease is amended by adding
thereto a new Section 1.3.4.1 as follows:
“The “Landlord’s Expansion Premises Work” shall mean the initial improvements to be
constructed by Landlord to the Expansion Premises (and as further defined in Appendix
1.3.4, as amended) all in accordance with Appendix 1.3.4, as amended. Notwithstanding
anything to the contrary contained herein, any and all costs (including both hard and soft costs of
construction) of the Landlord’s Expansion Premises Work in excess of $446,740.00 shall be paid by
Tenant within ten (10) days of the date of an invoice from Landlord. In addition to the Landlord’s
Expansion Premises Work (but not as part thereof), Landlord agrees to complete certain work to the
cafeteria and the fitness room, as described on Schedule 3 attached to Appendix 1.3.4
hereof. Notwithstanding anything to the contrary contained herein, Landlord shall, within a
commercially reasonable period of time, repair and/or correct any defects in the Landlord’s
Expansion Premises Work of which Tenant has delivered notice to Landlord prior to the expiration of
the one (1) year period following the date of substantial completion thereof.”
13. Section 1.3.6 Fourth Floor Stairwell. Landlord and Tenant acknowledge and agree
that as Tenant is leasing the Option Space, the terms and provisions of Section 1.3.6 of the Lease
(except for the last three (3) sentences thereof) are unnecessary, and hence, the Lease is amended
by deleting the text of said Section 1.3.6, other than the last three (3) sentences thereof.
14. Section 1.4.3 Delay in Possession. (a) The Lease is amended by deleting in its
entirety the text of Section 1.4.3 thereof and replacing such text as follows:
“If for any reason, other than Tenant Delays, Landlord has not substantially completed the
Tenant Improvements by August 1, 2010, except as hereinafter provided, Landlord shall not be
subject to any liability therefor, nor shall such failure affect the validity of this Lease, or the
obligations of Tenant hereunder, or extend the Term hereof, but in such case, the Rent Commencement
Date shall be extended by one day for each day from August 2, 2010 until the date of substantial
completion of the Tenant Improvements. Notwithstanding the foregoing, if the delay in substantial
completion of the Tenant Improvements resulted from a Tenant Delay, the Rent Commencement Date
shall remain January 1, 2011. Except for the remedies specifically set forth in this Section
1.4.3, which are Tenant’s sole remedies for the failure of the Tenant Improvements to be
substantially complete by August 1, 2010, Landlord shall not be subject to any liability therefor,
nor shall such failure affect the validity of this Lease, or the obligations of Tenant hereunder,
and Tenant waives any right to rescind this Lease or to recover from Landlord any damages, direct
or indirect, which may result from the failure of Landlord to timely substantially complete the
Tenant Improvements. Notwithstanding anything to the contrary contained herein, Landlord and
Tenant
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acknowledge and agree that the additional work requested by Tenant and shown on certain
construction drawings dated March 31, 2010 (which incorporate certain design elements from Xxxxxxxx
Xxxxxxx & Associates), as well as on certain plans submitted by Tenant to Landlord on May 3, 2010
(collectively, the “Additional Work”) is a change to the Tenant Improvements, and as such,
(a) any and all costs of the Additional Work shall be paid by Tenant, as further set forth in
Section 1.3.4 of the Lease and Appendix 1.3.4 thereof, (b) substantial completion of the Tenant
Improvements shall occur without substantial completion of the Additional Work, and (c) the terms
and provisions of the first three sentences of this Section 1.4.3 shall not apply to the Additional
Work and the substantial completion thereof. Landlord shall, however, use commercially reasonable
efforts to diligently work to complete, at Tenant’s sole cost and expense, the Additional Work.”
a. The Lease is further amended by adding the following as a new Section 1.4.3.1 with respect
to the Expansion Premises: “If for any reason, other than Tenant Delays, Landlord has not
substantially completed the Landlord’s Expansion Premises Work by the date which is one hundred
eighty (180) days after the date that Tenant’s Construction Plans for the Landlord’s Expansion
Premises Work have been finally approved by Landlord and the bidding process described in Section
3.4 of Appendix 1.3.4 has been completed (the “Landlord’s Expansion Premises Work Expected
Completion Date”), except as hereinafter provided, Landlord shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease, or the obligations of
Tenant hereunder, or extend the Term hereof, but in such case, the Expansion Premises Rent
Commencement Date shall be extended by one day for each day from the Landlord’s Expansion Premises
Work Expected Completion Date until the date of substantial completion of the Landlord’s Expansion
Premises Work. Notwithstanding the foregoing, if the delay in substantial completion of the
Landlord’s Expansion Premises Work resulted from a Tenant Delay, or if the Landlord’s Expansion
Premises Work shown on the Tenant’s Construction Plans therefor cannot reasonably be expected to be
completed within 180 days (i.e., the materials specified in Tenant’s Construction Plans are
backordered and/or not otherwise available when needed (and Tenant, after consultation with
Landlord, does not wish to substitute other material(s) for such backordered or unavailable
item(s)), the work specified is not standard office improvements, etc.), or if the Tenant’s
Construction Plans and the bidding process described in Section 3.4 of Appendix 1.3.4 are not
finally approved by February 1, 2011 (notwithstanding Landlord’s compliance with the requirements
of Appendix 1.3.4) (collectively, “Permitted Delays”, such term, however, shall exclude
delays resulting from improvements or upgrades to components of the electrical systems, sprinkler
systems, or other Building systems required in connection with the Landlord’s Expansion Premises
Work by any governmental authority or quasi-governmental authority having jurisdiction over the
Property), Landlord’s Expansion Premises Work Expected Rent Commencement Date shall remain August
1, 2011. In addition to the above, if Landlord has not substantially completed the Landlord’s
Expansion Premises Work, for reasons other than Permitted Delays, by the date that is ninety (90)
days following Landlord’s Expansion Premises Work Expected Completion Date, Tenant, at Tenant’s
option, exercised by written notice to Landlord given no later than ten (10) days after the
expiration of such ninety (90) day period, may elect to complete Landlord’s Expansion
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Premises Work on its own (with the remaining costs therefor (up to a total of $446,740.00, but
less costs already paid by Landlord for Landlord’s Expansion Premises Work) to be reimbursed to
Tenant by Landlord within thirty (30) days of receipt by Landlord of an invoice from Tenant for
such costs, accompanied by customary documentation supporting the charges for completion of such
work, which documentation is of a scope and detail sufficient to satisfy a commercial construction
lender operating in the market area in which the Building is located and which shall include copies
of paid invoices from Tenant’s contractor, paid invoices for materials, equipment, moving and/or
installation charges, and lien waivers). If such option is chosen, Landlord shall reasonably
cooperate with Tenant to accommodate Tenant’s contractor, and as otherwise reasonably necessary for
Tenant to complete the Landlord Work. If Landlord fails to reimburse Tenant for such costs (up to
the limit set forth herein) within such thirty-day period, Tenant shall have the right to offset
unreimbursed costs against Monthly Base Rent; provided, however, Tenant shall not be entitled to
offset more than 20% of any particular installment of Monthly Base Rent. Except for the remedies
specifically set forth in this Section 1.4.3, which are Tenant’s sole remedies for the failure of
the Landlord’s Expansion Premises Work to be substantially complete by the Landlord’s Expansion
Premises Work Expected Completion Date, Landlord shall not be subject to any liability therefor,
nor shall such failure affect the validity of this Lease, or the obligations of Tenant hereunder,
and Tenant waives any right to rescind this Lease or to recover from Landlord any damages, direct
or indirect, which may result from the failure of Landlord to timely substantially complete the
Landlord’s Expansion Premises Work.”
15. Appendix 1.3.4 Tenant Improvements – Landlord’s Work. The terms and provisions of
Appendix 1.3.4 shall apply to Landlord’s Expansion Premises Work, but with the following
modifications:
a. The words “Landlord’s Expansion Premises Work” shall be substituted for the words “Tenant
Improvements” and for the words “Landlord’s Work”. For purposes of clarification, the Landlord’s
Expansion Premises Work may include improvements or upgrades to components of the electrical
systems, sprinkler systems, or other Building systems required in connection with the Landlord’s
Expansion Premises Work by any governmental authority or quasi-governmental authority having
jurisdiction over the Property; provided, however, the Landlord’s Expansion Premises Work shall not
include improvements or upgrades to the so-called West tower of the Building or any systems therein
which may be required by Legal Requirements, whether or not triggered by the Landlord’s Expansion
Premises Work.
b. All references to “Exterior Improvements” are deleted and a new definition is included in
place thereof as follows: “Cafeteria and Fitness Room Improvements – certain improvements to the
cafeteria and the fitness room located on the Property, as further described on Schedule 3
attached hereto and made a part hereof.” In addition, Schedule 3 attached hereto is hereby
attached as Schedule 3 to said Appendix 1.3.4.
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c. Landlord shall perform and complete the Landlord’s Expansion Premises Work and the
Cafeteria and Fitness Room Improvements in a good and workmanlike manner and in material compliance
with Legal Requirements specifically applicable to the Landlord’s Expansion Premises Work.
d. All references to the words “Space Plan” shall refer to the space plans and scope of work
for Landlord’s Expansion Premises Work which shall be provided by Tenant to Landlord and then
finalized pursuant to the procedure set forth in the third paragraph of Section 1.1.2 of the Lease.
e. Paragraph 3 of Appendix 1.3.4 is amended by adding the following to the end of said
paragraph: “Notwithstanding anything to the contrary contained herein, the Construction Plans for
Landlords’ Expansion Premises Work shall be completed and finally approved no later than January 1,
2011; any failure of such Construction Plans to be completed and approved by such date (other than
on account of Landlord’s non-compliance with the schedule set forth in this Paragraph 3) shall
constitute a “Tenant Delay”.
f. The text of Paragraph 4 of Appendix 1.3.4 is deleted in its entirety and replaced as
follows: “Subject to Tenant’s payment obligations set forth below, Landlord shall pay the costs to
construct the Landlord’s Expansion Premises Work. Any and all costs of the Landlord’s Expansion
Premises Work in excess of $446,740.00 shall be paid by Tenant as provided in Section 5 below.
Notwithstanding the foregoing, if Tenant makes approved changes to the Landlord’s Expansion
Premises Work which result in cost savings, such savings may be applied to other portions of the
Landlord’s Expansion Premises Work (the intent of the parties being that while certain line-items
on the construction budget may change, Landlord shall pay for the Landlord’s Expansion Premises
Work up to $446,740.00).”
g. The text of Paragraph 5 of Appendix 1.3.4 is deleted in its entirety and replaced as
follows: “Tenant shall not be permitted to make any change in the Landlord’s Expansion Premises
Work without the prior written approval of Landlord, which may be exercised, and made subject to
such conditions as Landlord may require, in its reasonable discretion. The cost of such changes
and the additional costs as a result of any changes, including the cost to revise the Construction
Plans, obtain any additional permits, construct any additional improvements required as a result
thereof, the cost for materials and labor, the cost for any construction supervisory or
administrative fee payable by Landlord to its property manager, and all other additional costs
incurred by Landlord from resulting delays in completing the Landlord’s Expansion Premises Work,
which, in any case increase the cost of the Landlord’s Expansion Premises Work to an amount in
excess of $446,740.00, shall be paid by Tenant to Landlord within ten (10) days after Tenant’s
receipt of notice from Landlord. If Landlord does not receive such payment within said ten (10)
day period, Landlord shall have the right, in addition to any other rights or remedies available
under the Lease, at law or in equity, to (i) proceed with the other work not affected by such
change until such payment is received; and/or (ii) proceed with the work without making such
change; in which case the commencement or
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completion of such work shall not be deemed a waiver of Tenant’s obligation to pay for same or
any additional costs or expenses incurred as a result thereof. ”
h. A new Section 3.4 is added to Appendix 1.3.4 as follows: “Landlord shall provide Tenant
with Landlord’s contractor’s estimate of the cost for completion of the Landlord’s Expansion
Premises Work. If such estimate does not include bids by a total of three (3) contractors, within
five (5) days of receipt of such estimate, Tenant may request, by written notice to Landlord, that
Landlord obtain up to two (2) additional bids for Landlord’s Expansion Premises Work. After
receipt of all bids, Landlord shall present all such bids to Tenant, and Landlord and Tenant shall
mutually agree to either use Landlord’s contractor or accept one of such bids (both parties
acknowledging and agreeing that they will consider factors, other than price, in choosing the
contractor to perform the Landlord’s Expansion Premises Work, such that the low bidder will not
automatically be the chosen contractor).”
16. Payment of Certain Costs. Landlord and Tenant acknowledge and agree that,
pursuant to Section 1.3.4 of the Lease and Appendix 1.3.4 of the Lease, Tenant is responsible for
the payment of any and all costs associated with certain fire protection and electrical work with
respect to the Premises required by the Town of Bedford (which costs result in a total Tenant
Improvement cost in excess of $3,198,768.00).
17. Brokerage. Each of Landlord and Tenant represents and warrants to the other that
it has not dealt with any broker or agent in connection with this First Amendment, other than
Xxxxxxxx Xxxxx Xxxxx & Partners, LLC and Xxxxx & Xxxxx.(collectively, the “Broker”), and
that, insofar as it knows, no other broker or agent negotiated this First Amendment or is entitled
to any commission in connection herewith. Each of Landlord and Tenant agrees to indemnify, defend
and hold the other (and in the case of Landlord, its asset manager, its property manager and their
respective employees) harmless from and against any claims for a fee or commission made by any
broker, other than the Broker, claiming to have acted by or on behalf of Landlord or Tenant, as the
case may be, in connection with the First Amendment.
18. Lender Approval; Non-Disturbance. Landlord shall, concurrent with obtaining
Landlord’s lender’s approval of this First Amendment, obtain from such lender an amendment to the
existing SNDA which recognize Tenant’s rights under the Lease as amended by this First Amendment,
re-defines the Premises to include the Expansion Premises, and re-defines “Landlord’s Work” to
include the Landlord’s Expansion Premises Work and the Cafeteria and Fitness Room Improvements.
19. Notice of Lease. Concurrently with the mutual execution and delivery of this
First Amendment, Landlord and Tenant shall execute and deliver, in recordable form, an amendment to
the existing notice of the Lease.
20. Successors and Assigns. It is mutually agreed that all covenants, conditions and
agreements set forth in the Lease (as amended hereby) shall remain binding upon the parties and
inure to the benefit of the parties hereto and their respective permitted successors and assigns.
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21. Estoppel. Landlord represents, warrants and certifies to Tenant that, as of the
date of this First Amendment, and after giving effect to the terms hereof, no Tenant Delay exists
under the Lease in connection with the construction of the Tenant Improvements, nor to the best of
Landlord’s knowledge, does any default of Tenant exist under the Lease.
22. Submission Not an Offer. The submission of this First Amendment shall not
constitute an offer and this First Amendment shall not be effective and binding unless and until
fully executed and delivered by each of the parties hereto.
23. Ratification, Etc. Except as modified hereby, all other terms and conditions of
the Lease shall remain unchanged and in full force and effect and are hereby ratified and confirmed
by the parties hereto.
24. Inconsistencies or Conflicts. Any inconsistencies or conflicts between the terms
and provisions of the Lease and the terms and provisions of this First Amendment shall be resolved
in favor of the terms and provisions of this First Amendment.
25. Modification. This First Amendment shall not be modified except in writing signed
by both parties hereto.
26. Counterparts, Etc. This First Amendment may be executed by the parties hereto in
multiple counterparts, each of which when taken together shall constitute a fully executed original
document. Additionally, telecopied or e-mailed signatures may be used in place of original
signatures on this First Amendment. Landlord and Tenant intend to be bound by the signatures on
the telecopied or e-mailed document, are aware that the other party will rely on the telecopied or
e-mailed signatures, and hereby waive any defenses to the enforcement of the terms of this First
Amendment based on the form of signature.
27. Tenant’s Authority. Tenant represents and warrants for itself that all requisite
organizational action has been taken in connection with this First Amendment, and that the
individual signing on behalf of Tenant has been duly authorized to bind the Tenant by his
signature.
28. Landlord’s Authority. Landlord represents and warrants for itself that all
requisite organizational action has been taken in connection with this First Amendment, and that
the individual signing on behalf of Landlord has been duly authorized to bind the Landlord.
[SIGNATURES ON FOLLOWING PAGE]
11
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment on the date first
indicated above.
Landlord:
| MSCP XXXXXX, LLC, a Delaware limited liability company | ||||||
| By: | Divco West Real Estate Services, Inc., its agent | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| TENANT: | ||||
| ACME PACKET, INC., a Delaware corporation | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
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APPENDIX 1.1A
PLAN OF PREMISES (ORIGINAL PREMISES AND EXPANSION PREMISES)
PLAN OF PREMISES (ORIGINAL PREMISES AND EXPANSION PREMISES)
X-0
X-0
X-0
X-0
XXXXXXXX 3 TO APPENDIX 1.3.4
CAFETERIA AND FITNESS ROOM IMPROVEMENTS
CAFETERIA AND FITNESS ROOM IMPROVEMENTS
The Cafeteria and Fitness Room Improvements are limited to the following, using building standard
materials, finishes, and colors chosen by Landlord and approved by Tenant in its reasonable
discretion (provided, however, if Tenant does respond to Landlord’s request for approval within
three (3) business days, such materials, finishes, and/or colors chosen by Landlord shall be deemed
approved):
| 1. | Clean and shampoo the carpet in the cafeteria. | ||
| 2. | Generally clean the cafeteria and fitness room. | ||
| 3. | Paint the cafeteria. | ||
| 4. | Paint the fitness center. | ||
| 5. | Locker room and restrooms located on the garden level in the East Tower are to be improved as follows: |
| a. | Remove the wallpaper in the women’s shower room; repair (as deemed necessary by Landlord in its reasonable discretion) and paint such walls. | ||
| b. | Repair (as deemed necessary by Landlord in its reasonable discretion) and paint the restroom walls (including the men’s shower area). | ||
| c. | Replace the ceiling tile in the restrooms and shower area. |
A-5
