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Exhibit 10.4
BUILDING 311
THE ARSENAL
WATERTOWN, MASSACHUSETTS
SUBLEASE
BASIC INFORMATION
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DATE: June 19, 2000
SUBLESSOR: Arthur D. Little, Inc., a Massachusetts corporation
SUBLESSEE: Primix Solutions Inc., a Delaware corporation
SUBLEASED
PREMISES: Portion of third and fourth floors
Building 311
The Arsenal
Watertown, Massachusetts
NET RENTABLE
AREA OF SUBLEASED
PREMISES: 72,697 square feet
TERM COMMENCEMENT: The date on which the Sublessee Improvements are
completed, subject to adjustment in accordance with
Section 6
RENT COMMENCEMENT: January 1, 2001, subject to adjustment in accordance with
Section 7
TERM EXPIRATION: Ten (10) years from Term Commencement
BASE RENT: Years 1-5: $25.00 per rentable square foot
Years 6-10: $27.00 per rentable square foot
SECURITY DEPOSIT: $945,061 in form and subject to adjustment in accordance
with Section 5
PERMITTED USES: Corporate offices
SUBLESSEE'S AND
SUBLESSOR'S ADDRESS
FOR NOTICES: See Section 16
EXHIBITS: Exhibit A - Copy of Master Lease
Exhibit B - Diagram of Subleased Premises
Exhibit C - Form of Letter of Credit
Exhibit D - Construction Terms and Schedule
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SUBLEASE
This Sublease is entered into as of the 19th day of June, 2000, by
and between Arthur D. Little, Inc. ("Sublessor") and Primix Solutions Inc.
("Sublessee"), as a sublease under that certain Lease dated as of June 24,
1999 as amended by a First Amendment to Lease (the "First Amendment") dated
as of May __, 2000 (as amended from time to time after the date hereof, the
"Master Lease"), between Charles River Business Center Associates, L.L.C.
("Master Lessor"), as Lessor, and Arthur D. Little, Inc., as Lessee. A copy
of the Master Lease is attached hereto as EXHIBIT A.
WHEREAS, Sublessee desires to sublease from Sublessor and Sublessor
desires to sublease to Sublessee 72,697 net rentable square feet on the 3rd and
4th floors of the premises at Building 311, The Arsenal, Watertown,
Massachusetts, leased by Master Lessor to Sublessor under the Master Lease, on
the terms and conditions set forth below.
WITNESSETH
Sublessor hereby subleases to Sublessee and Sublessee hereby subleases
from Sublessor the area and space described in Section 1 below as the Subleased
Premises for the term and subject to the terms, covenants, agreements, and
conditions hereinafter set forth, to each and all of which Sublessor and
Sublessee hereby mutually agree.
1. The "Subleased Premises" consist of 72,697 square feet of net rentable
area on the 3rd and 4th floors of Building 311, The Arsenal, Watertown,
Massachusetts (the "Building"), as shown on EXHIBIT B hereto. Sublessor
hereby subleases to Sublessee, and Sublessee hereby hires from
Sublessor, the Subleased Premises. The Subleased Premises excludes
exterior faces of exterior walls, the common stairways and stairwells,
elevators and elevator wells, fan rooms, electric and telephone
closets, janitor closets, and pipes, ducts, conduits, wires and
appurtenant fixtures serving exclusively or in common other parts of
the Building, but include all Sublessee special installations, stairs,
special flues, special air conditioning facilities and specially
installed or leased telephone or electric switchboards. If the
Subleased Premises includes less than the entire rentable area of any
floor, the Subleased Premises exclude the common corridors, elevator
lobby and toilets located on such floor.
Subject to reasonable rules of general applicability to all other
occupants in the Building from time to time made by Sublessor of which
Sublessee is given notice and the Rules and Regulations (as defined in
the Master Lease), Sublessee shall have, as appurtenant to the
Premises, the right to use in common with other occupants of the
Building:
(a) The elevator shafts, fire escapes, interior stairwells and
entrances and exits to the Building;
(b) All installations designed and intended for common use and
serving the Subleased Premises such as but not limited to
telephone, electricity, gas, hot and cold water, sewer, heat,
ventilation and air conditioning;
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(c) All apparatus and equipment designed and intended for common
use and serving the Subleased Premises such as but not limited
to elevators, tanks, pumps, motors, electrical switchgear,
fans, compressors and control apparatus and equipment,
excluding from such apparatus and equipment all parts thereof,
and all items affixed or connected thereto, not designated or
intended for common use; and
(d) If the Subleased Premises include less than the entire
rentable floor area of any floor, the common toilets,
corridors and elevator lobby of such floor.
Sublessor reserves the right from time to time, without unreasonable
interference with Sublessee's use: (i) to install, use, maintain,
repair, replace and relocate for service to the Subleased Premises
and/or other parts of the Building, pipes, ducts, conduits, wires and
appurtenant fixtures, wherever located in the Subleased Premises or
Building, and (ii) to alter or relocate any other common facility,
provided that substitutions are substantially equivalent or better.
Installations, replacements and relocations referred to in clause (i)
above shall be located, so far as practicable, in the central core area
of the Building, above ceiling surfaces, below floor surfaces or within
perimeter walls of the Subleased Premises.
2. All of the terms, covenants, and conditions of the Master Lease,
insofar as they relate to the Subleased Premises, are hereby
incorporated by reference in this Sublease and made a part hereof as if
the same were set forth in full in this Sublease, except:
(a) the basic lease provisions applicable to this Sublease shall
be as set forth on the first page hereof, and shall supersede
the comparable provisions in the Master Lease;
(b) the base rent and additional rent payable by Sublessee to
Sublessor in respect of the Subleased Premises shall be in the
amount and shall be payable as provided in Section 4 hereof;
(c) for defaults in the payment of rent, additional rent
(including Sublessee's share of Base Building Operating
Expenses, Operating Expenses of the Complex and Taxes (each as
defined in the Master Lease) increases), or any other amounts
due under this Sublease, the grace period shall be five (5)
days after written notice to Sublessee (it being agreed that
the grace period shall be five (5) days with no notice
required for twelve (12) months after any such notice is
delivered to Sublessee);
(d) for defaults other than payment defaults, the grace period
shall be five (5) days less than provided for Sublessor, as
lessee, under the Master Lease;
(e) Sublessor=s Extension Options and Right of First Offer (each
as described in Exhibit M of the Master Lease) and
Sublessor's signage rights (as described in Section 5.1,
Exhibit J and Exhibit S of the Master Lease)
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shall not operate for the benefit of Sublessee and may not be
enforced by Sublessee;
(f) the following sections of the Master Lease (the "Excluded
Sections") shall not be applicable to this Sublease:
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Article IV: Commencement and Condition, excluding:
Section 4.2(e): Landlord Covenants Re: Base
Building (which shall be applicable),
and
Section 4.3: Conclusiveness of Landlord's
Performance(which shall be
applicable), and
Article VI: Assignment and Subletting, excluding:
Section 6.3: Attornment by Subtenant (which shall be
applicable)
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Section 1.2: Basic Data
Section 2.2(b): Tenant's Share of Parking Spaces
Section 2.2(d): Common Facilities/changes
Section 5.1(c): Watertown Zoning Ordinance/permits or approval
Section 5.2(a): Installations and Alterations by Tenant
Section 5.2(e): Future Expansion Space
Section 7.4(e): Service Interruption (except to the extent Sublessee
has the benefit of the rent abatement set forth in
Section 2(g) hereof)
Section 7.5: Electricity
Section 7.6: Tenant's Right to Self-Help
Section 9.3 Utility Payments
Section 10.1: Indemnity
Section 12.1: Abatement of Rent
Section 12.2: Landlord's Right of Termination
Section 12.3: Restoration
Section 12.5: Tenant's Insurance
Section 14.2.2(b): Hazardous Materials/Environmental Conditions
Section 15.7(b): Rules and Regulations
Section 15.22: Brokerage
Section 15.23: Dispute Resolution
Exhibit A-1: Tenant's Exclusive Parking Areas Adjacent
Landscaping
Exhibit C: Commencement Date Letter
Exhibit H: Milestone Dates
Exhibit I: Form of Subordination, Nondisturbance and
Attornment Agreement
Exhibit J: Common Facilities
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Exhibit L: Provisions Applicable to Construction of Tenant
Improvements
Exhibit L-1: Approval of Tenant Improvement Plans
Exhibit O: List of Proposed Tenants with Expansion Rights
Exhibit P: Measurement Method
Exhibit S: Signage in Compliance with Sign Standards
Exhibit M:
Section A: (Extension Option)
Section C: (Right of First Refusal)
Section D: (SNDA)
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The following defined terms in Section 1.3: Rent
Commencement Date, and Scheduled Term Commencement
Date, and such other terms as are used only in the
Excluded Sections.
All of the First Amendment, excluding: New Exhibits
E, F, K, K-1a, K-1b, K-2b, K-2c, K-4a, K-4b, K-5, K-6
and L-3 (all of which shall be applicable and shall,
to the extent applicable, replace the Exhibit so
replaced by the same in the Master Lease)
(g) Sublessor's right to abatement of rent pursuant to
Section 7.4(e) of the Master Lease shall not operate
for the benefit of Sublessee and may not be enforced
by Sublessee, provided that Sublessee shall be
entitled to receive its pro rata share of any rent
abatement received by Sublessor pursuant to such
Section 7.4(e) to the extent and only to the extent
that such rent abatement is due to a Service
Interruption (as such term is defined in the Master
Lease) which affects the Subleased Premises; and
(h) the term "Landlord" as used in the Master Lease shall
mean Sublessor hereunder and the term "Tenant" as
used in the Master Lease shall mean Sublessee
hereunder.
In the event of any conflict between the provisions of the Master Lease
incorporated by reference herein and the specific provisions of this
Sublease, the specific provisions of this Sublease shall control,
provided that nothing herein contained shall be construed to derogate
from the obligations of Sublessor and Sublessee to comply with the
provisions of the Master Lease; and those incorporated provisions of
the Master Lease which are protective and for the benefit of Landlord
shall in this Sublease be deemed to be protective and for the benefit
of both the Landlord and the Sublessor, and those incorporated
provisions of the Master Lease which are protective and for the benefit
of the Tenant shall in this Sublease be deemed protective and for the
benefit of the Sublessee.
In the event of any default on the part of Sublessee under any of the
terms, covenants, and conditions of this Sublease (including those
terms, covenants, and conditions of the Master Lease incorporated by
reference herein), Sublessor shall have the same rights and
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remedies against Sublessee under this Sublease as are available to
Master Lessor against Sublessor, as lessee under the Master Lease.
Sublessee represents to Sublessor that it has read the Master Lease and
that it is familiar with the contents thereof. Sublessee covenants and
agrees that it will perform, comply with, and observe all of the terms,
covenants, and conditions contained in the Master Lease and applicable
to Tenant, insofar as they relate to the use and occupancy of the
Subleased Premises, except for the Excluded Sections and those
provisions made inapplicable by the express provisions of this
Sublease.
3. The Sublease term (the "Initial Term" and, together with the Extended
Term, if any, the "Term")) shall commence on the Term Commencement Date
(as defined in Section 6), and shall end on the tenth anniversary
thereof (subject to extension pursuant to Section 20 hereof), or on
such earlier date upon which said Initial Term may expire or be
terminated pursuant to a termination of the Master Lease or any of the
conditions or limitations or other provisions of this Sublease or
pursuant to law. This Sublease shall terminate automatically upon any
termination of the Master Lease. Notwithstanding the foregoing,
Sublessee agrees that, in the event of any termination of the Master
Lease or in the event Master Lessor succeeds to the interest of
Sublessor in the Master Lease or this Sublease, Sublessee shall, at
Master Lessor's request, attorn to Master Lessor on the terms of this
Sublease and, in such event, this Sublease shall remain in full force
and effect between Sublessee and Master Lessor as if the Master Lease
had not terminated, and Sublessee shall execute such instruments of
attornment as Master Lessor shall reasonably request.
4. During the period from the Rent Commencement Date (as defined in
Section 7 below) to and including the day immediately preceding the
fifth anniversary of the Term Commencement Date, Sublessee shall pay to
Sublessor base rent for the Subleased Premises in the amount of
$151,452.08 per month, payable in advance on the first day of each
month. During the period from the fifth anniversary of the Term
Commencement Date to and including the day immediately preceding the
tenth anniversary of the Term Commencement Date, Sublessee shall pay to
Sublessor base rent for the Subleased Premises in the amount of
$163,568.25 per month, payable in advance on the first day of each
month. The base rent payable hereunder shall be increased by the amount
of Base Building Operating Expenses, Operating Expenses of the Complex
and Taxes (as such terms are defined in the Master Lease) allocable to
the Subleased Premises, provided that for purposes of this Sublease,
Base Building Operating Expenses shall be deemed to include all
expenses incurred by Sublessor (exclusive of its payments of Operating
Expenses of the Complex and Taxes to the extent included therein) in
operating and maintaining the Building and its appurtenances, including
but without limitation, premiums for fire, casualty, liability and such
other insurance as Sublessor may from time to time maintain with
respect to the Building; insurance deductibles; security expenses;
compensation and all fringe benefits, workmen's compensation insurance
premiums and payroll taxes paid by Sublessor to, for or with respect to
all persons engaged in operating, maintaining, or cleaning of the
Building or related common areas; steam, water, sewer, electric, gas,
telephone and other utility charges not billed directly to subtenants
by Sublessor or the utility; costs of building and cleaning supplies
and equipment (including rental); costs of maintenance, cleaning and
repairs; costs of snow
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plowing or removal, or both, and care of landscaping; payments to
independent contractors under service contracts for cleaning,
operating, managing, maintaining and repairing the Building and said
common areas; all other expenses paid in connection with the operation,
cleaning, maintenance and repair of the Building and said common areas,
or either; the amortized portion, properly attributable to the fiscal
year in question, of the cost, with interest thereon at a rate
reasonably determined by Sublessor, of any capital improvements made to
the Building by Sublessor after the original construction of the
Building which are anticipated to result in a reduction in Base
Building Operating Expenses or are required under any governmental law
or regulation not applicable to the Building at the time of its
construction; and the management fee determined in accordance with
paragraph 4 of Exhibit D to the Master Lease. In the event the Building
shall be less than fully occupied, Sublessor shall have the right
equitably to adjust the Base Building Operating Expenses to correspond
to the actual occupancy of the Building in respect of those expenses
which are variable (e.g., cleaning) on account of the extent of the
occupancy of the Building.
Sublessee and Sublessor agree that the proportionate share of Base
Building Operating Expenses allocable to the Subleased Premises is
19.857%, and the proportionate share of Operating Expenses of the
Complex and Taxes allocable to the Subleased Premises is 10.283%,
provided that such percentages may change to reflect any changes in the
total rentable square footage of the Subleased Premises, Building or
the Complex (as defined in the Master Lease) and provided further that
if any utilities or services are provided to less than all of the
rentable space in the Building, Sublessee shall pay its share of said
charges based upon the area of the Subleased Premises relative to the
area of the entire space to which utilities are provided. Sublessor
shall notify Sublessee in writing from time to time as to the amounts
and payment dates of such expenses and taxes, and Sublessee shall pay
such amounts to Sublessor in addition to the base rent within ten (10)
business days of receipt of Sublessor's invoice therefor. Sublessee
shall be responsible for paying all charges for electricity related to
the Subleased Premises. Electricity for lights and plugs shall be
separately metered at Sublessor's sole cost and expense. Sublessor
shall not be liable for any interruption or failure in the supply of
any utilities to the Subleased Premises; provided, however, that, to
the extent Sublessor is entitled to a rent abatement under the Master
Lease pursuant to Section 7.4(e) thereof, Sublessee shall be entitled
to an equitable abatement of the rent hereunder taking into account the
rentable area of the Subleased Premises and the remainder of the
Building and the degree of interruption of such services to the
Subleased Premises compared to the degree of interruption suffered by
the remainder of the Building.
Sublessee shall pay, as additional rent, on the first day of each month
during the Term monthly payments equal to 1/12th of the amount of
additional rent Sublessor estimates to be payable pursuant to this
Section 4 during each fiscal year. Estimated monthly payments for each
ensuing fiscal year shall be made retroactively to the first day of the
fiscal year in question, with an appropriate additional payment or
refund, if any, to be made at the end of such fiscal year. Without
limitation of the foregoing, if Sublessor should reasonably determine
during the course of any fiscal year that additional payments on
account of Base Building Operating Expenses will be required to be made
by Sublessee, Sublessor may require Sublessee to make estimated monthly
payments on
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account thereof and such payments shall be due as additional rent with
a final adjustment to be made at the end of such fiscal year.
Within ninety (90) days after the expiration of each fiscal year (or if
this Sublease shall expire or be terminated during a fiscal year, after
the expiration or termination of this Sublease), Sublessor shall
furnish Sublessee with a statement setting forth the Base Building
Operating Expenses for such fiscal year (or applicable portion
thereof). Such statement shall be accompanied by a computation of the
amount, if any, of the additional rent payable to Sublessor pursuant to
this Section 4 or the amount, if any, overpaid by Sublessee. Any
additional rent payable by Sublessee under this Section 4 shall be paid
within ten (10) business days after Sublessor has furnished Sublessee
with the foregoing statement. In the event such statement indicates an
overpayment by Sublessee, such overpayment shall be credited against
Sublessee's future obligations under this Section 4, or, if the Term
has expired, the same shall be refunded to Sublessee within ten (10)
days of delivery of such statement.
Except as otherwise specifically provided herein, any sum, amount, item
or charge payable by Sublessee hereunder shall constitute additional
rent and shall be paid by Sublessee to Sublessor in advance on the
first (1st) day of the month following the date on which Sublessor
notifies Sublessee of the amount payable or on the tenth (10th) day
after the giving of such notice, whichever shall be later. Sublessee
shall remain liable for the payments required pursuant to this Sublease
relating to the last fiscal year or part thereof included in the Term
notwithstanding that the Term has expired or this Sublease has been
terminated and Sublessee has vacated the Subleased Premises prior to
the determination of the amount so payable by Sublessee.
5. Upon the execution of this Sublease, Sublessee shall pay and Sublessor
shall hold nine hundred forty-five thousand and sixty-one dollars
($945,061.00) as security (the "Security Deposit) for the payment of
all rent and other sums of money payable under the terms of this
Sublease and for the faithful performance by Sublessee of each of its
other obligations hereunder. The Security Deposit shall be in the form
of an irrevocable Letter of Credit from a Massachusetts bank or other
financial institution reasonably acceptable to Sublessor, of even date
and execution herewith, substantially in the form of EXHIBIT C attached
hereto and made a part hereof (together with any additional or
replacement letter of credit, the "Letter of Credit"). Sublessee shall
pay any and all fees charged by the issuing bank in respect of the
Letter of Credit. If the bank on which the Letter of Credit is drawn
elects not to renew the Letter of Credit or is declared insolvent or
placed into conservatorship or receivership, Sublessee shall, within
ten (10) business days after such election or event, replace the Letter
of Credit with a like Letter of Credit from another bank or financial
institution reasonably acceptable to Sublessor.
In the event of a default by Sublessee hereunder or in the event that
the Letter of Credit is not renewed at least thirty (30) days prior to
its expiration, Sublessee hereby authorizes Sublessor, at Sublessor's
election and with or without terminating this Sublease and without
prejudice to any other right or remedy Sublessor may have, to draw on
the Letter of Credit and apply all or any portion of the Security
Deposit necessary to remedy such default. If all or any of the proceeds
of the Letter of Credit is so applied, Sublessee, upon
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demand by Sublessor, shall immediately arrange for the issuance of an
additional or replacement Letter of Credit in an amount equal to the
amount of the proceeds of the then-outstanding Letter of Credit so
applied.
Provided that Sublessee has not been and is not at such time in default
beyond applicable notice and grace periods under this Sublease, on each
of the first five (5) anniversaries of the Term Commencement Date,
Sublessee shall be entitled to reduce the amount of the Letter of
Credit by $94,506.00.
The Letter of Credit shall terminate no earlier than thirty (30) days
after the expiration or earlier termination (other than a termination
resulting from Sublessee's default) of the term of this Sublease,
provided that Sublessee shall have fully vacated the Subleased Premises
and such premises are left in the condition as on the Term Commencement
Date and as required pursuant to Section 15.20 of the Master Lease.
6. Sublessee currently is preparing the plans for the improvements to the
Subleased Premises (the "Sublessee Improvements"). Sublessee shall
submit such plans to Sublessor and Master Lessor for their review and
approval. Sublessee acknowledges that such plans will not be deemed to
be complete unless and until Sublessor is able to use such plans to
obtain bids and building permits for the work contemplated thereby.
Such plans, when fully completed and approved by Sublessor and Master
Lessor, shall be referred to herein as the "Sublessee Improvement
Plans." The proposed plan approval and construction schedule are set
forth in EXHIBIT D hereto.
Promptly after substantial completion of the Base Building Work (as
defined in the Master Lease) and approval of the Sublessee Improvement
Plans, Sublessor shall commence and shall use reasonable efforts to
complete the Sublessee Improvements by the Scheduled Term Commencement
Date (as defined in Exhibit D). The Sublessee Improvements shall be
performed by a general contractor selected by Sublessor (the "General
Contractor"), subject to Sublessee's approval, not to be unreasonably
withheld, and the construction process shall be managed by Trammell
Crow Company (the "Construction Manager") at Sublessee's expense. The
Sublessee Improvements shall be subject to a fee of eleven percent
(11%) (the "Oversight Fee") of the actual cost of completing the
Sublessee Improvements and Sublessor shall be responsible for paying
out of such fee or otherwise all fees payable to Master Lessor,
Construction Manager and General Contractor (including general
conditions) with respect to the oversight, administration and
management of the Sublessee Improvements. The General Contractor shall
request three (3) bids from subcontractors for each trade, the cost of
which is estimated to exceed $50,000.00 with respect to the Sublessee
Improvements and the General Contractor shall consult with Sublessee
before selecting a subcontractor for each such trade, it being agreed,
however, that in the event that Sublessee does not approve or select a
subcontractor within one (1) Business Day of the General Contractor's
request for a decision with respect to the same (it being agreed that
such a request and such a selection may be made orally), then any
additional time before making such an approval or selection shall
constitute a Sublessee Delay, hereunder. Sublessee shall have the right
to designate its own construction manager in addition to the
Construction Manager, provided that Sublessee also shall bear the
expenses of such additional construction
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manager. Sublessor shall contribute up to $1,453,940 ("Sublessor's
Contribution") to the cost of the Sublessee Improvements, including
without limitation space planning, cabling, construction management and
architectural costs. Any costs incurred in connection with the
Sublessee Improvements (including the Oversight Fee) in excess of
Sublessor's Contribution ("Sublessee's Excess Cost") shall be borne by
Sublessee.
Based upon the Sublessee Improvement Plans, the Construction Manager
shall prepare an estimate of the cost of completing the Sublessee
Improvements. If such estimate exceeds Sublessor's Contribution,
Sublessee shall, upon request by Sublessor, execute a letter agreement
confirming such estimate and the amount of Sublessee's Excess Cost
prior to the time that Sublessor shall be required to commence work on
the Sublessee Improvements. Upon receipt of the Construction Manager's
estimate, Sublessee shall promptly (but in no event later than five (5)
business days) pay fifty percent (50%) of Sublessee's Excess Cost to
Sublessor and shall, thereafter, within thirty (30) days of
commencement of construction of the Sublessee Improvements pay an
additional fifty percent (50%) of Sublessee's Excess Cost to Sublessor.
Sublessor shall not be required to commence construction of the
Sublessee Improvements or continue such work until Sublessor has
received payment of all portions of Sublessee's Excess Cost then due
and payable and any failure to so pay in a timely fashion shall
constitute a Sublessee Delay. The estimate of the cost of the Sublessee
Improvements, and any Sublessee's Excess Cost, shall be revised from
time to time by the Construction Manager as such work progresses and/or
to take account of any changes in the work requested by Sublessee. If
Sublessee's Excess Cost increases as a result of changes in the cost of
the Sublessee Improvements, Sublessee shall pay such additional amount
to Sublessor within five (5) business days after the Construction
Manager's delivery of the revised estimate to Sublessee. Sublessor may
halt construction of the Sublessee Improvements if Sublessee fails to
pay such additional amount to Sublessor. If Sublessee's Excess Cost
decreases as a result of changes in the cost of the Sublessee
Improvements, Sublessor shall refund the difference between the
Sublessee's Excess Cost previously paid to Sublessor and the new
estimate of Sublessee's Excess Cost within five (5) business days after
the Construction Manager's delivery of the revised estimate to
Sublessee. In the event that the actual cost to Sublessor of completing
the Sublessee Improvements is greater than the sum of Sublessor's
Contribution and Sublessee's Excess Cost previously paid to Sublessor,
then Sublessee shall pay such additional amount within five (5)
business days after the calculation of such actual cost. In the event
that the actual cost to Sublessor of completing the Sublessee
Improvements is less than Sublessor's Contribution for the Sublessee
Improvements, provided that no default beyond applicable grace and cure
periods exists hereunder, Sublessor shall refund any balance within
thirty (30) days of completion of the Sublessee Improvements.
The Subleased Premises shall be deemed ready for occupancy on the first
day as of which Sublessor has obtained a temporary or permanent
certificate of occupancy for the Subleased Premises and the Sublessee
Improvements have been completed, except for so-called "punch list"
items (the "Term Commencement Date"). Sublessor shall address and
correct all "punch list" items within thirty (30) days after notice
thereof, including any such items as shall be required for Sublessor to
obtain a permanent certificate of occupancy for the Subleased Premises,
except such "punch list" items that Sublessor has
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been unable to complete despite reasonable efforts to do so, in which
case such 30 day period shall be extended as reasonably necessary for
Sublessor to complete such items. Notwithstanding the foregoing, if
Sublessee's personnel shall occupy all or any material part of the
Subleased Premises for the conduct of its business prior to the Term
Commencement Date as determined pursuant to the preceding sentence,
such date of occupancy shall, for all purposes of this Sublease, be the
Term Commencement Date.
Reference is made to the covenants, representations and warranties made
by Master Lessor in Sections 4.2(e), 4.3 and 14.2.2(b) in the Master
Lease with respect to the Building and the Complex. In the event of any
breach of any such covenant, representation or warranty, Sublessee
hereby agrees to look solely to Master Lessor for recovery of any loss,
cost or damage suffered by Sublessee as a result thereof. Sublessee
expressly agrees that Sublessor shall not be liable for breach of any
such covenant, representation or warranty. To the extent legally
enforceable, Sublessor agrees that Sublessee shall have the right to
pursue any remedy that the Sublessor would have against Master Lessor
with respect to any loss, cost or damage suffered by Sublessee arising
out of a breach of such a covenant, representation or warranty by
Master Lessor. Sublessee shall have the right to take such action in
its own name (or in the name of Sublessor if such action would be
barred in Sublessee's name due to lack of privity) and at its own
expense, and for that purpose and only to such extent, all of the
rights of Sublessor under the Master Lease with respect thereto shall
be and hereby are conferred upon and assigned to Sublessee and
Sublessee shall be and is hereby subrogated to such rights to the
extent that the same shall apply to the Subleased Premises, provided
and only to the extent that such action against Master Lessor in the
Sublessee's name shall be barred by reason of lack of privity of
contract. If Sublessor shall take, or participate in, or shall be
requested to participate or assist in any action in the enforcement of
Sublessee's rights against Master Lessor, Sublessor shall cooperate
with Sublessee as reasonably requested by Sublessee and Sublessee
agrees to reimburse Sublessor for all expenses reasonably incurred by
Sublessor, including, without limitation, the attorney's fees of
Sublessor. Provided that Sublessor has performed its obligations under
this grammatical paragraph, Sublessee hereby agrees to indemnify and
hold harmless and defend Sublessor from and against any and all
damages, claims and liabilities to others resulting or allegedly
resulting from any action or proceeding taken or instituted by
Sublessee (or by Sublessor at Sublessee's request) pursuant to this
grammatical paragraph whether or not Sublessor joins in the same.
Sublessor covenants that the Sublessee Improvements, if constructed by
the General Contractor in accordance with the Sublessee Improvement
Plans, shall, to Sublessor's best knowledge, on the Term Commencement
Date: (i) contain no existing or latent defects; (ii) contain no
asbestos or asbestos-containing materials; (iii) be in compliance with
all applicable laws, ordinances and regulations then in effect,
including without limitation all laws, ordinances and regulations
governing hazardous, toxic or otherwise regulated substances, wastes or
materials; and (iv) to the extent that that the Subleased Premises
constitute a "Place of Public Accommodation" within the meaning of the
Americans with Disabilities Act of 1990, comply with such Act and with
all other applicable laws and rules governing access to and use of
facilities by people with disabilities, including without limitation
the Massachusetts Architectural Access Board
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regulations. Sublessor further covenants that all equipment, machinery
and facilities, including without limitation HVAC, plumbing and
electrical systems used in connection with the operation of the
Building and Subleased Premises will be, as of the Term Commencement
Date, in good working condition. Except for the Sublessee Improvements,
the Subleased Premises are being subleased in their AS IS condition.
Except as expressly set forth in this paragraph, the Subleased Premises
are being subleased WITHOUT REPRESENTATION OR WARRANTY by Sublessor.
Sublessee shall not make or cause to be made any improvements, changes,
or additions to the Subleased Premises without the prior written
consent of Sublessor and, to the extent required by the Master Lease,
Master Lessor. Any such improvements, changes, or additions shall, to
the extent approved, be made at Sublessee's expense. The consent of
Sublessor shall not be unreasonably withheld in those circumstances
where, pursuant to the Master Lease, the consent of Master Lessor shall
not be unreasonably withheld.
7. In the event that the Term Commencement Date is delayed as the result
of a Sublessee Delay (as defined below), the Rent Commencement Date
shall be accelerated by one day for each day of Sublessee Delay. In the
event that the Term Commencement Date is delayed as the result of a
Sublessor Delay (as defined below), the Rent Commencement Date shall be
delayed by one day for each day of Sublessor Delay.
For the purposes of this Section 7, the following events each shall
constitute a "Sublessee Delay": (i) any failure by Sublessee to perform
any of its obligations described on EXHIBIT D within the time periods
specified therein; (ii) any written request by Sublessee that Sublessor
delay in the commencement, constructions or completion of the Sublessee
Improvements for any reason; (iii) any change by Sublessee in the
Sublessee Improvement Plans after approval thereof by Sublessor and
Master Lessor that causes a delay in such construction; (iv) any
negligent or otherwise wrongful act or omission of Sublessee or its
officers, agents, servants or contractors, including failure to make
payment of Sublessee's Excess Cost when due; or (v) any action
specified herein as a Sublessee Delay. For the purposes of this Section
7, the following events shall constitute a "Sublessor Delay": (i) any
failure by Sublessor to perform any of its obligations described on
EXHIBIT D within the time periods specified therein.
8. Sublessee shall not voluntarily, involuntarily, or by operation of law,
assign, transfer, sublease, mortgage, pledge, or encumber (hereinafter
referred to as "Transfer") this Sublease or any interest herein without
the prior written consent of Sublessor, which consent, subject to the
following paragraph, shall not be unreasonably withheld, delayed or
conditioned. A consent to a Transfer shall not release Sublessee of any
of its obligations hereunder or be deemed to be a consent to any
subsequent Transfer. Any Transfer without written consent will be null
and void. Any dissolution, merger, consolidation, or other
reorganization of Sublessee or the sale or other transfer or
disposition (in a single transaction or a series of transactions) of a
controlling percentage of the stock of Sublessee shall constitute a
Transfer of this Sublease. Notwithstanding the foregoing, this Sublease
may be assigned or the Subleased Premises may be sublet, in whole or in
part, without the consent of Sublessor and without any recapture right
of Sublessor being applicable thereto to any corporation or entity into
or with which
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Sublessee may be merged or consolidated, provided in all such cases (i)
the surviving corporation or entity (the "Permitted Transferee") agrees
in writing with Sublessor to be bound by all of the terms and
conditions of this Sublease, and (ii) the Permitted Transferee,
immediately after such Transfer has a net worth, as calculated in
accordance with generally accepted accounting principles, at least as
great as Tenant's immediately prior to such Transfer.
In the event that during the term of this Sublease, Sublessee desires
to Transfer all or any portion of the Subleased Premises to any person
or entity other than a Permitted Transferee, Sublessee shall provide
written notice thereof to Sublessor, which notice shall state (i) the
portion of the Subleased Premises that Sublessee desires to Transfer
(the "Transfer Portion"), (ii) the identity of the person or entity to
whom Sublessee desires to Transfer the Transfer Portion, (iii) the
terms of such proposed Transfer, including without limitation the
rental rate and the proposed consummation date thereof, and (iv) such
other reasonable information as may be requested by Sublessor. Within
ten (10) business days after its receipt of all of the foregoing
information, Sublessor shall provide written notice to Sublessee as to
whether Sublessor (x) consents to the proposed Transfer, (y) does not
consent to the proposed Transfer, or (z) desires to recapture the
Transfer Portion, provided that Sublessor shall have no right to
recapture the Transfer Portion unless (A) the term of such proposed
Transfer shall be for more than 75% of the remaining term of this
Sublease (exclusive of Sublessee's Extension Option) or (B) the
proposed Transfer is of more than half of the rentable area of the
Subleased Premises. In the event that Sublessor consents to the
proposed Transfer, Sublessee may consummate such Transfer on the terms
set forth in its notice to Sublessor, provided that if Sublessee fails
to consummate such Transfer within ninety (90) days after the date of
Sublessor's notice, Sublessee shall be required to again request
Sublessor's consent to such proposed Transfer and Sublessor shall be
entitled to exercise the recapture right described in this paragraph.
Sublessee shall have the right to rescind its request regarding the
proposed Transfer if Sublessor elects to recapture the Transfer Portion
by written notice to Sublessor within five (5) business days of
Sublessor's notice referred to in the preceding sentence. In the event
that Sublessor desires to recapture the Transfer Portion, unless
Sublessee has rescinded its request pursuant to the preceding sentence,
Sublessee and Sublessor shall mutually agree on the date for such
recapture (which date shall not be earlier than the consummation date
proposed in Sublessee's notice to Sublessor) and Sublessee and
Sublessor shall execute an amendment to this Sublease removing the
Transfer Portion from the Subleased Premises and making appropriate
corresponding changes in this Sublease. In the absence of an agreement
between Sublessor and Sublessee on the date of any recapture, the
recapture date shall be the later of (i) sixty (60) days after the date
of Sublessor's notice that it intends to recapture the Transfer Portion
and (ii) the consummation date proposed in Sublessee's notice to
Sublessor. Sublessee shall be responsible for any costs and expenses
incurred by Sublessor in connection with any proposed Transfer,
excluding any costs and expenses required to demise the Transfer
Portion from the remainder of the Subleased Premises.
If Sublessee Transfers any portion of the Subleased Premises, Sublessee
shall pay to Sublessor, as additional rent, 50% of the amount, if any,
by which the amounts received by Sublessee in respect of each such
Transferred Portion, net of Sublessee's contribution
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to improvements to such portion amortized on a straight line basis over
the term of the applicable sub-sublease or assignment and reasonable
out-of-pocket costs incurred by Sublessee in connection with such
Transfer, exceed the base rent and additional rent payable with respect
to each such Transferred portion.
9. Sublessee shall maintain insurance in accordance with the Master Lease
and in compliance with all of Sublessor's obligations under the Master
Lease. Such policies of insurance shall name Sublessor and Master
Lessor (and all other persons required by the Master Lease or Master
Lessor) as an additional insured, shall contain a cross liability
endorsement, and shall provide that the same may not be cancelled
except upon 30 days prior written notice to Sublessor and Master Lessor
and such other persons. Sublessee shall provide Sublessor and Master
Lessor and such other persons with a certificate or certificates of
said policies or, to the extent required by the Master Lease, copies
(or originals if required) of said policies. Sublessee agrees that such
insurance shall not be deemed to limit its liability under this
Sublease. Sublessee further agrees to pay to Sublessor, as additional
rent, Sublessee's proportionate share (based on the square footage of
the Building allocable to the Subleased Premises) of the cost of
insurance related to the Building and taken out by Sublessor.
10. To the extent that Sublessor's base rent and additional rent abates
pursuant to the Master Lease in the event of a fire or other casualty
or upon any exercise of the power of eminent domain, Sublessee's base
rent and additional rent payable hereunder shall abate on a pro rata
basis to the extent that the Subleased Premises are damaged by such
fire or other casualty or are subject to such exercise of the power of
eminent domain, as the case may be. To the extent that the Master Lease
terminates as the result of any fire or other casualty or any exercise
of the power of eminent domain, this Sublease shall likewise terminate.
Sublessee acknowledges and agrees that Master Lessor has reserved and
excepted, and Sublessee hereby grants to Sublessor, for and on behalf
of Master Lessor, all rights to recover for damages to the Complex and
the sub-leasehold interest hereby created, and to compensation accrued
or hereafter to accrue by reason of any taking, damage or destruction.
By way of confirming the foregoing, Sublessee hereby grants and
assigns, and covenants with Sublessor to grant and assign to Sublessor,
for and on behalf of Master Lessor, all rights to such damages or
compensation, and covenants to deliver such further assignments and
assurances thereof as Sublessor, for and on behalf of Master Lessor,
may from time to time request, and Sublessee hereby irrevocably
appoints Sublessor its attorney-in-fact to execute and deliver in
Sublessee's name all such assignments and assurances. Nothing contained
herein shall be construed to prevent Sublessee from prosecuting in any
condemnation proceedings a claim for (or obtaining from an insurance
award) the value of any of Sublessee's removable property installed in
the Subleased Premises by Sublessee at Sublessee's expense and for
relocation expenses, provided that such action shall not affect the
amount of compensation otherwise recoverable by Master Lessor from the
taking authority.
11. To the fullest extent permitted by law, Sublessee hereby agrees to
indemnify and hold harmless and defend Sublessor from and against any
and all actions, claims, demands, damages, losses, liabilities, costs,
and expenses (including reasonable attorneys' fees) asserted against,
imposed upon, or incurred by Sublessor by reason of (a) any violation
of
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any of the terms, covenants, or conditions of the Master Lease or this
Sublease caused, suffered, or permitted by Sublessee, its agents,
servants, employees, or invitees, and (b) any damage or injury to
persons or property occurring upon or in connection with the use or
occupancy of the Subleased Premises, except to the extent caused by the
gross negligence or willful misconduct of Sublessor, its agents,
servants, employees, or invitees. Sublessee acknowledges that the
foregoing indemnity includes any losses, costs or damages suffered by
Sublessor with respect to the Master Lease to the extent that such
losses, costs or damages are caused by Sublessee.
To the fullest extent permitted by law, Sublessor hereby agrees to
indemnify and hold harmless and defend Sublessee from and against any
and all actions, claims, demands, damages, losses, liabilities, costs,
and expenses (including reasonable attorneys' fees) asserted against,
imposed upon, or incurred by Sublessee by reason of any violation of
any of the terms, covenants, or conditions of the Master Lease or this
Sublease caused, suffered, or permitted by Sublessor, its agents,
servants, employees, or invitees. Sublessor acknowledges that the
foregoing indemnity includes any losses, costs or damages suffered by
Sublessee with respect to the Master Lease to the extent that such
losses, costs or damages are caused by Sublessor.
12. As between the parties hereto, Sublessor agrees to observe and perform
the terms, covenants and conditions on its part to be observed and
performed hereunder and under the Master Lease and to use commercially
reasonable best efforts to cause Master Lessor to observe and perform
those applicable terms, covenants and conditions to be observed and
performed by Master Lessor under the Master Lease with respect to the
Subleased Premises. Sublessee covenants and agrees that Sublessee will
not do anything which would constitute a default under the Master Lease
or omit to do anything which Sublessee is obligated to do under the
terms of this Sublease and which would constitute a default under the
Master Lease. Sublessee covenants and agrees to comply with all
provisions of the Master Lease applicable to the Subleased Premises. To
the extent that Sublessee has paid Sublessor, Sublessor covenants and
agrees to pay the rent and any additional rent payable as required
under the Master Lease and, to the extent that the same is not an
obligation of Sublessee, will not do anything or omit to do anything
which Sublessor is obligated to do under the terms of the Master Lease
and which would constitute a default under the Master Lease.
Sublessor shall not be liable to Sublessee for Master Lessor's
negligence or misconduct or breach of the Master Lease, whether or nor
such negligence, misconduct or breach otherwise causes a default by
Sublessor hereunder. If, after written request from Sublessee,
Sublessor shall unreasonably fail or refuse to take appropriate action
for the enforcement of Sublessor's rights against Master Lessor with
respect to the Subleased Premises, Sublessee shall have the right to
take such action in its own name and at its own expense, and for that
purpose, and only to such extent, all of the rights of Sublessor under
the Master Lease shall be and hereby are conferred upon and assigned to
Sublessee and Sublessee shall be and is hereby subrogated to such
rights to the extent that the same shall apply to the Subleased
Premises, provided and only to the extent that such action against
Master Lessor in Sublessee's name shall be barred by reason of lack or
privity of contract. If Sublessor shall take, or participate in, or
shall be requested to participate or
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assist in any action in the enforcement of Sublessee's rights against
Master Lessor, Sublessee agrees to reimburse Sublessor for all expenses
reasonably incurred by Sublessor, including without limitation, the
attorney's fees of Sublessor. Sublessee hereby agrees to indemnify and
hold harmless and defend Sublessor from and against any and all
damages, claims, and liabilities to others resulting or allegedly
resulting from any action or proceeding taken or instituted by
Sublessee (or by Sublessor at Sublessee's request) pursuant to this
section whether or not Sublessor joins in the same.
13. Each of Sublessee and Sublessor hereby represents and warrants to the
other that it has not dealt with any broker or agent in connection with
this Sublease other than McCall & Almy and Trammell Crow Company.
Sublessor shall be responsible for the payment of fees to such brokers.
Sublessor agrees that McCall & Almy's fee, equal to $4.00 per rentable
square foot of the Subleased Premises, shall be paid as follows: 50%
upon the execution of this Sublease and 50% on the Rent Commencement
Date. Each of Sublessee and Sublessor agrees to indemnify and hold
harmless the other against any claim by any broker or agent arising out
of a breach of their respective representations and warranties in this
Section 13.
14. This Sublease, together with those provisions of the Master Lease
applicable hereto, contains all of the covenants, agreements, terms,
provisions, conditions, warranties and understandings relating to the
leasing of the Subleased Premises and Sublessor's obligations in
connection therewith, and neither Sublessor nor any agent or
representative of Sublessor has made or is making, and Sublessee in
executing and delivering this Sublease is not relying upon, any
warranties, representations, promises or statements whatsoever, except
to the extent expressly set forth in this Sublease. The failure of
Sublessee or Sublessor to insist in any instance upon the strict
keeping, observance or performance of any covenant, agreement, term,
provision or condition of this Sublease or to exercise any election
herein contained shall not be construed as a waiver or relinquishment
for the future of such covenant, agreement, term, provision, condition
or election, but the same shall continue and remain in full force and
effect. No waiver or modification of any covenant, agreement, term,
provision or condition of this Sublease shall be deemed to have been
made unless expressed in writing and signed by Sublessee and Sublessor,
provided that Sublessor may amend the Master Lease as long as any such
amendment does not have a material adverse effect on Sublessee's rights
and obligations hereunder and provided that Sublessor delivers copies
of such amendments to Sublessee reasonably promptly after execution
thereof. No surrender of possession of the Subleased Premises or of any
part thereof or of any remainder of the term of this Sublease shall
release Sublessee from any of its obligations hereunder unless accepted
by Sublessor in writing. The receipt and retention by Sublessor of
monthly base rent or additional rent from anyone other than Sublessee
shall not be deemed a waiver of the breach by Sublessee of any
covenant, agreement, term or provision of this Sublease, or as the
acceptance of such other person as a tenant, or as a release of
Sublessee from the further keeping, observance or performance by
Sublessee of the covenants, agreements, terms, provisions and
conditions herein contained. The receipt and retention by Sublessor of
monthly base rent or additional rent with knowledge of the breach of
any covenant, agreement, term, provision or condition herein contained
shall not be deemed a waiver of such breach.
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15. The obligations of this Sublease shall bind and benefit the successors
and permitted assigns of the parties with the same effect as if
mentioned in each instance where a party hereto is named or referred
to.
16. All notices to Sublessor shall be sent to Arthur D. Little, Inc., 20
Acorn Park, Cambridge, MA 02140, Attn: Jose Bairos; all notices to
Sublessee (i) sent prior to the Term Commencement Date shall be sent to
Primix Solutions Inc., One Arsenal Marketplace, Watertown,
Massachusetts 02472, Attn: Chief Financial Officer, and (ii) shall be
sent on or after the Term Commencement Date to the Subleased Premises,
or to such other address and attention as either party shall notify the
other in writing.
17. Sublessee shall have the non-exclusive right to use 207 parking spaces
in the parking area serving the Subleased Premises at no extra charge.
Signage for Sublessee, at Sublessee's sole cost and expense, shall be
located in the first floor lobby directory, the third and fourth floor
directories, and on Sublessee's entrance doors. All such signage shall
be building standard or shall be approved in advance by Sublessor and
Master Lessor. In the event that Sublessor causes a so-called monument
sign to be constructed for use by (a) two or more occupants by the
Building or (b) one occupant renting less rentable area than the
rentable area of the Subleased Premises, Sublessor shall make available
to Sublessee at Sublessee's sole cost and expense, the right to use an
area on such monument sign containing approximately 19.857% of the
total useable area of such sign; provided, in any event, that such use
shall be in a manner approved in advance by Sublessor and Master
Lessor.
18. Sublessor shall use commercially reasonable good faith efforts to
obtain from the Master Lessor and any of its lenders subordination,
non-disturbance and attornment agreements for the benefit of Sublessee.
Sublessee acknowledges that Master Lessor and such lenders are under no
obligation to provide such agreements to Sublessee, and that any
failure of Sublessor to procure such agreements on behalf of Sublessee
shall not constitute a default by Sublessor of this Sublease.
19. Provided that, at the time of exercise, (i) this Sublease is still in
full force and effect, (ii) no default of Sublessee shall have occurred
and be continuing beyond any applicable notice and cure periods, and
(iii) Sublessee shall not have Transferred any portion of the Subleased
Premises, Sublessee shall have the right and option to extend the term
of this Sublease for one extended term of approximately ten (10) years
and five (5) months (based on an anticipated Term Commencement Date of
August 1, 2000) (the "Extended Term"). The Extended Term shall commence
on the day immediately succeeding the expiration date of the Initial
Term and shall end on the day immediately preceding the last day of the
Initial Term of the Master Lease (currently anticipated to be December
31, 2020). Sublessee shall exercise such option to extend by giving
written notice to Sublessor of its desire to do so not later than
twelve (12) months prior to the expiration date of the Initial Term of
this Sublease. The giving of such notice of extension by Sublessee
shall, automatically extend the term of this Sublease for the
applicable Extended Term, and no instrument of renewal or extension
need be executed. In the event that Sublessee fails to give such notice
to Sublessor, this Sublease shall automatically terminate at the end of
the initial term and Sublessee shall have no further
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option to extend the term of this Sublease. The Extended Term shall be
on the same terms and conditions of this Sublease except the base rent
for the Extended Term shall be the greater of (a) the base rent due for
the last year of the initial term and (b) the Fair Market Rental Value.
For purposes of this Section 19, the term "Fair Market Rental Value"
shall mean the market rental value per year for the Subleased Premises
for the Extended Term as of the commencement of the Extended Term, as
agreed by Sublessor and Sublessee, on a triple net basis, and otherwise
on the terms and conditions set forth in this Sublease. If the parties
are unable to reach agreement thereon within thirty (30) days after the
giving of such notice of extension, then the Fair Market Rental Value
shall be determined in accordance with the procedures set forth in the
second paragraph of Section B. of Exhibit M to the Master Lease.
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the
date first set forth above.
Sublessor:
ARTHUR D. LITTLE, INC.
By:______________________________
Name:
Title:
Sublessee:
PRIMIX SOLUTIONS INC.
By:______________________________
Name:
Title:
<PAGE>
EXHIBIT C
IRREVOCABLE STANDBY LETTER OF CREDIT
__________________, 2000
[SUBLESSOR]
__________________
__________________
__________________
Ladies and Gentlemen:
We hereby establish our irrevocable standby letter of credit in your
favor by order and for account of [__________________ ], for a sum or sums not
exceeding in all [$__________________U.S. DOLLARS].
This credit is available against presentation of sight draft(s) drawn
on [__________________BANK] by [SUBLESSOR].
This letter of credit shall be automatically extended for an additional
period of one year from the present or each future expiration date unless we
have notified you in writing, not less than thirty (30) days before such
expiration date, that we elect not to renew this letter of credit.
Notwithstanding the giving of such notice, you are authorized to draw hereunder
during such thirty (30) day period by means of your sight draft drawn on us.
Drafts drawn hereunder must be marked "Drawn Under __________________
Bank, Credit No.__________________ dated __________ , 2000".
We engage with you that your draft(s) drawn hereunder and in compliance
with the terms of this credit will be duly honored by us on delivery of
documents as specified, if presented at this office on or before ______________,
2000 or any automatically extended date set forth herein.
This letter of credit is transferable. If at any time you desire to
transfer your interest hereunder, kindly furnish us with instructions for
transfer and return this letter of credit to us for appropriate endorsement.
This letter of credit is subject to the Uniform Customs and Practice
for Documentary Credits (1983 revision) International Chamber of Commerce,
Publication No. 400.
Very truly yours,
[____________________________]
Authorized Signature
<PAGE>
EXHIBIT D
CONSTRUCTION TERMS AND SCHEDULE
1. Sublessee Improvement Plans. No later than June 1, 2000, Sublessee
simultaneously shall submit to Sublessor and Master Lessor complete, finished
and detailed plans for the Sublessee Improvements which shall include
architectural, mechanical, electrical and plumbing drawings and specifications
to include Sublessee's partition layout, critical dimensions, structural loading
requirements, ceiling system, power and lighting systems (including schedules
and specifications for lighting, special power and special cooling systems),
voice/data systems, and other special equipment requirements (including special
fire protection/preaction systems), doors (including hardware and keying
schedule), glass partitions, millwork, and finish schedules, together with all
supporting information and delivery schedules. Such plans must be sufficient for
Sublessor to obtain building permits with respect to the work described therein
(the "Permit Plans"). Within ten (10) business days after receipt of the Permit
Plans, Sublessor and Master Lessor shall issue comments on such plans to
Sublessee. Promptly upon receipt of any such comments, Sublessee shall, within
ten (10) business days, revise such plans to address Sublessor's and Master
Lessor's comments. Sublessor and Master Lessor shall approve or disapprove the
corrected Permit Plans within ten (10) business days from receipt thereof. Upon
Sublessor's and Master Lessor's approval, the Permit Plans shall become the
"Sublessee Improvement Plans."
2. CONSTRUCTION SCHEDULE. Sublessee acknowledges that completion of the
Sublessee Improvements by August 4, 2000 (the "Scheduled Term Commencement
Date") is contingent upon Sublessee delivering final and complete Sublessee
Improvement Plans no later than June 1, 2000.
3. LONG LEAD TIME ITEMS. At the time Sublessee submits the Permit Plans to
Sublessor and Master Lessor, Sublessee shall identify those items which will be
incorporated into the Sublessee Improvements that require eight (8) or more
weeks to obtain and install ("Long Lead Time Items"). In connection with its
review of the Permit Plans and the corrected Permit Plans, Sublessor shall
advise Sublessee as to any additional items which constitute Long Lead Time
Items. Sublessor shall not be responsible for any delays in completion of the
Sublessee Improvements which relate to delivery of Long Lead Time Items.
4. CONCLUSIVENESS OF SUBLESSOR'S PERFORMANCE. Notwithstanding any
provision of this Sublease to the contrary, except to the extent to which
Sublessee shall have given Sublessor notice, not later than the thirtieth (30th)
calendar day after the Term Commencement Date, of respects in which Sublessor
has not completed the Sublessee Improvements in accordance with the terms of the
Sublessee Improvement Plans, excluding punch list items specified within said 30
day period, Sublessee shall have no claim that Sublessor has failed to complete
the Sublessee Improvements. With respect to punch list items, any such notice
shall be given no later than the end of the 30th calendar day after the punch
list items have been completed.
