<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 1999
Commission File Number 0-24339
INKTOMI CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3238130
(State of Incorporation) (I.R.S. Employer Identification No.)
4100 EAST THIRD AVENUE
FOSTER CITY, CALIFORNIA 94404
(Address of principal executive offices)
Registrant's telephone number, including area code: (650) 653-2800
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes /X/ No ____
The number of shares outstanding of the Registrant's Common Stock as of
January 31, 2000 was 108,720,739.
<PAGE>
INKTOMI CORPORATION
FORM 10-Q
FOR THE QUARTER ENDED DECEMBER 31, 1999
TABLE OF CONTENTS
PAGE
PART I FINANCIAL INFORMATION:
Item 1. Financial Statements (unaudited)
a) Condensed Consolidated Statements of Operation for the
three months ended December 31, 1999 and 1998..... 2
b) Condensed Consolidated Balance Sheets as of December
31, 1999 and September 30, 1999................... 3
c) Condensed Consolidated Statements of Cash Flows for the
three months ended December 31, 1999 and 1998..... 4
d) Notes to Unaudited Condensed Consolidated Financial
Statements........................................ 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations................ 8
PART II OTHER INFORMATION:
Item 6. Exhibits and Reports on Form 8-K....................... 21
Signature................................................................ 22
This report on Form 10-Q contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, and Section 21E of the
Securities Exchange Act of 1934. When used in this report, the words
"anticipate," "believe," "expect," "intend," "may," "will" and similar
expressions identify forward-looking statements. Forward-looking statements in
this report include, but are not limited to, those relating to the general rapid
expansion of our business, including the expansion of our network products and
portal services, our ability to develop multiple applications, our planned
introduction of new products and services, the possibility of acquiring
complementary businesses, products, services and technologies and our
development of relationships with providers of leading Internet technologies.
Although we believe that our plans, intentions and expectations reflected in
these forward-looking statements are reasonable, we can give no assurance that
these plans, intentions or expectations will be achieved. Actual results,
performance or achievements could differ materially from those contemplated,
expressed or implied by the forward-looking statements contained in this report.
Important factors that could cause actual results to differ materially from our
forward-looking statements are set forth in this report, including under the
heading "Factors Affecting Operating Results" contained in Item 2, "Management's
Discussion and Analysis of Financial Condition and Results of Operations." These
factors are not intended to represent a complete list of the general or specific
factors that may affect us. Other factors, including general economic factors
and business strategies, may be significant, presently or in the future, and the
factors set forth in this report may affect us to a greater extent than
indicated.
Inktomi was incorporated in California in February 1996 and reincorporated
in Delaware in February 1998. In this report, "Inktomi," "the Company," "our,"
"us," "we" and similar expressions refer to Inktomi Corporation and its
subsidiaries.
1
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INKTOMI CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATION
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
---------------------------------------
FOR THE THREE
MONTHS ENDED
DECEMBER 31,
---------------------------------------
1999 1998
---------------------------------------
<S> <C> <C>
Revenues
Network products $ 22,137 $ 5,575
Portal services 13,990 5,264
------------------ ------------------
Total revenues 36,127 10,839
Operating expenses
Cost of revenues 5,921 2,295
Sales and marketing 22,710 10,347
Research and development 11,016 5,701
General and administrative 2,711 1,641
Acquisition-related costs 3,999 --
------------------ ------------------
Total operating expenses 46,357 19,984
------------------ ------------------
Operating loss (10,230) (9,145)
Other income, net 3,815 664
------------------ ------------------
Net loss $ (6,415) $ (8,481)
================== ==================
Basic and diluted net loss per share $ (0.06) $ (0.09)
================== ==================
Shares used in calculating basic and
diluted net loss per share 107,960 98,346
================== ==================
</TABLE>
See Notes to the Unaudited Condensed Consolidated Financial Statements
2
<PAGE>
INKTOMI CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except per share data)
<TABLE>
<CAPTION>
-------------------- --------------------
DECEMBER 31, SEPTEMBER 30,
1999 1999
-------------------- --------------------
(Unaudited) (Restated)
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 61,438 $ 85,047
Short-term investments 212,283 216,890
-------------------- --------------------
Total cash, cash equivalents and
short-term investments 273,721 301,937
Accounts receivable, net 26,775 23,352
Prepaid expenses and other current assets 3,806 3,615
-------------------- --------------------
Total current assets 304,302 328,904
Investments in equity securities 271,621 8,180
Property and equipment, net 53,548 43,329
Other assets 2,124 2,137
-------------------- --------------------
Total assets $ 631,595 $ 382,550
==================== ====================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Current portion of notes payable $ 3,444 $ 5,513
Current portion of capital lease obligations 3,299 2,502
Accounts payable 3,452 6,444
Accrued liabilities 15,817 14,421
Deferred revenue 11,963 3,389
------------------- --------------------
Total current liabilities 37,975 32,269
Notes payable 2,893 4,560
Capital lease obligations, less current portion 4,188 3,686
Other liabilities 811 729
------------------- --------------------
Total liabilities 45,867 41,244
Stockholders' equity
Common Stock, $0.001 par value; 300,000
authorized at December 31, 1999 and
September 30, 1999; 108,376 at December 31, 1999
and 107,576 at September 30, 1999 108 108
Additional paid-in capital 427,552 419,558
Deferred compensation and other (3,071) (3,691)
Accumulated other comprehensive income 243,670 1,447
Accumulated deficit (82,531) (76,116)
------------------ -------------------
Total stockholders' equity 585,728 341,306
------------------ --------------------
Total liabilities and stockholders' equity $ 631,595 $ 382,550
================== ====================
</TABLE>
See Notes to the Unaudited Condensed Consolidated Financial Statements
3
<PAGE>
INKTOMI CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
------------------------------------
FOR THE THREE
MONTHS ENDED
DECEMBER 31,
------------------------------------
1999 1998
------------------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (6,415) $ (8,481)
Adjustments to reconcile net loss to net cash
used in operating activities
Depreciation and amortization 4,375 2,285
Amortization of deferred compensation 554 195
Changes in assets and liabilities:
Accounts receivable (3,423) (2,904)
Prepaid expenses and other assets (178) (1,557)
Accounts payable (2,992) 349
Accrued liabilities and other 1,478 1,144
Deferred revenue 8,574 (1,276)
--------------- ----------------
NET CASH PROVIDED BY (USED IN)
OPERATING ACTIVITIES 1,973 (10,245)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment (17,974) (2,820)
Proceeds from sale of equipment 3,380 --
Investments in equity securities, net (21,177) --
Purchases of short term investments, net 4,607 (35,228)
--------------- ------------------
NET CASH USED IN INVESTING ACTIVITIES (31,164) (38,048)
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from notes payable, net of payments (3,736) 537
Payments on obligations under capital
leases, net 1,299 (638)
Proceeds from note receivable 66 527
Proceeds from issuance of Common Stock,
net of issuance costs -- 88,941
Proceeds from exercise of stock options
and warrants 7,994 2,543
---------------- ----------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 5,623 91,910
Effect of exchange rates on cash and cash
equivalents (41) 64
---------------- ----------------
Increase (decrease) in cash and cash equivalents (23,609) 43,681
Cash and cash equivalents at beginning of period 85,047 34,222
----------------- -----------------
Cash and cash equivalents at end of period $ 61,438 $ 77,903
================= =================
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid for interest $ 461 $ 532
================= ==================
Assets acquired under capital leases $ -- $ 5,171
================= ==================
</TABLE>
See Notes to the Unaudited Condensed Consolidated Financial Statements
4
<PAGE>
INKTOMI CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
NOTE 1. BASIS OF PRESENTATION
The accompanying condensed consolidated financial statements include the
accounts of Inktomi Corporation and its wholly owned subsidiaries. All
intercompany accounts and transactions have been eliminated in the accompanying
condensed consolidated financial statements.
Certain prior period balances have been reclassified to conform to the
current period presentation.
In the opinion of management, the condensed consolidated financial
statements reflect all adjustments that are necessary for the fair presentation
of results for the periods shown. The results of operations for such periods are
not necessarily indicative of the results expected for the full fiscal year or
for any future period. These financial statements should be read in conjunction
with our audited consolidated financial statements and notes thereto included in
our annual report on Form 10-K for the year ended September 30, 1999 filed with
the Securities and Exchange Commission on December 29, 1999 and our current
report on Form 8-K dated December 3, 1999.
NOTE 2. ACQUISITION OF WEBSPECTIVE SOFTWARE, INC.
In October 1999, we acquired WebSpective Software, Inc. ("WebSpective"), a
developer of software solutions for content and application distribution,
delivery and management, to supplement our network products offerings. We offer
these software solutions as the Inktomi Content Delivery Suite. The acquisition
of WebSpective was accounted for as a pooling of interests. Accordingly, all
financial information included herein has been restated to reflect the combined
operations of Inktomi and WebSpective. We recorded acquisition-related costs of
approximately $4.0 million in the quarter ending December 31, 1999, primarily
for investment banking fees, accounting, legal and other expenses. WebSpective
revenues from inception through September 30, 1999 were $3.2 million.
WebSpective raised $12.4 million through various stock issuances since its
inception in March 1997, and had net losses from inception to September 30, 1999
of $13.5 million. As of December 31, 1999, approximately $0.7 million in
acquisition-related costs were included in accrued liabilities.
NOTE 3. CALCULATION OF NET LOSS PER SHARE
Shares used in computing basic and diluted net loss per share are based on
the weighted average shares outstanding in each period. The effect of
outstanding stock options and warrants are excluded from the calculation of
diluted net loss per share, as their inclusion would be antidilutive. At
December 31, 1999, options to purchase 17,613,246 shares of Common Stock and
warrants to purchase 2,090,910 shares of Common Stock were outstanding.
<TABLE>
<CAPTION>
--------------------------------
(In thousands except per share amounts) FOR THE THREE MONTHS ENDED
DECEMBER 31,
--------------------------------
1999 1998
--------------------------------
<S> <C> <C>
Net loss $ (6,415) $ (8,481)
============= ============
BASIC AND DILUTED NET LOSS PER SHARE
Shares used in calculating basic and diluted
net loss per share 107,960 98,346
============= ============
Basic and diluted net loss per share $ (0.06) $ (0.09)
============= ============
</TABLE>
5
<PAGE>
NOTE 4. COMPREHENSIVE NET INCOME (LOSS)
Effective December 31, 1998, the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 130, REPORTING COMPREHENSIVE INCOME. SFAS No.
130 established standards for reporting comprehensive income and their
components in a financial statement. Comprehensive income includes foreign
currency translation gains and losses and unrealized gains and losses on equity
securities that have been previously excluded from net income and reflected
instead in stockholders' equity. The components of comprehensive income are as
follows (in thousands):
<TABLE>
<CAPTION>
-----------------------------------
FOR THE THREE MONTHS ENDED
DECEMBER 31,
-----------------------------------
1999 1998
--------------- ---------------
<S> <C> <C>
Net loss $ (6,415) $ (8,481)
Unrealized gain (loss) on
available-for-sale securities 242,264 (240)
Foreign currency translation
gains (losses) (41) 64
--------------- ---------------
Comprehensive net income (loss) $ 235,808 $ (8,657)
=============== ===============
</TABLE>
NOTE 5. SEGMENT INFORMATION
Effective September 30, 1999, the Company adopted SFAS No. 131, DISCLOSURES
ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION. SFAS No. 131
established standards for reporting information about operating segments in
annual financial statements and requires selected information about operating
segments in interim financial reports issued to stockholders. It also
established standards for related disclosures about products and services, and
geographic areas. Operating segments are defined as components of an enterprise
about which separate financial information is available that is evaluated
regularly by the chief operating decision maker, or decision making group, in
deciding how to allocate resources and in assessing performance. Our chief
operating decision-maker is our Chief Executive Officer.
We have two reportable operating segments: the network products division
and the portal services division. The network products division consists of
Inktomi Traffic Server, Content Delivery Suite and associated applications. The
portal services division consists of Inktomi Search Engine, Inktomi Directory
Engine and Inktomi Shopping Engine.
We evaluate performance and allocate resources based on a variety of
factors, including revenues, operating profit, market potential, customer
commitments and strategic direction. Acquisition-related costs are not included
in management's evaluation of performance by the operating divisions, as they
are primarily organizational in nature. The accounting policies of the
reportable segments are the same as those described in the summary of
significant accounting policies. We do not track assets by operating segments.
Our reportable segments are divisional units that are organized primarily
by technology. The reportable segments are each managed separately because they
offer and distribute distinct technologies and services with different methods
of delivery and customer bases.
6
<PAGE>
Financial information about segments (in thousands):
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE THREE MONTHS ENDED
DECEMBER 31, 1999 DECEMBER 31, 1998
--------------------------------------------- --------------------------------
ACQUISITION
NETWORK PORTAL RELATED NETWORK PORTAL
PRODUCTS SERVICES COSTS TOTAL PRODUCTS SERVICES TOTAL
-------- -------- ----------- ----- -------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues.................. $ 22,137 $ 13,990 $ -- $ 36,127 $ 5,575 $ 5,264 $ 10,839
Operating profit (loss)... $ 909 $(7,140) $(3,999) $(10,230) $(4,570) $(4,575) $ (9,145)
</TABLE>
One customer exceeded 10% of all network products revenues, and two other
customers each exceeded 10% of network products revenues in the quarters ended
December 31, 1999 and 1998, respectively. One customer exceeded 10% of all
portal services revenues, and two other customers each exceeded 10% of portal
services revenues in the quarters ended December 31, 1999 and 1998,
respectively.
NOTE 6. RECENT ACCOUNTING PRONOUNCEMENTS
In April 1998, the American Institute of Certified Public Accountants
("AICPA") issued Statement of Position ("SOP") No. 98-1, ACCOUNTING FOR THE
COSTS OF COMPUTER SOFTWARE DEVELOPED OR OBTAINED FOR INTERNAL USE. SOP No. 98-1
provides guidance for determining whether computer software is used for internal
purposes and on how to account for the proceeds of computer software originally
developed or obtained for internal use and then subsequently sold to the public.
It also provides guidance on capitalization of the costs incurred for computer
software developed or obtained for internal use. We believe that the adoption of
SOP No. 98-1 has not had a material impact on our consolidated financial
statements. SOP No. 98-1 is effective for our consolidated financial statements
for the current fiscal year.
In June 1998, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 133, ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES. In June
1999, the FASB issued SFAS No. 137, ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND
HEDGING ACTIVITIES - DEFERRAL OF THE EFFECTIVE DATE OF FASB STATEMENT NO. 133 -
AN AMENDMENT OF FASB STATEMENT 133. SFAS No. 133, is effective for fiscal years
beginning after June 15, 2000 and requires that all derivative instruments be
recorded on the balance sheet at fair value. Changes in the fair value of
derivatives are recorded each period in current earnings or other comprehensive
income, depending on whether a derivative is designated as part of a hedge
transaction and the type of hedge transaction. The ineffective portion of all
hedges will be recognized in earnings. We are currently assessing the impact of
this statement. We have not held any derivative instruments or participated in
any hedging activities to date.
NOTE 7. STOCK SPLITS
On December 3, 1999, we announced a two-for-one stock split (in the form of
a 100% stock dividend) of its Common Stock. Stockholders of record on December
14, 1999 were issued a certificate on December 30, 1999 representing one
additional share of Common Stock for each share of Common Stock held on December
14, 1999.
On December 29, 1998, our Board of Directors approved a two-for-one stock
split (in the form of a 100% stock dividend) of its Common Stock. Stockholders
of record on January 12, 1999 were issued a certificate on January 27, 1999
representing one additional share of Common Stock for each share of Common Stock
held on January 12, 1999.
Historical weighted average shares outstanding and loss per share amounts
have been restated to reflect all stock splits and pooling of interests with
acquired companies.
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Except for historical information, the discussion in this report contains
forward-looking statements that involve risks and uncertainties. Our actual
results could differ materially from those anticipated in the forward-looking
statements as a result of a number of factors, including the risks described in
the section titled "Factors Affecting Operating Results" set forth below.
OVERVIEW
We were formed in February 1996 to develop and market scalable software
applications designed to significantly enhance the performance and intelligence
of large-scale networks, particularly the Internet. Our applications fall into
two broad categories: network products and portal services.
Network products revenues are composed of license, consulting, and support
and upgrade fees in connection with Traffic Server, Content Delivery Suite and
Media IXT. License fees are based on the number of CPUs running the software and
are generally recognized upon shipment of the software. Consulting, support and
upgrade fees are recognized ratably over the service period.
Portal services revenues are composed of revenues generated through our
search engine, directory engine and shopping engine. We generate revenues from
our search engine and directory engine through a variety of contractual
arrangements, which include per-query search fees, search service hosting fees,
advertising revenue, license fees and maintenance fees. Per-query, hosting and
maintenance fees revenues are recognized in the period earned, and advertising
revenues are recognized in the period that the advertisement is displayed. To
date, revenues from the directory engine have not been significant. We are still
refining the business model for our shopping engine. Our contracts currently
provide for payments to Inktomi consisting of transaction fees from
participating online merchants and per-query search fees, advertising revenue
and license, support and maintenance fees from Internet portals and other web
site customers. To date, the revenues from online shopping have consisted
primarily of license fees and non-recurring engineering fees. We believe that
revenues from online shopping will increasingly include transaction fees from
online merchants in the future. Revenues from online shopping are expected to be
modest for the next few quarters.
The network products segment generated an operating profit of $0.9 million
in the quarter ended December 31, 1999, excluding acquisition-related costs. The
portal services segment generated an operating loss of $7.1 million in the
quarter ended December 31, 1999. For additional segment information, refer to
Note 5, SEGMENT INFORMATION, included in the notes to the condensed consolidated
financial statements, as presented earlier in this Form 10-Q.
We have not achieved profitability on a quarterly or annual basis, although
the network products division and the search engine and directory business units
in combination were modestly profitable in the quarter ended December 31, 1999.
We currently believe that we will achieve profitability on a quarterly basis
during the latter half of fiscal 2000. However, we expect to continue to incur
significant sales and marketing, product development and administrative expenses
across all lines of business, and in particular in our shopping engine business
as we continue to develop and enhance our shopping technology, solidify and
refine the business model, and initiate new sales and marketing efforts. As a
result, we will need to significantly increase revenues over historical levels
to achieve and maintain profitability.
8
<PAGE>
RESULTS OF OPERATIONS
REVENUES
Total revenues were $36.1 million in the quarter ended December 31, 1999,
an increase of $25.3 million or 233% over revenues of $10.8 million in the
quarter ended December 31, 1998 and a 33% sequential increase over revenues of
$27.1 million in the quarter ended September 30, 1999. For the quarter ended
December 31, 1999, one customer exceeded 10% of total revenues, and for the
quarter ended December 31, 1998, two other customers each exceeded 10% of total
revenues.
Network products revenues totaled $22.1 million in the quarter ended
December 31, 1999, an increase of $16.5 million or 297% over revenues of $5.6
million in the quarter ended December 31, 1998. Most of these revenues
represented new Traffic Server license sales. One customer exceeded 10% of all
network products revenues, and two other customers each exceeded 10% of all
network products revenues in the quarters ended December 31, 1999 and 1998,
respectively.
Portal services revenues totaled $14.0 million in the quarter ended
December 31, 1999, an increase of $8.7 million or 166% over revenues of $5.3
million in the quarter ended December 31, 1998. Most of the increase was the
result of revenues generated from new search and shopping customers. One
customer exceeded 10% of all portal services revenues, and two other customers
each exceeded 10% of portal services revenues in the quarters ended December 31,
1999 and 1998, respectively.
EXPENSES
COST OF REVENUES
Cost of revenues consists primarily of expenses related to the operation of
our search and shopping services, which are primarily depreciation, network
charges, and royalties for our Media IXT application. Cost of revenues was $5.9
million for the quarter ended December 31, 1999, an increase of $3.6 million or
158% from $2.3 million in the comparable period of fiscal 1998. The increase was
due primarily to increased depreciation and network charges resulting from
continued expansions of our data centers in California and the establishment of
a data center in the United Kingdom during fiscal 1999. We expect cost of
revenues to increase substantially in absolute dollars in the next few quarters
due primarily to anticipated expanded cluster operation costs and increased
royalties for our Media IXT application.
SALES AND MARKETING EXPENSES
Sales and marketing expenses consist of personnel and related costs for our
direct sales force and marketing staff and marketing programs, including trade
shows and advertising. Sales and marketing expenses were $22.7 million for the
quarter ended December 31, 1999, an increase of $12.4 million or 119% from $10.3
million in the comparable period in fiscal 1998. This increase was primarily due
to an increase in the number of sales and marketing personnel in the United
States and overseas, expenses incurred in connection with attendance at trade
shows and additional marketing programs, and increased sales commissions. We
expect that sales and marketing expenses will increase substantially in absolute
dollars over the next few quarters as we hire additional sales and marketing
personnel, initiate additional marketing programs to support each of our product
lines, and establish sales offices in additional domestic and international
locations.
9
<PAGE>
RESEARCH AND DEVELOPMENT EXPENSES
Research and development expenses consist primarily of personnel and
related costs for our development and technical support efforts. Research and
development expenses were $11.0 million in the quarter ended December 31, 1999,
an increase of $5.3 million or 93% over expenses of $5.7 million in the
comparable period in fiscal 1998. The increase was primarily due to an increase
in the number of research and development personnel to support expansion of our
search engines and network products businesses, online shopping development, and
increases in quality assurance, technical support and technical publications
personnel. We believe significant investment in research and development is
essential to our future success and expect that research and development
expenses will increase in absolute dollars in future periods. We have not
capitalized any software development expenses to date.
GENERAL AND ADMINISTRATIVE EXPENSES
General and administrative expenses consist primarily of personnel and
related costs for general corporate functions, including finance, accounting,
human resources, facilities and legal. General and administrative expenses
totaled $2.7 million in the quarter ended December 31, 1999, an increase of $1.1
million or 65% over expenses of $1.6 million in the comparable period in fiscal
1998. This increase was due primarily to an increase in the number of general
and administrative personnel, increased accounting and legal costs incurred in
connection with business activities and purchases related to our new corporate
headquarters in Foster City, California.
ACQUISITION-RELATED COSTS
In October 1999, we acquired WebSpective Software, Inc. ("WebSpective"), a
developer of software solutions for content and application distribution,
delivery and management, to supplement our network products offerings. The
acquisition of WebSpective was accounted for as a pooling of interests.
Financial results for historical periods were restated to reflect the combined
operations beginning in the quarter ended December 31, 1999. We recorded
acquisition-related costs of approximately $4.0 million in the quarter ending
December 31, 1999, primarily for investment banking fees, accounting, legal and
other expenses. As of December 31, 1999, $0.7 million in acquisition-related
costs were included in accrued liabilities.
OTHER INCOME, NET
Other income, net includes income on our cash, cash equivalents and
short-term investments, less expenses related to our debt and capital lease
obligations. Other income, net totaled $3.8 million of income in the quarter
ended December 31, 1999 compared to an other income, net of $0.7 million in the
comparable period in fiscal 1998, an increase of $3.1 million or 475%. Most of
this increase was generated from interest income on proceeds from our August
1999 and November 1998 public offerings, and was partially offset by interest
charges on debt and capital lease obligations.
NET LOSS
We recorded a net loss of $6.4 million or $0.06 per share in the quarter
ended December 31, 1999, compared to $8.5 million or $0.09 per share in the
quarter ended December 31, 1998. The results for the quarter ended December 31,
1999 include nonrecurring acquisition-related costs of $4.0 million incurred in
connection with the acquisition of WebSpective. Excluding these
acquisition-related costs, we recorded a net loss of $2.4 million or $0.02 per
share in the quarter ended December 31, 1999.
LIQUIDITY AND CAPITAL RESOURCES
Cash, cash equivalents and short-term investments totaled $273.7 million at
December 31, 1999, down from $301.9 million at fiscal year-end September 30,
1999. Most of this decrease came from our investments in equity securities and
the purchase of property and equipment, offset by increased cash collections
resulting from additional accounts receivable collection initiatives.
10
<PAGE>
We had an additional $271.6 million in investments in equity securities at
December 31, 1999. In accordance with generally accepted accounting principles,
we carry the value of our investments at fair market value with any change from
cost or prior value as an adjustment to stockholders' equity. All of our
investments in equity securities are comprised of strategic investments in
Internet companies, the most significant portion being InterNAP Network Services
Corporation, in which we invested $20 million in October 1999. Internet stock
values are volatile and this balance may fluctuate significantly in the future.
We generated $2.0 million in cash from operations in the quarter ended
December 31, 1999. This compares to $10.2 million used in operations in the
comparable period in fiscal 1998. The increase in cash from operations was
primarily due to a decrease in our net loss from $8.5 million to $6.4 million in
the first quarters of fiscal 1999 and fiscal 2000, respectively, increased cash
collections resulting from additional accounts receivable collection
initiatives, as well as increases in depreciation and amortization and deferred
revenue, offset by a reduction in accounts payable in the quarter ended December
31, 1999.
We have made significant investments in property and equipment since
inception. These investments consist largely of computer servers, workstations,
networking equipment and leasehold improvements associated with our new
corporate headquarters in Foster City, California. We invested $18.0 million and
$2.8 million, respectively, in the quarters ended December 31, 1999 and 1998
primarily to further expand our Internet search engine service capacity, to
expand cluster operations, to launch and support our online shopping business
and for leasehold improvements. Approximately $3.4 million of the property and
equipment investments made were part of a sale-leaseback transaction in which we
sold furniture and related items to a leasing company and leased the furniture
and related items under new capital lease agreements.
From time to time, we have used debt and leases to partially finance
capital purchases. At December 31, 1999, we had $13.8 million in total loans and
capitalized lease obligations outstanding. The loans are collateralized by the
underlying assets of the Company, and each capitalized lease is collateralized
by its respective underlying equipment purchased through the lease agreements.
Approximately $6.3 million of our debt at December 31, 1999 was in the form of
bank loans. The bank loans include certain covenants requiring minimum
liquidity, tangible net worth and profitability over time.
In the quarters ended December 31, 1999 and 1998, we raised $8.0 million
and $2.6 million from stock option exercises and employee stock purchase plan
purchases, respectively.
Our capital requirements depend on numerous factors, including market
acceptance of our products, the resources we devote to developing, marketing,
selling and supporting our products, the timing and extent of establishing
international operations, the extent and timing of investments, acquisition
costs, and other factors. We expect to devote substantial capital resources to
hire and expand our sales, support, marketing and product development
organizations, to expand marketing programs, to establish additional facilities
worldwide and for other general corporate activities.
YEAR 2000 COMPLIANCE
Many currently installed computer systems and software products are coded
to accept only two digit entries in the date code field. As a result, software
that records only the last two digits of the calendar year may not be able to
distinguish whether "00" means 1900 or 2000. This may result in software
failures or the creation of erroneous results.
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We utilize a significant number of computer software programs and operating
systems across our company. These programs and operating systems include
proprietary and third party applications used in our Traffic Server network
cache product, our Content Delivery Suite software, our search, directory and
online shopping services, and our internal systems. To the extent that these
applications are unable to appropriately process dates in the calendar year
2000, some level of modification or replacement would be necessary.
We have reviewed the code and tested our Traffic Server network cache
product, our Content Delivery Suite software, our search, directory and online
shopping services, and our internal systems. Based on these efforts, we believe
that current versions of our products, services and systems correctly function
with year 2000 date codes. Following the change to calendar year 2000, we have
not experienced any material malfunctions in our internal systems and services,
and have not received any formal notice from any of our customers that they
experienced any problems with our software or services related to the calendar
change.
The costs incurred to perform our assessment of our year 2000 readiness
have not been material, and have consisted primarily of the cost of our project
manager and labor costs for our quality assurance, software development and
information technology personnel.
Despite investigation and testing by us and our partners, our software
products, and the underlying systems, services and protocols running our
products may contain errors or defects associated with Year 2000 date functions.
We are unable to predict to what extent our business may be affected if our
software or the systems that operate in conjunction with our software experience
a material Year 2000 failure that surfaces some time in the future. Known or
unknown errors or defects that affect the operation of our software could result
in delay or loss of revenue, interruption of search or shopping services,
cancellation of customer contracts, diversion of development resources, damage
to our reputation, increased service and warranty costs, and litigation costs,
any of which could adversely affect our business, financial condition and
results of operations.
FACTORS AFFECTING OPERATING RESULTS
Interested persons should carefully consider the risks described below in
evaluating Inktomi. Additional risks and uncertainties not presently known to us
or that we currently consider immaterial may also impair our business
operations. If any of the following risks actually occur, our business,
financial condition or results of operations could be materially adversely
affected. In that case, the trading price of our Common Stock could decline.
WE HAVE A HISTORY OF OPERATING LOSSES AND NEED TO GENERATE INCREASING REVENUES
TO ACHIEVE AND MAINTAIN PROFITABILITY.
Inktomi was founded in February 1996 and has a limited operating history.
As of December 31, 1999, we had an accumulated deficit of $82.5 million and have
not achieved profitability. We expect to continue to incur significant sales and
marketing, product development and administrative expenses across all lines of
our business, and in particular in our shopping engine business as we continue
to develop and enhance our shopping technology, solidify and refine the business
model, and initiate new sales and marketing efforts. As a result, we will need
to generate significant revenues to achieve and maintain profitability. Although
our revenues have grown in recent quarters, we cannot be sure that this growth
will continue at the same rate or that we will achieve sufficient revenues for
profitability. If we do achieve profitability, we cannot be sure that we can
sustain or increase profitability on a quarterly or annual basis in the future.
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OUR BUSINESS SUBSTANTIALLY DEPENDS UPON THE SUCCESS OF OUR TRAFFIC SERVER
PRODUCT AND CONTENT DISTRIBUTION SUITE.
Our future growth substantially depends on the commercial success of our
Traffic Server network cache product and our Content Distribution Suite. We are
targeting several market segments for these products, including
telecommunications carriers, Internet service providers, Internet hosting
providers, OEM customers, large enterprise customers and content providers. Our
ability to generate substantial and sustained revenues from these products is
dependent upon achieving sales penetration in each of these market segments and
significantly increasing the number of new and repeat customer transactions. The
market for large-scale network caching and content distribution is in its early
stages, and we are not sure our target customers will widely adopt and deploy
these technologies throughout their networks. Even if they do so, they may not
choose our network products, because they do not include the features they
require, they wish to outsource content delivery services to a third party
vendor rather than directly implement caching in their networks, or for
technical, cost, support or other reasons.
OUR BUSINESS WOULD BE HARMED IF CUSTOMERS CHOOSE NOT TO USE OR PROMOTE OUR
SEARCH AND DIRECTORY SERVICES.
Revenues from our search and directory services result primarily from the
number of end-user searches that are processed by our search engine and
directory engine and the level of advertising revenue generated by our Internet
portal and other web site customers. Our agreements with customers do not
require them to direct end-users to our search or directory services or to use
our search or directory services exclusively or at all. Accordingly, revenues
from search and directory services are highly dependent upon the willingness of
customers to promote and use the search and directory services we provide, the
ability of our customers to attract end-users to their online services, the
volume of end-user searches that are processed by our search engine and
directory engine, and the ability and willingness of customers to sell
advertisements on the Internet pages viewed by end-users. Some of our customers
have selected competing search and directory services to operate in combination
with our services, which has reduced the number of queries available for us to
serve and may erode future revenue growth opportunities. The technological
barriers for customers to implement additional services or to replace our
services are not substantial. The market for Internet search is beginning to
mature. In order for us to continue to grow revenues from our search engine
business at historical rates, we will need to continue to continue to sign up an
increasing number of new customers, develop and deliver new search services and
features to existing and future customers, establish deeper strategic
relationships with our customers and broaden our market opportunities.
THE ONLINE SHOPPING MARKET IS RAPIDLY EVOLVING AND OUR SUCCESS IS DEPENDENT ON
MANY FACTORS OUTSIDE OF OUR CONTROL.
The online shopping market is in a rapid state of evolution with a wide
variety of online companies expending substantial funds to develop brand
recognition and large bases of end-user consumers. We are still refining the
business model for our Internet shopping engine in light of this rapidly
changing business environment. Many of our portal customers are new to online
commerce and have limited experience in promoting shopping transactions through
their web sites. The success of our shopping engine will largely depend on a
variety of factors, many of which are outside of our control. These factors
include:
- our ability to establish and maintain strong relationships with
customers and online merchants;
- increasing end-user traffic and transactions across our customers' web
sites;
- our ability to assemble a robust and varied database of products of
interest to end-user consumers;
- the ability and willingness of our customers to promote our shopping
services on their web sites;
- the dollar volume of online purchases made by end users of our
customers' web sites; and
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- the level of advertising revenues generated by customers.
We have made significant investments in our online shopping business and
expect to continue to do so. These investments have been and will continue to be
required in advance of generating revenues, which have consisted primarily of
license fees and non-recurring engineering fees to date and are expected to be
modest for the next few quarters. We cannot be sure that our entry into the
online shopping business will be successful.
WE HAVE EXPERIENCED SOME DIFFICULTIES AND DELAY IN IMPLEMENTING OUR ONLINE
SHOPPING SERVICE.
We launched the first commercial version of our Internet shopping engine in
mid-1999. Our shopping engine is designed to collect and organize vast amounts
of electronic information from online merchants and publishers of comparative
product information. The shopping engine is also designed to track and confirm
purchases made by end-users of our customers' services and to generate invoices
for our online merchants to pay revenue-sharing amounts to us. These are highly
complex tasks. We have experienced some difficulty and delays in implementing
our shopping service, stabilizing and optimizing our product database,
consistently tracking end user consumer purchases and rolling out new features.
We anticipate that resolving current technological challenges, developing
required features to meet current customer commitments, and developing and
deploying new features will require significant additional expenses and
management and development resources.
THE MARKETS IN WHICH WE OPERATE ARE HIGHLY COMPETITIVE AND WE MAY BE UNABLE TO
COMPETE SUCCESSFULLY AGAINST NEW ENTRANTS AND ESTABLISHED COMPANIES WITH GREATER
RESOURCES.
We compete in markets that are new, intensely competitive, highly
fragmented and rapidly changing. We have experienced and expect to continue to
experience increased competition from current and potential competitors in each
of our market segments, many of which are bringing new solutions to market,
establishing technology alliances and OEM relationships with larger companies,
and focusing on specific segments of our target markets. In some cases, our
competitors are well-funded early-stage companies that are focused in the short
term on building customer bases and name recognition in the market. This may
cause some price pressure on our products and services in the future.
We directly compete against several companies in the network cache and
content distribution market, including Akamai, CacheFlow, Cisco Systems,
InfoLibria, Microsoft, Netscape, Network Appliance, Novell and Spyglass. We also
compete against freeware caching solutions including CERN, Harvest and Squid. We
are aware of numerous other major software developers as well as smaller
entrepreneurial companies that are focusing significant resources on developing
and marketing products and services that will compete with our network products.
We also believe that we may face competition from other providers of competing
solutions to network infrastructure problems, including networking hardware and
software manufacturers, traditional hardware manufacturers, telecommunications
providers, cable TV/communications providers, software database companies, and
large diversified software and technology companies. Many of these companies
provide or have announced their intentions to provide a range of software and
hardware products based on Internet protocols and to compete in the broad
Internet/intranet software market as well as in specific market segments in
which we compete.
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We compete with a number of companies to provide Internet search and
directory services. Traditionally, our competitors have provided
search/directory services directly to end-users through their own web sites and
have supplied search/directory services to third party web sites as a supplement
to this business. However, we are facing increased competition from several
newer competitors that are following our business model of providing Internet
search/directory services primarily to Internet portals and other web site
customers. These newer competitors have focused on search result relevance and
ease of use in providing their services. We currently compete with companies
including Alta Vista, Ask Jeeves, Direct Hit Technologies, FAST Search and
Transfer, Google, Infoseek, LookSmart, Lycos, Netscape Open Directory and
Northern Light. In addition, large media companies, such as The Walt Disney
Company and NBC Enterprises, and other Internet-based companies such as America
Online and Excite@Home, have recently made investments in or acquired Internet
search engine companies. Other large media enterprises may also enter or expand
their presence in the Internet search and directory market, either directly or
indirectly through collaborations or other strategic alliances.
The market for our shopping engine application is rapidly evolving and
intensely competitive. Our current and potential competitors include other
providers of shopping technologies and services including Frictionless Commerce,
InfoSpace, Deal Time and mySimon, third party merchant aggregators including
Affinia, shopping wallet providers including Brodia and Gator, affiliate
services including BeFree and Linkshare, and Internet portals and other captive
marketplace web sites, including Amazon.com, America Online, Excite@Home, Lycos
and Yahoo!. We believe the principal factors that will draw end-users to an
online shopping application include brand availability, selection, personalized
services, convenience, price, accessibility, customer service, quality of search
tools, quality of content, and reliability and speed of fulfillment for products
ordered. Many of these factors are determined by Inktomi's partners, and Inktomi
has little or no control over them.
Our competitors may be able to respond more quickly to new or emerging
technologies and changes in customer requirements than we can. In addition, our
current and potential competitors may bundle their products with other software
or hardware, including operating systems and browsers, in a manner that may
discourage users from purchasing products offered by us. Also, current and
potential competitors have greater name recognition, more extensive customer
bases and access to proprietary content. Increased competition could result in
price reductions, fewer customer orders, fewer search queries served, fewer
online commerce transactions and traffic, reduced gross margins and loss of
market share.
THE INTERNET INFRASTRUCTURE MARKET IS RAPIDLY CHANGING AND WE MUST DEVELOP AND
INTRODUCE NEW PRODUCTS AND TECHNOLOGIES TO REMAIN COMPETITIVE.
Rapid technological change, frequent new product introductions, changes in
customer requirements and evolving industry standards characterize the Internet
infrastructure market. The introduction of products embodying new technologies
and the emergence of new industry standards could render our existing products
obsolete. Our future success will depend upon our ability to develop and
introduce a variety of new products and product enhancements to address the
increasingly sophisticated needs of our customers. The increasing scope of our
business has led us to allocate additional resources to our current business
opportunities and fewer resources to longer-term projects. We have experienced
delays in releasing new products and product enhancements and may experience
similar delays in the future. Material delays in introducing new products and
enhancements may cause customers to forego purchases of our products or to
purchase those of our competitors.
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THE LOSS OF A KEY CUSTOMER COULD ADVERSELY AFFECT OUR REVENUES AND BE PERCEIVED
AS A LOSS OF MOMENTUM IN OUR BUSINESS.
We have generated a substantial portion of our historical revenues from a
limited number of customers. We expect that a small number of customers will
continue to account for a substantial portion of revenues for the foreseeable
future. As a result, if we lose a major customer for any reason, including
non-renewal of a customer contract, or in the case of our search engine
business, if there is a decline in usage of any customer's search service, our
revenues would be adversely affected. In addition, potential customers of
Inktomi and public market analysts or investors may perceive any such loss as a
loss of momentum in our business, which may adversely affect future
opportunities to sell our products and services and cause our stock price to
decline. Also, we cannot be sure that customers that have accounted for
significant revenues in past periods, individually or as a group, will continue
to generate revenues in any future period.
IF WE DO NOT MEET PERFORMANCE REQUIREMENTS IN OUR PORTAL SERVICES AGREEMENTS,
CUSTOMERS MAY CANCEL OUR SERVICE OR CHOOSE A DIFFERENT SERVICE.
Our search engine, directory engine and shopping engine agreements
typically include specific performance requirements, including the features
provided, reliability, processing speed, size of the Internet database
maintained, number of merchants and products within the database, and frequency
of updating the database. In addition, we believe it is important to maintain
features and functionality that are not explicitly covered in our agreements,
such as high relevance of search and product results. The growing volume of
search queries processed by our search engine and the frequency with which we
update our portal services to include additional functionality have placed and
continue to place some strain on our operational capability to meet customer
requirements. If we do not meet these requirements, customers may cancel our
service or choose to use a different service.
CIRCUMSTANCES BEYOND OUR CONTROL MAY RESULT IN SERVICE INTERRUPTIONS THAT COULD
CAUSE OUR BUSINESS TO SUFFER.
We provide our portal services from multiple data centers, all of which are
housed at facilities operated by a single-source hosting provider. Circumstances
outside of our control such as fires, earthquakes, power failures,
telecommunications failures, sabotage, unauthorized intrusions into our
databases and similar events may bring down one or more of our data centers. For
example, in June 1998, lightning struck the facility housing our data center in
Virginia, interrupting service from this center. In addition, our data center
hosting provider has experienced network failures from time to time, which has
also interrupted our service. Service interruptions for any reason would reduce
our revenues and could result in contract cancellations.
OUR QUARTERLY OPERATING RESULTS MAY FLUCTUATE SIGNIFICANTLY, AND THESE
FLUCTUATIONS MAY CAUSE OUR STOCK PRICE TO FALL.
We expect that a significant portion of our future revenues will come from
licenses of Traffic Server and Content Distribution Suite. We further expect
that these revenues will come from licenses to a small number of customers. The
volume and timing of orders are difficult to predict because the markets for
Traffic Server and Content Distribution Suite are in their early stages and the
sales cycle varies substantially from customer to customer. The cancellation or
deferral of even a small number of licenses of Traffic Server or Content
Distribution Suite would reduce our expected revenues, which would adversely
affect our quarterly financial performance. To the extent significant sales
occur earlier than expected, operating results for later quarters may not
compare favorably with operating results from earlier quarters.
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Our operating expenses are largely based on anticipated revenue trends and
a high percentage of our expenses are fixed in the short term. We plan to
increase our operating expenses significantly to enhance and support our online
shopping business, expand our sales and marketing operations, broaden our
customer support capabilities, establish new data centers, develop new
distribution channels, and fund greater levels of research and development. A
delay in generating or recognizing revenue for the reasons already discussed or
for any other reason could cause significant variations in our operating results
from quarter to quarter and could result in substantial operating losses.
Due to these factors, we believe that quarter-to-quarter comparisons of our
operating results are not a good indication of our future performance. It is
likely that in some future quarter, our operating results may be below the
expectations of public market analysts or investors, and the price of our Common
Stock may fall.
OUR SUCCESS DEPENDS ON OUR ABILITY TO EXPAND OUR SALES AND SUPPORT
ORGANIZATIONS.
We will need to substantially expand our direct and indirect sales
operations, both domestically and internationally, in order to increase market
awareness and sales of our products. Our products and services require
sophisticated sales efforts targeted at several people within our prospective
customers' organizations. Competition for qualified sales personnel is intense,
and we might not be able to hire the kind and number of sales personnel we are
targeting.
In addition, our future success is dependent upon establishing and
maintaining productive relationships with a variety of distribution partners,
including OEMs, resellers, systems integrators and joint marketing partners. We
seek to sign up distribution partners that have a substantial amount of
technical expertise in the computer network and telecommunications industry.
Even with this expertise, our distribution partners generally require a
significant amount of training and support from us, and we anticipate that it
will take several quarters before any of our distribution partners will develop
the expertise and skills necessary to effectively sell our products. We cannot
be sure that we will be successful in signing up the desired distribution
partners or that our distribution partners will devote adequate resources or
have the technical and other sales capabilities to sell our products.
Similarly, the complexity of our products and the difficulty of installing
them require highly trained customer service and support personnel. We currently
have a relatively small customer service and support organization and will need
to increase our staff to support new customers, new product lines (such as the
recent addition of our directory engine), the expanding needs of existing
customers and the internationalization of our business. Competition for customer
service and support personnel is intense in our industry due to the limited
number of people available with the necessary technical skills and understanding
of the relevant industries including the Internet, telecommunications and
shopping.
OUR SUCCESS DEPENDS ON OUR ABILITY TO MANAGE GROWING AND CHANGING OPERATIONS.
Our ability to offer products and services and implement our business plan
in a rapidly evolving market successfully requires an effective planning and
management process. We continue to increase the scope of our operations
domestically and internationally and have grown our headcount substantially.
This growth has placed, and our anticipated future operations will continue to
place, a significant strain on our management systems, personnel and other
resources. We will need to continue to improve our financial and managerial
controls and reporting systems and procedures, enhance our internal and external
security systems, and continue to expand, train and manage our work force
worldwide. Furthermore, we expect that we will be required to manage multiple
relationships with various customers, merchants and other third parties.
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THE LEGAL ENVIRONMENT IN WHICH WE OPERATE IS UNCERTAIN AND CLAIMS AGAINST US
COULD CAUSE OUR BUSINESS TO SUFFER.
Our products and services operate in part by making copies of material
available on the Internet and other networks and making this material available
to end-users from a central location. In addition, our portal services
technology systems collect end-user and transaction information, which we use to
deliver services to our customers and merchant partners. This creates the
potential for claims to be made against us (either directly or through
contractual indemnification provisions with customers) for defamation,
negligence, copyright or trademark infringement, personal injury, invasion of
privacy or other legal theories based on the nature, content, copying,
collection or use of these materials. These claims have been threatened against
us from time to time and have been brought, and sometimes successfully pressed,
against online service providers. It is also possible that if any information
provided through any of our portal services or facilitated by our network
products contains errors, third parties could make claims against us for losses
incurred in reliance on this information. Further, there is the potential for
product liability claims to be asserted against us by end-users who purchase
goods and services through our shopping engine. Although we carry general
liability insurance, our insurance may not cover potential claims of this type
or be adequate to protect us from all liability that may be imposed.
INTERNET-RELATED LAWS COULD ADVERSELY AFFECT OUR BUSINESS.
Laws and regulations that apply to communications and commerce over the
Internet are becoming more prevalent. The United States Congress recently
enacted Internet laws regarding children's privacy, copyrights, taxation and the
transmission of sexually explicit material. The European Union recently enacted
its own privacy regulations, and is currently considering copyright legislation
that may extend the right of reproduction held by copyright holders to control
the right to make temporary copies for any reason. The law of the Internet,
however, remains largely unsettled, even in areas where there has been some
legislative action. It may take years to determine whether and how existing laws
such as those governing intellectual property, privacy, libel and taxation apply
to the Internet. In addition, the growth and development of the market for
online commerce may prompt calls for more stringent consumer protection laws,
both in the United States and abroad, that may impose additional burdens on
companies conducting business online. The adoption, implementation or
modification of laws and regulations relating to the Internet, or
interpretations of existing law, could adversely affect our business.
IF WE ARE UNABLE TO MAINTAIN OUR RELATIONSHIPS WITH CUSTOMERS AND THE COMPANIES
THAT SUPPLY AND DISTRIBUTE OUR PRODUCTS, WE MAY HAVE DIFFICULTY SELLING OUR
PRODUCTS AND SERVICES.
We believe that our success in penetrating our target markets depends in
part on our ability to develop and maintain strategic relationships with key
hardware and software vendors, Internet technology and service providers,
distribution partners and customers. We believe these relationships are
important in order to validate our technology, facilitate broad market
acceptance of our products, enhance our product and service offering, and expand
our sales, marketing and distribution capabilities. If we are unable to develop
these key relationships or maintain and enhance existing relationships, we may
have difficulty selling our products and services.
We have from time to time licensed components from others such as reporting
functions and security features and incorporated them into our products and
services. If these licensed components are not maintained, it could impair the
functionality of our products and services and require us to obtain alternative
products from other sources or to develop this software internally. In either
case, this could involve costs and delays as well as diversion of engineering
resources.
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WE MAY NOT BE ABLE TO RECRUIT AND RETAIN THE PERSONNEL WE NEED TO SUCCEED.
We intend to hire a significant number of additional sales, support,
marketing, technical, and research and development personnel. Competition for
these individuals is intense, and we may not be able to attract or retain the
additional highly qualified personnel necessary for our success. Our future
success also depends upon the continued service of our executive officers and
other key sales, marketing and support personnel. In addition, our products and
technologies are complex, and we are substantially dependent upon the continued
service of our existing engineering personnel, and especially our founders. None
of our officers or key employees is bound by an employment agreement for any
specific term. Our relationships with these officers and key employees are at
will. We do not have key person life insurance policies covering any of our
employees.
ANY ACQUISITIONS THAT WE MAKE COULD ADVERSELY AFFECT OUR OPERATIONS OR FINANCIAL
RESULTS.
We have purchased three companies since September 1998 and intend to
continue to invest in or acquire complementary companies, products or
technologies in the future. If we buy a company, we could have difficulty in
assimilating that company's personnel and operations. In addition, the key
personnel of the acquired company may decide not to work for us. Also, we could
have difficulty in integrating the acquired technology or products into our
operations. These difficulties could disrupt our ongoing business, distract our
management and employees and increase our expenses. Furthermore, we may have to
incur debt or issue equity securities to pay for any future acquisitions, the
issuance of which could be dilutive to our stockholders.
OUR EFFORTS TO INCREASE OUR PRESENCE IN MARKETS OUTSIDE OF THE UNITED STATES MAY
BE UNSUCCESSFUL AND COULD RESULT IN LOSSES.
We market and sell our products in the United States and internationally.
We have offices in England, France, Germany, Japan, China, and Korea to market
and sell our products in those countries and surrounding regions. We plan to
establish additional facilities in other parts of the world. The expansion of
our existing international operations and entry into additional international
markets will require significant management attention and financial resources.
We cannot be sure that our investments in establishing facilities in other
countries will produce desired levels of revenue. We currently have limited
experience in developing localized versions of our products and marketing and
distributing our products internationally. In addition, other inherent risks may
apply to international operations, including:
- the impact of recessions in economies outside the United States;
- greater difficulty in accounts receivable collection and longer
collection periods;
- unexpected changes in regulatory requirements;
- difficulties and costs of staffing and managing foreign operations;
- potentially adverse tax consequences; and
- political and economic instability.
We also have limited experience operating in foreign jurisdictions. The
laws and cultural requirements in these countries may vary significantly from
those in the United States. The inability to integrate our business in these
jurisdictions and to address cultural differences may adversely affect the
success of our international operations.
Our international expenses are generally denominated in local currencies.
We do not currently engage in currency hedging activities. Although exposure to
currency fluctuations to date has been insignificant, future fluctuations in
currency exchange rates may adversely affect results of international
operations.
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INTELLECTUAL PROPERTY CLAIMS AGAINST US COULD CAUSE OUR BUSINESS TO SUFFER.
Substantial litigation regarding intellectual property rights exists in the
software industry. We expect that software products may be increasingly
vulnerable to third party infringement claims as the number of competitors in
our industry segments grows and the functionality of products in different
industry segments overlaps. Lycos has announced that it is the exclusive
licensee of a patent covering a method of crawling information on the Internet,
and that it may bring actions against companies that it believes are infringing
this patent in the future. We also believe that many companies have filed or
intend to file patent applications covering aspects of their technology that
they may claim our technology infringes. Some of these companies have sent
copies of their patents to Inktomi for informational purposes. We cannot be sure
that Lycos or other third parties will not make a claim of infringement against
us with respect to our products and technology. Any claims, with or without
merit, could be time consuming to defend, result in costly litigation, divert
management's attention and resources, and could cause product shipment delays or
require us to reengineer our products or enter into royalty or licensing
agreements. These royalty or licensing agreements, if required, may not be
available on acceptable terms, if at all.
IF OUR PRODUCTS, OR THE PRODUCTS UPON WHICH WE DEPEND, MALFUNCTION BECAUSE OF
YEAR 2000 PROBLEMS, OUR OPERATIONS MAY BE INTERRUPTED AND WE MAY BE SUBJECT TO
WARRANTY AND PRODUCT LIABILITY CLAIMS.
To date, we have not experienced any disruption of our business or key
systems as a result of Year 2000 problems. In addition, we have not been
informed of any Year 2000 problems encountered by our customers relating to
their use of our products and services. It is possible, however, that we may or
our customers may encounter Year 2000 problems at a later time. We are unable to
predict to what extent our business may be affected if our software or the
systems that operate in conjunction with our software experience a material Year
2000 failure. Known or unknown errors or defects that affect the operation of
our software could result in delay or loss of revenue, interruption of search or
shopping services, cancellation of customer contracts, diversion of development
resources, damage to our reputation, increased service and warranty costs, and
litigation costs, any of which could adversely affect our business, financial
condition and results of operations.
OUR STOCK PRICE IS VOLATILE.
The market price of our Common Stock has fluctuated in the past and is
likely to fluctuate in the future. In addition, the securities markets have
experienced significant price and volume fluctuations, and the market prices of
the securities of Internet-related companies have been especially volatile. In
the past, companies that have experienced volatility in the market price of
their stock have been the subjects of securities class action litigation. If we
were the subject of securities class action litigation, it could result in
substantial costs and a diversion of management's attention and resources.
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PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) EXHIBITS
EXHIBIT
NUMBER
- ------
2.1 (2) Agreement and Plan of Reorganization dated August 31, 1998 by and
among Inktomi, IC Merger Corp. and C2B Technologies Inc.
2.2 (5) Agreement and Plan of Reorganization by and among Inktomi, IC
Acquisition Corp. and Impulse! Buy Network, Inc.
2.3 (7) Agreement and Plan of Reorganization by and among Inktomi, WS
Acquisition Corp. and WebSpective Software, Inc.
3.2 (3) Amended and Restated Certificate of Incorporation of Inktomi.
3.2a (6) Amendment to Amended and Restated Certificate of Incorporation of
Inktomi.
3.4 (3) Bylaws of Inktomi.
4.1 (3) Specimen Common Stock Certificate.
10.1 (3) Form of Indemnification Agreement between Inktomi and each of its
directors and officers.
10.2 (3) 1998 Stock Plan and form of agreement thereunder.
10.3 (3) 1998 Employee Stock Purchase Plan and form of agreements thereunder.
10.4 (3) 1996 Equity Incentive Plan and form of agreement thereunder.
10.5 (3) Fifth Amended and Restated Investors' Rights Agreement dated as
February 13, 1998 among Inktomi and certain of its security holders
named therein.
10.6 (3) Executive Employment Agreement dated as of July 1, 1996 between
Inktomi and David C. Peterschmidt.
10.7 Agreement of Sublease dated July 1, 1998 by and between Designs, Inc.
and Atreve Software, Inc.
10.8 Reserved for future use.
10.9 Reserved for future use.
10.10 Reserved for future use.
10.11 Reserved for future use.
10.12 Reserved for future use.
10.13 Reserved for future use.
10.14 Reserved for future use.
10.15 Reserved for future use.
10.16 Reserved for future use.
10.17 Reserved for future use.
10.18 Reserved for future use.
10.19 Reserved for future use.
10.20 (1) Office Lease dated October 9, 1998 between Inktomi and WHFST Real
Estate Limited Partnership, a Delaware limited partnership.
10.21 (1) C2B Technologies Inc. (formerly BeyondNews, Inc.) 1997 Stock Plan and
form of agreement thereunder.
10.22 (2) Registration Rights Agreement dated September 25, 1998 between
Inktomi and former stockholders of C2B Technologies Inc.
(included in Exhibit 2.1).
10.23 (4) 1998 Nonstatutory Stock Option Plan and form of agreement thereunder.
10.24 (5) Declaration of Registration Rights dated April 30, 1999 for the
benefit of former Impulse! Buy Network, Inc. stockholders (included
in Exhibit 2.2).
10.25 (6) Amendment dated January 28, 1999 to Amended and Restated Loan and
Security Agreement dated as of September 2, 1998 between Inktomi
and Silicon Valley Bank.
10.26 (8) Impulse! Buy Network, Inc. 1997 Stock Plan and form of agreement
thereunder.
10.27 (9) WebSpective Software, Inc. (formerly Atreve Software, Inc.) 1997
Stock Option Plan and form of agreement thereunder.
21
<PAGE>
10.28 (7) Declaration of Registration Rights dated October 1, 1999 for
the benefit of former WebSpective Software, Inc.
stockholders (included in Exhibit 2.3).
27.1 Financial Data Schedules.
- ----------------------
(1) Incorporated by reference from Inktomi's Registration Statement on
Form S-1 (Reg. No. 333-66661), as amended.
(2) Incorporated by reference from Inktomi's Current Report on Form 8-K
filed with the Commission on October 9, 1998, as amended
November 2, 1998.
(3) Incorporated by reference from Inktomi's Registration Statement on
Form S-1 (Reg. No. 333-50247), as amended.
(4) Incorporated by reference from Inktomi's Registration Statement on
Form S-8 (Reg. No. 333-71037).
(5) Incorporated by reference from Inktomi's Current Report on Form 8-K
filed with the Commission on May 13, 1999.
(6) Incorporated by reference from Inktomi's Quarterly Report on Form 10-Q
filed with the Commission on May 17, 1999.
(7) Incorporated by reference from Inktomi's Current Report on Form 8-K
filed with the Commission on October 15, 1999, as amended
November 5, 1999.
(8) Incorporated by reference from Inktomi's Registration Statement on
Form S-8 (Reg. No. 333-80195).
(9) Incorporated by reference from Inktomi's Registration Statement on
Form S-8 (Reg. No. 333-89581).
(b) REPORTS ON FORM 8-K
We filed a Current Report on Form 8-K dated October 15, 1999 to report
under Item 2 thereof the acquisition of WebSpective Software, Inc. We filed an
amendment dated November 5, 1999 to this Current Report on Form 8-K to include
the required Supplementary Consolidated Financial Statements required under the
report. We filed a Current Report on Form 8-K dated December 3, 1999 to announce
the approval by the Board of Directors of a two-for-one stock split of our
Common Stock.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by
undersigned, thereunto duly authorized.
Inktomi Corporation
Date: February 14, 2000 By: /s/ Jerry M. Kennelly
---------------------------------
Jerry M. Kennelly,
Senior Vice President and
Chief Financial Officer (duly
authorized officer and
principal financial officer)
22
<PAGE>
INDEX TO EXHIBITS
(a) EXHIBITS
EXHIBIT
NUMBER
- -------
2.1 (2) Agreement and Plan of Reorganization dated August 31, 1998 by and
among Inktomi, IC Merger Corp. and C2B Technologies Inc.
2.2 (5) Agreement and Plan of Reorganization by and among Inktomi,
IC Acquisition Corp. and Impulse! Buy Network, Inc.
2.3 (7) Agreement and Plan of Reorganization by and among Inktomi,
WS Acquisition Corp. and WebSpective Software, Inc.
3.2 (3) Amended and Restated Certificate of Incorporation of Inktomi.
3.2a (6) Amendment to Amended and Restated Certificate of Incorporation of
Inktomi.
3.4 (3) Bylaws of Inktomi.
4.1 (3) Specimen Common Stock Certificate.
10.1 (3) Form of Indemnification Agreement between Inktomi and each of its
directors and officers.
10.2 (3) 1998 Stock Plan and form of agreement thereunder.
10.3 (3) 1998 Employee Stock Purchase Plan and form of agreements thereunder.
10.4 (3) 1996 Equity Incentive Plan and form of agreement thereunder.
10.5 (3) Fifth Amended and Restated Investors' Rights Agreement dated as
February 13, 1998 among Inktomi and certain of its security holders
named therein.
10.6 (3) Executive Employment Agreement dated as of July 1, 1996 between
Inktomi and David C. Peterschmidt.
10.7 Agreement of Sublease dated July 1, 1998 by and between Designs, Inc.
and Atreve Software, Inc.
10.8 Reserved for future use.
10.9 Reserved for future use.
10.10 Reserved for future use.
10.11 Reserved for future use.
10.12 Reserved for future use.
10.13 Reserved for future use.
10.14 Reserved for future use.
10.15 Reserved for future use.
10.16 Reserved for future use.
10.17 Reserved for future use.
10.18 Reserved for future use.
10.19 Reserved for future use.
10.20 (1) Office Lease dated October 9, 1998 between Inktomi and WHFST Real
Estate Limited Partnership, a Delaware limited partnership.
10.21 (1) C2B Technologies Inc. (formerly BeyondNews, Inc.) 1997 Stock Plan and
form of agreement thereunder.
10.22 (2) Registration Rights Agreement dated September 25, 1998 between Inktomi
and former stockholders of C2B Technologies Inc. (included in
Exhibit 2.1).
10.23 (4) 1998 Nonstatutory Stock Option Plan and form of agreement thereunder.
10.24 (5) Declaration of Registration Rights dated April 30, 1999 for the
benefit of former Impulse! Buy Network, Inc. stockholders (included
in Exhibit 2.2).
10.25 (6) Amendment dated January 28, 1999 to Amended and Restated Loan and
Security Agreement dated as of September 2, 1998 between Inktomi and
Silicon Valley Bank.
10.26 (8) Impulse! Buy Network, Inc. 1997 Stock Plan and form of agreement
thereunder.
10.27 (9) WebSpective Software, Inc. (formerly Atreve Software, Inc.) 1997 Stock
Option Plan and form of agreement thereunder.
10.28 (7) Declaration of Registration Rights dated October 1, 1999 for the
benefit of former WebSpective Software, Inc. stockholders (included
in Exhibit 2.3).
27.1 Financial Data Schedules.
23
<PAGE>
- ----------------------
(1) Incorporated by reference from Inktomi's Registration Statement on
Form S-1 (Reg. No. 333-66661), as amended.
(2) Incorporated by reference from Inktomi's Current Report on Form 8-K
filed with the Commission on October 9, 1998, as amended
November 2, 1998.
(3) Incorporated by reference from Inktomi's Registration Statement on
Form S-1 (Reg. No. 333-50247), as amended.
(4) Incorporated by reference from Inktomi's Registration Statement on
Form S-8 (Reg. No. 333-71037).
(5) Incorporated by reference from Inktomi's Current Report on Form 8-K
filed with the Commission on May 13, 1999.
(6) Incorporated by reference from Inktomi's Quarterly Report on Form 10-Q
filed with the Commission on May 17, 1999.
(7) Incorporated by reference from Inktomi's Current Report on
Form 8-K filed with the Commission on October 15, 1999, as
amended November 5, 1999.
(8) Incorporated by reference from Inktomi's Registration Statement on
Form S-8 (Reg. No. 333-80195).
(9) Incorporated by reference from Inktomi's Registration Statement on
Form S-8 (Reg. No. 333-89581).
24
<PAGE>
EXHIBIT 10.7
AGREEMENT OF SUBLEASE
BY AND BETWEEN
DESIGNS, INC. (SUBLANDLORD)
AND
ATREVE SOFTWARE, INC. (SUBTENANT)
DATED AS OF JULY 1, 1998
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
1. Subleasing of Subleased Premises ......................................... 1
2. Term ..................................................................... 1
3. Base Rent ................................................................ 3
4. Additional Rent .......................................................... 3
5. Care, Repair, Maintenance, Surrender and Restoration of the
Subleased Premises ....................................................... 5
6. Inspection of Subleased Premises ......................................... 6
7. Use ...................................................................... 6
8. Subordination to and Incorporation of Terms of Prime Lease................ 7
9. Subtenant's Obligations .................................................. 8
10. Sublandlord's Obligations ................................................ 8
11. Covenants with respect to the Prime Lease ................................ 8
12. Modification of Prime Lease .............................................. 9
13. Insurance ................................................................10
14. Waiver Of Subrogation ....................................................10
15. Indemnification ..........................................................10
16. Subtenant's Work .........................................................11
17. Condition of the Subleased Premises and Subtenant's Changes,
Alterations, Additions and/or Modifications...............................12
18. Default ..................................................................12
19. Destruction, Fire and other Casualty .....................................13
20. Termination in Event of Taking ...........................................14
21. Abatement of Rent ........................................................14
22. Environmental Indemnification ............................................14
23. Consents .................................................................15
24. Sublease Conditional Upon Certain Consents ...............................15
25. Holdover at The End of Term ..............................................16
26. Security.. ...............................................................16
27. Assignment and Subletting ................................................16
28. Notices ..................................................................17
29. Quiet Enjoyment ..........................................................17
30. Estoppel Certificates ....................................................17
31. Signs ....................................................................18
32. Subtenant Authority ......................................................18
33. Security Deposit .........................................................18
34. Intentionally Deleted ....................................................19
35. Parking Facilities ....................................... ...............19
36. Services To Be Provided by Sublandlord ...................................19
37. Rules and Regulations ....................................................20
38. Smoke Free Environment ...................................................20
39. Number of Employees ......................................................20
40. Broker ...................................................................20
41. Intentionally Deleted. ...................................................20
42. Examination of Sublease ..................................................20
43. Recording ................................................................21
44. Survival of Obligations ..................................................21
45. Miscellaneous ............................................................21
46. Workstation Purchase .....................................................22
47. Right Of First Offer .....................................................22
48. Right Of First Offer......................................................22
49. Sublandlord Authority ....................................................23
50. Sublandlord Representation ...............................................23
51. Direct Lease with Prime Landlord .........................................23
<PAGE>
AGREEMENT OF SUBLEASE
THIS AGREEMENT OF SUBLEASE ( the "Sublease") is made as of July l,
1998, by and between Designs, Inc., a Delaware corporation (hereinafter referred
to as the "Sublandlord"), having an office at 66 B Street, Needham,
Massachusetts, and Atreve Software, Inc. a Delaware corporation (hereinafter
referred to as the "Subtenant"), having an office at 767C Concord Avenue,
Cambridge, Massachusetts..
WITNESSETH
WHEREAS, by Lease dated as of November 4, 1995 (hereinafter referred to
as the "Prime Lease") by and between The Trustees of the R.C.L. Trusts, the
G.W.B. Trusts and the A.C.F. Trusts (hereinafter collectively referred to as the
"Prime Landlord") and Sublandlord, Prime Landlord leased to Sublandlord certain
property (sometimes hereinafter referred to as the "Prime Lease Premises" and
sometimes hereinafter referred to as the "Building") being that certain building
known and numbered as 66 B Street, Needham, Massachusetts, which Prime Lease
Premises are more particularly described in the Prime Lease, a copy of such
Prime Lease (except for those portions of the Prime Lease which have been
excised for reasons of confidentiality and/or which Sublandlord represents and
warrants to Subtenant have no applicability to the Subtenant or this Sublease)
is attached hereto as Exhibit A and made a part hereof; and
WHEREAS, Sublandlord desires to Sublease to Subtenant and Subtenant
desires to Sublease from Sublandlord a portion of the Building, and Sublandlord
is willing to Sublease such portion of the Prime Lease Premises on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, the
parties hereto agree as follows:
1. Subleasing of Subleased Premises. Subject to the written
consent of the Prime Landlord, Sublandlord hereby subleases to Subtenant and
Subtenant hereby subleases from Sublandlord that portion of the Building
containing approximately 15,284 square feet, as more particularly shown as the
shaded area on the floor plan entitled "Leasing Plan Area B", dated January 30,
1998, annexed hereto as Exhibit B and made part hereof (the "Subleased
Premises"), upon and subject to all terms, covenants, rentals and conditions
hereinafter set forth. Subtenant shall have the right, in common with
Sublandlord and other tenants of the Building, to use the common corridors
necessary for access to and from the Subleased Premises and the rest rooms,
kitchen and lounge all as shown outlined in blue on Exhibit B. Subtenant shall
have the right, in common with others, to use the parking lot serving the
Subleased Premises and the Building in accordance with the terms and provisions
of Section 35 of this Sublease.
2. TERM.
(a) The initial term (the "Initial Term") of this Sublease shall be
for a period of approximately five (5) years and shall commence on July 1, 1998
(the "Commencement Date"), with said Term to expire at midnight on July 3l, 2003
(the "Expiration Date"), subject to the provisions of Section 2 (b) hereof,
unless sooner terminated as hereinafter provided. The first Lease Year (The term
"Lease Year" is defined as any twelve consecutive month period, during the Term
(as hereinafter defined), commencing on July 1st") shall commence on July 1,
1998 and end on June 30, 1999 and each subsequent Lease Year shall commence on
July 1st and end on June 30th. If the either the Commencement Date or the
Expiration Date do not coincide with the beginning or end of a Lease Year, the
periods preceding or following the beginning or end of each full Lease Year, as
the case may be, shall be deemed independent, partial Lease Years. In no event
shall the Term (as it may be extended as provided hereinbelow) extend beyond the
term of the Prime Lease.
1
<PAGE>
(b) Provided that (i) Subtenant shall not be in default, beyond any
period for cure thereof, of any of its obligations, or otherwise, under this
Sublease, then Subtenant shall have an option to extend this Sublease for one
(1) additional period of two (2) years (the "Renewal Period"). The Renewal
Period shall commence on August 1, 2003 and expire at midnight on July 31, 2005
(the "Renewal Period Expiration Date"), and shall be subject to all of the terms
and conditions of this Sublease. The term ("Term") of this Sublease shall be
deemed to mean the Initial Term and the Renewal Period, if any. During the
Renewal Period, all references herein to the Term shall be deemed to mean the
Initial Term of this Sublease as extended by the Renewal Period, and all
references to the Expiration Date shall be deemed to mean the Renewal Period
Expiration Date. Subtenant shall inform Sublandlord in writing of its exercise
of the option to extend the Term no later than twelve (12) months prior to the
Expiration Date, time being of the essence (the "Election Notice"). The exercise
of said option shall not be effective if the Subtenant -shall be in default,
beyond any period for cure thereof, under this Sublease at either the time of
delivery of the Election Notice or at the commencement of the Renewal Period. It
is further agreed and understood that in the event the Subtenant was in default
(but not beyond any period for cure thereof) at the commencement of the Renewal
Period and thereafter the Subtenant failed to cure said default within said cure
period, then in such event, the Renewal Period shall terminate automatically
(without further documentation or notification) upon the expiration of such cure
period. Failure to give Sublandlord the Election Notice within the time
specified herein shall be deemed a waiver of the option to extend the Term.
(c) At the request of either party, the parties shall promptly
execute and deliver to each other a confirmatory instrument in recordable form
setting forth the commencement and expiration dates of the Term.
(d) If for any reason the Prime Lease is terminated prior to the
Expiration Date, whether such termination occurs as a result of any act or
omission of Sublandlord, whether due to a default or breach of the Prime Lease
by Sublandlord, or whether by the deliberate act of either the Prime Landlord or
the Sublandlord as Tenant under the Prime Lease, then, on the date of
termination of the Prime Lease, this Sublease and the Term shall automatically
terminate with the same force and effect as though such termination date were
the date herein fixed for the Expiration Date, and neither the Sublandlord nor
the Prime Landlord shall be liable to the Subtenant by reason thereof. In no
event shall the Term extend beyond the term of the Prime Lease. Notwithstanding
anything contained in this Section 2 to the contrary, in the event the Prime
Lease is terminated prior to the Expiration for any reason other than the
exercise by the Prime Landlord or the Sublandlord of a right to terminate the
Prime Lease in connection with a fire or other Casualty or exercise of a power
of eminent domain, then in such event the Prime Landlord shall permit Subtenant
to remain upon the Subleased Premises pursuant to the terms and conditions of
this Sublease (including the Prime Lease, attached hereto as Exhibit "A", to the
extent incorporated herein)which Sublease shall thereupon, automatically without
further documentation, become a direct lease between the Prime Landlord (as
"Sublandlord" hereunder) and the Subtenant for the period from the date of such
termination until the end of the sixth full calendar month after the date upon
which the Prime Landlord notifies the Subtenant in writing that the Prime Lease
with the Sublandlord has been terminated. In the event this Sublease shall
become a direct lease between the Prime Landlord and the Subtenant (in
accordance with the next preceding sentence), then in such event, the
Sublandlord shall not be liable hereunder to Subtenant for damages or otherwise,
and Sublandlord's obligation to Subtenant shall be limited to returning to
Subtenant a portion of rent paid in advance by Subtenant, if any, prorated as of
the date of such termination, and transferring to Prime Landlord any interest it
may have in any Security Deposit, as hereinafter defined, and Sublandlord's
obligation to Prime Landlord shall be limited to its obligations under the Prime
Lease.
(e) Intentionally Deleted
(f) In the event the Sublandlord files a petition under any
provision of the Bankruptcy Code as then in force and effect, or under any other
federal or state law relating to bankruptcy or insolvency, or if any involuntary
petition under any provisions of said Bankruptcy Code or any other federal or
state law relating to bankruptcy or insolvency is filed against the Sublandlord,
and if pursuant to such proceedings it is determined that the Sublandlord may
remain upon the Prime Lease Premises at a monthly rental rate which is less than
the monthly rental rate required pursuant to the Prime Lease (including Annual
Fixed Rent and Additional Rent, as defined in the Prime Lease), then, in such
event, at the option of the Prime Landlord, the Sublandlord shall permit the
Subtenant to pay (on a monthly basis), and Subtenant agrees to
2
<PAGE>
so pay (to the extent permitted by the Bankruptcy Code, or other
applicable laws and/or court orders), directly to the Prime Landlord, that
portion of the Base Rent and Additional Rent due hereunder which is equal to the
amount of the deficiency between the total Annual Fixed Rent and Additional Rent
(described above) required pursuant to the Prime Lease and the actual amount of
monthly rent and additional rent required by the aforesaid proceedings and paid
to the Prime Landlord (hereinafter referred to as "Deficiency Payments"), but
Subtenant shall have no obligation to pay the Prime Landlord under this Section
2(f) any amount in excess of the Base Rent and Additional Rent due hereunder.
Said Deficiency Payments shall continue only for as long as there is a
deficiency as described above.
3. BASE RENT. During the Term, Subtenant shall pay to Sublandlord, in
lawful money of the United States which at the time shall be legal tender in
payment of all debts and dues, public and private, an annual fixed base rent
(the "Base Rent"), payable in equal monthly installments, as follows:
<TABLE>
<CAPTION>
BASE RENT MONTHLY INSTALLMENT
--------- -------------------
<S> <C> <C>
INITIAL TERM("INITIAL TERM")
First Lease Year through and $374,458.00 $31,204.83
including Fifth Lease Year
RENEWAL PERIOD
Sixth Lease Year through and
including Seventh Lease Year: To Be Determined in accordance with Section 3(d) of this Agreement
</TABLE>
(a) All monthly installments of Base Rent shall be paid in advance,
on the first (1st) day of each month during the Term, at the office of the
Sublandlord, or such other place as Sublandlord may designate, without any
setoff or deduction or diminution of any kind whatsoever. The first installment
of Base Rent shall be due and payable by Subtenant on the "Rent Commencement
Date" which shall be the date of execution of this Sublease by both the
Sublandlord and the Subtenant. Subtenant shall pay the monthly installment of
Base Rent pro rated on a per diem basis with respect to any partial month during
the Term.
(b) Intentionally Deleted.
(c) Notwithstanding anything contained herein to the contrary, the
Subtenant shall not be obligated for the payment of Base Rent or Additional Rent
with respect to the period of time from the commencement of the Term up to July
15, 1998. On or before July 15, 1998, the Subtenant shall pay the Sublandlord
$15,602.42 on account of the Base Rent for the period from July 15 to July 31,
1998.
(d) Base Rent with respect to each full Lease Year of the Renewal
Period shall be equal to the Base Rent applicable with respect to each full
Lease Year of the Initial Term increased by the same percentage as the increase
in the "Consumer Price Index" (which shall mean the Consumer Price Index
published by the United States Department Of Labor, Bureau of Labor Statistics
(All Items), for the City of Boston, Massachusetts) applicable to the first
month of the Renewal Period over the level Of such Consumer Price Index
applicable to the month in which the Commencement Date shall occur. If the
manner in which the Consumer Price Index as determined by the Bureau of Labor
Statistics shall be substantially revised, including, without limitation, a
change in the base index year, an adjustment shall be made by Sublandlord in
such revised index which would produce results equivalent, as nearly as
possible, to those which would have been obtained if such Consumer Price Index
had not been revised. If the Consumer Price Index shall become unavailable to
the public because publication is not readily available to enable Sublandlord to
make the adjustment referred to herein, the Sublandlord will substitute therefor
a comparable index based upon changes in the cost of living or purchasing power
of the consumer dollar published by any other governmental agency or, if no such
index shall be available, then a comparable index published by a major bank or
other financial institution or by a university or a recognized financial
publication.
4. ADDITIONAL RENT.
(a) All amounts, other than Base Rent, payable by Subtenant to
Sublandlord pursuant to this Sublease, including, without limitation, any and
all expenses, reimbursements, interest
3
<PAGE>
payments, fees, penalties, additional rent, or other charges
of every nature whatsoever required by the terms hereof, shall be deemed and
constitute "Additional Rent" and, in the event of any non-payment thereof,
Sublandlord shall have all of the rights and remedies provided herein, in the
Prime Lease or in law or at equity for non-payment of Base Rent, Additional Rent
or any other rent.
(b) Subtenant's obligation to pay Additional Rent hereunder shall
survive the Expiration Date or sooner termination of the Term. Payment of all
Additional Rent shall, unless otherwise specifically set forth in this Sublease,
be paid by the Subtenant to the Sublandlord within twenty (20) days after
Subtenant receives written request (sent to the attention of the Chief Financial
Officer therefor. All payments of Additional Rent shall be paid at the office of
the Sublandlord, or such other place as Sublandlord may designate, by written
notice to Subtenant, without any setoff or deduction or diminution of any kind
whatsoever.
(c) Subtenant shall pay Sublandlord, as Additional Rent, with
respect to each calendar year, or portion thereof, included in the Term,
Subtenant's pro rata share of the real estate taxes (as finally determined after
deducting any abatements, refunds, or rebates) applicable to the Prime Lease
Premises in excess of the real estate taxes applicable to the Prime Lease
Premises with respect to the calendar year 1998. Subtenant's pro rata share
shall be an amount equal to that proportion of the real estate taxes that the
floor area of the Subleased Premises bears to the floor area of the Building.
Sublandlord shall give written notice advising Subtenant of the amount of real
estate taxes in any calendar year or portion thereof included in the Term,
together with a copy of the paid and receipted tax bill and the Sublandlord's
computation of the Subtenant's pro rata share, as well as an invoice with
respect to the Subtenant's pro rata share.
(d) Subtenant shall pay Sublandlord, as Additional Rent, with
respect to each Lease Year, or portion thereof, included in the Term,
Subtenant's pro rata share of the costs (excluding After Hour Charges, as
hereinafter defined, payable by Subtenant or equivalent expenses attributable to
other tenants of the Building) of the heating, ventilation, air conditioning,
and electricity (including costs with respect to the repairs and maintenance of
the equipment and systems providing the heating, ventilation and air
conditioning and electricity, but excluding all individual improvements and/or
replacements which cost in excess of $5,000.00, hereinafter sometimes referred
to as "Capital Expenditures"), being provided to the Prime Lease Premises,
including the Subleased Premises (hereinafter referred to as the "Operating
Costs") in excess of the Operating Costs for such services with respect to the
Lease Year commencing July 1, 1998. Subtenant's pro rata share shall be an
amount equal to that proportion of the Operating Costs that the floor area of
the Subleased Premises bears to the floor area of the Building. Sublandlord
shall give written notice advising Subtenant of the amount of Operating Costs in
any Lease Year or portion thereof included in the Term, together with a copy of
the paid and receipted bills with respect to such Operating Costs and the
Sublandlord's computation of the Subtenant's pro rata share, as well as an
invoice with respect to the Subtenant's pro rata share.
(e) Subtenant shall pay Sublandlord, as Additional Rent, with
respect to each tease Year, or portion thereof, included in the Term,
Subtenant's pro rata share of the costs of the services (excluding Capital
Expenditures being provided by the Sublandlord pursuant to Section 36(a)(iv) of
this Sublease (hereinafter referred to as the "Kitchen Costs"). Subtenant's pro
rata share shall be an amount equal to that proportion of the Kitchen Costs that
the number of employees and other persons employed and/or working for the
Subtenant within the Subleased Premises bears to total number of employees and
other persons employed and/or working within the Building. Sublandlord shall
give written notice advising Subtenant of the amount of Kitchen Costs in any
Lease Year or portion thereof included in the Term, together with a copy of the
paid and receipted bills with respect to such Kitchen Costs and the
Sublandlord's computation of the Subtenant's pro rata share, as well as an
invoice with respect to the Subtenant's pro rata share.
(f) Notwithstanding anything contained in this Sublease to the
contract, Subtenant shall pay Sublandlord an "After Hours Charge", as Additional
Rent, in the amount of fifteen dollars ($15.00) per hour with respect to: (i)
each and every hour between the hours of 7:00 p.m. and 7:00 a.m. from Monday
through Friday, and (ii) each and every hour during Saturdays and Sundays,
during which Sublandlord is providing heating, ventilation, or air conditioning
to the Sublease Premises at Subtenant's request.
4
<PAGE>
5. CARE, REPAIR, MAINTENANCE, SURRENDER AND RESTORATION OF THE
SUBLEASED PREMISES.
(a) Without limiting any other provision of this Sublease or the
Prime Lease, Subtenant shall take good care of the Subleased Premises, suffer no
waste or injury thereto and shall comply with all laws, statutes, codes, orders
and regulations applicable to (i) the Subtenant's use of the Subleased Premises
and/or the Building or (ii) to the Subleased Premises (irrespective of the
Subtenant's use thereof) and enacted, promulgated, or amended subsequent to the
Commencement Date.
(b) During the Term of this Sublease as it may be extended,
Sublandlord shall, at its sole cost and expense, maintain the Subleased Premises
in good condition and repair and shall maintain the Building in compliance with
laws, statutes, codes, orders and regulations (except those described in Section
5(a) above) to the extent Which Sublandlord is required to do so under the Prime
Lease; provided, however, that to the extent any repairs are required due to the
acts or omissions of Subtenant (the reference to omission to be applicable only
in those instances where Subtenant has/had a legal or contractual duty to act),
its agents, employees, representatives or contractors, the same shall be made by
Subtenant at Subtenants sole cost and expense. Notwithstanding anything to the
contrary contained herein, Subtenant shall, at Subtenant's sole cost and
expense, provide and be solely responsible for: (i) keeping the Subleased
Premises neat and orderly, and (iv) reasonable security protection for the
Subleased Premises.
(c) All fixtures, paneling, partitions, railings and like
installations, installed in the Subleased Premises at any time, either by
Subtenant or by Sublandlord on Subtenant's behalf (sometimes herein referred to
as "Subtenant Alterations") shall, upon installation, become the property of
Sublandlord and shall remain upon, and be surrendered with, the Subleased
Premises unless Sublandlord, by notice to Subtenant subsequent to the
Sublandlord giving its consent to such installation and prior to the actual
installation of such Subtenant Alterations, elects to relinquish Sublandlord's
right to any Subtenant Alterations or like installations which many be installed
by Subtenant, and to have such Subtenant's Alterations, or any portion thereof,
removed by Subtenant, in which event, the same shall be removed from the
Subleased Premises by Subtenant prior to the expiration or termination of the
Term at Subtenant's expense. Nothing in this subsection (c) shall be construed
to give Sublandlord title to, or prevent Subtenant's removal of, any of its
trade fixtures, movable office furniture, furnishings and equipment, but upon
removal of any such from the Subleased Premises or upon removal of other
installations as may be required by Sublandlord, Subtenant shall immediately and
at its expense, repair and restore the Subleased Premises to the condition
existing prior to the installation and repair any damage to the Subleased
Premises or the Building due to such removal, so as to restore the Subleased
Premises to the condition required under subsection (d) of this Section 5. All
property permitted or required to be removed by Subtenant upon the Expiration
Date or sooner termination of the Term remaining in the Subleased Premises shall
be deemed abandoned and may, at the election of Sublandlord, either be retained
as Sublandlord's property or may be removed from the Subleased Premises by
Sublandlord, at Subtenant's expense. Any such reasonable expenses shall be paid
by Subtenant to Sublandlord upon demand therefor and shall be deemed Additional
Rent, collectible by Sublandlord in the same manner and with the same remedies
as though said sums were Base Rent reserved hereunder.
(d) At the expiration or earlier termination of this Sublease,
Subtenant shall surrender the Subleased Premises to Sublandlord broom clean, and
in the condition required under Section 5(a) above, with all changes,
alterations, modifications, additions and improvements thereto, in as good
condition as on the date of delivery of possession thereof to Subtenant or as
the Subleased Premises may be put in during the Term hereof, ordinary and
reasonable wear and tear and damage by fire and other casualty excepted,
provided, however, that if Sublandlord has requested the removal of same, in
accordance with Section 5 (c) hereof Subtenant shall remove, at Subtenant's sole
cost and expense, any and all changes, alterations, modifications, additions and
improvements specified by Sublandlord. If Subtenant fails to remove any such
changes, alterations, modifications, additions or improvements on or before the
later to occur of (i) the termination of this Sublease or (ii) in the case where
Subtenant has abandoned the Subleased Premises but the Sublease has not been
terminated, the thirtieth (30th) day following the Sublandlord's written
request, Sublandlord may remove the same and deliver the same to any place of
business of Subtenant or any warehouse, or otherwise dispose of same as may be
determined by the Sublandlord in its sole discretion, and Subtenant shall pay
the cost of such removal, delivery and warehousing, and/or other disposition,
together with interest thereon at the prime commercial rate of BankBoston, as
adjusted from time to time, plus 2% per annum, but in no event more than the
maximum
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rate of interest allowed by law, to Sublandlord upon demand.
Subtenant's obligations under this Section 5 shall survive the Expiration Date
or sooner termination of the Term.
(e) If the Subtenant (i) refuses or neglects to make repairs or
otherwise fails to perform any of the Subtenant's repair or maintenance
obligations hereunder; and (ii) if the Sublandlord is required to make repairs
by reason of the Subtenant's negligent acts or omissions, the Sublandlord shall,
upon seven (7) days' prior written notice to the Subtenant (except if, in the
Sublandlord's reasonable opinion, an emergency exists, in which event no prior
notice shall be required), have the right, but shall not be obligated, to make
such repairs or perform on behalf of, and for the account of, the Subtenant. In
such event, any expense incurred by the Sublandlord shall be paid by the
Subtenant to the Sublandlord as additional rent within twenty (20) days of
receipt of a bill and shall accrue interest at the prime commercial rate of
BankBoston, as adjusted from time to time, plus 2% per annum, but in no event
more than the maximum rate of interest allowed by law from the date on which the
expense is incurred by the Sublandlord.
(f) At the expiration or earlier termination of this Sublease, all
signs, logos, canopies, awnings or other advertising matter attached by or on
behalf of Subtenant upon the Subleased Premises, whether on the exterior or
interior thereof, shall be removed by Subtenant at its own expense, and
Subtenant shall repair any damage or injury to the Subleased Premises, and
correct any unsightly condition, caused by the removal thereof.
(g) All furnishing, fixtures, equipment, effects and personal
property of every kind, nature and description of Subtenant, and of all persons
claiming by, through or under Subtenant, which, during the Term of this Sublease
or any occupancy of the Subleased Premises by Subtenant, or anyone claiming by,
through or under Subtenant, may be on the Subleased Premises or elsewhere in the
Building, shall be at the sole risk and hazard of Subtenant and, if the whole or
any part thereof shall be destroyed or damaged by fire, water or otherwise, or
by the leakage or bursting of water pipes, steam pipes or other pipes, by theft,
or from any other cause, no part of said loss or damage is to be charged to or
borne by Sublandlord or Prime Landlord.
6. INSPECTION OF SUBLEASED PREMISES. Upon reasonable advance notice,
Sublandlord and Prime Landlord shall have the right to enter the Subleased
Premises at any reasonable time for the purpose of inspecting the same or
showing (during the last six (6) months of the Term) the same for any proper
purpose or doing anything that Subtenant may be required to do, and shall have
failed to do. In the event of an emergency, Sublandlord and Prime Landlord shall
have the right to enter immediately and without notice.
7. USE. Subtenant shall use and occupy the Subleased Premises for
general office use (including customer training and software engineering) and
for no other purpose, notwithstanding anything to the contrary set forth in the
Prime Lease. Subtenant shall conduct its business operations in the Subleased
Premises in a first class manner and so as not to disturb the quiet enjoyment or
interfere with the business operations of any other tenant or occupant of the
Building in which the Subleased Premises are located. Subtenant shall not commit
or suffer to be committed any waste upon the Subleased Premises and agrees not
to injure, overload, deface or otherwise damage the Subleased Premises.
Subtenant shall not permit the emission of any objectionable noise, vibration,
odor or fumes from the Subleased Premises, nor make any use of the Subleased
Premises which is offensive, noxious, or liable to create a nuisance or to
invalidate or increase the premiums for any insurance thereon maintained by
Sublandlord and/or Prime Landlord. In its use and occupancy of the Subleased
Premises, Subtenant shall comply, at Subtenant's sole cost and expense, with the
requirements of all applicable zoning, building, fire, health and other codes,
statutes, regulations, rules, orders, ordinances and laws of any federal, state
or local governmental or other public authority (including without limitation
any requirements related to the issuance of a certificate of occupancy for the
Subleased Premises).Subtenant shall have 24 hour (365 day) access to the
Subleased Premises provided Subtenant shall comply with Sublandlord's reasonable
security systems and other reasonable rules and regulations relating to the
Building and/or the Subleased Premises.
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8. SUBORDINATION TO AND INCORPORATION OF TERMS OF PRIME LEASE.
(a) This Sublease and all rights of the Subtenant hereunder are and
shall be in all respects, except as otherwise specifically set forth in this
Sublease, (i) subject and subordinate to the Prime Lease and to all of the
respective terms, covenants and conditions thereof and any mortgage to which the
Prime Lease is subject and/or subordinate; and (ii) and subordinate to any
agreement to which the Prime Lease is subject and/or subordinate, and to the
matters to which the Prime Lease is or shall be subject and/or subordinate and
all encumbrances now or hereafter placed on or affecting the Prime Lease or the
fee title of the Prime Lease Premises as permitted by the Prime Lease or to
which the Prime Lease is subject and subordinate. The foregoing provisions shall
be self-operative and no further instrument of subordination shall be necessary,
unless required by the Sublandlord or the Prime Landlord, in which event the
Subtenant agrees, on demand, at any time or times, to execute, acknowledge and
deliver to the Sublandlord or to the Prime Landlord any and all instruments that
may be necessary or proper to confirm the subordination of this Sublease and
all rights of the Subtenant hereunder, to the lien of any such encumbrances; and
if, within ten (10) days following demand therefor, Subtenant shall fail or
neglect to execute, acknowledge and deliver any such instrument of
subordination, the Sublandlord, in addition to any other remedies, may execute,
acknowledge and deliver the same as agent or attorney for the Subtenant and the
Subtenant hereby irrevocably nominates, constitutes and appoints the Sublandlord
as the Subtenant's proper and lawful attorney-in-fact in respect of such
subordination.
(b) Except as otherwise expressly provided in this Sublease, the
terms, provisions, covenants, stipulations, conditions, rights, obligations,
remedies and agreements of the Prime Lease are incorporated in this Sublease by
reference and made a part hereof as if herein set forth at length, and shall, as
between Sublandlord and Subtenant (as if they were the Landlord and Tenant,
respectively, under the Prime Lease and as if the Subleased Premises being
sublet hereby were the Prime Lease Premises demised under the Prime Lease),
constitute terms of this Sublease, except to the extent that they do not relate
to the Subleased Premises or are inapplicable to, inconsistent with, or modified
or eliminated by, the terms of this Sublease. Except where: otherwise
specifically set forth herein or as may otherwise be clear intended by the
language of this Sublease, the terms "Landlord", "Tenant" "Premises" "Term"
"Fixed Rent" and "Additional Rent", as used in any such terms provisions,
covenants, stipulations, conditions, rights, obligations, remedies, and
agreements, of the Prime Lease that are incorporated into this Sublease, shall,
for the sake of this Sublease, be deemed to mean, respectively, Sublandlord,
Subtenant, Subleased Premises, Term, Base Rent, Additional Rent, as defined in
this Sublease. It is agreed and understood between the parties hereto that
Subtenant obtains and is granted by this Sublease no more rights and privileges
hereunder than Sublandlord has as Tenant under the Prime Lease. Sublandlord and
Subtenant acknowledge and agree that Subtenant has reviewed and is familiar with
the Prime Lease (except for those portions of the Prime Lease which have been
excised for reasons of confidentiality and which, Sublandlord represents and
warrants to Subtenant, have no applicability to the Subtenant or this Sublease)
and Sublandlord hereby represents that the copy delivered to Subtenant for such
purpose and attached hereto as Exhibit A is a true, correct and complete copy
(except for those portions of the Prime Lease which have been exceed for reasons
of confidentiality and which have no applicability to the Subtenant or this
Sublease) of such Prime Lease.
(c) In the event of a default by Sublandlord, as tenant under the
Prime Lease, resulting in the termination, reentry or dispossession thereunder,
Prime Landlord shall lake over all of the right, title and interest of
Sublandlord under this Sublease and Subtenant hereunder shall attorn to and
recognize Prime Landlord as Sublandlord hereunder except that Prime Landlord
shall not (i) be liable for any previous act or omission of Sublandlord under
this Sublease, (ii) be subject to any offset which theretofore accrued to
Subtenant against Sublandlord, or (iii) be bound by any previous modification of
this Sublease or by any previous prepayment of more than one month's rent, and
Subtenant shall, promptly upon Prime Landlord's request, execute and deliver all
instruments necessary or appropriate to confirm such attornment and recognition.
Except as otherwise provided in this Sublease, Subtenant hereby waives all
rights under any present or future law to elect, by reason of the termination of
such Prime Lease, to terminate this Sublease or surrender possession of the
Subleased Premises.
(d) Subtenant shall not have any rights or obligations of the
Tenant under the Prime Lease which have been excluded from incorporation into
the Sublease pursuant to Section 12 (b) of the Sublease.
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(e) In the event or any inconsistency between the Prime Lease and
this Sublease, such inconsistency (i) if it relates to obligations of, or
restrictions upon, Subtenant, it shall be resolved in favor of that obligation
which is more onerous to Subtenant or that restriction which is more restrictive
of Subtenant, as the case may be, or (ii) if it relates to the rights of, or
benefits to be conferred upon, Subtenant, it shall be resolved in favor of this
Sublease.
9. SUBTENANT'S OBLIGATIONS. Except as otherwise provided herein, all
acts to be performed and all of the terms, provisions, covenants, stipulations,
conditions, rights, obligations, remedies and agreements with respect to the
Subleased Premises, to be observed by Sublandlord, as Tenant under the Prime
Lease, to the extent incorporated into the Sublease, shall be observed and
performed by the Subtenant, and Subtenant's obligations shall run to Sublandlord
or the Prime Landlord as Sublandlord may determine to be appropriate or required
by the respective interests of Sublandlord and/or Prime Landlord. Subtenant
shall not (i) do or permit its employees, agents, contractors, or invitees to do
anything prohibited to Sublandlord, as tenant under the Prime Lease, or (ii)
take any action or do or permit its employees, agents, contractors, or invitees
to do anything which would result in any additional cost or other liability to
Sublandlord under the Prime Lease and/or this Sublease, except as authorized or
permitted under this Sublease.
10. SUBLANDLORD'S OBLIGATIONS. Anything contained in this Sublease or
in the Prime Lease to the contrary notwithstanding, Sublandlord shall have no
responsibility to Subtenant for, and shall not be required to provide, any of
the services or make any of the repairs or restorations that Prime Landlord has
agreed to make or provide, or cause to be made or provided, under the Prime
Lease, and Subtenant shall rely upon, and look solely to, Prime Landlord for the
provision or making thereof. Subtenant shall not make any claim against
Sublandlord for any damage which may arise, nor shall Subtenant's obligations
hereunder be impaired or abated by reason of (i) the failure of Prime Landlord
to keep, observe or perform its obligations pursuant to the Prime Lease, or (ii)
the acts or omissions of Prime Landlord and each of its agents, contractors,
servants, employees, invitees or licensees. In the event the Prime Landlord
shall fail to keep, observe, and perform any of its obligations with respect to
the making of any repairs or restorations which the Prime Landlord has agreed to
provide pursuant to the Prime Lease, then in such event, the Sublandlord shall,
upon receipt of written request from the Subtenant, use reasonable efforts (and
shall use its best efforts in the case where such failure has a material adverse
effect upon the Subtenant's use and occupancy of the Subleased Premises) to
cooperate with the Subtenant in enforcing the Sublandlord's rights (for the
benefit of the Subtenant) with respect to such obligations, against the Prime
Landlord, pursuant to the Prime Lease
11. COVENANTS WITH RESPECT TO THE PRIME LEASE.
(a) The Subtenant covenants and agrees that it, its agents,
employees or anyone claiming from, through or under the Subtenant, will not do,
any act or omission (the reference to omission to be applicable only in those
instances where Subtenant has had a legal or contractual duty to act) which
would (i) constitute a breach, violation or default by the Sublandlord of any of
the terms, covenants, conditions or provisions of the Prime Lease, (ii) enlarge
any of the obligations of the Tenant under the Prime Lease, except as authorized
or permitted under this Sublease, or (iii) give the Prime Landlord the right to
terminate the Prime Lease.
(b) Subtenant shall deliver to the Sublandlord copies of all
notices, requests, demands or other communications which relate to the Subleased
Premises or the use or occupancy thereof after receipt of the same from Prime
Landlord or others.
(c) Sublandlord shall not incur any liability whatsoever to
Subtenant for any injury, loss, damage (whether direct, indirect, consequential
or incidental) or inconvenience incurred or suffered by Subtenant as a result of
the exercise by Prime Landlord of any of the rights reserved to Prime Landlord
under the Prime Lease, nor shall such exercise constitute a constructive
eviction of Subtenant or default by Sublandlord hereunder, provided such
exercise does not result from the willful misconduct of the Sublandlord, in
which case, except as otherwise provided in this Sublease, Subtenant's right to
recover for damages resulting directly from such willful misconduct shall not be
deemed waived by the terms and provisions of this Section 10(c).
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(d) Sublandlord shall have the right, but not the obligation, to
cure any default (which shall have continued beyond any applicable period for
cure thereof) by Subtenant under the Prime Lease; and whenever Sublandlord so
elects, all costs and expenses (including reasonable attorney's fees and
expenses and court costs) incurred by Sublandlord in curing Subtenant's default
shall be paid by Subtenant to Sublandlord on demand with interest at the prime
commercial rate of BankBoston, as adjusted from time to time, plus 2% per annum,
but in no event more than the maximum rate of interest allowed by law, which
interest shall accrue from the date on which Sublandlord incurred such costs and
expenses.
12. MODIFICATION OF PRIME LEASE. For the purposes of this
Sublease, the terms of the Prime Lease are subject to the
following deletions, exclusions and modifications:
(a) In all provisions of the Prime Lease requiring the approval or
consent of Prime Landlord, Subtenant shall be required to obtain the approval or
consent of both Prime Landlord and Sublandlord. In all provisions of the Prime
Lease requiring that notice be given to Prime Landlord, Subtenant shall be
required to give notice to both the Prime Landlord and Sublandlord.
(b) Notwithstanding any other provisions of this Sublease or the
Prime Lease, the following provisions of the Prime Lease do not apply to
Subtenant and are hereby deleted with respect to this Sublease:
Section 1. with respect to the following terms only:
Annual Fixed Rent, Tenant Uses, Security Deposit,
Schedules A and B, and Exhibit ER
Section 2.
Section 3.
Sections 6.1, 6.2, 6.3, 6.4, 6.5, and 6.6.
Sections 7.1, 7.2, 7.3, 7.6 (except to the extent applicable or
required for reference under or in accordance with Section 27 of this Sublease),
7.9, 7.13, and the words in the first line of Section 7.11 "To use the Premises
only for the Tenant's Uses (as defined in Section 1)" are hereby deleted from
Section 7.11 and the following is hereby substituted in lieu thereof: "To use
the Subleased Premises only for the uses permitted pursuant to Section 7 of the
Sublease,".
Section 9 (except Section 9.2 and 9.6, which shall incorporated
herein).
Sections 10.1 (3rd, 4th, 5th, 8th, and 9th sentences thereof only) and
10.2.
Section 12.
Section 13.
13. INSURANCE
(a) Subtenant agrees to maintain insurance throughout the term of
this lease as follows:
(b) Property insurance on Subtenant's personal removable property,
furniture, fixtures and equipment, and any leasehold improvements which are made
by Subtenant, in any amount no less than the replacement cost, on an "all-risk"
basis, including flood and earthquake coverage.
(c) Commercial general liability insurance (including bodily
injury, property damage, personal injury and advertising injury insurance, and
contractual liability coverage in a form no less broad than the standard ISO
language), in an amount no less than $1,000,000 per occurrence, $3,000,000
annual aggregate.
(d) Workers compensation insurance as required by the Commonwealth
of Massachusetts
(e) No deductible shall be permitted on any policy unless the
procuring party assumes all liability of such deductible and (in the event of an
insured loss) pays the amount of the deductible to the entitled party.
(f) All required insurance shall be written in companies with an AM
Best rating of A or higher which are approved by Sublandlord and the Prime
Landlord, which approval shall not be unreasonably withheld. All policies shall
require 30 days written notice of cancellation or material change in terms be
provided to Sublandlord. Subtenant agrees to provide certificates of insurance
evidencing the above coverages to Sublandlord prior to its occupancy of the
premises, and will provide renewal certificates of insurance prior to the
expiration of any certificates.
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(g) Subtenant acknowledges that Sublandlord will not carry any
insurance in favor of Subtenant, and that neither Prime Landlord nor Sublandlord
will carry insurance on Subtenant's furniture and/or furnishings or any fixtures
or equipment, improvements or appurtenances of Subtenant in or about the
Subleased Premises.
(h) All insurance required to be carried hereunder shall include
Prime Landlord and any holders of mortgages on the Building as additional
insureds, and insurance required to be carried by Subtenant hereunder shall also
include the Sublandlord as an additional insured to the extent Subtenant is
required to indemnify Sublandlord under the indemnification obligation(s) as set
forth in Section 15 of this Sublease.
14. WAIVER OF SUBROGATION.
(a) Subtenant agrees to waive all right of claim against
Sublandlord and the Prime Landlord for property damage and consequential loss
which is covered by insurance, or which would have been covered had the required
insurance been maintained. Sublandlord agrees to waive all right of claim
against Subtenant for property damage and consequential loss which is covered by
insurance, or which would have been covered had the required insurance been
maintained. It is agreed by both parties that any loss which is within a
deductible shall be treated as if it was covered by insurance.
(b) Subtenant further agrees that it will not initiate a claim for
subrogation against Sublandlord or Prime Landlord for any injury to its
employees, however caused. Subtenant retains the right to join in an action
filed by its employee, if initiated independently of Subtenant, subject to the
indemnification provisions in Section 15 hereof.
(c) Anything in this Sublease to the contrary notwithstanding,
Sublandlord and Subtenant shall each secure an appropriate clause in, or an
endorsement upon, any "all-risk" property insurance policy obtained by it and
covering the Prime Lease Premises, the Subleased Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against such third party. The waiver of subrogation or permission for waiver of
any claim herein before referred to shall extend to the agents of each party and
its employees and shall also extend to all partners of Sublandlord or Subtenant.
15. INDEMNIFICATION.
(a) Subtenant shall indemnify, defend with competent and
experienced counsel reasonably acceptable to Sublandlord, and hold harmless
Sublandlord and the Prime Landlord, their subsidiaries and affiliates and their
respective officers, directors, trustees, beneficiaries, shareholders and
employees, from and against any liability for injury, loss, accident or damage
to any person or property, and from and against any and all damages,
liabilities, actions, causes of action, suits, proceedings, claims, demands,
losses, costs and expenses (including without limitation reasonable attorneys'
fees and disbursements and court costs), whatsoever caused by any act or
omission (the reference to omission to be applicable only IN those instances
where Subtenant has had a legal or contractual duty to act) of Subtenant, its
employees, agents, representatives, independent contractors or invitees,
including but not limited to, (i) Subtenant's use and occupancy of the Subleased
Premises (including any part of the Building or the Subleased Premises used in
common with any other parties, including the Sublandlord) and (ii) the
nonperformance or non-observance by Subtenant, its employees, agents,
representatives, contractors, invitees or licensees of any terms, provisions,
covenants, stipulations, conditions, representations, warranties, obligations
and agreements contained in this Sublease or in the Prime Lease for which the
Subtenant is obligated pursuant to this Sublease, except to the extent that such
liability results from the negligence or willful misconduct of the Sublandlord.
(b) Sublandlord shall indemnify, defend with competent and
experienced counsel reasonably acceptable to Subtenant, and hold harmless
Subtenant, its subsidiaries and affiliates and its respective officers,
directors, shareholders and employees, from and against any liability for
injury, loss, accident or damage to any person or property, and from and against
any and all damages, liabilities, actions, causes of action, suits, proceedings,
claims, demands, losses, costs and expenses (including without limitation
reasonable attorneys' fees and disbursements and court costs) to the extent
caused by Sublandlord, its employees, agents, representatives, independent
contractors or invitees.
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(c) The party seeking indemnification under this Section (the
"Indemnified Party") shall provide prompt written notice of any third party
claim to the party from whom indemnification is sought (the "Indemnifying
Party"). The Indemnifying Party shall have the right to assume exclusive control
of the defense of such claim or at the option of the Indemnifying Party, to
settle or compromise the same. The Indemnified Party agrees to cooperate
reasonably with the Indemnifying Party in connection with the performance of the
Indemnifying Party's obligations under this Section.
(d) Notwithstanding anything to the contrary contained in this
Sublease, neither party hereto shall be liable to the other for any indirect,
special, consequential or incidental damages (including without limitation loss
of profits, loss of use or loss of goodwill) regardless of (i) the negligence
(either sole or concurrent) of either party or (ii) whether either party has
been informed of the possibility of such damages. It is expressly understood and
agreed that damages payable by either party to Prime Landlord shall be deemed to
constitute direct damages of such party.
(e) The provisions of this Section shall survive the expiration or
earlier termination of this Sublease.
16. SUBTENANT'S WORK.
(a) The Subtenant shall secure, pay for, and deliver all permits
(including building permits) and certificates related to occupancy required to
enable the Subtenant to conduct business in the Subleased Premises for their
intended use as set forth in this Sublease, and or which may be required with
respect to any work performed by or on behalf of Subtenant.
(b) It is agreed and understood that the Subtenant intends to make
some initial changes to the Subleased Premises to make the Subleased Premises
appropriate for the Subtenant's use. Prior to performing any such initial
Subtenant's Work (as hereinafter defined), the Subtenant, at its own cost and
expense, shall have prepared and submitted, and the Sublandlord shall have
approved in writing, which approval shall not be unreasonably withheld, delayed
or conditioned, the plans and specifications covering such Subtenant's Work in
the Subleased Premises.
(c) All construction by the Subtenant shall be done in a good and
workmanlike manner, and in accordance with all applicable governmental building
codes.
(d) If any mechanic's or other lien, charge or order for payment
shall be filed against the Subleased Premises, on account of work done by, or on
behalf of, the Subtenant, the Subtenant shall, at its expense, cause the same to
be discharged of record by bond or otherwise, within ten (10) days after notice
to the Subtenant of the filing of such lien, and shall hold Sublandlord harmless
from any losses, costs, and expenses in connection with such work.
(e) Subtenant covenants to commence as soon as it is reasonably
able to do so after commencement of the term of this Sublease and diligently
prosecute to completion the work as described, specified and indicated on
Exhibit C attached hereto and incorporated herein by reference (the "Subtenant's
Work"). All Subtenant's Work shall be performed in a good and workmanlike
manner, using only new materials or their equivalent, free and clear of all
liens and encumbrances and Subtenant agrees that with respect to Subtenant's
Work it shall comply with all reasonable procedures and regulations prescribed
by Sublandlord from time to time for coordination of such work with other work
in the Building. Prior to commencing any work in the Subleased Premises,
Subtenant shall (a) file the requisite plans and specifications for Subtenant's
Work (which shall have previously been approved by Sublandlord, which approval
shall be solely for Sublandlord's purposes and shall not constitute the
assumption of any responsibility by Sublandlord for the accuracy or sufficiency
of any such plans and specifications or the compliance thereof with any
governmental or other requirements, the responsibility for all of which being
solely that of Subtenant) with, and obtain all requisite approvals from, all
governmental departments or authorities having jurisdiction and any public
utility company having an interest therein and (b) deliver to Sublandlord a
policy or policies of workman's compensation, liability and property damage
insurance naming Sublandlord as an additional insured in limits as provided in
Section 13. Subtenant covenants and agrees that it will not, in the course of
the performance of Subtenant's work, interfere with or hinder the operation of
the Sublandlord or the business of any other tenant or occupant of the Building
or any portion thereof, nor will Subtenant do or permit anything to be done that
might create any work stoppage, picketing, or other labor dispute which might
interfere with the operation of any work or activities being conducted by
Sublandlord or by any tenant, agent, employee or contractor of Sublandlord.
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17. CONDITION OF THE SUBLEASED PREMISES AND SUBTENANT'S CHANGES,
ALTERATIONS, ADDITIONS, AND/OR MODIFICATIONS.
(a) Subtenant represents it has made a thorough examination of the
Subleased Premises and it is familiar with the condition thereof. Subtenant
acknowledges that it enters into this Sublease without any representation or
warranties, except as specifically set forth in this Sublease, by Sublandlord,
its agents, representatives, employees, servants, brokers, or anyone acting or
purporting to act on behalf of Sublandlord or Prime Landlord, or any other
person or entity, as to the present or future condition of the Subleased
Premises or the appurtenances thereto or any improvements therein or of the
Building and it is further agreed that Subtenant does and will accept the
Subleased Premises "as is" in their present condition and Sublandlord has no
obligation to perform any work therein except as specifically set forth on
Exhibit D, attached hereto and incorporated herein by reference.
(b) Notwithstanding anything to the contrary contained in or
inferred by the Prime Lease or elsewhere in this Sublease, Subtenant shall not,
without the prior written consent of Sublandlord, which consent shall not be
unreasonably withheld, delayed or conditioned, (i) make any changes,
alterations, modifications, or additions of any nature whatsoever to the
Subleased Premises, including, without limitation, structural and/or
non-structural changes, (ii) do anything upon the roof, (iii) make changes to
locks on doors, or (iv) add or disturb or in any way change any plumbing or
wiring, or any mechanical, electrical, electronic or communications systems, in
or upon or with respect to the Subleased Premises or which may in any manner
affect or impact the Building or any use thereof. All changes, alterations,
modifications or additions shall be performed and/or constructed in accordance
with the requirements of the Prime Lease and this Sublease.
(c) All changes, alterations, modifications or additions shall be
made and/or performed strictly in accordance with all laws, statutes, orders,
codes, regulations, ordinances and requirements of insurers relating thereto.
Subtenant shall require any contractor, mechanic, or other provider of labor
and/or other services with respect to the Subtenant's Work and/or changes,
alterations, modifications, or additions of any nature whatsoever to the
Subleased Premises or which may have any affect or impact upon the Building to
provide lien waivers and liability insurance with respect to and covering same.
(d) Sublandlord shall have the right to approve any architect,
contractor, mechanic, or other provider of labor and/or other services with
respect to the Subtenant's Work and/or changes, alterations, modifications, or
additions of any nature whatsoever to the Subleased Premises or which may have
any affect or impact upon the Building.
(e) It is agreed and understood that all terms, conditions,
requirements, and approvals applicable with respect to the Subtenant's Work
shall also apply with respect to any other work performed by or on behalf of the
Subtenant with respect to the Subleased Premises.
18. DEFAULT.
(a) In the event of Subtenant's default, Subtenant's rights and
obligations shall be governed by this Sublease and not by the terms of the Prime
Lease. If Subtenant defaults by (w) failing to pay Base Rent, Additional Rent,
or any other charge of any nature whatsoever when it becomes due, (x) failing to
keep or to perform any covenant or obligation made incumbent upon Subtenant
under any part of this Sublease, or under any part of the Prime Lease, as
incorporated into this Sublease, or (y) by failing to pay any amount otherwise
due from Subtenant to Sublandlord, or (z) in the event of default by Subtenant
in violating or neglecting any other covenant, agreement or stipulation therein
contained on Subtenant's part to be kept, performed or observed, and any such
default shall continue for five (5) days for defaults under clauses (w) and (y)
above, and twenty (20) days for defaults under clauses (x) and (z) above, after
notice thereof is given to Subtenant provided however that said twenty (20) day
period shall be extended by up to twenty (20) days with respect to matters set
forth in subsections (x) and (z) hereof (provided Subtenant shall have commenced
to remedy same within said twenty (20) day period and shall be diligently
proceeding therewith), or if the leasehold interest of Subtenant in the
Subleased Premises shall be taken or levied upon by attachment, execution or
other process, or if a receiver, trustee, guardian, conservator or similar
officer shall be appointed to take charge of Subtenant or any of Subtenant's
property, whether in the Subleased Premises or not, or to windup Subtenant's
business or affairs, or if any assignment
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is made for the benefit of Subtenant's creditors; or if
Subtenant files a petition under any bankruptcy or insolvency law or if such a
petition is filed against Subtenant and is not dismissed within sixty (60) days;
or if Subtenant abandons the Subleased Premises; then, and in any such ease, to
the extent permitted by applicable laws, and in addition to other remedies, now
or hereafter provided by law, Sublandlord may, at its option without waiving any
other remedies for such default herein or at law or by incorporation by
reference of the Prime Lease, (i) terminate, cancel and annul this Sublease at
once and enter and take possession of the Subleased Premises immediately without
any previous notice of intention to reenter, and may remove all persons and
property from the Subleased Premises in order to recover, at once, full and
exclusive possession of the Subleased Premises, and/or (ii) Sublandlord may cure
such default for the account of Subtenant, and any amount paid or incurred by
Sublandlord in so doing shall be deemed paid or incurred for the account of
Subtenant and Subtenant agrees promptly to reimburse Sublandlord therefor and
save Sublandlord harmless therefrom, and/or (iii) recover damages or other
payments or awards from Subtenant in accordance with Section 9.2 of the Prime
Lease (excluding the third sentence of said Section 9.2(b) ). If this Sublease
shall be terminated, or if Sublandlord repossesses the Subleased Premises as a
result of any of the causes set forth above in this Section, then Subtenant
shall remain liable to Sublandlord for all loss, damages, costs, and expenses
sustained by Sublandlord by reason of such termination, cancellation or
repossession, including but not limited to reasonable attorneys fees, brokerage
commissions, finders fees, and all costs and expenses sustained in connection
with the reletting of the Subleased Premises (including those sustained in
connection with the repair of the Subleased Premises to the extent required to
bring the Subleased Premises back to their condition at the commencement of this
Sublease, reasonable wear and tear excepted), subject to the terms of said
Section 9.2 (excluding the third sentence of said Section 9.2(b) ). Sublandlord
may take such further action in law or equity as is generally permitted
landlords under the laws of the jurisdiction in which the Subleased Premises is
located.
(b) In the event that Subtenant shall default in the payment of
Base Rent, Additional Rent or any other charge payable hereunder, or shall
default in the performance or observance of any of the terms, conditions and
covenants of this Sublease, to be performed and/or observed by the Subtenant,
Sublandlord, in addition to and not in limitation of any rights otherwise
available to it, shall have the same rights and remedies with respect to such
default as are provided to Prime Landlord under the Prime Lease with respect to
defaults by Sublandlord as Tenant thereunder, with the same force and effect as
though all such provisions relating to any such default or defaults were set
forth herein in their entirety, and Subtenant shall have all of the obligations
of the tenant under the Prime Lease with respect to such default or defaults.
(c) If Subtenant fails, more than one time in any twelve (12) month
period, to pay any installment of Base Rent or other periodically due sum within
two (2) days after the same is due and unpaid, or fails to make any other
payment for which Subtenant is obligated under this Sublease within five (5)
days after notice from Sublandlord, then Subtenant shall pay to Sublandlord a
late charge equal to the lesser of five percent (5%) of the amount so payable or
$1,000. Subtenant acknowledges that late payments will cause Sublandlord to
incur costs not contemplated by this Sublease, the exact amount of which costs
are extremely difficult and impracticable to calculate. The parties agree that
the late charge described above represents a fair and reasonable estimate of the
extra costs incurred by Sublandlord as a result of such late payment. Any unpaid
balance of any Base Rent, Additional Rent or other charges to be paid by the
Subtenant to the Sublandlord shall bear interest, from the date such unpaid
balance shall have existed up to and including the date such balance shall be
fully paid, payable to the Sublandlord upon demand at the prime commercial rate
of BankBoston, as adjusted from time to time, plus 2% per annum, but in no event
more than the maximum rate of interest allowed by law.
19. DESTRUCTION, FIRE AND OTHER CASUALTY.
In the event (a) the Building is destroyed, or so damaged by a fire or other
casualty (a "Casualty") coverable by insurance that Sublandlord and/or Prime
Landlord is obligated to maintain as to render more than twenty-five percent
(25%) of the ground floor area thereof untenantable, or (b) the Subleased
Premises or the Building shall be destroyed or damaged to the extent of more
than twenty-five percent (25%) of the value thereof by any Casualty other than
one coverable by insurance that Sublandlord or Prime Landlord is obligated to
maintain, then, in either of such events, Sublandlord or Prime Landlord may at
its election, exercisable by written notice given to the Subtenant within fifty
(50) days after such casualty, terminate this Sublease as of the date designated
by such party in such notice, which designated
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date shall not be less than ten (1O) days nor more than twenty (20) days after
the date of such notice. In the event the Subleased Premises is destroyed or
damaged, to the extent of more than twenty percent (20%) of the floor area
thereof, then in such event, either Sublandlord or Subtenant may at its
election, exercisable by written notice given to the other within fifty (50)
days after such casualty, terminate this Sublease as of the date designated by
such party in such notice, which designated date shall not be less than ten (10)
days nor more than twenty (20) days after the date of such notice.
Notwithstanding the Subtenant's initial right to terminate this Sublease in
accordance with the terms and provisions of the next preceding sentence, the
Subtenant shall not have such right of termination in the event the Sublandlord
notifies the Subtenant within the later of (i) twenty (20) days subsequent to
the Sublandlord's receipt of the Subtenant's notice of termination, or (ii)
fifty (50) days subsequent to such casualty, that it shall cause the damaged
portion of the Subleased premises to be restored within ninety (90) days
subsequent to such notification. Notwithstanding the rights of the Sublandlord
pursuant to the next preceding sentence, in the event the Sublandlord so
notifies the Subtenant more than thirty (30) days subsequent to such casualty,
then in such event: provided the Subtenant shall have entered into good faith
negotiations to occupy new office space instead of the Subleased Premises as a
result of such Casualty prior to receipt of any notification from the
Sublandlord, Sublandlord shall reimburse the Subtenant and the party with which
the Subtenant was negotiating for the reasonable attorneys' fees incurred by
each of said parties in connection with the leasing of such new office space,
not to exceed Ten Thousand ($10,000.00) Dollars.
20. TERMINATION IN EVENT OF TAKING. If the entire Subleased Premises
becomes subject to the exercise of the power of eminent domain (a "Taking"),
this Sublease shall terminate when Subtenant is required to vacate the Subleased
Premises. If by one or more Takings the floor area of the Subleased Premises is
reduced by more than twenty percent (20%) this Sublease may, at the option of
either Sublandlord or Subtenant, be terminated as of the date when Subtenant is
required to vacate the portion of the Subleased Premises so taken. If by one or
more Takings the floor area of the Building is reduced by more than twenty
percent (20%) this Sublease may, at the option of Sublandlord, be terminated as
of the date when Sublandlord is required to vacate the portion of the Building
so taken or as of the date when the Sublandlord or any of the other tenants or
occupants of the portion of the Building so taken are required to vacate the
same, as the case may be. Any exercise of a right of termination pursuant to
this Section of the Sublease shall be by written notice given from one party to
the other not more than thirty (30) days after the date on which the party
desiring to terminate receives notice of the Taking.
21. ABATEMENT OF RENT. In the event of any Casualty or Taking, a just
proportion of the Base Rent and Additional Rent paid or payable hereunder,
according to the nature and extent of the damage, shall be abated until
completion of all repairs or rebuilding or termination of this Sublease, as the
case may be; and in the case of a Taking that permanently reduces the area of
the Subleased Premises, a just proportion of the Base Rent and Additional Rent
shall be abated for the remainder of the Sublease Term.
22. ENVIRONMENTAL INDEMNIFICATION.
(a) Notwithstanding anything to the contrary set forth in this
Sublease or in the Prime Lease, Subtenant hereby indemnifies and shall defend
and hold Sublandlord harmless from and against all claims liabilities, damages,
costs, and expenses arising out of the presence of Hazardous Materials, (as
hereinafter defined) existing in, on or upon the Subleased Premises or the
Building proven (with Sublandlord bearing the burden of proof) to be as a result
of any act of the Subtenant, its agents, representatives, employees,
contractors, licensees, or invitees.
(b) Subtenant represents and warrants that it shall not use or
cause to be used any Hazardous Materials within the Subleased Premises or within
the Building which in any manner violates or may violate federal, state or local
laws, Ordinances, Rules, regulations or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials,
(c) Subtenant (i) shall be responsible for and shall comply with
all laws, roles, ordinances or regulations of any governmental authority having
jurisdiction over the Subleased Premises and the Building with respect to the
presence or removal of Hazardous Materials handled, released, placed, stored, or
in any way brought into, under, upon or within the Subleased Premises and/or the
Building, by
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and/or on behalf of the Subtenant, and/or compliance with any
environmental laws or ordinances relating to Hazardous Materials handled,
released, placed, stored, or in any way brought into, under, upon or within the
Subleased Premises and/or the Building or its use thereof, by and/or on behalf
of the Subtenant, (ii) shall be responsible for all costs including, but not
limited to, those resulting from monitoring, clean-up or compliance incurred
with respect to any Hazardous Materials proven (with Sublandlord bearing the
burden of proof) to have been placed in the Subleased Premises or the Building
by Subtenant or, its agents, representatives, employees, contractors, licensees,
or invitees, and shall be responsible for all such costs incurred with respect
to any Hazardous Materials placed in, on or under the Building by Subtenant or,
its agents, representatives, employees, contractors, licensees, or invitees and
(iii) Subtenant agrees to indemnify, defend and hold harmless Sublandlord from
and against any and all liabilities, losses, damages, including without
limitation, personal injury damage (including death) as well as damage to
property suits, actions, causes of action, costs, expenses (including without
limitation reasonable attorneys' fees and disbursements and court costs),
penalties, fines, demands, judgments, claims (and all sums paid for settlement
of claims) or liens (including without limitation liens or claims imposed under
any so-called "Superfund" or other environmental legislation) arising during or
after the Term as a result of a breach of the foregoing obligations by Subtenant
or from or in connection with the use, storage, release or discharge of
Hazardous Materials (as hereinafter defined) in or upon the Subleased Premises
and/or the Building proven (with Sublandlord beating the burden of proof to be
as a result of any act of the Subtenant, its agents, representatives, employees,
contractors, licensees, or invitees. Subtenant shall have no liability or
obligation with respect to the presence, before the Commencement Date, of
Hazardous Materials at or on the Subleased Premises or the Building.
(d) As used herein, "Hazardous Materials" means any material or
substance that is toxic, ignitable, reactive, or corrosive and that is regulated
by any local government, the Commonwealth of Massachusetts or the United States
government. "Hazardous Materials" includes any petroleum products, explosive or
radioactive materials, and any and all other material or substances that are
defined as "hazardous waste", "extremely hazardous waste", "hazardous material",
"hazardous substances", or "toxic substances" pursuant to state, federal or
local governmental law relating to hazardous or toxic materials and substances,
air pollution (including noise and odors), water pollution, liquid and solid
waste, pesticides, drinking water, community and employee health, environmental
land use management, storm water, sediment control, nuisances, radiation,
wetlands, endangered species, environmental permitting and petroleum products,
which laws may include, but not be limited to, the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended; the Toxic Substances Control Act;
the Clean Water Act; the National Environmental Policy Act, as amended; the
Solid Waste Disposal Act, as amended; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986; the Hazardous Materials Transportation Act, as
amended; the Resource Conservation and Recovery Act, as amended; the Clean Air
Act, as amended; the Emergency Planning and Community Right-to-Know Act, as
mended; the Occupational Safety and Health Act, as amended; comparable state
laws; and all rules and regulations promulgated pursuant to such laws and
ordinances.
(e) Sublandlord hereby indemnifies and shall defend and hold
Subtenant harmless from and against all claims liabilities, damages, costs, and
expenses arising out of the presence of Hazardous Materials (as hereinafter
defined) existing on or upon the Building upon the Commencement Date or
thereafter and proven (with Subtenant bearing the burden of proof) to be as a
result of any act of the Sublandlord, its agents, representatives, employees,
contractors, licensees, or invitees.
23. CONSENTS. Sublandlord's refusal to consent to or approve any matter
or thing, whenever Sublandlord's consent or approval is required under this
Sublease or under the Prime Lease, as incorporated herein, shall be deemed
reasonable if Prime Landlord has refused or failed to give its consent or
approval to such matter or thing.
24. SUBLEASE CONDITIONAL UPON CERTAIN CONSENTS. Sublandlord and
Subtenant each acknowledge and agree that this Sublease is subject to
Sublandlord's obtaining the unconditional consent of Prime Landlord in
accordance with the terms of the Prime Lease, and that if such consent shall not
be obtained by July 24, 1998, then either Sublandlord or Subtenant shall have
the right to terminate this
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Sublease upon giving written notice to the other and this Sublease
shall terminate, as of the date of receipt of such notice of termination,
provided the aforesaid consent of Prime Landlord is not received prior to the
receipt of such notice of termination. In the event of such termination, none of
the parties hereto shall have any liability to the other.
25. HOLDOVER AT THE END OF TERM. If Subtenant shall remain in
possession of the Subleased Premises or any part thereof after the expiration or
prior termination of the Term hereof, as the same may be extended, the parties
agree that no such holding over by Subtenant shall operate to extend or renew
this Sublease, and that any such holding over shall be construed as a
tenancy-at-will at one hundred fifty percent (150%) of the Base Rent (on a per
diem basis) in effect when such holding over shall have commenced, and such
tenancy shall otherwise be subject to all the terms, conditions, covenants and
agreements of this Sublease. Subtenant further agrees to pay to Sublandlord any
additional amounts payable by Sublandlord to Prime Landlord under the Prime
Lease by reason of any such holding over by Subtenant.
26. SECURITY. Subtenant understands that Subtenant is solely
responsible for securing its own Subleased Premises and that Sublandlord is not
responsible for the safety of persons and/or personal property located in the
Subleased Premises. Subtenant may, at its sole cost and expense, provide and
install a security system (which may include security personnel) in the
Subleased Premises provided that Sublandlord approves said security system as
well as the company providing any security services with respect to the
Subleased Premises (which approval shall not be unreasonably withheld, delayed
or conditioned) and that said security system does not interfere with the
Building's security system or access to any part of the Building or the
Subleased Premises.
27. ASSIGNMENT AND SUBLETTING.
(a) Except as provided in this Section 27(a), Subtenant, for
itself, its successors and assigns, expressly covenants that it shall not
assign, mortgage, pledge or otherwise transfer this Sublease, or any interest
therein, or sublet the Subleased Premises or any portion thereof, or any right
or privilege appurtenant thereto, or suffer any other person or entity to occupy
or use the Subleased Premises, or any portion thereof, or otherwise encumber
this Sublease, whether by operation of law or otherwise, without obtaining the
prior written consent of the Sublandlord and the Prime Landlord, which consent
(except as otherwise provided herein, including the additional criteria afforded
the Sublandlord) Sublandlord and Prime Landlord shall grant or deny in
accordance with the terms and conditions of Section 7.6 of the Prime Lease. It
is agreed and understood that notwithstanding the fact that the Subleased
Premises actually contains less than thirty thousand (30,000) square feet, any
subletting, assignment, or other transfer of any right or interest in or to this
Sublease or Subleased Premises shall be deemed to be as though it were with
respect to a premises consisting of more than thirty thousand (30,000) square
feet. It is further agreed and understood that the approval of the Prime
Landlord shall be in accordance with the terms and provisions of Section 7.6 of
the Prime Lease as applied to a sublease of space consisting of more than thirty
thousand (30,000) square feet. The Sublandlord shall be afforded all of the
rights granted to the Prime Landlord under Section 7.6 of the Prime Lease in
connection with the granting or denying of the Sublandlord's consent to any
subletting. In addition, the Sublandlord shall have the right to consider such
other factors as may be reasonable, in view of the fact that the Sublandlord
and/or other subtenants will be sharing certain facilities and services with any
prospective subtenant of the Subleased Premises, in determining whether or not
to grant its approval. In the event the Subleased Premises are sublet or this
Sublease is assigned in accordance with this Section 27(a)(i), then in such
event, Subtenant shall pay to Sublandlord or to Prime Landlord (in the event
this Sublease becomes a direct lease with the Prime Landlord), as Additional
Rent, all sums, amounts, charges, payments of every nature and kind, reasonably
attributable to the Subtenant's interest in this Sublease or the Subleased
Premises so transferred, (irrespective of (x) whether or not they are
attributable to rent of any nature (y) any stated purpose or (z) the person or
entity to which or to whom it is paid) which are provided to be paid under the
terms, provisions and conditions of such assignment or sublease which are in
excess of the amounts otherwise required to be paid pursuant to this Sublease,
after deducting subtenant's reasonable expenses (including, reasonable attorney
fees and brokerage fees/commissions, and improvements, approved by the
Sublandlord, in connection with the any such
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assignment or sublease). Notwithstanding anything contained herein to the
contrary, it is agreed and understood that a subletting pursuant to this Section
27(i) shall not be permitted unless (a) the parent (if any) of any such sublease
guarantees (in the form of guaranty acceptable to Sublandlord and Prime
Landlord) the performance of the terms, provisions, covenants, and obligations
of this Sublease by such sublease of the Subtenant, (b) Subtenant remains
primarily responsible for the performance of the terms, provisions, covenants,
and obligations of this Sublease, to be performed by the Subtenant, and (c)
Subtenant and such sublessee or assignee of the Subtenant have a combined net
worth of at least the greater of (xx) Five Million (5,000,000.00) Dollars or
(yy) two times the net worth of Subtenant.
(b) Sublandlord reserves the right to transfer and assign its
interest in and to this Sublease to any entity or person who shall succeed to
Sublandlord's interest in and to the Prime Lease.
(c) Consent by Sublandlord or Prime Landlord to any assignment,
transfer or subletting to any party shall not be construed as a waiver or
release of Subtenant from the terms of any covenant or its primary
responsibility under this Sublease, (or direct lease pursuant to Section 2(d),
as the case may be), nor shall consent to one assignment, transfer or Sublease
to any person, partnership, firm or corporation be deemed to be a consent to any
subsequent assignment, transfer or subletting to another person, partnership,
firm or corporation.
28. Notices.
(a) Whenever, by the terms of this Sublease, notice, demand or
other communication shall or may be given to either party, the same shall be in
writing and addressed as follows:
If to Sublandlord:
Designs, Inc.
66 B Street
Needham, MA 02494
Attention: General Counsel
If to Subtenant:
Atreve Software, Inc.
767C Concord Avenue.
Cambridge, MA 02138
Attention: President
or to such other address or addresses as shall from time to time be designated
by written notice by either party to the other as herein provided. All notices
shall be sent by registered or certified mail, postage prepaid and return
receipt requested, or by Federal Express or other comparable courier providing
proof of delivery, and shall be deemed duly given and received (i)if mailed, on
the third business day following the mailing thereof, or (ii) if sent by
courier, the date of its receipt (or, if such day is not a business day, the
next succeeding business day).
(b) Subtenant promptly shall deliver to the Sublandlord copies of
all notices, requests, demands or other communications which relate to the
Subleased Premises or the use or occupancy thereof after receipt of the same
from the Prime Landlord or others.
29. QUIET ENJOYMENT. As long as Subtenant is not in default under this
Sublease beyond any period for cure thereof, and otherwise performs and observes
all of the obligations, terms and conditions contained herein and in the Prime
Lease as herein incorporated, Subtenant shall peaceably and quietly have, hold
and enjoy the Subleased Premises subject to the terms set forth herein.
30. ESTOPPEL CERTIFICATES - The Subtenant shall, without charge, at any
time within ten (10) days after receipt of written request by the Sublandlord,
certify in writing to the Sublandlord, or any person, firm or corporation
specified by the Sublandlord:
(a) That this Sublease is unmodified and in full force and effect,
or, if there have been any modifications, that this Sublease is in full force
and effect as modified and stating the exact terms of any modifications thereto;
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(b) That to the best of Subtenant's knowledge, after due diligence
and inquiry, there either are or are not then existing any setoffs or defenses
against the enforcement of any of the terms or conditions of this Sublease and
any modifications hereof on the part of the Subtenant to be performed or
complied with, and, if so, specifying the extent of any setoffs or defenses
therein; and
(c) The dates, if any, to which the Rent, additional rent, and
other charges under this Sublease on the Prime Lease have been paid in advance.
The Subtenant shall similarly certify any additional information as Sublandlord
shall reasonably require.
31. SIGNS. Subtenant, at its expense, may install one sign on the
exterior of the Building (either on the front or side facia of the building) at
the southeastern corner of the Building, and a second sign upon the existing
pylon sign in the front of the Building, and a sign upon the entrance door
and/or doorway of the Subleased Premises, such signage shall comply with all
applicable building codes, regulations and laws; provided however, that the
dimensions, color, style and location of the signage shall be subject to
Sublandlord's written approval (and if necessary the Prime Landlord's approval).
Subtenant shall not display any other signs or advertisements on the exterior or
outside of the Building without the Sublandlord's written approval (and if
necessary the Prime Landlord's approval). The aforesaid approval from the
Sublandlord shall not be unreasonably withheld or delayed. All Signs approved by
Sublandlord shall be professionally designed and constructed in a first-class
workmanlike manner. Subtenant shall maintain Subtenant's sign(s) in good
condition at all times. Upon termination of this Sublease, Subtenant shall
remove Subtenant's signs at Subtenant's expense, and shall repair any damage
caused by this removal.
32. SUBTENANT AUTHORITY. Subtenant warrants and represents to
Sublandlord that: (i) Subtenant is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware and is duly
and legally qualified to do business as a corporation and has powers adequate
for the execution, delivery and performance of its obligations under the
Sublease and for carrying on the business now conducted or proposed to be
conducted by it, (ii) Subtenant has taken all necessary corporate action
required to make the Sublease the legal, valid and binding obligations they
purport to be, and that (iii) this Sublease is a legal, valid and binding
obligation of the Subtenant.
33. SECURITY DEPOSIT. Subtenant has delivered to Sublandlord an
irrevocable letter of credit in favor of Sublandlord in the amount of
$62,409.66, (the "Security Deposit"), to be held by Sublandlord as security for
the faithful performance and observance by Subtenant of the terms, conditions
and provisions of this Sublease and the Prime Lease, to the extent incorporated
into this Sublease, receipt of which Security Deposit is hereby acknowledged by
Sublandlord. If Subtenant fails in the payment or performance of its obligations
under this Sublease and such default continues after any applicable cure period,
Sublandlord may draw upon the Security Deposit to the extent necessary to cure
such default, and Subtenant shall be obligated to immediately reinstate such
Security Deposit to its original amount. Within thirty (30) days after the
expiration or sooner termination of the Term, Sublandlord shall return the
Security Deposit to Subtenant, after drawing upon such Security Deposit to the
extent necessary to cure any such defaults of Subtenant then continuing. It is
agreed and understood that: (i) the Subtenant shall be obligated to keep the
Security Deposit (whether pursuant to the original letter of credit or any
renewal, replacement, or substitute therefor) in its original amount during the
entire Term and (ii) the aforesaid Security Deposit, by its terms, shall be
directly assignable and otherwise transferable to the Prime Landlord in the
event this Sublease becomes a direct lease between the Prime Landlord and the
Subtenant. It is further agreed and understood that in the event this Sublease
becomes a direct lease between the Prime Landlord and the Subtenant, then in
such event, the aforesaid Security Deposit shall be immediately (i) increased in
amount to $124,819.32 and (ii) assigned and otherwise transferred to the Prime
Landlord. At Subtenant's option, Subtenant shall have the right to effect such
increase in the Security Deposit and assignment to the Prime Landlord by
delivering to Prime Landlord four irrevocable letters of credit, each in the
amount of $31,204.83, but otherwise conforming to the requirements of this
section 33. If Subtenant exercises such option, Prime Landlord shall return and
release the letter of credit comprising the Security Deposit to Subtenant
simultaneously with Subtenant's delivery to Prime Landlord of such four
substitute letters of credit. Upon payment by Subtenant to Prime Landlord of the
monthly installment of Base Rent
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<PAGE>
for each of the last four months of the term of such direct lease, if
Subtenant is otherwise not in default after the expiration of applicable cure
periods, Prime landlord shall return and release to Subtenant one such
substitute letter of credit or shall otherwise cooperate with Subtenant to
reduce the Security Deposit by $31,204.83.
34. Intentionally Deleted
35. PARKING FACILITIES.
(a) Subtenant and its officers, agents, and employees shall have
the exclusive right to use five (5) "Reserved Visitor" parking spaces and the
non-exclusive right to use up to 50 non-reserved parking spaces (on a first
come, first serve basis) in the parking lot serving the Subleased Premises and
the Building, as shown on Exhibit E attached hereto and incorporated herein by
reference and in accordance with the Rules and Regulations promulgated (in
accordance with Section 37 hereof) by the Sublandlord from time to time.
Subtenant shall park their vehicles only in the aforesaid areas as shown on
Exhibit E Subtenant has agreed that at least one of the parking spaces shall be
designated "handicapped", increased as the ratio of the required number of
handicapped parking spaces to the total number of parking spaces serving the
Subleased Premises as required by applicable codes shall be increased.
Sublandlord shall maintain and repair all parking areas, including the removal
of snow therefrom.
(b) Subtenant shall, upon written notice from Sublandlord, within
five (5)days, furnish Sublandlord, or its authorized agent, the State automobile
license plate number assigned to its automobile or automobiles and the
automobiles of all of its officers, agents and employees employed in the
Subleased Premises. Sublandlord, after notice to Subtenant that Subtenant or any
of its officers, agent or employees are not parking in said designated parking
areas may, at its option, in addition to any other remedies it may have, tow
away such vehicles at Subtenant's expense, and, in addition, after the second
such notice in respect of any such violating vehicle, Subtenant shall upon
demand pay to the Sublandlord the sum of $25.00 for each such subsequent
violation, such payment to be deemed an Additional Rent charge. Subtenant shall
not at any time park or permit the parking of any truck or any delivery vehicle
in the parking area. Subtenant shall require all trucks or other vehicles
serving Subtenant to use the Subtenant's entrance to the Subleased Premises on
the northeast corner of the Building. Subtenant shall cause all vehicles
servicing Subtenant to be promptly loaded or unloaded and removed; all such
trucks owned or operated by, on behalf of, or servicing Subtenant, shall be
compelled by Subtenant to comply in all respects with the Rules and Regulations
governing use of truck access, parking, loading and unloading facilities, and
permissible hours and places therefor, as the same may be from time to time
modified or amended by Sublandlord in its reasonable discretion; and any breach
thereof or failure to comply therewith shall be deemed for all purposes of this
Sublease to be a breach of or failure to comply with the terms and provisions of
this Sublease. It is agreed and understood that the loading docks which are
appurtenant to or part of the Building, and any lawn or "grassy areas", are not
included within the Subleased Premises or the common areas thereof, and neither
the Subtenant nor any of its employees, agents, servants, representatives,
contractors, licensees, or invitees shall have the right to use same.
36. SERVICES TO BE PROVIDED BY SUBLANDLORD.
(a) Subject to emergencies, repairs and maintenance, the
non-exclusive use and rights of other tenants, and conditions beyond the control
of Sublandlord or Prime Landlord, Sublandlord shall provide and make available
to the Subtenant and the Subleased Premises (i) heating, air conditioning, and
ventilation (herein sometimes referred to as "HVAC") in amounts reasonably
required for the comfortable use of the Subleased Premises in Sublandlord's sole
judgment (reasonably applied) during normal business hours from 7:00 am. to 7:00
p.m. Monday through Friday, except for the business holidays recognized by the
Sublandlord and as shown on Exhibit F, attached hereto and incorporated herein
by reference, and such HVAC as is necessary to keep the temperature in the
Subleased above 60 degrees and below 80 degrees at all other times, (ii)
electricity for normal lighting by standard overhead fluorescent fixtures and
all other normal and customary power requirements 24 hours per day, 7 days per
week (subject to Section 4(f)), (iii) weekday janitorial service to maintain the
Prime Lease Premises, including the Subleased Premises, and the common areas in
accordance with the procedures and standards set forth on Exhibit O attached
hereto and incorporated herein, (iv) stocking and maintenance of the
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kitchen/luncheon area, including the cleaning, maintenance,
repair and/or replacement of the counters, tables, chairs, sinks, dishwashers,
ovens, microwave ovens, refrigerators, coffee machines, vending machines, and
other kitchen related equipment, dishes, cups, mugs, cutlery, napkins, serving
utensils and the like, as well as providing coffee, tea, packaged soups, and
other snacks.
(b) Upon request from the Subtenant, the Sublandlord shall provide
HVAC services at times other than as indicated in Subsection (a) hereinabove. In
such event, Subtenant shall pay to Sublandlord an "After Hours Charge" for such
HVAC services provided at times other than as indicated in Subsection (a)
hereinabove, in accordance with Section 4 (f) of this Sublease.
(c) Sublandlord shall not be liable for, and Subtenant shall not be
entitled to any abatement of Base Rent or Additional Rent by reason of, (i) the
failure to furnish or delay in furnishing any of the services indicated
hereinabove, when such failure is caused by accident, breakage, repairs,
strikes, lockouts or other labor disturbances or labor disputes of any
character, or by any other cause, similar or dissimilar, beyond the reasonable
control of Sublandlord or Prime Landlord or (ii) the making of any repairs or
improvements to the Subleased Premises or to the Building, which repairs and
improvements shall be promptly and diligently performed.
37. RULES AND REGULATIONS. The Subtenant hereby agrees to conduct its
business within and about the Subleased Premises, including any common areas,
and to cause its employees, agents, servants, representatives, contractors,
licensees, and invitees to comply in all respects with the reasonable rules and
regulations with respect to the Subleased Premises and the Building, promulgated
by the Sublandlord from time to time (and given to Subtenant in writing), as the
same may be modified or amended by Sublandlord in its reasonable discretion (the
"Rules and Regulations"). A breach of the Rules and Regulations or failure to
comply therewith shall be deemed for all purposes of this Sublease to be a
breach of or failure to comply with the terms and provisions of this Sublease.
38. SMOKE FREE ENVIRONMENT. The Subtenant specifically recognizes that
the Building represents a smoke flee working environment and hereby agrees that
it will not permit any form of smoking within the Subleased Premises at any time
whatsoever.
39. NUMBER OF EMPLOYEES. Subtenant agrees that at no time during the
Term shall it permit more than one (1) person (including employees and
non-employees) per one hundred (100) square feet of the Subleased Premises to
work within the Subleased Premises Subtenant further agrees that at no time
during the Term shall it permit more than the number of persons (including
employees and non-employees) allowed by applicable code, regulation, and/or law
to work within the Subleased Premises
40. BROKER. Sublandlord and Subtenant represent and warrant to each
other that they have not dealt with any broker in connection with this Sublease
other than Jack Podgur, 245 Washington Street, Wellesley, MA 02181 ("Podgur"),
Sargent Goodchild and Robert McGuire of CB Commercial/Whittier Partners, LP, 600
Atlantic Avenue, Boston, MA 02210 ("CB Whittier"), and Lenny Owens of McCall &
Almy, Inc., One Post Office Square- 37th Floor, Boston, MA 02109 ("McCall").
Sublandlord shall be responsible for the brokerage commissions due to Podgur and
CB Whittier, pursuant to the terms of a brokerage agreement. Sublandlord shall
also be responsible for the payment of a fee to McCall in the amount of
$45,852.00, Subtenant shall indemnify Sublandlord against, and hold Sublandlord
harmless from, any claim from, or liability to, any other broker or any other
party with whom Subtenant shall have dealt in connection with this transaction,
and Subtenant shall also indemnify Sublandlord against, and hold Sublandlord
harmless from, any claim from, or liability to McCall in excess of the fee
indicated hereinabove.
41. Intentionally Deleted.
42. EXAMINATION OF SUBLEASE. Submission of this instrument for
examination or signature by Subtenant does not constitute a
reservation of or option to lease, and it is not effective as a lease or
otherwise until execution by and delivery to both Sublandlord and Subtenant.
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<PAGE>
43. RECORDING. Neither Sublandlord nor Subtenant shall record this
Sublease nor a short form memorandum hereof without the consent of the other.
Notwithstanding the foregoing, Sublandlord and Subtenant shall execute (if
requested by the other) and deliver to the other an instrument sufficient, when
recorded only to provide legal notice of the existence and the Term of this
Sublease, and either Sublandlord or Subtenant may file such instrument with the
Middlesex South Registry District of the Land Court.
44. SURVIVAL OF OBLIGATIONS. All provisions of this Sublease which
require the payment of money or the delivery of property after the termination
of this Sublease or require Subtenant to indemnity, defend or hold Sublandlord
harmless or require Sublandlord to indemnity, defend or hold Subtenant harmless,
shall survive the termination of this Sublease. It is specifically understood
and agreed that the provisions of Sections 5, 15, 18, and 22 of this Sublease
shall survive the expiration or earlier termination of this Sublease.
45. MISCELLANEOUS.
(a) AMENDMENT. This Sublease may not be extended, renewed,
terminated, supplemented, amended, varied, or otherwise modified in any manner
except by an instrument in writing signed by both Sublandlord and Subtenant.
(b) ENTIRE AGREEMENT. It is understood and agreed that all
understandings and agreements heretofore had between the parties hereto are
merged in this Sublease, which alone fully and completely expresses their
agreement, and that the same is entered into after full investigation, neither
party relying upon any statement, representation or warranty made by the other
not embodied in this Sublease.
(c) HEADINGS. The Section and/or paragraph headings appearing
herein and the organization of this Sublease are for purposes of description and
convenience only and are not deemed to be a part of this Sublease and shall not
control or alter the meaning of this Sublease.
(d) GOVERNING LAWS. The provisions of this Sublease shall be
governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
(e) WAIVER. No delay or omission on the part of either party to
this Sublease in requiring performance by the other party or in exercising any
right hereunder shall operate as a waiver of any provision hereof or of any
right hereunder, and the waiver, omission or delay in requiring performance or
exercising any right hereunder on any one occasion shall not be construed as a
bar to or waiver of such performance or right on any future occasion.
(f) REMEDIES CUMULATIVE. Any and all rights and remedies which
either party may have under this Sublease, at law or in equity, shall be
cumulative and shall not be deemed inconsistent with each other, and any two or
more of all such rights and remedies may be exercised at the same time insofar
as permitted by law.
(g) VALIDITY. If any term or provision of this Sublease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Sublease or the application of
such term or provision to other persons or circumstances shall not be affected
thereby, and each term and provision of this Sublease shall be valid and
enforceable to the fullest extent permitted by law.
(h) AUTHORITY. Sublandlord and the Subtenant represent and warrant
that their respective officers executing this Sublease are empowered and duly
authorized to so execute this Sublease on behalf of the parties they represent.
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<PAGE>
(i) RELATIONSHIP OF THE PARTIES. Sublandlord shall not be deemed,
in any way or for any purpose, to have become, by the execution of this Sublease
or any action taken hereunder, a partner of Subtenant in its business or
otherwise a joint venturer or member of any enterprise with Subtenant.
(j) SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
(k) FORCE MAJEURE. Except as may be otherwise specifically provided
herein, time periods for Sublandlord's or Subtenant's performance under any
provisions of this Sublease not involving the payment of money shall be extended
for periods of time during which the non-performing party's performance is
prevented due to circumstances beyond the party's control, including, without
limitation, strikes, embargoes, governmental regulations, acts of God, war or
other strife.
46. WORKSTATION PURCHASE: The Subtenant agrees that it is a specific
provision of this Sublease that Subtenant shall purchase, from Sublandlord,
Thirty Five (35) of the Herman Miller Ethospace workstations (with chairs) in
the Subleased Premises. It is agreed and understood that said workstations shall
be purchased on or before July 31, 1998. It is further agreed and understood
that the purchase price for each such workstation (and chair) is Two Thousand
Eight Hundred Eighty Dollars ($2,880.00). The purchase price with respect to
each work station shall be paid to the Sublandlord in thirty six (36) equal
monthly installment payments of Eighty Dollars ($80.00), which payment shall be
made separately but coincidentally with the monthly payments of Base Rent.
Payments with respect to the purchase of the workstations shall commence with
the first payment of Base Rent.
47. RIGHT OF FIRST OFFER. It is agreed and understood that Subtenant
shall have the right of first offer to sublease additional portion(s) of the
Building on the terms and conditions set forth herein provided (i) the Subtenant
is not then in default under this Sublease, beyond any period for cure thereof,
(ii) the Subtenant is then occupying all of the Subleased Premises and
conducting business therein, and (iii) this Sublease is then in full force and
effect
If at any time during the term of this Sublease, the Sublandlord
wishes to sublease a portion of the Building (not then occupied by the
Subtenant), to any party other than to the Prime Landlord or any constituent or
affiliated entity of the Prime Landlord, and excluding any portion of the
Building which the Sublandlord is taking back for its own use or which the Prime
Landlord or any constituent or affiliated entity of the Prime Landlord is taking
back from the Sublandlord, then in such event the Sublandlord must first offer
to sublease such portion(s) of the Building to the Subtenant. Sublandlord shall
first notify the Subtenant in writing ("Sublandlord's Offer") of the general
terms and conditions upon which it wishes to sublease the portion of the
Building, including at a minimum the Base and Additional Rent, the length of the
term, a description of the size and location of the premises, and any terms of
such sublease that will differ materially from the terms of this Sublease. The
Subtenant shall have a period of fifteen business days from the receipt of such
Sublandlord's Offer within which to accept same, in which event Sublandlord and
Subtenant shall enter into a sublease of such portion of the Building on the
terms and conditions of Sublandlord's Offer and to the extent not specified in
the Sublandlord's Offer, on the terms and conditions of this Sublease. If
Subtenant fails to accept the Sublandlord's Offer, which shall include the
acceptance of the terms and conditions referenced therein, within the aforesaid
fifteen (15) days, then Subtenant's right to sublease the portion of the
Building referenced in such Sublandlord's Offer shall be void and have no
further force and effect. It is agreed and understood that any acceptance by the
Subtenant of the Sublandlord's Offer shall be without contingencies, conditions,
or modifications.
48. SPECIAL TERMINATION RIGHT.
(a) The Subtenant shall have the right (the "Special Termination
Right") to terminate this Sublease on June 30, 2001 provided Subtenant shall
have given written notice to the Sublandlord, on or before January 1, 2001,
indicating Subtenant's exercise of such Special Termination Right.
(b) In the event the Subtenant exercises its Special Termination
Right, then in such event Subtenant shall immediately reimburse Sublandlord in
the total amount of (i) the sum of $93,614.49,
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and (ii) Forty Percent (40%) of all attorneys fees and
expenses, and brokerage commissions, fees and expenses, payable by the
Sublandlord, specifically including but not limited to those required pursuant
to Section 40 hereof, and (iii) all of Sublandlord's other unamortized costs and
expenses in connection with the subletting of the Subleased Premises (the
unamortized costs of such other costs and expenses not to exceed $15,000.00).
49. SUBLANDLORD AUTHORITY. Sublandlord warrants and represents to
Subtenant that: (i) Sublandlord is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware and is duly
and legally qualified to do business as a corporation in Massachusetts and has
powers adequate for the execution, delivery and performance of its obligations
under the Sublease and for carrying on the business now conducted or proposed to
be conducted by it, (ii) Sublandlord has taken all necessary corporate action
required to make the Sublease the legal, valid and binding obligations they
purport to be, and that (iii) this Sublease is a legal, valid and binding
obligation of the Sublandlord.
50. SUBLANDLORD REPRESENTATION. Sublandlord warrants and represents to
Subtenant that, as of the date this Sublease is executed by the Sublandlord,
Sublandlord has no actual knowledge that (i) it is in default under the Prime
Lease or (ii) any event has occurred which, after any applicable notice and/or
expiration of any applicable grace period, shall constitute a default by
Sublandlord under the Prime Lease.
51. DIRECT LEASE WITH PRIME LANDLORD. It is agreed and understood that
the following terms, provisions, modifications, deletions, and requirements
shall become effective and part of this Sublease only in the event this Sublease
becomes a direct lease between Subtenant and Prime Landlord as described and in
accordance with Section 2(d) of this Sublease:
(a) The following is added and incorporated into Section 4(d): "In
the event there is a vacancy in the Building, then in such event, the Operating
Costs that vary according to occupancy shall be extrapolated to 100% occupancy
(It is understood and agreed that there shall be no extrapolation with respect
to taxes, insurance costs, and such other costs that are independent of and
unaffected by occupancy levels.)."
(b) The following is deleted from the last sentence of Section
4(d): "...together with a copy of the paid and receipted bills with respect to
such Operating Costs..." and the following is inserted in lieu thereof "Upon
request from the Subtenant, Sublandlord shall provide sufficient back-up
information to substantiate and verify any notices and invoices sent in
accordance with the next preceding sentence.
(c) Section 15(b) is deleted.
(d) Section 40 is deleted.
(e) It is specifically understood and agreed that the terms,
provisions, rights and obligations of Section 8 of the Prime Lease remains in
effect in addition to the terms and provisions of Sections 19 and 20 of this
Sublease.
(f) Section 5(a)(ii): The words "and enacted, promulgated, or
amended subsequent to the Commencement Date" are to be deleted
(g) Section 5(0: The words "or decorative" are to be inserted
immediately after the word "advertising" in the second line, and the words" to
or painted" are to be inserted immediately after the word "attached" in the
second line.
(h) Section 1l(a): The words "permit or suffer" are to be inserted
immediately after the word "do" in the second line.
(i) Section 12(b): The references in this Section 12(b) to Section
7.9 and Section 9 of the Prime Lease are to be deleted. It being specifically
agreed and understood that in the event this Sublease becomes a direct lease
between the Prime Landlord and the Subtenant, then in such event, said Section
7.9 and Section 9 of the Prime Lease shall be deemed incorporated into this
Sublease.
(j) Section 18(a) is to be deleted in its entirety.
(k) Section 19: The last sentence of this section is to be deleted.
(1) Section 22(e): This Section is to be deleted in its
entirety.
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IN WITNESS WHEREOF, this Agreement of Sublease has been duly executed
as of the day and year first above written
SUBLANDLORD:
DESIGNS, INC. Attest:
By: /S/ELISABETH A. LIPTON By: /S/ANTHONY E. HUBBARD
-------------------------------- --------------------------
Name: Elisabeth A. Lipton Name: Anthony E. Hubbard
Title: Asst. Secretary Title: Asst. Secretary
Date: JULY 16, 1998 Date: JULY 16, 1998
------------------------------ ----------------
SUBTENANT:
ATREVE SOFTWARE, INC. Attest:
By: /S/GLENN D. HOUSE SR. By: /S/PHYLLIS DOHERTY
-------------------------------- -----------------------
Name: Glenn D. House Sr. Name: Phyllis Doherty
Title: President & CEO Title: CFO
Date: JULY 16, 1998 Date: JULY 16, 1998
------------------------------ ----------------
Each of the following parties, collectively referred to as the Prime Landlord,
hereby executes this Agreement of Sublease for the purpose of acknowledging and
consenting to this Agreement of Sublease including without limitation, for the
purpose of acknowledging, confirming, accepting, and agreeing to be bound by the
terms and provisions of Section 2(d) Section 14(a) and Section 27(a) of this
Agreement of Sublease.
G.W.B. Trusts A.C.F. Trusts
By: /S/ [ILLEGIBLE] By: /S/ [ILLEGIBLE]
-------------------------------- --------------------------
Name: Name:
as Trustee as Trustee but not individually
By: /S/ [ILLEGIBLE] By: /S/ [ILLEGIBLE]
-------------------------------- ----------------------------
Name: Name:
as Trustee but not individually as Trustee but not individually
R.C.L. Trusts
By: /S/ [ILLEGIBLE]
--------------------------------
Name:
as Trustee but not individually
By: /S/ [ILLEGIBLE]
--------------------------------
Name:
as Trustee but not individually
This page 24 is the execution page with respect to the Agreement Of Sublease
between Designs, Inc. and Atreve Software, Inc. and dated as of July 1, 1998.
24
<PAGE>
[Rev. 11/20/75]
EXHIBIT A
Lease
by and between
Trustees of the R.C.L. Trusts, the G.W.B. Trusts, and the A.C.F. Trusts
LANDLORD
and
Designs, Inc.
TENANT
dated as of November 4, 1995
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
1. Definitions, References, Schedules 3
2. Lease and Rent 5
3. Terms and Condition 5
4. Quiet Enjoyment 13
5. Subordination, Estoppel Certificate 14
6. Additional Rent 15
7. Tenant's Covenants 21
8. Casualty or Taking 29
9. Default 33
10. Notice of Lease, Other Provisions 37
11. Holding Over 39
12. 40
13. 42
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<PAGE>
LEASE dated as of November 4, 1995
1. DEFINITIONS, REFERENCES, SCHEDULES
LANDLORD: The Trustees of the R.C.L Trusts, the G.W.B. Trusts, and the A.C.F.
Trusts, under Declarations of Trust dated March 30, 1955, respectively
recorded with the Suffolk County Registry of Deeds in Book 7046, Pages
196,202 and 208, and also filed in the Norfolk Registry District of
the Land Court as Documents Nos. 182959, 182958, and 182960
respectively, having an address c/o Blakeley Investment Co., 60 State
Street, Boston, MA 02109.
TENANT: Deigns, Inc., a Delaware corporation.
LAND: That certain real property located within the New England Industrial
Center in Needham, Massachusetts, as more particularly described in
Schedule A hereto.
BUILDING: That certain building known and numbered as 66 B Street, Needham,
Massachusetts, containing approximately 80,170 rentable square feet,
as more specifically shown on Schedule B-1 hereto. Tenant shall have
the exclusive right to use the parking spaces within the area marked
as "Parking Area" shown on Schedule B hereto, and elsewhere on the
Land as may be permitted by applicable laws.
PREMISES: The Building and the Land, including the sidewalks and parking areas,
all as described and shown on Schedules A and B-I hereto.
TERM: For a period commencing on November 11,1995, and expiring at the close
of the day on January 31, 2006, unless earlier terminated or extended
as provided herein.
ANNUAL FIXED RENT:
TENANTS USES: Office, light manufacturing and assembly, storage and equipment
servicing, but excluding retail sales.
INITIAL INSURANCE AMOUNTS:
Liability: Landlord's comprehensive
Bodily injury: $1,000,000/$3,000,000
Property damage: $1,000,000
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<PAGE>
Fire and Extended Coverage: Full replacement value
Rent Insurance: One year Fixed Rent and
Additional Rent
LANDLORD'S ADDRESS: c/o Blakeley Investment Co.
60 State Street
Boston, MA 02109
TENANTS ADDRESS: Prior to the Commencement Date:
1244 Boylston Street
Chestnut Hill, MA 02167
After the Commencement Date:
66 B Street
Needham, MA 02198
SECURITY DEPOSIT:
Each reference in this Lease to any of the above titles shall be
construed to incorporate the data stated above for that title. The following
additional sheets are attached to this Lease after the signatures and are
incorporated herein by reference, and to be so construed as a part of this Lease
and each party agrees to perform all obligations stated therein to be performed
by such party:
Schedule A - Description of Land
Schedule B - Plan showing Premises
Exhibit ER - Scope of Landlord's 21E Report
Exhibit SD - Form of Subordination, Non-Disturbance and
Attornment Agreement
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<PAGE>
2. LEASE AND RENT.
Landlord hereby leases unto Tenant the Premises, as shown on attached
Schedules A and B, subject to and with the benefit of the matters therein set
forth or referred to, together with all the improvements, appurtenances rights,
privileges and easements in anywise pertaining to the Premises including, but
not limited to, the right of ingress to and egress from the Premises and
parking facilities, and the right to use the elevators, stairways, corridors,
entrance ways, rest rooms, and other similar facilities that exist in and about
the Premises.
Tenant shall have the exclusive right to use the parking area as shown
on Schedule B, and parking spaces elsewhere on the Land as may be permitted by
applicable laws.
Tenant shall pay, promptly when due, without notice or demand and
without setoff or deduction of any amount whatsoever (except as specifically set
forth herein), monthly installments of 1/12 of the Annual Fixed Rent, in
advance, on the first day of each month for each full calendar month of the
Term, and the corresponding fraction of said 1/12 for any fraction of a calendar
month at the beginning or end of the Term (the "Fixed Rent"). All rent shall be
paid to Landlord, c/o Whittier Partners (the manager of the Premises), 155
Federal Street, Boston, MA 02110, unless Landlord shall designate some other
payee or address for the payment thereof by giving written notice to that effect
to Tenant at least thirty (30) days prior to the due date of the next payment,
and Tenant shall be entitled to rely on a notice purportedly from Landlord or
its designated representative without inquiry with respect thereto.
3. TERM AND CONDITION.
(a) Tenant shall have and hold the Premises for an initial Term
commencing on November 11,1995 (the "Commencement Date") and expiring at the
close of the day on January 31, 2006.
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<PAGE>
It is understood that Tenant wishes to perform renovations within the
Premises to ready same for its occupancy (the "Improvements Work"). The
Improvements Work shall be commenced by Tenant promptly after the Commencement
Date and Tenant's receipt of all required permits and approvals, and shall be
performed in accordance with complete plans and specifications prepared by
Tenant and approved in advance by Landlord. The Improvements Work shall be
performed in a good and workmanlike manner and in compliance with all applicable
laws. All of such Tenant improvements installed as part of the Improvements Work
and paid for by Tenant (beyond the reimbursement by Landlord to Tenant for same
as provided in this paragraph), or subsequently installed by Tenant in the
Premises and paid for by Tenant, shall remain the property of Tenant, but upon
the expiration or earlier termination of this Lease, shall thereupon become part
of the Premises and the property of Landlord without any payment for same by
Landlord. Landlord shall reimburse Tenant for costs and expenses incurred by
Tenant to third parties in connection with the Improvements Work, to a maximum
of $500,000.00. Such payments shall be made by Landlord by the later of (i)
thirty (30) days after Landlord's receipt of paid invoices evidencing such
work, or (ii) three (3) days after receiving executed lien waivers from Tenant's
contractors as to such work. At the option of Tenant, such payments may be made
directly to Tenant's contractors. Notice is hereby given that Landlord shall not
be liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's or other lien for any such labor or materials
shall attach to or affect the reversion or other estate or interest of Landlord
in and to the Premises. Whenever and as often as any mechanic's lien shall have
been filed against the Premises based upon any act or omission of Tenant or of
any labor and/or materials contracted for by Tenant, or of anyone claiming
through Tenant, Tenant shall forthwith take such actions by bonding, deposit or
payment as will promptly remove or satisfy the lien without cost to Landlord or
Tenant.
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In the course of performing the Improvements Work, Tenant agrees to
use labor compatible with that being employed by Landlord for work in or to the
Premises or other buildings owned by Landlord or its affiliates within the New
England Industrial Center, and not to employ or permit the use of any labor or
otherwise take any action which might result in a labor dispute involving
personnel providing services to the Premises or other properties owned or
managed by Landlord or its affiliates. Tenant's contractors shall carry general
liability and property insurance in type and amount reasonably satisfactory to
Landlord and with liability limits of coverage equal to or greater than the
limits stated in Section 1.
(b) The Landlord shall, at its sole cost and expense, contract for the
removal of all underground storage tanks located on or under the Premises and
the remediation of all environmental matters related to same to the extent such
remediation is required by applicable law (collectively, "Landlord's Work").
Promptly after completion of Landlord's Work, Landlord shall provide Tenant with
a report ("Landlord's 21E Report") by O'Brien & Gere Engineers, Inc., or other
engineering firm qualified to make reports under Massachusetts General Laws
Chapter 21E. The scope of Landlord's 21E Report shall be substantially in
accordance with the Proposal for Level I Environmental Site Assessment
Transaction Screening prepared by O'Brien & Gere Engineers, Inc. and dated
October 26, 1995, a copy of which is attached hereto as Exhibit ER.
(c) If Landlord's 21E Report (which term shall also include any
further testing and reports that were recommended in Landlord's 21E Report above
referred to) indicates that oil and hazardous waste not related to said
underground storage tank are located on the Premises, and if the engineering
firm preparing said Report reasonably estimates that the cost of remediating
same will be less than $10,000.00, then Landlord shall promptly clean-up and
dispose such substances or otherwise remediate same. If Landlord's 21E Report
indicates that oil and hazardous waste not related to said underground storage
tanks are located on the Premises, and if the engineering firm preparing said
Report reasonably
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estimates that the cost of remediating same will be at least $10,000.00, then
Landlord, at its option, may elect not to clean-up and dispose such substance or
otherwise remediate same. Such election shall be in writing ("Landlord's
Election") delivered to Tenant not later than sixty (60) days after Tenant's
receipt of Landlord's 21E Report which indicates that oil and hazardous waste
not related to said underground storage tanks are located on the Premises and
estimating that the cost of remediating same will be at least $10,000.00.
(d)(1) If Landlord elects not to clean-up and dispose of such
substances or otherwise remediate same as aforesaid, and if the presence of such
substances shall, based upon the reasonable business judgment of Tenant, have a
demonstrable and adverse impact (more then de minimus) on Tenant's ability to
use the Premises for Tenant's Uses, then, unless the parties otherwise agree in
writing, Tenant may either (i) elect at Tenant's own expense to perform the
remediation of the hazardous substances and in such event Landlord shall be
responsible for the first $10,000.00 (reduced by any amount previously spent by
Landlord for such remediation) of the cost of the remediation, or (ii) terminate
this Lease upon ten (10) days prior written notice delivered to Landlord not
later than sixty (60) days after Tenant's receipt of Landlord's Election, or
(iii) purchase the Premises at its then fair market value, which shall be
determined as provided hereinbelow. If Tenant elects to exercise its right to
purchase the Premises as aforesaid, Tenant shall do so by written notice to
Landlord ("Tenant's Exercise") given not later than sixty (60) days after
Tenant's receipt of Landlord's Election. If Tenant fails to exercise its
purchase option within the aforesaid time period, Tenant's right to purchase the
Premises shall expire. Promptly after receipt of Tenant's Exercise, Landlord and
Tenant shall negotiate in good faith to determine the fair market value of the
Premises (which shall take into account the current level of contamination of
same). If Landlord and Tenant are unable to agree as to the fair market value of
the Premises with thirty (30) days after Landlord's receipt of Tenant's
Exercise, then Landlord and Tenant shall each appoint one appraiser, and these
two appraisers shall, within ten (10) days thereafter, name a third. It shall
then be the duty of the appraisers to
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ascertain the fair market rental value of the Premises (which shall
take into account the current level of contamination of same), and if any
appraiser shall neglect or refuse to appear at any meeting appointed by the
appraisers, the two appraisers present may act in the absence of such appraiser.
The appraisers' determination of the fair market value of the Premises shall be
rendered not later than thirty (30) days after the appointment of the third
appraiser, and shall be conclusive and shall be binding upon Landlord and
Tenant. Landlord and Tenant shall each be responsible for the costs of their
respective appraiser, and Landlord and Tenant shall each be responsible for
fifty percent (50%) of the costs of the third appraiser.
(2) The Premises shall be conveyed on that date (the "Closing
Date") which is sixty (60) days after the determination of the fair market value
of the Premises in accordance with Subsection 3(d), by a good and sufficient
quitclaim deed (the "Deed") running to the Tenant or a nominee designated by the
Tenant by written notice to the Landlord at least seven (7) days before the
Closing Date. The Deed shall convey a record and marketable title to the
Premises, free from an encumbrances, except such title may be subject to:
(i) all matters set forth in Landlord's 21E Report;
(ii) those matters which, as of the date of this Lease
are set forth on the Certificate of Title(s) with
respect to the Premises;
(iii) taxes for the then current fiscal tax year, which
the Tenant shall pay (but not including such taxes
assessed for periods prior to the Commencement
Date, which taxes shall be the sole responsibility
of Landlord);
(iv) any betterment or other municipal charges which the
Tenant shall pay (but not including such charges
assessed for periods prior to the Commencement Date,
which charges shall be the sole responsibility of
Landlord);
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(v) takings by eminent domain or other acts of public
authority hereinafter arising, provided that the
fair market value shall reflect any such taking or
other act; and
(vi) all rights arising under the Lease unless Tenant
elects to merge same.
(3) If the Deed refers to a plan necessary to be recorded
therewith, the Landlord shall deliver such plan with the Deed in form adequate
for registration. The Deed shall be in a form sufficient to entitle the Tenant
to a Certificate of Title for the Premises, and the Landlord shall deliver with
the Deed all instruments, if any, necessary to enable the Tenant to obtain such
Certificate of Title.
(4) The purchase price shall be paid at the closing in cash, by
wire transfer or by certified, cashier's, treasurer's or bank check. The Deed
shall be delivered at the closing. Time is of the essence of this agreement.
(5) If the Landlord shall be unable to give title or to make
conveyance, or to deliver possession of the Premises, all as stipulated in this
Section 3, then the Landlord shall use its best efforts to remove any defects in
title, or to deliver possession as provided herein, as the case may be, and the
Closing Date shall be extended for a period of thirty (30) days. If at the
expiration of the extended time the Landlord has failed so to remove any defects
in title, or deliver possession, as the case may be, then, at the Tenant's
option, (i) the Tenant may terminate the Lease (including all rights contained
in this Subsection 3(d), or (ii) the Tenant may exercise its rights set forth
in Subsection 3(d)(6) below. The Landlord, in the exercise of its best efforts,
shall not be required to spend more than Fifteen Thousand and 00/100
($15,000.00) Dollars in order to remove defects in title or deliver possession
as aforesaid, provided that Landlord shall not be required to correct items or
matters which are the responsibility of Tenant under the Lease, and provided
further that the amount that the Landlord shall be required to expend to cure
defects or conditions voluntarily created by the Landlord shall not be subject
to such limitation. Notwithstanding the foregoing, in the event that on the
Closing Date there is a defect (an "Involuntary
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Defect) in title or a condition of the Premises that was not
voluntarily created by Landlord, which cannot be discharged by the payment of up
to Fifteen Thousand Dollars ($15,000.00) (which amount shall be reduced by
amounts previously expended by Landlord to correct such matter in preparing for
the Closing), the Closing Date may, at the option of the Tenant, be extended
until such time as the Involuntary Defect is removed or released, provided that
in no event shall the Closing Date be extended for more than an additional
ninety (90) days.
After Tenant exercises its option to purchase the Premises as
aforesaid, if Landlord receives notice of an Involuntary Defect the Landlord
shall make reasonable efforts, including but not limited to seeking judicial
relief with respect thereto, to remove, release or otherwise resolve the
Involuntary Defect, except that Landlord shall not be requested to expend more
than Fifteen Thousand Dollars ($15,000.00) (which amount shall be reduced by
amounts previously expended by Landlord to correct such matter in preparing for
the Closing) in connection with such efforts. Landlord shall, if required by
Tenant, from time to time provide information as to the nature and status of the
Involuntary Defect, and the steps being taken by Landlord to remove, release or
resolve said Defect.
(6) The Tenant may elect, at either the original or any extended
time for performance, to accept such title as the Landlord can deliver to the
Premises in their then condition and to pay therefor the purchase price without
deduction, in which case the Landlord shall convey such title.
(7) If, at any time before a closing following the exercise of the
option hereby granted, the Premises are damaged by fire or casualty, the
Landlord shall pay or assign to the Tenant at the closing all amounts recovered
or recoverable on account of any insurance covering such damage less any amounts
expended by the Landlord in restoring the Premises pursuant to its obligations
under the Lease. If, at any time before a closing following the exercise of the
option hereby granted, the Premises or any portion thereof or interest therein
are taken by eminent domain or other acts of public authority hereafter
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arising, the Landlord shall pay or assign to the Tenant at the closing all
amounts recovered or recoverable on account of any award arising from such
taking, less any amounts expended by the Landlord in restoring the Premises
pursuant to its obligations under the Lease or, at the option of the Tenant, the
Tenant may terminate this Lease.
(8) To enable the Landlord to make conveyance as provided in this
Subsection 3(d), the Landlord may, at the closing, subject to the limitation on
the Landlord's responsibilities described in this Subsection 3(d), use all or
any portion of the purchase price to clear the title of any encumbrances or
interests, provided that all instruments so procured are recorded simultaneously
with the delivery of said Deed.
(e) The removal of any underground storage tanks and any necessary
remedial action in connection therewith (including but not limited to the
excavation and removal of any oil-contaminated soil), and any other
environmental clean-up, disposal and/or remediation activity contemplated by
this Section may be performed while Tenant is in occupancy of the Premises and
shall not give rise to any abatement of rent or other financial adjustment in
favor of Tenant. Notwithstanding the foregoing, Landlord shall use reasonable
efforts to minimize any interference to Tenant's use and occupancy of the
Premises resulting from the performance of such work. Except for the
performance of Landlord's Work, and except that all of the removable property
belonging to the prior tenant of the Premises shall have been removed at no cost
to Tenant prior to the Commencement Date, the Premises are being taken by Tenant
in their condition as is, without representation or warranty of any kind by
Landlord. Tenant specifically acknowledges and agrees that it has inspected the
Premises and, except for the performance of Landlord's Work and the removal of
the prior tenant's personal property as aforesaid, has found same to be
satisfactory with respect to all matters, including, without limitation, with
respect to structural and architectural barriers, ADA compliance matters, and
with respect to lead paint, asbestos and other hazardous materials, and all
other environmental matters.
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(f) Tenant acknowledges that neither Landlord nor any agent or
representative or purported agent or representative of Landlord has made, and
Landlord is not liable for or bound in any manner by, any express or implied
warranties, guaranties, promises, statements, inducements, representations or
information pertaining to the physical condition of the Premises, the expenses
involved in the operation, maintenance, repair and replacement of the Premises
or portions thereof, or the uses which can be made of the Premises. All repairs,
alterations, additions and restoration by Tenant or Landlord hereinafter
required or permitted shall be done in a good workmanlike manner and in
compliance with all applicable laws and lawful ordinances, by-laws, regulations
and orders of governmental authority and of the insurers of the building. All
improvements, alterations and additions to the Building and fixtures and
equipment serving it made or installed at any time and paid for by Landlord or
for which Landlord has reimbursed the costs to Tenant shall be owned by Landlord
and shall be part of the Building, but not signs, machinery, fixtures or
equipment installed by Tenant and used in Tenant's business but not servicing
the Building (the "FF&E"), nor any items installed at Tenant's expense which
landlord has agreed prior to installation shall be removable by Tenant. All
Tenant improvements installed as part of the Improvements Work and paid for by
Tenant (beyond the reimbursement by landlord to Tenant for same), or
subsequently installed by Tenant in the Premises and paid for by Tenant, shall
remain the property of Tenant, but upon the expiration or earlier termination of
this Lease, shall thereupon become part of the Premises and the property of
Landlord without any payment for same by Landlord. Each party doing, or
contracting for, any construction or other work agrees to pay for it, and
discharge promptly any liens arising from it, and hold harmless the other party
from any loss, cost or expense in connection therewith.
4. QUIET ENJOYMENT
Landlord agrees that, provided Tenant is not in default under this
Lease beyond applicable notice and grace periods, Tenant shall peacefully and
quietly have and hold and
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enjoy the Premises through the Term or until it is terminated as herein
provided. Landlord represents that it is the fee owner of the Premises and has
the right and authority to lease the Premises to Tenant on the terms and
conditions set out herein.
5. SUBORDINATION, ESTOPPEL CERTIFICATE.
Tenant agrees that upon request of Landlord Tenant will execute and
deliver all such instruments as may be appropriate to subordinate this Lease to
any mortgages of the Premises securing notes or bonds issued by Landlord,
provided that the mortgagee of the Premises shall provide Tenant with a
subordination, non-disturbance and attornment agreement substantially in the
form attached hereto as Exhibit SD. Any mortgagee with respect to the Premises
may subordinate its mortgage to this Lease, without Tenant's consent, by notice
in writing to Tenant. Thereupon this Lease shall be deemed prior in lien to such
mortgage without regard to their respective dates of execution and delivery; and
in that event such mortgagee shall have the same rights with respect to this
Lease as though it had been executed and delivered prior to the execution and
delivery of the mortgage and had been assigned to such mortgagee. With respect
to any future mortgagee of the Premises, Tenant agrees to execute promptly a
subordination, attornment and non-disturbance agreement substantially in the
form attached hereto as Exhibit SD.
Tenant and Landlord each agree, within thirty (30) days after notice
by the other, to execute, acknowledge and deliver to the other a statement in
writing certifying that this Lease is unmodified and in full force and effect
and that the issuing party, to the best of its knowledge, has no defenses,
offsets or counterclaims against its obligations under the Lease including, with
respect to Tenant, the obligation to pay the Fixed Rent and Additional Rent and
any other charges and to perform its other covenants under this Lease (or, if
there have been any modifications that the same is in full force and effect as
modified and stating the modifications and, if there are any defenses, offsets
or counterclaims, setting them forth in reasonable detail), the dates to which
the Fixed Rent and Additional Rent and other charges have been paid and a
statement that to the best of the issuing party's knowledge the
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other party is not in default hereunder (or if in default, the nature
of such default, in reasonable detail). Any such statement delivered pursuant to
this Section may be relied upon by any prospective subtenant, assignee,
purchaser or mortgagee of the Premises, or any prospective assignee of any such
mortgage.
6. ADDITIONAL RENT.
6.1 Tenant shall for the Term pay, as Additional Rent, all real estate
taxes, public assessments, and insurance costs with respect to the Building and
Land as provided in this Section 6.
6.2 TAXES: Tenant shall pay to Landlord, for payment to the public
authorities charged with the collection thereof, all real estate taxes and water
and sewer use taxes assesed on the Building and Land for all tax periods wholly
included in the Term, and for any fraction of a tax period included in the Term
at the beginning or end, the corresponding fraction of the real estate taxes
assessed for the period. Promptly after receipt by Landlord of bills for such
Taxes, Landlord shall advise Tenant of the amount thereof and shall provide
Tenant with a copy of said bill. Such payment shall be made by Tenant to
Landlord by the later of (i) five (5) business days prior to the date such Taxes
are due to be paid without interest, or (ii) ten (10) business days after
receipt of the bills for such taxes. Provided Landlord has received same from
Tenant on a timely basis, Landlord shall pay the real estate taxes and water and
sewer use taxes assessed on the Building and Land prior to the due date
therefor. Payment for the period in which the Term ends shall be made not later
than the end of the Term, and if the amount is not then determinable shall be
made on the basis of the last prior tax bill, with readjustment as soon as the
correct amount is determinable. Landlord shall provide Tenant with evidence of
such payments upon request. Real estate taxes shall not include any capital
levy, franchise, estate, inheritance, succession, gift or transfer tax of
Landlord, or any income, profits, or excess profits tax, charge or levy upon the
income of Landlord. However, if at any time during the Term hereof a tax or
excise on rents as a form of taxation is levied upon or to Landlord
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as a verifiable substitute in whole or in part for real estate taxes assessed on
land and buildings, or either, or as an addition thereto, and not as a part of a
general income tax, Tenant shall pay the same at the same times and in the same
manner as hereinbefore provided with respect to real estate taxes, so far as
practicable.
6.3 ASSESSMENTS: In the event of any public special or betterment
assessments, Tenant shall be responsible for the payment thereof. Landlord shall
elect to have the assessments paid in installments over the longest period
permitted by law, and Tenant shall pay to Landlord with respect to such share of
such assessments, at least fifteen (15) days before they become due each
installment, including interest, coming due during the Term, and shall pay to
Landlord not later than the end of the Term for any fraction of an installment
period at the end of the Term, the corresponding fraction of the installment,
including interest, for the period. Landlord shall provide Tenant with evidence
of the payment of such payment upon request.
6.4 ABATEMENT PROCEEDINGS. Tenant may without postponement of payment
bring appropriate proceedings in the name of Landlord or Tenant or both, for
contesting the validity or amount of the taxes or assessments, or to recover
payments therefor, and agrees to save Landlord harmless from all costs and
expenses in connection therewith. Landlord shall cooperate with Tenant with
respect to the proceedings so far as reasonably necessary. Tenant shall be
entitled to amounts recovered which relate to payments made by Tenant.
If Landlord shall receive a tax abatement or refund of Taxes with
respect to any tax year within the Term, then, if Tenant shall have made any
payments on account thereof, Landlord shall pay to Tenant an amount equal to
Tenant's payments on account thereof, after deducting Landlord's expenses
reasonably incurred in obtaining such refund, provided (i) there does not then
exist a default of Tenant, and (ii) that in no event shall Tenant be entitled to
have either more than the payments made by Tenant on account of Taxes for such
tax year.
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6.5 INSURANCE. The insurance coverages described in Sections 6.5.1
through 6.5.5 hereinbelow shall be carried protecting Landlord and Tenant, and
first payable (including the payment of the amount of any deductible limits as
hereinafter set forth) in case of loss to Landlord without any deduction.
Subject always to the provisions of any mortgage encumbering the Premises from
time to time relating to the customary construction loan disbursement procedures
of the mortgagee and upon the condition that such mortgage is not in default,
Landlord, acting as an insurance trustee, shall retain such portion of the
insurance proceeds received by Landlord with respect to the insurance coverages
described in Scions 6.5.1 through 6.5.3 hereinbelow as required to repair and
reconstruct the Building and improvements on the Premises to the extent required
by this Lease, and shall remit the balance thereof to Tenant
6.5.1 Insurance providing for payment of replacement costs
against damage by fire (including debris removal and demolition) in an amount at
least equal to the replacement cost of the Building (including cost of debris
removal and, if required by Landlord, the foundation, all improvements,
alterations and additions to the Building and fixtures and equipment serving it
made or installed at any time by either Landlord or Tenant, but not the FF&E nor
that portion of Tenant's leasehold improvements for which Landlord did not pay
by reimbursing to Tenant the amount described in Section 3(a) of this Lease),
initially in the amount shown in Section 1, and after one (1) year, such greater
amount as from time to time determined by agreement or by appraisal (such
appraisal expenses to be paid by Tenant) by an accredited insurance appraiser
reasonably approved by Landlord which may be required by either party whenever
two (2) years have elapsed since the last such agreement or appraisal or
alterations or additions increasing value have been made; or in such greater
amount as required by any mortgagee of the Building and Land.
6.5.2 Insurance against damage by such other hazards
(including earthquake and flood and those customarily referred to as extended
coverage and war
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damage, when written) as may reasonably be required by
Landlord or by any mortgage lending institution holding a mortgage on the
Premises, or, if no mortgage exists on the Premises, as mortgage lending
institutions generally may from time to time require in case of similar
properties. Such insurance shall be initially in the amount shown in Section 1,
and after two (2) years, in such greater amount as Landlord or any mortgage
lending institution holding a mortgage on the Premises, or, if no mortgage shall
exist on the Premises, then as mortgage leading institutions generally may from
time to time require in case of similar properties.
6.5.3 Insurance against loss or damage from sprinklers and
from leakage or explosion or cracking of boilers, pipes carrying steam or water,
or both, pressure vessels or similar apparatus, in so-called "broad form" and in
such amounts as Landlord may reasonably require.
6.5.4 Insurance against abatement or loss of rent in case of
fire or other casualty similarly insured against, in an amount at least equal to
the Fixed Rent, and real estate tax payments to be made for the Building and
Land during one (1) year next ensuing as reasonably determined by Landlord; and
6.5.5 Commercial liability insurance (including bodily injury
and property damage insurance) covering Landlord and Tenant, with limits at
least as high as the amounts respectively stated therefor under Section 1 of
this Lease, or such higher limits in any case as Landlord may reasonably require
in case of increase in risk, provided such higher limits are commercially
reasonable and Landlord provides Tenant with notice thereof at least ninety (90)
days prior to the renewal date for Tenant's policy.
6.5.6 Landlord shall obtain all required insurance and Tenant
shall pay the cost thereof. Notwithstanding the foregoing, if Tenant is able to
obtain any such required insurance at a cost which is less than that of the
insurance obtained by Landlord, then Tenant may, at its cost and upon written
notice to Landlord at least ninety (90) days prior to the annual renewal date
of such insurance, obtain any required insurance. If
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Tenant obtains such required insurance in accordance with the foregoing, Tenant
shall pay the cost thereof and shall promptly deposit with Landlord certificates
evidencing such coverage. All required insurance shall be written in companies
with an AM Best rating of A- or higher which are approved by Landlord, Tenant,
and any mortgagee, which approval shall not be unreasonably withheld, and in the
forms customarily in use from time to time in the locality of the Building and
the Land. All such policies shall provide at least ten (10) days service of
written notice by registered or certified mail upon Tenant, Landlord, and upon
any named mortgagee insured, of a proposed amendment or cancellation before the
policy may be cancelled by the insurer for non-payment of premiums or other
reason, or amended, and before the policies terminate or lapse of their own
accord or by their own terms.
6.5.7 All insurance (except such insurance as covers Tenant's
personal removable property, the FF&E, and that portion of Tenant's leasehold
improvements for which Landlord did not pay by reimbursing to Tenant the amount
described in Section 3(a) of this Lease), whether or not required, carried with
respect to the Premises or occurrences thereon, shall include provisions
designating the Landlord, Tenant and all mortgagees as additional insureds.
Landlord and each such mortgagee shall be entitled to have duplicates or
certificates of the policies containing these provisions. With respect to
commercial liability insurance, Landlord and Tenant shall each have coverage as
an additional insured which shall include coverage for the indemnification
obligation of the respective other party set forth in Section 7.10. Except as to
the FF&E and that portion of Tenant's leasehold improvements for which Landlord
did not pay by reimbursing to Tenant the amount described in Section 3(a) of
this Lease), Tenant shall not acquire as an insured under any insurance on the
Building or as a payee of any such insurance proceeds, any right to participate
in the adjustment of loss or to receive the proceeds therefor. Tenant agrees
upon request promptly to endorse and deliver to Landlord any checks or other
instruments in payment of loss in which Tenant is named as payee and to the
proceeds of
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which Landlord is entitled. Tenant shall, at Tenant's sole expense, insure (or
with Landlord's prior written consent Tenant may self-insure) its FF&E located
in the Premises, and that portion of Tenant's leasehold improvements for which
Landlord did not pay by reimbursing to Tenant the amount described in Section
3(a) of this Lease, against fire and other causes included in standard extended
coverage. Landlord shall not unreasonably withhold or delay its consent to any
request by Tenant that it be allowed to serf-insure, provided (i) that at the
time of such request and at all times thereafter while Tenant is self-insuring,
Tenant has a net worth of at least $25,000,000.00, and (ii) such self-insurance
is undertaken by a formal program of self insurance. Tenant shall provide to
Landlord public financial statements of Tenant if same exist, or if not, then
with reasonably detailed and certified (by Tenant's chief financial officer)
documentation of such net worth at the time Tenant request Landlord's consent to
such self-insurance, and thereafter shall provide such reasonably detailed and
certified documentation to Landlord within thirty (30) days of Landlord's
request for same from time to time. Tenant shall also be responsible for
insuring, or self-insuring, its own removable personal property. Each party,
notwithstanding any provision of this Lease to the contrary, waives any rights
of recovery against the other for loss or injury against which the waiving party
is protected by insurance or would have been covered had the insurance required
herein been maintained, reserving, however, any rights with respect to any
excess of loss or injury over the amount covered by the insurance or would have
been covered had the insurance required herein been maintained. No deductible
shall be permitted on any policy unless the procuring party assumes all
liability of such deductible and pays the amount of the deductible to the
entitled party.
6.6 SERVICES. Landlord warrants that all utilities serving the
Premises are separately metered. Tenant shall contract and pay directly for the
following services (or provide the same itself):
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a) heating and air conditioning, and sewer and water service
for the Premises; and
b) trash removal, snow and ice removal from the Premises
(including the sidewalks and parking areas), landscaping and lawn
cutting for the Premises, janitorial services, security services, and
maintenance of all walks, roadways, loading areas, sidewalks, and
parking areas within the Premises.
7. TENANT'S COVENANTS.
Tenant agrees during the Term and so long as Tenant's occupancy
continues:
7.1 To pay when due the Fixed and Additional Rent, and all charges by
public authority or utility for water, sewer, electricity, telephone, gas, and
other services furnished to the Premises, and service inspections made therefor,
whether called charge, tax assessment, fee or otherwise;
7.2 Except as provided in Section 8 below, to take good care of all
trees, shrubbery and planted areas within the Premises (in at least as good
condition as they are in as of the Commencement date of this Lease), to keep the
Premises and all improvements therein, including without limitation, the
exterior and structure (including but not limited to the roof), and all
plumbing, electrical, lighting, heating, air conditioning, sprinkler and other
utility systems, and other fixtures and equipment in the Premises, and the
parking lot and sidewalk and walkway areas, in good order, condition, and
repair, and in at least as good order, condition, and repair as they are in on
the Commencement Date of this Lease, but if the Premises are thereafter
improved, then in such improved condition, excepting only reasonable use and
wear and damage by Landlord, its agents, contractors and employees of the
foregoing, fire and other casualty or condemnation (subject to Section 8).
Tenant agrees to make all repairs and replacements and to do all other work
necessary for the foregoing purpose, whether the work be ordinary or
extraordinary, foreseen or unforeseen, including without limitation, all
interior and exterior repainting, replacement of glass injured or broken and of
floor, ceiling and wall coverings and surfaces worn or damaged, and keeping
walls and exterior windows and doors watertight. Tenant shall have the benefit
of, and may enforce, all warranties which Landlord may have received with
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respect to any of the systems or components of the Premises. Tenant agrees at
Tenant's expense to carry a service contract on the HVAC system in the Premises.
If, during the Term of this Lease a capital expenditure for the repair
or replacement of the parking lot or the roof or other structural element of the
Building or mechanical, HVAC or other Building system, whether pursuant to this
Section 7.2, Section 7.4 or any other Section of the Lease, and after approval
by Landlord of such expenditure, which approval shall not be unreasonably
withheld or delayed, and shall not be required in an emergency (but Landlord
shall be promptly notified of such expenditure), Tenant shall pay its pro-rata
share of such capital expenditure (as hereinafter calculated), and Landlord
shall pay the remainder. Tenant's pro-rata share of such capital expenditure
shall be calculated by multiplying such expenditure by a fraction, the numerator
of which shall be the number of unexpired months remaining in the Term of the
Lease (including, for purposes of this calculation, all extension periods
whether or not the same have been exercised), and the denominator of which shall
be the number of months in the useful life of said capital item. If Tenant
subsequently fails or elects not to exercise one or both of its extension
options under Section 12, Tenant's pro-rata share of such capital expenditure
shall then be re-calculated based upon such shorter Term, and any overpayment
shall be promptly refunded to Tenant, upon the termination of the Lease at the
end of the Term.
7.3 Not, without on each occasion first obtaining Landlord's approval,
to make any alterations or additions to the exterior of the Building, nor to
erect any structures on the Premises, nor to make any interior alterations or
additions (except for non-structural interior alterations neither reducing the
value of the Building nor impairing its structural strength, which may be
performed upon prior written notice to Landlord, but without the necessity of
Landlord's consent), except for addition of fixtures and equipment which do not
damage the Building nor to erect any exterior sign except with Landlord's prior
written consent which shall not be unreasonably withheld and provided that any
such sign is approved by all governmental authorities whose approval is
required; provided further that
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Tenant may make interior structural alterations that neither reduce
the value of the Building nor impair its structural strength nor change the
Building's footprint, subject to Landlord's prior written consent which shall
not be unreasonably withheld.
7.4 To make all repairs, alterations, additions or replacements to the
Premises required by any law or ordinance or any order or regulation of any
public authority; to clean-up and remove oil and hazardous waste material of any
kind on or under the Premises, if deposited thereon by any person or entity
during the Term or any extension thereof (Landlord agrees to remain responsible
to applicable governmental authorities for environmental matters existing as of
the Commencement Date of this Lease); to keep the Premises equipped with all
safety appliances so required; to pay all municipal, county, or state taxes
assessed for periods during the Term against personal property of any kind on or
about the Premises; and to comply with the orders and regulations of all
governmental authorities with respect to zoning, building, fire, environmental,
health and other codes, regulations, ordinances or laws applicable to the
Premises except that Tenant may defer compliance so long as the validity or
applicability of any such law, ordinance, order or regulation shall be contested
by Tenant in good faith and by appropriate legal proceedings,
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if Tenant first gives Landlord its agreement to indemnify Landlord against any
loss, cost or expense on account thereof, and satisfactory security therefor
which is reasonable under the circumstances; and to keep all Tenant's employees
working in the Premises covered by worker's compensation insurance and
furnishing Landlord with certificates thereof.
7.5 Not to overload or deface the Premises or Building, nor permit any
use contrary to law, or lawful ordinance, by-law, regulation or order to public
authority, whether with respect to safety appliances or to alterations, repairs,
or additions required as a condition for continuance of use, or otherwise; not
to injure or otherwise harm the Premises; nor commit any nuisance; nor permit
the emission of any noise or odor which is objectionable (in the exercise of
reasonable judgment) to any other occupant of New England Industrial Center; nor
make, allow or suffer any waste; nor make any use of the Premises which is
obnoxious, offensive, or which will invalidate any of Landlord's insurance,
provided that Tenant has been given notice of the provisions of such insurance;
nor conduct any heavy manufacturing; nor store any hazardous waste on the
Premises, whether or not requiring any filing under the Federal Resource
Conservation and Recovery Act or under state law; nor use any chemicals or
hazardous or toxic substances on the Premises except in accordance with all
applicable local, state and federal laws with prior written notification to
Landlord of the specific chemicals or substances to be used by Tenant on the
Premises (provided no notice shall be required with respect to customary office
and cleaning supplies).
7.6 Not to assign, mortgage, pledge or otherwise transfer, this Lease,
or any interest therein, or to sublet the Premises or any portion thereof, or
any right or privilege appurtenant thereto, or suffer any other person to occupy
or use the Premises, or any portion thereof.
Notwithstanding the foregoing, Tenant may sublet a portion or portions
of the Premises, provided Tenant first obtains Landlord's prior written consent
to such sublease,
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which consent Landlord agrees not to withhold provided that Tenant requests same
in writing, and provided (i) at the time thereof Tenant is not in default under
this Lease beyond any applicable notice and cure period; (ii) Tenant shall not
have sublet more than 30,000 rentable square feet in the aggregate (including
the mount of rentable square feet in any sublease which is the subject of the
current request for Landlord's consent); (iii) Landlord approves the reputation
and business of the proposed sublessee, which approval shall not be unreasonably
withheld; (iii) such consent, if given, shall not release Tenant of any of its
obligations (including, without limitation, its obligations to pay rent) under
this Lease and Tenant's liability after any subletting shall be joint and
several with the sublessee.
Landlord further agrees not to withhold consent to any subletting of
any portion of the Premises in excess of the 30,000 square feet referred to
hereinabove, provided that Tenant requests same in writing, and provided (i) at
the time thereof Tenant is not in default under this Lease beyond any applicable
notice and cure period; (ii) Landlord approves the reputation, business,
proposed use of the Premises by, and financial responsibility of, the proposed
sublessee, which approval shall not be unreasonably withheld; (iii) such
consent, if given, shall not release Tenant of any of its obligations
(including, without limitation, its obligations to pay rent) under this Lease
and Tenant's liability after any subletting shall be joint and several with the
sublessee; (iv) Tenant shall reimburse Landlord promptly for reasonable legal
and other expense incurred by Landlord in connection with any request by Tenant
for consent to subletting; (v) Tenant agrees specifically to pay over to
Landlord, as Additional Rent, one-half of all sums provided to be paid under the
terms and conditions of such sublease which are in excess of the amounts
otherwise required to be paid pursuant to this Lease, net of the reasonable
transaction costs and expenses incurred by Tenant in connection with such
sublease; and (vii) a consent to one subletting to any other person shall not be
deemed to be a consent to any subsequent subletting.
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Any subletting or occupancy of the Premises without Landlord's prior
written consent as provided hereinabove shall be void and shall, at the option
of Landlord, constitute a default under this Lease. Neither this Lease nor any
interest therein shall be assignable as to the interest of Tenant, whether by
operation of law or otherwise, without the written consent of Landlord, which
consent may be arbitrarily withheld. Tenant agrees that in the event Landlord
withholds its consent to any subletting contrary to the provisions of this
paragraph, Tenant's sole remedy shall be to seek an injunction in equity to
compel performance by Landlord to give its consent and Tenant expressly waives
any right to damages in the event of such withholding by Landlord of its
consent. Notwithstanding the foregoing, should Tenant prevail in such an
equitable action, Landlord shall be liable for all of Tenant's reasonable legal
fees incurred in connection with same.
The foregoing provisions of this Section 7.6 shall not apply to, and
Landlord's consent shall not be required with respect to, transactions with an
entity into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets are transferred or to any entity which
controls or is controlled by Tenant or is under common control with Tenant,
provided (i) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles which is reasonably commensurate with,
and sufficient to meet, the financial obligations of the "Tenant" under this
Lease, (ii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least 10 days prior to the effective date of any such
transaction, and (iii) the assignee agrees directly with Landlord, by written
instrument in form and substance satisfactory to Landlord, to be bound by all
the obligations of Tenant hereunder including, without limitation, the covenant
against further assignment or subletting.
7.7 Intentionally omitted.
7.8 Intentionally omitted.
7.9 If any installment of Fixed or Additional Rent or other charge due
from Tenant to Landlord under this Lease is not paid within ten (10) days after
the date due, and if
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during the same calendar year any other installment of Fixed or
Additional Rent or other charge due from Tenant to Landlord under this Lease was
not paid within ten (10) days after the date due, then such late payment shall
bear interest from the due date at the prime commercial rate of the Bank of
Boston, as adjusted from time to time, plus 2% per annum, but in no event more
than the maximum rate of interest allowed by law; and such payment shall be
Additional Rent.
7.10 Tenant shall defend, with counsel reasonably acceptable to
Landlord, save harmless, and indemnify Landlord from any liability which is
insurable under commercially standard insurance policies for injury, loss,
accident or damage to any person or property and from any claims, actions,
proceedings and expenses and costs in connection therewith (including, without
implied limitation, reasonable counsel fees) whatsoever caused by Tenant, its
employees, agents, independent contractors, or invitees, or by Tenant's use and
occupancy of the Premises, or from any use made or thing done or occurring on
the Premises, excluding such liability resulting from the acts or omissions of
Landlord and it agents and employees.
Landlord shall defend, with counsel reasonably acceptable to Tenant,
save harmless, and indemnify Tenant from any liability which is insurable under
commercially standard insurance policies for injury, loss, accident or damage to
any person or property and from any claims, actions, proceedings and expenses
and costs in connection therewith (including, without implied limitation,
reasonable counsel fees) whatsoever caused by any negligent act or willful
misconduct of Landlord, its employees, agents, and independent contractors
occurring during the entry of any such persons on the Premises, excluding such
liability resulting from the acts or omissions of Tenant and it agents and
employs.
7.11 To use the Premises only for the Tenant's Uses (as defined in
Section 1), and to procure any licenses and permits from time to time required
therefor; not to permit or carry on any sales at retail (including any auction,
discount, markdown, fire "going out of business", bankruptcy or similar sales);
not to permit open storage on the Premises
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detrimental to the appearance of a garden-type industrial development;
and to require loading and unloading, and parking of cars for employees,
customers and visitors, in connection with Tenant's business, to be done so far
as practicable on the Premises and not on adjacent streets;
7.12 Upon reasonable notice, to permit Landlord to examine the
Premises at reasonable times, and during the six (6) month period prior to
expiration of the Term to show the Premises to prospective purchasers and
tenants, and keep affixed in suitable places, without obstructing Tenant's signs
or displays, notices for letting and selling; and
7.13 At the expiration of the Term, or earlier termination of this
Lease, promptly to yield up, broom-clean and neat, reasonable wear and tear and
damage by casualty or condemnation excepted (but with all of Tenant's
obligations under Articles 7 and 8 hereunder fulfilled and completed), the
Premises and all improvements, alterations and additions thereto, and all
fixtures and equipment servicing the Building (except as otherwise allowed
pursuant to Subsection 3(f)); and to remove Tenant's FF&E, and to repair any
damage caused by the removal. Tenant shall, at its sole cost and expense,
furnish Landlord, not later than the expiration of the Term of this Lease, a
survey and report by an engineering firm qualified to make reports under
Massachusetts General Laws Chapter 21E and reasonably acceptable to Landlord,
stating that the Premises have been examined for off and hazardous waste,
including any subsurface exploration and testing that may be recommended by such
engineering firm, based upon its initial inspection of the Premises, in order to
ascertain the presence of same, and that no such substances were found on the
Premises in excess of those described in Landlord's 21E Report (such conditions
or circumstances in excess of Landlord's 21E Report, the "Excess
Contamination"), or that such Excess Contamination was found, but cleaned up and
disposed of by Tenant and that the Premises at the time of such report are then
free of such Excess Contamination, and Tenant agrees at its sole cost and
expense to perform such clean-up and disposal of such Excess Contamination so
that such report may be rendered to
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Landlord on a timely basis. Notwithstanding the foregoing, if Tenant
can demonstrate by clear and convincing evidence (which may include, for example
the chemical nature, off- Premises geographical source, the third-party
responsible for, and approximate time of the subject discharges) that such
Excess Contamination or identifiable portion thereof was caused by a third party
other than Tenant, its employees, agents, independent contractors and invitees,
Tenant shall not be liable to Landlord for cleanup or removal or remediation of
such Excess Contamination or identifiable portion thereof, as the case may be.
If requested by Landlord, Tenant shall at its cost, provide Landlord with an
analysis by an environmental engineering firm qualified pursuant to
Massachusetts General Laws Chapter 21E to support any conclusion of
non-liability advanced by Tenant.
8. CASUALTY OR TAKING.
8.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
casualty, Fixed Rent and Additional Rent payable by Tenant shall abate equitably
(based upon the nature and degree of impact) for the period in which, by reason
of such damage, there is more than de minimus interference with Tenant's use of
the Premises, having regard to the extent to which Tenant may be required to
discontinue Tenant's use of all or a portion of the Premises, but such abatement
or reduction shall end on the earlier of (i) the expiration of the payment to
Landlord of rent insurance for the Fixed Rent and Additional Rent, or (ii) the
date on which Tenant resumes occupancy of the affected space for Tenant's Uses.
If the Premises shall be affected by any exercise of the power of eminent
domain, Fixed Rent and Additional Rent payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the loss of
use thereof suffered by Tenant. In no event shall Landlord have any liability
for damages to Tenant for inconvenience, annoyance, or interruption of business
arising from such fire, casualty or eminent domain.
8.2 RIGHT OF TERMINATION.
(a) TENANT'S RIGHT. If the Premises or the Building are
substantially damaged by fire or casualty (the term "substantially damaged"
meaning
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damage of such a character that same cannot, in ordinary course, reasonably be
expected to be repaired within 180 days from the date of such casualty), or if
any material part of the Building or parking area is taken by any exercise of
the power of eminent domain, then Tenant shall have the right to terminate this
Lease by giving notice of its election to do so within sixty (60) days after the
occurrence of such casualty or the effective date of such taking, whereupon this
Lease shall terminate 30 days after the date of such notice with the same force
and effect as if such date were the date originally established as the
expiration date hereof.
(b) LANDLORD'S RIGHT. If (i) during the last two (2) years of the
Term, as the Term may be extended pursuant to Section 12
hereinbelow, the Premises or the Building are substantially damaged by fire or
casualty, or (ii) at any time during the Term any material part of the Building
or parking area is taken by any exercise of the power of eminent domain, or
(iii) at any time during the Term the Premises or the Building are substantially
damaged and if Landlord's loss of Annual Fixed Rent and Additional Rent
hereunder is not being fully covered by rental insurance payments to Landlord,
or by payments of such Annual Fixed Rent and Additional Rent to Landlord by
Tenant, then in any such events Landlord shall have the right to terminate this
Lease (even if Landlord's entire interest in the Premises may have been
divested) by giving notice of its election to do so within sixty (60) days after
the occurrence of such casualty or the effective date of such taking, whereupon
this Lease shall terminate 30 days after the date of such notice with the same
force and effect as if such date were the date originally established as the
expiration date hereof.
8.3 RESTORATION. If this Lease shall not be terminated pursuant to
Section 8.2, Landlord shall thereafter use due diligence to restore the Premises
(excluding the Improvement Work and other alterations, additions or improvements
made or installed by Tenant or on Tenant's behalf, and Tenant's FF&E) to proper
condition for Tenant's use and occupation, but Landlord's restoration obligation
shall only be to the extent of available
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insurance proceeds or taking award, as the case may be. Any mortgage encumbering
the Premises shall permit insurance proceeds to be used for restoration, subject
to the customary construction loan disbursement procedures of the mortgagee and
further provided that such mortgage is not in default. Landlord's obligation to
restore the Premises shall not include Tenant's personal property or the FF&E or
any alterations, additions or improvements made or installed by Tenant or on
Tenant's behalf, but such insurance proceeds may be used by Tenant to replace
the Improvement Work and other alterations, additions or improvements made or
installed by Tenant or on Tenant's behalf, but only to the extent of the
availability of insurance proceeds for same after applying the insurance
proceeds which are required for the restoration of the base Building. If such
insurance proceeds are insufficient Tenant may, at its option, pay for the
remainder of the restoration at its own sole cost and expense. If, for any
reason, such restoration shall not be substantially completed within six (6)
months (which six-month period shall be extended for such periods of time, not
to exceed sixty (60) days in the aggregate, as Landlord is prevented from
proceeding with or completing such restoration for any cause beyond Landlord's
reasonable control) from the date of the casualty or the effective date of the
taking, Tenant shall have the right to terminate this lease by giving written
notice to Landlord thereof within thirty (30) days after the expiration of such
period (as so extended). This Lease shall cease and come to an end without
further liability or obligation on the part of either party thirty (30) days
after the giving of such notice unless, within such 30-day period, Landlord
substantially completes such restoration. Such right of termination shall be
Tenant's sole and exclusive remedy at law or in equity for Landlord's failure so
to complete such restoration.
8.4 AWARD. Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to recover for damages
to the Premises and the leasehold interest hereby created, and to compensation
accrued or hereafter to accrue by reason of such taking, damage or destruction,
and by way of confirming the
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foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign to Landlord, all rights to such damages or
compensation.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceedings a claim for relocation expenses and
a claim for the alterations, additions, installations and improvements made by
or for the account of Tenant in the Premises, but not more than the total of
actual expenditures by Tenant for such alterations, additions, installations and
improvements, subtracting from such expenditures the amounts reimbursed to
Tenant by Landlord, less depreciation from the respective dates of the making of
such alterations, additions, installations or improvements to the date of the
taking computed on a straight-line basis over the original Term of this Lease
plus any extensions thereof the options for which have been exercised prior to
such taking, or the useful life of such items, whichever is shorter. Such right
of Tenant shall be subject and subordinate to the application of all such awards
to the prior payment in full of all first mortgages at the time of such taking
on the Land, the Building, or the Premises, provided that (a) such mortgages do
not encumber property other than the Land, the Building, or the Premises, or
secure obligations unrelated to the Land, the Building, or the Premises, and (b)
in applying such awards to the payment of the aforesaid claims of such
mortgages, Landlord's share of such award shall be applied and exhausted first
before any portion of Tenant's share of such award is so applied.
8.5 TEMPORARY TAKING. In the event of any taking of the Premises or
any part thereof for temporary use (defined as a period of six (6) months or
less), (i) this Lease shall be and remain unaffected thereby, and (ii) Tenant
shall be entitled to receive for itself such portion or portions of any award
made for such use with respect to the period of the taking which is within the
Term, provided that if such taking shall remain in force at the expiration or
earlier termination of this Lease, Tenant shall then pay to Landlord a sum equal
to the reasonable cost of performing Tenant's obligations under Section 7.13
with respect to surrender of the Premises and upon such payment shall be excused
from such obligations.
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9. DEFAULT.
9.1 EVENTS OF DEFAULT: (a) If Tenant shall default in the performance
of any of its obligations to pay the Fixed Rent or Additional Rent hereunder and
if such default shall continue for fifteen (15) days after written notice from
Landlord designating such default (provided that in the event Tenant has been in
such default after such written notice from Landlord on more than two occasions
in any calendar year, Tenant shall not be entitled to any notice from Landlord
with respect to a subsequent default of Tenant during such calendar year with
reset to the payment of Fixed Rent or Additional Rent and such nonpayment which
continues for five (5) days after the due date shall be an event of default); or
if Tenant has not commenced diligently to correct any other default or defaults
within thirty (30) days after notice from Landlord to Tenant specifying the
default or defaults, or Tenant is not, after such commencement, diligently
pursuing such correction to completion, or (b) if any assignment shall be made
by Tenant or any guarantor of Tenant for the benefit of creditors, or (c) if
Tenant's leasehold interest shall be taken on execution, or (d) if a lien or
other involuntary encumbrance is filed against Tenant's leasehold interest or if
a receiver, trustee, custodian or creditor shall take possession of Tenant's
leasehold interest, and such lien, encumbrance or possession is not discharged
or terminated within sixty (60) days thereafter, or (e) if a petition is filed
by Tenant or any guarantor of Tenant under any provision of the Bankruptcy Code
as then in force and effect, or under any other federal or state law relating to
bankruptcy or insolvency, or (f) if an involuntary petition under any of the
provisions of said Bankruptcy Code or any other federal or state law relating to
bankruptcy or insolvency is filed against Tenant or any guarantor of Tenant and
such involuntary petition is not dismissed within sixty (60) days thereafter,
then, and in any of such cases, Landlord and the agents and servants of Landlord
lawfully may, in addition to and not in derogation of any remedies for any
preceding breach of covenant, immediately or at any time thereafter and without
demand or notice and enter into and upon the Premises or any part thereof in the
name of the whole or mail a notice of termination
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addressed to Tenant, and repossess the same as of Landlord's former estate and
expel Tenant and those claiming through or under Tenant and remove its and their
effects without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or
prior breach of covenant, and upon such entry or mailing as aforesaid this Lease
shall terminate, and Landlord, with notice to Tenant, may store Tenant's
effects, and those of any person claiming through or under Tenant at the expense
and risk of Tenant, and, if Landlord so elects by at least sixty (60) days prior
notice to Tenant, may sell such effects at public auction or private sale and
apply the net proceeds to the payment of all sums due to Landlord from Tenant,
if any, and pay over the balance, if any, to Tenant
9.2 REMEDIES. (a) Tenant further covenants as additional and
cumulative obligations after any such termination to pay punctually to Landlord
all the sums which Tenant covenants in this Lease to pay in the same manner and
to the same extent and at the same time as if this Lease had not been
terminated. In calculating the amounts to be paid by Tenant pursuant to the
preceding sentence Tenant shall be credited, with any amount paid to Landlord as
compensation as in this Section provided, and shall also be credited with the
net proceeds of any rent obtained by Landlord by reletting the Premises, after
deducting all Landlord's reasonable expense in connection with such reletting,
including, without limitation, all repossession costs, brokerage commissions,
fees for legal services and expenses of preparing the Premises for such
reletting (but to the extent such expenses are for the construction of
improvements for the next tenant, the same shall be amortized over the term of
the new tenant's lease, and Tenant shall be responsible for the portion of same
falling within what would have been the balance of the Term of this Lease), it
being agreed by Tenant that Landlord may (i) relet the Premises or any part or
parts thereof, for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term and may grant such concessions and free rent as Landlord in
its reasonable judgment considers advisable or necessary to
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relet the same and (ii) make such alterations, repairs and decorations
in the Premises as is commercially reasonable to relet the same, and no
reasonable action of Landlord in accordance with the foregoing or failure to
relet or to collect rent under reletting shall operate or be construed to
release or reduce Tenant's liability as aforesaid.
(b) In the event that this Lease is terminated under any of the
provisions herein contained or shall be otherwise terminated for breach of any
obligation of Tenant, at Landlord's election Tenant shall pay to Landlord upon
demand, as liquidated final damages and in lieu of all current damages set forth
in Subsection 9.2(a) beyond the date of such demand (in view of the uncertainty
of prompt re-letting and the expense entailed in reletting the Premises), at
Landlord's election either (i) an amount equal to the total rent and other sums
due hereunder and payable for and in respect of the twelve (12) month period
next preceding the date of termination (or such shorter period as may then have
been remaining in the Term of the Lease but for such termination), as aforesaid;
or (ii) the present value of the total rent reserved for the remainder of the
Term less the present value of the rental value of the Premises for said
remainder of the Term. In calculating the rent reserved there shall be included,
in addition to the Fixed Rent and Additional Rent, the value of all other
consideration agreed to be paid or performed by Tenant for said residue.
Notwithstanding the foregoing, in the event Landlord elects to recover from
Tenant the amount described in clause (i) and Tenant then pays such amount to
Landlord, and Landlord, after termination of this Lease, rents the Premises or
any portion thereof to a different tenant(s), Landlord shall refund to Tenant an
amount equal to (i) the rent received from said new tenant for the one (1) year
period following Landlord's demand for liquidated final damages less (ii) the
amount of unpaid Fixed Rent and Additional rent owing by Tenant up to the date
of the termination of this Lease plus Landlord's expenses, including reasonable
attorney's fees, incurred on account of Tenant's default.
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Notwithstanding which remedy Landlord elects to pursue, Landlord shall
use good faith efforts to mitigate damages, relet the Premises and to collect
rent under any such reletting.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
grater than, equal to, or less than the amount of the loss of damages referred
to above.
9.3 REMEDIES CUMULATIVE. Any and all rights and remedies which either
Landlord or Tenant may have under this Lease, and at law and equity, shall be
cumulative and shall not be deemed inconsistent with each other, and any two or
more of all such rights and remedies may be exercised at the same time insofar
as permitted by law.
9.4 RIGHTS TO CURE DEFAULTS. Landlord may, but shall not be obligated
to, cure, at any time before Tenant has done so, (a) any default by Tenant under
this Lease continuing beyond any applicable grace period and after an additional
five (5) days prior written notice (except in the case of emergency) or, (b) in
an emergency where notice is not practical, any default by Tenant (but only to
the extent reasonably necessary to remedy the emergency situation); and whenever
Landlord so elects, all reasonable costs and expenses incurred by Landlord,
including reasonable attorneys' fees, in curing a default shall be paid by
Tenant to Landlord as Additional Rent on demand, together with interest thereon
at the prime commercial rate at The First National Bank of Boston, as adjusted
from time to time, plus 2% per annum, from the date of notice of payment by
Landlord to the date of payment by Tenant.
9.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by either
party to any act or omission which otherwise would be a breach of any covenant
or condition herein, shall not in any way be held or construed (unless expressly
so declared) to operate
-36-
<PAGE>
so as to impair the continuing obligation of any covenant or condition herein,
or otherwise, except as to the specific instance, operate to permit similar acts
or omissions.
The failure of either party to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
shall not be deemed a waiver of such violation nor prevent a subsequent act,
which would have originally constituted a violation, from having all the force
and effect of an original violation. The receipt by Landlord of rent with
knowledge of the breach of any covenant of this Lease by Tenant shall not be
deemed to have been a waiver of such breach by Landlord. No consent or waiver,
express or implied, by either party to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
9.6 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser
sum than the Fixed Rent, Additional Rent or any other charge then due, and no
acceptance by Tenant of a lesser sum than then due by Landlord, shall be deemed
to be other than on account of the earliest installment of such rent or charge
due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent or other charge be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to the other's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
10. NOTICE OF LEASE: OTHER PROVISIONS.
10.1 Tenant and Landlord each agree that this Lease shall not be
recorded. Upon request of either party both parties shall execute and deliver a
notice of lease in statutory form appropriate for recording and acknowledging
the date the Term begins, and if this lease is terminated before the Term
expires an instrument in such recordable form acknowledging the date of
termination of this Lease. Whenever any notice, approval, consent or request is
given pursuant to this Lease, it shall be in writing. Communications,
-37-
<PAGE>
unless otherwise specified by fifteen (15) days' prior notice, shall be
addressed to the party's address stated in Section 1 above. Any communication so
addressed shall be deemed duly served, if mailed by registered or certified
mail, return receipt requested, upon the earlier of (i) three (3) days after
mailing within the continental United States, or (ii) receipt of same. If
Landlord by notice to Tenant at any time designates an agent to receive payments
or notices, all payments or notices thereafter by Tenant shall be paid or given
to the agent designated until notice is received by Tenant from Landlord of
termination of the agency. The obligations of this Lease shall run with the
land, and this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. The obligations of
Landlord shall be binding upon the assets of Landlord which comprise the
Premises, including, without limitation, rents, income, profits and insurance
related to the Premises, but not upon other assets of Landlord not related to
the Premises, except in the case of fraud or misapplication of funds. No
individual partner, trustee, stockholder, officer, director, employee or
beneficiary of Landlord or Tenant shall be personally liable under this Lease
and Tenant shall look solely to Landlord's interest in the Premises in pursuit
of its remedies upon an event of default hereunder; the general assets of the
individual partners, trustees, stockholders, officers, employees or
beneficiaries of Landlord and Tenant shall not be subject to levy, execution or
other enforcement procedure for the satisfaction of the remedies of Landlord or
Tenant; provided that the foregoing provisions of this sentence shall not
constitute a waiver of any obligation evidenced by Lease and provided further
that the foregoing provisions of this sentence shall not limit the right of
either party to name the other or any individual partner or trustee thereof as
party defendant in any action or suit in connection with this Lease so long as
no personal money judgment shall be asked for or taken against any individual
partner, trustee, stockholder, officer, employee or beneficiary of Landlord or
Tenant.
10.2 Tenant warrants and represents that it has no dealings with any
broker or agent, other than Whittier Partners, in connection with this Lease and
covenants to defend
-38-
<PAGE>
with counsel reasonably approved by Landlord, hold harmless and indemnify
Landlord from and against any and all cost, expense or liability for any
compensation, commission or charges claimed by any broker or agent other than
above specified based on Tenant's dealing with such broker or agent in
connection with this Lease or the negotiation thereof, if such broker or agent
was not retained by Landlord. Landlord warrants and represents that it has had
no dealings with any broker or agent other than the above specified in
connection with this Lease and covenants to defend with counsel approved by
Tenant, hold harmless and indemnify Tenant from and against any and all cost,
expense or liability for any compensation, commission or charge claimed by the
above specified or any other broker or agent not retained by Tenant based on
Landlord's dealings with such broker or agent in connection with this Lease or
the negotiation thereof.
11. HOLDING OVER.
If Tenant remains in possession of the Premises after the expiration
of the Term of this Lease, at Landlord's option exercised by written notice to
Tenant, Tenant shall be deemed to be a tenant from month-to-month only, at one
and one-half (1.5) times the monthly Base Rent rate in effect during the last
month of the expired Term, and governed in all other things, except as to the
duration of the Term, by the provisions of this Lease. Tenant shall also pay to
Landlord all damages, direct and/or indirect (including any loss of a tenant or
rental income), sustained by reason of any such holding over. Either party may
then terminate such month-to-month tenancy by giving the other party at least
thirty (30) days prior written notice of termination.
-39-
<PAGE>
-40-
-41-
-42-
-43-
<PAGE>
WITNESS the execution under seal in quadruplicates as of the date
above first written
DESIGNS, INC.
By: /S/ [ILLEGIBLE]
----------------------------------
Title: President
G.W.B. TRUSTS
By: /S/ [ILLEGIBLE]
----------------------------------
,as
Trustee but not individually
By: /S/ [ILLEGIBLE]
----------------------------------
,as
Trustee but not individually
A.C.F. TRUSTS
By: /S/
----------------------------------
,as
Trustee but not individually
-44-
<PAGE>
By: /S/ WILLIAM F. MCNAMARA, JR.
----------------------------------
William F. McNamara, Jr., as
Trustee but not individually
R.C.L. TRUSTS
By:/S/ [ILLEGIBLE]
----------------------------------
,as
Trustee but not individually
By: /S/ ARTHUR G. CARLSON
----------------------------------
Arthur G. Carlson, as
Trustee but not individually
-45-
<PAGE>
EXHIBIT A
A certain parcel of land with the building and improvements thereon
(approximately 80,170 square feet) situated on B Street in the New England
Industrial Center, Needham, Massachusetts, and shown as Lot 27 on Land Court
Plan No. 24606A (Sheets 6 and 7) and bounded and described as follows:
SOUTHEASTERLY by land now or formerly of American Can
Company by a line in B Street, five hundred
seven and 52/100 feet;
SOUTHWESTERLY by Lot 28 on said plan, twenty-eight feet
on a line in B Street, and three hundred
seventy-nine and 19/100 feet;
NORTHWESTERLY by Lot 13 on said plan ninety-six and 15/100
feet;
NORTHEASTERLY by land now or formerly of Penn Mutual Life
Insurance Company, shown as Lot 14 on said
plan, and Lot 23 on said plan, twenty-eight
and 54/100 feet;
NORTHWESTERLY by said Lot 23 four hundred eight and 86/100
feet; and
NORTHEASTERLY by Lot 26 on said plan, three hundred fifty
feet and (on a line in B Street)
twenty-eight feet.
Containing 180,000 square feet of land, more or less.
Being a portion of the premises described in Certificate of Title No.
56447 issued by the Norfolk Registry of the Land Court, and the same are subject
to and have the benefit of the restrictions, easements and spur track rights
therein referred to so far as now in force and applicable, and the Lessor
reserves the right, subject to giving Lessee 30 days advance written notice, to
construct, maintain and use for service to said Lot 28 a spur track over any of
the areas marked "Spur Track Easement" on said plan, but only to the extent
required by the aforesaid restrictions, easements and spur track rights.
<PAGE>
EXHIBIT B
PLAN TO ACCOMPANY LEASE
IN
NEEDHAM. MASS.
<PAGE>
EXHIBIT SD
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT, dated as
of , 1995, is made by and between Designs, Inc., a Massachusetts
corporation with a principal place of business at (hereinafter, the "Tenant"),
,Trustees under Declaration of Trust dated March 30, 1955, filed as Documents
182959,* with Norfolk Registry District of the Land Court, as amended
(hereinafter, the "Borrower"), and BayBank, a Massachusetts trust company having
an office for purposes hereof at 858 Washington Street Dedham, Massachusetts
(hereinafter, the "Bank"), the Mortgagee under a certain Mortgage, Security
Agreement and Assignment granted by the Borrower to the Bank dated, 1994
(hereinafter, the "Mortgage").
* 182958, and 182960
WITNESSETH:
WHEREAS, the Borrower is the owner of real property with buildings and
improvements thereon located at 66 B Street, Needham, Massachusetts
(hereinafter, the "Premises") as further described in Certificate of Title No.
filed with the Norfolk District Land Registry Office (hereinafter, the
"Registry") ; and
WHEREAS, the Tenant and the Borrower have entered into a certain Lease
Agreement dated (hereinafter, said Lease Agreement shall be referred to as the
"Lease") with respect to the Premises, Notice of which Lease is to be filed with
the Registry; and
WHEREAS, the Borrower has entered or is to enter into a loan
arrangement with the Bank pursuant to which the Borrower shall grant a mortgage
in the Premises to the Bank and collaterally assign the Borrower's interest in
the Lease to the Bank, as provided in the Mortgage; and
WHEREAS, the Bank has indicated that the Bank requires as a condition
to the establishment of such loan arrangement an agreement with the Tenant as to
the priority of the Lease and the relative rights of the Bank and Tenant
thereto,
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants hereinafter contained, the Tenant, the Borrower, and the Bank hereby
agree as follows:
1. REPRESENTATIONS BY TENANT AND BORROWER. The Tenant and the Borrower
hereby represent and warrant the following:
a) That the Lease is complete statement of the agreement between
the parties thereto with respect to the letting of the Premises;
b) That the Lease is currently in full force and in effect
according to its terms (but the term thereof has not yet commenced) and is a
binding obligation of the Tenant as of the date hereof; and
-1-
<PAGE>
c) That the Tenant is not now in default under any term or terms
of the Lease and that it has no knowledge of any default or claim of default on
the part of, or claim of offset against the rent or any other sum or sums
payable under the terms of the Lease to, the Borrower under the Lease.
d) That the Tenant has not made any assignment for the benefit of
creditors nor filed any petitions or instituted any proceedings under the
bankruptcy or similar laws of the United States or of any state, and that there
are currently no such petitions or proceedings pending or threatened against the
Tenant.
2. CONSENT TO ASSIGNMENT BY TENANT. The Tenant hereby consents to the
assignment of the Lease and the rents thereunder to the Bank pursuant to the
Mortgage. Upon notification by the Bank to the Tenant of the exercise of the
Bank's rights under the Mortgage, the Tenant shall pay rent and any other sums
payable under the terms of the Lease directly to the Bank. Without limiting the
foregoing, the Tenant hereby acknowledges and agrees that the Bank shall have no
duties or obligations with respect to the Lease until the Bank has notified the
Tenant of the Bank's assumption of the Borrower's obligations under the Lease,
or until the Bank has made entry under or foreclosed upon the Mortgage or has
taken actual possession of the Premises.
3. COVENANTS. Regardless of whether or not the Bank has notified the
Tenant of the exercise by the Bank of its rights under the Mortgage,
the Tenant hereby agrees as follows:
a) Except in accordance with the terms of the Lease, not to
cancel, terminate, surrender, amend or modify the Lease or any term
thereof, nor consent to or accept any such cancellation, termination,
surrender, amendment or modification thereof, nor permit any event
reasonably within the Tenant's control which would operate to
terminate, surrender, or cancel the Lease provided that Tenant is so
obligated under the terms of the Lease;
b) Except in accordance with the terms of the Lease, or as
previously approved by Landlord, not, without prior written consent of
the Bank, to make or cause to be made, any structural additions,
alterations, or improvements, to the Premises; and
c) Except in accordance with the terms of the Lease, not,
without prior written consent of the Bank, to assign or sublet its
interest in the Premises or any portion thereof.
4. BANK'S OPPORTUNITY TO CURE DEFAULT. Regardless of whether the Bank
has notified the Tenant of the Bank's exercise of its rights under the Mortgage,
the Tenant shall notify the Bank of any default on the part of the Borrower
under the Lease. Except in accordance with the terms of the Lease, no such
default shall entitle or allow the Tenant to cancel or terminate the Lease, or
abate the rent or any other sums owing thereunder, or exercise any other remedy
afforded by the Lease or applicable law, unless the Bank fails to cure or cause
to be cured, the specified default within 30 days of receipt of such notice, or
within such longer time as may be required for cure due to the nature of such
default,
-2-
<PAGE>
provided the cure is commenced within said 30-day period and thereafter
diligently prosecuted to completion, and provided that said notice is duly
given.
5. SUBORDINATION OF LEASE. The Tenant hereby agrees and acknowledges
that the Lease and any extensions of said Lease or its terms shall be
subordinate and subject to the lien of the Mortgage and any renewals,
extensions, modifications or replacements thereof as though the Mortgage and any
such renewal, extension, modification, or replacement thereof had been executed,
acknowledged and delivered prior to the Lease and recorded prior to the Lease or
any notice of the Lease. The Mortgage provides, among other terms, that provided
there is no Event of Default thereunder, insurance proceeds paid to the Bank as
a result of casualty loss shall be disbursed for repair and restoration of the
Premises in accordance with the customary construction lending disbursement
procedures of the Bank.
6. ATTORNMENT BY TENANT. The Tenant further attorns to the Bank and
agrees that, in the event of the exercise by the Bank of its rights under the
Mortgage, and the taking of possession or the acquisition of title by the Bank,
pursuant to the Mortgage, whether through foreclosure proceedings or otherwise,
the Tenant shall recognize the Bank and its successors, whether through
foreclosure sale or otherwise, as the landlord under the Lease and the Lease
shall continue in full force and effect in accordance with its terms and the
Bank and Tenant shall be bound thereby. The Tenant agrees that any person to
which the Tenant shall attorn hereunder shall not be liable for any action or
omission of any prior landlord under the Lease including the Borrower, nor shall
such person be subject to any offsets or claims thereof or defenses which the
Tenant may have against any prior landlord, including the Borrower, except as
expressly provided under the Lease.
7. NONDISTURBANCE BY BANK. The Bank hereby agrees that for so long as
the Tenant duly and promptly performs all its obligations under the Lease and
this Agreement, the Bank will not, in taking possession of or acquiring title to
the Premises or otherwise exercising its rights under the Mortgage, whether
through foreclosure or otherwise, disturb the possession and other rights of the
Tenant under the Lease and will recognize Tenant's rights under the Lease and
accept the Tenant as lessee under the terms and conditions and for the entire
duration of the term of the Lease. The Bank shall not, however, be bound by any
amendments or modification of the Lease made without the written consent of the
Bank, or by any liabilities of the Borrower arising under the Lease prior to the
date the Tenant has given notice thereof to the Bank.
8. EXTENSIONS AND RENEWALS. This Agreement shall include and apply to
any extensions and renewals of the terms permitted by the Lease.
9. AMENDMENTS. This Agreement may not be waived, changed, or
discharged orally, but only by agreement in writing and signed by the
Bank, the Borrower, and the Tenant, and any oral waiver, change, or discharge of
this Agreement or any provision hereof shall be without authority and shall be
of no force and effect.
-3-
<PAGE>
10. CAPTIONS. Paragraph captions are included herein for reference
only, and shall in no way constitute any part of this Agreement nor
define or limit any of the provisions hereof.
11. SEVERABILITY. The invalidity of any provision of this Agreement,
as determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provisions hereof.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon each
party's respective heirs, executors, administrators, representatives,
successors, and assigns and shall inure to the benefit of each party's
successors and assigns.
13. NOTICES. All notices, demands and other communications made in
Agreement shall be made to the following addresses (each of which may be changed
upon seven (7) days written notice to all others) given by hand, by telegram, or
by certified or registered mall, return receipt requested, or by Federal Express
or other recognized overnight courier with receipt as follows:
If the Bank: BayBank
858 Washington Street
Dedham, Massachusetts
Attention: Patricia A. Moynihan,
Assistant Vice President
With a copy to: Riemer & Braunstein
Three Center Plaza
Boston, Massachusetts 02108
Attention: Martha S. Faigen, Esquire
If to the Tenant: Designs, Inc.
66 B Street
Needham, Massachusetts 02194
Attention: President or Chief Financial Officer
With a copy to:
Any such notice shall be deemed received the earlier of (i) two (2) days after
the mailing of such notice in accordance with the terms and conditions and to
the addresses provided above, or (ii) the date on which the notice is delivered
by hand or by telegram to the address and to the individual provided above, or
(iii) one business day following delivery of such notice to such overnight
courier and addressed to the individual as provided above.
14. APPLICABLE LAW. This Agreement and all rights and obligations
hereunder, including matters of construction, validity and performance, shall be
governed by the laws of the Commonwealth of Massachusetts. The Tenant submits
itself to the jurisdiction of the courts of said Commonwealth for all purposes
with respect to this Agreement and the Tenant's relationship with the Bank.
-4-
<PAGE>
Witness the execution hereof under seal the day and year first above
written.
Designs, Inc.
("Tenant")
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BayBank
("Bank")
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-----------------------------------
, Trustee as
aforesaid and not individually
("Borrower")
, Trustee as
aforesaid and not individually
("Borrower")
COMMONWEALTH OF MASSACHUSETTS
,SS , 1995
Then personally appeared before me , the
of Designs, Inc. and acknowledged the foregoing to be the
free act and deed of said corporation, before me,
-----------------------------------
Notary Public
My Commission Expires:
-------------
<PAGE>
EXHIBIT B
LEASING PLAN AREA B
<PAGE>
EXHIBIT C
SUBTENANT'S WORK
The Subtenant shall provide and perform the following at its sole cost
and expense:
EXHIBIT C CONSISTS OF
Title Sheet A1 and A2
Atreve Software, Inc.
66 B Street
Needham, MA
July 1, 1998
Architects
Bryer Architects
160 Second Street
Cambridge, MA 02142
(617) 354-2360
List of Drawings
A1 - Floor Plan
A2 - Details
<PAGE>
EXHIBIT D
SUBLANDLORD'S WORK
The Sublandlord shall perform the following:
1. Reinstall 14 metalumen fluorescent light fixtures as per plan (with
respect only to the area shown outlined in yellow on said plan) dated
12/15/95 entitled, A-301N reflected ceiling plan, and incorporated
herein by reference.
2. Paint existing drywall that separates Subleased Premises from the
portion of the Building occupied by the Sublandlord.
3. Install canopy at entrance to Subleased Premises as shown on drawing
("sketch") from Add, Inc., dated 6/16/98, and incorporated herein by
reference.
4. Clean carpet within the Subleased Premises.
<PAGE>
EXHIBIT D (PAGE 2)
<PAGE>
EXHIBIT E
<PAGE>
1998 HOLIDAY SCHEDULE
EXHIBIT F
To: All Office Associates
From: Ann-Marie Driscoll
THE FOLLOWING IS A LIST OF HOLIDAYS TO BE OBSERVED IN THE HOME OFFICE
Monday, February 16 President's Day [image] 1/2 Day*
Monday, May 25 Memorial Day [image] OFF
Friday, July 3* Independence Day [image] OFF**
Monday, September 7 Labor Day [image] OFF
Monday, October 12 Columbus Day [image] OFF
Wednesday November 11 Veteran's Day [image] 1/2 Day*
Thursday, November 26 Thanksgiving Day [image] OFF
Friday, December 25 Christmas Day [image] OFF
Friday, January 1 New Year's Day [image] OFF
*All Associates may take either the morning or afternoon
as their half-day holiday.
**As July 4 is a Saturday, we will have July 3 off instead to
have a long holiday weekend.
This Policy is subject to change without notice.
<PAGE>
EXHIBIT G
DESIGNS, INC.
JULY 9, 1997
I. ENTRANCES AND LOBBY AREAS
A. DAILY
-----
1. Police outside lobby entrances (interior only).
2. Remove trash and replace soiled liners.
3. Empty and wipe exterior ashtray (side entrance only).
4. Sweep and damp mop tile floor (Note: Front is slate).
5. Vacuum carpet (spot clean as needed).
6. Dust all horizontal and vertical surfaces (includes
seating).
B. WEEKLY
------
l. Wash and squeegee clean all entrance door glass.
2. Polish reception furniture.
3. Vacuum hard-to-reach areas under and behind furniture and
edges-weekly.
C. MONTHLY
-------
1. Clean heating and A/C diffusers
II. OFFICES, EXECUTIVE AREAS AND CONFERENCE ROOMS
A. DAILY
-----
1. Remove trash and replace soiled liners.
2. Vacuum carpet (spot clean as needed).
3. Spot clean walls, doors and woodwork.
4. Dust horizontal and vertical surfaces.
5. Spot clean partitions and office glass.
6. Reposition furniture as required.
B. WEEKLY
------
1. Clean telephones with an appropriate solution.
C MONTHLY
-------
1. Vacuum hard to reach areas under and behind furniture and
edges.
2. Clean heating and A/C diffusers.
<PAGE>
DESIGNS, INC.
JULY 9, 1997
III. WORKSTATION AREAS, CORRIDORS AND SHIPPING AND RECEIVING
A. DAILY
-----
l. Remove trash and replace soiled liners.
2. Vacuum carpet (spot clean as needed).
3. Dust horizontal and vertical surfaces (includes partitions).
4. Spot clean walls, doors and framework.
B. WEEKLY
------
1. Clean telephones with an appropriate solution.
2. Clean showroom glass (interior and exterior).
3. Spray buff corridor.
C. MONTHLY
-------
1. Vacuum hard-to-reach areas under and behind furniture and
edges.
2. Clean heating and A/C diffusers.
IV. MAIN KITCHEN KITCHENETTES, EXECUTIVE KITCHEN, COPY STATIONS
A. DAILY
-----
1. Remove trash and replace soiled liners.
2. Vacuum carpet (spot clean as needed).
3. Sweep and damp mop any tiled flooring.
4. Wash table and counter, tops, using a germicidal detergent
solution.
5. Wipe down seating (chairs and banquette) to remove crumbs.
6. Spot clean walls, doors and cabinets.
7. Wash and sanitize all sinks and appliances.
B. WEEKLY
------
1. Spray buff tile floors, as necessary.
V. RESTROOMS
A. DAILY
-----
1. Remove trash and replace soiled liners.
2. Refill dispensers (supplied by cleaning company).
3. Sanitize urinals, sinks and toilets.
4. Polish minors and chrome fittings.
5. Sweep and damp mop, using a germicidal detergent solution.
6. Spot clean wails adjacent to fixtures.
7. Dust horizontal and vertical surfaces.
<PAGE>
DESIGNS, INC.
JULY 9, 1997
V. RESTROOMS - CONTINUED
---------------------
B. WEEKLY
------
1. Sanitize showers.
C. MONTHLY
-------
1. Sanitize partitions completely.
2. Clean exhaust fans.
VI. GENERAL WORK
------------
A. QUARTERLY
---------
1. Machine scrub tile flooring. MONTHLY
B. SEMI-ANNUALLY
-------------
1. Dust hanging lights, ductwork, pipes, cable bays.
C. ANNUALLY
--------
1. Strip, seal and apply 2 coats of floor finish on all tile
floors. SEMI ANNUALLY
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
INKTOMI CORPORATION FORM 10-Q FOR THE PERIOD ENDED DECEMBER 31, 1999 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
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<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-2000
<PERIOD-START> OCT-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 61,438
<SECURITIES> 212,283
<RECEIVABLES> 29,094
<ALLOWANCES> (2,319)
<INVENTORY> 0
<CURRENT-ASSETS> 304,302
<PP&E> 74,832
<DEPRECIATION> (21,284)
<TOTAL-ASSETS> 631,595
<CURRENT-LIABILITIES> 37,975
<BONDS> 0
0
0
<COMMON> 108
<OTHER-SE> 585,620
<TOTAL-LIABILITY-AND-EQUITY> 631,595
<SALES> 0
<TOTAL-REVENUES> 36,127
<CGS> 5,921
<TOTAL-COSTS> 46,357
<OTHER-EXPENSES> (3,815)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (6,415)
<INCOME-TAX> 0
<INCOME-CONTINUING> (6,415)
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