<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For The Quarterly Period Ended June 30, 1997
Commission File Number:
0-29194
NEXAR TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3268334
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
182 TURNPIKE ROAD
WESTBOROUGH, MASSACHUSETTS 01581
(Address of principal executive offices)
(508) 836-8700
(Telephone number)
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 of the registrant's Common Stock, $.01 par value,
outstanding as of August 13, 1997 was 9,200,000.
1
<PAGE>
INDEX
<TABLE>
<CAPTION>
Item Number
Part I: Financial Information Page
<S> <C> <C> <C>
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of
December 31, 1996 and June 30, 1997 (Unaudited) 3
Condensed Consolidated Statements of Operations
for the three months and six months ended June 30,
1996 and June 30, 1997 (Unaudited) 4
Condensed Consolidated Statements of Cash Flows
for the six months ended June 30, 1996 and June 30,
1997 (Unaudited) 5
Notes to Condensed Consolidated Financial
Statements 6-7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8-10
Part II: Other Information
Item 1. Legal Proceedings 11
Item 2. Changes in Securities 11
Item 3. Defaults Upon Senior Securities 11
Item 4. Submission of Matters to a Vote of Security Holders 11
Item 5. Other Information 11
Item 6. Exhibits and Reports on Form 8-K 11
Exhibit 10.1 - Office Lease between the Company and
Deerfoot LLC
Exhibit 11.1 - Statement Re: Per Share Earnings
Exhibit 27 - Financial Data Schedule
Signatures 12
</TABLE>
2
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands, Except Share Amounts)
<TABLE>
<CAPTION>
JUNE 30,
DECEMBER 31, 1997
1996 (Unaudited)
------------ -----------
<S> <C> <C>
ASSETS
Current Assets:
Cash ........................................................... $ 2,739 $ 6,969
Accounts receivable, net ....................................... 7,747 13,508
Inventories .................................................... 6,113 5,061
Prepaid expenses and other current assets ...................... 368 848
------- -------
Total current assets ........................................ 16,967 26,386
Property and equipment, net ...................................... 255 451
Purchased technology, net ........................................ 1,375 1,146
Other assets ..................................................... 992 286
------- -------
$19,589 $28,269
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current Liabilities:
Accounts payable ............................................... $ 4,537 $ 5,456
Accrued expenses ............................................... 2,005 1,152
Deferred revenue ............................................... -- 1,908
------- -------
Total current liabilities .................................... 6,542 8,516
Due to related parties ........................................... 22,818 --
------- -------
Stockholders' Equity (Deficit):
Preferred stock, $.01 par value, 10,000,000 shares
authorized; no shares issued and outstanding at
December 31, 1996; 45,684 shares issued and
outstanding at June 30, 1997.................................. -- 1
Common stock, $.01 par value, 30,000,000 shares
authorized; 4,800,000 shares issued and outstanding
at December 31,1996; 9,200,000 shares issued and
outstanding at June 30, 1997................................. 48 92
Additional paid-in capital ..................................... (48) 34,164
Accumulated deficit ............................................ (9,771) (14,504)
------- -------
Total Stockholders' Equity (Deficit) ......................... (9,771) 19,753
------- -------
$19,589 $ 28,269
======= ========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
3
<PAGE>
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except Share And Per Share Data)
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
-------------------- -------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1996 1997 1996 1997
-------- -------- ------- -------
<S> <C> <C> <C> <C>
Net revenues ........................................... $ 2,034 $ 9,172 $ 2,151 $17,997
Cost of revenues ....................................... 1,798 8,515 1,914 16,651
------- ------- ------- -------
Gross profit ...................................... 236 657 237 1,346
Operating expenses:
Research and development ........................... 103 419 170 720
Selling and marketing .............................. 1,679 2,226 2,006 3,919
General and administrative ......................... 634 740 1,076 1,525
------- ------- ------- -------
Total operating expenses ........................... 2,416 3,385 3,252 6,164
------- ------- ------- -------
Interest income -- 87 -- 87
------- ------- ------- -------
Net loss $(2,180) $(2,641) $(3,015) $(4,731)
======== ======= ======= =======
Net loss per common and common
equivalent share $ (0.26) $ (0.32) $ (0.36) $ (0.56)
======= ======= ======= =======
Weighted average number of common
and common equivalent shares outstanding 8,421,838 8,355,886 8,421,838 8,413,391
========= ========= ========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
<PAGE>
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
(Unaudited)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-----------------
JUNE 30, JUNE 30,
1996 1997
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net loss .......................................... $(3,015) $(4,731)
Adjustments to reconcile net loss to net
cash used in operating activities:
Depreciation and amortization ............ 28 293
Changes in current assets and liabilities:
Accounts receivable ....................... (1,745) (5,761)
Inventories ............................... (1,833) 1,052
Prepaid expenses and other current assets (5) (480)
Accounts payable .......................... 2,237 919
Accrued expenses .......................... 110 (853)
Due to related parties .................... -- (550)
Deferred revenue .......................... -- 1,908
------ ------
Net cash used in operating activities (4,223) (8,203)
Cash flows from investing activities:
Purchases of property and equipment ............... (86) (240)
Decrease in other assets .......................... (105) 686
------ ------
Net cash (used in) provided by investing activities (191) 446
Cash flows from financing activities:
Borrowings (payments) of amounts to related parties 5,475 (7,700)
Net proceeds from issuance of common stock -- 19,687
------ -------
Net cash provided by financing activities 5,475 11,987
Net increase in cash .................................. 1,061 4,230
Cash, beginning of period ............................. 981 2,739
------ -------
Cash, end of period ................................... $2,042 $ 6,969
====== =======
Supplemental disclosure of non cash investing
and financing activities:
Conversion of amounts due to related parties to
preferred stock ..................................... -- 4,568
======= =======
Conversion of amounts due to related parties to
common stock ........................................ -- 10,000
======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
<PAGE>
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1.) Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been
prepared by Nexar Technologies, Inc. (the "Company") pursuant to the rules and
regulations of the Securities and Exchange Commission regarding interim
financial reporting. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements and should be read in conjunction with the financial
statements and notes thereto for the year ended December 31, 1996 included in
the Company's Registration Statement on Form S-1 (File No. 333-18489), as
amended (the "Registration Statement"). The accompanying condensed consolidated
financial statements reflect all adjustments (consisting of normal, recurring
adjustments) which are, in the opinion of management, necessary for a fair
presentation of results for the interim periods presented. The results of
operations for the six month period ended June 30, 1997 may not be indicative of
the results to be expected for the full year.
2.) Principles of Consolidation
The accompanying condensed consolidated financial statements include the
accounts of the Company and its wholly owned subsidiary. All significant
intercompany balances and transactions have been eliminated in consolidation.
3.) Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market and
consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31, June 30,
1996 1997
------------ --------
<S> <C> <C>
Raw materials ................................... $4,214 $2,535
Work-in-process ................................. 769 369
Finished goods .................................. 1,130 2,157
------ ------
$6,113 $5,061
====== ======
</TABLE>
Work-in-process and finished goods inventories consist of material, labor and
manufacturing overhead.
4.) Concentration of Credit Risk
Statement of Financial Accounting Standards (SFAS) No. 105, Disclosure of
Information About Financial Instruments with Off-Balance-Sheet Risk and
Financial Instruments with Concentrations of
6
<PAGE>
4.) Concentration of Credit Risk (Continued)
Credit Risk, requires disclosures of any significant off-balance-sheet and
credit risk concentrations. The Company has no significant off-balance-sheet
concentrations of credit risk such as foreign currency exchange contracts,
options contracts or other foreign hedging arrangements. Financial instruments
that subject the Company to credit risk consist primarily of cash and trade
accounts receivable. The Company places its cash in highly rated financial
institutions. The Company's accounts receivable credit risk is limited to one
customer who represented approximately $4,561,000 of accounts receivable at June
30, 1997. To reduce risk, the Company routinely assesses the financial strength
of its customers and, as a result, believes that its accounts receivable credit
risk exposure is limited. The Company maintains an allowance for potential
credit losses. The Company has not experienced any significant losses related to
individual customers or groups of customers in any particular industry or
geographic area.
5.) Net Loss per Common and Common Equivalent Share
Net loss per common and common equivalent share is computed by dividing the net
loss by the weighted average number of common and common equivalent shares
outstanding. Pursuant to Securities and Exchange Commission Staff Accounting
Bulletin No. 83, and the Accounting Principles Board (APB) Opinion No. 15, the
weighted average number of common and common equivalent shares outstanding
assumes the conversion of $10,000,000 due to related parties into 700,000 shares
of the Company's common stock (excluding 1,200,000 shares of common stock
subject to a contingent repurchase right of the Company, at a nominal price per
share, and will only be released upon the attainment of certain revenue, net
income and stock price milestones, as defined in an agreement between the
Company's majority stockholder and the Company), and assumes that all common
stock and common stock equivalents issued within twelve months prior to the
initial filing of the Company's initial public offering (See Note 7) have been
included in the calculation, using the treasury stock method, as if they were
outstanding for all periods immediately preceding the initial public offering.
Options issued more than twelve months prior to the initial filing of the
Company's initial public offering have not been included as their effect would
be anti-dilutive.
6.) New Accounting Standard
On March 31, 1997, the Financial Accounting Standards Board issued SFAS No. 128,
Earnings Per Share. SFAS No. 128 establishes standards for computing and
presenting earnings per share and applies to entities with publicly held common
stock or potential common stock. SFAS No. 128 is effective for fiscal years
ending after December 15, 1997 and early adoption is not permitted. When adopted
by the Company, SFAS No. 128 will require restatement of prior years' earnings
per share. The Company will adopt SFAS No. 128 for its fiscal year ended
December 31, 1997. The Company believes that the adoption of SFAS No. 128 will
not have a material effect on its financial statements.
7.) Initial Public Offering
The Company completed its initial public offering of 2,500,000 shares at
$9.00 per share on April 14, 1997. Net proceeds to the Company amounted to $19.7
million.
7
<PAGE>
Item 2 - Management's Discussion and Analysis of Financial Condition and Results
of Operations
Results of Operations
Nexar Technologies, Inc. (the "Company") was organized and commenced
operations in March of 1995. The Company has focused on developing its products
and its marketing and distribution strategies and did not generate material
revenues until April 1996 when it began shipping its proprietary personal
computers (PCs). The Company develops, manufactures and markets high-
performance, competitively-priced desktop PCs based upon patent pending
technologies.
The table below presents the statement of operations items for the three
months and six months ended June 30, 1996 and June 30, 1997 as a percentage of
net revenues and provides the percentage increase in absolute dollars of such
items comparing the interim periods ended June 30, 1997 to the corresponding
period from the prior fiscal period.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
----------------------- ---------------------
% Change % Change
June 30, June 30, of Dollar June 30, June 30, of Dollar
1996 1997 Increase 1996 1997 Increase
------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Net revenues ..................... 100.0% 100.0% 350.9% 100.0% 100.0% 736.7%
Cost of revenues ................. 88.4 92.8 373.6 89.0 92.5 769.9
------- ------ ----- ------- ------ -----
Gross profit ..................... 11.6 7.2 178.4 11.0 7.5 467.9
Operating expenses:
Research and development ........ 5.1 4.6 306.8 7.9 4.0 323.5
Selling and marketing ........... 82.5 24.3 32.6 93.3 21.8 95.4
General and administrative ...... 31.2 8.1 16.7 50.0 8.5 41.7
------- ------ ----- ------- ------ -----
Total operating expenses ........ 118.8 37.0 40.1 151.2 34.3 89.5
Interest income .................. -- 1.0 100.0 -- 0.5 100.0
------- ------ ----- ------- ------ -----
Net loss ......................... (107.2)% (28.8)% 21.1% (140.2)% (26.3)% 5 6.9%
======= ======= ======= ======= ======= =======
</TABLE>
Net Revenues
Net revenues increased 351% in the second quarter of 1997 to $9.2 million
from $2.0 million in the second quarter of 1996. For the six months ended June
30, 1997, net revenues increased 737% to $18.0 million from $2.2 million in the
comparable period of 1996. The increase in net revenues for the second quarter
and the first six months of 1997 over comparable periods of 1996 was attributed
to increased units sold as a direct result of increased demand for the Company's
PCs.
8
<PAGE>
Unit shipments in the quarter increased 419% to approximately 13,500 from
2,600 in the second quarter of 1996. For the six months ended June 30, 1997,
unit shipments increased 754% to approximately 22,200 from approximately 2,600
in the first six months of 1996. Unit shipments for the second quarter increased
55% over shipments in the first quarter of 1997. This growth reflects the
Company's aggressive sales efforts, including pricing actions aimed at winning
new customer accounts and increasing the penetration of existing customer
accounts.
Gross Profit
Gross profit in the second quarter and first six months of 1997 increased
179% and 468% , respectively over comparable periods of 1996. As a percentage of
net revenues, gross profit for the second quarter and first six months of 1997
decreased to 7% from approximately 11% for the comparable periods of 1996. This
was the result of continual competitive market pressure on PC prices, including
significant decreases in key component costs which were passed on to customers
through system price decreases. The Company also provided customers with sales
incentives in order to facilitate transition of production from the Company's
Nexar II product, to its new XPA product. The Company anticipates better margins
with its shipment of XPA.
Operating Expenses
The Company strives to manage total operating expenses in line with sales
growth and gross profit levels. The Company's selling and marketing and general
and administrative expenses increased in absolute dollars amount while declining
as a percentage of net revenues in the second quarter of 1997 as compared with
the same period of 1996. The increase in expenses resulted from selling expenses
associated with higher unit volumes, as well as expenses incurred in connection
with the entry into new markets and the expansion of the Company's distribution
channels. The Company anticipates that in the remainder of 1997 selling and
marketing and general and administrative expenses will increase in amount as it
supports new product introductions, steps up its advertising and promotion
programs, expands into new markets, and increases its investment in the area of
service and support, especially in support of our new XPA product.
Research and development costs increased in absolute dollars and decreased
as a percentage of net revenues for both the second quarter of 1997 and the six
month period ended June 30, 1997 as compared to the corresponding period(s) of
1996. This decrease as a percentage of net revenues was due primarily to higher
unit shipments during the current period(s) ended June 30, 1997. The Company is
committed to continuing a significant research and development program and
development costs are likely to increase for the remainder of the year.
Liquidity and Capital Resources
The Company's working capital increased to $17.9 million at June 30, 1997,
compared to $10.4 million at December 31, 1996.
The Company's cash and cash equivalents increased to $7.0 million at June
30, 1997 from $2.7 million at December 31, 1996, primarily because of the net
proceeds received from the initial public offering. Accounts Receivable
increased to $13.5 million at June 30, 1997 from $7.7 million primarily
9
<PAGE>
as a result of higher shipments in the second quarter versus the fourth quarter
of 1996. Inventory decreased to $5.0 million at June 30, 1997, from $6.1 million
at December 31, 1996 as a result of better management of inventory levels.
The Company is currently debt free and expects to fund expenditures for
capital requirements, as well as liquidity needs created by changes in working
capital from a combination of available cash balances, Company generated funds
and possible future financing arrangements, if the need arises.
Subsequent Events
In July 1997, one of the Company's two outside turn-key manufacturers
notified the Company of its inability to timely manufacture on a going forward
basis the Company's proprietary motherboards. The Company has made arrangements
with two new manufacturers to assume timely production of the motherboards. The
Company does not believe that the transition to the new manufacturers will have
a long-term material adverse effect on the Company, but the several weeks it may
take to resume full production of these key components could have a short-term
negative impact on the Company's results of operations in the third quarter due
to the possibility of limited delays in the initial shipments of the Company's
new XPA product.
Cautionary Statement
Statements in this report expressing the expectations and beliefs of the
Company regarding its future results or performance are forward-looking
statements that involve a number of risks and uncertainties. In particular,
certain statements contained in the Management's Discussion and Analysis of
Financial Condition and Results of Operations which are not historical facts
(including, but not limited to, statements concerning anticipated availability
of capital for working capital and for capital expenditures) constitute
"forward-looking statements". The Company's actual future results may differ
significantly from those stated in any forward-looking statements. Factors that
may cause or contribute such differences include, but are not limited to, risks
discussed in the Company's Prospectus dated April 8, 1997 included in its
Registration Statement on Form S-1 (Reg. No. 333-18489) and from time to time in
the Company's other filings with the Securities and Exchange Commission,
including, without limitation, the following,(a) the risks and uncertainties
associated with the possibility of product shipment delays as described in
Subsequent Events above and reliance in general on suppliers, (b) intense
competition in the personal computer business, (c) the Company's dependence on a
substantial customer, (d) the risks associated with rapid substantial growth,
(e) the uncertainty of market acceptance of the Company's products, (f) the
risks associated with international expansion, (g) the dependence of the Company
on outside engineering for the development of its products, (h) the risks
associated with the protection and possible infringement of the Company's
intellectual property, (i) dependence upon a third party to provide service and
support to the Company's customers, and (j) dependence on third party
distributors and resellers.
As a result of the foregoing and other factors, the Company may experience
material fluctuations in future operating results on a quarterly or annual basis
which could materially and adversely affect its business, financial condition,
operating results and stock price. The Company specifically declines any
obligation to publicly release the result of any revisions which may be made to
any forward-looking statements to reflect anticipated or unanticipated events or
circumstances occurring after the date of such statement.
10
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
None
Item 2. Changes in Securities
None
Item 3. Defaults Upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
Exhibit 10.1 - Office Lease between the Company and Deerfoot LLC
Exhibit 11.1 - Statement Re: Per Share Earnings
Exhibit 27 - Financial Data Schedule
No reports have been filed on Form 8-K during the quarter ended June 30, 1997.
11
<PAGE>
SIGNATURES
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 the
undersigned, thereunto duly authorized.
NEXAR TECHNOLOGIES, INC.
Date: August 13, 1997 BY /s/ Albert J. Agbay
----------------------------------
Albert J. Agbay
Chairman, Chief Executive Officer
and President
(as authorized officer)
BY /s/ Gerald Y. Hattori
----------------------------------
Gerald Y. Hattori
Vice President, Finance, Chief Financial
Officer and Treasurer
(as authorized officer and as principal
financial officer)
12
<PAGE>
Exhibit 10.1
OFFICE LEASE
DEERFOOT OFFICE PARK
259 TURNPIKE ROAD
SOUTHBOROUGH, MASSACHUSETTS 01772
BY AND BETWEEN
DEERFOOT LLC
as Landlord
AND
NEXAR TECHNOLOGIES INC
as Tenant
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1. Reference Data and Definitions . . . . . . . . . 1
1.01. Reference Data . . . . . . . . . . . . . . . . . 1
1.02. General Provisions . . . . . . . . . . . . . . . 3
1.03. Terms Defined . . . . . . . . . . . . . . . . . . 4
ARTICLE 2. Premises . . . . . . . . . . . . . . . . . . . . 12
2.01. Premises . . . . . . . . . . . . . . . . . . . . 12
2.02. Appurtenances . . . . . . . . . . . . . . . . . . 12
ARTICLE 3. Term . . . . . . . . . . . . . . . . . . . . . . 12
3.01. Term Commencement . . . . . . . . . . . . . . . . 12
3.02. Termination . . . . . . . . . . . . . . . . . . . 12
ARTICLE 4. Rent . . . . . . . . . . . . . . . . . . . . . . 12
4.01. Basic Rent . . . . . . . . . . . . . . . . . . . 12
4.02. Computation of Basic Rent . . . . . . . . . . . . 13
4.03. Intentionally Omitted . . . . . . . . . . . . . . 13
ARTICLE 5. Use of Premises . . . . . . . . . . . . . . . . . 13
5.01. Use Restricted . . . . . . . . . . . . . . . . . 13
ARTICLE 6. Taxes; Operating Expenses; Estimated Cost of
Electrical Services . . . . . . . . . . . . . . . 13
6.01. Expenses and Taxes . . . . . . . . . . . . . . . 13
6.02. Annual Statement of Additional Rent Due . . . . . 14
6.03. Monthly Payments of Additional Rent . . . . . . . 14
6.04. Accounting Periods . . . . . . . . . . . . . . . 14
6.05. Abatement of Taxes . . . . . . . . . . . . . . . 15
6.06. Electric Service . . . . . . . . . . . . . . . . 15
6.07. Late Payment of Rent . . . . . . . . . . . . . . 15
ARTICLE 7. Improvements, Repairs, Additions, Replacements . 15
7.01. Preparation of the Premises; Landlord's Work . . 15
7.02. Time for Completion . . . . . . . . . . . . . . . 16
7.03. Notice to Commence . . . . . . . . . . . . . . . 16
7.04. Delays . . . . . . . . . . . . . . . . . . . . . 16
7.05. Tenant's Access to the Premises . . . . . . . . . 16
7.06. Alterations and Improvements . . . . . . . . . . 17
7.07. Maintenance . . . . . . . . . . . . . . . . . . . 18
7.08. Redelivery . . . . . . . . . . . . . . . . . . . 18
</TABLE>
- i -
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 8. Building Services . . . . . . . . . . . . . . . . 18
8.01. Building Services . . . . . . . . . . . . . . . . 18
8.02. Other Janitors . . . . . . . . . . . . . . . . . 19
8.03. Additional Services . . . . . . . . . . . . . . . 19
8.04. Limitations on Landlord's Liability . . . . . . . 19
ARTICLE 9. Tenant's Particular Covenants . . . . . . . . . . 19
9.01. Pay Rent . . . . . . . . . . . . . . . . . . . . 19
9.02. Occupancy of the Premises . . . . . . . . . . . . 20
9.03. Safety . . . . . . . . . . . . . . . . . . . . . 20
9.04. Equipment . . . . . . . . . . . . . . . . . . . . 20
9.05. Electrical Equipment . . . . . . . . . . . . . . 20
9.06. Pay Taxes . . . . . . . . . . . . . . . . . . . . 21
9.07. Tenant's Covenants . . . . . . . . . . . . . . . 21
ARTICLE 10. Requirements of Public Authority . . . . . . . . 21
10.01. Legal Requirements . . . . . . . . . . . . . . . 21
10.02. Contests . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 11. Covenant Against Liens . . . . . . . . . . . . . 21
11.01. Mechanics Liens . . . . . . . . . . . . . . . . . 21
11.02. Right to Discharge . . . . . . . . . . . . . . . 22
ARTICLE 12. Access to Premises . . . . . . . . . . . . . . . 22
12.01. Access . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 13. Assignment and Subletting: Occupancy Arrangements 22
13.01. Subletting and Assignment . . . . . . . . . . . . 22
ARTICLE 14. Indemnity . . . . . . . . . . . . . . . . . . . . 23
14.01. Tenant's Indemnity . . . . . . . . . . . . . . . 23
14.02. Landlord's Liability . . . . . . . . . . . . . . 24
ARTICLE 15. Insurance . . . . . . . . . . . . . . . . . . . . 24
15.01. Liability Insurance . . . . . . . . . . . . . . . 24
15.02. Casualty Insurance . . . . . . . . . . . . . . . 24
ARTICLE 16. Waiver of Subrogation . . . . . . . . . . . . . . 25
16.01. Waiver of Subrogation . . . . . . . . . . . . . . 25
16.02. Waiver of Rights . . . . . . . . . . . . . . . . 25
</TABLE>
- ii -
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 17. Damage of Destruction . . . . . . . . . . . . . . 25
17.01. Substantial Damage . . . . . . . . . . . . . . . 25
17.02. Restoration . . . . . . . . . . . . . . . . . . . 25
ARTICLE 18. Eminent Domain . . . . . . . . . . . . . . . . . 26
18.01. Total Taking . . . . . . . . . . . . . . . . . . 26
18.02. Awards and Proceeds . . . . . . . . . . . . . . . 26
ARTICLE 19. Quiet Enjoyment . . . . . . . . . . . . . . . . . 27
19.01. Landlord's Covenant . . . . . . . . . . . . . . . 27
19.02. Subordination . . . . . . . . . . . . . . . . . . 27
19.03. Notice to Mortgagee . . . . . . . . . . . . . . . 27
19.04. Other Provisions Regarding Mortgagees . . . . . . 28
ARTICLE 20. Defaults; Events of Default . . . . . . . . . . . 28
20.01. Defaults . . . . . . . . . . . . . . . . . . . . 28
20.02. Tenant's Best Efforts . . . . . . . . . . . . . . 29
20.03. Elimination of Default . . . . . . . . . . . . . 29
ARTICLE 21. Insolvency . . . . . . . . . . . . . . . . . . . 29
21.01. Insolvency . . . . . . . . . . . . . . . . . . . 29
ARTICLE 22. Landlord's Remedies; Damages on Default . . . . . 29
22.01. Landlord's Remedies . . . . . . . . . . . . . . . 29
22.02. Surrender . . . . . . . . . . . . . . . . . . . . 30
22.03. Right to Relet . . . . . . . . . . . . . . . . . 30
22.04. Survival of Covenants . . . . . . . . . . . . . . 30
22.05. Right to Equitable Relief . . . . . . . . . . . . 31
22.06. Right to Self Help; Interest on Overdue Rent . . 31
22.07. Further Remedies . . . . . . . . . . . . . . . . 32
ARTICLE 23. Waivers . . . . . . . . . . . . . . . . . . . . . 32
23.01. No Waivers . . . . . . . . . . . . . . . . . . . 32
ARTICLE 24. Security Deposit . . . . . . . . . . . . . . . . 32
24.01. Security Deposit . . . . . . . . . . . . . . . . 32
ARTICLE 25. General Revisions . . . . . . . . . . . . . . . . 33
25.01. Force Majeure . . . . . . . . . . . . . . . . . . 33
25.02. Notices and Communications . . . . . . . . . . . 33
25.03. Certificates, Estoppel Letter . . . . . . . . . . 34
</TABLE>
- iii -
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
25.04. Renewal . . . . . . . . . . . . . . . . . . . . . 34
25.05. Governing Law . . . . . . . . . . . . . . . . . . 34
25.06. Partial Invalidity . . . . . . . . . . . . . . . 34
25.07. Notice of Lease . . . . . . . . . . . . . . . . . 35
25.08. Interpretation; Consents . . . . . . . . . . . . 35
25.09. Parties . . . . . . . . . . . . . . . . . . . . . 35
25.10. Waiver of Trial by Jury . . . . . . . . . . . . . 35
ARTICLE 26. Miscellaneous . . . . . . . . . . . . . . . . . . 36
26.01. Option at Lease Termination . . . . . . . . . . . 36
26.02. Extended Hours HVAC . . . . . . . . . . . . . . . 36
26.03. Intentionally Omitted . . . . . . . . . . . . . . 36
26.04. Holdover Clause . . . . . . . . . . . . . . . . . 36
ARTICLE 27. Entire Agreement . . . . . . . . . . . . . . . . 36
27.01. Entire Agreement . . . . . . . . . . . . . . . . 36
EXHIBIT A: LEGAL DESCRIPTION . . . . . . . . . . . . . . . . 38
EXHIBIT B: PLANS SHOWING PREMISES AND PARKING . . . . . . . 40
EXHIBIT C: TENANT SPECIFICATION DEERFOOT OFFICE PARK . . . . 41
EXHIBIT D: SERVICES TO BE PROVIDED BY LANDLORD (AS OPERATING
EXPENSES) . . . . . . . . . . . . . . . . . . . . 42
EXHIBIT E: RULES AND REGULATIONS . . . . . . . . . . . . . . 44
</TABLE>
- iv -
<PAGE>
DEERFOOT OFFICE PARK
259 TURNPIKE ROAD
SOUTHBOROUGH, MA 01772
OFFICE LEASE
STANDARD FORM
THIS LEASE ("Lease") made at Marlboro, Massachusetts, between DEERFOOT LLC.
a Massachusetts limited liability corporation ("Landlord") having a principal
place of business at 80 NORTHBOROUGH ROAD, MARLBOROUGH, MA 01752 and NEXAR
TECHNOLOGIES, INC., a Delaware Corporation. ("Tenant") having a principal place
of business at 182 TURNPIKE ROAD, WESTBOROUGH, MA 01581 .
WITNESSETH:
ARTICLE 1.
Reference Data and Definitions
1.01. Reference Data (the following terms are defined more fully in
section 1.03 below)
LANDLORD: DEERFOOT LLC, a Massachusetts
Limited Liability Company
LANDLORD'S REPRESENTATIVE: WILLIAM A. DEPIETRI
LANDLORD'S ADDRESS: 80 NORTHBOROUGH RD.
(FOR PAYMENT OF RENT): MARLBOROUGH, MA 01752
LANDLORD'S ADDRESS: 80 NORTHBOROUGH ROAD
MARLBOROUGH, MA 01752
LANDLORDS PHONE NUMBER: 508-485-5333
TENANT: NEXAR TECHNOLOGIES, INC.,
A Delaware Corporation
TENANT'S REPRESENTATIVE:
GERALD Y. HATTORI, CFO AND
TREASURER
TENANT'S ADDRESS: 182 TURNPIKE ROAD
WESTBOROUGH, MA 01581
TENANT'S PHONE NUMBER: 508-836-8700
<PAGE>
PREMISES: Suite 300 & Suite 100
USABLE AREA OF PREMISES:
20,474 +/- Square Feet
determination at completion of
final draft of construction
plans to be approved by
parties.
RENTABLE AREA OF PREMISES: 1st floor usable area x 1.18
plus 3rd floor usable x 1.13
RENTABLE AREA OF THE BUILDING: 38,335 x/- Square Feet. Final
determination at completion of
final draft of construction
plans to be approved by
parties.
RENT COMMENCEMENT DATE: The earlier of NOVEMBER 1,
1997 or the date which is one
week after completion of the
Landlord's work as described
in 7.01, including the
issuance of a certificate of
occupancy.
OCCUPANCY DATE: The earlier of OCTOBER 15,
1997, or the date which is
seven days after completion of
Landlord Work as described in
7.01 including the issuance of
occupancy permit or the Rent
Commencement Date.
NON OPERATION MOVE IN DATE: One week after Occupancy Date.
Tenant may not operate during
this term.
TERM: 5 YEARS Commencing on the
Rent Commencement Date.
Subject to extension in
accordance with the terms of
Section 26.01 below, for an
additional 3 years.
BASIC RENT PER LEASE YEAR: SEE SCHEDULE BELOW:
YEAR RATE PER RENTABLE SQ. FT. ANNUAL RENT MONTHLY RENT
1 THRU 5 $18.00 $421,812.00* $35,151.00*
* Subject to adjustment upon final usable square foot determination.
-2-
<PAGE>
ESTIMATED COST OF ELECTRICAL SERVICE: N/A TENANT TO BE SEPARATELY METERED AND
BILLED BY THE ELECTRICAL COMPANY.
INITIAL MONTHLY PAYMENT (Basic Rent): $35,151.00
TAX BASE:
THE TAXES FOR THE FIRST YEAR THE LAND AND BUILDING ARE ASSESSED SHALL BE
THE BASIS USED IN DETERMINING SUBSEQUENT YEAR TAXES. IF THE SUBSEQUENT YEAR
TAXES ARE GREATER THAN THE BASIS, THE TENANT AGREES TO PAY HIS PORTION OF
THE EXCESS TAXES INCURRED. IF THE SUBSEQUENT YEARS TAXES ARE LESS THAN THE
BASIS, THERE WILL BE NO PAYMENT DUE FOR TAX EXPENSES.
OPERATING EXPENSE BASE:
THE OPERATING EXPENSES FOR THE FIRST YEAR SHALL BE THE BASIS USED IN
DETERMINING SUBSEQUENT YEAR EXPENSES. IF THE SUBSEQUENT YEAR EXPENSES ARE
GREATER THAN THE BASIS, THE TENANT AGREES TO PAY HIS PORTION OF THE EXCESS
EXPENSE INCURRED. IF THE SUBSEQUENT YEARS EXPENSES ARE LESS THAN THE BASIS,
THERE WILL BE NO PAYMENT DUE FOR COMMON AREA EXPENSES
TENANT'S SHARE OF COMMON AREAS: 47.4% Subject to adjustment upon final
determination of usable square footage.
PARKING SPACES: 63 PARKING SPACES (OR SUCH GREATER NUMBER
REQUIRED BY ZONING OR OTHER LEGAL
REQUIREMENTS) LOCATED ON THE LAND ADJACENT TO
THE BUILDING.
SECURITY DEPOSIT: $35,151.00
PERMITTED USES: General Office uses consistent with a first
class office building, including storage,
management training room and light
engineering lab and accessory and ancillary
uses. Tenant has reviewed Southborough Zoning
By Laws.
1.02. General Provisions.
For all purposes, of the Lease unless the otherwise expressed and provided
herein or therein or unless the context otherwise requires:
(a) The words herein, hereof, hereunder and other words of words of
similar import refer to the Lease as a
-3-
<PAGE>
whole and not to any particular article, section or other subdivision of
this Lease.
(b) A pronoun in one gender includes and applies to the other genders
as well.
(c) Each definition stated in Section 1.01 or 1.03 of this Lease
applies equally to the singular and the plural forms of the term or
expression defined.
(d) Any reference to a document defined in Section 1.03 of this Lease
is to such document as originally executed, or, if modified, amended or
supplemented in accordance with the provisions of this Lease, to such
document as so modified, amended or supplemented and in effect at the
relevant time of reference thereto.
(e) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles.
(f) All references in Section 1.01 hereof are subject to the
specified definitions thereof (if any) in Section 1.03 hereof.
1.03. Terms Defined.
Each term of expression set forth above in Section 1.01 hereof or below in
this Section 1.03 has the meaning stated immediately after it.
Additional Services. Services provided to Tenant or in respect of the
Premises which are not described in Exhibit D hereto at Tenants request.
Adjusted Operating Expense Base. The amount determined by, multiplying the
Operating Expense Base by the Adjustment Factor.
Adjusted Tax Base. The amount determined by, multiplying the Tax Base by
the Adjustment Factor.
Adjustment Factor. With respect to the First Calendar Year and the Last
Calendar Year, the percentage computed by dividing (1) the number of days of
each such period falling within the Lease term by (ii) 365.
Affiliate. With respect to any specified person, any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified person, including without limitation, a subsidiary
corporation (i.e. maintaining a percentage of common ownership), parent
corporation, brother/sister corporation, and successor by merger.
-4-
<PAGE>
For the purposes of this definition, the term control when used with respect to
any specified person means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms controlling and controlled
by, have meanings correlative to the foregoing.
Authorizations. All franchises, licenses, permits and other governmental
consents issued by Governmental Authorities pursuant to Legal Requirements which
are or may be required for the use and occupancy of the Premises and the conduct
or continuation of a Permitted Use therein.
Basic Services. The services described in Exhibit D hereto.
Building. A 3-story building, containing approximately 38,000 +/- square
feet, currently under construction on the Land which contains the premises.
Building Standard. The standards set by Landlord for the quality of work
done on the Premises, which are consistent with a "Class-A" office building and
described on EXHIBIT C.
Business Day. A day which is not a Saturday, Sunday or other day on which
banks in Boston, Massachusetts, are authorized or required by law or executive
order to remain closed.
Calendar Year. The First Calendar Year, the Last Calendar Year and full
calendar year January 1 through December 31) occurring during the Lease Term.
C.P.J. "Consumer Price Index - All Urban Consumers -(CPI-U) - US City
Average - All Items (1967=100)" as published by the US Department of Labor.
Common Areas. All areas devoted to the common use of occupants of the
Building or the provision of Services to the Building, including but not limited
to the atrium, all corridors, elevator foyers, air shafts, elevator shafts, and
elevators, stairwells and stairs, restrooms, mechanical rooms, janitor closets,
loading docks, parking areas, vending areas and other similar facilities for the
provision of Services or the use of all occupants of multi-tenant floors or all
occupants of the Building.
Control. As defined in the definition of Affiliate.
Corporation. A corporation, company, association, business trust or
similar organization wherever formed.
-5-
<PAGE>
Default. Any event or condition specified in Article 20 hereof so long as
any applicable requirement for the giving of notice or lapse of time or both
have not been fulfilled.
Event of Default. Any event or condition specified in (a) Article 20
hereof (if all applicable periods for the giving of notice or lapse of time or
both have been fulfilled) or (b) in Article 21 hereof.
Fair Rental Value. The amount per square foot per annum which a Person not
an Affiliate of either Landlord or Tenant would pay as Basic Rent (using the Tax
Base and Operating Expense Base) as of the time of determination for the
Premises for the then fair market rate. All Additional Rent such as Taxes,
Operating Expenses and Estimated Cost of Electrical Service shall be in addition
to the price per square foot so determined.
First Calendar Year. The partial Calendar Year period commencing on the
Term Commencement Date and ending on the next succeeding December 31.
Force Majeure. Acts of God, strikes, lock outs, labor troubles, and causes
outside the control of Landlord, its General Contractor and their agent, such as
inability, to procure materials, failure of power, riots and insurrection, acts
of public enemy, wars, earthquakes, hurricanes and other natural disasters,
fires, explosions, and material act, failure to act or Default of the other
party to this Lease; provided, however, anything which can be cured by the
payment of money, shall not be deemed such a cause.
General Contractor. Rosewood Construction Corp., a Massachusetts
Corporation with an address of 80 Northboro Road, Marlboro, MA 01752.
Governmental Authority. United States of America, the Commonwealth of
Massachusetts, the County of Worcester, City of Marlborough, and any political
subdivision thereof and any agency, department, commission, board, bureau or
instrumentality of any of them, including without limitations any zoning board,
conservation commission and the like.
Insolvency. The occurrence with respect to any Person of one or more of
the following events: the death, dissolution, termination of existence (other
than by merger or consolidation), insolvency, appointment of a receiver for all
or substantially all of the property of such person, the making of a fraudulent
conveyance or the execution of an assignment or trust mortgage for the benefit
of creditors by such Person, or the filing of a petition of bankruptcy or the
commencement of any proceedings by or against such Person under a bankruptcy,
insolvency or other law relating to the relief or the adjustment of
indebtedness,
-6-
<PAGE>
rehabilitation or reorganization of debtors; provided that if such petition or
commencement is involuntarily made against such a Person and is dismissed within
sixty (60) says of the date of such filing or commencement, such event shall not
constitute an insolvency hereunder.
Insurance Requirements. All terms of any policy, of insurance maintained
by Landlord or Tenant and applicable to (or affecting any condition, operation,
use or occupancy of the Building or the Premises or any part or parts of either
and all requirements of the issuer of any such policy and all orders, rules,
regulations and other requirements of the National Board of Fire Underwriters
(or any other body exercising similar functions).
Land. The land on 259 Turnpike Road Southborough, County of Worcester,
Commonwealth of Massachusetts, and more specifically described in EXHIBIT A
hereto.
Landlord's Work. The work to be done by Landlord with respect to the
Premises described in Exhibit C.
Last Calendar Year. The partial Calendar Year commencing on January 1 of
the Calendar Year in which the Lease Termination Date occurs and ending on the
Lease Termination Date.
Lease Term. The period commencing on the Term Commencement Date and ending
on the Lease Termination Date, subject to extension as set forth in Section
26.01 below.
Lease Termination Date. The earlier to occur of (1) the Stated Expiration
Date, (2) the termination of this Lease by Landlord as the result of an Event of
Default, (3) the termination of this Lease pursuant to Article 17 (Damage or
Destruction) or 18 (Eminent Domain) hereof.
Lease Year. A period commencing on the Term Commencement Date (or an
anniversary thereof) and ending on the Day before the next succeeding
anniversary thereof. For example, the first Lease Year is a period commencing on
the Term Commencement Date and ending on the day before the first anniversary
thereof. The last Lease Year shall end on the Lease Termination Date.
Legal Requirements. All laws statutes, codes, ordinances (and all rules
and regulations thereunder), all executive orders and other administrative
orders, judgments, decrees, injunctions and other judicial orders of or by any
Governmental Authority which may at any time be applicable to parts or
appurtenances of the Premises, Building, or the land or to any condition or use
thereof and the provisions of all Authorizations.
-7-
<PAGE>
Occupancy Arrangement. With respect to the Premises or any portion thereof
of the Lease, and whether (a) written or unwritten or (b) for all or any portion
of the Lease Term, an assignment, a sublease, any tenancy at will, a tenancy at
sufferance, or any other arrangement (including but not limited to a license or
concession) pursuant to which a Person occupies the Premises for any purpose.
Operating Expense Base. With respect to each Calendar Year the amount
determined by multiplying the Rentable Area of the Premises by the amount
hereinbefore set forth as the Operating Expense Base per square foot of Rentable
Area per year, but with respect to the First Calendar Year and the Last Calendar
Year, the Adjusted Operating Expense Base.
Operating Expenses. All expenses, costs, and disbursements of every kind
and nature which Landlord shall pay or become obligated to pay in connection
with the ownership, operation and maintenance of the Building (including all
facilities in operation on the Term Commencement Date and such additional
facilities which are necessary or beneficial for the operation of the Building)
and the Land and the provision of Basic Services, including, but not limited to
(a) wages, salaries, fees and costs to Landlord of all Persons engaged in
connection therewith, including taxes, insurance, and benefits relating thereto;
(b) the cost of (i) all supplies and materials, electricity and lighting, for
Common Areas, (ii) water, heat, air conditioning, and ventilation for the
Building, (iii) all maintenance, janitorial, and service agreements, (iv) all
insurance, including the cost of casualty and liability insurance applicable to
the Building and Landlord's personal property used in connection therewith, (v)
repairs and general maintenance, (vi) capital items which are primarily for the
purpose of reducing Operating Expenses amortized over the reasonable life of the
capital items with the reasonable life and amortization schedule being
determined by Landlord in accordance with generally accepted accounting
principles, (vii) pursuing an application for an abatement of taxes pursuant to
Section 6.05 hereof to the extent not deducted from the abatement, if any,
received, (viii) independent auditors, (ix) Landlord's accounting functions, (c)
management fees not to exceed 4.5% of the gross base rents; and maintenance for
common areas and open areas. Operating Expenses shall not include (i) capital
items except as provided above or (ii) specific costs billed to and paid by
specific tenants. Operating Expenses shall be determined using the accrual of
accounting. If at any time during the Term, less than ninety-five percent (95%)
of the Rentable Area of the Project is occupied, the "operating expenses"
component of Operating Expenses shall be adjusted by Landlord to reasonably
approximate the operating expenses which would have been incurred if the Project
had been at least ninety-five percent (95%) occupied.
-8-
<PAGE>
Partial Taking. Any Taking which is not a Total Taking.
Permitted Exceptions. The following, in effect as of the date hereof: (a)
liens for taxes assessed but not yet due and payable, (b) easements,
reservations, restrictions and rights of way encumbering or affecting the Land
on the date of this Lease, (c) the rights of Landlord, Tenant and any other
Person to whom Landlord has granted such rights to exercise in common with
respect to the Land and the Common Areas the rights granted to Tenant hereunder,
(d) mortgages of record, and (e) Title Conditions, a true and complete schedule
of which is attached hereto as EXHIBIT F.
Person. An individual, a Corporation, a company, a voluntary association,
a partnership, a trust, an unincorporated organization or a government or any
agency, instrumentality or political subdivision thereof.
Premises. The space in the Building shown outlined in red on Exhibit B
hereto, and as defined in Section 1.01 above.
Proceeds. With respect to any Taking or occurrence described in Article 17
hereof, with respect to which any Person is obligated to pay any amount to or
for the account of Landlord, the aggregate of (i) all sums payable or receivable
under or in respect of any insurance policy, and (ii) all sums or awards payable
in respect to a Taking.
Prohibited Occupancy Arrangement. An Occupancy Arrangement which provides
for any rent or other payment based in whole or in part on the net income or
profits derived by any person from the Premises.
Rent. Basic Rent and all Additional Rent.
Rentable Area of the Premises. The number of rentable square feet stated
in Section 1.01, whether the same should be more or less as a result of minor
variations (not to exceed 100' +/-) resulting from actual construction and
completion of the Building or Premises so long as such work is done in
accordance with the terms and provisions hereof. The calculation was made
according to the following formula:
(i) On single tenant floors, the usable.area measured from the
inside surfaces of the outer glass of the Building, plus Tenant's Share of
Common Areas.
(ii) On multi-tenant floors, the usable area measured from inside
surface of the outer glass of the Building to the midpoint of all devising
walls of the space being measured plus the area of each corridor adjacent
to and required as the result of the layout of the space being
-9-
<PAGE>
measured, measured from the midpoint of the adjacent demising walls, plus
Tenant's Share of Common Areas.
Rules and Regulations. Reasonable rules and regulations promulgated by
Landlord and uniformly applicable to persons occupying the Building regulating
the details of the operation and use of the Building. The initial Rules and
Regulations are attached hereto as Exhibit E.
Services. Basic Services and Additional Services.
Special Work. Work done in or with respect to the Premises at Tenant's
request which is not part of Landlord's Work which is to be paid by Tenant.
Stated Expiration Date. The last day of the last Lease Year of the Term
stated in Section 1.01.
Substantial Completion Date. The date on which the Premises together with
the appurtenant areas of the Building necessary for access and service thereto,
have been completed in accordance with Article 7 hereof except for items of work
and adjustment of equipment and fixtures which are not necessary to make the
Premises reasonably tenantable for the Permitted Uses and because of season or
weather or nature of the item cannot practicably be done at the time. At
Tenant's request, Landlord shall update Tenant bimonthly with respect to an
estimated Substantial Completion Date and Tenant may call weekly the last month.
Taking. The taking or condemnation of title to all or any part of the Land
the Building or the Premises or the possession or use of the Building or the
Premises by a person for any public use or purpose or any proceeding or
negotiations which might result in such a taking or any sale or lease in lieu of
or in anticipation of such a taking.
Tax Base. With respect to each Calendar Year the amount determined by
multiplying the Rentable Area of the Premises by the amount hereinbefore set
forth as the Tax Base per square foot of Rentable Area per year, but with
respect to the First Calendar Year (the year the premises is taxed with a
building) and the Last Calendar Year, the Adjusted Tax Base.
Taxes. All taxes, special or general assessments, water rents, rates and
charges, sewer rents and other impositions and charges imposed by Governmental
Authorities of every kind and nature whatsoever, extraordinary as well as
ordinary and each and every installment thereof which shall or may during the
term of this Lease be charged, levied, laid, assessed, imposed, become due and
payable or become liens upon or for or with respect to the Land or any part
thereof or the Building or the Premises, appurtenances or equipment owned by
Landlord thereon or therein
-10-
<PAGE>
or any part thereof or on this Lease under or by virtue of all present or future
Legal Requirements and are tax based on a percentage, fraction or capitalized
value of the Rent (whether in lieu of or in addition to the taxes, hereinbefore
described). Taxes shall not include inheritance, estate, excise, succession,
transfer, gift, franchise, income, gross receipt, or profit taxes except to the
extent such are in lieu of or in substitution for Taxes as now imposed on the
Building, the Land, the Premises or this Lease.
Tenant. As defined in the preamble hereof.
Tenant's Cost. The cost of special work requested by Tenant and done in
connection with the completion of the and reviewed and approved by Tenant and
Landlord in writing before Landlord performs the subject work.
Tenant's Share. Tenant's share of building is equal to T divided by B x
100%, where "T" is equal to the number of rentable square feet rented by the
Tenant and "B" is equal to 100% of the total rentable square feet of the
building.
Term Commencement Date. The earlier of (a) the later of (x) the date
specified by Landlord in the notice delivered pursuant to Section 7.03 or (y)
the Substantial Completion Date, or (b) any other date for such commencement
determined in accordance with said Article 7, or (c) the date on which Tenant
first occupies the Premises for the Permitted Uses.
Title Conditions. All covenants, agreements, restrictions, easements and
declarations of record on the date hereof so far as the same may be from time to
time in force and applicable.
Total Taking. (i) a Taking of: (a) the fee interest in all or substantially
all of the Building or (b) such title to, easement in, over, under or such
rights to occupy and use any part or parts of the Building to the exclusion of
Landlord as shall have the effect, in the good faith judgment of the Landlord,
of rendering the portion of the Building remaining after such Taking (even if
restoration were made) unsuitable for the continued use and occupancy of the
Building for the Permitted Uses or (ii) a Taking of all or substantially all of
the Premises or such title to or easement in, on or over the Premises to the
exclusion of Tenant which in the good faith judgment of the Landlord prohibits
access to the Premises or the exercise by Tenant of any rights under this Lease.
Approved Plans. The plans and specifications for the construction and
finishing of the Premises developed by Landlord and Tenant, at Landlord's
expense, and expressly approved by Tenant. Said Approved Plans shall be prepared
in compliance with all applicable Legal Requirements and stamped by registered
-11-
<PAGE>
Massachusetts professionals, and shall consist of all architectural and
engineering plans and specifications which are required to construct and finish
the Premises or to obtain any Authorization required therefor. Both parties must
sign off on all plans and specifications, including change orders. Any change
order, as approved, which may delay delivery/occupancy will increase the
delivery/occupancy date appropriately.
ARTICLE 2.
Premises
2.01. Premises.
Landlord hereby leases and lets to Tenant, and Tenant hereby takes and hires
from Landlord, upon and subject to the terms, conditions, covenants and
provisions hereof, the Premises subject to the Permitted Exceptions. Landlord
reserves the right to relocate within or without the Premises pipes, ducts,
vents, flues, conduits, wires and appurtenant fixtures which service other parts
of the Building; provided that such work is done in such a manner that it does
not unreasonably interfere with Tenant's use of the Premises.
2.02. Appurtenances.
Tenant may use the Common Areas, including parking spaces and the Land as
appurtenant to the Premises for the purposes for which they are designed.
ARTICLE 3.
Term
3.01. Term Commencement.
The Lease Term shall commence on the Term Commencement Date.
3.02. Termination.
The Lease Term shall end on the Lease Termination Date, subject to extension as
set forth in section 26.01 below.
ARTICLE 4.
Rent
4.01. Basic Rent.
Tenant shall pay Landlord for the Premises, without offset or deduction and
without previous demand therefor, the Basic Rent as annual rent for each Lease
Year. Basic Rent shall be paid in
-12-
<PAGE>
equal monthly installments in advance on the first day of each calendar month
during the Lease Term. The first installment of Basic Rent should be paid on the
Rent Commencement Date. Subsequent installments of Basic Rent shall be paid on
the first day of every calendar month thereafter during the Lease Term or any
extension thereof. Basic Rent for partial months at the beginning or end of the
Lease Term shall be pro-rated and paid on the Term Commencement Date and the
first day of the calendar month in which the Lease Termination Date is to occur.
If an Event of Default occurs at any time during the term of this Lease, as
outlined under Article 20 of this Lease, Landlord shall have the option of
retracting any rent abatement, and Tenant shall pay the full abated amount
immediately to Landlord upon demand.
4.02. Computation of Basic Rent.
The Basic Rent for each of the first ____5____ Lease Years shall be stated in
Article 1.01 hereof.
Basic Rent so determined shall be exclusive of (and in addition to) amounts due
hereunder for Tenants share of Taxes and Operating Expenses. Tenant shall pay
for its own electricity and be billed directly by electric company.
4.03. Intentionally Omitted.
ARTICLE 5.
Use of Premises
5.01. Use Restricted.
The Premises may be used for the Permitted Uses and for no other purpose. No
improvements may be made by Tenant in or to the Premises except as otherwise
provided in this Lease.
ARTICLE 6.
Taxes; Operating Expenses; Estimated Cost of Electrical Services
6.01. Expenses and Taxes.
If with respect to any Calendar Year, Tenant's Share of (a) Operating Expenses
exceeds the Operating Expense Base or (b) Taxes exceeds the Tax Base (whether as
the result of an increase in rate or assessment or both), Tenant shall pay to
Landlord the amount of each such excess. Any amount due with respect to this
Section 6.01 shall be due as set forth in section 6.03.
-13-
<PAGE>
6.02. Annual Statement of Additional Rent Due.
Landlord shall render to Tenant a statement, showing (i) for the prior Calendar
Year so indicated (a) Taxes and (b) Operating Expenses and (ii) for the then
current Calendar Year, an estimate for (a) Operating Expenses (b) Taxes and (c)
Tenant's obligation under Section 6.01. Tenant shall have the right upon written
notice to examine Landlord's books and records during normal business hours to
the extent necessary to review and audit Landlord's calculation of the operating
expenses or other additional rent billed to tenant billed to Tenant. Landlord
shall provide copies of all invoices and other documentation upon Tenant's
request supporting Landlord's calculation of all additional rent hereunder. Any
dispute as to operating expenses or other additional rent hereunder shall be
resolved by arbitration, to be paid for by losing party if there is a
differential greater than 10%, which determination shall be binding upon Tenant
and Landlord. Landlord and Tenant shall thereupon make appropriate adjustments
of all amounts then owing.
6.03. Monthly Payments of Additional Rent
Tenant shall pay to Landlord in advance for each calendar month as Additional
Rent an amount equal to 1/12th of Tenant's estimated obligation under Section
6.01 shown thereon. The amount due under this Section 6.03 shall be paid with
Tenant's monthly payments of Basic Rent and shall be credited by Landlord to
Tenant's obligations under Section 6.01. If the total amount paid hereunder
exceeds the amount due under such Section, such excess shall be credited by
Landlord against the monthly installments of Additional Rent next falling due or
shall be refunded to Tenant upon the expiration or termination of this Lease
(unless such expiration or termination is the result of an Event of Default).
6.04. Accounting Periods.
Landlord shall have the right from time to time to change the periods of
accounting hereunder to any other annual period than a Calendar Year, and upon
any such change, all items referred to in this Article 6 shall be appropriately
apportioned. In all statements rendered under Section 6.02, amounts for periods
partially within and partially without the accounting periods shall be
appropriately apportioned, and any items which are not determinable at the time
of a statement shall be included therein on the basis of Landlord's estimate and
with respect thereof Landlord shall render promptly after determination a
supplemental statement and appropriate adjustment shall be made according
thereto.
-14-
<PAGE>
6.05. Abatement of Taxes.
Landlord may at any time and from time to time make application to the
appropriate Governmental Authority for an abatement of Taxes. Landlord shall
make such an application at any time tenants occupying more than 60% of the
Rentable Area of the Building under written Occupancy Arrangements directly with
the Landlord request that Landlord do so. If (i) such an application is
successful and (ii) Tenant has made any payment in respect of Taxes pursuant to
this Article 6 for the period with respect to which the abatement was granted,
Landlord shall (a) deduct from the amount of the abatement all expenses incurred
by it in connection with the application (b) pay to Tenant Tenant's Share
(adjusted for any period for which Tenant has made a partial payment) of
abatement, with interest, if any, paid by the Governmental Authority on such
abatement and (c) retain the balance, if any.
6.06. Electric Service.
Tenant shall contract and pay the electric company for electrical service for
its premises directly, however it is acknowledged that there is a common area
electrical charge for which tenant shall be responsible and which is included in
the Operating Expenses.
6.07. Late Payment of Rent.
If any installment of basic rent or additional rent is not received in full
within seven (7) days of its due date then, in addition to any other rights or
remedies of the Landlord, upon demand of Landlord, Tenant shall pay for each
month that rental payments are not timely made, a sum equal to seven and one
half percent (7.5%) of each unpaid portion of such monthly installment as a
liquidated damages charge arising out of and occurring as the result of each
such late payment.
In the event that Tenant makes three or more late payments of rent during the
Term, Landlord may deem such action to constitute an Event of Default sufficient
to terminate (i) the Lease (ii) any provision for exercise by Tenant of any
option rights under the Lease or (iii) both.
ARTICLE 7.
Improvements, Repairs, Additions, Replacements
7.01. Preparation of the Premises; Landlord's Work.
Landlord shall perform Landlord's Work as set forth in Exhibit C. All other work
must be of a quality equal to or better than the Building Standard. If Landlord
further agrees to do, at Tenant's
-15-
<PAGE>
request, any Special Work, Landlord shall advise Tenant of the Tenant's cost,
and after Tenant's approval and prior to Landlord's performance of the Special
work, (the parties may mutually agree to a payment schedule) Tenant shall pay
the amount of Tenant's Cost to Landlord.
7.02. Time for Completion.
Landlord shall use due diligence to have the Premises ready for occupancy and
deliver a certificate of occupancy for the Premises to Tenant on or before the
Term Commencement Date.
7.03. Notice to Commence.
Approximately fifteen (15) days prior to the Substantial Completion Date, at
Tenant's written request, Landlord shall furnish Tenant a notice stating the
Term Commencement Date.
7.04. Delays.
If Landlord shall be delayed in substantially completing the Landlord's Work in
the Premises as the result of:
(a) material delay in delivery by Tenant to Landlord of any plans, design
work and detailed drawing, or
(b) Tenant's requests for Special Work (notwithstanding Landlord's
approval of such changes), which delays the completion of the
Premises, or
(c) material delays in performance by Tenant or any Person employed by
Tenant which shall cause delays in the completion of any work to be
done by Landlord or which shall otherwise delay the substantial
completion of the Premises, or
(d) any material fault, negligence, omission, or failure to act on the
part of Tenant (including but not limited to failure to provide timely
approval or other information) or its agents, contractors, workmen,
mechanics, suppliers or invitees,
The Premises shall be deemed to be substantially completed Term Commencement
Date and the Landlord shall not be liable for any late completion penalty fees.
7.05. Tenant's Access to the Premises.
Tenant and Tenant's agents, at Tenant's sole risk, may, with Landlord's prior
consent, enter the Premises prior to the Term Commencement Date in order to do
such work as may be required to make the Premises ready for Tenant's use and
occupancy thereof.
-16-
<PAGE>
If Landlord permits such entry prior to the Term Commencement Date, such
permission shall be conditioned upon Tenant and Tenant's agents, contractors,
workmen, mechanics, suppliers and invitees, working in harmony with Landlord and
the General Contractor and with other tenants and occupants of the Building. If
at any time such entry shall interfere with the orderly completion of operation
of the Building, Landlord shall have the right to withdraw such permission upon
twenty-four (24) hours written notice to Tenant. Any such entry into and
occupation of the Premises shall be deemed to be under all of the terms,
covenants, conditions and provisions of this Lease except the covenant to pay
Rent. Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's work and installations made in the Premises
or to limitation, Landlord shall not be deemed unreasonable for withholding
approval of same.
7.06. Alterations and Improvements.
Other than Landlord's Work and Tenant's Work approved by Landlord, Tenant shall
not make alterations or additions to the Premises except in accordance with
plans and specifications therefor first approved in writing by Landlord, which
approval shall not be unreasonably withheld. Tenant shall not hang shades,
curtains, signs, awnings or other materials, attach any materials to or make any
change in the appearance of any glass visible from outside of the Premises, add
any window treatments of any kind or make improvements or install furniture
visible from outside of the Premises, without Landlord's prior written consent.
Any alterations or additions which would (a) delay completion of the Premises or
the Building, or (b) require unusual expense to readapt the Premises to normal
office use upon termination of this Lease or increase (i) the cost of (a)
construction or (b) insurance or (ii) Taxes may not be made without Landlord's
prior written consent. All alterations and additions shall be part of the
Premises unless and until Landlord shall specify the same (other than Landlord's
work which shall not be required to be removed for removal in a notice delivered
to Tenant on or before the Lease Termination Date. All of Tenant's alterations
and additions and installation of furnishings shall be coordinated with any work
being performed by Landlord and in such manner as to maintain harmonious labor
relations and not to damage the Building or the Premises or interfere with
Building operation and, except for installation of furnishings, shall be
performed by contractors or workmen first reasonably approved by Landlord.
Except for work done by or through Landlord, Tenant before its work is started
shall: secure all licenses and permits necessary therefor; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them; and cause each
contractor to carry workmen's compensation insurance in statutory amounts
covering
-17-
<PAGE>
all the contractor's and subcontractor's employees and comprehensive public
liability insurance with limits as Landlord may reasonably require, but in no
event less than $1,000,000.00 and property damage insurance with limits of not
less that $1,000,000.00 and have deductibles of no more than $5,000.00 (all such
insurance to be written in companies approved by Landlord and insuring Landlord
and Tenant as well as the contractors), and to deliver to Landlord certificates
of all such insurance. Tenant agrees to pay promptly when due the entire cost of
any work done in the Premises by Tenant, its agents, employees or independent
contractors, and not to cause or permit any liens therewith to attach to the
Premises and immediately to discharge any such liens which may so attach. All
construction work done by Tenant, its agents, employees or independent
contractors shall be done in a good and workmanlike manner and in compliance
with all Legal Requirements and Insurance Requirements. Landlord shall promptly
give notice to Tenant of any observed defects.
7.07. Maintenance.
Except for the maintenance obligations of the Landlord under this Lease, Tenant
shall, at all times during the Lease Term, and at its own cost and expense, (i)
keep and maintain (or cause to be kept and maintained) the Premises interior,
nonstructural nonmechanical elements of the premises in good repair and
condition (ordinary wear and tear and damage by fire or casualty only excepted)
and (ii) use all reasonable precaution to prevent waste, damage or injury
thereto.
7.08. Redelivery.
Subject to the renewal option in Section 26.01, on the Lease Termination Date,
Tenant shall quit and surrender the Premises free and clear of all tenants,
occupants, liens, and encumbrances, restrictions or reservations caused by or
under Tenants control or consented to by Tenant. Tenant shall, subject to the
provisions of Articles 17 and 18 hereof, surrender the Premises to Landlord
broom clean and in good condition and repair (ordinary wear and tear, damage by
fire or casualty only excepted) with all damages occasioned by Tenant's removal
of Tenant's fixtures or equipment repaired at Tenant's cost to Landlord's
reasonable satisfaction.
ARTICLE 8.
Building Services
8.01. Building Services.
Landlord shall furnish, or cause to be furnished, during the Lease Term the
Basic Services.
-18-
<PAGE>
8.02. Other Janitors.
No persons shall be employed by Tenant to do janitorial work in the Premises and
no persons other than the janitors of the Building shall clean the Premises
unless Landlord shall give its written consent thereto. Any person employed by
Tenant with Landlord's consent to do janitorial work shall, while in the
Building, either inside or outside the Premises, be subject to and under the
control and direction of the superintendent of the Building (but not as agent or
servant of said superintendent or of Landlord).
8.03. Additional Services.
Tenant will pay the Landlord a reasonable charge for any extra cleaning of the
Premises required because of the carelessness or indifference of Tenant (after
prior written notice thereof to Tenant and an opportunity to cure) and for any
Additional Services rendered at the request of Tenant. If the cost of cleaning
the Premises shall be increased due to the installation in the Premises, at
Tenant's request, of any unique or special materials, finish or equipment,
Tenant shall pay the Landlord an amount equal to such increase in cost (Landlord
shall provide Tenant with written evidence of such increase in cost due to
Tenant's finish standard). All charges for Additional Services shall be due and
payable within ten (10) days of the date on which they are billed.
8.04. Limitations on Landlord's Liability.
Landlord shall not be liable in damages, not in default hereunder, for any
failure or delay in furnishing any Basic Service or Additional Service when such
failure or delay is occasioned by Force Majeure or by the act or Default of
Tenant. No such failure or delay shall be held or pleaded as eviction or
disturbance in any manner whatsoever of Tenant's possession or give Tenant any
right to terminate this Lease or give rise to any claim for set-off of any
abatement of Rent or of any of Tenant's obligations under this Lease. However,
if due to Force Majeure and such failure or delay exceeds 15 business days,
Tenant shall be entitled to a reasonable rent abatement.
ARTICLE 9.
Tenant's Particular Covenants
9.01. Pay Rent.
Tenant shall pay when due all Rent and all services requested by Tenant and
rendered to the Premises not included in Rent and, as further Additional Rent,
all charges of Landlord for Additional Services requested by Tenant.
-19-
<PAGE>
9.02. Occupancy of the Premises.
Tenant shall occupy the Premises continuously from the Term Commencement Date
for the Permitted Uses only. Tenant shall not (i) injure or deface the Premises
or the Building, (ii) install any sign in or on any window, demising wall or
Common Area without the written consent of the Landlord, (iii) permit in the
Premises any flammable fluids or chemicals not reasonably related to the
Permitted Uses nor (iv) permit nuisance or any use thereof which is improper,
offensive, contrary to any Legal Requirement or Insurance Requirement.
9.03. Safety.
The Landlord's work shall equip the premises and Tenant shall keep the Premises
so equipped with all safety appliances required by Legal Requirements or
Insurance Requirements because of any use made by Tenant. Tenant shall procure
all Authorizations so required because of Tenant's use in the Premises and, if
requested by Landlord, shall do any, work so required because of such use, it
being understood that the foregoing provision shall not be construed to broaden
in any way the Permitted Uses.
9.04. Equipment.
Tenant shall not place a load upon the floor of the Premises exceeding the live
load for which the floor has been designed; and shall not move any safe or other
heavy equipment in, about or out of the Premises except in such a manner and at
such a time as Landlord shall in each instance authorize. Tenant shall isolate
and maintain all of Tenant's business machines and mechanical equipment which
cause or may cause greater than ordinary airborne or structure-born vibration or
noise, whether or not it may be transmitted to any other Premises so as to
eliminate such vibration or noise.
9.05. Electrical Equipment.
Except as contemplated in Landlord's Work, Tenant shall not, without prior
written notice to Landlord in each instance (i) connect to the Building electric
distribution system anything other than normal and customary office equipment or
(ii) operate such equipment on a regular basis beyond normal and customary
Building operating hours, Tenant's use of electrical energy in the Premises
shall not at any time exceed the capacity of any of the electrical conductors or
equipment in or otherwise serving the Premises. Tenant shall not, without prior
written notice to Landlord in each instance, connect to the Building electric
distribution system any fixtures, appliances or equipment which operate on a
voltage in excess of 120 volts nominal or make any alteration or addition to the
electric system of the Premises.
-20-
<PAGE>
9.06. Pay Taxes.
Tenant shall pay promptly to the taxing authority when due all Taxes if any-upon
Tenant's personal property (including, without limitation, fixtures and
equipment) in the Premises to whomsoever assessed.
9.07. Tenant's Covenants.
Tenant will not vacate, abandon or desert the Premises or cause the Premises to
be empty or unoccupied.
ARTICLE 10.
Requirements of Public Authority
10.01. Legal Requirements.
Tenant shall, at its own cost and expense, promptly observe and comply with all
Legal Requirements applicable to Tenant's use of the Premises. Landlord shall be
responsible for the compliance of the Premises and the Building with all Legal
Requirements. Tenant shall pay all costs, expenses, liabilities, losses,
damages, fines, penalties, claims and demands, that may in any manner arise out
of or be imposed because of the failure of Tenant to comply with the covenants
of this Article 10.
10.02. Contests.
Tenant shall have the right to contest by appropriate legal proceedings
diligently conducted in good faith, in the name of the Tenant, or Landlord (if
legally required), or both (if legally required), without cost, expense,
liability or damage to Landlord, the validity or application of any Legal
requirement and, if compliance with any of the terms of any such Legal
Requirement may be delayed pending the prosecution of any such proceeding,
Tenant may delay such compliance therewith until the final determination of such
proceeding.
ARTICLE 11.
Covenant Against Liens
11.01. Mechanics Liens.
Landlord's right, title and interest in the Premises or the Land or the Building
shall not be subject to or liable for liens of mechanics or materialmen for work
done on behalf of Tenant in connection with improvements to the Premises.
Notwithstanding such restriction, if because of any act or omission of Tenant,
any mechanic's lien or other lien, charge or order for payment of money shall be
filed against any portion of the Premises or the
-21-
<PAGE>
Land or the Building, Tenant shall, at its own cost and expense, cause the same
to be discharged of record or bonded within thirty (30) days after the filing
thereof.
11.02. Right to Discharge.
Without otherwise limiting any other remedy of Landlord for default hereunder,
if Tenant shall fail to cause such liens to be discharged of record or bonded
within the aforesaid thirty (30) day period or to satisfy such liens within (30)
days after any judgment in favor of such lien holders from which no further
appeal might be taken then Landlord shall have the right to cause the same to be
discharged. All amounts paid by Landlord to cause such liens to be discharged
shall constitute Additional Rent.
ARTICLE 12.
Access to Premises
12.01. Access.
Landlord or Landlord's agents and designers shall have the right, but not the
obligation, to enter upon the Premises at all reasonable times during ordinary
business hours to examine same and to exhibit the Premises to prospective
purchasers and tenants, Landlord shall reasonably attempt to minimize
interference with Tenant's use, but in the latter the case (as relates to
tenants) right of access shall only apply during the last six (6) months of the
Lease Term.
ARTICLE 13.
Assignment and Subletting: Occupancy Arrangements
13.01. Subletting and Assignment.
Tenant shall not (either voluntarily or by operation of law) enter into a
Prohibited Occupancy Arrangement, and any Prohibited Occupancy Arrangement shall
be absolutely void and ineffective for any purpose. Tenant shall not enter into
any other Occupancy Arrangement, either voluntarily or by operation of law,
(other than with a Person who is Affiliate of Tenant for a period ending when,
as and if such Person ceases to be Affiliate of Tenant, which assignment or
sublease shall be permitted without the prior consent of Landlord but with
written notice) without the prior written consent of Landlord which consent
shall not be unreasonably withheld. Continued on rider
If Tenant intends to enter into a Occupancy Arrangement which requires
Landlord's consent, Tenant shall so notify Landlord in writing, stating the name
of (and a financial statement with respect to) the Person whom Tenant intends to
enter into such
-22-
<PAGE>
Arrangement, the exact terms of the Arrangement and a precise description of the
portion of the Premises intended to be subject thereto. Within thirty (30) days
of receipt of such writing, Landlord shall either (i) consent to such Occupancy
Arrangement or (ii) terminate this Lease with respect to so much of the Premises
as is intended to be subject thereto.
If the Landlord consents to such Occupancy Arrangement, Tenant shall (i) enter
into such Arrangement on the exact terms described to Landlord within fourteen
(14) days of Landlord's consent or comply again with their terms of this Section
and (ii) remain liable for the payment and performance of the terms and
covenants of this Lease. If Tenant enters into such an Arrangement, Tenant shall
pay to Landlord when received the excess, if any, of amounts received in respect
of such Occupancy Arrangement over the Rent.
If Landlord terminates this Lease, all Rent due shall be adjusted as of the day
the Premises (or portion thereof) are redelivered to Landlord. Any portion of
the Premises so redelivered shall be in the condition specified in Section 7.08
hereof.
ARTICLE 14.
Indemnity
14.01. Tenant's Indemnity.
To the fullest extent permitted by law, Tenant shall indemnify and save Landlord
harmless from and against any and all liability, damage, penalties or judgments
and from and against any claims, actions, proceedings and expenses and costs in
connection therewith, including reasonable counsel fees arising from injury), to
person or property sustained by anyone in and about the ]eased Premises caused,
by any, act or omission of Tenant, or Tenant's officers, agents, servants,
employees, contractors, sublessees or invitees other than due to Landlord's
failure to perform its obligations hereunder. Tenant shall, at its own cost and
expense, defend any and all suits or actions (just or unjust) in which Landlord
may be impeded with others upon any above mentioned matter, claim or claims,
except as may result from the acts as set forth in Section 14.02. All
merchandise, furniture, fixtures and property of every kind, nature and
description of Tenant or Tenant's employees, agents, contractors, invitees,
visitors, or guests which may be in or upon the Premises, the Land or the
Building during the Lease Term shall be at the sole risk and hazard of Tenant,
and that if the whole or any part thereof shall be damaged, whatsoever, other
than by the gross negligence or willful default of Landlord or its agents,
contractors, employees, etc., no part of said damage or loss shall be charged to
or borne by Landlord.
-23-
<PAGE>
14.02. Landlord's Liability.
Except as otherwise provided for in this Lease and except for its intentional
acts or gross negligence or the intentional acts or gross negligence of its
officers, agents, servants, employees or contractors, Landlord shall not be
responsible or liable for any damage or injury to any property, fixtures,
buildings or improvements, or to any person or persons, at any time in the
Premises, including any damage or injury to Tenant or to any of Tenant's
officers, agents, servants, employees, contractors, invitees, customers or
sublessee.
ARTICLE 15.
Insurance
15.01. Liability Insurance.
Tenant shall provide or cause to be provided at its, expense, and keep in force
during the Lease Term, general comprehensive liability insurance in a good and
solvent insurance company or companies licensed to do business in the
Commonwealth of Massachusetts, selected by Tenant, and reasonably satisfactory
to Landlord, and in an amount reasonably required by Landlord but in any event
not less than One Million Dollars ($1,000,000.00) with respect to injury or
death to any one person and One Million Dollars ($1,000,000.) with respect to
injury or death to more than one person in any one accident or other occurrence
and One Million Dollars ($1,000,000.00) with respect to damages to property.
Such policy or policies shall include Landlord as an additional insured and have
deductibles of no more than $5,000.00. Tenant agrees to deliver certificates of
such insurance to Landlord as of the date hereof and thereafter not less than
ten (10) days prior to the expiration of any such policy. Such insurance shall
not be cancelable without thirty (30) days' written notice to Landlord.
15.02. Casualty Insurance.
Tenant shall cause its improvements to the Premises to be insured for the
benefit of Landlord and Tenant as their respective interests may appear, against
loss or damage by fire and customary extended coverage in an amount equal to (i)
the replacement value thereof, if insurance in such amount is available, or (ii)
the amount necessary to avoid the effect of co-insurance provisions of the
applicable policies. Certificates thereof shall be delivered to Landlord,
Landlord shall, at Tenant's cost and expense, cooperate fully with Tenant and
execute any and all consents and other instruments and take all other actions
necessary), to obtain the largest possible recovery. Landlord shall not carry
any insurance concurrent in coverage and contributing in the event of loss with
any insurance
-24-
<PAGE>
required to be furnished by Tenant hereunder if the effect of such separate
insurance would be to reduce the protection or the payment to be made under
Tenant's insurance.
ARTICLE 16.
Waiver of Subrogation
16.01. Waiver of Subrogation.
To the extent obtainable without payment of additional material premium, all
insurance policies carried by either party covering the Premises, including but
not limited to contents, fire and casualty insurance, shall expressly waive any
right on the part of the insurer to make any claim against the other party. The
parties hereto agree that their policies will include such waiver clause or
endorsement, subject to the foregoing.
16.02. Waiver of Rights.
Landlord and Tenant each hereby waive all claims, causes of action and rights of
recovery against the other and their respective partners, agents, officers and
employees, for any damage to or destruction of persons, property or business
which shall occur on or about the Premises and shall result from any of the
perils insured under any and all policies of insurance maintained by Landlord
and Tenant, regardless of cause, including the negligence and intentional wrong
doing of either party and their respective agents, officers and employees but
only to the extent of recovery, if any under such policy or policies of
insurance.
ARTICLE 17.
Damage of Destruction
17.01. Substantial Damage
If the Building or any part thereof shall be damaged by fire or other casualty
to the extent that substantial alteration or reconstruction of the Building
shall, in Landlord's reasonable opinion, be required (whether or not the
Premises shall have been damaged), Landlord may, at its option, terminate this
Lease by notifying Tenant in writing of such termination within sixty (60) days
after the date of such damage. If this Lease is so terminated, Rent shall be
abated as of the date of such damage.
17.02. Restoration.
If Landlord does not terminate this Lease pursuant to Section 17.01, Landlord
shall, within one hundred twenty (120) days after destruction of the premises,
proceed with reasonable diligence to
-25-
<PAGE>
repair and restore the Building (subject to Force Majeure) to substantially the
same condition in which it was in immediately prior to the occurrence of the
casualty to the extent of Landlord's Work, Landlord shall not be required to
rebuild, repair, or replace any part of Tenant's furniture, furnishings or
fixtures or equipment other than Landlord's Work unless same is covered by
Tenant's insurance. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof, except that, Landlord shall allow Tenant
a fair diminution of Rent during the time and to the extent the Premises are
unfit for occupancy for Permitted Uses.
ARTICLE 18.
Eminent Domain
18.01. Total Taking.
If the Premises or the Building should be the subject of a Total Taking, then
this Lease shall terminate as of the date when physical possession of the
Building or the Premises is taken by the condemning authority.
If there occurs a Partial Taking, Landlord (whether or not the Premises are
affected thereby) may terminate this Lease by giving written notice thereof to
Tenant within sixty (60) days after the right of election accrues, in which
event this Lease shall terminate as of the date the Building or Premises is
taken by the condemning authority. If upon such Partial Taking this Lease is not
terminated, Rent shall be abated by an amount representing that part of the Rent
properly be allocable to the portion of the Premises so taken and Landlord
shall, at Landlord's sole expense, restore and reconstruct the Building and the
Premises to substantially their former condition to the extent that the same, in
Landlord's judgment, may be feasible, but such work shall not exceed the scope
of Landlord's Work such that the Premises are usable for the intended uses by
Tenant hereunder. The Landlord shall have no liability for interruption of
tenant's business.
18.02. Awards and Proceeds.
All Proceeds payable in respect of Taking shall be the property of Landlord.
Tenant hereby assigns to Landlord all rights of Tenant in or to such Proceeds,
provided that Tenant shall be entitled to separately petition the condemning
authority for a separate award for its moving expenses and trade fixtures but
only if such a separate award will not diminish the amount of Proceeds payable
to Landlord.
-26-
<PAGE>
ARTICLE 19.
Quiet Enjoyment
19.01. Landlord's Covenant.
Provided that an Event of Default has not occurred and is not then continuing,
Tenant shall, subject to the Permitted Exceptions, be entitled to the peaceful
and quiet enjoyment of the Premises during the Lease Term, without hindrance or
molestation from the Landlord or any Person lawfully claiming by, through or
under Landlord.
19.02. Subordination.
This Lease is and shall be subject and subordinate to any mortgage now or
hereafter on the Building and to each advance made or hereafter to be made under
any mortgage, and to all renewals, modifications, consolidations, replacements
and extensions thereof and all substitutions therefore. This Section 19.02 shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall execute and deliver promptly
any certificate that Landlord or any mortgagee may request. In the event that
any mortgagee shall succeed to the interest of Landlord then this Lease shall
terminate or, at the option of such mortgagee, this Lease shall nevertheless
continue in full force and effect and Tenant shall and does hereby agree to
attorn to such mortgagee and to recognize such mortgagee as its Landlord. See
rider attached hereto and incorporated by reference.
19.03. Notice to Mortgagee.
No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease, shall result in a release or termination
or such obligations or a termination of this Lease unless (i) Tenant shall have
first given written notice of Landlord's act or failure to act to Landlord's
mortgagees of record, if any, specifying the act or failure to act on the part
of Landlord which could or would give basis to Tenant's rights; and (ii) such
mortgagees, after receipt of such notice, have had the opportunity to cure such
default within a reasonable time thereafter; but nothing contained in this
Section 19.03 shall be deemed to impose any obligation on any such mortgagees to
correct or cure any such condition. "Reasonable time" as used above shall mean a
period of not less than forty five (45) Business Days.
-27-
<PAGE>
19.04. Other Provisions Regarding Mortgagees.
If this Lease or the Rent due hereunder is assigned to a mortgagee as collateral
security for a loan, no such mortgagee shall be deemed to have assumed any of
Landlord's obligations hereunder solely as a result of said assignment. A
mortgagee to whom this Lease has been so assigned shall be deemed to have
assumed such obligations only if (i) by the terms of the instrument of
assignment such mortgagee specifically elects to assume such obligations or (ii)
such mortgagee has (a) foreclosed its mortgage, (b) accepted a deed in lieu
thereof, or (c) taken possession of the Premises by entry or otherwise. Even if
such mortgagee assumes the obligations of Landlord hereunder, (i) any such
obligation under Section 24.01 to return the Security Deposit to the Tenant
shall be limited to the amount actually received by the mortgagee with respect
thereto, and (ii) such mortgagee will be liable for breaches of any Landlord's
obligations hereunder only to the extent such breaches occur during the period
of ownership by the mortgagee after foreclosure (or any conveyance by a deed in
lieu thereof), all as set forth in Section 25.10. hereof. Tenant may from time
to time, at mortgagees request, be required to provide mortgagee with certain
financial information pertaining to the Tenant as mortgagee may reasonably
request.
ARTICLE 20.
Defaults; Events of Default
20.01. Defaults.
The following shall, if any requirement for notice or lapse of time or both has
not been met, constitute Defaults, and, if such requirements for notice or lapse
of time have been met, constitute Events of Default hereunder:
1. Occurrence of any event set forth in Article 21 hereof;
2. The failure of Tenant to pay Rent when the same shall be due and
payable and the continuance of such failure for a period of ten (10) days
after receipt by Tenant of notice in writing from Landlord specifying such
failure;
3. The failure of Tenant to observe any covenant made by it in
Sections 13.01, 15.01 and 25.03 hereof and;
4. The failure of Tenant to keep, observe or perform any of the
other covenants, conditions and agreements herein contained on Tenant's
part to be kept, observed or performed and the continuance of such failure
without the curing of same for a period of thirty (30) days after receipt
by
-28-
<PAGE>
Tenant of notice in writing from Landlord specifying in reasonable detail
the nature of such failure.
20.02. Tenant's Best Efforts.
In the event that the Default of which Landlord gives notice is of such a nature
that it cannot be cured within such thirty (30) day period, then such Default
shall not be deemed to be an Event of Default so long as Tenant, after receiving
such notice, proceeds to commence to cure the Default as soon as reasonably
possible and continues to take all steps necessary to complete the same within a
period of time which, under all prevailing circumstances, shall be reasonable.
No Default shall be deemed to be an Event of Default if and so long as Tenant
shall be so proceeding to cure the same in good faith or be delayed in or
prevented from curing the same by reason of Force Majeure.
20.03. Elimination of Default.
Notwithstanding anything to the contrary contained in this Article 20, in the
event that hereinabove provided, such Default(s) shall be deemed never to have
occurred and Tenant's rights hereunder shall continue unaffected by such
Defaults.
ARTICLE 21.
Insolvency
21.01. Insolvency.
If (1) there occurs with respect to Tenant an Insolvency or (2) any execution or
attachment is issued against Tenant or any of its property and as a result
thereof the Premises are taken or occupied by some Person other than the Tenant,
except as may herein be permitted, then an Event of Default hereunder shall be
deemed to have occurred so that the provisions of Article 22 hereof shall become
effective and Landlord shall have the rights and remedies provided for therein.
ARTICLE 22.
Landlord's Remedies; Damages on Default
22.01. Landlord's Remedies.
If an Event of Default shall occur and be continuing, Landlord may, at its
option, give to Tenant a notice terminating this Lease upon a date specified in
such notice, which date shall be not less than five (5) Business Days after the
date of receipt by Tenant of such notice from Landlord, and upon the date
specified in said notice, the term and estate hereby vested in Tenant shall
cease and any and all other right, title and interest of Tenant
-29-
<PAGE>
hereunder shall likewise cease without further notice or lapse of time, as fully
and with like effect as if the entire Lease Term had elapsed, but Tenant shall
continue to be liable to Landlord as hereinafter provided.
If such Event of Default results from Tenant's failure to pay Tenant's Cost as
required by Section 7.01 hereof, Landlord may, at its option, in addition to or
in lieu of the other remedies available to Landlord, refuse Tenant access to the
Premises. In such event the Term Commencement Date shall be the earlier of (i)
the date determined in accordance with Section 7.04 or (ii) the Substantial
Completion Date.
If such Event of Default results from Tenant's failure to pay a charge for an
Additional Service pursuant to Section 8.03 hereof, Landlord may, without
further notice to Tenant, discontinue any or all of such Additional Services.
If an Event of Default shall occur and be continuing, Landlord shall be relieved
of its undertakings under Article 13 hereof.
22.02. Surrender.
Upon any termination of this Lease as the result of an Event of Default, Tenant
shall quit and peacefully, surrender the Premises to Landlord, upon or at any
time after any such termination, Landlord may without further notice enter the
Premises and possess itself thereof by summary proceedings or otherwise, any may
dispossess Tenant and remove Tenant and all other Persons and property from the
Premises and may have, hold and enjoy the Premises and the right to receive all
rental income of and from the same.
22.03. Right to Relet.
At any time from time to time after any such termination, Landlord may relet the
Premises or any part thereof, in the name of Landlord or otherwise, for such
terms or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the Lease Term) and on such conditions
(which may include concessions or free rent) as Landlord, in its reasonable
discretion, may determine and may collect and receive the rents therefor.
Landlord shall in no way be responsible or liable for any failure to relet the
Premises or any part thereof, or for any failure to collect any rent due upon
any such reletting.
22.04. Survival of Covenants.
No such termination of this Lease shall relieve Tenant of its liability and
obligations under this Lease and such liability and obligations shall survive
any such termination. Tenant shall
-30-
<PAGE>
indemnify and hold Landlord harmless from all loss, cost, expense, damage or
liability arising out or in connection with such termination.
In the event of any such termination, Tenant shall pay to the Landlord the Rent
up to the date of such termination. Tenant shall also pay to Landlord, on
demand, as and for liquidated and agreed damages for Tenant's Default, the
difference between
(1) the aggregate Rent which would have been payable under this Lease
by Tenant from the date of such termination until the Stated Expiration
Date, less
(2) the fair and reasonable rental value of the Premises for the same
period, excluding all of Landlord's reasonable expenses incurred in
connection with reletting the Premises, including, without limitation, all
repossess costs, brokerage commission, legal expenses, reasonable
attorney's fees, alteration costs, and expenses of preparation for such
reletting.
If the Premises or any part thereof are relet by the Landlord before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be, prima facie,
the fair and reasonable rental value for the part or the whole of the Premises
so relet during the term of the reletting.
Nothing herein contained shall limit or prejudice the right of the Landlord to
prove and obtain as liquidated damages by reason of such termination, am amount
equal to the maximum allowed by any statute of rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
22.05. Right to Equitable Relief.
If there shall occur a Default or threatened Default, Landlord shall be entitled
to enjoin such Default or threatened Default and shall have the right to invoke
any right and remedy allowed at law or in equity or by statute or otherwise as
though re-entry,- summary proceedings, and other remedies were not provided for
in this Lease.
22.06. Right to Self Help; Interest on Overdue Rent.
if an Event of Default shall occur and be continuing, Landlord shall have the
right, but shall not be obligated, to enter upon the Premises and to perform
such obligation notwithstanding the fact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect to such
Default.
-31-
<PAGE>
In performing such obligation, Landlord may make any payment of money or perform
any other act. The aggregate of (i) all sums so paid by Landlord, (ii) interest
(at the rate of 1 1/2% per month or the highest rate permitted by law, whichever
is less) on such sum plus all Rent not paid when due and (iii) all necessary and
commercially reasonable incidental costs and expenses in connection with the
performance of an), such act by Landlord, shall be deemed to be Rent under this
Lease and shall be payable to Landlord immediately upon demand. Landlord may
exercise the foregoing rights without waiving any other of its rights or
releasing Tenant from any of its obligations under this Lease.
22.07. Further Remedies.
Upon any termination of this Lease pursuant to Section 22.01, or at any time
thereafter, Landlord may, in addition to and without prejudice to an), other
rights and remedies Landlord shall have at law or in equity, re-enter the
Premises, and recover possession thereof and may dispossess any, or all
occupants of the Premises in the manner prescribed b), the statute relating to
summary proceedings, or similar statute(s); but Tenant in such case shall remain
liable to Landlord as hereinbefore provided.
ARTICLE 23.
Waivers
23.01. No Waivers.
Failure of Landlord to complain of any act or emission on the part of Tenant,
and failure of Tenant to complain of any act or emission on the part of
Landlord, no matter how long the same may continue, shall not be deemed to be a
waiver by said Landlord, or Tenant, as applicable, of any of its rights
hereunder. No waiver by either Landlord or Tenant of any provision of this Lease
shall be deemed a waiver of a breach of the same or any other provision. No
acceptance by Landlord, or Tenant, as applicable, of any partial payment shall
constitute an accord or satisfaction but shall only be deemed a partial payment
on account.
ARTICLE 24.
Security Deposit
24.01. Security Deposit.
Tenant has deposited the Security Deposit with Landlord. Landlord shall hold the
Security Deposit as security for the full and faithful payment or performance by
Tenant of its obligations under this Lease and not as a prepayment of Rent.
Landlord may commingle the Security Deposit with other funds of Landlord but
shall not be liable to Tenant for the payment of interest thereon
-32-
<PAGE>
or profits therefrom. After notice to Tenant, Landlord may expend such amounts
from the Security Deposit, including legal fees, as may be necessary to cure any
Default and, in such case, Tenant shall pay to Landlord the amount so expended,
on demand. Landlord may assign the Security Deposit to any subsequent owner of
the Building and thereafter Landlord shall have no further liability to Tenant
with respect thereto. As soon as reasonably practicable after the Lease
Termination Date, Landlord shall (i) inspect the Premises, (ii) make such
payments from the Security Deposit as may be required to cure an), outstanding
Events of Default hereunder and (iii) if no Event of Default is then continuing
pay the balance of the Security Deposit to Tenant.
ARTICLE 25.
General Provisions
25.01. Force Majeure.
In the event that Landlord or Tenant shall be delayed, hindered in or prevented
from the performance of any act required hereunder by reason of Force Majeure,
then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
25.02. Notices and Communications.
All notices, demands, requests and other communications provided for or
permitted under this Lease shall be in writing, either delivered by hand or sent
by certified mail, postage prepaid, to the following address:
(a) if to Landlord at the address stated in Section 1.01 hereof, or
at such other address as the Landlord shall have designated in writing to
the Tenant, with a courtesy copy to such Persons as Landlord shall have
designated in writing to Tenant, which initially shall be: Hargraves, Karb,
Wilcox and Galvani, P. 0. Box 966, Framingham, MA 01701, ATTN: William
Pezzoni or
(b) if to Tenant at the address stated in Section 1.01 hereof, or at
such other address as the Tenant shall have designated in writing to the
Landlord, with a courtesy copy to such Persons as Tenant shall have
designated in writing to Landlord, which initially shall be: Choate, Hall &
Stewart, Exchange Place, 53 State Street, Boston, MA 02109, ATTN: Stephen
K. Fogg, Esq.
Any notice provided for herein shall become effective only upon and at the time
of receipt by the Person to whom it is given, unless such notice is mailed by
first-class registered or
-33-
<PAGE>
certified mail, in which case it shall be deemed to be received on (i) the third
Business Day following the mailing thereof or (ii) the day of its receipt, if a
Business Day, or the next succeeding Business Day, whichever of (i) or (ii)
shall be the earlier.
25.03. Certificates, Estoppel] Letter.
Either party, shall, without charge, at any time and from time to time
hereafter, within ten (10) days after written request of the other, certify by
written instrument duly executed and acknowledged to any mortgagee or purchaser,
or proposed mortgages or proposed purchaser, or any Person specified in such
request; (a) as to whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment, (b) as to the
validity and force constituted, (c) as to the existence of any Default or Event
of Default, (d) as to the existence of any offsets, counterclaims or defenses
thereto on the part of such other party, (e) as to the Term Commencement Date
and Stated Expiration Date, and (o as to any other matters as may reasonably be
so requested all of the foregoing, to the best of its knowledge. Any such
certificate may be relied upon by the party requesting it and any other Person
to whom the same may be exhibited or delivered, and the contents of such
certificate shall be binding on the party executing same.
Tenant shall in addition, within 5 Business Days of the Term Commencement Date,
execute and deliver to Landlord a tenant estoppel letter in a commercially
reasonable and mutually satisfactory.
25.04. Renewal.
If this Lease is renewed or extended the provisions of Sections 7.01, 7.02,
7.03, 7.04, and 7.05 of Article 7 hereof shall not apply.
25.05. Governing Law.
This Lease and the performance thereof shall be governed, interpreted, construed
and regulated by the laws of the Commonwealth of Massachusetts.
25.06. Partial Invalidity.
If any term, covenant, condition or provision of this Lease or the application
thereof to any person or circumstance shall, at any time or to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
is held invalid or unenforceable, shall not be affected thereby, and each term,
covenant, condition and provision of this
-34-
<PAGE>
Lease shall be valid and be enforced to the fullest extent permitted by law.
25.07. Notice of Lease.
The parties will at any time, at the request of either one, promptly execute
duplicate originals of an instrument, in recordable form, which will constitute
a Notice of Lease, setting forth a description of the Premises, the Lease Term
and any other portions thereof, excepting the rental provisions, as either party
may request. If requested by Tenant, cost of review and recording to be borne by
Tenant.
25.08. Interpretation; Consents.
The section headings used herein are for reference and convenience only, and
shall not enter into the interpretation hereof. This Lease may be executed in
several counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument. The term "Landlord" whenever used
herein, shall mean only the owner at the time of Landlord's interest herein, and
shall upon any sale or assignment (other than as collateral security for a loan)
of the interest of Landlord herein, its respective successors in interest and/or
assigns shall, during the term of ownership of its respective estates herein, be
deemed to be Landlord and the liability of Landlord, if any, hereunder shall in
any event be limited to the Landlord's interest in the Building.
Subject to the provisions of the third sentence of Section 7.06 and except for
the consents of Landlord required pursuant to the second sentence of Section
7.06 and Article 13 hereof, consents or approvals required or requested of
either Landlord or Tenant shall not be unreasonably withheld or delayed.
25.09. Parties.
Except as herein otherwise expressly provided, the covenants, conditions and
agreements contained in this Lease shall be binding upon the heirs, successors
and assigns of the parties hereto.
25.10. Waiver of Trial by Jury.
Landlord and Tenant do hereby waive trial by jury in any action, proceeding or
counterclaim brought by either against the other upon any matters Whatsoever
arising out of or in any way connected with this Lease, Tenant's use or
occupancy of the Premises and/or claim of injury or damage.
-35-
<PAGE>
ARTICLE 26.
Miscellaneous
26.01. Option at Lease Termination.
Tenant has the right to renew this Lease for 3 years at 90% of the then mark-et
rate (without any build-out or upgrade of build-out or services) plus Tenants
share of Operating Expenses and Taxes, over the prior year as the Base Year, but
not less than the same rental rate as first term. Tenant must deliver to
Landlord written notice by certified mail of its intent to exercise the option a
minimum of nine (9) months prior to Lease expiration.
26.02. Extended Hours HVAC.
Tenant shall have extended hours available for HVAC. Extended hours shall be
defined as 7:00 PM - 7:00 AM Monday through Friday and any time on Saturday or
Sunday or holidays.
The billable rates for heat shall be:
$10.00 per hour plus an additional $5.00 per hour for every
10,000 square feet of heated space.
26.03. Intentionally Omitted.
26.04. Holdover Clause.
In the event Tenant fails to vacate the Premises by the Lease Termination Date,
Tenant hereby agrees to pay Landlord two (2) times the monthly rental rate. The
"Holdover Rental Rate" shall be paid monthly in advance to Landlord. In
determining the "Holdover Rental Rate", Landlord shall charge two (2) times the
gross monthly for the last full calendar month under the lease. In addition to
the "Holdover Rental Rate", Landlord shall be entitled to seek to recover full
damages sustained as a result of said holdover.
ARTICLE 27.
Entire Agreement
27.01. Entire Agreement.
No oral statement or prior written matter (including without limitation that
certain Letter of Intent dated March 3, 1997 and March 5, 1997) shall have any
force or effect. This Agreement shall not be modified or canceled except by
writing subscribed to by the party against whom enforcement is sought.
No Representations, inducement, promises or agreements, oral or otherwise,
between Landlord and Tenant or any of their respective
-36-
<PAGE>
brokers, employees or agents, not embodied herein, shall be of any force or
effect.
Executed as a sealed instrument as of the __ day of June, 1997.
LANDLORD - Deerfoot LLC
By: William A. Depietri,
its operating manager hereunto duly
authorized
TENANT - NEXAR Technologies, Inc.
By: Gerald Y. Hattori
Name: Gerald Y. Hattori
Title: CFO
hereunto duly authorized
-37-
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
The land with the buildings now or hereinafter placed thereon located on
Turnpike Road (Route #9), Southboro, Worcester County, Massachusetts, shown as
Lot 7B on the plan of land entitled "Plan of Land in Southborough, MA." dated
November 26,1996, Owner: Cajun Realty Trust, By: Connorstone Consulting Civil
Engineers, which plan is recorded with the Worcester District Registry of Deeds
in Plan book 711, Plan 103, and which is more particularly bounded and described
according to said plan as follows:
SOUTHERLY by Turnpike Road, 363.40 feet;
WESTERLY by Lot 7A as shown on said plan, 250
feet;
NORTHERLY by land now or formerly of Lauredo
Realty Trust, 353.10;
NORTHEASTERLY by land now or formerly of Miller,
44.25 feet;
EASTERLY by land now or formerly of William J.
Picardi, Trustee, in two courses
measuring 153.72 feet and 64.28 feet.
According to said plan said lot 7B contains 93,224 square feet of land or
2.14 acres of land, more or less.
The premises are conveyed subject to the existing slope easement as shown
on said plan and as set forth in the easement recorded with said Registry in
Book 16784, Page 296.
The premises are conveyed together with the benefit of the easement from
Katherine 0. Allen and Jeanne 0. Davis, Trustees of Cajun Realty Trust to this
mortgagor of even delivery and record herewith.
The premises are conveyed subject to and with the benefit of the easements
as shown on the plan of land entitled "Easement Plan of Land in Southborough,
MA." dated January 17,1997, Owner: Cajun Realty Trust, By: Connorstone
Consulting Civil Engineers, which plan is recorded with the Worcester Registry
of Deeds in Plan Book 711, Plan 122, and as such easements are set forth in the
deed from this mortgagor to William A. DePietri, Trustee of 259 Turnpike Road
Realty Trust recorded immediately prior hereto.
The premises are also conveyed together with the benefit of the Drainage
Easement granted from Jeanne 0. Davis and Katherine 0. Allen, Trustees of
Lauredo Realty Trust to this mortgagor recorded herewith.
- 1 -
<PAGE>
Meaning to convey and hereby conveying the same premises conveyed to this
mortgagor by the deed of Katherine 0. Allen and Jeanne 0. Davis, Trustees of
Cajun Realty Trust of even delivery and record herewith.
The address of the mortgaged premises is: Lot 7B Turnpike Road, Southboro,
MA.
- 2 -
<PAGE>
EXHIBIT B
PLANS SHOWING PREMISES AND PARKING
- 3 -
<PAGE>
EXHIBIT C
TENANT SPECIFICATION
DEERFOOT OFFICE PARK
AC/Heat - Standard Office
7'0" SC oak veneer doors
2 x 4 parabolic light
30 oz cut pile carpet
carpet base
Painted metal door frames
outlets & switches to code
2 x 4 drop ceiling tile
2 x 2 perforated return and supply diffusers
stainless door hardware
2 coats flat paint - all walls
Louver blinds exterior windows
2 x 4 metal studs with 1/2 drywall taped and sanded
<PAGE>
EXHIBIT D
SERVICES TO BE PROVIDED BY LANDLORD
(AS OPERATING EXPENSES)
A. Replacement of fluorescent tubes and starters in overhead
parabolic light fixtures as needed.
B. Hot and cold water for lavatory and drinking purposes.
C. Toilet supplies including soap, paper or cloth towels and
toilet tissue for lavatories.
D. Janitor services in accordance with the following schedule
and to be accomplished unless otherwise indicated, five
nights per week after Tenant's normal working hours:
Entrance Doors: Entrance glass will be cleaned five times
per week.
Entrance Floor: Entrance floor will be polished five times
per week.
Broadloom: All carpeted areas will be vacuumed three
times per week. Broadloom will be shampooed
upon request, at an additional cost to
Tenant.
Wastepaper
Containers: Wastepaper containers will be emptied five
times per week; plastic liner bags will be
provided for wastepaper containers; liners
will be changed once a week.
Water Fountains: All water fountains will be sanitized and
polished five times per week.
Washrooms: Washrooms will be cleaned and serviced five
times per week. This will include refilling
all paper towel, toilet tissue, and soap
dispensers, cleaning all towel and trash
containers, cleaning and polishing all
stainless steel fixtures, cleaning toilets,
washing and sanitizing all wash basins and
shelves, cleaning and polishing all mirrors,
removing all disfigurations such as ink
marks, drawings, etc. from all partitions
and walls, damp mopping of floors.
Scuff Marks: All scuff marks will be removed five times
per week from all scuff plates on doors.
- 5 -
<PAGE>
Tile Floors: All floors will be swept five times per
week. All corridors and office floors will
be polished five times per week. Floors
will be stripped whenever necessary.
E. Proper care of grounds surrounding the Building, including
care of lawns shrubs and including removal of litter.
F. Maintaining and cleaning the SIDEWALKS and parking areas in
front of and around the Building including snow removal,
salting/de-icing of all walks, etc.
G. Provision of adequate lighting for the parking areas and
loading areas, servicing the Building.
H. Exterior windows will be washed annually as a common area
expense.
I. Rooftop units (Heating & Ventilation) will be provided to
Tenant at Landlord's expense during normal business hours.
All of Tenants secondary HVAC systems and any special
interior requirements shall be at Tenant's expense.
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
1. Heating, lighting an plumbing: The Landlord should be
notified at once of any trouble with heating, lighting or
plumbing fixtures. Tenants must not leave the doors of the
Premises unlocked at night.
2. The sidewalks, entrances, halls and stairways shall not be
obstructed by any Tenant or used for any purposes other than
ingress and egress to and from their respective Premises,
and no articles or rubbish shall be left herein.
3. No toilet fixture shall be used for any purpose other than
that for which it is intended, and now sweepings, rubbish,
rags, ashes or other substances shall be thrown herein.
4. The weight and position of all safes and heavy equipment or
machines shall be subject to the approval of the Landlord.
5. Lettering on doors, tablets and building directory shall be
subject to the approval of the Landlord; no letter shallng
be allowed on outside windows.
6. No wires for telephone service, electric lights, messenger
service or for any other purpose shall be put in the
Premises without the consent of the Landlord.
7. No glass in doors or elsewhere through which light is
admitted in to any part of the building shall be obstructed.
8. No animals or birds shall be kept in or about the Building.
9. All freight, furniture, etc. must be received and delivered
through entrances to the Building designated for such
purpose unless otherwise authorized by the Landlord.
10. Nothing shall be thrown from or taken in through the
windows, nor shall anything be left outside the Building on
the window sills of the Premises.
11. No person shall loiter in the halls, corridors, or
lavatories.
12. The Landlord, its agents and employees shall have access at
reasonable times to perform their duties in the maintenance
and operation of the Premises.
- 7 -
<PAGE>
13. No Tenant shall use any method of heating other than that
provided for in the Tenant's Lease without the consent of
the Landlord.
14. Any damage caused to the Building or the Premises or to any
person or property herein as a result of any breach of any
of the rules and regulations by the Tenant shall be borne by
the Tenant.
15. The Landlord reserves the right to make any such other and
further rules and regulations as, in its judgment, may from
time to time be necessary for maintaining the safety and
cleanliness of the Premises and Building for the
preservation of good order therein.
16. All office areas shall require floor mats under any chairs
that have casters, so that the carpert shall remain in good
order and repair.
17. There shall be no smoking in the Common Areas of the
Building.
<PAGE>
LEASE RIDER
The following sections are deemed to supplement that certain Lease dated as
of June __, 1997 by and between DEERFOOT LLC, as Landlord, and NEXAR
TECHNOLOGIES, INC., as Tenant, and shall be fully incorporated therein:
1. (Continuation of Section 1.01). Premises shall mean the newly
constructed Suite Nos. 100 and 300, being a portion of the first floor
(containing approximately usable square feet) and the entire third floor
of the Building (containing approximately usable square feet), and
outlined on the plan attached hereto as EXHIBIT B, which contain in the
aggregate at least 20,474 square feet of usable area. The actual usable square
footage may vary slightly due to construction, but by no more than 100 square
feet. Premises shall include the non-exclusive right to all appurtenant
facilities and Common Areas, including without limitation, all parking areas,
driveways, landscaping, sidewalks and other facilities now or hereafter located
on the Land which are used in connection with the operation of the Building, and
shall further include paved parking spaces on the parking lot (in common with
others) adjacent to the Building as set forth in Section 1.01. The Tenant
acknowledges that the parking spaces in the front of the Building shall be
reserved for the use of temporary visitors to the Building. Landlord covenants
and agrees that the number, size and nature of the Parking Spaces shall not be
reduced or
- 1 -
<PAGE>
adversely altered to cause a zoning violation in connection with Premises.
Without limiting the generality of the foregoing, the Premises shall comply
in all material respects with the plans and specifications prepared by or for
Landlord at its sole cost and expense designed specifically for Tenant, and
expressly approved by the Tenant and Landlord in writing, and described on
EXHIBIT C hereto (the Approved Plans ), and with all requirements applicable to
the Landlord's Work.
2. (Continuation of Section 7.01). On or before October 30, 1997 (the
Completion Date ), Landlord shall, at Landlord's sole cost and expense, complete
construction of the Premises materially in accordance with the Approved Plans
(except that Landlord may substitute materials of equal quality and grade,
unless otherwise specifically required by the Tenant), and materially in
accordance with the "Building Standards" described on EXHIBIT C attached hereto
(the "Landlord's Work"), and deliver a certificate of occupancy for Landlord's
Work by such Completion Date. All planning and construction work shall be
completed by the General Contractor and Landlord's architects and/or space
designers. Landlord shall promptly commence and prosecute with diligence the
construction of the Landlord's Work in accordance with the Approved Plans, the
terms and provisions of this Lease, and all Legal Requirements.
Landlord warrants and represents that the Landlord's Work shall be
constructed using first-class workmanship and materials, such workmanship and
materials to comply with all Legal
<PAGE>
Requirements, including, without limitation, those pertaining to zoning,
building, utility service, flood hazard and fire safety and all other applicable
laws. Landlord or the General Contractor shall (i) obtain and maintain, at it's
sole expense, public liability insurance and workmen's compensation liability
insurance in reasonable amounts during construction of the Landlord's Work; (ii)
secure all licenses and permits necessary for the Landlord's Work; (iii) pay
promptly when due the entire costs of all Landlord's Work done by the General
Contractor and any suppliers, independent contractors, employees or
subcontractors, and (iv) not cause or permit any liens to attach to the Premises
and/or the Building which would adversely affect Tenant's interest, and
immediately discharge any such liens which may so attach.
On the Substantial Completion Date, Tenant and Landlord shall conduct a
walk-through of the Premises, and determine punch lists items to be completed by
the Landlord at its sole expense as soon as reasonably practicable, but in any
event, no later than four (4) weeks from the date of such walk-through.
If Tenant requests, Landlord will further build out the Premises to
Tenant's specifications beyond the Approved Plans (the "Tenant's Work ) for a
guaranteed maximum price mutually agreed to between the Landlord and the Tenant.
The Landlord represents that the Landlord's Work will comply with all Legal
Requirements, including, without limitation, all zoning, building code and
similar laws and regulations, and
- 3 -
<PAGE>
hereby guarantees its construction of the Landlord's Work, (and, if Landlord
constructs it, the Tenant's Work), against defective workmanship and materials
and against all work not performed in material compliance with the Approved
Plans and applicable Legal Requirements for the period of one year from the date
of completion.
Tenant acknowledges and agrees that Landlord's Work shall not include the
cost of any telecommunications cabling, or HVAC beyond the Building Standards on
Exhibit C to the Premises, furniture or moving expenses.
3. (Continuation of Section 7.07). Landlord agrees that Landlord is and
shall be responsible for the compliance of the Premises and the Building with
all applicable Legal Requirements, and acknowledges and agrees that Tenant shall
have no responsibility for compliance of the Premises or the Building with Legal
Requirements, which include, without limitation, fire sprinkler and fire codes,
Americans With Disabilities Act or other handicapped access requirements.
4. (Continuation of Section 8.04).
Notwithstanding anything in this Lease to the contrary contained, in the event
that any of Landlord's Basic Services or any use of the Common Areas serving the
Premises is unavailable for 25 continuous days following written notice from
Tenant to Landlord, Tenant shall have the right to expend reasonable sums to
make such service or Common Area available and to bill Landlord for same, which
payment will be due within 30 days of receipt of said
- 4 -
<PAGE>
bill. Should the unavailability of such Landlord Service or use of Common Area
render all or any portion of the Premises untenantable for 25 continuous days,
Tenant shall have the right, after written notice to Landlord, to an abatement
from Basic Rent based upon the portion of the Premises which is untenantable or
not usable because of such loss of Basic Services or use of Common Areas.
5. (Continuation of Section 17.01). Tenant shall have the right to
terminate this Lease if Landlord fails to commence to restore the structural
portion of the Demised Premises within one hundred twenty (120) days following
such fire, casualty or taking, and thereafter prosecute the same to completion
with due diligence, such termination right to be exercised by written notice to
Landlord within thirty (30) days after such right accrues. In the event of the
giving by either party hereunder of a notice of termination under this Section
17.01, this Lease and all rights and obligations not then accrued shall
terminate as of the tenth business day following such notice. If any such damage
renders the Premises substantially unsuitable for any Permitted Use, a just and
proportionate abatement of Basic Rent shall be made. If the parties cannot agree
on whether or not the damage renders the Premises untenantable, it will be sent
to binding arbitration.
6. (Continuation of Section 19.02). The subordination described above is
conditioned upon the holder of each such mortgage, deed of trust or other
instrument in the
- 5 -
<PAGE>
nature of a mortgage, executing and delivering to Tenant a nondisturbance
agreement in recordable form between Tenant and the holder of such mortgage,
which shall provide in substance that such mortgagee recognizes this Lease and
that upon the foreclosure of such mortgage or other transfer of the leased
premises, Tenant's occupancy under the Lease shall not be disturbed or
terminated so long as Tenant is not in default under this Lease.
Landlord shall deliver simultaneously with Tenant taking possession of the
Premises, such a duly authorized nondisturbance and attornment agreement in
recordable form from the mortgagee of each mortgage encumbering the Land and/or
the Building as of the date hereof.
7. (Continuation of Section 26.01). During the period of such renewal
(the Renewal Period ), the Tenant shall be responsible for the payment of
Tenant's Share of any increases in Operating Expenses and Real Estate Taxes
beyond the sums paid the immediately preceding year, which shall be the new Base
Year, and shall pay for its electricity to the utility company, in accordance
with the existing terms of the Lease. Except as set forth herein and in Section
25.04, all terms and provisions of the Lease (and other than the Term and Rent,
which shall be modified as herein provided) shall continue to apply with respect
to such Renewal Period.
8. (Continuation of Section 13.01). The transfer of ownership by the
Tenant to any parent, subsidiary or
- 6 -
<PAGE>
commonly owned entity, or by merger or by sale of all or substantially all of
the assets of the Tenant, shall not be deemed an assignment or sublease of this
Lease under Section 13.01, and shall be permitted without the prior consent of
the Landlord.
9. (Continuation of Lease following Section 27 thereof):
28. LANDLORD's REPRESENTATION AND COVENANTS:
Landlord hereby warrants and represents to, and covenants and
agrees with, Tenant as follows:
(a) Landlord holds good and marketable title to the
Premises free and clear of all tenancies, occupancies,
liens, attachments, judgments mortgages and encumbrances
other than the Permitted Exceptions set forth on EXHIBIT F
hereto;
(b) The Premises, the Building and all Common Areas
(including all parking areas) and related areas are and will
be in good condition and repair, and in material compliance
with all applicable Legal Requirements; and all utilities,
including gas, oil, electricity, telephone, water and
sanitary sewer sufficient to meet Tenant's reasonable
requirements for the Permitted Uses are and shall be
available at the
- 7 -
<PAGE>
Premises without payment of any hook-up or installation
charges or modification to existing systems; and
(c) The heating, ventilating and air conditioning ("HVAC")
serving the Premises are and shall be sufficient to maintain
temperature, ventilation and humidity levels to normal and
commercially reasonable standards.
29. INDEMNIFICATION. Landlord shall indemnify Tenant and hold
Tenant harmless from all loss, damage, liability or expense, including
attorney's fees, resulting from any injury to any person or any loss or damage
to any property (including liability for hazardous wastes existing on the
subject property prior to the signing of this Lease) caused by or resulting from
any act or omission of gross negligence of Landlord or any officer, employee,
agent, contractor, invitee or visitor of Tenant in or about the Premises, the
Building or the Land, but the foregoing provision shall not be construed to
release Tenant from responsibility for any loss, damage, liability or expense
resulting from injuries to third parties or loss or damage to property caused by
the gross negligence of Tenant or its agents, contractors, invitees or guests .
30. INDEMNIFICATION. Tenant shall indemnify Landlord and hold
Landlord harmless from all loss, damage, liability or expense, including
attorney's fees, resulting from
- 8 -
<PAGE>
any injury to any person or any loss or damage to any property (including
liability for hazardous wastes existing on the subject property prior to the
signing of this Lease) caused by or resulting from any act or omission of gross
negligence of Tenant or any officer, employee, agent, contractor, invitee or
visitor of Landlord in or about the Premises, the Building or the Land, but the
foregoing provision shall not be construed to release Landlord from
responsibility for any loss, damage, liability or expense resulting from
injuries to third parties or loss or damage to property caused by the gross
negligence of Landlord or its agents, contractors, invitees or guests.
31. LANDLORD'S DEFAULTS. In the event Landlord shall fail to
perform any obligation specified in this Lease or if any material representation
or warranty of Landlord in this Lease shall be breached or untrue in any
material respect, then Tenant, in addition to and not in limitation of any other
remedies, may after the continuance of any such default for 30 days after notice
thereof by Tenant (provided that emergency repairs which are Landlord's
responsibility under this Lease may be made upon 24 hours' notice to Landlord)
on behalf and at the expense of Landlord, do all necessary work and make all
necessary payments in connection therewith, and Landlord shall on demand, pay
Tenant forthwith the amount so paid by Tenant.
32. TENANT's DEFAULTS. In the event Tenant shall fail to perform
any obligation specified in this Lease or if any material representation or
warranty of Tenant in this
- 9 -
<PAGE>
Lease shall be breached or untrue in any material respect, then Landlord, in
addition to and not in limitation of any other remedies, may after the
continuance of any such default for 30 days after notice thereof by Landlord
(provided that emergency repairs which are Tenant's responsibility under this
Lease may be made upon 24 hours' notice to Tenant) on behalf and at the expense
of Tenant, do all necessary work and make all necessary payments in connection
therewith, and Tenant shall on demand, pay Landlord forthwith the amount so paid
by Landlord.
33. NO JOINT VENTURE. Nothing in this Lease shall be construed
to make Landlord and Tenant partners or joint venturers, or to render either
party liable for the debts or obligations of the other.
34. AUTHORITY. Each of the Landlord and the Tenant hereby
warrants and represents to the other, respectively, that: each has full power
and authority to execute and deliver this Lease and to perform its obligations
hereunder; and that the execution and delivery of this Lease shall not be
precluded by or cause a breach of any agreement, mortgage, contract or other
instrument to which either party is a party; and each person executing this
Lease on behalf of the Landlord and the Tenant (respectively), has been duly
authorized by all appropriate partnership, trust, beneficiary and corporate
action (as applicable) necessary to make this Lease the legal, binding and
enforceable obligation it purports to be.
- 10 -
<PAGE>
35. BINDING EFFECT. This Lease shall become effective and
binding only upon the execution and delivery hereof by both Landlord and Tenant.
36. ACCESS. Tenant's hours and days of operation at the Premises
shall be at Tenant's sole and reasonable discretion. Tenant shall have unlimited
(i.e., 24 hours a day, 7 days a week, 52 weeks a year) access to the Premises,
Building (including, without limitation, all Common Areas and parking
facilities) and the Land.
37. SIGNAGE. Prior to the Substantial Completion Date, Landlord
shall provide and install signage on all Building directories and at the
entrance of the Premises, at its sole cost and expense, upon specifications
which are standard within the industry, and reasonably agreed to by the Landlord
and the Tenant. Tenant shall have the right to install a sign on the exterior of
the Building, at its sole cost and expense, upon specifications satisfactory to
the Landlord and which comply with zoning laws.
38. BROKERAGE. Each of the Landlord and the Tenant warrants and
represents to the other, that it has had no dealings with any broker or agent in
connection with this Lease except for Christopher Tosti of Whittier Partners
(the Broker ), and each agrees to pay, hold harmless and indemnify each other
from and against any and all costs, expenses, or liability or any compensation,
commission and charges to any broker other than the
- 11 -
<PAGE>
aforesaid Broker with respect to this Lease arising from a breach of their
respective foregoing warranty.
39. LANDLORD REPAIRS; ETC.Landlord shall adequately maintain,
repair and make necessary replacements to, all Common Areas (including parking
facilities), and all structural elements of the Premises, including all
maintenance, repairs and replacements to the HVAC, plumbing, electrical,
mechanical and other systems serving the Premises, all of which shall be
performed in conformity with the practice prevailing in operation of first-class
office buildings. Landlord shall use its best efforts to conduct all such
maintenance, replacements, and repairs during non-business hours, except in the
case of emergency.
40. RIGHT OF FIRST OFFER. Landlord hereby grants the Tenant the
right of first refusal to lease any additional space in the Building. Landlord
shall first offer in writing, such additional space to Tenant prior to any other
prospective lessee at market rate. If Tenant does not accept any such offer by
Landlord and enter into a written letter of intent with the Landlord to lease
the subject space within fifteen (15) days of Landlord's delivery of such offer,
Tenant shall be deemed to have waived its right of first refusal to lease the
subject space. However, such right shall continue with respect to any future
availability of the subject space or with respect to any other space to come
available in the Building then or from time to time, during the initial 5-year
term of this Lease.
- 12 -
<PAGE>
41. INCONSISTENCIES. The terms and provisions of this Rider
shall supersede, and govern, the terms and provisions of the balance of the
Lease to the extent of any conflict or inconsistencies between them.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 13 -
<PAGE>
LANDLORD: TENANT:
DEERFOOT LLC, a Massachusetts NEXAR TECHNOLOGIES, INC.,
limited liability company a Delaware corporation
By: William A. Depietri By: Gerald Y. Hattori
Name: William A. Depietri, sole Name: Gerald Y. Hattori
manager, hereunto duly Title: CFO
authorized hereunto duly authorized
- 14 -
<PAGE>
Exhibit 11.1
Statement Re: Per Share Earnings (Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
-------------------- -------------------
June 30, June 30, June 30, June 30,
1996 1997 1996 1997
---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Net loss $ (2,180,155) $ (2,640,732) $ (3,015,304) $ (4,731,223)
=========== =========== =========== ===========
Weighted average common shares outstanding 4,800,000 8,088,781 4,800,000 6,762,199
Stock issued within twelve months of initial public
offering 2,921,838 267,105 2,921,838 1,651,192
Conversion of amounts due to related parties 700,000 -- 700,000 --
----------- ----------- ----------- -----------
Weighted average number of common and
common equivalent shares outstanding 8,421,838 8,355,886 8,421,838 8,413,391
=========== =========== =========== ===========
Net loss per share $ (0.26) $ (0.32) $ (0.36) $ (0.56)
=========== =========== =========== ===========
</TABLE>
Pursuant to Securities and Exchange Commission Staff Accounting Bulletin No. 83,
stock and stock options issued at prices below the initial public offering price
during the twelve month period immediately preceding the initial filing date of
the Company's Registration Statement of its initial public offering have been
included as outstanding for all periods presented prior to the initial public
offering. The dilutive effect of the common stock equivalents are in accordance
with the treasury stock method.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE REGISTRANT'S QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED JUNE
30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH REPORT.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 6,969
<SECURITIES> 0
<RECEIVABLES> 13,882
<ALLOWANCES> (375)
<INVENTORY> 5,061
<CURRENT-ASSETS> 26,386
<PP&E> 529
<DEPRECIATION> (78)
<TOTAL-ASSETS> 28,269
<CURRENT-LIABILITIES> 8,516
<BONDS> 0
0
1
<COMMON> 92
<OTHER-SE> 19,661
<TOTAL-LIABILITY-AND-EQUITY> 28,269
<SALES> 17,997
<TOTAL-REVENUES> 17,997
<CGS> 16,651
<TOTAL-COSTS> 16,651
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 195
<INTEREST-EXPENSE> 87
<INCOME-PRETAX> (4,731)
<INCOME-TAX> 0
<INCOME-CONTINUING> (4,731)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,731)
<EPS-PRIMARY> (0.56)
<EPS-DILUTED> (0.56)
</TABLE>
