FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
Date of Report (Date of earliest event reported):
March 11, 1994
Commission File No.: 0-14685
GENICOM CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 51 - 0271821
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
14800 Conference Center 22021 - 3806
Drive (Zip Code)
Suite 400, Westfields
Chantilly, Virginia
(Address of principal
executive offices)
Registrant's telephone number, including area code: (703) 802-
9200
<PAGE>
GENICOM Corporation and Subsidiaries
Form 8-K Index
Item 5. Other Events
On March 11, 1994, the Registrant signed two
sublease agreements with Computervision
Corporation relating to a multi year service
relationship. A copy of each agreement is
filed herewith as Exhibit 10.1 and 10.2.
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.1 Sublease agreement with respect to
service
depot facilities in Bedford, Massachusetts,
dated March 11, 1994.
10.2 Sublease agreement with respect to
distribution facilities in Framingham,
Massachusetts, dated March 11, 1994.
Signature 3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
<TABLE>
<S> <C> <C> <C>
GENICOM Corporation
Registrant
Date: May 31, 1994
James C. Gale
Signature
James C. Gale
Senior Vice President
Finance and Chief
Financial Officer
(Mr. Gale is the Chief
Financial Officer and
has been duly authorized
to sign on behalf of the
Registrant)
</TABLE>
<PAGE>
GENICOM Corporation and Subsidiaries
INDEX TO EXHIBITS TO FORM 8-K
MARCH 11, 1994
<TABLE>
<CAPTION>
Exhibit
Number Description Page
<S> < <C> < <C>
C C
> >
10.1 Sublease agreement with respect E-1 - E-13
to service depot facilities in
Bedford, Massachusetts, dated
March 11, 1994.
10.2 Sublease agreement with respect E-14 - E-25
to distribution facilities in
Framingham, Massachusetts,
dated March 11, 1994.
</TABLE>
<PAGE>
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is made and entered into this 11th day of
March 1994, by and between COMPUTERVISION CORPORATION, a Delaware
Corporation, having an office located at 100 Crosby Drive, Bedford,
Massachusetts 01730 ("Sublessor") and Enterprising Service Solutions
Corporation, having an office located at 14800 Conference Center
Drive, Suite 400, Chantilly, Virginia 22021 ("Sublessee").
WHEREAS Sublessor desires to sublease a portion of the Premises to
Sublessee and Sublessee desires to sublease a portion of the Premises
from Sublessor under the terms and conditions set forth in this
Sublease Agreement (the "Sublease").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and intending to be legally bound, Sublessor and Sublessee
agree as follows:
1. SCOPE OF AGREEMENT. Set forth in Section 7 hereof.
2. SUBLEASE PREMISES.
(a) Sublessor hereby subleases to Sublessee and Sublessee
hereby subleases from Sublessor approximately One Hundred Fifty-Five
Thousand (155,000) rentable square feet, known as Building 3B,
containing 80,000 square feet, Building 3A, containing 50,000 square
feet, and Building 2, Floor 1, containing 25,000 square feet, and
outlined in red on the Plan attached hereto as Exhibit B of the
Sublease (the "Sublease Premises"). Sublessee's prorata share of the
Premises, therefore, is 155,000/423,704, or thirty-six and 6/10th
percent (36.6%).
(b) Sublessor reserves the right to convey to any occupancy of
Building 2, Floor 2, the right to use the elevator in Building 3 in
common with the Sublessee in a "limited fashion" (as defined in the
Overlease).
(c) Sublessor also reserves the right to enter the Sublease
Premises upon 48 hours prior notice (except in the event of an
emergency) regularly to service, and the Sublessee acknowledges the
location of the Sublessor's Fiber Optic Telecommunications Cable
location identified on Exhibit "B". Sublessee further warrants it
shall not tamper with or allow employees of the Sublessee to tamper
with the identified cable.
3. USE OF THE SUBLEASE PREMISES. Sublessee shall use and occupy
the Sublease Premises to continue to provide the operations in effect
at the time of transfer as long as such operations are consistent
with the Overlease, and for use in accordance with the terms and
conditions of the Overlease and for no other purpose, and further
covenants not to do or permit any act which will result in a
violation of the Overlease.
4. TERM. The term of this Sublease shall commence on the date of
full execution of this Sublease document by Sublessor and Sublessee
and receipt of Landlord's Consent to this Sublease document (the
"Commencement Date") and shall continue through April 30, 1995 (the
"Expiration Date"), unless earlier terminated in accordance with the
provisions set forth in the Overlease or this Sublease. Sublessee
acknowledges that if the Overlease terminates for any reason
whatsoever prior to April 30, 1995, this Sublease will terminate
simultaneously therewith with the same force and effect as if such
termination date had been named herein as the expiration date hereof.
5. OPTION TO RENEW. Sublessee shall have the right and option to
extend the term of this Sublease for the premises identified as
Building 3B containing 80,000 square feet for an additional period
which shall commence upon the expiration of the initial term and end
on April 30, 1996, provided, however;
a. Sublessee provides six (6) months' written notice and;
b. Provided that at the time of its election to extend
Sublessee is not in material default under the terms, conditions and
covenants of this Sublease. Said extension shall be on the same
terms and conditions as set forth herein.
6. RENTALS AND PAYMENTS. Sublessee covenants and agrees to pay as
rent to Sublessor without prior notice or demand the following:
( i) A fixed rental at the annual rate of Three Hundred Two
Thousand Two Hundred Fifty and 00/100 Dollars ($302,250.00) (Base
Rental or Annual Base Rent), payable in equal monthly installments of
Twenty-Five Thousand One Hundred Eighty-Seven and 00/100 Dollars
($25,187.50). If the Term shall begin on any day except the first
day, or shall end on any date except the last day of a calendar
month, a prorated monthly installment shall be paid at the then-
current rate for the fractional month during which the Sublease
commences and/or terminates.
( ii) As additional rent, Sublessee shall pay in equal monthly
installments its proportionate share of real estate taxes, or
substitutes for or modifications thereof as required by law its
proportionate share of all amounts payable by Sublessor pursuant to
Section V of the Overlease including without limitation of a
Management Fee in the amount of 1/12th of 3.5% of the sum of the
Sublessee's proportionate share of the Annual Fixed Rent due under
the Overlease plus the Sublessee's proportionate share of the net
rental operating expenses, and operating expenses as reasonably
estimated by Sublessor on or before the Commencement Date or the
commencement of any Fiscal or Calendar Year in which the Term falls.
Sublessor shall reasonably estimate the taxes and operating expenses
and Sublessee's proportionate share and Sublessee shall pay to
Sublessor one-twelfth (1/12th) of the total estimate along with its
payment of Base Rental. Sublessor, on a quarterly basis, will, if
necessary, re-estimate the amount of projected taxes and operating
expenses and re-estimate Sublessee's proportionate share thereof, and
Sublessee shall change its monthly installments to conform with the
revised estimates. Sublessee shall be responsible for any and all
taxes levied on account of its improvements to the Sublease Premises,
and personal property contained in the Sublease Premises, except
Sublessor's Fiber Optic Telecommunications Cable.
At the end of either the Fiscal or Calendar Year, whichever
is applicable, Sublessor shall determine Sublessee's actual propor
tionate share of taxes and operating expense and the difference
between the actual and estimated amounts billed to Sublessee. If the
aggregate of installments were less than the actual, Sublessee shall,
within thirty (30) days pay the difference to Sublessor or, if the
aggregate was more than the actual, Sublessee shall deduct the
difference from its next payment of additional rent. If no further
additional rent will be due from Sublessee, then Sublessor shall,
within thirty (30) days, refund to Sublessee the amount of such
overpayment.
(iii) As additional rent, Sublessee shall pay its proportionate
share of all other costs, expenses, taxes, assessments, charges, fees
and amounts required to be paid as a tenant obligation under the
Lease or this Sublease.
( iv) The first month's rental shall be due and payable upon
Overlandlord's execution of Landlord's consent to this Sublease.
Unless otherwise directed by Sublessor, all rent shall be paid in
lawful money of the United States to Sublessor at the office of
Sublessor designated above, to the attention of Sublessor's Corporate
Real Estate Department, MS 21-52. Fixed rentals along with
Sublessee's prorated share of Taxes, Operating Expenses and
Management Fees shall be paid in advance on the first day of each
calendar month during the Sublease Term. All other additional
rentals shall be paid within thirty (30) days of Sublessee's receipt
of Sublessor's invoice therefor. Should Sublessee fail to pay within
ten (10) days of then due any rental or any other amount payable
hereunder, the amount past due shall bear interest at the prime rate
until paid in full. The payment of Rent hereunder is independent of
each and every other covenant and agreement contained in this
Sublease, and shall be paid in accordance with the terms of this
Sublease without any counterclaim or abatement whatsoever.
( v) The total annual rental will not exceed $5.80 square
foot.
7. INCORPORATION OF OVERLEASE TERMS.
(a) Except as otherwise provided herein, words or terms which
are capitalized herein shall have the meanings ascribed to them in
the Overlease unless the context clearly requires otherwise.
(b) This subletting is to the extent applicable to the Sublease
Premises, upon all the terms, covenants and conditions of the letting
effected by the Overlease which are hereby incorporated by reference
herein, so that whenever the terms "Lessor," "Lessee," "this Lease"
and "the Premises" occur in the Overlease, they shall be deemed to
refer respectively to Sublessor, Sublessee, this Sublease and the
Sublease Premises as the case may be. Sublessee covenants that it
will, throughout the term hereof, observe and perform all of the
provisions of the Overlease to the extent applicable to the Sublease
Premises on the part of Sublessor to be performed as tenant
thereunder and will not do or permit to be done any act, manner or
thing which will be, result in, or constitute a violation or breach
of or a default under the Overlease; any such violation, breach or
default to constitute a breach by Sublessee of a substantial
obligation under this Sublease. Sublessee hereby assumes the full,
faithful and complete performance of the Overlease to the extent
applicable to the Sublease Premises and, to the extent aforesaid,
agrees that its occupancy shall be subject to, and that it will
observe and perform, each and every term, covenant, provision,
condition, agreement and obligation imposed upon Sublessor in its
capacity as tenant under the Overlease with respect to the Sublease
Premises, provided, however, that Sections IV(a), IV(b), VI(g),
VII(c), VII(d), VII(e) and XI of the Overlease shall be deemed
deleted for the purpose of incorporation by reference in this
Sublease. Sublessee hereby indemnifies and agrees to hold Sublessor,
and any other subtenants or assignees of Sublessor, harmless from and
against all claims, penalties, costs, losses and expenses, including,
but not limited to, attorney's fees (including, without limitation,
the value of any legal services rendered by Sublessor to itself at
its then standard rates and on its then standard terms), relocation
expenses, rent differential expenses and obligations incurred by
Sublessor or owing to any other subtenant, assignee, or Overlandlord
based upon any default by Sublessee or any sublessee or assignee of
Sublessee in the performance of those terms, covenants and conditions
of the Overlease and this Sublease which are or shall be applicable
to Sublessee. Sublessor hereby indemnifies and agrees to hold
Sublessee, and any other subtenants or assignees of Sublessee,
harmless from and against all claims, penalties, costs, losses and
expenses, including, but not limited to, attorney's fees (including,
without limitation, the value of any legal services rendered by
Sublessee to itself at its then standard rates and on its then
standard terms), relocation expenses, rent differential expenses and
obligations incurred by Sublessee or owing to any other subtenant,
assignee, or Overlandlord based upon any default by Sublessor or any
sublessor or assignee of Sublessor in the performance of those terms,
covenants and conditions of the Overlease and this Sublease which are
or shall be applicable to Sublessor. Sublessee shall pay to
Sublessor, as Additional Rent hereunder, any and all sums which
Sublessor is required to pay to Overlandlord, caused in whole or in
part by Sublessee's failure to perform or observe any of the terms
and conditions of the Overlease pertaining to the Sublease Premises
or by any act or omission described in the preceding sentence.
Notwithstanding the above, Sublessor shall not be liable to Sublessee
for any failure in performance resulting from the failure in
performance by the Overlandlord of the corresponding covenant of the
Overlease and Sublessor's obligations hereunder are accordingly
conditional where such obligations require such parallel performance
by Overlandlord. Sublessee recognizes that Sublessor is not in a
position to render any of the services or to perform any of the
obligations required of Sublessor by the terms of this Sublease;
Sublessor agrees, however, to use reasonable efforts to enforce the
Overlease for the benefit of Sublessee upon Sublessee's request. To
the extent that the failure in performance by the Overlandlord of its
obligations under the Overlease results in an abatement of rent under
the Overlease to the Sublessor with respect to the Sublease Premises,
Sublessee shall be entitled to an abatement of rent hereunder;
provided, however, the amount of such abatement shall not exceed the
amount of abatement under the Overlease which Sublessor receives with
respect to the Sublease Premises. Sublessee agrees to promptly
reimburse Sublessor for any and all costs it shall incur in expending
any such efforts, and Sublessee does hereby indemnify and agree to
hold Sublessor harmless from and against any and all claims,
liabilities, damages, costs and expenses (including, without
limitation, attorneys' fees and the value of any legal services
rendered by Sublessor to itself at its then standard rates and on its
then standard terms) incurred by Sublessor in expending such efforts.
Nothing contained in this Section 7(b) shall require Sublessor to
institute any suit or action to enforce any such rights. In
amplification, and not in limitation of the foregoing, and without
any allowance to Sublessee or other reduction, abatement or
adjustment of Minimum Rent or Additional Rent, Sublessor shall not be
responsible for furnishing elevator, electric, HVAC, cleaning,
painting, window washing or other services, nor for any maintenance
or repairs in or to the Sublease Premises except, however, as
elsewhere specifically provided in this Sublease. In addition to the
foregoing, no such failure or default on the part of Overlandlord
shall constitute an actual or constructive total or partial eviction
of Sublessee or entitle Sublessee to a reduction or abatement of
Minimum Rent or Additional Rent hereunder. In the event Overlandlord
fails to perform the obligations assumed by Overlandlord under the
Overlease, Sublessor's sole obligation will be to use reasonable
efforts to cooperate with Sublessee's pursuit of such remedies as are
available against Overlandlord under the Overlease.
(c) Wherever the Overlease refers to the Premises, such
reference for the purposes hereof shall be deemed made to the
Sublease Premises, except where inconsistent with the terms hereof.
(d) In any case where the consent or approval of Overlandlord
shall be required pursuant to the Overlease, Sublessor's consent
shall also be required hereunder. To the best of Sublessor's
knowledge, a complete copy of the Overlease as amended is attached
as Exhibit B hereto.
(e) Notwithstanding anything set forth in this Sublease,
nothing contained in this Sublease shall expand, modify, amend, or
otherwise affect the obligations of Over Landlord and Sublessor under
the Overlease.
8. PERFORMANCE OF OVERLEASE, ETC.
(a) The respective terms, covenants, provisions and conditions
of the Overlease on the part of Overlandlord to be performed, which
have been incorporated herein by reference or as covenants and
obligations of Sublessor hereunder, are to be performed by
Overlandlord or its respective successors and assigns, Sublessee
hereby agreeing to look solely to Overlandlord for such performance.
Sublessor shall not be liable or responsible to Sublessee for any
failure or default on the part of Overlandlord, its successors or
assigns, with respect to any of the terms, covenants, provisions and
conditions of the Overlease. It is the intention of Sublessor and
Sublessee that Sublessor shall look to the Overlandlord to provide to
Sublessee the rights, privileges, benefits, repairs and services
available to Sublessor under the Overlease as far as they relate to
the Sublease Premises. Sublessor's liability with respect to any of
the terms, covenants, provisions and conditions of the Overlease
shall be limited to such damages and other remedies as Sublessor, in
the exercise of its best efforts at Sublessee's sole cost and
expense, shall receive from Overlandlord. In addition to the
foregoing, no such failure or default by the Overlandlord shall
constitute an actual or constructive, total or partial eviction of
Sublessee or entitle Sublessee to a reduction or abatement of Minimum
Rent or Additional Rent hereunder, except to the extent a similar
abatement or reduction is actually received by Sublessor with respect
to the Sublease Premises.
(b) If Sublessee shall default in the payment of Minimum Rent
or Additional Rent hereunder Sublessor will provide Sublessee written
notice with ten (10) days cure period before default occurs, or in
the performance or observance of any of the terms, covenants or
conditions of this Sublease or the Overlease (to the extent
applicable to the Sublease Premises) on the part of Sublessee to be
performed or observed, Sublessor shall have all rights available at
law and/or equity and the right (but not the obligation) to exercise
against Sublessee in connection with this Sublease all of the same
rights and remedies provided to or reserved by Overlandlord in the
Overlease, however, the foregoing shall in no way be deemed to limit
or impair the rights and privileges of the Overlandlord under the
Overlease or to impose any obligations on the part of Sublessor by
reason of the exercise by Overlandlord of any of such rights or
privileges with respect to the Sublease Premises or to the use and
occupation thereof by Sublessee. Without limitation of the
foregoing, Sublessor shall have the same rights and remedies against
Sublessee in the event of non-payment by Sublessee of Minimum Rent or
Additional Rent hereunder as are available to Overlandlord under the
Overlease, at law and/or in equity for the non-payment of rent or of
any installment thereof. Sublessee shall have all remedies,
including termination, if Sublessor fails to pay its rent to
Overlandlord.
(c) Sublessee shall, promptly after receipt thereof, notify
Sublessor of any notice served by Overlandlord upon Sublessee
pursuant to the terms, provisions and conditions of the Overlease or
with reference to the Sublease Premises. Wherever Overlandlord
requires Sublessor (or Sublessee) to take any action or to cure any
default (other than a default in the payment of Minimum Rent or
Additional Rent pursuant to the Overlease or other default curable
solely by Sublessor) applicable to the Sublease Premises within a
period of time stated in such notice or in the overlease, Sublessee
shall complete such action or cure such default not later than five
(5) days prior to the expiration of such period and shall immediately
furnish written notice of compliance to Sublessor. Sublessor shall
have the option, but not the obligation, to take any such action, on
behalf of Sublessee.
9. CONDITION OF THE PREMISES.
(a) Sublessor will certify (Exhibit C) that the facility is in
compliance with all environmental restrictions and conditions at time
of transfer, then, Sublessee agrees to accept the Sublease Premises
"as-is" in the condition existing as of the date this Sublease is
executed by or on behalf of Sublessee. It is further agreed that
Sublessor and Landlord have no obligation to perform any work
therein. The taking of possession by Sublessee of the Sublease
Premises shall conclusively establish that the Sublease Premises
were, at such time, in good order and satisfactory condition.
Sublessee acknowledges that neither Sublessor nor any agent of
Sublessor has made any representation or warranty with respect to the
condition of the Sublease Premises, nor the suitability thereof for
the conduct of Sublessee's business, nor has Sublessor agreed to
undertake any modification, alteration or improvement to the Sublease
Premises. Sublessee further acknowledges and agrees that Sublessor
shall not be responsible for the condition of, nor any defect in the
Sublease Premises, nor any damage thereto, nor to any person, nor to
goods or things contained therein, due to any cause whatsoever,
except to the extent caused by the negligence or misconduct of
Sublessor or its agents.
10. ALTERATIONS. This section is governed by, Sections 7 and 8
hereof. Without the prior written consent thereto by Sublessor,
Sublessee may make alterations, repairs, additions, improvements in
or to the Sublease Premises provided same are non-structural in
nature and do not affect the outside of the Building, affect its
structure, electrical, HVAC plumbing or mechanical systems, cost more
than Twenty-Five Thousand Dollars ($25,000.) and do not (actually or
potentially) result in any additional obligations to Sublessor. In
the event Sublessor grants such consent, which shall not be
unreasonably withheld, delayed or conditional, such alterations,
repairs, additions or improvements shall be performed in a good and
workmanlike manner, in accordance with all applicable legal and
insurance requirements. Sublessee shall not make any repairs,
alterations, additions or improvements or perform any work to or on
the Sublease Premises, unless prior to the commencement of such work,
Sublessee shall obtain or cause to be obtained (and during the
performance of such work keep in force or cause to be kept in force)
public liability and workmen's compensation insurance to cover every
contractor to be employed. Such policy shall name Sublessor and
Sublessee as additional insureds, shall be non-cancellable without
ten (10) days' prior written notice to Sublessor and shall be in
amounts and with companies satisfactory to Sublessor. Prior to
commencement of such work, Sublessee shall deliver (or cause to be
delivered) certificates of such insurance policies to Sublessor. All
repairs, alterations, decorations, additions and improvements made by
Sublessee to the Sublease Premises (or any portion thereof) shall be
deemed to be attached to the leasehold and to have become the
property of Sublessor upon such attachment, and upon the expiration
or earlier termination of this Sublease, Sublessee shall not remove
any such alternations, decorations, additions or improvements;
provided, that trade fixtures and portable office equipment installed
by Sublessee may be removed if all Minimum Rent and Additional Rent
due hereunder are paid in full and Sublessee is not otherwise in
default hereunder; provided further, however, that Sublessor may
designate by written notice to Sublessee those alternations,
decorations, additions and improvements which shall be removed by
Sublessee at the expiration or termination of this Sublease and
Sublessee shall promptly remove the same and repair any damage to the
Sublease Premises caused by such removal. Nothing in the Section
shall be construed to permit Sublessee to make any repairs,
alterations, decorations, additions or improvements without first
fully complying with the terms of the Overlease relating thereto.
Nothing contained in this Section 10 shall be deemed to modify the
provisions of the Overlease.
11. AT END OF TERM. Upon the expiration or sooner termination of
the term of this Sublease, Sublessee shall vacate and surrender the
Sublease Premises in broom-clean condition, ordinary wear and tear,
and loss by fire or other casualty, excepted, provisions of Section
10 hereof and provisions of the Overlease as herein incorporated (as
if the Overlease terminated for the Sublease Premises) and repair any
damage to the Sublease Premises caused by any permitted removal
therefrom.
12. PERFORMING OBLIGATIONS. Sublessee covenants that the Annual
Base Rent, additional rent and all other sums payable hereunder by
the Sublessee shall be paid in accordance with the terms of this
Sublease, without set-off, counterclaim, abatement (except as
otherwise provided in this Sublease). Nothing contained in this
Section 12 shall modify the provisions of the Overlease.
This Sublease shall not terminate, nor shall the
Sublessee have any right to terminate this Sublease (except as
otherwise expressly provided in this Sublease or the Overlease), nor
shall the Sublessee be entitled to any abatement or reduction of
Annual Base Rent or additional rent hereunder (except as otherwise
expressly provided in this Sublease or the Overlease), nor shall the
obligations of the Sublessee under this Sublease be affected by
reason of (i) any damage to or destruction of all or any part of the
Sublease Premises from whatever cause, unless it exceeds 25% of
usable space, (ii) any eviction by paramount title or otherwise,
(iii) any other cause whether similar or dissimilar to the foregoing,
any present or future law to the contrary notwithstanding. It is the
intention of the parties hereto that the obligations of the Sublessee
hereunder shall be separate and independent covenants and agreements,
that Annual Base Rent, additional rent and all other sums payable by
the Sublessee hereunder shall continue to be payable in all events
and that the obligations of the Sublessee hereunder shall continue
unaffected, un less the requirement to pay or perform the same shall
have been terminated or excused pursuant to an express provision of
this Sublease. As long as Sublessee is not in default hereunder,
Sublessor shall perform all of Sublessor's obligations under the
Lease, except as modified hereunder.
13. SUBLESSEE'S OBLIGATIONS TO MAINTAIN, REPAIR AND REPLACE
PREMISES. It is the intention of the parties that the Sublease
Premises be leased to Sublessee on a net-net-net basis, so called,
and that Annual Base Rent be unencumbered by any expense allocable to
the operation, repair, maintenance, or replacement of the Sublease
Premises (which, with respect to Taxes, Management Fee, and Operating
Expenses, shall be paid by Sublessee as and to the extent provided
herein). To this end, Sublessee shall reasonably clean, maintain,
repair, replace and secure the Sublease Premises, all improvements
and equipment thereon, and shall pay all costs and expenses of so
maintaining, repairing, or replacing the same, anticipated or
unanticipated, keeping the Sublease Premises in good order and
repair, except for damage by fire or other casualty within the
provisions of and governed by this Sublease.
Without limiting the generality of the foregoing, Sublessee
shall keep all interior walls, floors, windows, doors, partitions,
loading platforms, used exclusively by Sublessee, bays and all
fixtures and equipment, including without limitation, all heating,
air conditioning, plumbing, sprinkler systems, and electrical and
mechanical fixtures and equipment and all utilities and installations
in the Sublease Premises in the same condition as they are in on the
Commencement Date, or may be put in during the Term, reasonable use
and wear and damage by fire or casualty only excepted; and shall
likewise make all non-structural repairs and replacement required in
the interior of the Sublease Premises.
In the event Sublessee fails to perform the obligations set
forth herein, Sublessor may, after notice and the applicable cure
period as set forth herein has expired, cause the same to be
performed at Sublessee's cost and expense, and Sublessee shall pay
Sublessor's costs and expenses upon demand as additional rent.
14. QUIET ENJOYMENT. Sublessor covenants and agrees with Sublessee
that upon Sublessee's paying all monetary amounts due and performing
all other obligations assumed by Sublessee under the Sublease,
Sublessor shall take no action that would cause Sublessee's peaceful
and quiet possession and enjoyment of the Sublease Premises to be
disturbed during the Term of this Sublease. Nothing not withstanding
the foregoing provisions of this Section 14, nothing herein contained
shall be deemed to modify, amend, or otherwise alter the Overlease.
15. INSPECTION. Sublessor hereby reserves to itself the right to
enter onto the Sublease Premises at any reasonable time after forty-
eight (48) hours notice, except in cases of emergency, to ascertain
whether Sublessee is in compliance with the provisions of this
Sublease. Sublessee will use reasonable attempts not to interfere
with Sublessee's business and to follow Sublessee's rules, except in
cases of emergency when Sublessor shall use reasonable judgment to
minimize disruption to the extent possible.
16. INDEMNITY. Sublessee shall indemnify, defend, protect and hold
Sublessor and its agents harmless from and against any and all
damage, claim, liability, cost or expense (including, without
limitation, attorneys' or other professionals' fees) of every kind
and nature (including, without limitation, those arising from any
injury or damage to any person, property or business) incurred by or
claimed against Sublessor or its agents, directly or indirectly, as a
result of, arising from or in connection with (i) Sublessee's or its
agents' use, occupancy, repair or maintenance of the Sublease
Premises; (ii) Sublessee's breach of any provision of this Sublease;
or (iii) any act, omission or negligence of Sublessee or its agents.
Sublessor shall indemnify, defend, protect and hold Sublessee and its
agents harmless from and against any and all damage, claim,
liability, cost or expense (including, without limitation, reasonable
attorneys' or other professionals' fees) of every kind and nature
(including, without limitation, those arising from any injury or
damage to any person, property or business) incurred by or claimed
against Sublessee or its agents, directly or indirectly, as a result
of, arising from or in connection with any occurrence in the common
areas or other areas under the control of Sublessor when not a result
of the negligence or willful misconduct of Sublessee.
17. SECURITY DEPOSIT. Intentionally omitted.
18. BROKERS' FEES. The parties represent and warrant that neither
has entered into any agreement or incurred any obligation in
connection with this transaction which could result in an obligation
to pay a brokerage commission or fees to any broker or other person.
19. NOTICE. Any notice, request or demand given under this
Sublease, whether or not required, shall be valid only if given in
writing, and shall be deemed effective on the day when actually
received or three (3) days after it is deposited in a United States
Post Office if mailed registered or certified mail, return receipt
requested, postage prepaid, and properly addressed to the party for
whom intended at the address designated above for such party, or at
such other address as the party may hereafter designate for itself by
notice. Each party shall promptly, after receipt thereof, furnish
the other party by registered or certified mail, a copy of any
notice, demand, or other communication received from Overlandlord
with respect to the Sublease Premises.
20. APPLICATION OF LEASE PROVISIONS. Notwithstanding the foregoing
incorporation by reference of the terms and conditions of the Lease,
Sublessee shall have no right or option to extend the term of the
Lease, or to exercise any right or option of first refusal or
expansion contained therein, and Sublessor will pass on notices they
receive regarding the termination of the Lease in the event of a
default by Landlord, a casualty or a condemnation, to the extent
provided in the Lease.
21. ENVIRONMENTAL COMPLIANCE. Sublessor will certify building and
site are in compliance with environmental regulations. Sublessee
shall not cause or allow any hazardous waste, toxic substances, or
toxic hazardous materials (collectively, "Hazardous Materials") to be
used, generated, stored, or disposed of on, under or about, or
transported to or from, the Sublease Premises (collectively,
"Hazardous Materials Activities") except in strict compliance (at
Sublessee's expense) with all applicable Regulations, as hereinafter
defined, and using all necessary and appropriate precautions.
Except with respect to pre-existing conditions as of
commencement date and liabilities caused by Sublessor or their
agents, Sublessee hereby indemnifies and holds harmless Sublessor
from any liability, including reasonable counsel fees and litigation
costs, with respect to any Hazardous Materials Activities conducted
on the Sublease Premises during the Sublease Term, however released
or permitted to be released by Sublessee, its agents, employees,
contractors, invitees, licensees or guests, whether or not consented
to by Sublessor or Landlord. Sublessee shall indemnify, defend with
counsel, and hold Sublessor harmless from and against any claims,
damages, costs and liabilities arising out of any and all such
Hazardous Materials Activities.
For purposes hereof, Hazardous Materials shall include but
not be limited to substances defined as "hazardous substances",
"toxic substances", or "hazardous wastes" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980;
Resource Conservation and Recovery Act of 1976 ("RCRA"); Hazardous
Materials Transportation Act; all other laws and ordinances governing
similar matters; and any regulations adopted and publications
promulgated pursuant thereto (collectively, "Regulations"), as they
may be amended from time to time.
Sublessee shall immediately notify Sublessor both by
telephone and in writing of any spill or unauthorized discharge of
Hazardous Materials or of any condition constituting an "imminent
hazard" under RCRA.
22. CONSTRUCTION. If any provision of this Sublease, or the
application thereof, is held by a court having competent jurisdiction
to be invalid or unenforceable under applicable law, such provision
shall be deemed to be limited or modified to the extent necessary to
make the remainder of this Sublease valid, enforceable and unaffected
thereby and to this end, the provisions of this Sublease are declared
to be severable.
23. LANDLORD'S CONSENT. Sublessee acknowledges that the Sublease
contemplated hereby will only become effective, if at all, after
Landlord has consented to the Sublease, which consent shall be
manifested by Landlord's execution of the "Consent of Landlord to
Sublease Agreement" attached hereto as Exhibit "D", or any other
document reasonably requested by Landlord.
24. INTEGRATED SUBLEASE AGREEMENT. This Sublease, including the
attached Exhibits, constitutes the complete and exclusive statement
of the agreement between the parties pertaining to the subleasing of
the Sublease Premises and the subject matter relating thereto. This
Sublease supersedes and merges all prior and contemporaneous
understandings, agreements and representations of the parties. The
terms, covenants, conditions and other provisions of this Sublease
may hereafter be changed, amended, or modified only by a written
instrument that specifically purports to do so and is signed on
behalf of each party by its duly authorized representative.
25. MISCELLANEOUS.
(a) The section headings appearing herein are for purposes of
convenience only and are not deemed to be a part of this Sublease.
(b) The provisions of this Sublease shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
(c) Time is of the essence as to the obligations contained in
this Sublease.
26. HOLDOVER.
(a) If Sublessee shall not immediately surrender the Sublease
Premises at the end of the Term, then Sublessee shall, by virtue of
this Sublease, become a tenant at sufferance at a monthly rental
equal to one and one-half the Basic Monthly Rent plus any Additional
Sublease Rent due under the terms of this Sublease, commencing such
monthly tenancy with the first day following the end of the Term of
settlement, Sublessor will reimburse Sublessee in full. Sublessee,
as a tenant at sufferance, shall be subject to all of the conditions
and covenants of this Sublease as though the tenancy had originally
been a monthly tenancy. During the holdover period, each party
hereto shall give to the other at least thirty (30) days' written
notice to quit the Sublease Premises, except in the event of
nonpayment of Basic Monthly Rent when due, or of the breach of any
other provision hereof by the Sublessee, in which event, Sublessee
shall not be entitled to any notice to quit, the usual thirty (30)
days' notice to quit being expressly waived. In the event that
during any holdover period Sublessor and Sublessee agree to an
extension or a new Sublease for the Sublease Premises, Sublessor
shall refund the amount of the penalty rent and additional rent paid
by Sublessee during the holdover period (i.e., the amount above the
basic monthly rent plus any additional Sublease rent).
(b) Notwithstanding the foregoing, Sublessee acknowledges that
it shall have no right to occupy the Sublease Premises upon
termination of the Lease for any reason. Sublessee shall immediately
surrender the Sublease Premises upon the termination of the Lease.
27. INSURANCE, CASUALTY AND TAKING.
(a) Sublessor Insurance. Sublessor shall procure and maintain
throughout the Sublease Term (i) fire and extended coverage insurance
on the Building and (ii) a commercial general liability policy
insuring against claims, demands or actions for bodily injury, death,
personal injury and loss or damage to property arising out of or in
connection with (1) the common areas of the Building and (2)
Sublessor's liability assumed under this Sublease; provided, however,
that Sublessor shall not be required to insure improvements made by
Sublessee or at Sublessee's request to the Base Building or Base
Building Systems.
If Sublessor fails to maintain such insurance, then
Sublessee may (but is not obligated to) after five (5) days prior
written notice, obtain such insurance and Sublessor shall reimburse
Sublessee for the same.
(b) Insurance. Sublessee shall, at its sole cost and expense,
procure and maintain throughout the Sublease Term a commercial
general liability policy insuring against claims, demands or actions
for bodily injury, death, personal injury, and loss or damage to
property arising out of or in connection with: (i) the Sublease
Premises; (ii) the condition of the Sublease Premises; (iii)
Subleasee's operations in, maintenance and use of the Sublease
Premises, and (iv) Subleasee's liability assumed under this Lease.
Such insurance shall have such combined single limit of not less than
Two Million Dollars ($2,000,000.00) per occurrence, on an occurrence
basis, and shall be primary over any insurance carried by the
Landlord. Endorsements shall be obtained for cross-liability and
contractual liability. Sublessee shall, at its sole cost and
expense, procure and maintain throughout the Sublease Term a property
insurance policy (written on an "All Risk" basis) insuring all of
Sublessee's personal property, including but not limited to
equipment, furniture, fixtures, furnishings and leasehold
improvements which are the responsibility of Sublessee, for not less
than the full replacement cost of said property. All proceeds of
such insurance shall be used to repair or replace Sublessee's
property. All such policies shall be written with insurers of
recognized responsibility. Also, such policies (i) shall contain an
endorsement that such policy shall remain in full force and effect
notwithstanding that the insured has released its right of action
against any party before the occurrence of a loss; (ii) shall name
Landlord as an additional insured party and loss payee; and (iii)
shall provide that the policy shall not be cancelled, failed to be
renewed or materially amended without at lease thirty (30) days'
prior written notice to Landlord and, at Landlord's request to the
Mortgagee. Sublessee's insurance coverage may be effected by a
blanket policy or policies of insurance or under so-called "all risk"
or "multi-peril" insurance policies, provided that the total amount
of insurance available with respect to the improvements located on
the Sublease Premises and Sublessee's liability hereunder shall be at
least the equivalent of separate policies in the amounts herein
required, and provided further that in other respects any such policy
or policies shall comply with the provision of this Section 22. An
increased coverage or "umbrella" policy may be provided and utilized
by Sublessee to increase coverage provided by individual or blanket
policies in lower amounts, and the aggregate coverage provided by al
such policies with respect to the improvements located on the
Sublease Premises and Sublessee's liability hereunder shall be
satisfactory provided that such policies otherwise comply with the
provisions of this Section 22.
On or before the date of this Sublease, Sublessee shall
furnish to Sublessor and Landlord certificates evidencing the
aforesaid insurance coverage, and renewal certificate shall be
furnished to Sublessor and Landlord at least thirty (30) days prior
to the expiration of each policy for which a certificate was
theretofore furnished. All insurance policies required by Sublessee
hereunder shall provide that Sublessor and Landlord will be given at
least thirty (30) days prior written notice of any cancellation in
the policy, or any other expiration or defaults thereunder.
Sublessee acknowledges that neither Landlord nor Sublessor
will carry any insurance in favor or Sublessee, for Sublessee's
furniture, fixtures, equipment, improvements, appurtenances or other
property of Sublessee in or about the Sublease Premises.
28. APPROVALS AND CONSENTS. In all provisions of the Overlease
where approval is at the sole discretion and requiring the approval
or consent of Landlord, Sublessee shall be required to obtain the
approval or consent of Landlord and Sublessor in its sole discretion;
provided, however, such consent shall not be unreasonably withheld by
Landlord or Sublessor if so provided in the Lease for particular
provisions.
29. ASSIGNMENT AND SUBLETTING. Sublessee, for itself, its
successors and assigns, expressly covenants that it shall not assign,
whether by operation of law or otherwise encumber this Sublease, or
sublet all or any part of the Sublease Premises. Any such attempted
assignment or subletting shall be void and of no force and effect.
Sublessor reserves the right to transfer and assign its interest in
and to this Sublease to any entity or person who shall succeed to
Sublessor's interest in and to the Lease, provided Sublessor notifies
Sublessee of the transfer or assignment and the identity of the
assignee, if possible, prior to the effective date of the transfer.
Notwithstanding the above, Sublessee may assign, transfer, or sublet
the Sublease Premises, or any part thereof, without the consent of
Sublessor, to an affiliate, subsidiary parent or successor of
Sublessee. The provisions of the foregoing sentences shall be deemed
to modify Section 7 G of the Overlease.
30. TIME LIMITS. In the event Sublessee receives from Sublessor any
notice to cure any default hereunder or under the Lease which notice
is based on a notice sent to Sublessor by Landlord pursuant to the
Lease, Sublessee shall cure such condition three (3) days prior to
the time required of Sublessor by Landlord for the cure thereof.
31. COVENANTS WITH RESPECT TO THE LEASE.
(a) Each party covenants and agrees that it shall not do
anything that would constitute a default under the Overlease or omit
to do anything that it is obligated to do under the terms of this
Sublease so as to cause a default under the Lease.
(b) In the event that Sublessee shall be in default of any term
of provision of, or shall fail to honor any obligation under this
Sublease, Sublessor, on giving the notice required by the Overlease
(as modified pursuant to Notices, Section 19 hereof) and subject to
the right, if any, of Sublessee to cure any such default as may be
provided in the Lease, subject to Time Limits, Section 30 hereof,
shall have available to it all of the remedies available to Landlord
under the Lease in the event of a like default or failure on the part
of Sublessor as tenant thereunder. Such remedies shall be in
addition to all other remedies available to Sublessor at law or in
equity.
32. DEFAULT UNDER AND/OR TERMINATION OF THE LEASE.
Intentionally omitted.
33. SUBORDINATION TO AND INCORPORATION OF TERMS OF LEASE.
This Sublease is in all respects subject and subordinate to any mort
gage, deed, deed of trust, ground lease or other instrument now or
hereafter encumbering the Building or the land on which it is
located, to the terms and conditions of the Lease and to matters to
which the Lease, including any amendments thereto, is or shall be
subordinate. The terms, provisions, covenants, stipulations,
conditions, rights, obligations, remedies and agreements of the Lease
with respect to the Sublease Premises are incorporated into this
Sublease by reference and made a part hereof as if herein set forth
at length, and shall, as between Sublessor and Sublessee (as if they
were the Landlord and Tenant, respectively, under the Lease and as if
the Sublease Premises being sublet hereby were the Premises demised
under the Lease), constitute the terms of this Sublease, except to
the extent that they do not expressly relate to the Sublease Premises
or are expressly inapplicable to, or expressly modified or eliminated
by, the terms of this Sublease. Sublessee acknowledges that it has
reviewed and is familiar with the Lease, and Sublessor represents
that the copy of the Lease attached hereto as Exhibit A is a true,
correct, and complete copy of the Lease.
34. CARE, SURRENDER AND RESTORATION OF THE SUBLEASE PREMISES.
(a) Without limiting any other provision of this Sublease or
the Lease, Sublessee shall take good care of the Sublease Premises,
suffer no waste or injury thereto and shall comply with all laws,
orders and regulations which are applicable to the Sublease Premises,
the Building and Sublessee's use thereof.
(b) On or before the Expiration Date, Sublessee shall remove
from the Sublease Premises at its sole expense (i) all of its
personal property, and (ii) upon the demand of Sublessor, prior to
the Expiration Date or earlier termination of this Sublease, any
improvements and/or alterations that Sublessee has made to the
Sublease Premises. In the absence of such a demand, all such
improvements and alterations shall become the property of Sublessor,
subject, however, to the terms of the Overlease. Upon removal of the
Sublessee's property from the Sublease Premises and/or upon removal
of such improvements and alterations, Sublessee shall, at its sole
expense, promptly repair and restore the Sublease Premises to the
condition existing prior to the placement of such personal property
upon the Sublease Premises and/or other installation of such
improvements and alterations, and repair any damage to the Sublease
Premises and/or the Building related to such removals, so as to
restore the Sublease Premises to the conditions required under
subsection 34 (c) below. All property permitted or required by
Sublessor to be removed upon the Expiration Date or sooner
termination of this Sublease remaining on the Sublease Premises after
such Expiration Date or sooner termination shall be deemed abandoned
and may, at the election of Sublessor, either be retained as
Sublessor's property or may be removed from the Sublease Premises by
Sublessor, at Sublessee's expense. Any such expenses shall be paid
by Sublessee to Sublessor upon demand therefor.
(c) Upon the expiration Date or sooner termination of this
Sublease Sublessee shall quit and surrender the Sublease Premises to
Sublessor in the condition such Sublease Premises were in on the
Commencement Date, broom clean, in good order and condition, ordinary
wear and tear and damage by fire and other insured casualty excepted.
Sublessee agrees to indemnify and save Sublessor harmless from and
against all loss, cost, expense, or liability resulting from the
failure of, or the delay by Sublessee in or surrendering the Sublease
Premises on or before the Expiration Date, including, without
limitation, any claims made by Landlord or any succeeding sublessee
founded on such failure or delay.
35. JANITORIAL SERVICE. At Sublessee's sole cost and
responsibility, Sublessee shall contract for its own janitorial
service to the Sublease Premises.
36. UTILITIES. Sublessee shall pay all charges for gas, water,
sewer, electricity and other utilities used or consumed on the
Sublease Premises during the Term which now or hereafter serve the
Sublease Premises (Sublessor being under no obligation to separately
meter the Sublease Premises.) It is understood and agreed that
Sublessor shall be under no obligation to furnish any utilities to
the Sublease Premises, other than to contract for the same with
utility companies and the Town of Bedford for water unless the
utilities have been separately metered, in which case Sublessee shall
contract with the appropriate provider for service, and shall not be
liable for any interruption or failure in the supply of any such
utilities to the Sublease Premises due to circumstances beyond
Sublessor's control.
If the Sublessee fails to pay such utility charges and the
same may become a lien on the Sublease Premises, then Sublessor may
pay the same and Sublessee shall reimburse Sublessor its costs on
demand as additional rent.
(a) Water/Sewer. Sublessor shall bill Sublessee for its usage
and, as additional rent, Sublessee shall pay to Sublessor the cost of
sewage and water supplied to Sublessee.
(b) Gas/Electricity. If gas and electricity are separately
metered, Sublessee shall contract for and pay those costs direct to
the appropriate utility. If not separately metered, Sublessor shall
bill Sublessee for its usage and as additional rent, Sublessee shall
pay to Sublessor the cost of electricity supplied to the Sublessee.
Sublessee will only be billed for the actual cost of the electricity
supplied at the same rate that would be charged to Sublessee if
separately billed by the utility company.
37. REPAIRS/MAINTENANCE.
(a) Building Maintenance. Sublessor shall furnish the services
(and the same shall be included in Sublessor's Operating Expenses).
Sublessee may obtain additional services and utilities from time to
time if the same are obtainable by Sublessor upon reasonable advance
request, or Sublessor may furnish the same without request if
Sublessor determines that Sublessee's use or occupancy of the
Sublease Premises necessitates the same; and in either case Sublessee
shall pay for the same at reasonable rates from time to time
established by Sublessor upon demand as additional rent. Sublessee's
obligation shall be subject to the other provisions of this Sublease,
reasonable wear and tear and damage caused by or resulting from the
acts or omissions of Sublessee or its transferees (or their agents,
employees, invitees and independent contractors), fire, casualty or
eminent domain takings.
38. PARKING. During the term of the Sublease, Sublessee shall have
the use of one hundred forty-five (145) spaces at no charge.
39. INTERRUPTION OF UTILITIES. Sublessor shall not be liable to
Sublessee in damages or by reduction of rent or otherwise by reason
of inconvenience or annoyance or for loss of business arising from
Sublessor or its agents or employees entering the Sublease Premises
for any of the purposes authorized in this Sublease in a manner
reasonable in light of the circumstances; but nothing herein in this
Article shall excuse Sublessor from any damages caused by Sublessor's
negligent act for which Sublessor shall be liable. In case Sublessor
is prevented or delayed from making any repairs or replacements or
furnishing any services or performing any other covenant or duty to
be performed on Sublessor's part by reason of any cause reasonably
beyond Sublessor's control, Sublessor shall not be liable to
Sublessee therefor, nor shall the same give rise to a claim in
Sublessee's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Sublease Premises.
If Sublessor neglects or fails to perform any covenant or duty of
Sublessor reasonably beyond Sublessor's control, then Sublessee may,
if after notice from Sublessee (which notice makes express reference
to this Sublease provision), cure such neglect or failure for the
account of Sublessor and recover its reasonable costs of so curing
from Sublessor (but Sublessee shall not be entitled to any rent
offset or other remedy for such costs). Sublessor reserves the right
to stop temporarily any service or utility system, when necessary by
reason of accident or emergency, or until necessary repairs have been
completed; provided, however, that in each instance or stoppage,
Sublessor shall give Sublessee such notice as if practicable under
the circumstances of the expected duration of such stoppage and will
exercise reasonable diligence to eliminate the cause thereof. Except
in case of emergency repairs, Sublessor will give Sublessee
reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Sublessee by
reason thereof.
40. PERSONAL PROPERTY AT SUBLESSEE'S RISK. All of the furnishings,
fixtures, equipment, effects and property of every kind, nature and
description of Sublessee and of persons claiming by, through or under
Sublessee which, during the continuance of this Sublease or any
occupancy of the Sublease Premises by Sublessee or such persons as
may be on the Sublease Premises, shall be at the sole risk and hazard
of Sublessee of such persons, and if the whole or any part thereof
shall be destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, the sprinkler system
or other pipes, by theft or from any other cause, no part of said
loss or damage is to be charged to or to be borne by Sublessor of
Sublessor's agents or employees, and Sublessee waives any claim
against Sublessor of Landlord by it or such persons.
41. COMPLIANCE WITH LAW. Sublessor warrants, that on the
Commencement Date, the Sublease Premises will comply with all
applicable laws, ordinances, rules, and regulations of governmental
authorities. Assuming the building is in compliance with the law,
Sublessee shall keep the Sublease Premises equipped with all safety
appliances and comply with all laws (except those laws which are
applicable to all warehouse buildings and warehouse uses without
regard to Sublessee's use or activities, which warehouse-related laws
shall be Sublessor's responsibility to the extent any structural
alterations are required), and with the orders and regulations of all
governmental authorities and all insurance inspection or rating
bureaus having jurisdiction, except that the Sublessee may defer
compliance as long as the validity of any such law shall be contested
(at Sublessee's sole cost and expense) by Sublessee in good faith and
by appropriate indemnity of Sublessor and Landlord against any loss,
cost, or expense on account thereof. Sublessee shall indemnify
Sublessor and Landlord against, and save claims, liabilities,
judgments, costs and expenses (including the cost and expense of
defending any claim), arising out of any such contest, and shall pay
the same to the Sublessor upon demand as additional rent.
42. DEPOT AND DISTRIBUTION AGREEMENT. Notwithstanding any other
provision contained in this Sublease, in the event the Sublessor is
in default of the Depot and Distribution Agreement between the
parties, beyond any applicable cure period, then Sublessee may
terminate this Sublease upon five (5) days written notice to
Sublessor.
IN WITNESS WHEREOF the parties hereto have caused this Sublease
Agreement to be executed by their duly authorized representatives as
of the date first written above.
COMPUTERVISION CORPORATION (Sublessor)
By:
Name: Joseph F. Pesce
Title: Vice President Finance and
Chief Financial Officer
Enterprising Service Solutions Corporation (Sublessee)
By:
Name: Raymond D. Stapleton
Title: President
<PAGE>
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is made and entered into this 11th day of
March 1994, by and between COMPUTERVISION CORPORATION, a Delaware
Corporation, having an office located at 100 Crosby Drive,
Bedford, Massachusetts 01730 ("Sublessor") and Enterprising
Service Solutions Corporation, having an office located at 14800
Conference Center Drive, Suite 400, Chantilly, Virginia 22021
("Sublessee").
WHEREAS Sublessor and MARFIN, INC., having an office located c/o
Winstanley Associates, Inc., P. O. Box 459, Concord,
Massachusetts 01742 ("Landlord"), entered into a lease dated as
of January 6, 1981, and amended February 29, 1984, and February
17, 1994, (the "Lease"), a copy of which is attached hereto as
Exhibit A), pursuant to which Sublessor leased from Landlord
certain premises located at 74-84 New York Avenue, Framingham,
Massachusetts 01701, and described more specifically in the Lease
(the "Premises"); and,
WHEREAS Sublessor desires to sublease a portion of the Premises
to Sublessee and Sublessee desires to sublease a portion of the
Premises from Sublessor under the terms and conditions set forth
in this Sublease Agreement (the "Sublease").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and intending to be legally bound, Sublessor and
Sublessee agree as follows:
1. SCOPE OF AGREEMENT. Except as otherwise expressly provided
herein, this Sublease is made subject to all the terms and
conditions of the Lease, and the relationship between, and the
rights of, Sublessor and Sublessee shall be governed by the Lease
as if the Sublessor were the landlord and Sublessee were the
tenant under the Lease. Sublessee specifically assumes and
agrees to faithfully perform all obligations required under the
Lease to be performed by Sublessor as tenant for that portion
occupied by Sublessee. Sublessor agrees to pass through to
Sublessee the benefits of Landlord's performance of obligations
required under the Lease to be performed by Landlord. Sublessor
does not, however, assume any responsibility for performing such
obligations, nor shall Sublessor be liable to Sublessee (or any
one claiming through Sublessee) for any default in this Sublease
caused by the failure of Landlord to perform such obligations or
by any other act of Landlord, or Landlord's employees, agents or
contractors. In the event Landlord fails to perform the
obligations assumed by Landlord under the Lease, Sublessor's sole
obligation will be to use reasonable efforts to cooperate with
Sublessee's pursuit of such remedies as are available against
Landlord under the Lease.
Sublessor acknowledges that the Lease is in full force
and effect and is unmodified except by the Amendments described
as part of Exhibit "A", and except as may be required under
Landlord's Consent to this Sublease. Sublessor has no knowledge
of any default of Sublessor or Landlord, nor that the Lease has
been assigned, nor have the Sublease Premises been previously
assigned, sublet, nor its interest in the Lease been mortgaged.
Both Sublessor and Sublessee warrant that the party executing
this Sublease has the authority to bind the respective
corporation.
2. SUBLEASE PREMISES. Sublessor hereby subleases to Sublessee
and Sublessee hereby subleases from Sublessor approximately Forty
Thousand Five Hundred (40,500) rentable square feet, known as
Phase VI, and outlined in red on the Plan attached hereto as
Exhibit B of the Sublease, (the "Sublease Premises").
Sublessee's prorata share of the Premises, therefore, is
40,500/242,500, or sixteen and 7/10th percent (16.7%).
3. TERM. The term of this Sublease shall commence on the
earlier of March 1, 1994, or the date of full execution of this
Sublease document by Sublessor and Sublessee and receipt of
Landlord's Consent to this Sublease document (the "Commencement
Date") and shall continue through April 30, 1995 (the "Expiration
Date"), unless earlier terminated in accordance with the
provisions set forth in the Lease or this Sublease. Sublessee
acknowledges that if the Lease terminates for any reason
whatsoever prior to April 30, 1995, this Sublease will terminate
simultaneously therewith with the same force and effect as if
such termination date had been named herein as the expiration
date hereof. Sublessee reserves the right to pursue remedies
against Sublessor if the early termination is caused by
Sublessor.
4. OPTION TO RENEW. Sublessee shall have the right and option
to extend the term of this Sublease for the additional period
which shall commence upon the expiration of the initial term and
end at midnight on December 31, 1995, provided, however, the
Sublessee provides six (6) months' written notice and provided
that at the time of its election to extend Sublessee is not in
material default under the terms, conditions and covenants of
this Sublease. Said extension shall be on the same terms and
conditions as set forth herein.
5. RENTALS AND PAYMENTS. Sublessee covenants and agrees to pay
as rent to Sublessor the following:
( i) A fixed rental at the annual rate of One Hundred
Twenty- one Thousand, Five Hundred and 00/100 Dollars
($121,500.00) (Annual Base Rent), payable in equal monthly
installments of Ten Thousand One Hundred Twenty-five and 00/100
Dollars ($10,125.00). If the Term shall begin on any day except
the first day, or shall end on any date except the last day of a
calendar month, a prorated monthly installment shall be paid at
the then-current rate for the fractional month during which the
Sublease commences and/or terminates.
( ii) As additional rent, Sublessee shall pay in equal
monthly installments its proportionate share of real estate
taxes, or substitutes for or modifications thereof as required by
law, and its proportionate share of operating expenses as
reasonably estimated by Sublessor on or before the Commencement
Date or the commencement of any Fiscal or Calendar Year in which
the Term falls. Sublessor shall reasonably estimate the taxes
and operating expenses and Sublessee's proportionate share and
Sublessee shall pay to Sublessor one-twelfth (1/12th) of the
total estimate along with its payment of Base Rental. Sublessor,
on a quarterly basis, will, if necessary, re-estimate the amount
of projected taxes and operating expenses and re-estimate
Sublessee's proportionate share thereof, and Sublessee shall
change its monthly installments to conform with the revised
estimates. Sublessee shall be responsible for any and all taxes
levied on account of its improvements to the Sublease Premises,
and personal property contained in the Sublease Premises.
At the end of either the Fiscal or Calendar Year,
whichever Sublessor elects, Sublessor shall determine Sublessee's
actual proportionate share of taxes and operating expense and the
difference between the actual and estimated amounts billed to
Sublessee. If the aggregate of installments were less than the
actual, Sublessee shall, within thirty (30) days pay the
difference to Sublessor or, if the aggregate was more than the
actual, Sublessee shall deduct the difference from its next
payment of additional rent. If no further additional rent will
be due from Sublessee, then Sublessor shall, within thirty (30)
days, refund to Sublessee the amount of such overpayment.
(iii) As additional rent, Sublessee shall pay its
proportionate share of all other costs, expenses, taxes,
assessments, charges, fees and amounts required to be paid as a
tenant obligation under the Lease or this Sublease.
( iv) The first month's rental shall be due and payable
upon Sublessee's signing this Sublease document.
Unless otherwise directed by Sublessor, all rent shall be paid in
lawful money of the United States to Sublessor at the office of
Sublessor designated above, to the attention of Sublessor's
Corporate Real Estate Department, MS 21-52. Fixed rentals shall
be paid in advance on the first day of each calendar month during
the Sublease Term. All additional rentals shall be paid within
thirty (30) days of Sublessee's receipt of Sublessor's invoice
therefor. Should Sublessee fail to pay within ten (10) days of
then due any rental or any other amount payable hereunder, the
amount past due shall bear interest at the prime rate until paid
in full. The payment of Rent hereunder is independent of each
and every other covenant and agreement contained in this
Sublease, and shall be paid in accordance with the terms of this
Sublease without any counterclaim, or abatement whatsoever.
(v) Notwithstanding the above, the total will not exceed
$3.00 square foot.
6. CONDITION OF THE PREMISES. Sublessee agrees to accept the
Sublease Premises "as-is" in the condition existing as of the
date this Sublease is executed by or on behalf of Sublessee. It
is further agreed that Sublessor and Landlord has no obligation
to perform any work therein. The taking of possession by
Sublessee of the Sublease Premises shall conclusively establish
that the Sublease Premises were, at such time, in good order and
satisfactory condition. Sublessee acknowledges that neither
Sublessor nor any agent of Sublessor has made any representation
or warranty with respect to the condition of the Sublease
Premises, nor the suitability thereof for the conduct of
Sublessee's business, nor has Sublessor agreed to undertake any
modification, alteration or improvement to the Sublease Premises.
Sublessee further acknowledges and agrees that Sublessor shall
not be responsible for the condition of, nor any defect in the
Sublease Premises, nor any damage thereto, nor to any person, nor
to goods or things contained therein, due to any cause
whatsoever, except to the extent caused by the negligence or
misconduct of Sublessor or its agents.
(b) "Sublessee Work" shall mean all work, including
demolition, improvements, additions and alterations, in or to the
Sublease Premises. All Sublessee Work, costing more than One
Hundred Thousand and 00/100 Dollars ($100,000.00) shall be
subject to Landlord's prior written approval, not to be
unreasonably withheld. Sublessee shall neither propose or effect
any Sublessee Work (1) which might in any manner affect the
integrity of any structural component of the Buildings
(including, without limitation, exterior walls, exterior windows,
core walls, roofs, or floor slabs), (ii) which might adversely
affect the electrical or mechanical components or systems of the
Buildings; (iii) which might adversely affect in any respect
other space in Landlord's Property (other than the Sublease
Premises); or (iv) which might materially diminish the value of
the Sublease Premises.
Any and all Sublessee Work shall be undertaken and
completed at Sublessee's sole cost and expense and at Sublessee's
sole responsibility.
7. PERFORMING OBLIGATIONS. Sublessee covenants that this is an
absolutely net lease and the Annual Base Rent, additional rent
and all other sums payable hereunder by the Sublessee shall be
paid in accordance with the terms of this Sublease, without set-
off, counterclaim, abatement (except as otherwise provided in
this Sublease).
This Sublease shall not terminate, nor shall the
Sublessee have any right to terminate this Sublease (except as
otherwise expressly provided in this Sublease of the Lease), nor
shall the Sublessee be entitled to any abatement or reduction of
Annual Base Rent or additional rent hereunder (except as
otherwise expressly provided in this Sublease of the Lease), nor
shall the obligations of the Sublessee under this Sublease be
affected by reason of (i) any damage to or destruction of all or
any part of the Sublease Premises from whatever cause, unless it
exceeds 25% of the usable space (ii) the prohibition, limitation
or restriction of the Sublessee's use of all or any part of the
Sublease Premises, or any interference with such use, (iii) any
eviction by paramount title or otherwise, (iv) any default on the
part of the Sublessor under this Sublease, or under any other
agreement to which Sublessor and Sublessee may be parties, or (v)
any other cause whether similar or dissimilar to the foregoing,
any present or future law to the contrary notwithstanding. It is
the intention of the parties hereto that the obligations of the
Sublessee hereunder shall be separate and independent covenants
and agreements, that Annual Base Rent, additional rent and all
other sums payable by the Sublessee hereunder shall continue to
be payable in all events and that the obligations of the
Sublessee hereunder shall continue unaffected, unless the
requirement to pay or perform the same shall have been terminated
or excused pursuant to an express provision of this Sublease. As
long as Sublessee is not in default hereunder, Sublessor shall
perform all of Sublessor's obligations under the Lease, except as
modified hereunder.
8. SUBLESSEE'S OBLIGATIONS TO MAINTAIN, REPAIR AND REPLACE
PREMISES. It is the intention of the parties that the Sublease
Premises be leased to Sublessee on a net-net-net basis, so
called, and that Annual Base Rent be unencumbered by any expense
allocable to the operation, repair, maintenance, or replacement
of the Sublease Premises (which, with respect to Taxes and
Operating Expenses shall be paid by Sublessee as and to the
extent provided herein). To this end, Sublessee shall reasonably
clean, maintain, repair, replace and secure the Sublease
Premises, all improvements and equipment thereon, including
mechanical, heating, ventilating and air conditioning equipment,
and shall pay all costs and expenses of so maintaining,
repairing, or replacing the same, anticipated or unanticipated,
keeping the Sublease Premises in good order and repair, except
for damage by fire or other casualty within the provisions of and
governed by this Sublease.
Without limiting the generality of the foregoing,
Sublessee shall keep all interior walls, roofs, floors, windows,
doors, partitions, loading platforms, bays and all fixtures and
equipment, including without limitation, all heating, air
conditioning, plumbing, sprinkler systems, and electrical and
mechanical fixtures and equipment and all utilities and
installations in the Sublease Premises in the same condition as
they are in on the Commencement Date, or may be put in during the
Term, reasonable use and wear and damage by fire or casualty only
excepted; and shall likewise make all non-structural repairs and
replacement required in the interior of the Sublease Premises.
In the event Sublessee fails to perform the obligations
set forth herein, Sublessor may, after notice and the applicable
cure period as set forth herein has expired, cause the same to be
performed at Sublessee's cost and expense, and Sublessee shall
pay Sublessor's costs and expenses upon demand as additional
rent.
9. QUIET ENJOYMENT. Sublessor covenants and agrees with
Sublessee that upon Sublessee's paying all monetary amounts due
and performing all other obligations assumed by Sublessee under
the Sublease, Sublessor shall take no action that would cause
Sublessee's peaceful and quiet possession and enjoyment of the
Sublease Premises to be disturbed during the Term of this
Sublease.
10. INSPECTION. Sublessor hereby reserves to itself the right
to enter onto the Sublease Premises at any reasonable time after
forty-eight (48) hours notice, except in cases of emergency, to
ascertain whether Sublessee is in compliance with the provisions
of this Sublease. Sublessee will use reasonable attempts not to
interfere with Sublessee's business and to follow Sublessee's
rules, except in cases of emergency when Sublessor shall use
reasonable judgment to minimize disruption to the extent
possible.
11. INDEMNITY. Sublessee shall indemnify and hold Sublessor,
Landlord, and Landlord's Managing Agent (Sublessor, Landlord and
Landlord's Managing Agent are herein collectively referred to as
the "Indemnified Party") harmless from and against all claims,
demands and liability arising from, or in any manner connected
with (i) Sublessee's possession or use of the Sublease Premises
(including without limitation Sublessee's failure to vacate the
Sublease Premises on or before the date this Sublease
terminates), (ii) any activity permitted or suffered by Sublessee
in or about the Sublease Premises, (iii) any breach or default in
the performance of any obligation on Sublessee's part to be
performed under this Sublease, or (iv) any negligence or omission
of Sublessee, its agents, contractors, servants, employees,
invitees, or licensees.
In furtherance of the foregoing, Sublessee shall not do
or permit to be done anything prohibited to Sublessor, as tenant
under the Lease, or take any action or do or permit any action
which would result in any additional cost or other liability to
Sublessor or Landlord under the Lease or this Sublease. In
addition to, and not in limitation of the undertaking of the
foregoing, wherever the Sublessor as Tenant under the Lease has
agreed to indemnify the Landlord, so in this Sublease, Sublessee
likewise agrees to indemnify Landlord with respect to the
Sublease Premises and all common areas accessed by Sublessee or
its agents, employees, and invitees.
In the event of a default by Sublessee, Sublessor may,
but need not, cure the default specifically on behalf of and for
the account of the Sublessee, in which event, the amount of all
damages, costs and expenses incurred by Sublessor in connection
therewith shall be paid to Sublessor as additional rental. By
curing the Sublessee's default, Sublessor shall not be deemed to
have waived any of its rights nor to have released the Sublessee
from any of its obligations under this Sublease.
12. SECURITY DEPOSIT. Intentionally omitted.
13. BROKERS' FEES. The Parties represent and warrant that
neither has not entered into any agreement or incurred any
obligation in connection with this transaction which could result
in an obligation to pay a brokerage commission or fees to any
broker or other person.
14. NOTICE. Any notice, request or demand given under this
Sublease, whether or not required, shall be valid only if given
in writing, and shall be deemed effective on the day it is
deposited in a United States Post Office if mailed registered or
certified mail, return receipt requested, postage prepaid, and
properly addressed to the party for whom intended at the address
designated above for such party, or at such other address as the
party may hereafter designate for itself by notice; or if given
in any other manner, when actually received. Sublessee shall
promptly, after receipt thereof, furnish the Sublessor by
registered or certified mail, a copy of any notice, demand, or
other communication received from Landlord with respect to the
Sublease Premises.
15. APPLICATION OF LEASE PROVISIONS. Sublessee's right and
option to renew is stated in Section 4. With ninety (90) day's
notice of intent to terminate, Sublessor reserves to itself the
right to make any decision concerning the termination of the
Lease in the event of a default by Landlord, a casualty or a
condemnation, to the extent provided in the Lease. In addition,
Sublessor and Sublessee agree that the following specific
provisions in the lease are not applicable and are excluded from
this Sublease: Articles 1.1, 2.1, 2.2, 3.1, 4.1.1, 4.1.2, 4.2.1,
4.2.2, 4.2.3, 4.2.4, 5.1.1, 5.1.3, 5.1.4, 5.1.6, 5.1.9, 5.1.10,
5.2, 6.1.1, 6.1.2, 6.2, and 12.1. Sublessor hereby agrees to
waive Article 2.3 as it expressly relates to the Sublease
Premises.
16. ENVIRONMENTAL COMPLIANCE. Sublessee shall not cause or
allow any hazardous waste, toxic substances, or toxic hazardous
materials (collectively, "Hazardous Materials") to be used,
generated, stored, or disposed of on, under or about, or
transported to or from, the Sublease Premises (collectively,
"Hazardous Materials Activities") except in strict compliance (at
Sublessee's expense) with all applicable Regulations, as
hereinafter defined, and using all necessary and appropriate
precautions.
Except with respect to pre-existing conditions as of
commencement date and liabilities caused by Sublessor or its
agent, Sublessee hereby indemnifies and holds harmless Sublessor
from any liability, including reasonable counsel fees and
litigation costs, with respect to any Hazardous Materials
Activities conducted on the Sublease Premises during the Sublease
term, however released or permitted to be released by Sublessee,
its agents, employees, contractors, invitees, licensees or
guests, whether or not consented to by Sublessor or Landlord.
Sublessee shall indemnify, defend with counsel, and hold
Sublessor harmless from and against any claims, damages, costs
and liabilities arising out of any and all such Hazardous
Materials Activities.
For purposes hereof, Hazardous Materials shall include
but not be limited to substances defined as "hazardous
substances", "toxic substances", or "hazardous wastes" in the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980; Resource Conservation and Recovery Act of 1976
("RCRA"); Hazardous Materials Transportation Act; all other laws
and ordinances governing similar matters; and any regulations
adopted and publications promulgated pursuant thereto
(collectively, "Regulations"), as they may be amended from time
to time.
Sublessee shall immediately notify Sublessor both by
telephone and in writing of any spill or unauthorized discharge
of Hazardous Materials or of any condition constituting an
"imminent hazard" under RCRA. Sublessor's Certification of
Compliance is attached as Exhibit C.
17. CONSTRUCTION. If any provision of this Sublease, or the
application thereof, is held by a court having competent
jurisdiction to be invalid or unenforceable under applicable law,
such provision shall be deemed to be limited or modified to the
extent necessary to make the remainder of this Sublease valid,
enforceable and unaffected thereby and to this end, the
provisions of this Sublease are declared to be severable.
18. LANDLORD'S CONSENT. Sublessee acknowledges that the
Sublease contemplated hereby will only become effective, if at
all, after Landlord has consented to the Sublease, which consent
shall be manifested by Landlord's execution of the "Consent of
Landlord to Sublease Agreement" attached hereto as Exhibit D, or
any other document reasonably requested by Landlord.
19. INTEGRATED SUBLEASE AGREEMENT. This Sublease, including the
attached Exhibits, constitutes the complete and exclusive
statement of the agreement between the parties pertaining to the
subleasing of the Sublease Premises and the subject matter
relating thereto. This Sublease supersedes and merges all prior
and contemporaneous understandings, agreements and
representations of the parties. The terms, covenants, conditions
and other provisions of this Sublease may hereafter be changed,
amended, or modified only by a written instrument that
specifically purports to do so and is signed on behalf of each
party by its duly authorized representative.
20. MISCELLANEOUS.
(a) The section headings appearing herein are for purposes
of convenience only and are not deemed to be a part of this
Sublease.
(b) The provisions of this Sublease shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
(c) Time is of the essence as to the obligations contained
in this Sublease.
21. HOLDOVER.
(a) If Sublessee shall not immediately surrender the
Sublease Premises at the end of the Term, then Sublessee shall,
by virtue of this Sublease, become a tenant at sufferance at a
monthly rental equal to twice the Basic Monthly Rent plus any
Additional Sublease Rent due under the terms of this Sublease,
commencing such monthly tenancy with the first day following the
end of the Term. Sublessee, as a tenant at sufferance, shall be
subject to all of the conditions and covenants of this Sublease
as though the tenancy had originally been a monthly tenancy.
During the holdover period, each party hereto shall give to the
other at least thirty (30) days' written notice to quit the
Sublease Premises, except in the event of nonpayment of Basic
Monthly Rent when due, or of the breach of any other provision
hereof by the Sublessee, in which event, Sublessee shall not be
entitled to any notice to quit, the usual thirty (30) days'
notice to quit being expressly waived. In the event that during
any holdover period Sublessor and Sublessee agree to an extension
or a new Sublease for the Sublease Premises, Sublessor shall
refund the amount of the penalty rent and additional rent paid by
Sublessee during the holdover period (i.e., the amount above the
basic monthly rent plus any additional Sublease rent).
(b) Notwithstanding the foregoing, Sublessee acknowledges
that it shall have no right to occupy the Sublease Premises upon
termination of the Lease for any reason. Sublessee shall
immediately surrender the Sublease Premises upon the termination
of the Lease.
22. INSURANCE, CASUALTY AND TAKING.
(a) Sublessor Insurance. Sublessor will reasonably insure
the Building against fire and casualty; provided, however, that
Sublessor shall not be required to insure improvements made by
Sublessee or at Sublessee's request to the Base Building or Base
Building Systems.
If Sublessor fails to maintain such insurance, then
Sublessee may (but is not obligated to) after five (5) days prior
written notice, obtain such insurance and Sublessor shall
reimburse Sublessee for the same..
(b) Insurance. Sublessee shall, at its sole cost and
expense, procure and maintain throughout the Sublease Term a
commercial general liability policy insuring against claims,
demands or actions for bodily injury, death, personal injury, and
loss or damage to property arising out of or in connection with:
(i) the Sublease Premises; (ii) the condition of the Sublease
Premises; (iii) Subleasee's operations in, maintenance and use of
the Sublease Premises, and (iv) Subleasee's liability assumed
under this Lease. Such insurance shall have such combined single
limit of not less than Two Million Dollars ($2,000,000.00) per
occurrence, on an occurrence basis, and shall be primary over any
insurance carried by the Landlord. Endorsements shall be
obtained for cross-liability and contractual liability.
Sublessee shall, at its sole cost and expense, procure and
maintain throughout the Sublease Term a property insurance policy
(written on an "All Risk" basis) insuring all of Sublessee's
personal property, including but not limited to equipment,
furniture, fixtures, furnishings and leasehold improvements which
are the responsibility of Sublessee, for not less than the full
replacement cost of said property. All proceeds of such
insurance shall be used to repair or replace Sublessee's
property. All such policies shall be written with insurers of
recognized responsibility. Also, such policies (i) shall contain
an endorsement that such policy shall remain in full force and
effect notwithstanding that the insured has released its right of
action against any party before the occurrence of a loss; (ii)
shall name Landlord as an additional insured party and loss
payee; and (iii) shall provide that the policy shall not be
cancelled, failed to be renewed or materially amended without at
lease thirty (30) days' prior written notice to Landlord and, at
Landlord's request, and Mortgagee. Sublessee's insurance
coverage may be effected by a blanket policy or policies of
insurance or under so-called "all risk" or "multi-peril"
insurance policies, provided that the total amount of insurance
available with respect to the improvements located on the
Sublease Premises and Sublessee's liability hereunder shall be at
least the equivalent of separate policies in the amounts herein
required, and provided further that in other respects any such
policy or policies shall comply with the provision of this
Section 22. An increased coverage or "umbrella" policy may be
provided and utilized by Sublessee to increase coverage provided
by individual or blanket policies in lower amounts, and the
aggregate coverage provided by al such policies with respect to
the improvements located on the Sublease Premises and Sublessee's
liability hereunder shall be satisfactory provided that such
policies otherwise comply with the provisions of this Section 22.
(c) Casualty Damage or Destruction. In the event that the
Sublease Premises or any portion or portions thereof are damaged
by destroyed by fire or other casualty, Sublessee and Sublessor
shall forthwith (and in any event within sixty (60) days)
commence and diligently complete repair and restoration of the
Sublease Premises, according to their respective responsibilities
subject to force majeure, to the end that space of substantially
the same size, quality and utility shall replace the damaged
Sublease Premises; provided, however, in the case of any insured
casualty that if any mortgagee refuses to permit insurance
proceeds to be applied to replacement of the Sublease Premises,
then Sublessee and Sublessor shall be relieved of this obligation
to repair and restore. Sublessor's obligation shall be limited
to restoration of the Base Building and Base Building Systems and
any improvements that existed prior to the commencement of this
Sublease. Sublessee shall be obligated to repair or restore all
of its improvements, alterations or additions to the Sublease
Premises, the Base Building or the Base Building Systems, subject
to whatever modifications Sublessee deems necessary to carry out
its business, provided Landlord has given prior written consent
to such modifications, as such consent may be required herein.
If Sublessee shall fail to obtain such insurance,
Sublessor may, but shall not be obligated to, obtain the same, in
which event the amount of the premium paid shall be paid by
Sublessee to Sublessor upon Sublessor's demand therefor. Such
amount shall be deemed rent hereunder and shall be collectible by
Sublessor in the same manner and with the same remedies as though
paid sums were Basic Monthly Rent reserved hereunder.
On or before the date of this Sublease, Sublessee shall
furnish to Sublessor and Landlord certificates evidencing the
aforesaid insurance coverage, and renewal certificate shall be
furnished to Sublessor and Landlord at least ten (10) days prior
to the expiration of each policy for which a certificate was
theretofore furnished. All insurance policies required by
Sublessee hereunder shall provide that Sublessor and Landlord
will be given at least ten (10) days prior written notice of any
cancellation or material change in the policy, or any other
expiration or defaults thereunder.
Sublessee acknowledges that neither Landlord nor
Sublessor will carry any insurance in favor of Sublessee, for
Sublessee's furniture, fixtures, equipment, improvements,
appurtenances or other property of Sublessee in or about the
Sublease Premises.
(d) Eminent Domain. In the event that all of the Sublease
Premises, or any substantial part thereof (meaning more than
thirty percent (30%) of the ground floor area) is taken by public
authority under power or eminent domain, then by notice given
within thirty (30) days of the recording of such taking in the
South Middlesex Registry of Deeds, this Sublease may be
terminated by either Sublessor or Sublessee, and rent shall be
apportioned as of the date of termination. If this Sublease does
not terminate as aforesaid, Landlord, per the Lease, shall within
reasonable time after possession is required for public use,
diligently restore what may remain of the Sublease Premises to
substantially the same condition they were in prior thereto, and
prior to Sublessee's commencement of improvements, alterations,
or additional thereto, subject to reduction in size thereof,
consistent, however, with zoning laws and building codes then in
existence. A just proportion of the Base Rent and Additional
Rent, according to the name and extent of the injury to the
Sublease Premises, shall be abated until what may remain of the
Sublease Premises shall be restored as aforesaid and thereafter a
just proportion of the Base Rent and Additional Rent according to
the nature and extent of the part of the Sublease Premises so
taken shall be abated for the balance of the term of this
Sublease. Landlord reserved to itself, and Sublessee assigns to
Landlord, all rights to damages accruing on account of any taking
by eminent domain or by reason of any act of any public authority
for which damages are payable. Sublessee agrees to execute such
instruments of assignment as may be reasonably required by
Landlord in any petition for the recovery of such damages if
requested by Landlord, and to turn over to Landlord any damages
that may be recovered in any such proceeding. It is agreed and
understood, however, that Landlord does not reserve to itself and
Sublessee does not assign to Landlord, any damages payable for
trade fixtures installed by Sublessee, or anybody claiming under
Sublessee at its own cost and expense, or any specific damages
which are expressly awarded as "special damages" to Sublessee, it
being understood and agreed that the term "special damages" as
used in this sentence shall not be construed to include any
damages to Sublessee arising from Sublessee's loss of its
leasehold interest hereof as a result o any taking by eminent
domain or any act of any public authority for which damages are
payable, but the term "special damages" shall be deemed to
include any moving or relocation expenses the Sublessee may be
entitled to by law. Landlord will cooperate with Sublessee in
order to allow Sublessee to collect any "special damages".
23. APPROVALS AND CONSENTS. In all provisions of the Lease
requiring the approval or consent of Landlord, Sublessee shall be
required to obtain the approval or consent of Landlord and
Sublessor in its sole discretion; provided, however, such consent
shall not be unreasonably withheld by Landlord or Sublessor if so
provided in the Lease for particular provisions.
24. ASSIGNMENT AND SUBLETTING. Sublessee, for itself, its
successors and assigns, expressly covenants that it shall not
assign, whether by operation of law or otherwise encumber this
Sublease, or sublet all or any part of the Sublease Premises.
Any such attempted assignment or subletting shall be void and of
no force and effect. Sublessor reserves the right to transfer
and assign its interest in and to this Sublease to any entity or
person who shall succeed to Sublessor's interest in and to the
Lease, provided Sublessor notifies Sublessee of the transfer or
assignment and the identity of the assignee, if possible, prior
to the effective date of the transfer. Notwithstanding the
above, Sublessee may assign, transfer, or sublet the Sublease
Premises, or any part thereof, without the consent of Sublessor,
to an affiliate, subsidiary or successor of Sublessee.
25. TIME LIMITS. In the event Sublessee receives from Sublessor
any notice to cure any default hereunder or under the Lease which
notice is based on a notice sent to Sublessor by Landlord
pursuant to the Lease, Sublessee shall cure such condition three
(3) days prior to the time required of Sublessor by Landlord for
the cure thereof.
26. COVENANTS WITH RESPECT TO THE LEASE.
(a) Each party covenants and agrees that it shall not do
anything that would constitute a default under the Lease or omit
to do anything that it is obligated to do under the terms of this
Sublease so as to cause a default under the Lease.
(b) In the event that Sublessee shall be in default of any
term of provision of, or shall fail to honor any obligation under
this Sublease, Sublessor, on giving the notice required by the
Lease (as modified pursuant to Notices, Section 11 hereof) and
subject to the right, if any, of Sublessee to cure any such
default as may be provided in the Lease, subject to Time Limits,
Section 25 hereof, shall have available to it all of the remedies
available to Landlord under the Lease in the event of a like
default or failure on the part of Sublessor as tenant thereunder.
Such remedies shall be in addition to all other remedies
available to Sublessor at law or in equity.
27. DEFAULT UNDER AND/OR TERMINATION OF THE LEASE.
Intentionally Deleted.
28. SUBORDINATION TO AND INCORPORATION OF TERMS OF LEASE. This
Sublease is in all respects subject and subordinate to any mort
gage, deed, deed of trust, ground lease or other instrument now
or hereafter encumbering the Building or the land on which it is
located, to the terms and conditions of the Lease and to matters
to which the Lease, including any amendments thereto, is or shall
be subordinate. The terms, provisions, covenants, stipulations,
conditions, rights, obligations, remedies and agreements of the
Lease with respect to the Sublease Premises are incorporated into
this Sublease by reference and made a part hereof as if herein
set forth at length, and shall, as between Sublessor and
Sublessee (as if they were the Landlord and Tenant, respectively,
under the Lease and as if the Sublease Premises being sublet
hereby were the Premises demised under the Lease), constitute the
terms of this Sublease, except to the extent that they do not
expressly relate to the Sublease Premises or are expressly
inapplicable to, or expressly modified or eliminated by, the
terms of this Sublease. Sublessee acknowledges that it has
reviewed and is familiar with the Lease, and Sublessor represents
that the copy of the Lease attached hereto as Exhibit A is a
true, correct, and complete copy of the Lease.
29. CARE, SURRENDER AND RESTORATION OF THE SUBLEASE PREMISES.
(a) Without limiting any other provision of this Sublease
or the Lease, Sublessee shall take good care of the Sublease
Premises, suffer no waste or injury thereto and shall comply with
all laws, orders and regulations which are applicable to the
Sublease Premises, the Building and Sublessee's use thereof.
(b) On or before the Expiration Date, Sublessee shall
remove from the Sublease Premises at its sole expense (i) all of
its personal property, and (ii) upon the demand of Sublessor,
prior to the Expiration Date or earlier termination of this
Sublease, any improvements and/or alterations that Sublessee has
made to the Sublease Premises. In the absence of such a demand,
all such improvements and alterations shall become the property
of Sublessor, subject, however, to the terms of the Lease. Upon
removal of the Sublessee's property from the Sublease Premises
and/or upon removal of such improvements and alterations,
Sublessee shall, at its sole expense, promptly repair and restore
the Sublease Premises to the condition existing prior to the
placement of such personal property upon the Sublease Premises
and/or other installation of such improvements and alterations,
and repair any damage to the Sublease Premises and/or the
Building related to such removals, so as to restore the Sublease
Premises to the conditions required under subsection below. All
property permitted or required by Sublessor to be removed upon
the Expiration Date or sooner termination of this Sublease
remaining on the Sublease Premises after such Expiration Date or
sooner termination shall be deemed abandoned and may, at the
election of Sublessor, either be retained as Sublessor's property
or may be removed from the Sublease Premises by Sublessor, at
Sublessee's expense. Any such expenses shall be paid by
Sublessee to Sublessor upon demand therefor.
(c) Upon the Expiration Date or sooner termination of this
Sublease Sublessee shall quit and surrender the Sublease Premises
to Sublessor in the condition such Sublease Premises were in on
the Commencement Date, broom clean, in good order and condition,
ordinary wear and tear and damage by fire and other insured
casualty excepted. Sublessee agrees to indemnify and save
Sublessor harmless from and against all loss, cost, expense, or
liability resulting from the failure of, or the delay by
Sublessee in or surrendering the Sublease Premises on or before
the Expiration Date, including, without limitation, any claims
made by Landlord or any succeeding sublessee founded on such
failure or delay.
30. JANITORIAL SERVICE. At Sublessee's sole cost and
responsibility, Sublessee shall contract for its own janitorial
service to the Sublease Premises.
31. UTILITIES. Sublessee shall pay all charges for gas, water,
sewer, electricity and other utilities used or consumed on the
Sublease Premises during the Term which now or hereafter serve
the Sublease Premises excluding hearing and air conditioning
provided by Sublessor (Sublessor being under no obligation to
separately meter the Sublease Premises.) It is understood and
agreed that Sublessor shall be under no obligation to furnish any
utilities to the Sublease Premises, other than to contract for
the same with utility companies and the Town of Framingham for
water unless the utilities have been separately metered, in which
case Sublessee shall contract with the appropriate provider for
service, and shall not be liable for any interruption or failure
in the supply of any such utilities to the Sublease Premises due
to circumstances beyond Sublessor's control.
If the Sublessee fails to pay such utility charges and
the same may become a lien on the Sublease Premises, then
Sublessor may pay the same and Sublessee shall reimburse
Sublessor its costs on demand as additional rent.
(a) Water/Sewer. Sublessor shall bill Sublessee for its
usage and, as additional rent, Sublessee shall pay to Sublessor
the cost of sewage and water supplied to Sublessee.
(b) Gas/Electricity. If gas and electricity are separately
metered, Sublessee shall contract for and pay those costs direct
to the appropriate utility.
32. REPAIRS/MAINTENANCE.
(a) Building Maintenance. Sublessor shall furnish the
services hereafter described (and the same shall be included in
Sublessor's Operating Expenses). Sublessee may obtain additional
services and utilities from time to time if the same are
obtainable by Sublessor upon reasonable advance request, or
Sublessor may furnish the same without request if Sublessor
determines that Sublessee's use or occupancy of the Sublease
Premises necessitates the same; and in either case Sublessee
shall pay for the same at reasonable rates from time to time
established by Sublessor upon demand as additional rent.
Sublessee's obligation shall be subject to the other provisions
of this Sublease, reasonable wear and tear and damage caused by
or resulting from the acts or omissions of Sublessee or its
transferees (or their agents, employees, invitees and independent
contractors), fire, casualty or eminent domain takings.
(b) Sublessor's Maintenance. Sublessor shall reasonably
maintain the foundations, exterior walls, masonry and structural
floors and so far as the same serve the Sublease Premises, the
exterior walkways, sidewalks, driveways and parking areas; but in
no event shall Sublessor be obligated to repair glass, windows or
doors of the Sublease Premises, whether interior or exterior
(which responsibility shall be Sublessee's unless damaged by
Sublessor's negligent act).
(c) Capital Improvements. If Sublessor replaces any
existing improvements or installs any new improvements to the
Building (including without limitation energy conservation
improvements or other improvements) or replaces the parking lot,
parking lot electrical equipment, landscaping or other common
areas and facilities or otherwise performs its obligations under
the Lease, then the cost of such items shall not be included in
Sublessor's operating expenses.
33. PARKING. During the term of the Sublease, Sublessee shall
have the use of fifteen (15) spaces at no charge.
34. INTERRUPTION OF UTILITIES. Sublessor shall not be liable to
Sublessee in damages or by reduction of rent or otherwise by
reason of inconvenience or annoyance or for loss of business
arising from Sublessor or its agents or employees entering the
Sublease Premises for any of the purposes authorized in this
Sublease in a manner reasonable in light of the circumstances;
but nothing herein in this Article shall excuse Sublessor from
any damages caused by Sublessor's negligent act for which
Sublessor shall be liable. In case Sublessor is prevented or
delayed from making any repairs or replacements or furnishing any
services or performing any other covenant or duty to be performed
on Sublessor's part by reason of any cause reasonably beyond
Sublessor's control, Sublessor shall not be liable to Sublessee
therefor, nor shall the same give rise to a claim in Sublessee's
favor that such failure constitutes actual or constructive, total
or partial, eviction from the Sublease Premises. If Sublessor
neglects or fails to perform any covenant or duty of Sublessor
reasonably beyond Sublessor's control, then Sublessee may, if
after notice from Sublessee (which notice makes express reference
to this Sublease provision), cure such neglect or failure for the
account of Sublessor and recover its reasonable costs of so
curing from Sublessor (but Sublessee shall not be entitled to any
rent offset or other remedy for such costs). Sublessor reserves
the right to stop temporarily any service or utility system, when
necessary by reason of accident or emergency, or until necessary
repairs have been completed; provided, however, that in each
instance or stoppage, Sublessor shall give Sublessee such notice
as if practicable under the circumstances of the expected
duration of such stoppage and will exercise reasonable diligence
to eliminate the cause thereof. Except in case of emergency
repairs, Sublessor will give Sublessee reasonable advance notice
of any contemplated stoppage and will use reasonable efforts to
avoid unnecessary inconvenience to Sublessee by reason thereof.
35. PERSONAL PROPERTY AT SUBLESSEE'S RISK. All of the
furnishings, fixtures, equipment, effects and property of every
kind, nature and description of Sublessee and of persons claiming
by, through or under Sublessee which, during the continuance of
this Sublease or any occupancy of the Sublease Premises by
Sublessee or such persons as may be on the Sublease Premises,
shall be at the sole risk and hazard of Sublessee of such
persons, and if the whole or any part thereof shall be destroyed
or damaged by fire, water or otherwise, or by the leakage or
bursting of water pipes, steam pipes, the sprinkler system or
other pipes, by theft or from any other cause, no part of said
loss or damage is to be charged to or to be borne by Sublessor of
Sublessor's agents or employees, and Sublessee waives any claim
against Sublessor of Landlord by it or such persons.
36. COMPLIANCE WITH LAW. Assuming the building is in compliance
with the law, Sublessee shall keep the Sublease Premises equipped
with all safety appliances and comply with all laws (except those
laws which are applicable to all warehouse buildings and
warehouse uses without regard to Sublessee's use or activities,
which warehouse-related laws shall be Sublessor's responsibility
to the extent any structural alterations are required) including
without limitation the Americans with Disabilities Act of 1990,
and with the orders and regulations of all governmental
authorities and all insurance inspection or rating bureaus having
jurisdiction, except that the Sublessee may defer compliance as
long as the validity of any such law shall be contested (at
Sublessee's sole cost and expense) by Sublessee in good faith and
by appropriate indemnity of Sublessor and Landlord against any
loss, cost, or expense on account thereof. Sublessee shall
indemnify Sublessor and Landlord against, and save claims,
liabilities, judgments, costs and expenses (including the cost
and expense of defending any claim), arising out of any such
contest, and shall pay the same to the Sublessor upon demand as
additional rent.
37. DEPOT AND DISTRIBUTION AGREEMENT. Notwithstanding any other
provision contained in this Sublease, in the event the Sublessor
is in default of the Depot and Distribution Agreement between the
parties, beyond any applicable cure period, then Sublessee may
terminate this Sublease upon five (5) days written notice to
Sublessor.
IN WITNESS WHEREOF the parties hereto have caused this Sublease
Agreement to be executed by their duly authorized representatives
as of the date first written above.
COMPUTERVISION CORPORATION (Sublessor)
By:
Name: Joseph F. Pesce
Title: Vice President Finance and
Chief Financial Officer
Enterprising Service Solutions Corporation (Sublessee)
By:
Name: Raymond D. Stapleton
Title: President
