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STANDARD SUBLEASE AGREEMENT
(SYMANTEC CORPORATION)
This Sublease Agreement (the "Sublease" or "Agreement") is dated and to be
effective as of February 7, 1996, by and between SYMANTEC CORPORATION, a
Delaware corporation ("Sublessor"), and FlexiInternational Software, Inc., a
Delaware corporation ("Sublessee"), with reference to the following recitals:
R E C I T A L S
WHEREAS, Sublessor previously entered into a Lease Agreement dated June 6, 1994
(the "Lease") by and between Sublessor as the Tenant thereunder, and Xxxxxx X.
Xxxxxx, as the Landlord thereunder ("Landlord"), pursuant to which Landlord
leased to Sublessor, and Sublessor leased from Landlord, certain premises
located at 0 XXXXXXXXXX XXXXX in the City of XXXXXXX, State of CONNECTICUT,
consisting of approximately 21,338 square feet of general office space, as such
space is more particularly described in the Lease (the "Premises"), such Lease
being attached hereto as Exhibit A and incorporated herein by this reference,
with a floor plan as more particularly set forth on Exhibit B, attached hereto
and incorporated herein by this reference; and
WHEREAS, Sublessee desires to sublease the Premise from Sublessor, and Sublessor
(subject to Landlords consent) is willing to sublease the same to Sublessee, on
the terms and conditions set forth herein;
A G R E E M E N T
NOW, THEREFORE, on the basis of the foregoing recitals, and in consideration of
the covenants, conditions, and other agreements contained herein, and for other
valuable consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO SUBLEASE PREMISES/TERM.
a. Sublessor hereby subleases the Premises to Sublessee at the rental and
upon all the terms and conditions set forth herein, and Sublessee hereby hires
the same from Sublessor, and agrees to pay such rental and perform such terms
and conditions. The term of this Sublease shall commence no later than thirty
(30) days after approval of this Sublease by Landlord (the "Commencement Date")
and, irrespective of the actual commencement date or any delay in the same,
expire on June 30, 1998 (such period hereinafter referred to as the "Term"),
unless sooner terminated pursuant to any term hereof. Notwithstanding the
foregoing, Sublessee shall be permitted to move furniture into the Premises
prior to the Commencement Date without triggering the Commencement Date,
provided, however, that as a condition thereto, Sublessee hereby agrees to
indemnify, protect, defend and hold Sublessor harmless from and against any and
all costs, claims, liability, or damages
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caused by any act or omission of Sublessor which result from the same. Provided
that Sublessee executes and Early Entry Agreement in the form reasonably
required by Sublessor, Sublessee shall be permitted, subject to such Early Entry
Agreement, to enter the Premises to move in and construct its buildout within
the same prior to the Commencement Date,
b. Notwithstanding said Commencement Date, if for any reason Sublessor
cannot deliver possession of the Premises to Sublessee on said date, Sublessor
shall not be subject to any liability therefore, nor shall such failure affect
the validity of this Sublease or the obligations of Sublessee hereunder or
extend the term hereof, but in such case Sublessee shall not be obligated to pay
rent until possession of the Premises is tendered to Sublessee, provided,
however, that if Sublessor shall not have delivered possession of the Premises
within sixty days from said Commencement Date, Sublessee may, at Sublessee's
option, by notice in writing to Sublessor within ten (10) days thereafter,
cancel this Sublease, in which event the parties shall be discharged from all
obligations herein. If Sublessee occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all the terms and
provisions hereof, and shall not advance the termination date and Sublessee
shall pay rent for such period at the initial monthly rates set forth in Section
2 below.
2. RENT. Sublessee hereby agrees to pay to Landlord equal monthly payments in
the amount of SIXTEEN THOUSAND, FOUR HUNDRED AND FORTY-EIGHT DOLLARS AND 04/100
($16,448.04), in advance, on the first day of each and every month during the
Term (such amount to be prorated on a per diem basis for any partial month),
provided, however, that all of such payments shall be made directly to Sublessor
unless otherwise notified by the Landlord in writing. No adjustment to Rent
shall be made if the estimate of the square feet of the Premises set forth above
is inaccurate in any respect. Except as otherwise expressly provided for herein
with regard to Sublessee's obligation to pay for monthly electrical costs,
Sublessee shall not be obligated to pay any other recurring Rent or Additional
Rent required under the Lease, provided, however, that Sublessee shall be liable
for, and shall pay to Sublessor at the time and in the manner required under the
Lease, any costs or expenses billed to Sublessor by Landlord which were caused
or specially ordered or incurred by Sublessee (e.g., payments for damage to the
Building, excess or after hours utility charges), whether or not classified as
Additional Rent, including, without limitation, those costs that arise as a
result of Sublessee's breach or default. Sublessee also agrees to pay the cost
of any telephone service provided to the Premises and other services not
available through the Landlord, directly to the party supplying such service.
Sublessee agrees to directly contract for and pay the same when due. Rent shall
be payable in lawful money of the United States to Sublessor at the address
stated herein, or to such other persons or at such other places as Sublessor may
designate in writing.
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FREE RENT/SPECIAL RENT PROVISIONS: Notwithstanding any other term or
provision herein, Rent for the first 31 days of the Term shall be abated for the
duration of the Term and, provided that Sublessee timely performs all of its
obligations set forth herein and in the Lease and is not otherwise in default
hereunder or thereunder at the expiration of the Term, shall not be obligated to
pay the same. Upon the event of any material default of Sublessee hereunder or
under the Lease not cured within any applicable cure period, and without
limiting any other right or remedy of Sublessor hereunder, Sublessee shall
become immediately obligated to pay the same.
In addition to the Rent required under this Sublease, Sublessee hereby
agrees to pay to Sublessor the amount due for all electrical charges for the
Premises as assessed by the Landlord under the Lease. Until further notice, such
amount shall be $2222.71 per month. This foregoing sentence shall not apply to
the electrical charges for the first month, which shall be abated for such month
to the extent the cost therefor is no more that the average electrical cost
previously paid by Sublessor.
3. ADVANCE RENT/SECURITY DEPOSIT. Upon the execution of this Sublease by
Sublessee, Sublessee shall deposit with Sublessor, the amount of $16,448.04 to
be held by Sublessor as a security deposit (the "Security Deposit"), which will
be applied or returned as more particularly set forth below. On or before the
Commencement Date, Sublessee shall deposit with Sublessor the amount of
$16,448.04 which shall be held by Sublessor and applied to the second month's
rent. in addition to the foregoing, six months from the Commencement Date, upon
30 days prior written notice from Sublessor, Sublessee shall deposit with
Sublessor the amount of $16,448.04 which shall be held by Sublessor and applied
to the last month's rent, provided, however, that in the event of a material
default hereunder which is not cured within any applicable time period,
Sublessor shall be permitted to apply such amount to the same matters which are
covered by the Security Deposit.
4. USE.
a. The Premises shall be used and occupied only for office use and for no
other purposes.
b. Without limitation the application of any other or similar term or
provision in the Lease, Sublessee agrees that it has thoroughly inspected the
Premises and agrees that the Premises shall be delivered to Sublessee vacant and
in "as is" condition, subject to applicable zoning, municipal, county and state
laws, ordinances, and regulations governing and regulating the use of the
Premises, and Sublessee accepts this Sublease subject thereto and all other
matters disclosed thereby and by any exhibits attached hereto. Sublessee hereby
acknowledges and agrees that neither Sublessor nor any agent thereof or broker
therefor, prior to or in connection with Sublessee entering into this Sublease,
made any promise, representation or warranty
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about the physical condition of the Premises, the building which the Premises is
a part of (the "Building"), the land on which it is built, or the suitability of
the Premises for the conduct of Sublessee's business, and that Sublessee did not
rely on anything said by Sublessor, Sublessor's agent or any broker of Sublessor
in connection with the same. Sublessee agrees that Sublessor shall have no
obligation to construct any improvements or do any other work in the Premises
other than is expressly set forth herein.
NOTWITHSTANDING THE FOREGOING, Sublessor hereby agrees (1) to clean and
shampoo the carpeting at its own cost and expense prior to the Commencement
Date, and (2) to provide a person to assist Sublessee for up to but no more than
two hours on-site in identifying voice cable or wiring in the Premises (also at
no expense to Sublessee).
c. Without limitation the application of any other or similar term or
provision in the Lease, Sublessee shall, at Sublessee's expense, comply with all
applicable statutes, ordinances, rules, regulations, orders, restrictions of
record, and requirements in effect during the Term or any part of the Term
hereof regulating the use by Sublessee of the Premises. Sublessee shall not use
or permit the use of the Premises in any manner that will tend to create waste
or a nuisance or which shall tend to disturb such any other tenants in the
building where the Premises are contained.
5. INCORPORATION AND ASSUMPTION OF LEASE.
a. The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Lease except for those provisions of the Lease which are directly
contradicted by this Sublease, in which event the terms of this Sublease
document shall control over the Master Lease. Therefore, for the purposes of
this Sublease, wherever in the Lease the word "Landlord" is used, it shall be
deemed to mean Sublessor, and wherever in the Lease the word "Tenant" is used,
it shall be deemed to mean Sublessee herein. Sublessee covenants and agrees (i)
that this Sublease is subordinate to and subject to the terms and provisions of
the Lease, (ii) to perform and comply with (and Sublessee hereby expressly
assumes) for the benefit of Sublessor and Master Lessor, all of the obligations
of the Tenant therein (the "Assumed Obligations"), except as expressly
contradicted herein, and (iii) to not otherwise act or fail to act in a way
which would constitute a breach or default of the Lease. Sublessee agrees to the
extent the Lease grants a right to the Landlord (e.g., the right to consent to
assignments, the right to enter the Premises for purposes of inspection, etc.),
such right shall belong to both Landlord and Sublessor separately, and both
parties shall have the right to exercise the same in each and every instance
under the terms set forth in the Lease, unless such terms are otherwise modified
hereunder, in which event, the modified terms shall apply to Sublessor and the
Lease terms shall apply to
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Landlord. Sublessee hereby acknowledges receipt of a copy off the Lease and
complete review prior to execution of this Agreement. Sublessee hereby agrees to
indemnify, protect, defend and hold Sublessor harmless of and from any and all
liability, judgments, costs, damages, claims or demands, including reasonable
attorneys fees, arising out of Sublessee's failure to comply with or perform the
Assumed Obligations. Notwithstanding the foregoing, (a) Sublessor and Sublessee
hereby expressly agree that Sections 4.01, 4.02, 6.01 and the last sentence of
Section 7.03 are not incorporated into this Sublease and Sublessee shall not be
obligated to perform the same, and (b) Sublessor hereby agrees to promptly
provide to Sublessee and notice of default Sublessor receives from Landlord in
connection with the Lease.
b. Provided it is at no cost to Sublessor, Sublessor hereby agrees to use
reasonable efforts to cooperate with Sublessee to enforce for the benefit of
Sublessee in accordance with the provisions of the Lease, the obligations of
Landlord under the Lease, with the intent that the benefit of such covenants
(unless excluded or modified hereunder) shall extend to the Premises and be
enjoyed by Sublessee during the Term; provided, however, that Sublessor shall
have no duty to perform any obligations of the Landlord and shall not be liable
to Sublessee for any default, failure, or delay of Landlord in the performance
of any of Landlord's obligations under the Lease.
6. LIMITATIONS OF INCORPORATION. Notwithstanding the foregoing incorporation of
the Lease, in no event shall Sublessee be entitled to receive the benefit of or
exercise any right or option granted to Sublessor as Tenant under the Lease
which would in any way expand or materially affect the obligations of Sublessor
as the actual Tenant or Sublessee as the effective Tenant under the Lease,
including, without limitation, any right to purchase the Premises, any right to
expand the size of the Premises, any right to renew, extend, limit, shorten or
cancel the term of the Lease, any right of first refusal to rent additional
premises, any right to any rental abatements and/or tenant improvement
allowances, or any similar or other right or provision.
7. INSURANCE. Sublessee agrees to take out and keep in force during the Term
such insurance in respect of the Premises as would be obtained by a prudent
tenant of such office premises in the Building and as such, Sublessee shall, at
a minimum, comply with the obligations of Sublessor as Tenant under the Lease
and shall be subject to the same obligations and limitations of liability with
respect to damage, loss or injury as are set out in the Lease. In addition to
any obligations regarding insurance in the Lease, Sublessee shall cause Landlord
and Sublessor to appear as named insureds on any insurance taken out and kept in
force by Sublessee in respect of the Premises and, in this regard, Sublessee
shall provide to Sublessor prior to commencement of the Lease Term, certificates
of insurance evidencing the interests of Sublessor, as such interest may appear.
Such insurance shall contain a clause which states that the insurer will not
cancel or change the insurance without first giving Sublessor fifteen days prior
written notice.
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8. COMPLIANCE WITH LAWS. In addition to any similar obligations in the Lease,
with respect to Sublessee's use of the Premises, Sublessee shall at all times,
at its own cost and expense, comply with all laws, ordinances, regulations and
standards, including without limitation, those relating to the use, analysis,
production, storage, sale, disposal or transportation of any hazardous materials
("Hazardous Substance Laws"), including oil or petroleum products or their
derivatives, solvents, PCB's, explosive substances, asbestos, radioactive
materials or waste, and any other toxic, ignitable, reactive, corrosive,
contaminating or pollution materials ("hazardous substances") which are now or
in the future subject to any governmental regulation.
9. INDEMNIFICATIONS. Without limiting any indemnity or similar obligation set
forth in the Lease as it applies to Sublessee, and to the extent any of the
following are caused by any action or inaction of Sublessee, or Sublessee is
otherwise responsible therefore, Sublessee agrees to indemnify, protect, defend
with counsel reasonably acceptable to Sublessor, and hold Sublessor free and
harmless from any and all liabilities, damages, claims, penalties, fines,
settlements, causes of action, costs or expenses, including reasonable
attorneys' fees, resulting from or attributable to: (a) the presence, disposal,
reliance or threatened release of any hazardous substance that is on, from or
affecting the Premises; (b) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or relating to the hazardous
substance; (c) any lawsuits or administrative order relating to the hazardous
substance; or any violation of any laws applicable to the hazardous substance;
(d) any breach by Sublessee of this Agreement or the Lease; and (e) any matter
for which Sublessor is obligated to indemnify, protect, defend or hold Landlord
harmless under the Lease, and (f) any liability of Sublessor to Landlord for any
actions, damages, destruction, losses, costs of repair, or other expenses due
pursuant to or in connection with the Lease (except those amounts which
Sublessee is expressly not obligated to pay hereunder). No indemnity herein is
intended to limit any other indemnity which may apply to the parties hereto by
application of the Lease to the same.
Without limiting any of the obligations of Sublessor, and to the extent any of
the following are caused by any action or inaction of Sublessor, Sublessor
agrees to indemnify, protect, defend with counsel reasonably acceptable to
Sublessee, and hold Sublessee free and harmless from any and all liabilities,
damages, claims, penalties, fines, settlements, causes of action, costs or
expenses, including reasonable attorneys' fees, resulting from or attributable
to: (a) the presence, disposal, reliance or threatened release of any hazardous
substance that is on, from or affecting the Premises; (b) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or relating to the hazardous substance; (c) any lawsuits or administrative order
relating to the hazardous substance; or any violation of any laws applicable to
the hazardous substance; and (d) any breach by Sublessor of this Agreement.
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10. DEFAULT, SUBLESSOR'S REMEDIES ON DEFAULT AND TERMINATION OF SUBLEASE. The
provisions of Article 13 are hereby incorporated into this Sublease, the
appropriate changes of reference being deemed to have been made with the intent
that such provisions shall govern the relationship between Sublessor and
Sublessee in respect of such matters.
11. CONDITION UPON EXPIRATION. Upon the expiration of the Term hereof, Sublessee
shall remove all of Sublessee's property and return the Premises to base
building standard, broom clean, reasonable wear and tear excepted, provided,
however, that Sublessee shall not be responsible for any changes made by
Sublessor or required to remove any Sublessor or Sublessee improvements which
the Landlord approves and delivers written notice to Sublessor that such
improvements need not be removed upon Lease termination. Without limiting
Sublessee's obligations set forth in the foregoing sentence, and notwithstanding
any other term or provision hereof, Sublessee agrees to provide Sublessor
reasonable access to the Premises for the last thirty (30) days of the Lease
term, and otherwise to reasonably cooperate with Sublessor during such thirty
(30) days (providing it is at no cost to Sublessee), in restoring the Premises
to the manner required by Landlord under the Lease. Sublessor agrees to use its
reasonable good faith efforts to minimize the interference with Sublessee's
operations during said period.
12. SECURITY DEPOSIT. Sublessor and Sublessee hereby agree that the Security
Deposit is security for Sublessee's faithful performance of Sublessee's
obligations under this Sublease. If Sublessee fails to pay rent or other charges
due hereunder, or otherwise defaults with respect to any provisions of this
Sublease, Sublessor may use, apply or retain all or any portion of said Security
Deposit, as applicable, for the payment of any Rent or other charge in default
or for the payment of any other sum to which Sublessor may become obligated by
reason of Sublessee's default, or to compensate Sublessor for any loss or damage
which Sublessor may suffer thereby. If Sublessor so uses or applies all or any
portion of said Security Deposit, Sublessee shall within ten (10) days after
written demand therefore deposit cash with Sublessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated and Sublessee's
failure to do so shall be a material breach of this Sublease. Sublessor shall
not be required to keep said deposit separate from its general accounts. If
Sublessee performs all of Sublessee's obligations hereunder, said deposit, or so
much thereof as had not theretofore been applied by Sublessor, shall be
returned, without payment of interest or other increment for its use to
Sublessee (or at Sublessor's option, to the last assignee, if any, of
Sublessee's interest hereunder) at the expiration of the term hereof, and after
Sublessee has vacated the Premises. No trust relationship is created herein
between Sublessor and Sublessee with respect to said Security Deposit.
13. NO WAIVER OF LEASE PROVISIONS/TERMINATION. Only a written agreement between
Sublessee an Sublessor can waive any violation of this Sublease. Any
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agreement to end this Sublease and also to end the rights and obligations of
Sublessee and Sublessor must be in writing and signed by Sublessee and
Sublessor. Even if Sublessee gives keys to the Premises and they are accepted by
any employee, or agent, of Sublessor, this Sublease is not ended.
14. FINANCIAL AND BACKGROUND INFORMATION. Sublessee hereby represents and
warrants to Sublessor that all of the financial and other information provided
to Sublessor by Sublessee or its broker or agent in connection with this
transaction is true and correct in all material respects as of the date provided
and as of the date this Agreement is executed.
15. NOTICES. The provisions of the Lease shall apply with regard to notices to
be given hereunder. The address of the parties for the purpose of giving any
such notice shall be:
Sublessor: with a copy to:
Symantec Corporation Symantec Corporation
00000 Xxxxx Xxxxxx 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000 Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn. Accounts Payable Attn. General Counsel
Phone (000) 000-0000
Fax: (000) 000-0000
Sublessee (prior to Commencement Date): Sublessee (after to Commencement Date):
FlexiInternational Software, Inc. FlexiInternational Software, Inc.
Xxx Xxxxxxxx Xxxxx 0 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Controller and General Counsel Attn: Controller with a copy to the
General Counsel
16. MISCELLANEOUS.
a. This Agreement shall be construed in accordance with and all disputes
hereunder shall be governed by the internal laws of the state where the Premises
are located. In the event of any controversy or dispute arising out of this
Agreement, the prevailing party or parties shall be entitled to recover from the
non-prevailing party or parties, reasonable expenses, including, without
limitation, attorneys' fees and costs actually incurred. As used herein, the
"prevailing party" shall mean that party which obtains substantially the relief
being sought. Should any provision of this Agreement be declared or determined
by any court to be illegal or invalid, the validity of the remaining parts,
terms or provisions shall not be affected thereby and such illegal or
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invalid part, term or provision shall be deemed not to be a part of this
Agreement. This Agreement may only be amended by a writing signed by both
parties hereto.
b. This Agreement sets forth the entire agreement between the parties
hereto, and fully supersedes any and all prior agreements or understandings
between the parties hereto pertaining to the subject matter hereof, including,
without limitation, any terms and provisions contained in that any offer letter,
letter of intent, or similar type document executed or delivered in connection
with this transaction. Except as expressly set forth herein, Sublessor and
Sublessee hereby agree that there are no other agreements, representations,
warranties or conditions between Sublessor and Sublessee relating to the
Premises or the subject matter of this Agreement (express, implied, collateral
or otherwise). As used herein, Sublessee shall mean all of Sublessee's
directors, officers, partners, agents, employees, invitees and visitors. Unless
otherwise indicated, capitalized terms used herein shall have the same meaning
as set forth in the Lease. Time is of the essence of this Sublease.
c. Each party to this Agreement hereby represents and warrants that it has
the legal power, right and authority to enter into this Agreement and to
consummate this transaction. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered will be deemed to be an
original and all of which, taken together, will be deemed to be one and the same
Agreement. This Agreement shall be binding upon the heirs, administrators,
executors, successors and assigns of the parties hereto. Provisions regarding
assignment of this Sublease shall be controlled by the Lease. Each of the
parties hereto, without further consideration, agrees to execute and deliver
such other documents and take such other action as may be necessary to
consummate more effectively the subject matter hereof. Heading and captions set
forth herein are for purposes of reference only, and shall not be used to
interpret, explain or limit any terms and provisions hereof.
d. Each of the parties hereto agree to indemnify, protect, defend and hold
the other harmless from any claim or demand for broker fees and/or commissions
from any broker they hired or engaged. In connection with the foregoing,
Sublessor agrees to pay and be responsible for any fees or commission due to The
Xxxxxx Company and/or Xxxxx Xxxxxx, as well as any fees or commission due to CB
Commercial and/or Xxxxxxxxxxx X'Xxxx. Colonial Real Estate.
17. LANDLORD CONSENT. In the event that the Lease requires that Sublessor obtain
the consent of the Landlord prior to any subletting by Sublessor then this
Sublease shall not be effective unless Landlord consents to the same within the
time period set forth in the Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SYMANTEC CORPORATION, FLEXIINTERNATIONAL SOFTWARE, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxx Xxxxx Name: Xxxxxxxx Xxxxx
Title:VP Title:President
Date: 2/7/96 Date: 2/8/96
Landlord hereby consents to the foregoing Sublease on the terms and conditions
set forth therein, provided, however, that Landlord's consent: does not
constitute Landlord as a party to the Sublease; does not obligate Landlord in
any manner to fulfill any obligation under the Sublease (Landlord's obligations
to remain as by and through the Lease and not the Sublease); does not restrict
Landlord's right to enter into a modification of the Lease, without the
permission of Sublessee; and does not constitute and modification in any way of
any provision of the Lease. Further, notwithstanding anything to the contrary
contained in the Sublease, the Sublease shall be subject and subordinate to the
Lease. Landlord hereby acknowledges that, to the best of Landlord's knowledge,
no default presently exists in the obligations of Tenant under the Lease and
that the Lease is in full force and effect.
Landlord
/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Date: 2/16/96
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