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SUBLEASE
This instrument is a Sublease between Interleaf, Inc., a Massachusetts
corporation (the "Sublessor"), and Parametric Technology Corporation., a
Massachusetts corporation (the "Sublessee").
The parties to this Sublease hereby agree as follows:
ARTICLE I
SUMMARY OF BASIC SUBLEASE PROVISIONS
1.1 BASIC DATA
ALL CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN
THE PRIME LEASE (hereinafter defined) UNLESS OTHERWISE DEFINED HEREIN.
Date of this Sublease: September 15, 1995
Sublessor: Interleaf, Inc.
Present Mailing Address Nine Hillside Avenue
of Sublessor: Xxxxxxx, Xxxxxxxxxxxxx 00000
Sublessee: Parametric Technology Corporation.
Present Mailing Address 000 Xxxxxxxxxx Xxxxx
of Sublessee: Xxxxxxx, Xxxxxxxxxxxxx 00000
Premises: Approximately 76,310 rentable square feet of space
located in the building known as and numbered
Prospect Place, 0 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx (the "Building"). The Premises demised
under this Sublease comprise the sixth, fifth and
second floors leased to Sublessor by Prime Lessor
under the Prime Lease (as defined below) as set forth
in Exhibit A.
Permitted Uses: Office, sales, marketing, training, software
development and creation, general office use and
ancillary uses related thereto, all to the extent
permitted by applicable law, and no other use that
is inconsistent with Section 7 of the Prime Lease.
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Commencement Date: Rentable Access Rent
Square Commencement Commencement
Feet Location Date Dates
---- -------- ---- -----
28,430 RSF 6th Floor 10/23/95 12/01/95
19,450 RSF 2nd Floor 11/15/95 01/01/96
28,430 RSF 5th Floor 04/01/96 05/15/96
Sublease Term or Term(s): Beginning on the respective Access Commencement
Date(s) and all expiring on December 31, 2000.
Annual Fixed Rent: $24.00 per sq. Foot.
Rentable
Square Annual
Feet Location Rent
---- -------- ----
28,430 RSF 6th Floor $682,320
19,450 RSF 2nd Floor $466,800
28,430 RSF 5th Floor $682,320
Additional Charges: Sublessee's share of electricity as set forth in
Section 6.3, estimated to be approximately $1.25
per square foot.
Security Deposit: None
Parking Spaces: Sublessee shall be entitled to use its prorata
share of Sublessor's 420 parking spaces, of which
396 are covered under the Building. Upon
occupation of the Premises by the Sublessee,
Sublessee shall be entitled to use 225 spaces, of
which 212 shall be covered.
Prime Lease: That certain lease, dated as of March 30, 1990, as
subsequently amended, between Prime Lessor, as
Landlord, and Sublessor, as Tenant.
Prime Lessor: Prospect Hill Executive Office Park, a
Massachusetts limited partnership.
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1.2 ENUMERATION OF EXHIBITS
The following exhibits are attached to this Sublease and incorporated
herein:
EXHIBIT A: PLAN OF PREMISES
EXHIBIT B: PRIME LEASE
EXHIBIT C: SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT
EXHIBIT D: SUBLESSOR SYSTEMS
ARTICLE II
PREMISES
2.1 SUBLEASE OF PREMISES
Sublessor hereby subleases to Sublessee, and Sublessee hereby accepts and
subleases from Sublessor, upon and subject to the terms and provisions of the
Prime Lease and this Sublease, the Premises.
2.2 PRIME LEASE
2.2.1 Sublessor hereby represents and warrants that: (a) Sublessor is Tenant
under the Prime Lease; (b) the Prime Lease is in full force and effect,
Sublessor has submitted to Sublessee a true and complete copy of the Prime
Lease, inclusive of all amendments, riders, exhibits and related agreements; the
Prime Lease is the entire agreement between Sublessor and Prime Lessor (or any
other party) relating to the use and occupancy of the Premises and there are no
side letters of understanding, oral or written, of any sort that modify, amend,
alter, supplement or change the terms of the Prime Lease; (c) Sublessor has not
received any notice of default that has not been cured under the Prime Lease
from Prime Lessor; and (d) Sublessor is not insolvent and is able to pay its
debts and other obligations as they come due; it has not declared bankruptcy or
filed a petition to take advantage of any law relating to bankruptcy,
insolvency, reorganization, winding up or composition or adjustment of debts and
it has no present intention of doing so; no such proceeding has been commenced
against Sublessor seeking such relief and Sublessor has no knowledge that any
such proceeding is threatened. Sublessee warrants and acknowledges that it has
reviewed the Prime Lease and is satisfied with the arrangements therein
reflected.
2.2.2 The Prime Lease is by this reference incorporated into and made a part
hereof, except that all references in the Prime Lease to "Landlord", "Tenant",
"Lease" and "Premises", respectively, shall be deemed to refer to Sublessor,
Sublessee, this Sublease and the Premises subleased hereunder, respectively,
EXCEPT THAT all references in the following sections and/or provisions of the
Prime Lease are expressly EXCLUDED from this Sublease (i.e., they shall NOT be
deemed to be incorporated in this Sublease) to the extent described below,
either because they are inapplicable or because they are superseded by specific
provisions hereof:
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(a) Section 1 (Definitions and Exhibits)
(b) Section 3 (Term of Lease, Landlord's Construction)
(c) Section 4 (Minimum Annual Rent; Security Deposit)
(d) Section 5 [EXCEPT THAT the provisions of Section 5 shall be
deemed applicable to this Sublease solely for the purposes
of calculating the amount of Taxes payable by Sublessee
under Section 6.1 of this Sublease using Fiscal Year 1995 as
the base year]
(e) Section 6 [EXCEPT THAT the provisions of Section 6 shall be
deemed applicable to this Sublease solely for the purposes
of calculating the amount of Additional Charges payable by
Sublessee under Section 6.2 of this Sublease using Calendar
Year 1994 as the base year]
(f) Section 21 (Notice of Lease)
(g) Section 23 (Brokerage)
(h) Section 30 (Sign for Building)
(i) Section 32 (Extension Options)
(j) Section 33 (Allowances)
(k) Section 34 (Additional Improvements)
2.2.3 This Sublease shall be subject and subordinate to the Prime Lease and to
the matters to which the Prime Lease is or shall be subject or subordinate, and
that in the event of termination of the Prime Lease or reentry or dispossession
of Sublessor by Prime Lessor under the Prime Lease, Prime Lessor may, at its
option, take over all of the right, title and interest of Sublessor, as
sublessor under this Sublease, and Sublessee shall, at Prime Lessor's option,
attorn to Prime Lessor pursuant to the then executory provisions of this
Sublease, except that neither Prime Lessor nor any mortgagee of the Premises, as
holder of a mortgage or as Prime Lessor under the Prime Lease (if such mortgagee
succeeds to that position), shall (a) be liable for any act or omission of
Sublessor under such Sublease, (b) be subject to any credit, counterclaim,
offset or defense which theretofore accrued to Sublessee against Sublessor, or
(c) be bound by any previous modification of such Sublease or by any previous
prepayment of more than one (1) month's rent, (d) be bound by any covenant of
Sublessor to undertake or complete any construction of the Premises or any
portion thereof, (e) be required to account for any security deposit of
Sublessee other than any security deposit actually delivered to Prime Lessor by
Sublessor, (f) be bound by any obligation to make any payment to such Sublessee
or to grant any credits, (g) be responsible for any monies owing by Sublessor to
the credit of Sublessee, or (h) be required to remove any person occupying the
Premises or any part thereof; and Sublessee shall, at the request of Prime
Lessor, execute a suitable instrument in confirmation of such agreement to
attorn.
2.2.4 Sublessee shall neither do, nor permit to be done, anything that would
increase Sublessor's obligations to Prime Lessor under the Prime Lease (unless
Sublessee shall indemnify Sublessor from such increased obligation) or that
would cause the Prime Lease to be terminated or forfeited.
2.2.5 Sublessor shall copy Sublessee, its designees, successors and assigns on
any notice of default, termination or any occurrence otherwise affecting the
existence or validity of the Sublease, given by Sublessor or Prime Lessor to the
other. Sublessor covenants that upon Sublessee's payment of the rent and
additional rent and observance and performance of all the terms, covenants
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and conditions of this Sublease on its part to be observed and performed,
Sublessee may, at all times during the term hereof, peaceably and quietly enjoy
the Subleased Premises, subject, nevertheless, to the terms and conditions of
the Prime Lease and this Sublease. Sublessor further covenants that it will
perform and observe all of the terms, covenants and conditions of the Prime
Lease on its part to be observed and performed and which are not to be observed
and performed by Sublessee under this Sublease. Sublessor agrees to pay all
rents and not terminate or modify the Prime Lease or take any action which would
diminish Sublessee's rights or increase Sublessee's obligations under this
Sublease during the Sublease Term(s).
2.3 APPURTENANT RIGHTS/SIGNAGE
2.3.1 Sublessee shall have, as appurtenant to the Premises, the rights to use
in common with others entitled thereto, the Common Property as defined in
Section 2 of the Prime Lease which definition includes: (a) the common
facilities in or serving the Building including common area rest rooms, common
walkways, driveways, ramps, loading dock(s) and stairways; (b) Parking Spaces;
and (c) any other common areas which may be added or deleted from time to time.
2.3.2 Sublessor agrees to waive any requirements set forth in Section 30 of the
Prime Lease and to obtain waivers and consents from all necessary parties in
order to allow Sublessee to place Sublessee's identification sign on the
northwest side of the exterior building on or after October 23, 1995. Sublessor
shall be responsible for the cost of removing the existing "Interleaf" sign.
2.3.3 Sublessee's identification sign shall be subject to Prime Lessor's
approval as to design, shall identify "Parametric Technology" as a tenant in the
Building, shall have lettering of no greater height, width or spacing than, and
the same type and intensity of lighting as, the existing sign of the Sublessor,
and shall be subject to all applicable federal, state and municipal laws and
regulations. Sublessee shall be responsible for all costs and expenses
associated with the erection and maintenance of Sublessee's sign.
2.3.4 In the event that Sublessor sublets additional space to Sublessee during
the term of this Sublease which when taken in the aggregate would be greater
than 75% of the space currently rented by Prime Lessor to Sublessor, Sublessor
shall grant to Sublessee its right to signage on the North side of the Building
all as set forth in Section 2.3.2 and in accordance with Section 2.3.3 above.
2.4 CONDITION OF PREMISES
2.4.1 Sublessor hereby represents and warrants that the Premises is in full
compliance to the best of its knowledge with all local, municipal, state,
federal or other governmental agencies and National Board of Fire Underwriters
rules, ordinances, regulations and laws. Sublessor makes no other
representation or warranty with respect to the Premises. Sublessor agrees to
assign to Sublessee any applicable warranty given to Sublessor by any third
party in connection with all Tenant's Work.
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2.4.2 Sublessee is satisfied with the present condition of the Premises and
accepts the Premises "as is" as of the date hereof and without obligation of any
kind on Sublessor to make any repairs or improvements thereto EXCEPT FOR
Sublessor's limited representation in Section 2.4.1 above.
2.5 HAZARDOUS MATERIALS
Sublessor shall indemnify, defend and hold harmless Sublessee, its
officers, directors, partners, trustees, employees and shareholders from and
against any damage, loss, expense (including, without limitation, reasonable
attorneys' fees and other costs and expenses incident to any suit, action,
complaint, audit, investigation or proceeding) arising out of or resulting from
any breach of Section 9(F) by Sublessor of the Prime Lease.
ARTICLE III
TERM OF SUBLEASE
3.1 TERM
The Term of this Sublease shall be for the periods specified in Section 1.1
as the Sublease Term(s), unless earlier terminated as provided below. The
Sublease Term(s) shall commence on the Access Commencement Dates set forth in
Section 1.1 hereof.
ARTICLE IV
USE; COMPLIANCE WITH LAW; DAMAGE; NUISANCE; ASSIGNMENT AND SUBLETTING
4.1 PERMITTED USE
Sublessee agrees that the Premises shall be used and occupied for the
permitted uses specified in Section 1.1 only. Sublessee shall, at its expense,
obtain any and all licenses and permits necessary for its use of the Premises.
4.2 COMPLIANCE WITH LAW
Sublessee shall comply with all present and future laws, regulations,
permits, orders and conditions of any special permits or other governmental
approvals (collectively, "laws") applicable to Sublessee or Sublessee's
particular use or manner of use of the Premises from time to time. Sublessee
shall procure all appropriate approvals, licenses and permits applicable to
Sublessee or Sublessee's particular use or manner of use of the Premises, in
each case promptly giving Sublessor and Prime Lessor true and complete copies of
the same and all applications therefor. Sublessee shall also keep the Premises
equipped with appropriate safety appliances and comply with all requirements of
insurance inspection or rating bureaus. Compliance with a law may be deferred
so long as Sublessee is diligently contesting the validity or applicability of
such law in good faith and
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based on counsel's written advice that such contest is more likely than not to
succeed and so long as non-compliance will not result in a lien, charge or
liability against Sublessor or Prime Lessor or their respective interests or
cause a default by Sublessor under the Prime Lease.
4.3 ASSIGNMENT AND SUBLETTING
Neither Sublessee nor any other person having an interest in the
possession, use, occupancy or utilization of space in the Premises will enter
into any lease, sublease, license, concession or other agreement for use,
occupancy or utilization of space in the Premises which provides for rental or
other payment for such use, occupancy or utilization based in whole or in part
on the net income or profits derived by any person from the portion of the
Premises subleased, used, occupied or utilized (other than an amount based on a
fixed percentage or percentages of receipts or sales).
ARTICLE V
RENT AND OTHER CHARGES
5.1 RENT
Sublessee shall pay rent ("Rent") to Sublessor on the Rent Commencement
Dates and thereafter monthly, in advance, on the first day of each calendar
month during the term hereof, in a sum equal to one-twelfth (1/12th) of the
Annual Fixed Rent specified in Section 1.1. Sublessee shall pay Rent on a pro-
rata basis for any partial calendar month during the Sublease Term(s). All
payments of Rent are to be made to Sublessor at Sublessor's mailing address
specified in Section 1.1 or at such other places as Sublessor may from time to
time designate in writing in accordance with the notice provisions hereof. All
Rent due under this Sublease shall be made without demand, offset or deduction.
ARTICLE VI
REAL ESTATE TAXES AND OPERATING COSTS
6.1 SUBLESSEE'S SHARE OF TAXES
Pursuant to Section 5 of the Prime Lease, Sublessor is obligated to pay to
Prime Lessor "Tax Excess" (as defined therein) based on Tenant's Tax Base Year
Amount, which is the amount of aggregate Taxes (as therein defined) for Fiscal
Year 1992 and based on Tenant's Tax Percentage (as defined therein)
("Sublessor's Taxes"). "Sublessee's Taxes" shall be calculated in the same
manner as Sublessor's Taxes in accordance with Section 5 of the Prime Lease,
substituting aggregate Taxes for Fiscal Year 1995 as Sublessee's Tax Base Year
Amount and calculating Sublessee's Tax Percentage on the Rentable Square Feet of
the Premises then leased by Sublessee from Sublessor as of the first day of the
applicable tax year.
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Sublessee shall pay to Sublessor in monthly installments, within 15 days of
a written invoice therefor, one-twelfth (1/12) of Sublessee's Taxes. Such
written invoice shall be accompanied by the copy of the tax xxxx(s) and
statement(s) which are provided by Prime Lessor under Section 5(B)(1) of the
Prime Lease to the Sublessor. If the total of such monthly remittances is
greater than the Sublessee's Taxes for the next succeeding Fiscal Tax Year,
Sublessee may credit the excess against the next installment of Sublessee's
Taxes due to Sublessor under this Sublease, and if the total of such remittances
is less than the Sublessee's Taxes for the next succeeding Fiscal Tax Year,
Sublessee shall pay the difference to Sublessor at the Time of payment by
Sublessee of its next monthly installment of Sublessee's Taxes.
Sublessor and Sublessee further agree that any such amount of the Taxes
which relate to any period, part of which does not fall within the term of this
Sublease, shall be prorated between Sublessor and Sublessee so that Sublessee
shall be responsible for only that portion of the Taxes that is ratably
allocable to the part of such period that falls within the term of this
Sublease.
Upon or after default by Sublessor under the Prime Lease not cured within
applicable cure periods, if any payments made by Sublessee on account of
Sublessee's Taxes directly to Prime Lessor shall be deemed to have been paid to
or for the benefit of Sublessor hereunder. Simultaneously with its direct
payment on account of Taxes to Prime Lessor, Sublessee shall provide Sublessor
with a copy of such payments.
6.2 SUBLESSEE'S SHARE OF OPERATING EXPENSES
Pursuant to Section 6 of the Prime Lease, Sublessor is obligated to pay to
Prime Lessor, Operating Cost Excess (as defined therein) based on the aggregate
Operating Costs for Calendar Year 1991 as the Operating Cost Base Year Amount
and based on Tenant's Operating Cost Percentage (as defined therein)
("Sublessor's Operating Costs"). "Sublessee's Operating Costs" shall be
calculated in the same manner as Sublessor's Operating Costs, in accordance with
Section 6 of the Prime Lease, substituting aggregate Operating Costs for
Calendar Year 1994 as the Sublessee's Operating Cost Base Year Amount and
calculating Sublessee's Operating Cost Percentage based on the Rentable Square
Feet of the Premises then leased by Sublessee from Sublessor as of the first day
of each applicable Operating Cost Year.
Sublessee shall pay to Sublessor, in monthly installments, on or before the
first day of each calendar month, in the same manner the payments of Annual
Fixed Rent are to be made, one-twelfth (1/12) of the Sublessee's Operating
Costs. At the end of each calendar year, if the total of monthly remittances by
Sublessee is greater than the actual Sublessee's Operating Costs for such
calendar year, Sublessee may credit any excess against the next installment due
to the Sublessor, and if the total of monthly remittances by Sublessee is less
than the actual Operating Costs for such year, then Sublessee shall pay the
difference to Sublessor at the time the next monthly installment of Sublessee's
Operating Costs is due hereunder.
Sublessor and Sublessee further agree that any such amount or account of
Sublessee's Operating Costs which relates to a period, part of which does not
fall within the term of this Sublease, shall be prorated between Sublessor and
Sublessee so that Sublessee shall be responsible
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for only that portion of Operating Costs that is ratably allocable to the part
of such period that falls within the term of this Sublease.
Upon or after default by the Sublessor under the Prime Lease, not cured
within applicable cure periods, if any, any payments made by Sublessee on
account of Sublessee's Operating Costs so paid directly to Prime Lessor shall be
deemed to have been paid to or for the benefit of Sublessor hereunder.
Simultaneously with its direct payment on account of Sublessee's Operating
Costs, Sublessee shall provide Sublessor with a copy of such payment.
6.3 UTILITY COSTS
Sublessee shall be responsible for paying for all electricity and all other
utilities that are separately metered or submetered for the Premises; such
utility payments shall be made directly by Sublessee to the Sublessor.
Sublessor shall have the same rights and remedies for the nonpayment by
Sublessee of such utility costs that Sublessor has under this Sublease for
failure of Sublessee to pay Rent.
6.4 RIGHT TO NOTICE; RIGHT TO AUDIT
6.4.1 Sublessor agrees to provide to Sublessee copies of all notices,
statements of account or invoices with respect to Taxes and/or Operating Costs.
6.4.2 In the event that Sublessor does not exercise its right to review and/or
audit Operating Costs as set forth in the Prime Lease, Sublessee shall have the
right to request that Sublessor, at Sublessee's reasonable cost and expense,
review and/or audit such Operating Costs in the name of the Sublessor.
ARTICLE VII
SUBLESSOR'S SYSTEMS
7.1 SUBLESSOR'S SYSTEMS
Sublessee acknowledges and affirms that certain systems exist within the
Premises that are necessary for the continued operation of the Sublessor's
business. Such systems include, without limitation, voice and data
communication wiring connecting the third floor and the first floor and water
filtration equipment located on the sixth floor in the building management
janitorial closet as indicated on the attached Exhibit E (hereinafter
"Systems").
Sublessee agrees to use its best efforts not to modify or disturb the
Systems and to notify Sublessor in writing 24 hours in advance of any work to be
performed in the area of the Systems. Sublessee further agrees to allow
Sublessor reasonable access from time to time as set forth above to monitor and
maintain the Systems. In the event that Sublessee were to be responsible
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for any damage to the Systems due to its, its agents', its employees', or its
contractor's negligence, Sublessee shall repair the same at its reasonable cost
and expense.
ARTICLE VIII
INDEMNITY AND INSURANCE
8.1 INDEMNITY
8.1.1 Sublessee shall be solely responsible for and has the risk of loss of or
damage to any property owned by Sublessee, its employees and any subcontractor
it uses in the Leased Premises.
8.1.2 Except as otherwise provided herein, each party shall defend, indemnify
and hold harmless the other party, its employees, agents, subcontractors and co-
ventures, against any direct loss, damage, claim, suit, liability, judgment and
expense (including reasonable attorney's fees and other costs of litigation)
resulting from negligence of such party arising out of or in connection with the
implementation of the Sublease, including but not limited to injury, or death of
any persons or damage to or loss of any property.
Each party shall give the other party prompt notice of each claim or suit
which is or may be within this indemnity. Each party shall have the right to
defend any such claim or suit. Each party shall extend reasonable co-operation
to the other party at the other party's cost in the defense of any such claim or
suit. Neither party shall settle such claim or suit without the prior consent
of the other party, which consent shall not be unreasonably withheld.
8.1.3 Neither party shall be liable to the other party for any loss or damage
incurred by the other party's employees and/or agents in connection with the
implementation of the Sublease, unless and to the extent that such loss or
damage was caused by the willful misconduct or gross negligence of the other
party. For the purpose of this Article ``willful misconduct or gross
negligence'' means an act or omission not justifiable by any special
circumstances and done with the intent to cause the loss or damage, or
recklessly and with the knowledge that the loss or damage would probably result.
8.1.4 Notwithstanding anything to the contrary contained in this Sublease,
neither party shall be liable to the other party for any loss of production or
profit or any other indirect, consequential, special, or incidental damages. A
certificate of such insurance will be provided to Sublessor upon Sublessor's
request.
8.2 SUBLESSEE'S LIABILITY INSURANCE
Sublessee agrees to maintain in full force and effect from the date upon
which Sublessee first enters the Premises for any reason, until the date
Sublessee surrenders occupancy of the entire Premises, a policy of comprehensive
general public liability and property damage insurance under which Prime Lessor,
Sublessor (and such other persons as are in privity of estate with Prime Lessor
and Sublessor as may be set out in a notice to Sublessee from time to time),
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and Sublessee are named as insureds, and under which the insurer agrees to
indemnify and hold Prime Lessor, Sublessor, and those in privity of estate with
Prime Lessor and Sublessor, harmless from and against all direct cost, expense
and/or liability arising out of or based upon any and all claims, accidents,
injuries and damages occurring in or about the Premises in the broadest form of
such coverage from time to time available in Massachusetts. Each such policy
shall be non-cancelable and shall not be amended or changed with respect to
Prime Lessor, Sublessor, and their designees without ten (10) days' prior
written notice to said parties. The minimum amounts of liability of such
liability insurance shall be not less than a combined single limit of five
million dollars ($5,000,000) per occurrence and which, from time to time
hereafter, shall be no less than such higher amounts, if procurable, as may be
reasonably required by Prime Lessor under Section 9(H) of the Prime Lease.
8.3 INSURANCE POLICIES
All required insurance policies shall be obtained from responsible
companies qualified to do business in Massachusetts and in good standing therein
and shall be in a form and from a company reasonably satisfactory to Sublessor
and Prime Lessor. Sublessee shall furnish to Sublessor, and Prime Lessor, prior
to the commencement of the Sublease Term(s) and at least ten (10) days prior to
the expiration of each policy, all policies of insurance or renewal policies or
certificates of insurance, as may be required hereunder.
ARTICLE IX
DEFAULT
9.1 "EVENT OF DEFAULT" DEFINED
Any one or more of the following events shall constitute an "Event of
Default" by Sublessee:
(a) Failure to pay Rent or other charges when due within 10 days after
receipt of written notice thereof.
(b) Failure by Sublessee to cure, upon the delivery by Sublessor of a
default notice, any non-monetary default hereunder or under the Prime Lease,
within 30 days of the date of the default notice.
9.2 REMEDIES
Upon the occurrence and continuance of an Event of Default, Sublessor, upon
notice to Sublessee, may do any one or more of the following:
(a) Sublessor may exercise any of the Prime Lessor's rights under Section
13 of the Prime Lease.
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(b) Sublessor may exercise any other legal or equitable right or remedy
which it may have, including, without limitation, the rights and remedies set
forth in Sections 14(A).of the Prime Lease.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 WAIVER
Failure on the part of either party to complain of any action or non-action
on the part of the other, no matter how long the same may continue, shall never
be deemed to be a waiver by such party of any of its rights hereunder. Further,
it is agreed that no waiver of any of the provisions hereof by either party
shall be construed as a waiver of any of the other provisions hereof and that a
waiver at any time of any of the provisions hereof shall not be construed as a
waiver at any subsequent time of the same provisions. The consent to or
approval of any action by either party requiring such consent or approval shall
not be deemed to waive or render unnecessary such consent to or approval of any
subsequent similar act by such party.
10.2 YIELD UP
In the event the Sublessee elects not to exercise its rights under an
Agreement with the Prime Lessor of even date at the termination of the Sublease
Terms, Sublessee and all persons claiming through Sublessee shall without the
necessity of notice, surrender the Premises and all keys (or lock combinations)
to the Premises; and shall remove all trade fixtures and personal property
whether or not bolted or otherwise attached, and all of Sublessee's signs
wherever located. Any property not so removed shall be deemed abandoned, shall
at once become the property of Sublessor (or Prime Lessor, as the case may be)
and may be disposed of in such manner as Sublessor (or Prime Lessor, as the case
may be) shall see fit upon five days notice to Sublessee (which notice may be
given in accordance with the terms of this Sublease and Sublessee agrees that
notice so given, notwithstanding that the Term of this Sublease has terminated
and/or that Sublessee has abandoned or vacated the Premises, shall satisfy such
notice requirements); and Sublessee shall pay the cost of such removal and
disposal to Sublessor (or Prime Lessor, as the case may be) upon demand.
10.3 INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Sublease, or the application thereof to
any person or circumstance, shall, to any extent, be invalid or unenforceable,
the remainder of this Sublease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Sublease shall be valid and be enforced to the fullest extent permitted by
law.
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10.4 REAL ESTATE ADVISOR
Sublessee represents and warrants that it has not directly or indirectly
dealt, with respect to the Premises with any real estate advisor other than
XxXxxx & Xxxx and Xxxxxxxx & Grew (the "Advisors"), whose fees shall be paid by
Sublessor. Sublessee shall save harmless and indemnify Sublessor against any
claims by anyone other than the Advisors with whom it has so dealt or by whom
its attention was called to the Premises for a commission or fee arising out of
the execution and delivery of this Sublease or out of negotiations between
Sublessor and Sublessee with respect to the Premises.
10.5 WHEN SUBLEASE BECOMES BINDING
Employees or agents of Sublessor have no authority to make or agree to make
a lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Sublessor and Sublessee.
10.6 PROVISIONS BINDING, ETC.
Except as herein otherwise expressly provided, the terms hereof shall be
binding upon and shall inure to the benefit of the heirs, legal representatives,
successors and assigns, respectively, of Sublessor and Sublessee. Each term and
each provision of this Sublease to be performed by Sublessee shall be construed
to be both a covenant and a condition. The reference contained to the
successors and assigns of Sublessee is not intended to constitute a consent to
assignment by Sublessee, but has reference only to those instances in which
Sublessor shall have given its consent to a particular assignment if such
consent is required by the provisions of this Sublease. The persons executing
this Sublease on behalf of each party warrant that each party is duly organized
under the laws of The Commonwealth of Massachusetts and such persons are
authorized to execute and deliver this Sublease on behalf of the Sublessor and
the Sublessee respectfully.
10.7 NO RECORDING
Sublessee agrees not to record this Sublease, but the parties agree to
execute and deliver a non-recordable instrument in form and substance reasonably
satisfactory to both parties and any lenders or financial institutions extending
credit to either party.
10.8 NOTICES
Whenever by the terms of this Sublease notice, demand or other
communication shall or may be given, either to Sublessor or to Sublessee, the
same shall be adequately given if in writing and delivered by hand or sent by
registered or certified mail, postage prepaid or by a nationally recognized
overnight courier. All such notices shall be deemed delivered upon the earlier
to occur of (a) the date when actually received or refused by the other party;
(b) the third business
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day after deposit in the United States mail; (c) the next business day after
delivery to a recognized overnight delivery service;
If intended for Sublessor, addressed to it at the mailing address set forth
on the first page of this Sublease (or to such other address or addresses as may
from time to time hereafter be designated by Sublessor by like notice).
If intended for Sublessee, addressed to:
Parametric Technology Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Att: Xxxxxxxx Xxxxxxx
with a copy to:
Parametric Technology Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Att: Xxxxxx X. Xxxxxx, Corporate Counsel
If intended for the Prime Lessor, addressed to:
Prospect Hill Executive Office Park
c/o The Xxxxxx Companies
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Att: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Xxxxx X. Xxxxxx, Esq.
c/o The Xxxxxx Companies, Ltd.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(or to such other address or addresses as may from time to time hereafter be
designated by Sublessee or Prime Lessor by like notice).
10.9 PARAGRAPH HEADINGS
The paragraph headings throughout this instrument are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation, construction, or meaning
of the provisions of this Sublease.
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10.10 INTEGRATION; AMENDMENT
This Sublease together with all the Exhibits attached hereto supercedes all
other agreements or memoranda written or oral between the parties and cannot be
modified or altered except by written agreement signed by both Sublessor and
Sublessee.
10.11 RIGHT OF FIRST OFFER
10.11.1 Sublessor assigns to Sublessee all of its right, title, and interest,
to Sublessor's rights under Section 31 of the Prime Lease.
10.11.2 Sublessor additionally agrees to offer first to Sublessee any and all
space in the Building currently occupied by Sublessor on the following terms:
(a) the first (1st) floor Sublessor space at a rental rate equal to 85% of the
market rate (such market rate to be equal to the market rate of the other space
offered pursuant to the option set forth in this Subsection on the terms and
conditions set forth in this Sublease) prior to offering any such space to
anyone and (b) at 95% of the market rate on an "as-is" basis for all other
space. For the purposes of this Sublease, "market rate" shall mean the
prevailing rents for comparable rental property in the Route 128 area in effect
as of the commencement of the proposed term, including, without limitation,
consideration of the then current allowances for tenant improvements and other
concessions granted by landlords, as determined by Sublessor. The termination
date for any space taken pursuant to this Subsection shall be co-terminus with
Sublessee's Sublease term.
If Sublessor and Sublessee cannot agree upon the market rate, then the
determination as to market rate shall, upon election of either the Sublessor or
the Sublessee, be submitted to arbitration, as follows: market rate shall be
determined by impartial arbitrators, one to be chosen by the Sublessor, one to
be chosen by Sublessee and one to be selected if necessary, as below provided.
The unanimous written decision of the two first chosen (without the selection
and participation of the third arbitrator) or otherwise the average of the
amount determined by each of the three arbitrators chosen and selected as
aforesaid, shall be conclusive and binding upon Sublessor and Sublessee.
Sublessor and Sublessee shall each notify the other of its chosen arbitrator
within ten (10) days following the call for arbitration and, unless such two
arbitrators shall have reached a unanimous decision within thirty days after
their designation, they shall so notify the Boston Office of the American
Arbitration Association and request an impartial third arbitrator (who shall be
an impartial real estate appraiser dealing with commercial properties) to
determine the market rate applicable to the option space. Such third arbitrator
and the first two chosen arbitrators shall render their decision within thirty
days of the appointment of the third arbitrator. The decision of the panel
shall be final and binding as to market rate. Sublessor and Sublessee shall
divide equally all expenses of the arbitrators and arbitration.
If the market rate has not been established before the commencement of
Sublessee's obligation to pay rent based upon such market rate, Sublessee shall
pay rent under the lease based upon the market rate designated by Sublessor,
less ten percent (10%), until either (1) agreement of the parties as to the
market rate or (2) decision of the arbitrators, as the case may be, at which
time
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Sublessee shall pay any underpayment of rent to Sublessor, or Sublessor shall
refund any overpayment of rent to Sublessee.
Sublessee shall have a period of ten (10) business days from the receipt of
such written notice of offer to exercise said right by providing written notice
to Sublessor of its exercise. In the event Sublessee does not exercise such
right, Sublessee's right of first offer as to other space shall not be affected.
Should Sublessee elect to exercise any right to additional space the parties
will enter into an amendment to this Sublease within 60 days after such
election.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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EXECUTED in any number of counterpart copies, each of which counterpart
copies shall be an original for all purposes, as of the day and year first above
written.
Sublessor: Interleaf, Inc.
By /s/ G. Xxxxxx Xx Xxxxx
------------------------------
Name: G. Xxxxxx Xx Xxxxx
Title: Ex. V.P., C.F.O.
Sublessee: Parametric Technology Corporation
By /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
Name: C. Xxxxxxx Xxxxxxxx
Title: President and Chief
Operating Officer
