SUBLEASE
This Sublease (this "Sublease") is entered into as of the 11th day of April,
1997, by and between OPEN MARKET, INC., a Delaware corporation (the "Landlord"),
having a business address of 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
and HPR INC., a Delaware corporation (the "Tenant"), having a business address
of 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
1. Premises: Landlord hereby leases the Premises (as hereinafter
defined) to Tenant, and Tenant hereby rents from Landlord said Premises, upon
the terms and conditions hereinafter set forth. The Premises consist of
approximately 20,069 square feet located on the third (3rd) floor of the
building commonly known as The Riverview Complex, 245 First Street, Cambridge,
Massachusetts (the "Building"), which Premises are shown outlined on the floor
plan annexed hereto and made a part hereof by reference.
Subject to and in accordance with the terms and provisions of Section
14.2 of the Prime Lease (as hereinafter defined), as an appurtenance to the
Premises, beginning on the Commencement Date and ending as of the Parking
Termination Date (as defined in the Prime Lease), as and to the extent received
by the Landlord from the Prime Landlord, Landlord shall provide to Tenant, and
Tenant agrees to pay for, Garage Parking Permits (as defined in the Master
Lease) for twenty-eight (28) automobiles in the parking garage of the Building.
The obligation of the Landlord to provide such Garage Parking Permits is
expressly subject to the receipt of said Garage Parking Permits from the Prime
Landlord in accordance with the terms and provisions of the Prime Lease. Without
limitation, Tenant shall pay the Parking Charges (as defined in the Prime Lease)
assessed with respect to each of the Garage Parking Permits received by Tenant,
on a monthly basis, as additional rent, in accordance with the requirements set
forth in Section 14.2(b) of the Prime Lease. The use of the garage by the
Tenant, and the use of the Garage Parking Permits, shall be subject to and in
accordance with all of the terms, conditions, and restrictions set forth in the
Prime Lease, including, without limitation, the provisions of Article 14
thereof.
2. Sublease: Reference is hereby made to that certain Lease, between
Riverview Building Combined Limited Partnership, as landlord (the "Prime
Landlord"), and Open Market, Inc., as tenant, originally dated March 9, 1995, as
modified by that certain Letter Agreement, dated March 14, 1995, that certain
Letter Agreement, dated April 18, 1995, that certain Amendment No. 1 to Lease,
dated April 15, 1995 and that certain Amendment No. 2 to Lease, dated October
__, 1995 (collectively, the "Prime Lease"). The Premises subleased hereunder
comprise a portion of the space leased to Landlord, as tenant, under the Prime
Lease. Except as otherwise expressly provided herein, this Sublease is subject
to all of the terms, conditions and provisions of the Prime Lease, and Tenant
shall (a) be bound with respect to the Premises by all of the terms, covenants
and conditions of the Prime Lease and (b) assume as to the Premises all
obligations and liabilities of Landlord, as tenant, under the Prime Lease,
including, without limitation, all obligations of maintenance, repair and
indemnity. Tenant shall not do or permit to be done anything, or omit to do
anything, or permit to be omitted to be done anything, which is, or with the
giving of notice or the passage of time or both would be, a default under the
Prime Lease or could cause such a default. Tenant agrees to abide by and perform
all of the covenants and conditions of the Prime Lease as if the same were fully
set forth herein to the extent that said covenants and conditions pertain to the
Premises and/or the occupancy and use thereof by Tenant. Tenant agrees, with
respect to the Premises, to be bound by and to perform and to comply with the
Prime Lease as if it were the "tenant" thereunder and as if the "premises" as
demised under the Prime Lease were the Premises demised under this Sublease. If
the Prime Lease shall terminate for any reason prior to the termination or
expiration of this Sublease, this Sublease shall terminate as if such date were
the termination date of this Sublease.
3. Term: The term of this Sublease shall commence on April 15, 1997,
and, unless earlier terminated as herein provided, shall end on January 31,
2001.
4. Rent: During the term of this Sublease, commencing on July 15, 1997,
and thereafter throughout the term hereof, Tenant shall pay to Landlord, without
offset, setoff or deduction, of any kind, base rent at the per annum rate of
Four Hundred Twenty-One Thousand, Four Hundred Forty-Nine and 00/100 Dollars
($421,449.00), payable on the first day of each month in monthly installments of
Thirty-Five Thousand, One Hundred Twenty and 75/100 Dollars ($35,120.75) and
proportionately at the applicable rate for any partial month during the term.
Commencing on the Commencement Date and thereafter throughout the term of this
Sublease, Tenant shall also pay Landlord, on the first day of each month an
amount equal to Tenant's Share (as hereinafter defined) of amounts payable by
Landlord to Prime Landlord pursuant to the Master Lease on account of additional
rent, including, without limitation, all amounts payable under Articles 5, 6 and
7 of the Prime Lease on account of Operating Costs and Taxes.
As used in this Sublease, the "Tenant's Share" is 24.77%, which is the
ratio that the approximate rentable area of the Premises bears to 81,020, the
area leased by the Landlord, as tenant, pursuant to the Prime Lease.
5. AS-IS CONDITION; Construction: Tenant accepts the Premises in their
condition AS IS at the commencement of the term of this Sublease and Landlord
shall have no obligation to prepare the Premises, or to make any improvements
therein. If Tenant desires to make any additions, alterations, improvements,
installations, demolition, remodeling, repainting, decoration or other similar
activities in or to the Premises, in each instance it shall first obtain the
written consent of Landlord thereto, such consent not to be unreasonably
withheld. All such alterations, additions and improvements shall conform to and
be governed by the provisions of the Prime Lease, including, without limitation,
the provisions of Article 11 of the Prime Lease. In connection with any work
performed by Tenant in the Premises, Tenant shall maintain the insurance
coverages required under Section 12.1 of the Prime Lease, naming as an
additional insured party Landlord as well as Prime Landlord. Tenant shall pay,
as additional rent, one hundred percent (l00%) of any increases in real estate
taxes on the Building which may result from alterations, additions or
improvements to the Premises made by Tenant.
Tenant agrees to pay promptly when due the entire cost of any work done
on the Premises by Tenant, its agents, employees or independent contractors and
not to cause or permit any liens for labor or materials performed or furnished
in connection therewith to attach to the Premises or the Building or the Project
(as said term is defined in the Prime Lease) and immediately to discharge any
such liens which may so attach.
6. Use: The Premises may be used only as permitted pursuant to
Subsection 1(j) and Article 9 of the Prime Lease and for no other purpose or
purposes.
7. Utilities: Tenant shall pay for all utilities consumed by it in the
Premises, such payments to be made directly to the utility company if the
utility is metered separately to the Premises. If not separately metered, then
Tenant shall pay to Landlord on account of utilities, Tenant's Share of payments
made by Landlord to the suppliers of the same, or such greater or lesser
percentage as Landlord reasonably determines to be appropriate if Tenant uses a
greater or lesser pro-rata quantity of utilities than Landlord and other
occupants of Landlord's premises.
Landlord shall not in any way be liable or responsible to Tenant for
any loss, damage or expense which Tenant may sustain or incur if, during the
term of this Sublease, either the quantity or the character of the utilities
servicing the Premises is changed or is no longer available or suitable for
Tenant's requirements due to a fact or cause beyond Landlord's control. Tenant
at its expense shall purchase and install all lamps, tubes, bulbs, starters and
ballasts on the Premises.
8. HVAC Charges: Tenant agrees to pay all after-hours HVAC charges
payable with respect to the Premises pursuant to Section 10.1(b) of the Prime
Lease.
9. Assignment and Subletting: Tenant shall not assign, sublease,
mortgage, pledge, encumber, sell, convey, subject to a security interest,
license or otherwise transfer, whether voluntarily, involuntarily, by operation
of law or otherwise, the Premises, this Sublease or the term and estate hereby
granted or any interest herein or therein, in whole or in part, and neither the
Premises nor any part thereof will be used or occupied or permitted to be used
or occupied by anyone other than Tenant or for any use or purpose other than a
use which is permitted hereunder or be offered or advertised for assignment or
subletting without, in each instance, having first received the express written
consent of Landlord and Prime Landlord, such consent by Landlord not to be
unreasonably withheld. The provisions of the foregoing sentence shall apply to a
transfer (by one or more transfers) of forty-nine percent (49%) of the common
stock of Tenant as if such transfer of the Tenant's stock were an assignment of
this Sublease. Whether or not Prime Landlord or Landlord consents, no
assignment, sublease, etc. will release or alter the liability of Tenant to pay
rent and perform all of Tenant's other obligations under this Sublease. The
acceptance of rent by Landlord from any person other than Tenant is not a waiver
by Landlord. Consent to one assignment, sublease, etc. will not be deemed to be
consent to any subsequent assignment, sublease, etc. If Tenant or any assignee
or sublessee, defaults under this Sublease, Landlord may proceed directly
against the Tenant or said assignee or sublessee, without proceeding or
exhausting its remedies against the other. After any assignment, Landlord may
consent to a subsequent assignment, sublease, etc. of or amendments to this
Sublease, without notifying Tenant or any other person, without obtaining
consent thereto, and without relieving Tenant of its liabilities under this
Sublease. As additional rent, Tenant shall reimburse Landlord promptly for
reasonable legal and other expenses incurred by Landlord in connection with any
requests by Tenant for consent to assignment or subletting. The provisions of
Article 17 of the Prime Lease are hereby made expressly applicable to the
Tenant, so that any assignment, sublease or other transfer shall be subject to
the conditions, provisions and requirements of Article 17 and Landlord shall
have against Tenant all the rights and remedies with respect to any assignment
or subletting which are afforded to the Prime Landlord pursuant to said Article
17.
10. Maintenance and Repairs: It is understood that Prime Landlord has
certain obligations to repair and maintain the Premises and the Building as set
forth in Section 10.1 and Articles 15 and 16 of the Prime Lease. Landlord shall
have no obligation or liability to Tenant in the event that Prime Landlord fails
to perform any such obligations. Tenant agrees that it will keep the Premises
neat and clean and maintain the Premises in good order, condition and repair,
excepting only for ordinary wear and tear, and damage by fire and other casualty
and as a consequence of the exercise of the power of eminent domain. Tenant
shall surrender the Premises and all alterations, improvements, and additions
thereto at the end of the term of this Sublease in good order, condition and
repair, first removing all goods and effects of Tenant and repairing any damage
caused by such removal and restoring the Premises and leaving them clean and
neat. Tenant shall not permit or commit any waste, and Tenant shall be
responsible for the cost of repairs which may be necessary by reason of damages
to common areas in the Building or to the Project by Tenant, Tenant's
contractors or Tenant's invitees.
11. Landlord's Self-Help: If Tenant shall at any time default in the
performance of any obligation under this Sublease, Landlord shall have the
right, but shall not be obligated, to enter upon the Premises and to perform
such obligation on behalf of the Tenant. In performing such obligation, Landlord
may make any payment of money or perform any other act. All sums so paid by
Landlord (together with interest at the per annum interest rate of the prime
rate as set from time to time by The First National Bank of Boston plus three
hundred (300) basis points) and all necessary incidental costs and expenses in
connection with the performance of any such act by Landlord, shall be deemed to
be additional rent under this Sublease and shall be payable to Landlord
immediately on demand. Landlord may exercise the foregoing rights without
waiving any other of its rights or releasing Tenant from any of its obligations
under this Sublease.
12. No Damage: Landlord shall not be liable to Tenant for any
compensation or reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from the necessity of Landlord or Prime Landlord or
their respective agents entering the Premises for any purpose in the Prime Lease
authorized, or for repairing the Premises or any portion of said Building
however the necessity may occur. In case Landlord (or Prime Landlord) is
prevented or delayed from making any repairs, alterations or improvements, or
furnishing any services or performing any other covenant or duty to be performed
on its part, by reason of any cause reasonably beyond Landlord's control,
including, without limitation, strike, lockout, breakdown, accident, order or
regulation of or by any Governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or because of war or other
emergency, or for any cause due to any act or neglect of Tenant or Tenant's
servants, agents, employees, licensees or any person claiming by, through or
under Tenant, neither Landlord nor Prime Landlord shall be liable to Tenant
therefor, nor, except as expressly otherwise provided in this Sublease, shall
Tenant be entitled to any abatement or reduction of rent by reason thereof, nor
shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the
Premises.
13. Indemnity and Insurance:
13.1 To the maximum extent this agreement may be made effective
according to law, Tenant agrees to indemnify and save harmless Landlord from and
against all claims of whatever nature arising from any act, omission or
negligence of Tenant, or Tenant's contractors, licensees, invitees, agents,
servants or employees, or arising from any accident, injury or damage whatsoever
caused to any person, or to the property of any person, occurring after the date
that possession of the Premises is first delivered to Tenant and until the end
of the Term of this Sublease and thereafter so long as Tenant is in occupancy of
any part of the Premises, in or about the Premises or arising from any accident,
injury or damage occurring outside the Premises but within the Building or on
the Project, where such accident, injury or damage results, or is claimed to
have resulted, from an act or omission on the part of Tenant or Tenant's agents
or employees, licensees, invitees or contractors.
Without limiting the foregoing, Tenant will indemnify both Landlord and
Prime Landlord, and hold Landlord and Prime Landlord harmless from all
Liabilities (as defined in the Prime Lease) arising from or in connection with:
acts or omissions of Tenant or its Affiliates (as defined in the Prime Lease) or
the conduct of Tenant's business; injuries, death or damage occurring in or on
the Premises (except if and to the extent caused directly by Landlord's or Prime
Landlord's negligence or willful misconduct in breach of this Sublease);
Tenant's breach of or default under this Sublease; claims made by Tenant's
Affiliates against the Landlord or Prime Landlord if Tenant has waived those
claims in this Sublease or Landlord or Prime Landlord would not be responsible
to Tenant for such claims if such claims were made by Tenant hereunder; and
claims made by or Liabilities to Tenant's Affiliates or other persons if
Landlord or Prime Landlord, as applicable, declines to consent to any act, event
or document requiring Landlord's or Prime Landlord's consent under this
Sublease.
The foregoing indemnity and hold harmless agreements shall include
indemnity against all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon, and the defense
thereof with counsel acceptable to Landlord.
l3.2 Tenant agrees to maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the term of this
Sublease, and thereafter, so long as Tenant is in occupancy of any part of the
Premises, the policies of general liability and property damage insurance of the
type and in the amounts and subject to the conditions which are required of
under Section 12.1 of the Prime Lease which policies shall name Landlord and
Prime Landlord as insured parties. Tenant agrees that, as a condition to first
entering upon the Premises, Landlord shall be furnished with a duplicate
original or certificate of the insurance required to be maintained by Tenant
under this Section 13.2.
13.3 To the maximum extent that this agreement may be made effective
according to law, Tenant agrees to use and occupy the Premises and to use such
other portions of the Building and the common areas of the Project as Tenant is
here given the right to use at Tenant's own risk; and Landlord shall have no
responsibility or liability for any loss of or damage to fixtures or other
personal property of Tenant. The provisions of this Section shall be applicable
from and after the execution of this Sublease and until the end of the term of
this Sublease, and during such further period as Tenant may use or be in
occupancy of any part of the Premises or of said Building.
13.4 To the maximum extent that this agreement may be made effective
according to law, Tenant agrees that Landlord shall not be responsible or liable
to Tenant, or to those claiming by, through or under Tenant, for any loss or
damage that may be occasioned by or through the acts or omissions of persons
occupying adjoining premises or any part of premises adjacent to or connecting
with the Premises or any part of said Building, or otherwise, or for any loss or
damage resulting to Tenant or those claiming by, through or under Tenant, or its
or their property, from the breaking, bursting, stopping or leaking of electric
cables and wires, and water, gas, sewer or steam pipes. Without limiting the
foregoing, the Tenant hereby agrees that all of the waivers, limitations, and
exculpations set forth in Section 13.2 of the Prime Lease are hereby
incorporated herein, and are made by and on behalf of the Tenant as if fully and
completely set forth herein.
14. Fire Damage and Taking: If during the term hereof the Premises or
the Building shall, in whole or in part, be damaged or destroyed by fire or
other casualty or taken by eminent domain, then Tenant may elect to terminate
this Sublease by notice to such effect given to Tenant and thereupon this
Sublease shall terminate as if the date of termination were the date of
expiration hereof. In the event that either Prime Landlord or Landlord
terminates the Prime Lease pursuant to Section 15.2 thereof, this Sublease shall
terminate as of the date of such termination of the Prime Lease. If, as a result
of any damage by fire or other casualty or taking by eminent domain, the
Premises are rendered untenantable in whole or in part, and this Sublease is not
terminated as aforesaid, the base rent payable hereunder shall be equitably and
proportionately abated to the extent the Premises are not useable by Tenant, it
being understood that Landlord has no obligation to make any effort to so
restore. All proceeds, income, rent, awards and interest in connection with any
Condemnation will belong to Prime Landlord and/or Landlord, whether awarded as
compensation for diminution of value to the leasehold improvements, or the
unexpired portion of this Lease, or otherwise. Tenant waives all claims against
Prime Landlord and/or Landlord and the condemning authority with respect
thereto, but nothing in this Section prevents Tenant from bringing a separate
action against the condemning authority for moving costs or for lost goodwill
(as long as this separate action does not diminish Prime Landlord's and/or
Landlord's recovery).
15. Default: If (a) Tenant shall fail to pay the fixed rent, additional
rent or other charges for which provision is made herein on or before the date
on which the same become due and payable, and the same continues for five (5)
days after notice from Landlord thereof, or
(b) Landlord having rightfully given the notice specified in
subdivision (a) above more than twice in a period of 365 days, Tenant shall
thereafter in the same 365-day period fail to pay the fixed rent, additional
rent or other charges on or before the date on which the same becomes due and
payable, or
(c) Tenant shall cause a default under the Prime Lease, or
(d) Tenant shall fail to perform or observe any other terms or
condition contained in this Sublease and Tenant shall not commence to cure such
failure within twelve (12) business days after notice from Landlord to Tenant
thereof and promptly and diligently complete the curing of the same, or
(e) The estate hereby created shall be taken on execution or by other
process of law and such taking shall not be discharged within ten (10) days, or
if Tenant shall be insolvent, or if any assignment or arrangement shall be made
of the property of Tenant for the benefit of creditors, or if a receiver,
guardian, conservator, trustee in bankruptcy or other similar officer shall be
appointed to take charge of all or any substantial part of Tenant's property by
a court of competent jurisdiction and such proceeding is not dismissed within
sixty (60) days after such appointment, or if a petition shall be filed for the
reorganization of Tenant under any provisions of the Bankruptcy Code now or
hereafter enacted and such proceeding is not dismissed within sixty (60) days
after it is begun, or if Tenant shall file a petition for such reorganization,
or for arrangements under any provisions of the Bankruptcy Code now or hereafter
enacted and providing a plan for a debtor to settle, satisfy or extend the time
for payment of debts,
-- then, and in any of said cases (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a former
instance), Landlord lawfully may, immediately or at any time thereafter, and
without demand or notice, enter into and upon the Premises or any part thereof
in the name of the whole and repossess the same as of Landlord's former estate,
and expel Tenant and those claiming through or under Tenant and remove its or
their effects without being guilty of any manner of trespass, and without
prejudice to any remedies which might otherwise be used for arrears of rent or
preceding breach of covenant, and, upon entry as aforesaid, Landlord shall have
the right, by suitable notice to Tenant, forthwith to terminate this Sublease;
and Tenant covenants and agrees, notwithstanding any entry or re-entry by
Landlord, whether by summary proceedings, termination, or otherwise, to pay and
be liable for, on the days originally fixed herein for the payment thereof,
amounts equal to the several installments of rent and other charges reserved as
would, under the terms of this Sublease, become due if this Sublease had not
been terminated or if Landlord had not entered or re-entered, as aforesaid, and
whether the Premises be relet or remain vacant, in whole or in part, or for a
period less than the remainder of the Term of this Sublease, and for the whole
thereof, but, in the event the Premises be relet by Landlord, Tenant shall be
entitled to a credit in the net amount of rent and other charges received by
Landlord in reletting, after deduction of all expenses incurred in reletting the
Premises (including, without limitation, remodeling costs, brokerage fees and
the like), and in collecting the rent in connection therewith, in the following
manner:
Amounts received by Landlord after reletting shall first be applied
against such Landlord's expenses, until the same are recovered, and until such
recovery, Tenant shall pay, as of the day when a payment would fall due under
this Sublease, the amount which Tenant is obligated to pay under the terms of
this Sublease (Tenant's liability prior to any such reletting and such recovery
not in any way to be diminished as a result of the fact that such reletting
might be for a rent higher than the rent provided for in this Sublease); when
and if such expenses have been completely recovered, the amounts received from
reletting by Landlord as have not previously been applied shall be credited
against Tenant's obligations as of each day when a payment would fall due under
this Sublease, and only the net amount thereof shall be payable by Tenant. No
credit of any kind shall be due for any period after the date when the term of
this Sublease is scheduled to expire according to its terms.
As an alternative, at the election of Landlord, Tenant will, upon such
termination, pay to Landlord, as liquidated damages, such a sum as at the time
of such termination represents the amount of the excess, if any, of the fixed
rent and additional rent which would have accrued to Landlord under this
Sublease for the remainder of the Term of this Sublease if the Lease terms had
been fully complied with by Tenant, discounted at eight percent (8%) per annum
to the date of termination, over and above the then cash rental value (in
advance) of the Premises for the balance of the term of this Sublease.
Nothing contained in this Sublease shall limit or prejudice the right
of Landlord to prove for and obtain in proceedings for bankruptcy or insolvency
by reason of the termination of this Sublease, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or not the
amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
16. Miscellaneous.
16.1 Failure on the part of Landlord to complain of any action or
non-action on the part of Tenant no matter how long the same may continue, shall
never be a waiver by Landlord of any of the Landlord's rights hereunder.
Further, no waiver at any time of any of the provisions hereof by Landlord shall
be construed as a waiver of any of the other provisions hereof and 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 or approval of Landlord
to or of any action by Tenant requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's consent or approval to or of
any subsequent similar act by Tenant. No payment by Tenant or acceptance by
Landlord of a lesser amount than shall be due from Tenant to Landlord shall be
treated otherwise than as a payment on account. Acceptance by Landlord of a
check for a lesser amount with endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without prejudice
of any other rights or remedies which Landlord may have against Tenant.
16.2 No act or thing done by Landlord during the term of this Sublease
shall be deemed an acceptance of a surrender of the premises and no agreement to
accept such surrender shall be valid, unless in writing signed by Landlord. No
employee of Landlord or of Landlord's agent shall have any power to accept the
keys to the Premises prior to termination of the Lease and delivery of keys to
any employee or agent shall not operate as termination of the Lease or a
surrender of the Premises.
16.3 Tenant warrants and represents that Tenant has not dealt with any
Broker other than the Columbia Group in connection with this Sublease and hereby
agrees to indemnify and hold harmless Landlord with respect to all claims for
brokerage commissions or fees arising out of or resulting from this Sublease,
excepting only claims made by the Columbia Group.
16.4 If any term or provision of this Sublease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, 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 in force to the fullest extent
permitted by law.
16.5 Tenant, subject to the terms and provisions of this Sublease and
to Tenant's timely paying rent and observing and keeping or performing all of
the terms and provisions of this Sublease on Tenant's part to be observed, kept
and performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the term of this Sublease without hindrance or
objection by any persons claiming under the Landlord to have title to the
Premises superior to Tenant. It is understood and agreed that this covenant and
any and all other covenants of Landlord contained in this Sublease shall be
binding upon Landlord and Landlord's successors only with respect to breaches
occurring during Landlord's and Landlord's successor's respective ownership of
Landlord's interest hereunder. In no event shall Landlord ever be liable to
Tenant for any loss of business or any other direct, indirect, special or
consequential damages suffered by Tenant for whatever cause.
16.6 The obligations of this Sublease shall enure to the benefit of and
be binding upon the successors and assigns, respectively, of Landlord and
Tenant. Each term and each provision of this Sublease to be performed by Tenant
shall be construed to both a covenant and a condition.
16.7 Notices shall be deemed given when sent by recognized overnight
delivery service such as Federal Express, or registered or certified mail,
postage prepaid: if to the Landlord at:
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
and if to the Tenant at:
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
All such notices shall be effective when deposited with said delivery
services or in the United States mails within the continental United States.
Either party may change the address to which notices are to be sent to
it by notice to the other party given under this Section 16.7.
16.8 Tenant will promptly furnish to Landlord, or to anyone whom
Landlord designates a statement, in writing of the status of any matter
pertaining to this Sublease, including without limitation, acknowledgment (to
the extent to which) each party is in compliance with its obligations under the
terms of this Sublease.
16.9 Any insurance carried by either party with respect to the Premises
or property therein or thereon shall if it can be so written without additional
premium or with additional premium which the other party agrees to pay, include
a clause or endorsement denying to the insurer rights of subrogation against the
other party to the extent rights have been waived by the insured prior to
occurrence of injury or loss. Each party, notwithstanding any provisions of this
Sublease to the contrary, hereby waives any rights of recovery against the other
for injury or loss due to assets covered by such insurance.
16.10 This Lease shall be governed exclusively by the provisions hereof
and by the law of the Commonwealth of Massachusetts, as the same may from time
to time exist.
16.11 Any holding over by Tenant at the expiration of the term of this
Sublease shall be treated as a tenancy at sufferance at one hundred and fifty
percent (150%) of the rents and other charges herein (pro rated on a daily
basis) and shall otherwise be on the terms and conditions set forth in this
Sublease as far as applicable. In the event that Tenant enters into a direct
agreement with Prime Landlord relating to the Premises for a term which
commences on the next day following the expiration of the term of this Sublease,
then Tenant's remaining in the Premises shall not be considered a holding over
for purposes of this Section 16.11.
16.12 Employees or agents of Landlord 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, reservation of, or option for the Premises.
This document shall become effective and binding only upon the execution and
delivery hereof by both Landlord and Tenant, and if the approval of Prime
Landlord is necessary thereto, upon the approval of Prime Landlord.
WITNESS the execution under seal as of this 11th day of April, 1997.
OPEN MARKET, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: Senior Vice President and Chief Financial Officer
Hereunto duly authorized
HPR INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its: Chief Operating Officer
Hereunto duly authorized
