Exhibit 10.4
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SUBLEASE
BETWEEN
PRAXIS INTERNATIONAL, INC,
AND
LYCOS, INC.
TABLE OF CONTENTS
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Demise and Term; Conditions of Sublease; Parking............................ 1
Subordinate to Main Lease; Quiet Enjoyment.................................. 1
Incorporation by Reference.................................................. 2
Performance by Sublessor; Signage Undertakings.............................. 2
No Breach of Main Lease..................................................... 3
No Privity of Estate........................................................ 3
Indemnity................................................................... 4
Releases.................................................................... 4
Rent........................................................................ 4
Late Charges................................................................ 5
Utilities and Other Charges................................................. 5
Security Deposit............................................................ 5
Use; Construction........................................................... 5
Condition of Subleased Premises............................................. 6
Consents and Approvals...................................................... 7
Termination of Main Lease................................................... 7
Assignment and Subletting................................................... 7
Alterations................................................................. 7
Brokerage................................................................... 8
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Surrender................................................................... 8
No Waiver................................................................... 8
Successors and Assigns...................................................... 8
Liability of Sublessor...................................................... 8
Interpretation.............................................................. 8
Consent of Landlord Under Main Lease........................................ 9
Showers/Cafeteria........................................................... 9
Renewal Option.............................................................. 9
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SUBLEASE
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SUBLEASE dated as of the 4th day of December, 1996, between Praxis
International, Inc., a Massachusetts corporation having an office at 000 Xxx
Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, 00000 ("Sublessor"), and Lycos,
Inc., a Massachusetts corporation having an office at 000 Xxxxxx Xxxx Xxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx ("Sublessee").
1. Demise and Term; Conditions of Sublease; Parking. Sublessor hereby
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leases to Sublessee, and Sublessee hereby hires from Sublessor, that certain
real property containing approximately 16,775 square feet of space in the
premises located on the second floor of 000 Xxx Xxxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, as more particularly described in Exhibit A annexed hereto and
made a part hereof (the "Subleased Premises"), together with all appurtenances,
rights, privileges and easements pertaining to the Subleased Premises. The
Subleased Premises are a portion of the premises leased to Sublessor under the
Main Lease (as hereinafter defined). The term of this Sublease shall commence on
the earlier of (i) the day which is forty-five (45) days after the Agreed
Approvals, as defined below, are obtained, or (ii) the Substantial Completion
Date, as defined in Section 3(B)(iii), below (the "Commencement Date") and shall
end on October 31, 1999 (the "Expiration Date").
As used herein, "Agreed Approvals" shall mean the following: (a) Sublessee
has received the consent of Landlord (as defined in Section 2) to building plans
for Sublessee Improvements, as defined in Section 14, and (b) Sublessee has
obtained all required building permits to construct the Sublessee Improvements.
The Sublessor shall provide sixty-five (65) unassigned parking spaces in
the parking lot for the Complex (as defined in the Main Lease), on the terms and
conditions set forth in Section 2.4 of the Lease.
2. Subordinate to Main Lease; Quiet Enjoyment. This Sublease is subject
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and subordinate to (a) the lease (the "Lease") dated June 14, 1995, between 000
Xxx Xxxxxxxxxxx Xxxx Limited Partnership, as landlord, and Sublessor, as tenant,
as amended by that certain First Amendment to Lease (the "First Amendment")
dated October 26, 1995, and a Second Amendment to Lease dated as of April 24,
1996 (the "Second Amendment") (the Lease and First and Second Amendments are
together referred to herein as the "Main Lease"), and (b) the matters to which
the Main Lease is or shall be subject and subordinate. A true and complete copy
of the Main Lease is annexed hereto as Exhibit B and made a part hereof. Said
Main Lease has been assigned to OCP Limited Partnership, the current landlord
(said current landlord and any successor landlord are hereinafter referred to as
the "Landlord").
Subject to the matters set forth above, upon Sublessee's faithfully
performing the terms, conditions, and covenants hereof, Sublessee may quietly
and peacefully enjoy the Subleased Premised during the term hereof.
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3. Incorporation by Reference.
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A. The terms, covenants and conditions of the Main Lease are
incorporated herein by reference so that, and except to the extent that such
incorporated provisions are inapplicable to or modified by the provisions of
this Sublease, all of the terms, covenants and conditions of the Main Lease
which bind or inure to the benefit of the landlord thereunder shall with respect
to the Subleased Premises hereunder, in respect of this Sublease, bind or inure
to the benefit of Sublessor, and all of the terms, covenants and conditions of
the Main Lease which bind or inure to the benefit of the tenant thereunder, in
respect of this Sublease, bind or insure to the benefit of Sublessee, with the
same force and effect as if such incorporated terms, covenants and conditions
were completely set forth in this Sublease, and as if the words "landlord" and
"tenant" or words of similar import, wherever the same appear in the Main Lease,
were construed to mean, respectively, "Sublessor" and "Sublessee" in this
Sublease, and as if the words "premises" and "demised premises" or words of
similar import, wherever the same appear in the Main Lease, were construed to
mean "Subleased Premises" in this Sublease, and as if the word "lease" or words
of similar import, wherever the same appear in the Main Lease, were construed to
mean this "Sublease". Notwithstanding the foregoing, any time limits not
specifically set forth in this sublease, and contained in the Main Lease for the
giving of notices, making of demands or performing of any act, condition or
covenant on the part of the tenant thereunder, or for the exercise by the tenant
thereunder of any right or remedy, are changed for the purposes of incorporation
therein by reference by shortening the same in each instance by five (5) days,
so that in each instance Sublessee shall have five days less time to observe or
perform hereunder than Sublessor has as the tenant under the Main Lease, but in
no event less than five (5) days.
B. The following provisions of the Main Lease shall not be
incorporated herein by reference and shall not apply to this Sublease:
(i) Sections 11.11, 11.13, 11.14 and 11.15 of the Lease in their
entirety, and Exhibit B, "Work Letter" and Schedule 1 referred to therein;
(ii) Notwithstanding any provision of the Main Lease, it is the
intention of the parties hereto that under no circumstances shall Sublessee have
any right to renew or extend the term of this Sublease or to sublet any portion
of the Subleased Premises or to assign this Sublease by operation of law or
otherwise, except as set forth herein.
4. Performance by Sublessor, Signage Undertakings. Any obligation of
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Sublessor which is contained in this Sublease by incorporating the provisions of
the Main Lease may be observed or performed by Sublessor using reasonable
efforts to cause the landlord under the Main Lease to observe and/or perform the
same, and Sublessor shall have a reasonable time to enforce its rights to cause
such observance or performance. In the event Landlord, after notice and efforts
by Sublessor hereunder, does not perform a material obligation and such failure
of Landlord hereunder has a material adverse effect on the use and enjoyment of
the Subleased Premises, Sublessor agrees at Sublessee's request, to commence
legal action (the "Landlord Litigation") against Landlord seeking to cause such
performance and obtain legal damages for Sublessee's benefit. Sublessee agrees
to pay
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all reasonable costs and expenses associated with such legal action to Sublessor
within ten (10) days of receipt of an invoice therefor. Sublessor shall not be
required to perform any obligation, and Sublessor shall have no liability to
Sublessee for the failure to perform any obligation, except for Sublessor's
obligation to use reasonable efforts, upon receipt of written request of
Sublessee, to cause the landlord under the Main Lease to observe and/or perform
its obligations under the Main Lease and to commence and pursue the Landlord
Litigation, as set forth above. Sublessee shall not in any event have any
rights in respect of the Subleased Premises greater than Sublessor's rights
under the Main Lease. Sublessor shall not be responsible for any failure or
interruption, for any reason whatsoever (other than solely by reason of
Sublessor's negligence), of the services or facilities that are appurtenant to,
or supplied at or to, the Subleased Premises, including, without limitation,
electricity, heat, air conditioning, water, elevator service and cleaning
service, if any; and no failure to furnish, or interruption of, any such
services or facilities shall give rise to any (a) abatement or reduction of
Sublessee's obligations under this Sublease, (b) constructive eviction, whether
in whole or in part, or (c) liability on the part of Sublessor, unless such
failure or interruption is caused solely by Sublessor's negligence. Sublessor
shall offer Sublessee a right of first refusal on space adjacent to the
Subleased Premises which becomes available for sublease on the same terms as any
offer made for such space by a third party by giving Sublessee written notice
thereof, and Sublessee shall respond to such offer indicating its acceptance or
rejection thereof within ten (10) days of such written notification.
Sublessor represents that to its knowledge, without specific investigation
or inquiry, the heating, ventilating, and air-conditioning system serving the
Subleased Premises ("HVAC System") is in good working order. As used herein, "to
its knowledge" shall mean to the knowledge of the following officers of
Sublessor: Xxxxxxx X. Xxxx and Xxxxxxx Xxxxxx. Sublessor agrees upon written
notice from Sublessee to promptly bring to the attention of the Landlord any
defect, interruption in service, or other failure of the HVAC System and to use
diligent efforts to cause Landlord to honor its obligations as to such HVAC
System under the Main Lease.
Sublessor agrees to use all diligent efforts to cause Landlord to provide
graphics and signage for Sublessee, on both the first and second floor lobbies,
and on the "tombstone" sign in front of the building, subject to Landlord's
approval and existing building standards for such signage.
5. No Breach of Main Lease. Sublessee and Sublessor shall not do or
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permit to be done any act or thing which will constitute a breach or violation
of any term, covenant or condition of the Main Lease by the tenant thereunder,
whether or not such act or thing is permitted under the provisions of this
Sublease.
6. No Privity of Estate. Nothing contained in this Sublease shall be
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construed to create privity of estate or of contract between Sublessee and the
landlord under the Main Lease.
7. Indemnity. Sublessee and Sublessor shall each indemnify and hold
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the other harmless from and against all claims, actions, losses, costs, damages,
expenses and liabilities, which the other may incur by reason of (a) any
accidents, damages or injuries to persons or property occurring in, on or about
the Subleased Premises due to the other party's operations, (b) any breach or
default
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hereunder, (c) any work done in or to the Subleased Premises, or (d) any act,
omission or negligence the other.
8. Releases. Sublessee hereby releases the landlord under the Main
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Lease or anyone claiming through or under the landlord under the Main Lease by
way of subrogation or otherwise, to the extent that Sublessor released the
landlord under the Main Lease and/or the landlord under the Main Lease was
relieved of liability or responsibility pursuant to the provisions of the Main
Lease.
9. Rent.
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A. Sublessee shall pay to Sublessor rent ("Fixed Rent") in the
amount fisted on Exhibit A attached hereto. Fixed Rent shall be paid monthly in
advance on the first day of each month during the term of this Sublease. Fixed
Rent, the Operating Expense Escalation Charge, as defined in Section 3.3 of the
Main Lease, and all other amounts ("Additional Charges") payable by Sublessee to
Sublessor under the provisions of this Sublease or the provisions of the Main
Lease shall be paid promptly when due, without notice or demand therefor (unless
Sublessor receives notice or demand therefor from the landlord under the Main
Lease), and without deduction, abatement, counterclaim or set off of any amount
for any reason whatsoever. Fixed Rent and Additional Charges shall be paid to
Sublessor in lawful money of the United States at the address of Sublessor set
forth at the beginning of this Sublease, or to such other person and/or at such
other address as Sublessor may from time to time designate by .written notice to
Sublessee. Sublessee's share of all Additional Charges due under the Main Lease
shall be thirty-eight and eighty-nine hundredths percent (38.89 %) of the amount
for which Sublessor is responsible under the Main Lease. No payment by Sublessee
or receipt by Sublessor of any lesser amount than the amount stipulated to be
paid hereunder shall be deemed other than on account of the earliest stipulated
Fixed Rent or Additional Charges; nor shall any endorsement or statement on any
check or letter be deemed an accord and satisfaction, and Sublessor may accept
any check or payment without prejudice to Sublessor's right to recover the
balance due or to pursue any other remedy available to Sublessor. Without
limiting the foregoing, the parties acknowledge that in addition to Fixed Rent
Sublessee is responsible for an electricity charge, presently set at $0.75 per
rentable square foot, which shall be paid in equal monthly installments, as set
forth in the Main Lease.
B. In addition to Fixed Rent, Sublessee agrees to pay to
Sublessor thirty-eight and eighty-nine hundredths percent (38.89 %) of the
amount of Sublessor's liability for the Tax Escalation Charge, appropriately
prorated to reflect the term of this Sublease, pursuant to and as defined in
Section 3.2 of the Lease. The proportionate liability of Subtenant for the Tax
Escalation Charge and all Additional Charges is determined by dividing the
16,775 square feet subleased by Sublessee by the total of 43,135 square feet
leased by Sublessor. Sublessor agrees to furnish to Sublessee a copy of any
applicable information to verify Sublessee's responsibility for the Tax
Escalation Charges. Sublessee shall pay the Tax Escalation Charge to Sublessor
on the same terms as required of Sublessor under the Main Lease.
C. Sublessor represents that Landlord has informed it that the
actual tax charges and Operating Expenses for the whole 000 Xxx Xxxxxxxxxxx Xxxx
building are as follows:
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1995 Operating Expenses: $515,510.10 (37.77 % to Sublessor,
Fiscal 1996 Real Estate Taxes: $89,363.93 (included in Sublessor's rent
10. Late Charges. If Sublessee fails to pay any Fixed Rent or Additional
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Charges (including the Tax Escalation Charge) within three (3) days of the date
due, Sublessee shall pay interest on such amount at the Default Interest Rate,
as that term is defined in Section 9.6 of the Main Lease, from the date on which
such amount was due, and shall also pay a late charge of 3 % of the amount
overdue, as provided in Section 9.6 of the Main Lease. Such interest shall be
payable on the first day of the following month, and in default of payment of
any such interest, Sublessor shall have (in addition to all other rights and
remedies) the same rights and remedies as Sublessor has for the nonpayment of
Fixed Rent. Nothing contained herein shall be deemed to extend the date on which
Fixed Rent and Additional Charges are due.
11. Utilities and Other Charges.
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A. At the present time Landlord supplies utilities to the
Subleased Premises. Sublessee shall be responsible for the prompt payment when
due for electricity and such other utility service required by Sublessee which
are in addition to utilities now serving the Subleased Premises and not
separately metered.
B. Other charges payable by Sublessor under any provision of the
Main Lease which is incorporated by reference in this Sublease shall be paid
pro-rata by Sublessee in accordance with the provisions of the Main Lease. The
parties agree that Sublessee's pro-rata share of such charges is thirty-eight
and eighty-nine hundredths percent (38.89 %).
12. Security Deposit. The Sublessee has paid to the Sublessor herewith a
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security deposit, by check subject to collection, in the amount stated on
Exhibit C. The Sublessor may commingle such deposit with its other funds and may
apply such deposit upon default of the Sublessee hereunder. Provided the
Sublessee, is not then in default hereunder, the Landlord shall return the then
remaining portion of the security deposit to the Sublessee within thirty (30)
days after the expiration of this Lease. In the event the Sublessor applies such
funds, the Sublessee shall pay to the Sublessor as additional rent within ten
(10) days after invoice therefor, the amount of the security deposit applied by
the Sublessor, such that the balance of the security deposit shall be restored
to its original amount.
13. Use; Construction. Sublessee shall use and occupy the Subleased
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Premises only for the purposes that are expressly set forth in the Main Lease.
Sublessee shall comply with (a) the Main Lease, (b) any certificate of occupancy
relating to the Subleased Premises, (c) all present and future laws, statutes,
ordinances, orders, rules, regulations and requirements of all Federal, state
and municipal governments asserting jurisdiction over the Subleased Premises and
(d) all requirements applicable to the Subleased Premises of the board of fire
underwriters and/or the fire insurance rating or similar organization performing
the same or similar functions, except as provided herein.
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14. Condition of Subleased Premises. Sublessor shall have no obligation
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to furnish, render or supply any work, labor, services, fixtures, equipment,
decorations or other items to make the Subleased Premises ready or suitable for
Sublessee's occupancy, except that it shall be responsible for construction of
demising walls. In making and executing this Sublease, Sublessee has relied
solely on such investigations, examinations and inspections as Sublessee has
chosen to make or have made. Sublessee acknowledges that Sublessor has afforded
Sublessee the opportunity for full and complete investigations, examinations and
inspections.
Sublessee accepts the Subleased Premises in an "AS IS" condition.
Sublessee intends to perform certain constriction in the Subleased Premises (the
"Sublessee Improvements"). Sublessee shall be responsible for any costs
associated with such construction of Sublessee Improvements, including, without
limitation, architectural fees, and the cost of entrance doors to the reception
area, except that Sublessor agrees to be responsible for the cost of
construction of demising walls. Sublessor shall be responsible for demising the
Subleased Premises in such a way as to give Sublessee elevator identity. AU
construction undertaken shall be subject to the terms of, and in accordance with
the provisions of, the Main Lease, as well as of this Sublease. Without
limiting the foregoing, Sublessee agrees to obtain approval of final plans for
construction from (i) the Landlord, OCP Limited Partnership, notwithstanding
that certain construction may not require such approval under the Main Lease if
performed by Sublessor, and (H) Sublessor, which approval by Sublessor will not
be unreasonably withheld or delayed.
Sublessee agrees to make diligent efforts to cause such construction
to be completed as soon as is reasonably possible. Such construction shall be
deemed to be substantially completed on the date (the "Substantial Completion
Date") that all such construction has been completed except for items of work
and adjustment of equipment and fixtures which can be completed after occupancy
has been taken by Sublessee without causing substantial interference with
Sublessee's use of the Subleased Premises (i.e. so-called "punch list" items).
In the event that Sublessor and Sublessee disagree as to whether the Substantial
Completion Date has occurred, Design Sciences of Concord, Massachusetts shall
reasonably make such determination in good faith, which determination shall be
conclusive.
Sublessee may enter the Subleased Premises upon receipt of Landlord's
approval of this Sublease for the purpose of installing Tenant's systems,
wiring, furnishings, and trade fixtures, provided, however, that upon any such
entry Tenant shall be subject to all of the provisions of this Sublease, except
the obligation to pay Fixed Rent, Taxes, and Additional Charges.
15. Consents and Approvals. In any instance when Sublessor's consent or
----------------------
approval is required under this Sublease, Sublessor's refusal to consent to or
approve any matter or thing shall be deemed reasonable if such consent or
approval has not been obtained from the landlord under the Main Lease. If
Sublessee shall seek the approval or consent of Sublessor and Sublessor shall
fail or refuse to give such consent or approval, Sublessee shall not be entitled
to any damages for any withholding or delay of such approval or consent by
Sublessor, it being intended that Sublessee's sole remedy shall be an action for
injunction or specific performance and that such remedy shall be
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available only in those instances where Sublessor shall have expressly agreed in
writing not to withhold or delay its consent unreasonably.
16. Termination of Main Lease. If for a reason specified in the Main
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Lease (including, without limitation, the exercise by Sublessor of its right to
terminate the Main Lease pursuant to any provision of the Main Lease), the term
of the Main Lease shall terminate prior to the expiration of this Sublease, this
Sublease shall thereupon be terminated and Sublessor shall not be liable to
Sublessee by reason thereof. Provided Sublessee is not then in default,
Sublessor shall refund to Sublessee any prepaid rent prorated to the date of
termination, and any security held by Sublessor due to Sublessee.
Notwithstanding the foregoing, Sublessor agrees not to voluntarily terminate the
Main Lease during the term of this Sublease.
17. Assignment and Subletting. Sublessee shall not, by the sale of all
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or substantially all of its assets, operation of law or otherwise, assign,
sell, mortgage, pledge or in any other manner transfer or encumber this Sublease
or any interest therein, or sublet the Subleased Premises or any pail or parts
thereof, or grant any concession or license or otherwise permit occupancy of all
or any part of the Subleased Premises by any person, without the prior written
consent of Sublessor, which will not be unreasonably withheld or delayed.
Neither the consent of transfer, concession, license or use, nor any references
in this Sublease to assignees, Sublessees, mortgagees, pledgees, transferees,
concessionaires, licensees, or users, shall in any way be construed to relieve
Sublessee of the requirement of obtaining the prior written consent of Sublessor
to any further assignment, subletting or use or to the making of any assignment,
subletting, mortgage, pledge, transfer, concession or license with respect to
this Sublease or all or any part of the Subleased Premises. If Sublessor
consents to any assignment of this Sublease, the assignee shall execute and
deliver to Sublessor an agreement in form and substance satisfactory to
Sublessor whereby the assignee shall assume all of Sublessee's obligations under
this Sublease. Notwithstanding any assignment, subletting or transfer,
including, without limitation, any assignment, subletting, transfer or use
permitted or consented to by Sublessor, the original Sublessee named herein and
any other person who at any time was Sublessee and any guarantor of Sublessee's
obligations shall remain fully liable under this Sublease.
18. Alterations. Notwithstanding any provision of this Sublease or the
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Main Lease to the contrary, Sublessee shall not make, cause, suffer or permit
the making of any alteration, change, replacement, installation or addition in
or to the Subleased Premises without obtaining the prior written consent of
Sublessor in each instance.
19. Brokerage. Sublessor is represented by Fallon, Xxxxx & X'Xxxxxx
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and shall pay all brokerage fees due to that firm. Sublessee is represented by
Xxxxx Xxxxxx Xxxxx & Partners and Xxxxxxx Commercial Group, and shall pay all
brokerage fees due those firms.
20. Surrender. Sublessee shall, on the expiration or earlier termination
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of this Sublease, comply with all the provisions of the Main Lease relating to
the surrender of the Subleased Premises at the expiration of the term of the
Main Lease. Sublessee agrees to reirnburse Sublessor for all costs and expenses
incurred in removing and storing Sublessee's property, or repairing any damage
to the
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Subleased Premises caused by or resulting from Sublessee's failure to comply
with the provisions of this Section 20. The provisions of this Section 20 shall
survive the expiration of this Sublease.
21. No Waiver. Sublessor's receipt and acceptance of Fixed Rent or
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Additional Charges, or Sublessor's acceptance of performance of any other
obligation by Sublessee, with knowledge of Sublessee's breach of any provision
of this Sublease, shall not be deemed a waiver of such breach. No waiver by
Sublessor of any term, covenant or condition of this Sublease shall be deemed to
have been made unless expressed in writing and signed by Sublessor.
22. Successors and Assigns. The provisions of this Sublease, except
----------------------
as herein otherwise specifically provided, shall extend to, bind and inure to
the benefit of the parties hereto and their respective legal representatives,
heirs, successors and permitted assigns. In the event of any assignment or
transfer of the leasehold estate under the Main Lease, the transferor or
assignor, as the case may be, shall be and hereby is entirely relieved and freed
of all obligations under this Sublease from the date of the transfer forward.
23. Liability of Sublessor. Sublessor, its officers, directors
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and shareholders, disclosed and undisclosed, shall have no personal liability
under this Sublease.
24. Interpretation. Irrespective of the place of execution or
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performance, this Sublease shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts applicable to agreements made and
to be performed within the Commonwealth of Massachusetts. The captions,
headings and titles, if any, in this Sublease are solely for convenience of
reference and shall not affect its interpretation. This Sublease shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Sublease to be drafted. Each covenant,
agreement, obligation or other provision of this Sublease binding upon Sublessee
shall be deemed and construed as a separate and independent covenant of
Sublessee, not dependent on any other provision of this Sublease unless
otherwise expressly provided. AU terms and words used in this Sublease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require. The
word "person" as used in this Sublease shall mean a natural person or persons,
as partnership, a corporation or any other form of business or legal association
or entity.
25. Consent of Landlord Under Main Lease. This Sublease shall have
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no effect until (i) the landlord under the Main Lease shall have given its
written consent (if required) hereto in accordance with the terms of the Main
Lease and (ii) Sublessee shall have received a letter from Landlord, in form
reasonably satisfactory to it, that Landlord will accept back the Subleased
Premises with the Sublessee Improvements and also will allow Sublessee to remain
in the Subleased Premises under this Sublease, notwithstanding a default of
Sublessor. If the Landlord under the Main Lease does not give its consent to
this Sublease and provide such a letter to Sublessee within fifteen (15) days
after the date hereof, (a) Sublessor shall not be obligated to take any action
to obtain such consent, (b) this Sublease shall be deemed null and void and of
no effect, and (c) if Sublessee is then in possession of all or any part of the
Subleased Premises, Sublessee shall immediately quit and surrender to Sublessor
the
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Subleased Premises, shall remove all of its property and repair all damage
caused by such removal and restore the Subleased Premises to the condition in
which it was prior to such occupancy. Sublessor agrees to use its reasonable
efforts to obtain the consent of the Landlord to this sublease.
26. Showers/Cafeteria. Sublessor agrees that Sublessee shall have the
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ability and right, subject to the terms and provisions of the Lease, to utilize
the showers and cafeteria now existing in the building located at 000 Xxx
Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx.
27. Renewal Option. In the event that Sublessor determines that it will
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exercise the option to extend set forth in Section 11.13 of the Lease,
Sublessor shall so advise Sublessee in writing (the "Extension Notice") on or
before August 1, 1998, and Sublessee shall advise Sublessor whether or not it
wishes to renew this Sublease for the period of extension of the Main Lease by
giving written notice to Sublessor on or before September 1, 1998 (the "Response
Notice"). A failure to respond by Sublessee shall be deemed to be notice that
Sublessee does not wish to extend the term of this Sublease. Prior to giving
such Extension Notice, Sublessor shall contact Landlord and use reasonable
efforts to attempt to agree with Landlord as to the Fair Rental Value, as
defined in the Lease, for the extension term. If the Fair Rental Value has been
so agreed, Sublessor shall advise Sublessee in the Extension Notice of such
agreement and, if it has not been agreed, Sublessor shall indicate, without
having any liability for such information to Sublessee, what rental levels, if
any, have been suggested by Landlord and, based solely on inquiry of at least
one commercial real estate broker, what it has been advised is a fair market
rent. If Sublessee gives Sublessor an affirmative Response Notice, Sublessor
shall have by the giving of such notice extended the term of this Sublessee
(subject to Sublessor's ability to consummate the extension of the Main Lease)
upon the financial terms on which the Main Lease is extended. Nothing herein
shall be deemed to preclude Sublessor from negotiating a new lease with Landlord
subject to the provisions of the next succeeding sentence, below.
Whether or not Sublessor undertakes to extend the Lease, or to terminate,
or to negotiate a new lease, Sublessor shall not rent or otherwise occupy the
Subleased Premises if Sublessee indicates to Sublessor in writing on or before
September 1, 1998 that it wishes to remain in such premises after the term
hereof; except, however, that if Sublessee has given or been deemed to give a
negative Response Notice, and Sublessor nevertheless extends the Lease pursuant
to Section 11.13 thereof, Sublessor may rent, occupy, sublet, or otherwise lease
and control the Subleased Premises.
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IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as
of the day and year first above written.
WITNESS: PRAXIS INTERNATIONAL, INC.
By:
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Authorized Officer:
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Print Name and
Title:
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WITNESS: LYCOS, INC.
By:
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Authorized Officer:
----------------
Print Name and
Title:
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EXHIBIT B
WORK LETTER - Praxis International, Inc.
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000 Xxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx
This work letter (this "Work Letter") forms a part of the Lease between 000
Xxx Xxxxxxxxxxx Xxxx Limited Partnership and Praxis International, Inc. (the
"Lease") to which it is attached as Exhibit B. Nothing in this Work Letter is
intended to limit the application of Section 4 of the Lease to the work to be
performed by or on behalf of the Tenant hereunder. Capitalized terms defined in
the Lease shall have the same meaning where used herein.
1. Plans and Specifications. The Tenant agrees to prepare, at the
------------------------
Tenant's sole cost and expense, preliminary plans for the construction and
layout of the improvements which the Tenant desires to have performed in the
Premises. Notwithstanding the foregoing, the Landlord shall pay the
Architectural Improvement Allowance to the Tenant within thirty (30) days of
presentation of an invoice for the engineered mechanical and electrical
architectural drawings in an amount at least equal to the amount of the
Architectural Improvement Allowance to the Landlord, provided however, that the
Architectural Improvement Allowance shall not be paid prior to the Landlord's
approval of Tenant's Plans (as hereinafter defined). The Tenant shall submit
the Tenant's preliminary plans to the Landlord for Landlord's approval no later
than June 30, 1995 (the "Preliminary Plans Submission Date"), and the Landlord
shall either approve or disapprove Tenant's preliminary plans within three (3)
business days following the date of submission. At the Tenant's sole cost and
expense, the Tenant shall cause Tenant's preliminary plans to be revised in a
manner sufficient to remedy the Landlord's objections and/or respond to the
Landlord's concerns and for such plans, including engineered mechanical and
electrical drawings ('Tenant's Plans') to be redelivered to the Landlord in no
event later than July 7, 1995 ("Final Plans Submission Date") and the Landlord
shall either approve or disapprove Tenant's revised plans within three (3)
business days following the date of submission. Time is of the essence with
respect to the preparation and submission of Tenant's Plans. Tenant's Plans
shall be stamped by a Massachusetts registered architect and engineer, such
architect and engineer being subject to the Landlord's approval, and shall
comply with all applicable laws, ordinances and regulations (including, without
limitation, the applicable requirements of the Americans with Disabilities Act
of 1990, and the regulations promulgated thereunder) and shall be in a form
satisfactory to appropriate governmental authorities responsible for issuing
permits, approvals and licenses required for construction. The Landlord has
heretofore been furnished early drafts of Tenant's preliminary plans and,
provided Tenant's preliminary plans furnished under this Exhibit B are
consistent therewith, the Landlord shall not unreasonably withhold its consent
thereto. If Tenant's Plans shall not be approved by the Landlord by July 12,
1995 (the "Final Plans Date"), the Landlord shall have the right, without
limitation of other rights or remedies, to terminate this Lease by giving notice
thereof to the Tenant at any time after the Final Plans Date, provided, however,
and subject, nevertheless, to the provisions set forth in Section 5 hereof, that
the Tenant may elect to defer the
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effective termination date by notice given to the Landlord within five (5) days
of Landlord's notice of termination, provided, further, that such notice by
the Tenant shall contain an indication of the reasonable likelihood of the
Tenant's Plans being approved by the Landlord prior to the effective termination
date, as deferred. Upon such termination, this Lease shall cease and come to
an end in accordance with the terms of such notice and without further
obligation or liability on the part of either party, except as follows: The
Tenant shall pay to the Landlord the damages suffered by the Landlord by reason
of such termination including, without limitation, an amount equal to the
Landlord's out-of-pocket expenses incurred in connection with this Lease,
including, without limitation, brokerage and legal fees, together with any
amount required to be paid pursuant to Section 4 below, through the effective
termination date.
2. Construction of Premises and Disbursement of Improvement Allowance.
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The Landlord shall use all reasonable efforts to substantially complete the work
described as items 1, 2, 3, 6, 7, 8 and 9 on Schedule 1 hereto ("Landlord's
Premises Work") on or prior to June 30, 1995 or such later date upon which the
Tenant's Plans shall have been approved by the Landlord (the "Anticipated
Delivery Date"). Landlord's Premises Work, collectively with items 4, 5 and 10
on Schedule I hereto, shall be deemed "Landlord's Work". The Landlord shall use
all reasonable efforts to coordinate the performance of the work described as
item 5 of Landlord's Work ("Landlord's HVAC Work") with Xxxxxxxx & Associates
and to substantially complete Landlord's HVAC Work on or prior to August 15,
1995. In addition, the Landlord shall solicit a bid for Landlord's HVAC Work
from the subcontractor performing HVAC work for the Tenant in the Premises but
the Landlord shall be under no obligation to accept such bid. The Tenant shall
use all reasonable efforts to prepare the Premises in accordance with Tenant's
Plans ("Tenant's Work"), and Landlord shall use all reasonable efforts to
substantially complete the work described in item 4 of Landlord's Work on or
before the Rent Commencement Date. Upon receipt of notice that a government
official considers work of the type described in item 10 of Landlord's Work to
be required for occupancy approval of the Premises, and the Landlord's
satisfaction that such work is indeed necessary, the Landlord shall diligently
arrange to perform such work in a timely manner. With respect to the work
described as item 10 of Landlord's Work, the Landlord shall share with Xxxxxxxx
& Associates such information as the Landlord deems necessary, including
information regarding the general scope of such work and anticipated schedule
for completion of such work; provided, however, that such information may change
from time to time. The Landlord shall reimburse the Tenant for the costs
incurred by the Tenant with respect to the performance of Tenant's Work
("Tenant's Work Costs") up to the Basic Improvement Allowance, less the cost of
performing items 7 and 8 of Landlord's Work, which the Landlord and the Tenant
agree shall not exceed Seven Thousand Dollars ($7,000.00) ("Available Basic
Improvement Allowance"). However, if the Tenant incurs Tenant's Work Costs which
exceed the Available Basic Improvement Allowance, the Landlord shall reimburse
the Tenant for such excess Tenant's Work Costs up to but not exceeding an
additional Four Dollars ($4.00) per square foot of Rentable Floor Area of the
Premises ("Excess Improvement Allowance"), and Annual Fixed Rent under this
Lease shall be adjusted as contemplated in the Lease. If Tenant's Work Costs
exceed the aggregate of the Available Basic Improvement Allowance and the Excess
Improvement Allowance (collectively, the "Total Improvement Allowance"), the
Tenant shall be entirely responsible for such excess. The
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Total Improvement Allowance shall be payable by the Landlord to the Tenant (or,
at Landlord's election, directly to Tenant's contractor) upon written
requisition to the Landlord in installments according to reasonable construction
disbursement procedures, as Tenant's Work progresses. In any case, prior to
payment of any such installment the Tenant shall deliver to the Landlord a
written request, which request shall be given no more frequently than once every
thirty (30) days, for such disbursement, which shall be accompanied by: (i)
invoices for Tenant's Work covered by any previous requisition; and (ii) a
certificate signed by the Tenant's architect and an officer of the Tenant
certifying that Tenant's Work represented by the aforementioned invoices has
been completed substantially in accordance with Tenant's Plans and that the
remaining portion of the Total Improvement Allowance is sufficient to pay in
full for the completion of Tenant's Work. If at any time, the amount of the
Total Improvement Allowance is insufficient to pay for the remaining amount of
Tenant's Work, the Tenant shall pay from its own funds all further sums
necessary to enable the Tenant and the Tenant's architect to again make the
certification required under (ii) above.
3. Substantial Completion of Landlord's Work. The Landlord's Work shall
-----------------------------------------
be deemed to be substantially completed notwithstanding that there remain to be
completed minor items of construction, mechanical and electrical adjustment or
other work which the Landlord is able to complete after the Tenant has occupied
the Premises without unduly interfering with the Tenant's use thereof.
Additionally, the Landlord's Work shall be deemed substantially completed
notwithstanding any condition (i) due to the Tenant's failure, direct or
indirect, in whole or in part in submitting plans or other construction
information to the Landlord as necessary or in executing approvals and work
letters when required by the Landlord; (ii) caused in whole or in part by any
other delay and/or default of the Tenant or Tenant's contractors, including,
without limitation, delay in the installation or furnishing of communications,
data processing or other service and/or equipment by public utility companies or
other entities; or (iii) due to special work or materials (e.g., long lead-time
for delivery of specified materials).
4. Tenant's Delay.
--------------
(a) Any delay that shall occur in Landlord's performance of Landlord's
Work as the result of any of the following matters shall be deemed a 'Tenant's
Delay':
(i) any request by the Tenant that the Landlord delay in the
commencement or completion of Landlord's Work for any
reason;
(ii) any change by the Tenant in any of Tenant's Plans which in
Landlord's reasonable and absolute judgment will delay the
substantial completion of Landlord's Work;
(iii) failure to submit preliminary plans by the Preliminary Plans
Submission Date, or failure to submit Tenant's Plans by the
Final Plans Submission Date, or to obtain Landlord's
approval thereof by
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the Final Plans Date, or to execute a work letter if
reasonably requested by the Landlord;
(iv) any special requirements of Tenant's Plans not in conformity
with Landlord's plan submission standards;
(v) any other act or omission of the Tenant or its officers,
agents, servants or contractors;
(vi) any other act or omission of the Tenant or its officers,
agents, servants or contractors;
(vii) any required coordination with the Tenant's contractors,
vendors or other suppliers which in Landlord's reasonable
judgment causes a Tenant Delay; or
(viii) any reasonably necessary rescheduling of the sequence of any
of Landlord's Work due to, without limitation, any of the
causes for delay referred to in clauses (i), (ii), (iii),
(iv), (v), (vi) and (vii) of this Section 4(a).
A Tenant's Delay shall not render the Lease invalid, nor be construed in any way
so as to extend the term of the Lease, nor in any way modify the Tenant's
obligation hereunder to pay Annual Fixed Rent, Additional Rent, the Tax
Escalation Charge, the Operating Expense Escalation Charge and other charges
commencing on the Commencement Date. The Tenant shall pay additional costs to
the Landlord if such additional costs are in whole or in part, directly or
indirectly the result of such delay, failure or omission of the Tenant. As used
in this paragraph, the phrase 'additional costs to the Landlord' shall mean the
excess over what would have been Landlord's total costs of completing Landlord's
Work in preparation of the Premises for Tenant's occupancy had there not
occurred such delay, failure or omission on the part of the Tenant.
(b) If any delay in the substantial completion of Landlord's Work is the
result of External Causes, and such delay would not have occurred but for one or
more Tenant's Delay described in paragraph (a) of this Section 4, such delay
shall be deemed added to Tenant's Delay described in that paragraph.
(c) Subject to Landlord's other rights and remedies under prevailing
circumstances, the Commencement Date shall occur notwithstanding the Landlord's
failure to complete the Landlord's Work, if such failure is due to delays caused
by Tenant's Delay or External Causes.
5. Landlord's Delay. Any delay that shall occur in Tenant's performance
----------------
of Tenant's Work as the result of any of the following matters shall be deemed
a "Landlord's Delay":
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(a) the Landlord's failure to substantially complete (x) the
performance of Landlord's Premises Work prior to the
Anticipated Delivery Date or (y) item 5 of Landlord's Work
prior to August 15, 1995;
(b) any required coordination with the Landlord's contractors,
vendors or other suppliers in the performance by Landlord of
the work described as item 5 on Schedule I hereto, which is
necessary due to the Landlord's negligence or wilful
misconduct; or
(c) failure to approve or disapprove, as appropriate, Tenant's
preliminary plans or final plans within the time frames
specified in Section 1 hereof.
If Landlord's Delay causes the completion of Tenant's Work to be delayed
beyond October 1, 1995, then the Rent Commencement Date shall be postponed for
the period of any such delay.
6. Conclusiveness of Landlord's Performance. The Tenant shall have no
----------------------------------------
claim that the Landlord has failed to perform any of Landlord's Work, unless the
Tenant shall have given the Landlord notice, not later than thirty (30) days
following the Commencement Date, of respects in which Landlord has not performed
Landlord's Work. Except for Landlord's Work, the Premises are being leased in
their condition "as is", "where is" without representation or warranty by the
Landlord.
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SCHEDULE 1
DESCRIPTION OF LANDLORD'S WORK
1. Removal of certain interior walls located within the Premises as specified
by the Tenant in Tenant's Plans.
2. Removal of existing carpet located within the Premises.
3. Removal of xxxx ducting from the Premises.
4. Installation of showers in a location within the common area of the
Building to be selected by the Landlord, which showers shall be available
for use by all tenants of the Building.
5. Work on the Building's HVAC system as described below:
a. Removal of existing supplemental HVAC unit from rooftop of the
Building and associated ductwork throughout the Building.
b. Repair or replacement, as necessary in the Landlord's discretion,
of all perimeter fan power boxes to allow the temperature in the
Premises to be maintained at a range of 68 to 72 degrees
Fahrenheit during the winter months.
c. Installation of new controls on existing interior "cooling-only"
VAV boxes.
d. Inspection and testing of all existing base building HVAC
equipment to ensure that such equipment is in proper working
condition, as determined in the Landlord's reasonable discretion.
e. Modification of the secondary electrical distribution system to
the extent that such modification is required for operation of the
fan power boxes.
6. Installation of demising walls in the portion of the Premises located on
the third floor of the Building, including walls in entry area.
7. Demolition and removal of ceiling tiles and grids.
8. Removal of sheet rock from columns and of lighting from the ceiling.
9. Installation of fire-rated material which complies with applicable building
codes on the demising walls of the electrical room located on the second
floor of the Building.
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10. Performance of such work on the Building Common Areas and the bathrooms on
the second floor as may be reasonably necessary to obtain necessary
occupancy approval for the Premises.
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EXHIBIT C
STANDARD SERVICES
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The building standard services shall be defined by the Landlord and its
Management Agent and elaborated upon from time to time by the Landlord in a
Tenant Handbook.
PROPERTY COMMON AREA SERVICES
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A. Regular maintenance of the parking lot and landscaping.
B. Regular maintenance, sweeping and snow removal of building exterior
areas such as roadways, driveways, sidewalks, parking areas and
courtyard paving.
C. Lighting of Parking Areas and utilities therefor.
D. Security services as may be employed by the Landlord.
BUILDING SPECIFIC SERVICES PROVIDED TO THE BUILDING
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A. Complete interior and exterior cleaning of all windows two to
three times per year, or as needed.
B. Daily, weekday maintenance of hallways, passenger elevators, common
area bathrooms, lobby areas and vestibules.
C. Periodic cleaning of stairwells, freight elevators, and building
service areas.
D. Daily, weekday rubbish removal of all the Tenant trash receptacles
and ash trays.
E. Daily, weekday cleaning of the Tenant space to building standard
specifications.
F. Maintenance and repair of base building surveillance and alarm
equipment, mechanical, electrical, plumbing and life safety systems.
G. Building surveillance and alarm system operation and live monitoring
service to building standard specifications, as may be employed by
Landlord from time to time.
H. HVAC services shall be provided to the premises from central mechanical
equipment during the appropriate seasons between the hours of 7:00 AM
to 6:00 PM on all Business Days. After hours HVAC services will be made
available at building standard rates, which substantially reflect all of
the Landlord's costs of providing such service, will be provided to the
Tenant.
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I. Utilities for all interior common areas and exterior building and
parking lighting.
J. Water service to the Premises at temperatures provided by the Landlord's
utility service for drinking and for any lavatory and/or kitchenette in
the Premises; provided, however, that the Landlord reserves the right to
arrange for such service to be separately metered to the Premises.
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EXHIBIT D
RULES AND REGULATIONS
DEFINITIONS
-----------
Wherever in these Rules and Regulations the word 'Tenant' is used, it shall be
taken to apply to and include the Tenant and its agents, employees, invitees,
licensees, contractors, any subtenants and is to be deemed of such number and
gender as the circumstances require. The word 'Premises' is to be taken to
include the space covered by the Lease. The word "Landlord" shall be taken to
include the employees and agents of the Landlord. Other capitalized terms used
but not defined herein shall have the meanings set forth in the Lease.
GENERAL USE OF BUILDING
-----------------------
A. Space for admitting natural light into any public area or tenanted
space of the Building shall not be covered or obstructed by the Tenant
except in a manner approved by the Landlord.
B. Toilets, showers and other like apparatus shall be used only for the
purpose for which they were constructed. No sweepings, rubbish, acids
or like substances shall be deposited therein, and any and all damage
from such misuse shall be borne by the Tenant.
C. The Landlord reserves the right to determine the number of letters
allowed the Tenant on any monument sign or exterior signage installed
by the Landlord and on any directory the Landlord maintains in the
Building.
D. Unless expressly permitted by the Landlord in writing:
(1) Any additional locks or similar devices which the Tenant may
attach to any door or window and any keys other than those
provided by the Landlord shall be part of the Building master
system. Upon termination of this lease or of the Tenant's
possession, the Lessee shall surrender all keys to the Premises
and shall explain to the Landlord all combination locks on safes,
cabinets and vaults.
(2) The Tenant shall be responsible for the locking of doors and the
closing of any transoms and windows in and to the Premises. Any
damage or loss resulting from failure to so lock or close shall
be paid for by the Tenant.
(3) If the Tenant shall install or operate any steam or internal
combustion engine, boiler, machinery in or about the Premises, or
carry on any
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mechanical business therein the Tenant shall obtain all permits
necessary for the legal operation of such machinery or mechanical
business.
E. The Landlord shall designate the time when and the method whereby
freight, small office equipment, furniture, safes and other like
articles may be brought into, moved or removed from a portion of the
Premises located in the Building, and to designate the location for
temporary disposition of such items. For convenience of the tenants,
elevators may not be used for major deliveries during peak travel
hours. Management should be notified in advance of major deliveries.
The Landlord may install elevator pads and/or issue independent
elevator service keys to protect the elevators from potential damage.
All carts and dollies brought into elevators must be equipped with
rubber bumpers. Pallets and pallet jacks will not be allowed in
passenger elevators. Under no circumstances should the elevator doors
be propped open such that they are prevented from closing.
F. For the general welfare of all tenants and the security of the
Building, the Landlord may require all persons entering and/or leaving
the Building on weekends and holidays and between the hours of 6:00 PM
and 8:00 AM to register with the Building attendant or custodian by
signing his name and writing his destination in the Building, and the
time of entry and actual or anticipated departure, or other procedures
deemed necessary by the Landlord. The Landlord may deny entry during
such hours to any person who fails to provide satisfactory
identification.
G. No animals, birds or pets of any kind shall be brought into or kept in
or about said Premises or the lobby or halls of the Building.
H. Unless specifically authorized by the Landlord, employees or agents of
the Landlord shall not perform for nor be asked by the Tenant to
perform work other than their regularly assigned duties.
I. The Landlord shall have the right to prohibit any advertising by the
Tenant which, in Landlord's opinion tends to impair the reputation of
the Building or its desirability as an office, manufacturing and R&D
building and, upon written notice from the Landlord, the Tenant shall
promptly discontinue such advertising.
J. Canvassing, soliciting and peddling in the Building is prohibited and
the Tenant shall cooperate to prevent the same from occurring.
K. The Tenant shall not use any heating device such as space heaters other
than those approved by the Landlord, such approval not to be
unreasonably withheld.
L. The Landlord shall have the right to make such other and further
reasonable rules and regulations as in the judgment of the Landlord,
may from time to time be needful for
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the safety, appearance, care and cleanliness of the Building and for
the preservation of good order therein.
M. The access road, parking areas and sidewalks, and, the loading areas,
entrances, lobbies, halls, walkways, elevators, stairways and other
common area provided by the Landlord shall not be unreasonably
obstructed by the Tenant or used by it for any other purpose than for
ingress and egress.
N. In order to insure proper use and care of the Premises, the Tenant
shall not prepare or dispense for sales any food, beverages, tobacco,
flowers or other commodities or articles without the written consent of
Landlord.
O. In order to insure use and care of the Premises, the Tenant shall not
enter any janitors' closets, mechanical or electrical areas, telephone
closets, loading areas or Building storage areas in the Building, or
the roof of the Building without the written consent of Landlord except
in the event of an emergency or for the completion of Tenant's Work.
P. In order to insure proper use and care of the Premises, the Tenant
shall not place door mats in public corridors of the Building without
consent of the Landlord.
Q. No smoking will be permitted in the Building Common Areas or Floor
Common Areas.
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EXHIBIT E
ARBITRATION
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The party demanding arbitration of Fair Rental Value or an item or items
relating to the Tenant's Operating Expenses Allocable to the Premises (the
"Disputed Issue") shall give notice thereof to the other party and shall in
such notice appoint an arbitrator ("Notice of Arbitration"). Such Notice of
Arbitration shall be given not less than forty-five (45) days after the date
on which the Tenant provides the Landlord with notice disputing Landlord's
statement of expenses. Within 15 days after the Notice of Arbitration is
received, the other party shall by notice to the original party appoint an
arbitrator. If the second arbitrator shall not have been appointed as
aforesaid, the position taken by the party demanding arbitration shall be
deemed to be the correct resolution of the Disputed Issue.
Within three business days after the designation of the second arbitrator,
the two parties shall submit their respective position with respect to the
Disputed Issue to the two arbitrators; thereafter, the two arbitrators shall
conduct such hearings and investigations as they may deem appropriate and
shall, within 15 days after the designation of the second arbitrator,
determine the correct resolution of the Disputed Issue. The arbitrators or
either of them shall give notice thereof (or notice of their inability to
reach agreement, as the case may be) to the parties hereto within said 15-
day period and the agreement, if any, of the two arbitrators shall be
binding upon the parties hereto.
In the event the two arbitrators are unable to reach agreement within said
15-day period as aforesaid, the two arbitrators shall, within 30 days after
the designation of the second arbitrator, designate a third arbitrator. If
the two arbitrators shall fail to agree upon the designation of such third
arbitrator within the 30-day period described above, then they or either or
them shall give notice of such failure to agree to the parties hereto within
such 30-day period and, if the parties hereto fail to agree upon the
selection of such third arbitrator within 5 days after the arbitrators
appointed by the parties give notice as aforesaid, then either party on
behalf of both may apply to the president of the Greater Boston Real Estate
Board, or on his or her failure, refusal or inability to act, to a court of
competent jurisdiction, for the designation of such third arbitrator.
Within three business days after the designation of the third arbitrator,
the two parties shall submit their respective position with respect to the
Disputed Issue to the third arbitrator; thereafter, the third arbitrator
shall conduct such hearings and investigations as he or she may deem
appropriate and shall, within 15 days after the date of the designation of
the third arbitrator, determine the correct resolution of the Disputed
Issue. Within such 15-day period, the third arbitrator shall give notice
thereof to the parties hereto and the third arbitrator's determination shall
be binding upon the parties hereto.
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All arbitrators with respect to Fair Rental Value shall be appraisers or
other qualified real estate professionals who shall have had at least ten
years continuous commercial real estate experience in the greater Boston
area. All arbitrators with respect to Tenant's Operating Expenses Allocable
to the Premises shall be qualified real estate professionals who shall have
had at least ten years continuous experience managing first-class office
buildings substantially similar to the Property in the greater Boston area.
The parties shall be entitled to present evidence to the arbitrators in
support of their respective positions. The arbitrators may not make any
determination inconsistent with any of the terms of this Lease. The
arbitrators shall not have the power to add to, modify or change any of the
provisions of this Lease. The determination of the arbitrator(s), as
provided above, shall be conclusive upon the parties and shall have the same
force and effect as a judgment made in a court of competent jurisdiction.
Judgment on the determination made by the arbitrator(s) under the foregoing
provisions may be entered in any court of competent jurisdiction pursuant to
the provisions of Section 14 of Chapter 251 of the General Laws of
Massachusetts. Each party shall pay the fees, costs and expenses of the
arbitrator appointed by such party and of the attorneys and expert witnesses
of such party, and one-half of the other fees, costs and expenses of the
arbitration properly incurred hereunder.
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LEASE COMMENCEMENT DATE AGREEMENT
Praxis International, Inc., a Massachusetts corporation
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TENANT
This document serves to confirm that the lease dated between
Praxis International, Inc.
-------------------------
TENANT
and
000 Xxx Xxxxxxxxxxx Xxxx Limited Partnership
--------------------------------------------
PROPERTY OWNER
commenced on September 5, 1995 for space occupied in
-----------------
DATE
000 Xxx Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, XX
-----------------------------------------
ADDRESS
The foregoing is acknowledged and agreed to by:
------------------------------------ ------------
NAME DATE
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease (this "Amendment") dated as of the 25th day of
----
October, 1995 is made by and between 000 Xxx Xxxxxxxxxxx Xxxx Limited
-------
Partnership, a Delaware limited partnership (the "Landlord"), and Praxis
International, Inc., a Massachusetts corporation (the "Tenant").
Reference is made to a certain lease dated as of June 14, 1995 by and
between the Landlord and the Tenant (the "Lease"), demising certain premises
(the "Premises") located on the second and third floors of a building commonly
known as Building C located at 000 Xxx Xxxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx (the "Building").
The Landlord and the Tenant hereby agree that the Tenant shall accept an
increase in the Premises of approximately 208 square feet of Rentable Floor
Area on the third floor of the Building (the "Additional Space") in "as is"
condition for Tenant's use effective on the Commencement Date of the Lease. On
the Commencement Date, the Annual Fixed Rent shall be adjusted by multiplying
the Rentable Floor Area of the Additional Premises by the rental rate set forth
in Exhibit A to the Lease and adding such amount to the Annual Fixed Rent and
the Escalation Factor shall increase to 37.77% to reflect that the Additional
Space has been incorporated in the Premises.
Notwithstanding anything to the contrary in the Lease, the Tenant
acknowledges that no Landlord Improvement Allowance shall be due from the
Landlord to the Tenant in connection with this Amendment or the Additional
Premises.
All capitalized terms not defined herein shall have the meanings assigned to
them in the Lease.
Except as hereby amended, the Lease shall remain in full force and effect
and is hereby ratified and confirmed.
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IN WITNESS WHEREOF, the Landlord and the Tenant have executed this
Amendment as of the day and year first written above.
LANDLORD: 000 XXX XXXXXXXXXXX XXXX
LIMITED PARTNERSHIP
BY: Leggat XxXxxx Properties, Inc., Its
General Partner
By:
------------------------------------
Name:
Its:
TENANT: PRAXIS INTERNATIONAL, INC.
By:
------------------------------------
Name:
Its:
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XXXXXX XXXXXXXXX TO LEASE
-------------------------
This Second Amendment to Lease (this "Amendment") dated as of the 24th day
of April, 1996, is made by and between 000 Xxx Xxxxxxxxxxx Xxxx Limited
Partnership, a Delaware limited partnership (the "Landlord") and Praxis
International, Inc., a Massachusetts corporation (the "Tenant").
Reference is made to a certain lease dated as of June 14, 1995, by and
between the Landlord and the Tenant, as amended by a First Amendment to Lease
dated as of October 26, 1995 (the "Lease") demising certain premises (the
"Premises") located in a building commonly known as Building C located at 000
Xxx Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx. The Commencement Date for the
Lease is September 5, 1995. All capitalized terms not defined herein shall have
the meanings assigned to them in the Lease.
The Landlord and the Tenant hereby acknowledge that the Landlord has
expended at least Four Dollars ($4.00) per square foot of Rentable Floor Area of
Excess Improvement Allowance in connection with Improving the Premises to the
Tenant's specifications. Pursuant to Section 11.14 of the Lease, the Annual
Fixed Rent shall be increased by Thirty Cents ($.30) per square foot of Rentable
Floor Area of the Premises for each One Dollar ($1.00) of Excess Improvement
Allowance provided by the Landlord.
Therefore, the phrase "Sixteen Dollars and 25/100 ($16.25)" is hereby
deleted from the Annual Fixed Rent provision in Exhibit A to the Lease and the
phrase "Seventeen Dollars and 45/100 ($17.45)" is inserted in its place.
Except as hereby amended, the Lease shall remain in full force and effect
and is hereby ratified and confirmed.
LANDLORD: 000 XXX XXXXXXXXXXX XXXX
LIMITED PARTNERSHIP
By: Leggat XxXxxx Properties, Inc., its
General Partner
By:
------------------------------------
Name:
Its:
TENANT: PRAXIS INTERNATIONAL, INC.
By:
------------------------------------
Name:
Its:
-56-
EXHIBIT C
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Fixed Rent: $17.45 per rentable square foot of the Subleased Premises,
or $292,723.75 annually, based on 16,775 rentable square
feet, which shall be paid in equal monthly installments
(installments rounded to nearest cent) of $24,393.65.
Sublessee has paid the first month's rent to Sublessor on
the execution hereof.
Security Deposit: The security deposit is one month's Fixed Rent, which equals
$24,393.65.
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