Exhibit 10.4
SUBLEASE AND CONSENT AGREEMENT
This Sublease and Consent Agreement ("Sublease") by and among ASA
International Ltd., InterPro Expense Systems, Inc. and 00 XXXXX XXXXXX, LLC is
made as of the 2d day of August, 1999.
RECITALS
WHEREAS, 10 Speen Street, LLC and ASA International Ltd. (hereinafter,
"ASA International" or "LESSOR" as the context may require) have entered into
that certain master lease as of September 15, 1998 whereby ASA International has
leased the entire Building from 10 Speen Street, LLC (the "Master Lease"); and
WHEREAS, ASA International and InterPro Expense Systems, Inc.
(hereinafter, "InterPro" or "LESSEE" as the context may require) intend to enter
into a sublease under the terms and conditions as set forth herein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
TERMS
1. & 2. PARTIES AND PREMISES.
ASA INTERNATIONAL, a Delaware corporation, with a principal place of
business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 does hereby sublease to
INTERPRO, a Delaware corporation, with a principal place of business at 00 Xxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, and the LESSEE hereby subleases the following
described Premises:
approximately 7,021 rentable square feet of space located on the first
floor (the "First Floor Premises") and approximately 7,854 rentable
square feet of space located on the second floor (the "Second Floor
Premises) at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (collectively, the
"Premises"), as more particularly described on the floor plan attached
hereto as Exhibit A,
together with the right to use in common, with others entitled thereto, the
hallways, stairways, and elevators, necessary for access to said Premises, and
the lavatories nearest thereto. The entire building at 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, XX of which the Premises is a part shall be referred to herein as
the "Building". ASA International hereby acknowledges to InterPro that, to its
knowledge, the First Floor Premise are 7,021 square feet and the Second Floor
Premises are 7,854 square feet, and the parties hereto agree that if said square
footage, in either or both cases, is established to be otherwise, the payment
obligations under this sublease shall be adjusted proportionately.
3. TERM.
The term (the "Term") of this Sublease shall commence: (A) with
respect to the Second Floor Premises, as of the date hereof (the "Second Floor
Commencement Date"), and (B) with respect to the First Floor Premises, on the
date when Lessor Substantially Completes (as defined below) the Lessor
Improvements (as hereinafter defined in Paragraph 12 of this Sublease) and
delivers the First Floor Premises to Lessee, provided that, if Lessee occupies
any portion of the First Floor Premises prior to the date Lessor Substantially
Completes them, the term of this Sublease shall commence with respect only to
the occupied portion of the First Floor Premises, such that Lessee shall pay
rent pro-rata based on the portion occupied, upon such occupation. The Term of
this Sublease shall end on July 30, 2004 (the "Expiration Date"). For purposes
of this paragraph, "Substantially Completes" shall mean at such time as Lessor
has completed the Lessor Improvements to such extent that the First Floor
Premises may be utilized by Lessee for its intended purpose without unreasonable
interruption to Lessee for Lessor.
4. RENT.
The LESSEE shall pay to the LESSOR a base rent ("Base Rent")
commencing on the Second Floor Commencement Date at the rate of Fifteen Thousand
Seven Hundred Eight Dollars ($15,708) per month. Commencing on the First Floor
Commencement Date, Base Rent shall be increased to Twenty- Nine Thousand Seven
Hundred Fifty Dollars ($29,750) per month, payable in advance on the first of
each month. Rent for any period during the Term hereof which is for less than
one (1) month of the Term shall be a pro rata portion of the monthly installment
based on the number of days in such month.
Any payment of rent or any other monetary sum due hereunder from
LESSEE to LESSOR which is more than ten (10) days late shall bear interest at
the rate of one and one-half (1 1/2%) percent per month.
5. SECURITY DEPOSIT.
Upon the execution of this Sublease, the LESSEE shall pay to the
LESSOR the amount of Fifty-Nine Thousand Five Hundred Dollars ($59,500) Dollars,
which shall be held as a security for the LESSEE's performance as herein
provided and refunded to the LESSEE at the end of this Sublease subject to the
LESSEE's satisfactory compliance with the conditions hereof.
6. RENT ADJUSTMENT.
A. TAX CALCULATION. If in any tax year commencing with the
fiscal year 2000, the real estate taxes on the land and
buildings, of which the Premises are a part, are in excess
of the amount of the real estate taxes thereon for the
fiscal year 1999 (the "Base Year"), LESSEE will pay to
LESSOR as additional rent hereunder, within seven (7) days
of notice in writing by LESSOR, Forty-Five and one-half
percent (45.5%) ("LESSEE'S SHARE") of such excess that may
occur in each year of the term of this lease or any
extension or renewal thereof and proportionately for any
part of a fiscal year. If the LESSOR obtains an abatement of
any such excess real estate tax, a proportionate share of
such abatement, less the proportionate share of reasonable
fees and costs incurred in obtaining the same, if any, shall
be refunded to the LESSEE.
B. OPERATING EXPENSES. Commencing on the Second Floor
Commencement Date, the LESSEE shall pay to the LESSOR as
additional rent hereunder when and as designated by notice
in writing by LESSOR, LESSEE'S SHARE (as proportionately
adjusted for any part of a calendar year) of any increase in
operating expenses paid in proportion to the space occupied
over those incurred during the calendar year ending December
31, 1998 (the "Operating Expense Base Year"). If the
Building was not fully occupied during the Operating Expense
Base Year, operating expenses for the Operating Expense Base
Year shall be increased to reflect a fully-occupied
Building. Operating expenses shall include for the purposes
of this agreement, without limitation:
(i) All expenses incurred by LESSOR or LESSOR's agents
which shall be directly related to employment of
personnel, including amounts incurred for wages,
salaries, and other compensation for services,
payroll, social security, unemployment and similar
taxes, xxxxxxx'x compensation insurance,
disability benefits, pensions, hospitalization,
retirement plans and group insurance, uniforms and
working clothes and the cleaning thereof, and
expenses imposed on LESSOR or LESSOR's agents
pursuant to any collective bargaining agreement
for the services of employees of LESSOR or
LESSOR's agents in connection with the operation,
repair, maintenance, common area cleaning,
management and protection of the Building or the
property of which it is part and its mechanical
systems including, without limitation, day and
night supervisors, property manager, accountants,
bookkeepers, janitors, carpenters, engineers,
mechanics, electricians and plumbers and personnel
engaged in supervision of any of the persons
mentioned above.
(ii) The cost of services, materials and supplies
furnished or used in the operation, repair,
maintenance, cleaning management and protection of
the Building or the property of which it is part,
including without limitation fees, if any, imposed
upon LESSOR, or charged to the Building, by the
state or municipality in which the Building is
located on account of the need of the Building or
the property of which it is part for increased or
augmented public safety services.
(iii) The cost of replacements for tools and other
similar equipment used in the repair, maintenance,
cleaning and protection of the Building or the
property of which it is part.
(iv) Where the Building or the property of which it is
part is managed by LESSOR or an affiliate of
LESSOR, a sum equal to the amounts customarily
charged by management in the Framingham area for
similar properties, whether or not actually paid,
or where managed by other than LESSOR or an
affiliate thereof, the amounts accrued for
management, together with, in either case, amounts
accrued for legal and other professional fees
relating to the Building or the property of which
it is part, but excluding such fees and
commissions paid in connection with services
rendered for securing or renewing leases and for
matters not related to the normal administration
and operation of the Building or the property of
which it is part.
(v) Premiums for any insurance against damage or loss
to the Building for such hazards as shall from
time to time be customarily carried by prudent
owners of similar first class office properties,
including, but not by way of limitation, insurance
covering loss of rent attributable to any such
hazards, and public liability insurance.
(vi) Costs for common area electricity, water and sewer
use charges, and other utilities supplied to the
Building or the property of which it is part and
not paid for directly by tenants.
(vii) Betterment assessments provided the same are
apportioned equally over the longest period
permitted by law.
(viii) Amounts paid to independent contractors for
services, materials and supplies furnished for the
operation, repair, maintenance, cleaning and
protection of the Building or the property of
which it is part.
C. Operating expenses shall not include the following: (a)
costs which could be considered capital costs except to the
extent amortized over the useful life of such capital item;
(b) costs of structural repairs to the Building; (c)
insurance deductibles; and (d) costs in connection with
hazardous materials in the Building except to the extent
caused by Lessee or anyone claiming under Lessee.
D. Lessee may audit the books, records and supporting documents
of Lessor to the extent necessary to determine the accuracy
of Lessor's calculation of operating expenses. Tenant shall
bear the cost of such audit, unless such audit discloses
that Lessor has overstated the total costs by more than
three percent (3%) of the actual amount of such costs, in
which event Lessor shall pay the cost of Tenant's audit.
Lessor shall promptly refund any overcharges to Tenant.
7. UTILITIES.
The LESSOR agrees to provide electricity twenty-four (24) hours per
day, seven (7) days per week, and all other utility service and to furnish
reasonably hot and cold water and reasonable heat and air conditioning to the
Premises, the hallways, stairways, elevators, and lavatories during normal
business hours on regular business days of the heating and air conditioning
seasons of each year, to furnish elevator service and to light passageway and
stairway during business hours, all subject to interruption due to any accident,
to the making of repairs, alterations, or improvements, to labor difficulties,
to trouble in obtaining fuel, electricity, service, or supplies from the sources
from which they are usually obtained for said building, or to any cause beyond
the LESSOR's control.
LESSOR shall have no obligation to provide utilities or equipment
other than the utilities and equipment within the Premises as of the
Commencement Date of this Sublease. In the event LESSEE requires additional
utilities or equipment, the installation and maintenance thereof shall be
LESSEE's sole obligation, provided that such installation shall be subject to
the written consent of the LESSOR.
8. USE OF SUBLEASED PREMISES.
The LESSEE shall use the Premises only for the purpose of general
offices including, without limitation, software development, but for no other
purpose.
9. COMPLIANCE WITH LAWS.
A. The LESSEE acknowledges that no trade or occupation shall be
conducted in the Premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or ordinance
in force in the city or town in which the Premises are situated, or which tend
to degrade the economic status of the Building.
B. (i) LESSEE shall not introduce on or transfer to the Premises, any
hazardous materials (as herein defined); nor dump, flush, or otherwise dispose
of any hazardous materials into the drainage, sewage, or waste disposal systems
serving the Premises or Building in violation of applicable law; nor generate,
store, use, release, spill, or dispose of any hazardous materials in or on the
Premises or the Building, or transfer any hazardous materials from the Premises
to any other location in violation of applicable law; and not commit or suffer
to be committed in or on the Premises or Building any act which would require
any reporting or filing of any notice with any governmental agency pursuant to
any statues, laws, codes, ordinances, rules or regulations, present or future,
applicable to the Building or to hazardous material (hereinafter collectively
called "Environmental Laws").
(ii) LESSEE agrees that if it or anyone claiming under it shall
generate, store, release, spill, dispose of, or transfer to the Premises or
Building any hazardous materials, it shall forthwith remove the same, at its
sole cost and expense in the matter provided by all applicable Environmental
Laws, regardless of when such hazardous materials shall be discovered.
Furthermore, LESSEE shall pay any fines, penalties, or other assessments imposed
by any governmental agency with respect to any such hazardous materials and
shall forthwith repair and restore any portion of the Premises or Building which
it shall disturb in so removing any such hazardous materials to the condition
which existed prior to LESSEE's disturbance thereof.
(iii) LESSEE agrees to deliver to LESSOR any notices, orders, or
similar documents received by LESSEE from any governmental agency or official
concerning any violation of any Environmental Law or with respect to any
hazardous materials affecting the Premises or Building and LESSOR shall deliver
to LESSEE any notices it receives from any governmental agency or officer.
(iv) For purposes of this Sublease, the term "hazardous
materials" shall mean and include any oils, petroleum products, asbestos, and
any other toxic or hazardous wastes, materials, and such substances which are
defined, determined, or identified as such in any Environmental Laws, or in any
judicial or administrative interpretations of "Environmental Laws."
(v) To the best knowledge of Lessor, (a) no hazardous materials
are present in the Premises or at the Building or the soil, surface water or
groundwater thereof, (b) no underground storage tanks are present in or about
the Building, and (c) no action, proceeding or claim is pending or threatened
regarding the Premises or the Building concerning any hazardous materials or
pursuant to any environmental Law. Notwithstanding anything to the contrary in
the Lease, under no circumstance shall Lessee be liable for any losses, costs,
claims, liabilities and damages (including attorneys' and consultants' fees) of
every type and nature, directly or indirectly arising out of or in connection
with any hazardous materials present at any time in, on or about the Premises,
the Building, or the soil, air, improvements, groundwater or surface water
thereof, or the violation of any environmental law, except to the extent that
any of the foregoing actually results from the release or emission of hazardous
materials by Lessee or its agents, contractors or invitees.
10. FIRE INSURANCE.
The LESSEE shall not permit any use of the Premises which will make
voidable any insurance on the property of which the Premises are a part, or on
the contents of said property or which shall be contrary to any law or
regulation from time to time established by the New England Fire Insurance
Rating Association, or any similar body succeeding to its powers. The LESSEE
shall on demand reimburse the LESSOR, and all other Lessees, all extra insurance
premiums caused by the LESSEE's use of the Premises.
11. MAINTENANCE.
A. LESSEE'S OBLIGATIONS. The LESSEE agrees to maintain the Premises in
good conditions, damage by fire and other casualty only excepted, and whenever
necessary, to replace plate glass and other glass therein, acknowledging that
the Premises are now in good order and the glass whole. The LESSEE shall not
permit the Premises to be overloaded, damaged, stripped, or defaced, nor suffer
any waste. LESSEE shall obtain written consent of LESSOR before erecting any
sign on the Premises. LESSEE shall be responsible for the maintenance, repair,
and if, as a result of the LESSEE's negligence, it is required, replacement of
all electrical, plumbing, heating, air conditioning, ventilation, and other
mechanical installations located entirely on, or serving only, the Premises.
X. XXXXXX'X OBLIGATIONS. The LESSOR agrees to maintain the structure
of the Building of which the Premises are a part in good condition, reasonable
wear and tear, damage by fire and other casualty only excepted, unless such
maintenance is required because of the conduct of LESSEE or those for whose
conduct the LESSEE is legally responsible. LESSOR shall be responsible for
maintaining the Building's mechanical and electrical systems.
12. ALTERATIONS - ADDITIONS.
The LESSEE shall not make structural alterations or additions to the
Premises, but may make non-structural alterations provided the LESSOR consents
thereto in writing, which consent shall not be unreasonably withheld or delayed.
All such allowed alterations shall be at LESSEE's expense and shall be in
quality at least equal to the present construction. LESSEE shall not permit any
mechanic's liens, or similar liens, to remain upon the leased Premises for labor
and material furnished to LESSEE or claimed to have been furnished to LESSEE in
connection with work of any character performed or claimed to have been
performed at the direction of LESSEE and shall cause any such lien to be
released of record forthwith without cost to LESSOR. Any alterations or
improvements made by the LESSEE shall become the property of the LESSOR at the
termination of occupancy as provided herein.
Lessor shall perform, at it sole cost and expense, the improvements
set forth on the preliminary plan attached hereto as Exhibit B and shall
recarpet the entire Premises (collectively, the "Lessor Improvements"), all in a
good workmanlike manner and in compliance with all laws.
13. ASSIGNMENT - SUBLEASING.
LESSEE shall not assign, sublet, underlet, mortgage, pledge or
encumber (collectively referred to as "Transfer") this Sublease without LESSOR's
prior written consent which consent shall not be unreasonably withheld. LESSOR's
refusal to consent to a Transfer for any use or purpose other than specifically
stated in paragraph 8 herein shall not be deemed to be unreasonable withholding
of consent.
In the event the LESSEE desires to Transfer this Sublease to a
proposed new LESSEE to whom LESSOR is required to give its reasonable consent
pursuant to the foregoing paragraph, LESSOR shall have the option of either (1)
allowing LESSEE to Transfer this Sublease, in which case LESSEE shall remain
primarily liable upon all the terms, conditions, and covenants hereof, will bind
any Transferee to the terms and provisions of this Sublease and will pay to
LESSOR the amount by which the sum of rent, additional rent due to taxes, and
all other money or consideration it received from a Transferee exceeds the sum
of all monetary obligations which LESSEE owes to LESSOR for the period of such
Transfer after subtracting Lessee's reasonable costs in connection therewith; or
(2) in the event an entire floor is proposed to be subleased, terminating this
Sublease as to such proposed portion and relieving LESSEE of all its future
obligations hereunder as to such portion. In the event that LESSOR decides to
terminate this Sublease as to such portion, it shall be free to enter into a new
Sublease as to such portion with the proposed new Lessee or anyone else on
whatever terms and conditions it chooses.
Consent by LESSOR, whether express or implied, to any Transfer shall
not constitute a waiver of LESSOR's right to prohibit any subsequent Transfer;
nor shall such consent be deemed a waiver of LESSOR's right to terminate this
Sublease upon any subsequent Transfer.
Notwithstanding anything to the contrary in the Lease, Lessee may,
without Lessor's prior written consent and without being subject to any
recapture or bonus rent provisions, sublease the Premises or assign the Sublease
to any of the following: (i) a subsidiary, affiliate, division or corporation
controlling, controlled by or under common control with Lessee; (ii) a successor
corporation related to Lessee by merger, consolidation, nonbankruptcy
reorganization, or government action; or (iii) a purchaser of substantially all
of Lessee's assets. For the purpose of this Sublease, any sale or transfer of
Lessee's capital stock, including without limitation, a transfer in connection
with the merger, consolidation or nonbankruptcy reorganization of Lessee and any
sale through any national market system or public exchange, shall not be deemed
an assignment, subletting, or any other transfer of the Sublease or the
Premises. In the event Lessee subleases the Premises or assigns the Sublease
pursuant to this paragraph, Lessee shall give Lessor reasonable notice thereof,
and Lessee and the successor shall be jointly and severally liable for the
obligations hereunder.
14. SUBORDINATION.
Intentionally deleted.
15. LESSOR'S ACCESS.
The LESSOR or agents of the LESSOR may, at reasonable times, enter to
view the Premises and remove placards and signs not approved and affixed as
herein provided, and make repairs and alterations as LESSOR should elect to do
and may show the premises to others provided, however, that showings for
reletting will be confined to a time within the nine (9) months before
expiration of the term. At any time within nine (9) months before expiration of
the terms, LESSOR may affix to any suitable part of the Premises a notice for
letting or selling the Premises or property of which the Premises are a part and
keep the same so affixed without hindrance or molestation.
16. INDEMNIFICATION AND LIABILITY.
LESSEE covenants with LESSOR to pay, protect, indemnify, and save
harmless, to the extent permitted by law, LESSOR and any partner, officer,
director, agent, employee, or beneficiary of LESSOR, holders of mortgages on the
Building and any other party having an interest in the Building from and against
any and all liabilities, costs, expenses, causes of action, injuries, accidents,
injunctions, or penalties of any nature (including court costs and reasonable
attorney's fees), resulting from a claim by or on behalf of any person, party,
or governmental authority whatsoever on account of injury, death, damage, or
loss to person or property in or upon the Premises, or any area adjacent to or
in proximity to the Premises, arising out of any act, negligence, or omission of
LESSEE, or arising as a result of any use or occupancy of, or travel over or
upon the Premises, or any area adjacent to or in proximity to the Premises, by
LESSEE or by any person claiming by, through, or under LESSEE (including,
without limitation, all patrons, guests, employees, agents, contractors, and
customers of LESSEE), or arising out of any delivery to or services supplied to
the Premises, or on account of or based upon anything whatsoever done on the
Premises, or any area adjacent to or in proximity to the Premises, by LESSEE or
by any person claiming by, through, or under LESSEE, except if the same was
caused by the negligence or willful misconduct of LESSOR, its agents, or
employees or contractors; and, if required by law, to keep all of LESSEE's
employees working in or about the Premises covered by workers, compensation
insurance. In respect to all of the foregoing, LESSEE shall indemnify and hold
harmless LESSOR from and against all costs, expenses (including reasonable
attorneys' fees) and liabilities incurred in or in connection with any such
claim, action, or proceeding brought thereon.
The removal of snow and ice from the sidewalks bordering upon the
Building and the parking lot of the Building shall be LESSOR's responsibility.
17. LESSEE'S LIABILITY INSURANCE.
The LESSEE shall maintain, with respect to the Premises and the
property of which the Premises are a part, comprehensive public liability
insurance in the amount of One Million Dollars ($1,000,000), combined
single-limit bodily injury and property damage in responsible companies
qualified to do business in Massachusetts and in good standing therein, insuring
the LESSEE (and including Lessor as additional insured) against injury to
persons or damage to property as provided. The LESSEE shall deposit with the
LESSOR certificates for such insurance at, or prior to, commencement of the term
and thereafter within thirty (30) days prior to the expiration of any such
policies. All such insurance certificates shall provide that such policies shall
not be canceled without at least ten (10) days prior written notice to each
assured named therein.
18. FIRE, CASUALTY - EMINENT DOMAIN.
Lessor shall carry standard "all risk" issuance covering the building
for the full replacement cost thereof. Should a substantial portion of the
Premises, or of the property of which they are a part, be substantially damaged
by fire or other casualty, or be taken by eminent domain, the LESSOR may elect
to terminate this Sublease. When such fire, casualty, or taking renders the
Premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and the LESSEE may elect to
terminate this Sublease if:
(a) The LESSOR fails to give written notice within thirty
(30) days of its intention to restore Premises, or
(b) The LESSOR fails to restore the Premises to a
condition substantially suitable for their intended
use within seventy-five (75) days of said fire,
casualty, or taking, or
(c) If said fire, casualty, or taking happens within nine
(9) months of the Expiration Date.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights
which the LESSEE may have for damages or injury to the Premises for any taking
by eminent domain, except for damage to the LESSEE's fixtures, property, or
equipment.
If required by a financing institution which has provided financing
for Lessor, Lessor shall have the right to demolish the Building of which the
Premises are a part, or any part thereof, provided Lessor gives Lessee at least
eighteen (18) months prior termination notice and Lessor pays Lessee's
reasonable costs to move.
19. DEFAULT AND BANKRUPTCY.
In the event that:
(a) The LESSEE shall default in the payment of any installment of rent
or other sum herein specified and such default shall continue for seven (7) days
after written notice thereof; or
(b) The LESSEE shall default in the observance or performance of any
other of the LESSEE's covenants, Subleases, or obligations hereunder and such
default shall not be corrected within thirty (30) days after written notice
thereof or, if such default shall reasonably require longer than thirty (30)
days to cure, shall not within said period commence and diligently proceed to
cure such default; or
(c) The LESSEE shall be declared bankrupt or insolvent according to
law, or, if any assignment shall be made of LESSEE's property for the benefit of
creditors, then the LESSOR shall have the right thereafter, while such default
continues to declare the term of this Sublease ended. The LESSEE shall indemnify
the LESSOR against all loss of rent and other Payments which the LESSOR may
incur by reason of such termination during the residue of the term. If the
LESSEE shall default, after reasonable written notice thereof, in observance or
performance of any conditions or covenants on LESSEE's part to be observed or
performed under or by virtue of any of the provisions in any article of this
Sublease, the LESSOR, without being under any obligation to do so and without
thereby waiving such default, may remedy such default for the account and at the
expense of the LESSEE. If the LESSOR makes any expenditures or incurs any
obligations for the payment of money in connection therewith, including but not
limited to, reasonable attorney's fees in instituting, prosecuting, or defending
any action or proceeding, such sums paid or obligation incurred with interest at
the rate of 18% per annum and costs, shall be paid to the LESSOR by the LESSEE
as additional rent.
20. NOTICE.
Any notice from the LESSOR to the LESSEE relating to the Premises or
to the occupancy thereof, shall be deemed duly served if mailed to the LESSEE's
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000-0000, Attention:
Xxx Xxxxxxxxx registered or certified mail, return receipt requested, postage
prepaid, addressed to the LESSEE. Any notice from the LESSEE to the LESSOR
relating to the Premises or to the occupancy thereof, shall be deemed duly
served, if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, addressed to the LESSOR at such address as the
LESSOR may from time to time advise in writing. All rent notices shall be paid
and sent to the LESSOR at: ASA International Ltd., 00 Xxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000, Attention: Accounting Department.
21. SURRENDER.
The LESSEE shall at the expiration or other termination of this
Sublease remove all LESSEE's goods and effects from the Premises, (including,
without hereby limiting the generality of the foregoing, all signs and lettering
affixed or painted by the LESSEE, either inside or outside the Premises). LESSEE
shall deliver to the LESSOR the Premises and all keys, locks thereto, and other
fixtures connected therewith and all alterations and additions made to or upon
the Premises, in good condition, damage by fire or other casualty and normal
wear and tear only excepted. If the Sublease term terminates by acceleration or
expiration of time and LESSEE does not surrender the Premises and remove his
effects from the Premises, and LESSOR obtains an order of eviction from a court,
then LESSOR may enter the Premises for the purpose of removing LESSEE's goods
and effects, without prejudice to any other remedies, and LESSOR may remove and
store such goods and effects at LESSEE's expense, LESSEE hereby granting LESSOR
an irrevocable power of attorney to accomplish the same.
22. BROKERAGE.
Intentionally Deleted.
23. RELEASES AND WAIVER OF SUBROGATION.
LESSOR and LESSEE hereby release each other from any and all liability
or responsibility to the other or anyone claiming through or under them by way
of subrogation or otherwise for any loss or damage to property caused by fire or
any of the extended coverage or supplementary contract casualties, even if such
fire or other casualty shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible, provided,
however, that this release shall be applicable and in force and effect only to
the extent permitted by law. LESSOR and LESSEE each agree that it will request
its insurance carriers to include in its policies whether or not such policies
are required hereunder, such a clause or endorsement. In any of LESSEE'S
insurance policies with respect to the Premises which do not contain a waiver of
subrogation rights, LESSEE shall have LESSOR designated as one of the insured.
24. LIABILITY
LESSEE hereby agrees that any judgment, decree, or award obtaining
against the LESSOR which is related to this Sublease, the Premises, or the
LESSEE's use or occupancy of the Premises or the Building, whether at law or in
equity, shall be satisfied out of property owned by, or cash or other assets of,
ASA International with a value not to exceed $1 million, and further agrees to
look only to such assets and to no other assets for satisfaction, after
application of insurance proceeds of any party hereto to the extent applicable.
In no event shall LESSOR be liable for consequential or any indirect damages.
25. HOLDOVER.
If the LESSEE remains on the Premises beyond the Expiration Date (or
such earlier termination date as provided for hereunder), such holding over
shall not be deemed to create any Tenancy at will, but the LESSEE shall be a
Lessee at sufferance only, at a daily rate equal to one hundred fifty percent
(150%) of the rent and other charges for the last year under this Sublease.
However, all other conditions of this Sublease to be performed by LESSEE shall
continue in force.
26. NON-WAIVER PROVISION.
No acceptance by LESSOR of a lesser sum than the rent, additional
rent, or any other charge then due shall be deemed to be other than on account
of the earliest installment of such rent or charge due, nor shall any
endorsement or statement on any check or any charge be deemed an accord and
satisfaction, and LESSOR may accept such check or payment without prejudice to
LESSOR's right to recover the balance of such installment or pursue any other
remedy provided in this Sublease.
No provisions of this Sublease shall be deemed to have been waived by
LESSOR or LESSEE unless such waiver is in writing signed by LESSOR or LESSEE. No
assent, express or implied, by either party to any breach of any Sublease or
condition herein contained on the part of the other to be performed or observed,
and no 'waiver, express or implied, of any such agreement or condition, shall be
deemed to be a waiver or an assent to any succeeding breach of the same or any
other agreement or condition. No act or thing done by LESSOR, its agents, or
employees, during the Term shall be deemed an acceptance of a surrender of the
Premises. The delivery of keys to any of LESSOR's agents or employees shall not
operate as a termination of this Sublease or a surrender of the Premises.
27. NO OFFER TO SUBLEASE.
Intentionally Deleted.
28. PARTIAL INVALIDITY.
The invalidity of one or more phrases, sentences, clauses, or articles
shall not affect the remaining portions of this Sublease, and if any part of
this Sublease should be declared invalid by the final order, decree, or judgment
of a court of competent jurisdiction, this Sublease shall be construed as if
such invalid phrases, sentences, clauses, or articles had not been inserted.
29. NO RECORDING.
This Sublease shall not be recorded.
30. PARKING.
LESSEE shall have, in common with other tenants, access to the parking
areas at 00 Xxxxx Xxxxxx. Lessee shall have the non-exclusive use of sixty-five
parking spaces in such parking area (one of which shall be specifically
designated the "employee of the month" space).
31. ADDENDA.
Intentionally Deleted.
32. RULES.
From time to time, the LESSOR has and will adopt reasonable rules for
the safety, benefit, and convenience of all tenants and other persons in the
Building (attached hereto as Exhibit "A"). LESSEE shall at all times comply
with, and shall cause its employees, agents, licensees, and invitees to comply
with the Rules from time to time in effect.
33. LESSEE ACCESS TO PREMISES.
LESSEE shall have access to the Building and the Premises twenty-four
(24) hours a day, seven (7) days per week.
34. ENTIRE AGREEMENT.
This Sublease contains the entire agreement between the parties hereto
with respect to the subject matter of this Sublease. LESSEE acknowledges and
agrees that it has not relied upon any statement, representation, agreement, or
warranty except such as are set out in this Sublease.
35. AMENDMENT OR MODIFICATION.
Unless otherwise specifically provided in this Sublease, no amendment,
modification, or supplement to this Sublease shall be valid or binding unless
set out in writing and executed by the parties hereto in the same manner as the
execution of this Sublease.
36. WAIVER OF JURY TRIAL.
Except as otherwise provided under this Sublease, any controversy or
claim arising out of, or relating to, this Sublease or the existence, validity,
breach, or termination thereof will be finally settled by compulsory arbitration
in accordance with the commercial arbitration rules of the American Arbitration
Association, Boston, Massachusetts, and nowhere else. The Arbitration award
shall be the exclusive remedies of the parties for all claims, counter claims,
or issues presented or plead to the arbitrators and each party hereby waives,
any right to jury trial in any forum. LESSOR and LESSEE each shall bear their
own expenses, costs and fees, including legal fees unless otherwise ordered.
37. ESTOPPEL CERTIFICATES.
LESSOR and LESSEE agree that at any time and from time to time, upon
not less than ten (10) days' prior written request by the other, each will
execute, acknowledge, and deliver to the requesting party a statement in writing
certifying that this Sublease is unmodified and in full force and effect (or, if
there have been modifications, that the same are in full force and effect as
modified and starting the modifications), that to the knowledge of such party no
uncured defaults exist, and the dates to which the rent and other charges due
hereunder have been paid in advance, if any, it being intended that any such
statement delivered pursuant to this section 37 may be relied upon by any
mortgagee or prospective mortgagee or purchaser of the Property. LESSEE agrees
that if it shall fail at any time to execute, acknowledge, and deliver any such
instrument within fifteen (15) days after request, then LESSOR may execute,
acknowledge, and deliver such instrument as the attorney in fact of LESSEE; and
LESSEE hereby makes, constitutes, and irrevocably appoints LESSOR its attorney
in fact, coupled with an interest, for that purpose.
38. CLEANING.
LESSOR will clean the premises daily after normal business hours. Said
cleaning to be comparable to that of comparable office buildings in the area.
39. SUBORDINATION OF SUBLEASE AND NON-DISTURBANCE OF LESSEE.
Notwithstanding anything contained herein, this Sublease is and shall
be subject and subordinate at all times to all the terms, covenants and
conditions of the Master Lease; provided, however, that so long as the LESSEE is
not in default of any of the terms, covenants and conditions of this Sublease 10
Speen Street, LLC or its successor in interest, including, without limitation,
its successor in interest through foreclosure proceedings or a deed in lieu of
foreclosure, hereby agrees not to disturb the LESSEE in its possession of the
Premises.
40. LESSOR'S FURNITURE AND NETWORK EQUIPMENT.
Lessee may use during the term the furniture currently existing in the
First Floor Premises and more particularly described in Exhibit C attached
hereto (the "Furniture"). Lessee shall maintain such Furniture in its current
condition at the time of occupancy and first use, reasonable wear and tear and
casualty excepted. Upon the expiration of the Term, Lessee shall surrender such
Furniture with the Premises in their current location.
41. LESSEE PROPERTY
Lessee's trade fixtures, furniture, equipment and other personal
property installed in the Premises ("Lessee's Property") shall at all times be
and remain Lessee's property. Lessee may at any time remove Lessee's Property
from the Premises, provided that Lessee repairs all damage caused by such
removal. Lessor shall have no security interest or lien on any item of Lessee's
Property other than those statutory liens that may arise by operation of law.
Lessee's trade fixtures, furniture, equipment and other personal property
installed in the Premises ("Lessee's Property") shall at all times be and remain
Lessee's property. Lessee may at any time remove Lessee's Property from the
Premises, provided that Lessee repairs all damage caused by such removal. Lessor
shall have no lien on any item of Lessee's Property other than those statutory
liens that may arise by operation of law. Lessor hereby covenants and agrees to
comply with any reasonable request of Lessee for Lessor's execution of one or
more consent, waiver and estoppell certificate in favor of a lendor to Lessee as
such certificate may be required in connection with such financing provided that
Lessee is not in default hereunder. Notwithstanding the foregoing, in no event
shall Lessor have any lien on Lessee's software or intellectual property as a
result of this Sublease and / or Lessor's capacity as a lessor.
42. CONSENT
10 Speen Street, LLC hereby consents to this Sublease upon and subject
to the terms and conditions contained herein. Subject to financing arrangements
entered into by 10 Speen Street, LLC, so long as Lessee is not then in default
under the Sublease beyond applicable notice and cure periods, in the event of
any termination of the Master Lease, the Sublease shall not terminate as a
result thereof and Lessee shall instead automatically become primary lessee of
the Premises on the terms and conditions of the Sublease. In such event, Lessee
shall be bound and attorn to 10 Speen Street, LLC, and 10 Speen Street, LLC
shall recognize and shall not disturb the rights and interest of Lessee under
all of the terms and conditions of the Sublease as if 10 Speen Street, LLC had
been the original Lessor under the Sublease.
IN WITNESS WHEREOF, the said parties hereto set their hands and seals
as of this 2d day of August, 1999.
LESSOR: ASA INTERNATIONAL LTD. LESSEE: INTERPRO EXPENSE SYSTEMS, INC.
/S/ XXXXXXXX X. XXXXXXXX /S/ X. X. XXXXXXXXX
----------------------------- -------------------------
By: Xxxxxxxx X. XxXxxxxx By: Xxxxxx X. Xxxxxxxxx
Vice President & Treasurer
Address: Address:
00 Xxxxx Xxxxxx 0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
THE UNDERSIGNED ACCEPTS AND AGREES
TO BE BOUND BY THE PROVISIONS OF
PARAGRAPH 41 HEREOF:
10 SPEEN STREET, LLC
By: ASA Properties, Inc., its managing member
By: /S/ XXXXXXXX X. XXXXXXXX
------------------------------
Xxxxxxxx X. XxXxxxxx,
Vice President and Treasurer
SUBLEASE AGREEMENT BETWEEN
ASA INTERNATIONAL LTD., LESSOR
AND
INTERPRO EXPENSE SYSTEMS, INC., LESSEE
DATED AS OF AUGUST ____, 1999
EXHIBIT A: RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors, or halls shall not be obstructed or encumbered
by any LESSEE or used for any purpose other than for ingress to and egress from
the Premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
LESSOR. There shall not be used in any space, or in the public hall of the
Building, either by a LESSEE or by jobbers or others in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
sideguards.
2. The water and wash closets and plumbing fixtures shall not be used
for any purpose other than those for which they were designated or constructed
and no sweepings, rubbish, rags, acids, or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the LESSEE who, or whose clerks,
agents, employees, or visitors, shall have caused it.
3. No LESSEE shall sweep or throw or permit to be swept or thrown from
the Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building and
LESSEE shall not use, keep, or permit to be used or kept any foul or noxious gas
or substance in the Premises or permit or suffer the Premises to be occupied or
used in a manner offensive or objectionable to LESSOR or other occupants of the
Building by reason of noise, odors, and/or vibrations, or interfere in any way
with other LESSEES or those having business therein, nor shall any animals or
birds be kept in or about the Building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the Building is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of LESSOR.
5. No sign, advertisement, notice, or other lettering shall be
exhibited, inscribed, painted, or affixed by any LESSEE on any part of the
outside of the Premises or the Building or on the inside of the Premises if the
same is visible from the outside of the Premises without the prior written
consent of LESSOR, except that the name of LESSEE may appear on the entrance
door of the Premises.
In the event of the violation of the foregoing by any LESSEE, LESSOR
may remove same without any liability, and may charge the expense incurred by
such removal to LESSEE or LESSEES violating this rule. Interior signs on doors
and directory tablet shall be inscribed, painted, or affixed for each LESSEE by
LESSOR at the expense of such LESSEE, and shall be of a size, color, and style
acceptable to LESSOR.
6. Except with prior written consent of LESSOR and as LESSOR may
direct, no LESSEE shall xxxx, paint, drill into, or in any way deface any part
of the Premises or the Building of which they form a part or cut or string
wires, lay linoleum, or other similar floor covering, so that the same shall
come in direct contact with the floor of the Premises, and, if linoleum or other
similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive material
being expressly prohibited.
7. Except with the prior written consent of LESSOR, no additional
locks or bolts of any kind shall be placed upon any of the doors or windows by
any LESSEE, nor shall any changes be in existing locks or mechanism thereof. If
requested, LESSEE shall provide LESSOR with a copy of a key for all new locks or
bolts. Each LESSEE shall, upon the termination of his Tenancy, restore to LESSOR
all keys either furnished to or otherwise procured by, such LESSEE. In the event
of the loss of any keys furnished to LESSEE, LESSEE shall pay to LESSOR the cost
thereof.
8. LESSEE shall use reasonable care in delivering and removing from
the Premises freight, furniture, business equipment, merchandise and bulky
matter of, any description.
9. Canvassing, soliciting, and peddling in the Building is prohibited
and each LESSEE shall cooperate to prevent the same.
10. LESSOR shall have the right to prohibit any advertising by any
LESSEE which, in LESSOR's reasonable opinion, tends impair the reputation of the
Building or its desirability as building for offices, and upon written notice
from LESSOR, LESSEE shall refrain from or discontinue such advertising.
11. Except for those items necessary for the cleaning and maintenance
of LESSEE's business, including office supplies, which shall be properly stored
to minimize the risk of fire and explosion, LESSEE shall not bring or permit to
be brought or kept in or on the Premises, any inflammable, combustible, or
explosive fluid, material, chemical or substance, or cause or permit any odors
of cooking or other process, at any unusual or other objectionable odors to
permeate in or emanate from the Premises.
