Exhibit 10.2
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SUBLEASE
Agreement made this 28th day of June, 1999, between GIGA INFORMATION
GROUP, INC. (hereinafter "Sublessor") and INCERT SOFTWARE CORPORATION
(hereinafter "Sublessee").
WITNESSETH
WHEREAS, on or about October 31, 1995, Cambridge 1400 Limited
Partnership (the "Original Landlord") leased certain premises consisting of
7,868, square feet of space, more or less on the first floor of Building No.
1400, One Xxxxxxx Square (hereinafter the "Premises") in Cambridge,
Massachusetts, to Sublessor, pursuant to a written lease, a copy of which is
attached hereto as Exhibit A, (hereinafter the "Master Lease");
WHEREAS, on or about Cambridge 1400 Limited Partnership, the Original
Landlord conveyed the land and building of which the Premises are a part to One
Xxxxxxx, LLC ("Landlord");
WHEREAS, Sublessee desires to sublease the Premises from Sublessor
and Sublessor desires to sublet the Premises to Sublessee;
NOW THEREFORE, for valuable consideration each to the other paid, the
receipt and sufficiency of which are hereby acknowledged, Sublessor and
Sublessee hereby agree as follows:
1. The Premises and Term.
A. Sublessor hereby leases to Sublessee and Sublessee hereby
sublets from Sublessor the Premises for a term of fourteen
(14) months (hereinafter the "Term") commencing on September
1, 1999, and ending October 31, 2000, unless sooner terminated
as herein provided. Notwithstanding the provisions of Section
24 of the Master Lease, Sublessee shall have no right to
extend the Term of this Sublease.
B. Sublessee shall have as appurtenant to the Premises the right
to use, in common with Sublessor and others entitled thereto,
the driveways, roadways, hallways, elevators and stairways
necessary for access to the Premises.
2. Basic Rent. During the Term, Sublessee shall pay to Sublessor, as
Base Rent for the Premises. One Hundred Eighty-eight Thousand One
Hundred Seventy-six and 22/100 ($188,176.22) Dollars, in equal
monthly installments of Thirteen Thousand Four Hundred Forty-one and
17/100 ($13,441.17) Dollars, payable in advance on the first day of
each and every month. All payments shall be due without billing or
demand and without deduction, set-off or counterclaim. If the Term
commences or ends other than on the first day of a month, then the
rent for such month shall be prorated for such fractional period.
3. Additional Rent. In addition to the Base Rent to be paid by
Sublessee, Sublessee shall pay to Sublessor, during the Term of this
Sublease, as additional rent (hereinafter "Additional Rent") all
costs, charges and expenses imposed on Sublessor in the Master Lease,
including, but not limited to, all charges as provided for in Section
5 of the Master Lease, which Sublessor, as Lessee under the Master
Lease, is obligated to pay pursuant to the terms of the Master Lease,
other than Base Rent as provided for in Section 4 of the Master
Lease. Sublessor shall provide Sublessee with all calculations of,
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and demands for, any such costs, charges, expenses and Additional
Rent provided to Sublessor by Landlord.
4. Additional Covenants of Sublessee and Sublessor.
A. Except as otherwise expressly provided herein, all of the
terms, covenants and conditions of the Master Lease are
incorporated herein by reference and made a part hereof with
the same force and effect as if set forth in their entirety,
provided that the terms and conditions hereof shall be
controlling whenever the terms and conditions of the Master
Lease are contradictory to or inconsistent with the terms and
conditions hereof, and provided further that those
incorporated provisions of the Master Lease which are
protective and for the benefit of Landlord shall in this
Sublease be deemed to be protective and for the benefit of
both Landlord and Sublessor, that references therein to
"Lessor" and "Lessee" shall be deemed to refer to "Sublessor"
and "Sublessee", respectively, that references therein to
"this lease" shall be deemed to refer to "this Sublease" and
that references therein to the "Leased Premises" or "Premises"
shall be deemed to refer to the "Premises" described herein.
Sublessee covenants and agrees to be bound by the same terms
and conditions as Sublessor as tenant under the Master Lease
is now bound or may hereafter be bound under the Master Lease,
and by all amendments and modifications thereof, and to
observe, keep and perform all of the terms, covenants,
agreements and conditions contained in the Master Lease to be
performed on the part of Sublessor as a tenant thereunder,
excepting the obligation to pay rent to Landlord in such a
manner as will not cause a breach of the Master Lease and
neither to do nor cause to be done, nor suffer, nor permit any
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act or thing to be done which would or might cause the Master
Lease or the rights of Sublessor as tenant thereunder to be
canceled, terminated, forfeited or surrendered, or which would
or might make Sublessor liable for any damages, claims or
penalties. The foregoing agreement of Sublessee to observe and
be bound by the covenants and agreements of Lessee under the
Master Lease shall accrue to the benefit of Sublessor as if
Sublessor were Lessor under the Master Lease.
B. To the maximum extent that this agreement may be made
effective according to law, Sublessee agrees that it will
protect and indemnify Sublessor and save Sublessor harmless
from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses
(including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against
Sublessor by reason of (i) any, accident, injury to or death
of persons or damage to or loss of property, by theft or
otherwise, occurring on or about the Premises or any part
thereof, unless arising out of the negligence of Sublessor or
Sublessor's agents or employees, and (ii) any failure on the
part of Sublessee to perform, fulfill or observe any of
Sublessee's representations, warranties or agreements set
forth in this Sublease. In case any action, suit or proceeding
is brought against Sublessor by reason of any such occurrence,
Sublessee, upon Sublessor's request, shall at Sublessee's
expense, cause such action, suit or proceeding to be resisted
and defended by counsel designated by Sublessor.
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C. This Sublease and all of the terms, covenants,
representations, warranties, agreements and conditions hereof
are in all respects subject and subordinate to the Master
Lease.
D. Notwithstanding anything contained in this Sublease to the
contrary, Sublessor shall not have any obligation to
construct, maintain, alter or repair the Premises, the land on
which they are located and the building of which they are a
part, or any parking area or other facility or improvement
thereon or appurtenant thereto or to provide Sublessee with
any service of any kind or description whatsoever, nor shall
Sublessor be responsible for the performance of Landlord's
obligations under the Master Lease including, without
limitation, Landlord's obligations described in Sections 3,
20, 24 and 26 of the Master Lease, which Sections are not
included herein by reference, or be liable in damages or
otherwise for any negligence of Landlord or for any damage or
injury suffered by Sublessee as a result of any act or failure
to act by Landlord or any default by Landlord in fulfilling
its obligations under the Master Lease. If Landlord shall
default in any of its obligations to Sublessor, Sublessor
shall cooperate with Sublessee, upon request by Sublessee, at
no out-of-pocket cost or expense to Sublessor, in enforcing
Sublessor's rights against Landlord under the Master Lease.
E. Sublessor shall not incur any liability whatsoever to
Sublessee for any injury, inconvenience, incidental or
consequential damages incurred or suffered by Sublessee as a
result of the exercise by Landlord of any of the rights
reserved to Landlord under the Master Lease, nor shall such
exercise constitute a constructive eviction or a default by
Sublessor hereunder.
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F. The Premises are being leased in an "as is" condition"
provided, however, that Sublessor shall deliver the Premises
to Sublessee in a broom-clean condition.
G. Subject to the terms of the Sublease, Sublessee shall use the
Premises only for general office use as provided in Section 7
of the Master Lease.
5. Defaults by Sublessee.
A. In the event that Sublessee shall default in the payment of
Base Rent or Additional Rent hereunder, or default in the
performance or observance of any of the terms, conditions and
covenants of this Sublease, Sublessor, in addition to and not
in limitation of any rights otherwise available to it, shall
have the same rights and remedies with respect to such default
as are provided to Lessor under the Master Lease with respect
to defaults by Lessee thereunder, with the same force and
effect as though all such provisions relating to any such
default or defaults were herein set forth in full, and
Sublessee shall have all of the obligations of Lessee under
the Master Lease with respect to such default.
B. Sublessor may cure such default for the account of Sublessee,
and any amount paid or incurred by Sublessor in so doing shall
be deemed paid or incurred for the account of Sublessee and
Sublessee agrees to reimburse Sublessor therefor and save
Sublessor harmless therefrom; provided, that Sublessor may
cure any such default as aforesaid prior to the expiration of
any waiting period if reasonably necessary to protect
Sublessor's interests under the Master Lease or to prevent
injury or damage to persons or property. If Sublessee shall
fail to reimburse Sublessor upon demand for any amount paid
for the account of Sublessee hereunder, said amount shall be
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added to and become due as a part of the next payment of Base
Rent due hereunder.
C. Notwithstanding anything to the contrary herein contained, for
the purpose of determining the occurrence of events of default
hereunder, the periods of thirty (30) days and ninety (90)
days set forth in Section 18 of the Master Lease shall be
twenty-five (25) days and sixty (60) days, respectively.
6. Termination of Sublease. This Sublease shall terminate upon any
termination of the Master Lease for any reason whatsoever which
deprives Tenant under the Master Lease of possession of the Premises,
without any liability therefor upon the part of Sublessor to
Sublessee and with the same force and effect as if the date of such
termination had expressly been provided in this Sublease as the date
of termination hereof.
7. Assignment. Sublessee shall not assign this Sublease, nor sublet or
permit the Premises or any portion thereof to be used by others.
8. Warranties and Representations. Sublessee hereby represents and
warrants that in entering into this Sublease, Sublessee has not
relied upon or been induced by any statements or representations of
any person with respect to the physical condition of the Premises or
with respect to any other matter affecting the Premises or this
Sublease, but has relied solely upon such investigations,
examinations and inspections as Sublessee has chosen to make or have
made. Sublessee acknowledges that Sublessee has been afforded the
opportunity for full and complete investigation, examination and
inspection.
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9. Separate and Independent Activities of Sublessee and Sublessor.
Sublessee and Sublessor and their respective employees and invitees
shall in all respects operate separately and independently of each
other, and nothing contained herein shall be deemed in any way to
constitute Sublessee and Sublessor as partners or joint or
co-venturers.
10. Covenant of Quiet Enjoyment. Sublessee, upon paying the Basic Rent,
and all Additional Rent and other charges herein provided for, and
observing and keeping all covenants, agreements, and conditions of
this Sublease on its part to be kept, shall quietly have and enjoy
the Premises during the term of this Sublease without hindrance by
anyone claiming by, through or under Sublessor as such, subject,
however, to the terms of this Sublease. Sublessor specifically
disclaims any additional covenant of quiet enjoyment, either express
or implied.
11. Security Deposit Concurrently with the execution and delivery of this
Sublease, Sublessee shall deposit Twenty Six Thousand, Eight Hundred
Eighty Two Dollars and 33/100 ($26,882.33) Dollars as a security
deposit (the "Security Deposit") and Sublessor shall hold the same
throughout the Term of this Sublease as security for the performance
by Sublessee of all obligations on the part of Sublessee to be
performed hereunder. Sublessor shall have the right from time to time
without prejudice to any other remedy Sublessor may have on account
thereof, to apply such deposit, or any part thereof, to Sublessor's
damages arising from, or to cure, any default by Sublessee. If
Sublessor shall so apply any or all of such Security Deposit,
Sublessee shall immediately deposit with Sublessor the amount so
applied to be held as security hereunder. There then existing no
default by Sublessee, Sublessor shall return the deposit, or so much
thereof as shall theretofore not been applied in accordance with the
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terms of this Section, to Sublessee on the expiration or earlier
termination of the Term of this Sublease and surrender of possession
of the Premises by Sublessee to Sublessor in accordance with the
terms hereof. Sublessor shall have no obligation to pay interest on
the same and shall have the right to commingle the Security Deposit
with Sublessor's other funds.
12. Miscellaneous.
A. Effect. This Sublease shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assigns.
B. Applicable Law. This Sublease shall be deemed made and shall be
governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
C. Modification. Neither this Sublease nor any provision thereof may be
waived, modified, amended, discharged or terminated, except by an
instrument in writing signed by the party against which the enforcement
of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
D. Landlord'sApproval. The obligations of the parties hereunder are
subject to the written approval of Landlord under the Master Lease. If,
for any reason whatsoever, Landlord under the Master Lease refuses to
consent to this Sublease within thirty (30) days after the date of
execution hereof, this Sublease shall be void and of no force and
effect and neither party shall have recourse against the other
hereunder.
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E. Severability. If any term or provision of this Sublease or the
application thereof to any person or circumstance shall to any extent
be held invalid or unenforceable, the remainder of this Sublease or the
application of such term or provision to other persons or circumstances
shall not be affected thereby, and each term and provision of this
Sublease shall be valid and enforceable to the fullest extent permitted
by law.
F. Sublessor's Consent. Sublessor's refusal to consent to or to approve
any matter or thing, whenever, Sublessor's consent or approval is
required under this Sublease or the Master Lease, shall be deemed
reasonable if Landlord under the Master Lease has refused to give such
consent or approval.
G. No Broker. Sublessee and Sublessor each hereby represents and warrants
to the other that it has not dealt with any broker in connection with
the transactions contemplated in this Sublease other than Hunneman Real
Estate Corporation and Insignia/ESG (the "Brokers"). Sublessee and
Sublessor each agrees to indemnify and hold Sublessor harmless the
other from and against all claims, demands and damages suffered as a
result of claims made with respect to this Sublease by any real estate
broker other than the Brokers.
13. Additional Provisions.
A. Sublessor warrants and represents to Sublessee that it has no knowledge
of any default by itself or by Landlord under the Master Lease; that
the Master Lease is in full force and effect; and that Sublessor has a
good right to sublease its interest under the Master Lease provided
Sublessor obtains the consent of Landlord under Article 12 of the
Master Lease.
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B. Sublessor agrees (i) to pay and perform all of its obligations under
the Master Lease except to the extent such obligations are assumed by
Sublessee hereunder, (ii) not to voluntarily surrender possession of
the Premises or agree to an early termination of the Master Lease, and
(iii) without the prior written consent of Sublessee, not to enter into
any amendment or modification of the Master Lease that adversely
affects the rights or obligations of Sublessee under this Sublease.
C. Subject to the consent of Landlord to the extent required under Article
12 of the Master Lease, Sublessee shall have the right to assign this
Sublease without the consent or Sublessor to any entity acquiring,
acquired by, controlling, controlled by or under common control with
Sublessee ; provided, however, that any such entity has a net worth
equal to or greater than Sublessee on either (i) the date hereof, or
(ii) the date Sublessee's interest transferred, whichever is greater.
D. To the maximum extent that this agreement may be made effective
according to law, Sublessor agrees that it will protect and indemnify
Sublessee and save Sublessee harmless from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys; fees and
expenses) imposed upon or incurred by or asserted against Sublessee to
the extent arising from (i) the negligence or willful misconduct of
Sublessor or Sublessor's agents or employees, and (ii) any failure on
the part of Sublessor to perform, fulfill or observe any of Sublessor's
representations, warranties or agreements set forth in this Sublease.
E. Sublessee shall not be responsible for compliance with any laws,
regulations, or the like requiring (i) structural repairs or
modifications or (ii) repairs or modifications to the utility or
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building service equipment or (iii) installation of new building
service equipment, such as fire detection or suppression equipment,
unless such repairs, modifications, or installations shall (a) be due
to Sublessee's particular manner of use of the Premises (as opposed to
office use generally), or (b) be due to the negligence or willful
misconduct of Sublessee or any agent, employee, or contractor of
Sublessee.
F. In the event of any overpayment by Sublessee of any additional rent or
estimated additional rent (including any abatement in taxes applicable
to the term hereof) under Article 5 of the Master Lease, any
reimbursements of such overpayment shall be collected by Sublessor and
passed through by Sublessor to Sublessee.
G. Sublessor shall at no out of pocket cost to Sublessor, cooperate with
Sublessee in making application to Landlord to reduce the number of
parking spaces from time to time for which Sublessee shall have the
right to use and for which Sublessee shall be obligated to pay under
Article 4 of the Lease, provided that the Landlord's refusal to reduce
the number of parking spaces shall not be a default by Sublessor
hereunder.
H. Sublessor shall at no out of pocket expense to Sublessor, cooperate
with Sublessee in making application to Landlord for such signage as to
which Sublessee is entitled under the Master Lease as incorporated
herein, and Sublessor agrees to remove its signage to make room for
Sublessee's signage.
I. In the event Sublessor is able to deliver the Premises to Sublessee for
occupancy on a date earlier than September 1, 1999, then the term of
this Sublease shall commence at such earlier date as to which Sublessor
and Sublessee shall mutually agree, without changing the expiration
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date of the term as set forth herein, and in such event the parties
shall execute a mutually acceptable rent commencement memorandum
setting forth such earlier commencement date.
J. Sublessor shall deliver the Premises to Sublessee in neat and clean
condition, vacuumed, and without broken glass, fixtures or walls.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals on the day and year first above written.
SUBLESSOR:
GIGA INFORMATION GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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SUBLESSEE:
INCERT SOFTWARE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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PRESIDENT
