EXHIBIT 10.4
SUBLEASE
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Effective July 1, 2000, INSO CORPORATION, a Delaware corporation
("Sublandlord"), and HOUGHTON MIFFLIN COMPANY, a Massachusetts corporation
("Subtenant"), hereby agree as follows:
1. Xxxxxxxxx. As used herein, the term "Xxxxxxxxx" shall mean the Lease
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dated March 3, 2000, from OMV Associates Limited Partnership ("OMV"), as
Landlord, to Sublandlord, as Tenant, of approximately 10,741 square feet (the
"Premises"), on the third floor of the building located at 00 Xx. Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Building") more particularly described in, and
shown as Exhibit A to, the Xxxxxxxxx. A copy of the Xxxxxxxxx is attached hereto
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as Exhibit A and incorporated herein by reference to the extent set forth
herein.
2. Sublease. Sublandlord hereby subleases to Subtenant the Premises,
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subject to the terms and conditions hereof. This Sublease is a sublease under
the Xxxxxxxxx and is subject to all of the terms and provisions thereof. Subject
to the provisions hereof, this Sublease shall be deemed to contain all of the
same covenants, agreements, conditions, terms and provisions as contained in the
Xxxxxxxxx, mutatis mutandis (the necessary changes being made to reflect the
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fact that Sublandlord is the landlord and the Subtenant is the tenant) except to
the extent otherwise provided herein and except that the following provisions of
the Xxxxxxxxx shall not apply hereto:
Basic Rent as set forth in Section 1 and Section 4
Section 26 (Condition and Area), except as set forth in Section 8 of this
Sublease
Section 35 (Rent Credit)
3. Obligations of Parties. Subtenant hereby agrees to perform all of the
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obligations applicable to the Premises imposed on Sublandlord as Tenant under
the Xxxxxxxxx except for the payment of rent and other charges to OMV, subject
to Sections 5, 6 and 7 hereof and except as expressly provided for herein.
Sublandlord shall have no obligations or liabilities under this Sublease except
as specifically provided herein.
This Sublease is subject and subordinate to the Xxxxxxxxx and shall
terminate upon the expiration or earlier termination of the Xxxxxxxxx, except as
may otherwise be agreed to by OMV pursuant to the Consent of Landlord to
Xxxxxxxxx (the "Consent") attached hereto as Exhibit B, provided, however, that
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the Sublandlord shall indemnify and hold harmless the Subtenant against all
losses, damages and costs, including reasonable attorneys fees, arising or
resulting from any termination of the Xxxxxxxxx occurring as a result of any act
or omission of the Sublandlord. The term "omission" as used in the immediately
preceding sentence shall not include the failure of the Sublandlord to perform
any obligation under the Xxxxxxxxx, including, without limitation, the payment
of rent to OMV, if such failure on the part of the Sublandlord arises or results
from the failure of the Subtenant to fulfill its obligations under this
Sublease.
The insurance maintained by Subtenant pursuant to Section 17 of the
Xxxxxxxxx shall name Subtenant, Sublandlord, OMV and any other parties required
by such Section as insureds.
Subtenant's indemnification obligations shall be deemed to be the same as
those set forth in Section 16 of the Xxxxxxxxx, which Section is incorporated
herein by reference, and shall be for the benefit of Sublandlord and OMV.
"Lessor" as used in said Section 16 shall mean and refer to both Sublandlord and
OMV.
As between the Sublandlord and the Subtenant, except for the intentional
acts or negligence of the Sublandlord, the Sublandlord shall not be responsible
or liable for any damage or injury to any property, fixtures, buildings or
improvements, or to any person or persons, at any time on the Premises,
including any damage or injury to Subtenant or to any of Subtenant's officers,
agents, servants, employees, contractors, invitees, customers or Subtenants.
4. Term; Delivery of Premises. The term of this Sublease shall begin on
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July 1, 2000 (the "Commencement Date") and shall expire on the expiration of the
Initial Term of the Xxxxxxxxx (as defined in the Xxxxxxxxx). Subtenant agrees to
accept the Premises in its "as is" condition on the Commencement Date, without
any obligation on the part of Sublandlord to construct any improvements or
perform any work therein whatsoever. Sublandlord makes no representation or
warranty with respect to the condition thereof.
5. Sublease Rent. Subtenant shall pay to Sublandlord Sublease Rent in the
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amount of $429,640.00 per annum for the term of this Sublease payable in equal
monthly installments of $35,803.33 in advance on or before the first day of each
calendar month, without deduction or set off, such installments to be made in
the manner herein set forth.
Pursuant to Section 13 of the Xxxxxxxxx, fifty percent of that portion of
the Sublease Rent which exceeds the Basic Rent owed by Sublandlord to OMV under
the Xxxxxxxxx ("Excess Sublease Rent") shall be paid to OMV. The allocation of
the Sublease Rent due to Sublandlord and to OMV in accordance with the Xxxxxxxxx
are as follows:
Sublandlord's Share of Sublease Rent 50% of Excess Sublease Rent
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Lease Year 1: $29,003.73 per month $6,799.60 per month
Lease Year 2: $29,003.73 per month $6,799.60 per month
Lease Year 3: $29,233.14 per month $6,570.19 per month
Lease Year 4: $29,462.56 per month $6,340.77 per month
Lease Year 5: $29,462.56 per month $6,340.77 per month
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to Sublandlord, Subtenant and Sublandlord agree that Subtenant shall pay
Sublease Rent simultaneously to OMV and Sublandlord each month as follows:
Until the Rent Credit (as defined in the Xxxxxxxxx) has been exhausted,
Subtenant shall pay (a) to Sublandlord, Sublandlord's Share of Sublease
Rent and (b) to OMV, 50% of Excess Sublease Rent. Upon exhaustion of the
Rent Credit (as will be evidenced by at least thirty (30) days prior
written notice from Sublandlord to Subtenant), Subtenant shall pay (i) to
Sublandlord, 50% of Excess Sublease Rent and (ii) to OMV, Sublandlord's
Share of Sublease Rent.
6. Electrical Charge. Subtenant shall pay directly to OMV the
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"Electricity Cost" for the Premises in accordance with Section 7 of the
Xxxxxxxxx.
7. Escalation and Other Charges. During the term of this Sublease,
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Subtenant shall pay directly to OMV, the Additional Rent due under the Xxxxxxxxx
as set forth in Section 6 of the Xxxxxxxxx and any other additional rent and
other charges under the Xxxxxxxxx allocable to the Premises.
8. Improvements. Subtenant shall obtain the consent of OMV to any
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improvements or alterations Subtenant shall desire to make in the Premises in
accordance with the provisions of Section 12 of the Xxxxxxxxx as incorporated
herein and such alterations or improvements shall be performed and maintained in
accordance with such Section 12 and at Subtenant's sole cost and expense.
9. Notice. Subject to the provisions of Section 20 of the Xxxxxxxxx, all
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notices or communications authorized or required hereunder shall be given to
Sublandlord at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: General
Counsel, and to Subtenant at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention:
General Counsel, with a copy to the same address to Attention: Director of
Corporate Services, by certified or registered mail, return receipt requested,
or by a national overnight delivery service which maintains delivery records.
Either party may by written notice to the other designate another address of
such party for the purposes of this section.
10. Assignment and Subletting. Notwithstanding any term or provision of
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the Xxxxxxxxx to the contrary, Subtenant shall not assign this Sublease or
sublet all or any part of the Premises without first obtaining the consent of
OMV in accordance with the provisions of Section 13 of the Xxxxxxxxx as
incorporated herein and providing written evidence of such consent and a copy of
such sublease or assignment to Sublandlord. Without limiting the provisions of
said Section 13, Subtenant acknowledges and agrees that, in the event of such
assignment or sublease, Subtenant shall remain liable for Subtenant's
obligations under the Sublease and shall not be released from such obligations
without Sublandlord's consent, which consent shall not be unreasonably withheld.
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11. Broker. Subtenant represents and warrants to Sublandlord that it has
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not directly or indirectly dealt with any broker or agent with respect to the
Premises, or had its attention called to the Premises by any broker or agent.
Subtenant agrees to save harmless and indemnify Sublandlord against any claims
for a commission arising out of a breach of Subtenant's representations and
warranties in this Section 11.
12. Parties. The terms "Sublandlord" and "Subtenant" were used herein
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shall include their respective successors and assigns where the context so
requires or permits and this Sublease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
13. Amendments to Xxxxxxxxx. Sublandlord covenants and agrees with
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Subtenant that no provisions of the Xxxxxxxxx shall be amended without
Subtenant's prior written consent, which consent may be withheld in Subtenant's
sole discretion, provided, however, that Sublandlord may amend the Basic Rent
and Rent Credit provisions of the Xxxxxxxxx without Subtenant's consent, but
shall deliver notice and a copy of any such amendment to Subtenant.
Witness the execution hereof under seal as of the date first above written.
SUBLANDLORD:
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INSO CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President and
General Counsel
SUBTENANT:
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HOUGHTON MIFFLIN COMPANY
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
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CONSENT OF LANDLORD UNDER XXXXXXXXX
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This Consent of Landlord under Xxxxxxxxx is made as of the 1/st/ day of
July, 2000, by and among OMV Associates Limited Partnership ("Landlord"), Inso
Corporation ("Tenant") and Houghton Mifflin Company ("Subtenant").
WHEREAS, Landlord has leased approximately 10,741 square feet (the
"Premises"), on the third floor of the building located at 00 Xx. Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Building") to Tenant under a Xxxxxxxxx dated
March 3, 2000 (the "Xxxxxxxxx").
WHEREAS, Tenant desires to sublease the Premises to Subtenant pursuant to a
Sublease of even date herewith (the "Sublease");
WHEREAS, Landlord's consent to the Sublease is required in accordance with
the terms of Section 13 of the Xxxxxxxxx; and
WHEREAS, all capitalized terms used herein and not otherwise defined shall
have the same meaning attributed to such terms in the Xxxxxxxxx.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto hereby agree as follows:
1. Consent. Landlord hereby consents to the Sublease, subject to the terms
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and conditions set forth herein.
2. Landlord's Obligations. Landlord and Tenant hereby covenant and agree with
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Subtenant that Landlord's obligations under the Xxxxxxxxx run to the
benefit of Subtenant and may be enforced by Subtenant directly against
Landlord, provided, that Subtenant shall provide written notice to Tenant
of any default of Landlord under the Xxxxxxxxx simultaneously with the
delivery of any such notice to Landlord by Subtenant and, further provided,
that Subtenant shall take no action in connection with the enforcement of
such Landlord obligations which may cause a default under the Xxxxxxxxx,
without Tenant's prior written consent. Landlord further agrees to deliver
copies of any other notices sent to Sublandlord (including any rent bills
issued by Landlord) simultaneously to Subtenant at the address set forth
for Subtenant in the Sublease.
3. Landlord Consents. Landlord hereby covenants and agrees with Subtenant
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that, in the event that Subtenant requests Landlord's consent pursuant to
any applicable section of the Xxxxxxxxx, and, pursuant to such section of
the Xxxxxxxxx Landlord has agreed with Tenant not to unreasonably withhold
its consent, then, Landlord shall not unreasonably withhold its consent to
such request by Subtenant.
4. In consideration of the foregoing Sublease, and intending to be legally
bound, Landlord hereby represents, warrants and agrees as follows:
(a) The Xxxxxxxxx is unmodified and in full force and effect, has not been
otherwise assigned or subleased, and represents the entire agreement
between Landlord and Tenant regarding the Premises, and there are no
other agreements, options, leases or understandings of any nature
between the Landlord and Tenant, or with any other party for the
lease, use, occupancy or purchase of the Premises.
(b) There are no existing set-offs or defenses against the enforcement by
Tenant of any of the agreements, terms, covenants or conditions of the
Xxxxxxxxx on the part of Landlord to be performed or complied with.
(c) The Area A Commencement Date under the Xxxxxxxxx is March 3, 2000, the
Area B Commencement Date under the Xxxxxxxxx is May 1, 2000 and the
term of the Lease, for both Area A and Area B, expires on March 31,
2005.
(d) Tenant is not in default under the Xxxxxxxxx to date and, to the best
of Landlord's knowledge, there exists no state of facts which with the
passage of time or the giving of notice could ripen into a default.
5. Consent to Renovations. Landlord acknowledges that Subtenant has submitted
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to Landlord for Landlord's review plans for alterations to the Premises
("Subtenant's Work") in accordance with Section 12 of the Xxxxxxxxx.
Landlord hereby consents to the Subtenant's Work as shown on the demolition
plans submitted to Landlord by Subtenant on May 2, 2000.
6. Notice. All notices given hereunder shall delivered in accordance with the
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applicable provisions of the Xxxxxxxxx and Sublease.
Witness the execution hereof under seal as of the date first above written.
LANDLORD:
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OMV ASSOCIATES LIMITED PARTNERSHIP
By: Park Square Corporation,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
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TENANT:
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INSO CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President and
General Counsel
SUBTENANT:
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HOUGHTON MIFFLIN COMPANY
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
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