Exhibit 10.12
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is made as of the 15th day of June,
1999 by and between FASTech Integration, Inc., a Delaware corporation, having an
address at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Sublandlord")
and Xxxxx Advisors, Inc., a Delaware corporation, having an address at 00 Xxxxxx
Xxxx, Xxxxxxx, XX 00000 ("Subtenant").
WHEREAS, FASTech Integration Inc., as tenant, and Xxxxxxxx X. Xxxxx and
Xxxxx X. Xxxxxx, as Trustees of Old Bedford Road Realty Trust (together, with
its successor-in-interest, LadyLin Properties Limited Partnership, "Prime
Landlord") entered into an Office Lease dated May 14, 1991, as amended by
Amendment No. 1 of Lease dated as of May 21, 1992, as further amended by Second
Amendment to Lease dated as of August 22, 1994, as further amended by Third
Amendment to Lease dated as of May 4, 1995, as further amended by Fourth
Amendment to Lease dated as of August 28, 1995, as further amended by Fifth
Amendment to Lease dated as of June 1, 1996 (together, the "Prime Lease")
pursuant to which Sublandlord leased from Prime Landlord certain space more
particularly described in the Prime Lease (herein referred to as the "Premises")
in the building known as 00 Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx (the
"Building"), a copy of which Prime Lease is attached as Exhibit A hereto; and
WHEREAS, Sublandlord desires to sublease to Subtenant and Subtenant
desires to hire from Sublandlord a portion of the Premises on the first floor of
the Building consisting of approximately twenty-two thousand five hundred
(22,500) rentable square feet, as cross-hatched on the floor plan attached
hereto as Exhibit B (the "Sublease Premises") upon all the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, Sublandlord and Subtenant, for themselves, their successors and
assigns, hereby agree as follows:
1. Sublease. Upon the terms and conditions hereinafter set forth,
Sublandlord hereby subleases to Subtenant and Subtenant hereby hires from
Sublandlord the Sublease Premises. Subtenant shall also have (i) the exclusive
right to use twenty-two (22) parking spaces in the parking areas on the Lot (as
defined in the Prime Lease) which are designated for Sublandlord's exclusive use
as Tenant under the Prime Lease, and (ii) the nonexclusive right to use other
parking spaces in the parking areas on the Lot which are available for
Sublessor's use as Tenant under the Prime Lease, subject to the terms of the
Prime Lease and Prime Landlord's rights thereunder. Notwithstanding anything to
the contrary contained herein, Subtenant shall have no right to use any portion
of the Storage Space (as defined in the Prime Lease).
2. Term. The term of this Lease ("Term") shall commence on July 1, 1999
(the "Commencement Date"), and, unless earlier terminated as herein provided,
shall end on September 30, 2000. Notwithstanding the foregoing, Subtenant may,
at its sole risk, occupy the Sublease Premises or any part thereof, prior to the
Commencement Date, for the purposes of installing wiring, or fixturing or
otherwise readying the Sublease Premises for Subtenant's use, in which event
Subtenant's occupancy shall be subject to all of the terms, covenants and
conditions set forth herein, except that Subtenant shall not be obliged to pay
Fixed Rent, or
additional rent for electricity during any such period of pre-term occupancy.
Such pre-term occupancy shall be conditioned upon Subtenant and Subtenant's
agents, contractors, workmen, mechanics, suppliers and invitees, working in
harmony with Sublandlord and Sublandlord's agents and with other tenants and
occupants of the Building. If at any time such entry shall cause or threaten to
cause disharmony or interference therewith, Sublandlord shall have the right to
withdraw such right of entry upon twenty-four (24) hours written notice to
Subtenant.
3. Rent. During the Term, Subtenant shall pay to Sublandlord on the
Commencement Date and on the first day of each month thereafter fixed rent
("Fixed Rent") at the rate of Three Hundred Ninety-Seven Thousand Five Hundred
Dollars($397,500.00) per annum, payable in equal installments of Thirty-Three
Thousand One Hundred Twenty Five Dollars ($33,125.00) per calendar month, and
proportionately at such rate for any partial month.
Subtenant shall also pay Sublandlord on the Commencement Date and on the
first day of each month thereafter during the Term, additional rent on account
of electricity for the Sublease Premises not separately metered at the rate of
Twenty-Two Thousand Five Hundred and 00/100 Dollars ($22,500.00) per annum,
payable in equal installments of One Thousand Eight Hundred Seventy-Five and
00/100 Dollars ($1,875.00) per calendar month, and proportionately at such rate
for any partial month. In addition, Subtenant shall reimburse Sublandlord for
its pro rata share of any charges in excess of the foregoing that Sublandlord is
required to pay in connection with the Premises pursuant to Section 7.2 of the
Prime Lease.
4. Payment of Fixed Rent and Additional Rent. Fixed Rent and additional
rent for electricity, and all other charges, costs, and expenses payable by
Subtenant under this Sublease shall be paid to Sublandlord at the office of
Sublandlord set forth above or at such other place as Sublandlord may designate,
as and when the same become due and payable, without notice or demand therefor
and without any deduction, credit, set-off, counterclaim, or abatement
whatsoever. In every case in which Subtenant is required to pay to Sublandlord a
sum of money and said sum (or portion thereof) is not paid on or prior to the
fifth day following the due date thereof, Subtenant shall pay a late fee of Two
Hundred Dollars ($200.00), plus interest at an annual rate of fifteen percent
(15%) shall be payable from the date said sum becomes due and payable until the
date the amount is paid.
Within three (3) business days of full execution and Prime Landlord's
approval of this Sublease, Subtenant agrees to pay to Sublandlord $140,000.00
representing payment of the first three (3) months' Fixed Rent and additional
rent due under Sections 4 and 5 above, together with one (1) month's security
deposit as security for Subtenant's faithful performance of Subtenant's
obligations hereunder. If Subtenant fails to pay Fixed Rent, additional rent, or
any other charges due hereunder, or otherwise defaults with respect to any
provision of this Sublease, Sublandlord may use all or any portion of said
security deposit for the payment of any Fixed Rent, additional rent, or any
other charge due hereunder, to pay any other sum to which Sublandlord may become
obligated by reason of Subtenant's default, or to compensate Sublandlord for any
loss or damage which Sublandlord may suffer hereunder. If Sublandlord so uses or
applies all or any portion of said security deposit, Subtenant shall, within ten
(10) days after written demand therefor, deposit cash with Sublandlord in an
amount sufficient to restore said security deposit to its full amount.
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Sublandlord shall not be required to keep said security deposit separate from
its general accounts. If Subtenant performs all of Subtenant's obligations
hereunder, said security deposit, or so much thereof as has not heretofore been
applied by Sublandlord, shall be returned, without payment of interest or other
amount for its use, to Subtenant at the expiration of the Term, provided
Subtenant has vacated the Sublease Premises in accordance with the terms hereof.
No trust relationship is created herein between Sublandlord and Subtenant with
respect to said security deposit. Subtenant acknowledges that the security
deposit is not an advance payment of any kind or a measure of Sublandlord's
damages in the event of Subtenant's default. Subtenant will look solely to
Sublandlord for recovery of the security deposit.
5. Construction. Subtenant hereby accepts delivery of the Sublease
Premises in their "as-is" condition, as of the date hereof, free and clear of
Sublandlord's furniture and equipment, except for those items mutually agreed by
Sublandlord and Subtenant which are to remain in the Sublease Premises.
Subtenant acknowledges that no representations with respect to the condition of
the Sublease Premises and the fixtures therein have been made to Subtenant.
Alterations, additions and improvements shall conform to and be governed by the
provisions of the Prime Lease and as provided in the Prime Lease shall be part
of the Building. All such work shall be performed in accordance with plans and
specifications therefor which shall have first been submitted to and approved by
Prime Landlord and Sublandlord. Subtenant agrees to pay promptly when due the
entire cost of any work done on the Sublease Premises by Subtenant, its agents,
employees or independent contractors and not to cause or permit any liens for
labor or materials performed or furnished in connection therewith to attach to
the Sublease Premises or the Building and immediately to discharge any such
liens which may so attach. All alterations, installations and renovations to the
Sublease Premise other than those set forth on Exhibit C shall be subject to the
prior written consent of Sublandlord and Prime Landlord.
6. Use. The Sublease Premises may be used only for first class office
space, research and design, testing of computer-related equipment, and for no
other use whatsoever.
7. Utilities. Subtenant shall pay for all utilities consumed by it in the
Sublease Premises directly to the utility companies furnishing the same if the
utility is metered separately to the Sublease Premises. Neither Sublandlord nor
Prime Landlord shall in any way be liable or responsible to Subtenant for any
loss, damage or expense which Subtenant may sustain or incur if, during the
Term, either the quantity or the character of the utilities servicing the
Sublease Premises is changed or is no longer available or suitable for
Subtenant's requirements.
8. Sublease. This Sublease is subject to and subordinate in all respects
to the Prime Lease, and Subtenant shall not do or permit to be done anything, or
omit to do anything, or permit to be omitted to be done, anything which is, or
with the giving of notice or the passage of time or both would be, a default
under the Prime Lease or could cause such a default.
Not in limitation of the foregoing, there is attached to this Sublease as
Exhibit A, a copy of the Prime Lease which Sublandlord hereby warrants and
represents is a true and correct copy. Sublandlord hereby warrants and
represents that except as set forth in Exhibit A, the Prime Lease has not been
amended or modified in any way. Sublandlord further warrants and represents to
Subtenant that the Prime Lease is in full force and effect without default on
the part of
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Sublandlord (as Tenant thereunder) or, to the best of Sublandlord's knowledge,
Prime Landlord. Sublandlord agrees that it will not terminate the Prime Lease
without the prior written consent of Subtenant and that it will not enter into
an agreement with the Prime Landlord to terminate this Sublease. Sublandlord
further agrees that it will not amend the Prime Lease in any manner that will
materially and adversely affect the rights or obligations of Subtenant under
this Sublease without in each instance obtaining the prior written consent of
Subtenant, which consent may be withheld or conditioned at Subtenant's sole
discretion; provided, however, Subtenant agrees to consent or reject any such
amendment promptly after receipt of Sublandlord's written request for
Subtenant's consent to any such amendment.
Sublandlord agrees to perform all of its obligations as Tenant under the
Prime Lease, except to the extent that the same have been assumed by Subtenant
under this Sublease. Sublandlord agrees to request Prime Landlord to perform its
obligations under the Prime Lease, to the extent the same apply to the Sublease
Premises. Sublandlord further agrees to deliver to Subtenant copies of any
notice of default given by Sublandlord to Prime Landlord or given from Prime
Landlord to Sublandlord, promptly following the giving or receiving of any such
notice, as the case may be, with respect to alleged defaults under the Prime
Lease, to the extent the same apply to the Sublease Premises. If Sublandlord
defaults under the Prime Lease beyond the expiration of any applicable grace
period, to the extent Sublandlord elects not to cure such default, Sublandlord
agrees to assign to Subtenant any rights it may have to cure such default and
Sublandlord agrees to reasonably cooperate with Subtenant to the extent
necessary to cure such default, provided Sublandlord shall incur no costs
incident to such assignment.
Subtenant agrees to abide by all of the covenants and conditions of the
Prime Lease (including all rules and regulations promulgated by Prime Landlord)
as if the same were fully set forth herein to the extent that said covenants and
conditions pertain to the Sublease Premises and the occupancy and use thereof by
Subtenant and Subtenant agrees to be bound by and to perform and to comply with
the provisions of the Prime Lease as if it were the "Tenant" as that term is
used in the Prime Lease and as if the term "Premises" as that term is used
therein were the Sublease Premises demised under this Sublease, except to the
extent this Sublease expressly provides terms and conditions different from
those set forth in the Prime Lease. Subtenant shall not be bound by any
provisions of the Prime Lease requiring the payment of money, it being agreed
that the only payment obligations of Subtenant are as set forth in this Lease.
If the Prime Lease shall terminate for any reason prior to the termination or
expiration of this Sublease, Subtenant shall attorn to and become the Subtenant
of Prime Landlord, and as such Subtenant, shall pay directly to Prime Landlord
Fixed Rent, additional rent and all other payments required to be made by
Subtenant under the provisions of this Sublease and shall observe all the
covenants, terms and conditions of this Sublease and all the covenants, terms
and conditions of the Prime Lease to the extent required under this Sublease.
9. Assignment and Subletting. Except as provided herein, Subtenant shall
not assign, mortgage, pledge, encumber or otherwise transfer, whether by
operation of law or otherwise, this Sublease or the term and estate hereby
granted or any interest herein or therein, and neither the Sublease Premises nor
any part thereof will be encumbered in any manner by reason of any act or
omission on the part of Subtenant or used or occupied or permitted to be used or
occupied by anyone other than Subtenant or for any use or purpose other than a
use
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which is permitted hereunder to be sublet (which term without limitation will
include granting of concessions, licenses and the like) in whole or in part or
be offered or advertised for assignment or subletting without, in each instance,
having first received the prior written consent of Sublandlord, which
Sublandlord may in its sole discretion withhold. The provisions of the foregoing
sentence shall apply to a transfer by one or more shareholders of Subtenant's
stock (or a series of transfers) of the majority of the stock of Subtenant as if
such transfer of the majority of Subtenant's stock were an assignment of this
Sublease. As additional rent, Subtenant shall reimburse Sublandlord and Prime
Landlord promptly for reasonable legal and other expenses incurred by
Sublandlord and Prime Landlord in connection with any requests by Subtenant for
consent to an assignment or subletting. The provisions of Article V of the Prime
Lease are hereby made expressly applicable to Subtenant so that Prime Landlord
shall have against Subtenant all the rights with respect to any assignment or
subletting which are set forth in said Article V (provided, however, that
Subtenant shall not have the benefit of any additional rights granted to
Sublandlord, as Tenant, under said Article V).
10. Repairs. It is understood that Prime Landlord has certain obligations
to make repairs as set forth in Section 6.2 of the Prime Lease. Sublandlord
shall have no obligation or liability to Subtenant in the event that Prime
Landlord does not make such repairs except that Sublandlord shall request that
Prime Landlord make any such repairs. Subtenant agrees that it will keep the
Sublease Premises neat and clean and maintain the Sublease Premises in good
order, condition and repair excepting only for ordinary wear and tear, those
repairs for which Prime Landlord is responsible under the terms of the Prime
Lease, damage by fire and other casualty, and as a consequence of the exercise
of the power of eminent domain, or where the repairs are caused by any act or
neglect of Sublandlord or any contractor of Sublandlord; and Subtenant shall
surrender the Sublease Premises and all alterations, improvements, and additions
thereto at the end of the Term in such condition, first removing all goods and
effects of Subtenant and repairing any damage caused by such removal and
restoring the Sublease Premises and leaving them clean and neat. Subtenant shall
not permit or commit any waste, and Subtenant shall be responsible for the cost
of repairs that may be necessary by reason of damage to any portions of the
Building caused by Subtenant, Subtenant's contractors or Subtenant's invitees.
11. Self-Help. If Subtenant shall at any time default in the performance
of any obligations under this Sublease, Sublandlord shall have the right, but
shall not be obligated, to enter upon the Sublease Premises and to perform such
obligation notwithstanding the fact that no specific provision for such
substituted performance by Sublandlord is made in this Sublease with respect to
such default. In performing any such obligations, Sublandlord may make any
payment of money or perform any other act. All sums so paid by Sublandlord
(together with interest at the higher of (i) an annual rate of 18%, or (ii) the
maximum rate permitted by law) and all necessary incidental costs and expenses
in connection with the performance of any such act by Sublandlord, shall be
deemed to be additional rent under this Sublease and shall be payable to
Sublandlord immediately on demand. Sublandlord may exercise the foregoing rights
without waiving any other of its rights or releasing Subtenant from any of its
obligations under this Sublease.
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12. No Damage. Except as otherwise expressly provided in this Sublease,
Sublandlord shall not be liable to Subtenant for any compensation or reduction
of rent by reason of inconvenience or annoyance or for loss of business arising
from the necessity of Prime Landlord, Sublandlord or their respective agents
entering the Sublease Premises for any purpose in this Sublease authorized, or
for repairing the Sublease Premises or any portion of the Building however the
necessity may occur. In case Sublandlord is prevented or delayed from making any
repairs, alterations or improvements, or furnishing any services or performing
any other covenant or duty to be performed on Sublandlord's part, by reason of
any cause reasonably beyond Sublandlord's control, including, without
limitation, strike, lockout, breakdown, accident, order or regulation of or by
any governmental authority, or failure of supply, or inability by the exercise
of reasonable diligence to obtain supplies, parts or employees necessary to
furnish such services, or because of war or other emergency, or for any cause
due to any act or neglect of Subtenant or Subtenant's servants, agent,
employees, licensees or any person claiming by, through or under Subtenant,
Sublandlord shall not be liable to Subtenant therefor, nor, except as expressly
otherwise provided in this Sublease, shall Subtenant be entitled to any
abatement or reduction of Fixed Rent or additional rent by reason thereof, nor
shall the same give rise to a claim in Subtenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the Sublease
Premises.
13. Indemnity and Insurance.
13.1. To the maximum extent this agreement may be made effective according
to law, Subtenant agrees to indemnify and save harmless Sublandlord from and
against all claims of whatever nature arising from any act, omission or
negligence of Subtenant, or Subtenant's contractors, licensees, invitees,
agents, servants or employees, or arising from any accident, injury or damage
whatsoever caused to any person, or to the property of any person, occurring
after the date that possession of the Sublease Premises is first delivered to
Subtenant and until the end of the Term and thereafter so long as Subtenant is
in occupancy of any part of the Sublease Premises, in or about the Sublease
Premises or arising from any accident, injury or damage occurring outside the
Sublease Premises but within the Building, where such accident, injury or damage
results, or is claimed to have resulted, from an act or omission on the part of
Subtenant or Subtenant's agents or employees, licensees, invitees or
contractors, except to the extent caused by Sublandlord's gross negligence.
This indemnity and hold harmless agreement shall include indemnity against
all costs, expenses and liabilities incurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof with counsel
acceptable to Sublandlord.
13.2. Subtenant agrees to maintain in full force and effect from the date
upon which Subtenant first enters the Sublease Premises for any reason,
throughout the Term, and thereafter, so long as Subtenant is in occupancy of any
part of the Sublease Premises, the policies of general liability and property
damage insurance of the type and in the amounts and subject to the conditions
which are required of Sublandlord as Tenant under Section 9.2 of the Prime
Lease, which policies shall name Sublandlord and Prime Landlord as insured
parties.
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Subtenant agrees that, as a condition to first entering upon the Sublease
Premises, Sublandlord and Prime Landlord shall be furnished with a duplicate
original(s) or certificate(s) of the insurance required to be maintained by
Subtenant under this Section 15.2.
13.3. To the maximum extent that this agreement may be made effective
according to law, Subtenant agrees to use and occupy the Sublease Premises and
to use such other portions of the Building and the common areas thereof as
Subtenant is herein given the right to use at Subtenant's own risk; and
Sublandlord shall have no responsibility or liability for any loss of or damage
to fixtures or other personal property of Subtenant, except for loss of or
damage to such fixtures or such personal property to the extent caused by the
gross negligence of Sublandlord. The provisions of this Section 15.3 shall be
applicable from and after the execution of this Sublease and until the end of
the Term, and during such further period as Subtenant may use or be in occupancy
of any part of the Sublease Premises or of the Building.
13.4. To the maximum extent that this agreement may be made effective
according to law, Subtenant agrees that Sublandlord shall not be responsible or
liable to Subtenant, or to those claiming by, through or under Subtenant, for
any loss or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of premises adjacent to or
connecting with the Sublease Premises or any part of the Building, or otherwise,
or for any loss or damage resulting to Subtenant or those claiming by, through
or under Subtenant, or its or their property, from the breaking, bursting,
stopping or leaking of electric cables and wires, and water, gas, sewer or steam
pipes.
14. Fire, Damage, and Taking. If during the Term the Sublease Premises or
the Building shall be wholly or substantially damaged or destroyed by fire or
other casualty or taken by eminent domain, then Sublandlord may terminate this
Sublease by giving notice thereof to Subtenant and thereupon this Sublease shall
terminate as if the date of termination were originally stated as the date of
expiration hereof. If, as a result of any damage by fire or other casualty or
taking by eminent domain, the Sublease Premises are rendered unusable in whole
or in substantial part, then Sublandlord shall have the right to terminate this
Sublease and if Sublandlord does not exercise said right, Fixed Rent and other
charges hereunder shall be equitably and proportionately abated to the extent
the Sublease Premises are not usable by Subtenant, it being understood that
Sublandlord has no obligation to make any effort to restore the Sublease
Premises or any other portion of the Building, except to request Prime Landlord
to perform its obligations, if any, under the Prime Lease. All taking awards in
respect of any eminent domain taking shall be Sublandlord's property.
15. Default. If:
(a) Subtenant shall fail to pay Fixed Rent, additional rent or any other
charges for which provisions are made herein on or before the date
on which the same become due and payable, and the same continues for
three (3) days after written notice from Sublandlord thereof; or
(b) Sublandlord having rightfully given the written notice specified in
subdivision (a) above more than twice in a period of 365 days,
Subtenant shall thereafter in the
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same 365-day period fail to pay Fixed Rent, additional rent or any
other charges on or before the date on which the same becomes due
and payable; or
(c) Subtenant shall cause a default by Sublandlord, as Tenant, under the
Prime Lease continuing beyond the expiration of any applicable grace
period; or
(d) Subtenant shall fail to perform or observe any other term or
condition contained in this Sublease and Subtenant shall not
commence to cure such failure within fifteen (15) days after written
notice from Sublandlord to Subtenant thereof and promptly and
diligently complete the curing of the same; or
(e) Sublandlord having rightfully given the written notice specified in
subdivision (d) above more than twice in a period of 365 days,
Subtenant shall thereafter in the same 365-day period fail to
perform or observe any other term or condition contained in this
Sublease; or
(f) The estate hereby created shall be taken on execution or by other
process of law and such taking shall not be discharged within twenty
(20) days, or if Subtenant shall be judicially declared bankrupt or
insolvent according to law, or if any assignment or trust mortgage
arrangement shall be made of the property of Subtenant for the
benefit of creditors, or if a receiver, guardian, conservator,
trustee in involuntary bankruptcy or other similar officer shall be
appointed to take charge of all or any substantial part of
Subtenant's property by a court of competent jurisdiction and such
proceeding is not dismissed within sixty (60) days after such
appointment, or if a petition shall be filed for the reorganization
of Subtenant under any provisions of the Bankruptcy Act now or
hereafter enacted and such proceeding is not dismissed within sixty
(60) days after it is begun, or if Subtenant shall file a petition
for such reorganization, or for arrangements under any provisions of
the Bankruptcy Act now or hereafter enacted and providing a plan for
a debtor to settle, satisfy or extend the time for payment of debts;
then, and in any of said cases (notwithstanding any license of a former breach
of covenant or waiver of the benefit hereof or consent in a former instance),
Sublandlord lawfully may, immediately or at any time thereafter, and without
demand or notice, enter into and upon the Sublease Premises or any part thereof
in the name of the whole and repossess the same as Sublandlord's former estate,
and expel Subtenant and those claiming through or under Subtenant and remove its
or their effects (forcibly, if necessary) without being guilty of any manner of
trespass, and without prejudice to any remedies which might otherwise be used
for arrears of rent or preceding breach of covenant, and, upon entry as
aforesaid, Sublandlord shall have the right, by notice to Subtenant, forthwith
to terminate this Sublease; and Subtenant covenants and agrees, notwithstanding
any entry or re-entry by Sublandlord, whether by summary proceedings,
termination, or otherwise, to pay and be liable for, on the days identified in
Section 3 above for the payment thereof, amounts equal to the several
installments of Fixed Rent, additional rent and all other charges reserved as
would, under the terms of this Sublease, become due if this Sublease had not
been terminated or if Sublandlord had not entered or re-entered, as aforesaid,
and whether the Sublease Premises be relet or remain vacant, in whole or in
part, and for a period
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less than the remainder of the Term or for the whole thereof, but, in the event
the Sublease Premises be relet by Sublandlord, Subtenant shall be entitled to a
credit in the net amount of rent and other charges received by Sublandlord in
reletting, after deduction of all expenses incurred in reletting the Sublease
Premises (including, without limitation, remodeling costs, brokerage fees and
the like), and in collecting the rent in connection therewith, in the following
manner:
Amounts received by Sublandlord after reletting shall first be applied
against such Sublandlord's expenses, until the same are recovered, and until
such recovery, Subtenant shall pay, as of the day when a payment would fall due
under this Sublease, the amount which Subtenant is obligated to pay under the
terms of this Sublease (Subtenant's liability prior to any such reletting and
such recovery not in any way to be diminished as a result of the fact that such
reletting might be for a rent higher than the rent provided for in this
Sublease); when and if such expenses have been completely recovered, the amounts
received from reletting by Sublandlord as have not previously been applied shall
be credited against Subtenant's obligations as of each day when a payment would
fall due under this Sublease, and only the net amount thereof shall be payable
by Subtenant. Further, amounts receivable by Sublandlord from such reletting for
any period shall be credited only against obligations of Subtenant allocable to
such period, and shall not be credited against obligations of Subtenant
hereunder accruing subsequent or prior to such period; nor shall any credit of
any kind be due for any period after the date when the Term of this Sublease is
scheduled to expire according to its terms.
Nothing contained in this Sublease shall limit or prejudice the right of
Sublandlord to prove for and obtain in proceedings for bankruptcy or insolvency
by reason of the termination of this Sublease, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or not the
amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
16. Miscellaneous.
16.1. Failure on the part of either party to complain of any action or
non-action on the part of the other party no matter how long the same may
continue, shall never be a waiver by such party of any of its rights hereunder.
Further, no waiver at any time of any of the provisions hereof by either party
shall be construed as waiver of any of the other provisions hereof and a waiver
at any time of any of the provisions hereof shall not be construed as a waiver
at any subsequent time of the same provisions. The consent or approval of either
party to or of any action by the other party requiring such consent or approval
shall not be construed to waive or render unnecessary such party's consent or
approval to or of any subsequent similar act by the other party. No payment by
either party or acceptance by the other party of a lesser amount than shall be
due from such party to the other party shall be treated otherwise than as a
payment on account. Acceptance by Sublandlord of a check for a lesser amount
with endorsement or statement thereon, or upon any letter accompanying such
check, that such lesser amount is payment in full, shall be given no effect, and
Sublandlord may accept such check without prejudice of any other rights or
remedies which Sublandlord may have against Subtenant.
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16.2. No act or thing done by Sublandlord during the term of this Sublease
shall be deemed an acceptance of a surrender of the Sublease Premises and no
agreement to accept such surrender shall be valid, unless in writing signed by
Sublandlord. No employee of Sublandlord or of Sublandlord's agent shall have any
power to accept the keys to the Sublease Premises prior to termination of this
Sublease and delivery of keys to any employee or agent shall not operate as
termination of this Sublease or a surrender of the Sublease Premises.
16.3. The parties hereto agree that Xxxxx Xxxxxx of CRESA Partners, Xxxx
Xxxx of Xxxxxxx & Xxxxxxxxx of Massachusetts, Inc., Xxxxxxx Xxxxxxxxx of Xxxxx
Xxxxxx Xxxxx & Partners and Xxx Xxxxxxx of Hunneman & Company (collectively, the
"Agents") were the only brokers, finders or agents responsible for procuring
this Sublease. By separate agreement, Sublandlord agrees to compensate Agents
for their services as Agents. Each party hereto warrants and represents that the
services of no other broker, finder or agent were involved in the procurement of
this Sublease, and each party agrees to indemnify and hold harmless the other
from any and all loss or damage caused by the breach of this warranty and
representation.
16.4. If any term or provision of this Sublease or the application thereof
to any person or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Sublease or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and each term and provision of this
Sublease shall be valid and be in force to the fullest extent permitted by law.
16.5. Subtenant, subject to the terms and provisions of this Sublease and
to Subtenant's timely paying Fixed Rent and all additional rent and observing
and keeping and performing all of the terms and provision of this Sublease on
Subtenant's part to be observed, kept and performed, shall lawfully, peaceably
and quietly have, hold, occupy and enjoy the Sublease Premises during the term
of this Sublease without hindrance or objection by any persons claiming under
Sublandlord to have title to the Sublease Premises superior to Subtenant and
Subtenant shall have access to the Sublease Premises twenty-four (24) hours per
day, seven (7) days per week (subject to Prime Landlord's card key access system
as provided in the Prime Lease). It is understood and agreed that this covenant
and any and all other covenants of Sublandlord contained in this Sublease shall
be binding upon Sublandlord only with respect to breaches occurring during the
period Sublandlord has an interest herein. In no event shall Sublandlord or
Prime Landlord ever be liable to Subtenant for any loss of business or any other
direct, indirect, special, punitive, incidental, or consequential damages,
including without limitation lost profits or revenues, suffered by Subtenant for
or by whatever cause, even if Sublandlord and/or Prime Landlord are informed of
their possibility.
16.6. The obligations of this Sublease shall inure to the benefit of and
be binding upon the successors and assigns, respectively, of Sublandlord and
Subtenant.
16.7. Whenever by the terms of this Sublease notice, demand or other
communications shall or may be given, the same shall be in writing and shall be
sent by registered or certified mail, postage prepaid, hand delivered, or sent
by recognized private express carrier to the Sublandlord and Subtenant at the
respective addresses set forth on page 1 above. All such notices shall be
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effective when received. Either party may change the address to which notices
are to be sent to it by notice to the other party given in accordance with this
Section 18.7.
16.8. Each party will promptly furnish to the other party, or to anyone
whom such party designates, a statement in writing of the status of any matter
pertaining to this Sublease, including without limitation, acknowledgment of the
extent to which each party is in compliance with its obligations under the terms
of this Sublease.
16.9. Casualty insurance carried by either party with respect to the
Sublease Premises or property therein or thereon shall, if it can be so written
without additional premium or with additional premium which the other party
agrees to pay, include a clause or endorsement denying to the insurer rights of
subrogation against the other-party to the extent rights have been waived by the
insured prior to occurrence of loss. Each party, notwithstanding any provisions
of this Sublease to the contrary, hereby waives any rights of recovery against
the other for loss due to assets covered by such insurance.
16.10. This Sublease shall be governed exclusively by the provisions
hereof and by the laws of the Commonwealth of Massachusetts, as the same may
from time to time exist.
16.11. Any holding over by Subtenant at the expiration of the term of this
Sublease shall be treated as a tenancy at sufferance at twice the Fixed Rent and
other charges herein (pro-rated on a daily basis), and shall otherwise be on the
terms and conditions set forth in this Sublease as far as applicable.
16.12. Employees or agents of Sublandlord and Subtenant have no authority
to make or agree to make a lease or any other agreement or undertaking in
connection herewith. The submission of this document for examination and
negotiation does not constitute an offer to Sublease, reservation of, or option
for the Sublease Premises. This document shall become effective and binding only
upon both (i) the execution and delivery hereof by both Sublandlord and
Subtenant, and (ii) upon the written approval of Prime Landlord.
16.13. Subtenant shall have the right, at Subtenant's sole cost and
expense, to erect an antenna dish on the roof of the Building, provided that
Subtenant first obtains the prior written consent of Prime Landlord. In the
event Prime Landlord so consents, such antenna dish (which shall be of a size
approved by Prime Landlord) shall be installed at the location on the roof
designated by Prime Landlord, in accordance with plans approved by Prime
Landlord and otherwise in compliance with all applicable laws, rules,
regulations and orders. In the event of such installation, Subtenant shall
indemnify and save harmless Sublandlord and Prime Landlord from and against all
claims of whatever nature arising from or related to the installation, use
and/or removal of such antenna dish by Subtenant, its agents, contractors and/or
invitees.
16.14. Subtenant acknowledges and agrees that it shall be solely
responsible for providing security to the Sublease Premises.
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16.15. Sublandlord shall use reasonable efforts to assist Sublessee's
efforts to obtain Prime Landlord's permission for installation of an emergency
generator on the Sublease Premises.
16.16. Notwithstanding anything contained herein to the contrary,
Sublandlord may elect to lease the Premises other than the Sublease Premises
(the "Expansion Space") to a third party, it being understood that if
Sublandlord and a third party enter into a letter of intent for the Expansion
Space ("Letter of Intent"), then, provided a Default has not occurred, (a)
Sublandlord or Sublandlord's broker shall verbally notify Subtenant of its
election to enter into said Letter of Intent, (b) no more than five (5) days
after such verbal notification, Sublandlord shall notify Subtenant in writing,
which notice shall set forth the material terms and provisions of such Letter of
Intent, and (c) Subtenant shall have the right to accept the terms of said
Letter of Intent, provided that if Subtenant fails to (i) notify Sublandlord
within two (2) business days after receipt of such notice or (ii) execute and
deliver an amendment to the Sublease within five (5) business days after receipt
thereof, time being of the essence, then Subtenant's rights to the Expansion
Space shall be deemed null and void.
16.17. Sublandlord shall provide Subtenant with pass cards providing
access to the Sublease Premises, the Building and all other areas of the Lot,
including, without limitation, the parking areas allocated to Subtenant, as set
forth in Section 2.2 of the Prime Lease.
WITNESS the execution under seal as of this 15th day of June, 1999.
SUBTENANT SUBLANDLORD
XXXXX ADVISORS, INC. FASTECH INTEGRATION, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------- ------------------------------
Its Vice President Its Corporate Controller
Hereunto duly authorized Hereunto duly authorized
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