Massachusetts-Maynard-124 Acton Street Sublease - IPL Systems Inc. and SeaChange Technology Inc.
SUBLEASE
This is a Sublease between IPL Systems, Inc., a Massachusetts corporation,
and SeaChange Technology, Inc., a Delaware corporation.
The parties hereto agree as follows:
I. Summary of Basic Sublease Provisions.
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Where hereafter used in this Sublease, these terms shall have the following
meanings.
Date: March 19, 1996
Sublandlord: IPL Systems, Inc.
Mailing
Address of Sublandlord: 124 Acton Street,
Maynard, MA 01754
Subtenant: SeaChange Technology, Inc.
Mailing
Address of Subtenant: 124 Acton Street
Maynard, MA 021754
Premises: The portions on the first and second
floors of the building known as
Building 3 (the "Building"), located
at 124 Acton Street, Maynard, MA
01754 containing approximately
36,723 rentable square feet,
identified (diagramatically rather
than precisely) on Exhibit A
attached hereto, together with all
rights and easements appurtenant
thereto that are necessary for
Subtenant's access to, and use and
occupancy of the Premises in
accordance with this Sublease.
Second Floor
Commencement Date: April 1, 1996 for 26,723 square feet
of the Premises shown on Exhibit A
(the "Second Floor"), subject to the
terms of Section IV.1 hereof.
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First Floor
Commencement Date: January 1, 1997 for the remaining
10,000 square feet of the Premises
shown on Exhibit A (the "First
Floor") subject to the terms of
Section IV.1 hereof.
Term of Sublease: The period commencing as of (a) the
Second Floor Commencement Date for
the Second Floor, or (b) the First
Floor Commencement Date for the
First Floor, and (c) for both the
First Floor and Second Floor, ending
March 31, 1998, unless sooner
terminated in accordance herewith or
by the termination of the Prime
Lease (the "Termination Date").
Base Rent: For the period beginning on the
Second Floor Commencement Date and
ending on the day immediately
preceding the First Floor
Commencement Date, Eight Thousand
Nine Hundred Seven Dollars and
Sixty-Seven Cents ($8,907.67) per
month.
For the period beginning on the
First Floor Commencement Date and
ending on the Termination Date,
Thirteen Thousand Two Hundred
Twenty-Eight Dollars and Seventy-
Five Cents ($l3,228.75).
Subtenant's Proportionate
Share: (a) For real estate taxes and
casualty, insurance only, the
following Subtenant's Proportionate
Share shall apply:
(i) 21.60% for the period
beginning on the Second
Floor Commencement Date and
ending on the day
immediately preceding the
First Floor Commencement
Date (i.e., ratio of the
total square footage of the
Second Floor (26,723) and
that of the Building
(123,700)).
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(ii) 29.69% for the period beginning
on the First Floor Commencement
Date and ending on the
Termination Date (i.e., ratio
of the total square footage of
the Premises (36,723) and that
of the Building (123,700)).
(b) For Subtenant's parking rights
described in Section V.1 hereof,
Utilities, snow removal, and care of
lawns and shrubbery, the following
Subtenant's Proportionate Share shall
apply:
(i) 27.54% for the period beginning
on the Second Floor
Commencement Date and ending on
the day immediately preceding
the First Floor Commencement
Date (i.e., ratio of the total
square footage of the Second
Floor (26,723) and that of the
Building less such space as is
currently subleased to Foster-
Miller, Inc. (97,027)).
(ii) 37.85 % for the period
beginning on the First Floor
Commencement Date and ending on
the Termination Date (i.e.,
ratio of the total square
footage of the Premises
(36,723) and that of the
Building less such space as is
currently subleased to Foster-
Miller, Inc. (97,027)).
(c) For janitorial services, trash
removal, and elevator maintenance and
repair, the following Subtenant's
Proportionate Share shall apply:
(i) 38.04% for the period beginning
on the Second Floor
Commencement Date and ending on
the date immediately preceding
the First
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Floor Commencement Date (i.e.,
ratio of the total square
footage of the Second Floor
(26,723) and that of the
Building less the Third Floor
space and such space as is
currently subleased to Foster-
Miller (70,254)).
(ii) 52.27% for the period beginning
on the First Floor Commencement
Date and ending on the
Termination Date (i.e., ratio
of the total square footage of
the Premises (36,723) and that
of the Building less the Third
Floor space and such space as
is currently subleased to
Foster-Miller (70,254)).
Permitted Uses: Light manufacturing, research,
development of products, office space,
and any other legal use.
Prime Lease: Lease dated August 20, 1992 by and
between Maynard Industrial Property
Associates and IPL Systems, Inc., a
copy of which is attached hereto as
Exhibit B.
Prime Landlord (under the Robert D. Quirk and Bruce T. Quirk, as
Prime Lease): Trustees of Maynard Industrial
Property Associates.
Mailing Address 272 Willis Road
of Prime Landlord: Sudbury, MA 01776
II. Sublease.
Sublandlord hereby subleases to Subtenant and Subtenant hereby subleases
from the Sublandlord the Premises upon and subject to the terms and provisions
of this Sublease, for the Term of Sublease set forth in Article 1. The Premises
shall be delivered to Subtenant in broom clean condition, subject to the
construction of the Improvements as required under Article IV of this Sublease,
free of all personal property and trade fixtures not owned by Sublessee and free
of all tenants and occupants.
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III. Base Rent; Other Payments.
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1. (a) Subtenant shall pay Base Rent to Sublandlord at the rate specified
in Article I without deduction, off-set or demand (except as permitted in
Section IX.d hereof) on the applicable Commencement Date of the Term of this
Sublease and, thereafter, monthly, in advance, at least five (5) days before the
first day of each calendar month during the Term hereof, at Sublandlord's
mailing address set forth in Article I or such other place as Sublandlord may
from time to time designate in writing to Subtenant, such advance payments to be
made so as to provide funds to Sublandlord in advance of the due dates of its
rental payments under the Prime Lease. Base Rent and additional rent as
provided herein shall be prorated for partial calendar months, if any, at the
beginning and end of the term hereof. Base Rent and any additional sums due
hereunder and not paid within fifteen (15) days of the date due shall bear
interest at the Prime rate of interest published in the Wall Street Journal from
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and after the due date until paid, plus two percent (2%).
(b) Subtenant agrees that simultaneously with the execution hereof, it
will deliver to Sublandlord a security deposit (the "Second Floor Security
Deposit") in the amount of $8,907.67, to be held by Sublandlord as security for
Subtenant's performance of its obligations under this Sublease. Subtenant
further agrees that no later than the First Floor Commencement Date, Subtenant
will deliver to Sublandlord a security deposit in the amount of $13,228.75 (the
"First Floor Security Deposit"), as further security for Subtenant's performance
of its obligations under this Sublease. Sublandlord may apply the applicable
Security Deposit against any amounts due Sublandlord by reason of Subtenant's
default in the performance of such obligations. Any balance remaining shall be
returned to Subtenant after the expiration of the Term of this Sublease upon
redelivery of possession of the Premises to Sublandlord in substantially the
same condition and repair as the Premises were in on the applicable Commencement
Date, reasonable wear and tear and damage by fire or other casualty or eminent
domain excepted. Sublandlord shall not be obligated to pay interest on either
Security Deposit.
2. During the Term of the Sublease, Subtenant shall pay, as additional
rent, to the Sublandlord, the Subtenant's Proportionate Share of (a) real estate
taxes for the Premises or any portion thereof to the extent the same are payable
by Sublandlord pursuant to Paragraph 6E of the Prime Lease, (b) Sublandlord's
cost of casualty insurance for the Premises or any portion thereof to the extent
the same is payable by Sublandlord pursuant to Paragraph 6D of the Prime Lease,
(c) Utilities in the manner described in Section IV.2.a hereof, and to the
extent amounts for Utilities are payable pursuant to Paragraph 6A of the Prime
Lease, (d) Sublandlord's costs for maintenance and repair of the electrical,
plumbing, HVAC system and elevators serving the Building (but not the Premises
or the Subtenant exclusively) pursuant to Section IV.2.b hereof, (e)
Sublandlord's costs for snow removal and care of lawns and shrubbery to the
extent the same are payable pursuant to Paragraph 6C of the Prime Lease, and (f)
Sublandlord's costs for janitorial and trash removal services to the extent the
same are payable pursuant to Section IV.2.b hereof. Payments for Subtenant's
Proportionate Share of the charges and expenses listed
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in subparagraphs (a) through (c) above must be paid within five (5) business
days of Subtenant's receipt of a statement from the Sublandlord indicating that
such a payment is due. Payments for Subtenant's Proportionate Share of the
charges and expenses listed in subparagraphs (d) through (f). above must be paid
within ten (10) days of Subtenant's receipt of an invoice therefor.
IV. Preparation and Use of Premises:
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Without limitation of any other obligations upon or covenants of Subtenant
herein contained, including Subtenant's agreement to comply with and be bound by
the terms and provisions of the Prime Lease:
1. (a) Prior to the applicable Commencement Date, Sublandlord shall
complete the Subtenant Improvements described on the attached Exhibit C (the
"Improvements") in accordance with final working drawings and specifications
describing such Improvements that have been submitted in advance by Subtenant to
Sublandlord, and approved in writing by Sublandlord (which approval shall not be
unreasonably withheld, conditioned or delayed), by Prime Landlord in accordance
with the Prime Lease and Section IV.6 hereof (if any of the Improvements
constitute structural alterations), and local authorities (if required).
Subtenant and Sublandlord acknowledge that construction of the Improvements may
require the approval of local authorities and Prime Landlord. If, within thirty
(30) days after presentation of plans for the Improvements by Subtenant to
Sublandlord, Sublandlord is unable to obtain such approvals due to circumstances
within the reasonable control of Sublandlord, Subtenant shall have the option to
terminate this Sublease upon thirty (30) days' written notice to Sublandlord;
provided, however, that if Subtenant does not so terminate this Sublease,
Subtenant shall have the option to continue its occupancy and use of only the
Second Floor in accordance with the terms of this Sublease upon thirty (30)
days' written notice to Sublandlord, and, from and after Sublandlord's receipt
of such notice, Subtenant's rights and obligations under this Sublease
(including, the payment of Base Rent equal to $8.907.67, additional rent and
other charges through and including the Termination Date) shall continue with
regard to the Second Floor only and not the First Floor.
(b) Sublandlord shall use best efforts to substantially complete
the Improvements described in Paragraph 1 of Exhibit C on or before April 1,
1996, and the Improvements described in Paragraph 2 of Exhibit C on or before
January 1, 1997, which dates shall be extended for a period equal to that of (i)
any delays caused by action of Subtenant, (ii) delays due to the failure of
Subtenant to comply with Section IV.1.a hereof, or (iii) delays due to causes
reasonably beyond Sublandlord's control (but in no event shall the extension for
delays due to causes reasonably beyond Sublandlord's control exceed 45 days).
The First Floor and Second Floor shall be deemed "substantially completed" when
the Sublandlord has completed the Improvements for the First Floor or Second
Floor, as the case may be, for Subtenant's occupancy, except for minor (so-
called "punchlist") items of work that will not materially interfere with
Subtenant's business operations therein and which shall be completed by
Sublandlord within thirty (30) days after the applicable Commencement Date.
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(c) Subtenant may, at its sole risk and expense, upon reasonable
advance notice to Sublandlord, enter the Second Floor before April 1, 1996, or
the First Floor before January 1, 1997, to make inspections, take measurements,
and install furnishings and equipment on the Second Floor or First Floor, as the
case may be, so long as Subtenant does not materially interfere with
Sublandlord's use of, and business operations at, the Premises and Sublandlord's
construction of the Improvements. From the date Subtenant first so enters the
Second Floor until April 1, 1996, or the First Floor until January 1, 1997,
Subtenant shall observe and perform all of the terms and conditions of this
Sublease except that Subtenant shall not be obligated to make payments due under
Article III of this Sublease. Subtenant shall indemnify, defend and hold
harmless Sublandlord against injury to any person, and against all costs,
claims, losses and damages of any kind, including but not limited to the fees of
attorneys, engineers, inspectors and consultants, that may occur as a result of
Subtenant's and Subtenant's agents' entry upon the Second Floor or First Floor,
as the case may be, and performance of Subtenant's inspections, measurements,
installations or Subtenant's other activities on the Second Floor or First
Floor. Subtenant shall also repair any and all damage to the Second Floor and
First Floor occasioned by Subtenant's inspection, measurements, installations or
other activities thereon.
If the Improvements described in Paragraph I of Exhibit C are not
substantially completed on April 1, 1996, or the Improvements described in
Paragraph 2 of Exhibit C are not substantially completed on January 1, 1997
(each as extended pursuant to the first sentence of subsection (b) above),
Subtenant shall be entitled to construct the Improvements, and the Second Floor
Commencement Date and the First Floor Commencement Date shall become
respectively, the dates of which the Improvements described in Paragraph 1 of
Exhibit C and the Improvements described in Paragraph 2 of Exhibit C are
completed, and Sublandlord shall reimburse Subtenant for its share of such
construction costs as provided in Subsection (d) below, and if such
reimbursement is not made within thirty (30) days of Subtenant's receipt of an
invoice therefor, Subtenant shall have the right to offset the total amount of
Sublandlord's required contribution against Base Rent, additional rent and any
other charges due hereunder as provided in Subsection (d) below.
(d) The costs of the Improvements shall be paid as follows:
(i) Sublandlord shall pay the cost of completing the
Improvements described in Paragraph 1 of Exhibit C
(including the fees of architects and engineers and the
costs associated with obtaining required permits and
approvals); and
(ii) Sublandlord shall pay the first Ten Thousand Dollars
($10,000) of the cost of the Improvements described in
Paragraph 2 of Exhibit C, and Sublandlord shall bill
Subtenant for fifty percent (50%) of any costs therefor
in excess of said $10,000 (including the fees of
architects and
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engineers and the costs associated with obtaining
required permits and approvals), which amount shall be
due to Sublandlord within ten (10) days after
Subtenant's receipt of an invoice therefor.
If Sublandlord fails to construct the Improvements as required under this
Section IV.1 by April 1, 1996 (with respect to the Improvements described in
Paragraph 1 of Exhibit C) and by January 1, 1997 (with respect to the
Improvements described in Paragraph 2 of Exhibit C) (each as extended pursuant
to the first sentence of subsection (b) above), Subtenant shall have the right
to construct the Improvements and offset the Sublandlord's required contribution
towards the Improvements set forth in this subsection (d) against the Base Rent,
additional rent and other charges due under this Sublease.
2. (a) As the First Floor and Second Floor are not separately billed for
heat, water, gas, air conditioning, electricity, sewer and other utilities
(together the "Utilities") by the provider thereof, then beginning on the
applicable Commencement Date, Sublandlord shall pay the cost of such Utility
services, and Subtenant shall pay Subtenant's Proportionate Share of such costs
to Sublandlord within five (5) days of Subtenant's receipt from Sublandlord of a
statement indicating that such a payment is due and a copy of the bill issued by
the provider of such Utility services; provided, however, that if Subtenant's
use of the First Floor or Second Floor or any equipment therein results in the
consumption of any Utilities substantially or materially in excess of the
Utility usage expense of Sublandlord for the First Floor during the calendar
year immediately preceding the applicable Commencement Date, Subtenant shall
reimburse Sublandlord for the cost of such excess Utility usage based on
Sublandlord's actual third-party costs of such Utilities. If Sublandlord agrees
to Subtenant's installation of a so-called check meter in the Premises,
Sublandlord shall pay the cost of electrical service directly to the provider,
and Subtenant shall reimburse Sublandlord for Subtenant's portion of such cost
based on readings from the check meter within five (5) days of Subtenant's
receipt of a statement from Sublandlord indicating that such a payment is due.
(b) Subtenant shall be responsible for all repairs and maintenance
obligations with respect to the Building systems, facilities, and equipment
exclusively serving the Premises and for which Sublandlord has responsibility
under Sections 5A, 5B and 6B of the Prime Lease, except that Sublandlord shall
be responsible for electrical, plumbing, HVAC and elevator repair and
maintenance to the extent required of Sublandlord as tenant under the Prime
Lease, and Subtenant shall pay its Proportionate Share of such electrical,
plumbing, HVAC and elevator repair and maintenance costs to Sublandlord as
required under Section III.2 hereof.
3. Subtenant agrees that the Premises and any portion thereof shall be
used only by Subtenant (except as consented to by Sublandlord pursuant to
Article VI hereof), and only for the purposes specified in Article I hereof,
consistent with applicable zoning requirements and applicable laws, rules and
regulations (with respect to which Sublandlord makes no warranties or
representations) and for no other purpose. If any law, ordinance or regulation,
or deed restriction or other restriction at any time prohibits the Permitted
Uses, Subtenant may, at its option,
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terminate this Sublease upon notice to Sublandlord without prejudice to any
other rights Subtenant may have at law or in equity. Sublandlord agrees to use
reasonable efforts to deliver to Subtenant, within sixty (60) days following
execution of this Sublease, a copy of the Certificate of Occupancy for the
Premises issued by the appropriate municipal officials.
4. Subject to Sublandlord's obligations under Section IV.1 and Section IV.2.b
hereof, from and after the applicable Commencement Date, Subtenant, at its
expense, shall be responsible for maintaining the First Floor and Second Floor
in substantially the same order, condition and repair as they are in as of the
applicable Commencement Date, reasonable wear and tear, damage by fire or other
casualty and eminent domain excepted, and shall comply with all miles, orders
and regulations of governmental authorities now or hereafter in force and with
any lawful direction of any public officer, and with orders, rules and
regulations of any Board of Fire Underwriters or any other body hereafter
constituted exercising similar functions and governing insurance rating bureaus,
in each case to the extent the same are applicable to the First Floor or Second
Floor or the use and maintenance thereof or any alteration, addition or
improvement thereto by Subtenant; provided, however, that Subtenant shall not be
responsible for correcting or remediating any violation of law, ordinance, order
or regulation arising prior to the applicable Commencement Date and unrelated,
to Subtenant's activities at the Premises. If the Subtenant receives notice of
any violation of law, ordinance, order or regulation applicable to the First
Floor or Second Floor or the use and maintenance thereof, it shall give prompt
notice thereof to the Sublandlord. Notwithstanding, the foregoing Subtenant
shall not be responsible for making alterations or additions to the Premises in
order to render the Premises in compliance with the Americans with Disabilities
Act (the "Act"), provided, however, that if Subtenant shall construct or install
improvements, alterations or additions on the Second Floor on or after the
Second Floor Commencement Date, or on the First Floor on or after the First
Floor Commencement Date (excluding the Improvements described in Exhibit C),
which, in either case, necessitate the completion of further work in order that
the Premises or any portion thereof complies with the Act, Subtenant shall, at
its sole cost and expense, complete all such work as is required to render the
Premises or such portion thereof in compliance with the Act.
5. Sublandlord acknowledges that there is currently in force a policy of
fire insurance on the Building in at least the amount of $4,372,000, as required
by Paragraph 6D of the Prime Lease, including adjustments made pursuant to said
Paragraph 6D. Subtenant will not, nor will it permit its employees, agents and
invitees to do anything in the Premises or the Building, or bring anything into
the Premises or the Building, or permit anything to be brought into the Premises
or the Building or to be kept therein which would in any way increase the rate
of fire insurance on the Building or the Premises, and the Subtenant agrees to
pay on demand any such increase. Subtenant shall not generate, store, handle or
dispose of any hazardous waste or hazardous substances in, on or about the
Premises in any manner contrary to Federal, state or local environmental laws
and regulations, including, without limitation, M.G.L. Chapters 21C and 21E and
the Resource Conservation and Recovery Act 42 U.S.C. (S)(S) 6901 et seq. and the
regulations promulgated thereunder. The term hazardous substances shall
include, but not be limited to, the definition of "hazardous substances" in
M.G.L. Chapters 21C and 21E. Subtenant shall defend and hold harmless the
Sublandlord for any loss, cost, claim, or expense of whatever
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nature suffered or incurred by the Sublandlord (including any costs incurred by
Sublandlord in enforcing this provision against the Subtenant) as a result of
(a) the release or discharge of any hazardous substances in, on, or about the
Premises or the Building, arising out of or related to Subtenant's occupancy of
or activities at the Premises, which release or discharge is not caused by the
willful misconduct or gross negligence of Sublandlord, or (b) any violation by
Subtenant of the aforementioned environmental laws or regulations. Sublandlord
shall defend, indemnify and hold harmless the Subtenant for any loss, cost,
claim or expense of whatever nature suffered or incurred by Subtenant (including
any costs incurred by Subtenant in enforcing this provision against Sublandlord)
as a result of (a) the release or discharge of any hazardous substances in, on,
or about the Premises or the Building, arising out of or related to
Sublandlord's occupancy of or activities at the Premises or the Building, which
release or discharge is not caused by the willful misconduct or gross negligence
of Subtenant, or (b) any violation by Sublandlord of the aforementioned
environmental laws or regulations.
6. Subtenant shall not make structural alterations, additions or
improvements to the Premises except with the prior written approval of Prime
Landlord (which approval shall not be unreasonably withheld) and, in the event
of such approval, with Prime Landlord's prior written approval of all plans and
specifications therefor (which approval shall not be unreasonably withheld).
Subtenant agrees to give Sublandlord and Prime Landlord notice of any major
alterations, whether structural or non-structural. Subtenant's rights and
obligations with respect to any such alterations, additions or improvements
shall be subject to applicable provisions of the Prime Lease, to all other
rights of the Prime Landlord thereunder, and to such reasonable conditions
regarding procurement of permits, insurance or other conditions as Sublandlord
may reasonably require. Sublandlord agrees to cooperate with Subtenant (which
cooperation shall not include the expenditure of money) in seeking approvals
from Prime Landlord that are required under this Subsection IV.6.
7. Sublandlord's receptionist who is sitting at the lobby reception desk
during regular business hours (8:30 a.m. to 5:00 p.m., Monday through Friday)
shall direct visitors of Subtenant from the lobby reception desk to the
Premises. Subtenant may, at Subtenant's sole expense, post a sign at the lobby
reception desk (which is described in Exhibit D attached hereto), provided that
Subtenant does not move or obstruct the sign of Sublandlord currently located
therein. Subtenant shall not erect an exterior sign on or near the Building
without the prior written consent of Sublandlord, which consent shall not be
unreasonably withheld, and provided that Sublandlord so consents, such exterior
sign shall comply with the applicable signage regulations of the Town of Maynard
and shall be aesthetically and architecturally compatible with the design of the
Building. Sublandlord agrees to cooperate with Subtenant (which cooperation
shall not include the expenditure of money) in seeking the consent of Prime
Landlord required under this subsection 7.
V. Prime Lease.
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1. (a) This Sublease is subject and subordinate to the terms and
provisions of any mortgages or ground leases that may now or hereafter exist or
be placed upon the Premises
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or the Building or the lot on which the Building is located, and any amendments
thereto, and to the Prime Lease, as the same may be amended from time to time;
provided, however, that Sublandlord shall not agree to any amendment of the
Prime Lease that would unreasonably or materially alter the rights or remedies
of Subtenant thereunder or hereunder. All terms and conditions of the Prime
Lease are incorporated into this Sublease (except as otherwise provided under
the terms of this Sublease), and all references in the Prime Lease to
"Landlord", "Tenant", "leased premises", "rent" and "Commencement Date" shall
be deemed to refer, respectively, to Sublandlord, Subtenant, Premises, Base
Rent and the applicable Commencement Date. The Premises are leased subject to
all rights reserved by the Prime Landlord, if any, under the plan described in
Paragraph 1 of the Prime Lease. Sublandlord represents that the Sublandlord has
furnished the Subtenant with a true and complete copy of the Prime Lease
attached hereto as Exhibit B. It is the intention of the parties that Subtenant
shall comply with all of Sublandlord's obligations under the Prime Lease (but
only with respect to the Premises) to the same extent and with the same force
and effect as if Subtenant were the tenant thereunder, and Subtenant hereby
agrees so to comply with all of Sublandlord's obligations under the Prime Lease
(but only with respect to the Premises), except as such compliance shall be
expressly inconsistent with the provisions hereof (including, without
limitation, the repair and maintenance obligations of Sublandlord under Section
IV.2.b hereof), and Subtenant agrees to be bound by all of the terms and
provisions of the Prime Lease, including, without limitation, provisions
therein with respect to use of, damage to or destruction of all or any part of
the Premises or the Building and taking by eminent domain of all or any part of
the Premises or the Building, to the same extent as though Subtenant were the
tenant thereunder. Subtenant shall have the right to use Subtenant's
Proportionate Share of the 308 parking, spaces that Sublandlord currently uses
at Building site, which spaces may be designated by Sublandlord. Except as
specifically provided for in this Sublease, no other rights or benefits of
Sublandlord under the Prime Lease shall inure to the benefit of Subtenant.
(b) Notwithstanding the provisions of Section V.1.a above, the
following terms and conditions of the Prime Lease are not incorporated into this
Sublease: Paragraphs 1, 2, 3, 4, 6B, 6D, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19,
20(d), 20(e), and 21. In the event of any inconsistency between the terms of
the Prime Lease and this Sublease, the terms of this Sublease shall control.
2. Each party hereto shall promptly forward to the other copies of all
notices and other communications received by it from Prime Landlord or from any
other party relating to the Premises or to this Sublease or the Prime Lease.
Each party hereto shall copy the other on any notice of default, termination or
otherwise affecting the existence or validity of the Sublease or the Prime
Lease. Within ten (10) days of Sublandlord's request, Subtenant shall certify
to Sublandlord that Subtenant is not in default of its obligations hereunder,
both as to this Sublease and the Prime Lease.
3. Subtenant represents that it is familiar with all of the terms of the
Prime Lease attached as Exhibit B. Except as set forth in Sections IV.1, IV.2.b,
IV.4 and IV.5 above, Sublandlord shall have no responsibility whatsoever with
respect to the Premises, including,
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without limitation, matters involving the supply of utility services,
maintenance, repair, use, management or operation of the Premises, it being the
intention of the parties that Sublandlord shall cooperate with Subtenant (which
cooperation shall not include the expenditure of money) to secure the
performance of Prime Landlord's obligations under the Prime Lease with respect
to such matters; and Subtenant shall be responsible for such matters not
otherwise provided for herein. Notwithstanding the foregoing, in the event any
Utilities are interrupted so as to render the Premises or any portion thereof
untenantable for three (3) or more consecutive business days, and such
interruption is caused by the act or omission of Sublandlord, Subtenant's
obligation to pay Base Rent shall abate from the date of such interruption until
such Utilities are restored to the extent any business interruption insurance
held by Subtenant does not cover said interruption in Utility service.
Sublandlord shall indemnify and hold harmless Subtenant from damages to persons
and property of Subtenant due to circumstances within the reasonable control of
Sublandlord in performance of its obligations as tenant under the Prime Lease or
its obligations as Sublandlord hereunder, provided, however, that Sublandlord
shall in no event be liable to Subtenant for any indirect or consequential
damages arising in connection with this Sublease or in connection with the
Subtenant's occupancy of the Premises. Sublandlord hereby assigns to Subtenant,
in common with Sublandlord, all of Sublandlord's rights and remedies, as tenant
under the Prime Lease, arising in connection with a default by Prime Landlord in
the performance of its obligations under the Prime Lease. Subtenant may pursue
any proceeding or other enforcement action in Sublandlord's name against Prime
Landlord (including any proceeding or enforcement action brought by Subtenant
pursuant to Paragraph 20(g) of the Prime Lease), provided, however, that
Subtenant shall obtain the prior written consent from Sublandlord (which consent
shall not be unreasonably withheld) before so pursuing any such proceeding or
other enforcement action. Nothing herein shall preclude Sublandlord from
pursuing any proceeding or other enforcement action in Sublandlord's name
against Prime Landlord. Without limitation, Subtenant shall have no claim
against Sublandlord for any default by Prime Landlord under the Prime Lease.
This Sublease shall terminate upon the termination for any reason of the Prime
Lease.
4. Sublandlord's obligation with respect to the Prime Lease is to do all
actions and things as shall be necessary to prevent a default thereunder which
would adversely affect Subtenant's rights under, or cause the termination or
cancellation of, the Prime Lease or this Sublease. Without limitation,
Sublandlord shall make prompt payments of rent and additional rent due to Prime
Landlord thereunder, subject, however, to timely receipt by Sublandlord of Base
Rent, additional rent, and all other payments due hereunder from Subtenant.
5. Sublandlord warrants and represents to Subtenant that (i) the Prime
Lease is in full force and effect; (ii) there are no amendments, modifications
or extensions thereof; (iii) there are no outstanding notices of default under
the Prime Lease; (iv) Sublandlord has full and lawful authority to sublease the
Premises; (v) as of the date hereof, Sublandlord has not filed for bankruptcy;
(vi) Sublandlord will do nothing to cause (or fail to do anything that would
cause) a default under the Prime Lease; and (vii) the Prime Landlord has
performed all work required under Paragraphs 6B and 17 of the Prime Lease.
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VI. Assignment and Subleasing.
-------------------------
Notwithstanding any other provisions of this Sublease, the Subtenant shall
not assign or otherwise transfer this Sublease or any interest herein,
voluntarily or by operation of law, or sublet (which term, without limitation,
shall include granting of concessions, licenses, and the like) or allow any
other person to occupy the whole or any part of the Premises, without, in each
instance, the prior written consent of the Sublandlord, which consent shall not
be unreasonably withheld, conditioned or delayed, and, in the event that
Sublandlord shall consent to such assignment, subletting, or other transfer or
occupancy in any instance, the Subtenant originally named herein shall remain
fully and primarily liable for performance of all Subtenant obligations
hereunder, including, without limitation, the obligation to pay the Base Rent.
and other amounts provided under this Sublease.
VII. Indemnification.
---------------
1. Subtenant shall be bound by all conditions in the Prime Lease to the
extent incorporated under the terms of this Sublease, and Subtenant shall
neither do, nor omit to do nor permit to be done anything which would increase
Sublandlord's liability or obligations to the Prime Landlord under the Prime
Lease or which would cause the Prime Lease to be terminated or forfeited.
Without limitation, and to the maximum extent this agreement may be made
effective according to law, Subtenant shall and hereby agrees to defend (with
counsel reasonably acceptable to Sublandlord), indemnify and hold harmless
Sublandlord, the directors, officers, agents and employees of Sublandlord and
those in privity with Sublandlord from and against all liabilities, costs,
expenses and claims or demands of any kind made or incurred by reason of any
breach, default or omission on the part of Subtenant hereunder or under the
Prime Lease or by operation of law and arising from the act or the failure to
act of Subtenant, its officers, agents, employees, contractors, licensees,
guests or invitees or anyone claiming by or through Subtenant, or the failure of
Subtenant or such person to comply with any rule, order, regulation or lawful
direction now or hereafter in force of any public authority with which Subtenant
is obligated to comply under the terms of this Sublease, or arising directly or
indirectly from any accident, injury or damage however caused to any person, or
to the property of any person, occurring in or about the Premises, from the time
Subtenant first enters the First Floor or Second Floor of the Premises, as the
case may be, for any reason, throughout the term of this Sublease, and
thereafter so long as Subtenant or anyone claiming by or through Subtenant is in
occupancy of any part of the Premises, except to the extent any of the foregoing
is caused by Sublandlord's gross negligence or willful misconduct.
This indemnification 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 reasonably acceptable to Sublandlord or counsel selected by an insurance
company which has accepted responsibility for the defense of such claim or
liability therefor.
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2. To the maximum extent this indemnification and hold harmless
agreement may be made effective according to law, Subtenant agrees to use and
occupy the Premises 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 or those claiming by, through or under Subtenant,
however caused, except to the extent such loss or damage is caused by the gross
negligence or willful misconduct of Sublandlord. The provisions of this Article
shall be applicable from and after the execution of this Sublease and until the
end of the Term of Sublease, and during such further period as Subtenant may use
or be in occupancy of any part of the Premises, and Subtenant agrees to obtain
and maintain throughout such period a policy of insurance insuring all personal
property of Subtenant located upon the Premises against any loss or damage from
fire or other casualty in the broadest form in which such coverage is available.
3. To the maximum extent this indemnification and hold harmless
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 resulting to
Subtenant or those claiming by, through or under Subtenant, or to its or their
property, that may be occasioned by any loss or damage from the breaking,
bursting, stopping or leaking of electric cables and wires, and water, gas,
sewer and steam pipes except to the extent such loss or damage is caused by the
gross negligence or willful misconduct of Sublandlord, its agents, employees,
contractors, invitees, quests or subtenants other than Subtenants.
VIII. Liability Insurance.
-------------------
1. Subtenant agrees to maintain in full force from the date upon which
the Subtenant first enters the Premises for any reason, throughout the Term of
Sublease, and thereafter so long as Subtenant or anyone claiming by or through
Subtenant is in occupancy of any part of the Premises, a policy of commercial
general liability insurance issued by a company authorized to do business in the
Commonwealth of Massachusetts in an amount not less than $3,000,000 under which
Sublandlord (and such other persons as may be designated by Sublandlord from
time to time by written notice to Subtenant) and Subtenant are named as
insureds. Each such policy shall be non-cancelable and non-amendable with
respect to Sublandlord and Sublandlord's said designees without twenty (20)
days' prior notice to Sublandlord, and a duplicate original or certificate of
each such policy shall be delivered to Sublandlord on or before the applicable
Commencement Date.
2. Subtenant and Sublandlord covenant that with respect to any insurance
coverage carried by either Subtenant or Sublandlord in connection with the
Premises or the Building, whether or not such insurance is required by the terms
of this Sublease, such insurance shall provide for the waiver by the insurance
carrier of any subrogation rights against Sublandlord, its agents, servants and
employees under Subtenant's insurance policies, or against Subtenant, its
agents, servants and employees under Sublandlord's insurance policies, where
such waiver of subrogation rights does not require the payment of an additional
premium, or, if an additional premium is required to be paid, the other party
offers to pay such premium after being notified of such additional premium.
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IX. Default.
-------
If:
(a) Subtenant shall fail to pay the Base Rent or other charges on or
before the date on which the same become due and payable and such failure
continues for five (5) days, or
(b) 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 twenty (20) days after written notice from Sublandlord to Subtenant
thereof and promptly and diligently complete the curing of the same, or
(c) the estate hereby created shall be taken on execution or by other
process of law, or if Subtenant shall be judicially declared bankrupt or
insolvent according to law, or if any assignment 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, 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 petition is not discharged within sixty (60) days of
filing, 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 the
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 former
instance), Sublandlord may, immediately or at any time thereafter, and without
demand or notice, enter into and upon the Premises or any part thereof in the
name of the whole and repossess the same as of Sublandlord's former estate, and
expel Subtenant and those claiming through or under Subtenant and remove its or
their effects 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. Further, in any of said cases and with or without
entry as aforesaid, Sublandlord shall have the right, by written 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
originally fixed herein for the payment thereof, amounts equal to the several
installments of Base Rent and other charges reserved as they 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
Premises be relet or remain vacant, in whole or in part, for a period less than
the remainder of the term, or for the whole hereof, but, in the event the
Premises be relet by Sublandlord, Subtenant shall be entitled to a credit in the
net amount of rent received by Sublandlord in reletting, after deduction of all
expenses actually incurred in reletting the Premises (including, without
limitation, remodeling costs, reasonable attorneys' fees, brokerage fees and the
like), and in collecting the rent in connection therewith, in the following
manner:
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Amounts received by Sublandlord after reletting shall first be applied
against such Sublandlord's reasonable expenses, until the same are recovered,
and until such recovery, Subtenant shall pay, as of each 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 received 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 Sublease is scheduled to expire according to the terms of this Sublease.
As an alternative, at the election of Sublandlord, Subtenant will, upon
such termination, pay to Sublandlord, as damages, such a sum as at the time of
such termination Represents the amount, of the excess if any, of the then value
of the total rent and other benefits which would have accrued to Sublandlord
under this Sublease for the remainder of the term if this Sublease had been
fully complied with by Subtenant over and above the then cash rental value (in
advance) of the Premises for the balance of the term.
X. Miscellaneous.
-------------
1. No payment by Subtenant, or acceptance by Sublandlord, of a lesser
amount than shall be due from Subtenant to Sublandlord shall be treated
otherwise than as payment on account. The acceptance by Sublandlord of a check
for a lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such check, to the effect that such lesser amount is payment in
full, shall be given no effect, and Sublandlord may accept such check without
prejudice to any other rights or remedies which Sublandlord may have against
Subtenant.
2. Subtenant agrees immediately to discharge (by payment, by filing the
necessary bond, or otherwise) any mechanics', materialmen's or other lien
against or upon the Premises or Sublandlord's interest therein, which liens may
arise out of any payment due for, or purported to be due for, any labor,
services, materials, supplies or equipment alleged to have been furnished to or
for Subtenant in, upon or about the Premises.
3. Except as herein otherwise expressly provided, the terms hereof shall
be binding upon and shall inure to the benefit of the successors and assigns,
respectively, of Sublandlord and Subtenant, but this Section X.3 shall not be
construed to be a consent of Sublandlord to any assignment or subletting by
Subtenant.
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4. Any notice or demand which either party may or must give to the other
hereunder shall be in writing sent by either (a) overnight mail by a recognized
carrier, (b) by hand or (c) certified mail, return receipt requested, addressed
to Sublandlord or to Subtenant at its respective mailing addresses set out in
Article 1. Either party may, by like notice, direct that future notices or
demands be sent to a different address. All such notices shall be effective
when actually received or three (3) days after deposit in the United States
mail.
5. Sublandlord shall have the right, but shall not be required, to pay
such sums or do any act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of Subtenant to
perform any of the provisions of this Sublease before the expiration of
applicable grace periods set forth in this Sublease, and in the event of the
exercise of such right by Sublandlord, Subtenant agrees to pay to Sublandlord
forthwith upon demand all such sums, including, without limitation, reasonable
attorney's fees; and if Subtenant shall default in such payment, Sublandlord
shall have the same rights and remedies as Sublandlord has hereunder for the
failure of Subtenant to pay rent.
6. Subtenant shall peaceably surrender possession of the Premises to
Sublandlord in substantially the same condition and repair as the Premises were
in on the applicable Commencement Date, and in compliance with the provisions
hereof at the expiration or sooner termination of the term of this Sublease,
reasonable wear and tear. and damage by fire or other casualty and eminent
domain excepted. Neither Sublandlord nor Prime Landlord shall have any
obligation to pay or reimburse Subtenant for any improvements made to or on the
Premises by Subtenant, except as provided in Section IV.1.d hereof. Subtenant
shall have the right to remove all of its personal property, furniture, and
fixtures and equipment installed by Subtenant at any time during the Term of
this Sublease or at the expiration or earlier termination thereof; provided,
however, that Subtenant shall promptly, and at its own expense, repair all
damage to the Premises and the Building arising from any such removal.
Subtenant shall, at the time of such expiration or other termination hereof,
remove any liens or encumbrances to Prime Landlord's title or leasehold interest
or Sublandlord's leasehold interest for which Subtenant is responsible. In the
event Subtenant fails to remove any of Subtenant's property from the Premises on
or before the Termination Date or earlier termination of this Sublease, such
property shall be deemed abandoned and Sublandlord or Prime Landlord is hereby
authorized, without liability to Subtenant for loss or damage thereto, and at
the sole risk of Subtenant, to remove and store any of such property at
Subtenant's expense, or to retain the same under its or their control, or to
sell at public or private sale, without notice, any or all of the property not
so removed and to apply the net proceeds of any such sale toward the payment of
any sum hereunder owing by the Subtenant, or to destroy such property. Without
limitation, the provisions of this section shall survive the expiration or other
termination of this Sublease.
7. This Sublease shall be governed by the laws of the Commonwealth of
Massachusetts, contains the entire agreement between the parties hereto, and may
be altered, amended or terminated only by a written instrument executed by each
of the parties hereto. The article headings are used herein only for
convenience of reference and are in no way intended to
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define, limit or explain the scope or contents of this Sublease or affect its
provisions in any way. This Sublease has been executed as a recordable document
pursuant to Section 115 of M.G.L. c. 156B, and each party hereto agrees that the
other may rely on this Sublease in accordance with said Section 115 of M.G.L. c.
156B.
8. The parties hereto warrant and represent that they have not dealt with
or negotiated with any broker, other than Whittier Partners and Columbia Group,
in connection with this transaction, whose fees shall be paid by Sublandlord;
provided, however, that Sublandlord shall not be responsible for any fees
associated with any occupancy arrangement other than this Sublease, including,
but not limited to, any direct lease between Prime Landlord and Subtenant. Each
party agrees to indemnify and hold harmless the other against any loss, cost or
expense (including reasonable attorneys' fees) arising out of a claim by any
broker in connection with this Sublease, alleging it was employed by, dealt
with, or negotiated on behalf of Subtenant or Sublandlord.
9. Notwithstanding any provision of this Sublease to the contrary, if the
consent of Prime Landlord is required under the Prime Lease with respect to any
action or proposed action of Subtenant, and Subtenant obtains Prime Lessor's
consent either directly or through Sublandlord, the consent of Sublandlord shall
not be required unless explicitly required under this Sublease, or unless such
consent by Prime Landlord would increase Sublandlord's obligations or
liabilities under this Sublease. Where the consent of Prime Landlord is
required under the Prime Lease, Sublandlord agrees to cooperate with Subtenant
(which cooperation shall not include the expenditure of money) in obtaining such
consent of Prime Landlord.
XI. Extension Option; Capital Cost Reimbursement.
--------------------------------------------
Subtenant shall provide written notice to Sublandlord not later than twelve
(12) months prior to the Termination Date of this Sublease that Subtenant wishes
to occupy the Premises for an additional period of five (5) years to follow
consecutively after said Termination Date. Sublandlord shall provide Subtenant
with a copy of the rent schedule provided to Sublandlord pursuant to Paragraphs
18(c) or 18(g), and Subtenant shall give written notice to Sublandlord no later
than five (5) days following Subtenant's receipt of said rent schedule as to
whether Subtenant accepts or rejects the rent schedule. Subtenant and
Sublandlord agree that time is of the essence. If Subtenant does not give
Sublandlord written notice of its acceptance or rejection of any rent schedule
submitted to Subtenant within said five-day period, Subtenant shall be deemed to
have accepted the rent schedule. If based on Subtenant's acceptance of the rent
schedule submitted to it by Sublandlord, Sublandlord exercises its option to
extend the term of the Prime Lease pursuant to Paragraph 18 of the Prime Lease,
the Term of this Sublease shall be extended to run coterminous with that of the
Prime Lease, and the rental rate shall be the same rental rate set forth in the
rent schedule agreed to by the parties under Paragraph 18 of the Prime Lease.
If Subtenant is not or will not be in occupancy of the Premises through and
including April 1, 1999, either as a subtenant of Sublandlord under this
Sublease (as the Term hereof may
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be extended) or as a direct tenant of Prime Landlord under a direct lease with
Prime Landlord, due to Sublandlord's decision not to exercise its option to
extend pursuant to the aforesaid Paragraph 18, Sublandlord shall pay Subtenant
up to $75,000 (the "Capital Cost Reimbursement") for the cost of the
Improvements completed by, or at the direction of, Subtenant on the First Floor
of the Premises during the Term of this Sublease (as may be extended under this
Article); provided, however, that Sublandlord shall not be obligated to
reimburse the Capital Cost Reimbursement to Subtenant if Subtenant elects not to
exercise its option to extend this Sublease and does not obtain a direct lease
with Prime Landlord for the Premises. Subtenant shall submit copies to
Sublandlord of receipts for the Improvements or construction thereof, and
Sublandlord shall reimburse the Capital Cost Reimbursement to Subtenant at least
thirty (30) days prior to the Termination Date of this Sublease; provided,
however, that Sublandlord shall not be obligates to reimburse Subtenant for the
first $10,000 paid by Sublandlord pursuant to Section IV.l.d hereof. The
provisions of this Article XI shall survive the expiration or earlier
termination of this Sublease.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals on the day first above written.
SUBLANDLORD: IPL Systems, Inc.
By: /s/ R. Gellert
-------------------------------
its President
Hereunto duly authorized
By: /s/ Eugene F. Tallone
-------------------------------
its Treasurer
Hereunto duly authorized
SUBTENANT: SeaChange Technology, Inc.
By: /s/ Bill Styslinger
-------------------------------
its President
Hereunto duly authorized
By: /s/ Ed McGrath
-------------------------------
its Treasurer
Hereunto duly authorized
Exhibits: A - Description of Premises
B - Prime Lease
19
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C - Subtenant's Improvements
D - Signage
20
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COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. March 20, 1996
Then personally appeared the above-named R. Gellert as President of IPL
----------
Systems, Inc., and acknowledged the foregoing instrument to be his/her free act
and deed and the free act and deed of IPL Systems, Inc., before me,
/s/ Florence R. Silverman
-------------------------------
Notary Public
My commission expires: February 21, 2003
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. March 20, 1996
Then personally appeared the above-named Eugene F. Tallone, as Treasurer of
IPL Systems, Inc., and acknowledged the foregoing instrument to be his/her free
act and deed and the free act and deed of IPL Systems, Inc., before me,
/s/ Florence R. Silverman
-------------------------------
Notary Public
My commission expires: February 21, 2003
21
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COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. March 20, 1996
Then personally appeared the above-named Bill Styslinger as President of
SeaChange Technology, Inc., and acknowledged the foregoing instrument to be
his/her free act and deed and the free act and deed of SeaChange Technology,
Inc., before me,
/s/ Mary E. Kilbon
----------------------------------------
Notary Public
My commission expires: September 5, 1997
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. March 20, 1996
Then personally appeared the above-named Ed McGrath, as Treasurer of
SeaChange Technology, Inc., and acknowledged the foregoing instrument to be
his/her free act and deed and the free act and deed of SeaChange Technology,
Inc., before me,
/s/ Mary E. Kilbon
----------------------------------------
Notary Public
My commission expires: September 5, 1997
22