EXHIBIT 10.14
SUBLEASE
THIS SUBLEASE (this "Sublease"), made as of the 3rd day of May, 2002,
between NOVELL, INC., a Delaware corporation having an office at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Sublessor"), and AKAMAI TECHNOLOGIES, INC., a
Delaware corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇ ("Subtenant").
WITNESSETH:
1. PREMISES. Sublessor leases to Subtenant a portion of the building
(the "Building") known as Eight Cambridge Center, Cambridge, Massachusetts
located on the first, sixth, seventh, eighth and ninth floors of the Building
and shown on the floor plans attached hereto as EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇,
EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and EXHIBIT A-5 and made a part hereof, (the "subleased
premises"), upon the terms, conditions, covenants and agreements hereinafter set
forth in this Sublease. The parties hereto agree that for purposes of this
Sublease the subleased premises shall be deemed to constitute 89,614 rentable
square feet. Subject to the terms and provisions of the underlying Lease (as
such term is defined below in PARAGRAPH 3) and the reasonable rules and
regulations as may be imposed by Sublessor, Subtenant shall have non-exclusive
access twenty four (24) hours a day seven (7) days a week (subject to reasonable
security procedures) to the main lobby of the Building, the Building loading
docks and other Building wide common areas and the elevator banks serving the
subleased premises.
2. TERM. The term of this Sublease (the "Term") (a) shall commence with
respect to the portion of the subleased premises located on the first floor on
the date (the "Commencement Date") which is the later of (i) seven (7) days
after the date Sublessor receives the- Landlord Consent and the Landlord SNDA
(as such terms are defined below in ▇▇▇▇▇▇▇▇▇ ▇), ▇▇ (▇▇) ▇▇▇ ▇▇, ▇▇▇▇, (▇)
shall commence with respect to the balance of the subleased premises on the date
that is the later of (i) June 3, 2002 or (ii) fifteen (15) days after Sublessor
receives the Landlord Consent and the Landlord SNDA and (c) shall end at the
close of business on May 31, 2009 (the "Expiration Date") or upon such earlier
date upon which the term of this Sublease may expire or be terminated pursuant
to the terms and provisions of this Sublease or pursuant to law.
3. UNDERLYING LEASE. (a) The parties agree that this Sublease shall be
subject and subordinate to all of the terms, covenants, conditions and
provisions of the lease dated as of December 22, 1997 between Boston Properties
Limited Partnership, as landlord ("Landlord"), and Cambridge Technology Partners
(Massachusetts) Inc., ("Cambridge") as tenant, covering the subleased premises
and other premises in the Building, as amended by first amendment to lease dated
as of June 29, 1999 between Landlord and Cambridge, and as assigned by Cambridge
to Sublessor by assignment and assumption of lease dated as of January l, 2002
(said lease, as so amended and assigned, the "Underlying Lease"). A redacted
copy of the Underlying Lease has been delivered to and examined by Subtenant.
(b) The terms, covenants, conditions and provisions contained
in the Underlying Lease (including but not limited to the remedies provided
thereunder) are incorporated herein by reference, and shall, as between
Sublessor and Subtenant constitute the terms, covenants, conditions and
provisions of this Sublease, as if all references to the landlord thereunder
were references to Sublessor, as if all references to the tenant thereunder were
references to Subtenant and as if all references to the Premises (as such term
is defined in the Underlying Lease) thereunder were references to the subleased
premises, (i) except that all references in the Underlying Lease, as
incorporated herein by reference, to "Tenant's Property" shall apply only to
Subtenants property and all references in the Underlying Lease, as incorporated
herein by reference, to "Annual Fixed Rent" shall refer to base rent hereunder
and (ii) except to the extent that they are inapplicable to, inconsistent with,
or modified by the provisions of this Sublease. Subtenant agrees to faithfully
observe and perform the terms, covenants, conditions and provisions on its part
to be observed and performed hereunder as well as those terms, covenants,
conditions and provisions on its part to be observed and performed by the tenant
under the Underlying Lease including, without limitation, the obligation to pay
all rent, additional rent and all other charges and sums thereunder, except to
the extent that they are inapplicable to, inconsistent with or modified by the
provisions of this Sublease. Sublessor and Subtenant hereunder shall have the
respective remedies of landlord and tenant under the Underlying Lease. Nothing
contained in this Sublease shall be construed to create privity of estate or of
contract between Subtenant and Sublessor's landlord. Subtenant shall not do or
permit to be done any act or thing which will constitute a breach or violation
of any of the terms, covenants, conditions or provisions of the Underlying
Lease.
(c) Subtenant will indemnify and hold Sublessor harmless from
and against all loss, costs, damages, expenses and liability, including, but not
limited to, reasonable attorneys' fees, which Sublessor may incur by reason of
any injuries to person or property occurring in, on or about the subleased
premises arising by reason of (i) any breach or default hereunder on Subtenant's
part; (ii) any work done in or to the subleased premises (1) by Subtenant or its
agents or contractors, (2) with the consent of Subtenant or (3) at the request
of Subtenant; (iii) any act, omission, negligence or other fault on the part of
Subtenant, or any of Subtenant's agents, invitees, vendors, customers,
contractors, subtenants, licensees or employees (collectively, "Subtenant
Parties"); or (iv) any accident, injury or damage whatsoever to any person or
entity occurring during the Term in or about the subleased premises (except to
the extent caused by the willful acts or negligence of Sublessor or its agents,
invitees, vendors, customers, contractors, subtenants (other than Subtenant),
licensees or employees). The foregoing indemnity shall be construed to
supplement Subtenant's obligations in the Underlying Lease, as incorporated in
and made a part of this Sublease. Subtenant shall in no case have any rights in
respect of the subleased premises greater than Sublessor's rights under the
Underlying Lease. Notwithstanding any other provision of this Sublease,
Sublessor, as sublandlord under this Sublease, shall have the benefit of all
rights, waivers, remedies and limitations of liability (other than those set
forth in Section 17.24 of the Underlying Lease) enjoyed by Landlord, as the
landlord under the Underlying Lease, but (i) Sublessor shall have no obligation
under this Sublease to perform the obligations of Landlord, as landlord under
the Underlying Lease, including, without limitation, any obligation to provide
services or maintain insurance, (ii) Sublessor shall not be bound by any
representations or warranties of the Landlord under the Underlying Lease; (iii)
in any instance where the consent of Landlord is required under the terms of the
Underlying Lease, the consent of Landlord shall be required hereunder and,
unless as
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otherwise expressly provided hereunder, the consent of Sublessor shall also be
required; and (iv) Sublessor shall not be liable to Subtenant for any failure or
delay in Landlord's performance of its obligations, as landlord under the
Underlying Lease (but the foregoing shall not affect Sublessor's obligations
under PARAGRAPH 5(Q) hereof).
(d) Sublessor will indemnify and hold Subtenant harmless from
and against any loss, cost, damage, expense and liability, including, but not
limited to, reasonable attorneys fees which Subtenant may incur to the extent
arising by reason of (i) any breach or default hereunder, on Sublessor's part
which is not caused (in whole or in part) by the acts or omission of Subtenant,
(ii) any negligence of Sublessor or (iii) the termination of both the Underlying
Lease and this Sublease, but only if caused solely by Sublessor and not
permitted hereunder.
(e) Sublessor represents and warrants to Subtenant that (i)
Sublessor is the current tenant under the Underlying Lease and has the right to
enter into this Sublease subject to obtaining the Landlord Consent; (ii) the
Underlying Lease is in force and effect and has not been modified or amended;
(iii) a true and complete copy of the Underlying Lease (except for certain
redactions which do not adversely affect Subtenant's obligations or rights under
this Sublease) is attached hereto; (iv) to the actual knowledge of Sublessor,
neither Landlord nor Sublessor is in default under the Underlying Lease beyond
the expiration of the applicable grace period set forth therein; and (v) there
are no subleases entered into by Sublessor which are currently in effect and
which affect the use and occupancy of the subleased premises (it being
understood that while the sublease of the seventh floor with Palm, Inc. expires
on July 31, 2002 Palm, Inc. has vacated and surrendered possession of its
space). Sublessor shall indemnify Subtenant from and against any and all
reasonable out of pocket losses, costs, damages or expenses (including, without
limitation, reasonable out of pocket costs and expenses for temporary office
space and additional construction costs) to the extent caused by the failure of
Sublessor to deliver to Subtenant any portion of the subleased premises (other
than the first floor) free and clear of the rights of all subtenants and
occupants (including, without limitation, Palm, Inc.) as of the applicable
commencement date for the portion of the subleased premises in question provided
and on the express condition that Subtenant uses reasonable efforts to mitigate
its losses, costs, damages and expenses. Sublessor shall not voluntarily
terminate the Underlying Lease except as otherwise expressly provided herein.
Sublessor shall promptly deliver (but in no event more than five days after
receipt) to Subtenant a copy of any notice of default or termination or any
notice relating to any casualty or taking, given by Sublessor to Landlord or
received by Sublessor from Landlord.
(f) All capitalized terms used but not defined herein shall
have the respective meanings ascribed to them in the Underlying Lease.
(g) This PARAGRAPH 3 shall survive any termination or
expiration of this Sublease.
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4. BASE RENT. (a) Subtenant shall pay base rent during the Term at the
following rates:
PERIOD ANNUAL BASE RENT MONTHLY BASE RENT
------ ---------------- -----------------
(i) First and second Sublease Years (as $2,598,806 $216,567.00
such term is defined below in PARAGRAPH ($29 per rentable
4(d)) square foot)
(ii) Third and fourth Sublease Years $2,778,034 $231,502.00
($31 per rentable
square foot)
(iii) Fifth Sublease Year $2,867,648 $238,970.00
($32 per rentable
square foot)
(iv) Sixth and seventh Sublease Years $2,912,455 $242,704.00
($32.50 per rentable
square foot)
(a) (b) Base rent shall be payable in equal monthly
installments in advance on the first day of each month during the Term
commencing on the Rent Commencement Date.
(c) Notwithstanding the foregoing, provided that Subtenant is
not in default under this Sublease beyond the expiration of the applicable grace
or cure period set forth herein, base rent shall ▇▇▇▇▇ hereunder as follows: (i)
during the first six months of the first Sublease Year, 100% of the base rent
will ▇▇▇▇▇; (ii) during months seven through eleven of the first Sublease Year,
base rent will ▇▇▇▇▇ by $69,925 per month; (iii) during the twelfth month of the
first Sublease Year, base rent will ▇▇▇▇▇ by $21,046 per month; and (iv) during
the first two months of the second Sublease Year, base rent will ▇▇▇▇▇ by
$21,046 per month.
(d) As used herein,
(i) the term "Rent Commencement Date" shall mean the
earlier of (1) December 1, 2002 or (2) the first day on which Subtenant occupies
all or substantially all of the subleased premises; and
(ii) the term "Sublease Year" shall mean the 12 month
period commencing on the Rent Commencement Date or any anniversary of the Rent
Commencement Date occurring during the Term except that the seventh Sublease
Year shall be the period commencing on the sixth anniversary of the Rent
Commencement Date and ending on the Expiration Date.
(e) Notwithstanding anything in clause (d) to the contrary,
(i) if the Commencement Date occurs after May 20, 2002, then the Rent
Commencement Date will be extended by twice the number of days from and
including May 21, 2002 to the date the Commencement Date occurs.
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5. SPECIFIC COVENANTS OF THE PARTIES. Notwithstanding anything to the
contrary contained herein or in the Underlying Lease, the parties agree as
follow:
(a) ADDITIONAL RENT. (i) The rent reserved under this Sublease
shall consist of the base rent described in PARAGRAPH 4 above and the additional
rent payable hereunder.
(ii) Subtenant shall pay to Sublessor from time
to time during the Term, as additional rent hereunder, (1) for calendar year
2003 and for each calendar year thereafter during the Term an amount (the "RET
Payment") equal to Subtenant's Pro Rata Share of the excess of Real Estate Taxes
for such calendar year over the Real Estate Taxes for calendar year 2002, (2)
for calendar year 2003 and for each calendar year thereafter during the Term an
amount (the "OE Payment") equal to Subtenant's Pro Rata Share of the excess of
Operating Expenses Allocable to the Premises for such calendar year over Base
Amount Operating Expenses Allocable to the Premises (as such term is defined
below in clause (vi)) and (3) for calendar year 2003 and. for each calendar year
thereafter during the Term an amount (the "RS Payment") equal to Subtenant's
Proportionate Share of the excess of all of the reasonable out of pocket costs
and expenses incurred by Sublessor in providing the Retained Services (as such
term as defined in Paragraph 5(m) below) to the Premises (collectively, the "RS
Expenses") for such calendar year over Base Amount RS Expenses (as such term is
defined below in clause (vi)). As used herein, the term "Subtenant's Pro Rata
Share" shall mean 50.205%, it being understood that such percentage represents
the fraction whose numerator equals the rentable square footage of the subleased
premises (89,614) and whose denominator equals the rentable square footage of
the Building (178,500). Said payments shall be made as provided below in clauses
(iii) and (iv).
(iii) Sublessor shall give Subtenant, prior to or
after the commencement of each calendar year commencing on or after January 1,
2003, a notice setting forth Sublessor's reasonable estimate of the RET Payment,
the OE Payment and the RS Payment for such calendar year. Subtenant shall pay to
Sublessor on the first day of each month during such calendar year an amount
equal to 1/12th of the sum of Sublessor's estimates of the RET Payment, the OE
Payment and the RS Payment for such calendar year. Sublessor may amend such
estimate in whole or in part by notice given to Subtenant from time to time to
reflect additional information about Real Estate Taxes, Operating Expenses
Allocable to the Premises and/or RS Expenses that comes to Sublessor's attention
or to correct any error made in any prior estimate; said notice may require an
increase in monthly payments or a separate individual payment and Subtenant's
payments shall be adjusted or made as provided in said notice. If Sublessor
gives any such estimate for a calendar year subsequent to the commencement
thereof, then until the first day of the month following the month in which such
estimate is given to Subtenant, Subtenant shall pay to Sublessor on the first
day of each month in such calendar year an amount equal to 100% of the monthly
sum payable by Tenant under this paragraph for the last full month of the
preceding calendar year.
(iv) After the end of each calendar year commencing
with calendar year 2003, Sublessor shall give notice to Subtenant containing a
statement of the Real Estate Taxes, Operating Expenses Allocable to the Premises
and RS Expenses for such calendar year. Such statement shall set forth the
correct amount of the RET Payment, the OE Payment and the RS Payment for such
calendar year and the computation of Subtenant's payments on account
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thereof, and (1) in the event of a deficiency Subtenant shall pay to Sublessor
the amount thereof within 10 days after demand therefor, and (2) in the event of
an overpayment Sublessor shall promptly refund to Subtenant the amount thereof
or, at Sublessor's option, permit Subtenant to credit the amount thereof against
subsequent payments of additional rent. Sublessor will give to Subtenant a
statement of Real Estate Taxes for each calendar year commencing with calendar
year 2002, within 30 days after Sublessor receives the corresponding statement
from Landlord pursuant to the Underlying Lease. Sublessor will give to Subtenant
a statement of Operating Expenses Allocable to the Premises for each calendar
year commencing with calendar year 2003, within 30 days after Sublessor receives
the corresponding statement from Landlord pursuant to the Underlying Lease.
Sublessor will give to Subtenant a statement of the RS Expenses for each
calendar year commencing with calendar year 2003, within 120 days after the end
of such calendar year. Sublessor will refund any over-payment made by Subtenant
during the last year of the Term within 60 days of the determination of the
amount owed to Subtenant.
(v) Notwithstanding anything in this Paragraph 5(a)
to the contrary, if less than 100% of the rentable area of the Premises is
occupied during all or any significant part of calendar year 2003, or any
subsequent calendar year, then Operating Expenses Allocable to the Premises and
RS Expenses will be recalculated by an independent and reputable property
manager with at least 10 years experiences with managing Class A office
buildings in the Cambridge, Mass area selected by Sublessor and approved by
Subtenant (such approval not to be unreasonably withheld or delayed) as if 100%
of the rentable area of the Premises were occupied throughout such calendar
year.
(vi) For purposes of this Sublease, (1) Base Amount
Operating Expenses Allocable to the Premises shall equal Operating Expenses
Allocable to the Premises for calendar year 2003 (subject to the provisions of
clause (v) above) multiplied by 0.97 and (2) Base Amount RS Expenses shall equal
RS Expenses Allocable to the Premises for calendar year 2003 (subject to the
provisions of clause (v) above)) multiplied by 0.97.
(vii) Upon at 10 days prior notice to Sublessor by
Subtenant, Sublessor will grant to Subtenant the right to exercise Sublessor's
examination rights pursuant to Section 7.7 of the Underlying Lease provided that
a representative of Sublessor or Sublessor's agent or consultant may accompany
Subtenant with respect to such examination. Within (60) days after receipt of
each statement of RS Expenses, Subtenant or its duly authorized agent shall have
the right to examine Sublessor's records relating to the calculation of RS
Expenses. Sublessor shall make all its records relating to the calculation of RS
Expenses available to Sublessor or said agent at reasonable times during regular
business hours upon reasonable advance written notice. To the extent such audit
reveals that Sublessor has overcharged Subtenant for RS Expenses and Sublessor,
acting in good faith, shall not dispute such audit, Sublessor shall credit same
against base rent next due or shall promptly refund such overcharge to Subtenant
if the Term has then expired and Subtenant has no further obligation to
Sublessor.
(b) PAYMENT OF BASE RENT AND ADDITIONAL RENT.
(i) Base rent and the additional rent payable by
Subtenant hereunder and all other amounts payable by Subtenant to Sublessor
hereunder shall be paid to Sublessor at its office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Real Estate Department or
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at such other place or places as Sublessor may designate to Subtenant, in lawful
money of the United States, by good and sufficient check (subject to collection)
or at Sublessor's option by wire transfer of immediately available funds to the
account designated by Sublessor.
(ii) Subtenant does hereby covenant and agree to (A)
pay the base rent and additional rent as and when the same shall become due and
payable as herein provided, and except as otherwise specifically provided
herein, without demand therefor and without any setoff or deduction whatsoever,
and (B) keep, observe and perform, and to permit no violation of, each and every
of the covenants, agreements, terms, provisions and conditions herein contained
on the part of Subtenant to be kept, observed or performed.
(iii) If Subtenant shall pay base rent, or any RET
Payment, OE Payment or RS Payment more than seven (7) days after the same is due
and payable, Subtenant shall pay a late payment charge equal to four percent
(4%) percent of the amount due. Such amount shall be payable as additional rent
thereunder, and shall be payable in addition to any interest payable on such
late payment of base rent, additional rent or other charges. Notwithstanding the
foregoing, Sublessor will be entitled to the late payment charge during any
calendar year only if Subtenant has failed to pay base rent or any RET Payment,
OE Payment or RS Payment within seven (7) days after same is due and payable on
two prior occasions during such calendar year.
(c) ELECTRICITY. (a) Prior to the Rent Commencement Date,
Sublessor shall, at Sublessor's cost and expense, install one or more meters to
measure all electricity consumed at the subleased premises (but specifically
excluding any electricity used by any building wide system). Subtenant shall, at
Subtenant's sole cost and expense, (i) arrange to obtain electricity service for
the subleased premises directly from the utility company furnishing same to the
Building and (ii) pay and be responsible for all charges relating to or arising
from electricity furnished to the subleased premises directly to said company as
and when billed. With respect to each portion of the subleased premises, prior
to the installation of such meter(s), and after the installation of such
meter(s), but prior to the earlier of (i) Subtenant's first using or occupying
such portion of the subleased premises for its business or (ii) December 1,
2002, Sublessor shall be responsible to pay for electricity used at such portion
of the subleased premises. With respect to each portion of the subleased
premises, after the installation of such meter(s) and after the earlier of (i)
Subtenant's first using or occupying such portion of the subleased premises for
its business or (ii) December 1, 2002, Subtenant shall be responsible to pay for
electricity used at such portion of the subleased premises.
(d) USE. Subtenant shall use and occupy the subleased premises
only for the uses permitted under the Underlying Lease and which shall in all
events be in compliance with all legal requirements and in keeping with the
character of the Building, and for no other purpose.
(e) CONDITION OF SUBLEASED PREMISES. Sublessor and Subtenant
covenant and agree that Subtenant is leasing the subleased premises in its "AS
IS" condition on the date hereof and Sublessor shall have no obligation to
perform any work to the subleased premises or to any part of the Building to
prepare the subleased premises for occupancy by Subtenant. Sublessor makes no
representation or warranty regarding the condition of the subleased premises
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or the Building or title to the subleased premises, except that Sublessor is the
tenant under the Underlying Lease. In making and executing this Sublease,
Subtenant has not relied upon or been induced by any statements or
representations of any persons, other than those, if any, set forth expressly in
this Sublease in respect of the physical condition of the subleased premises or
the Building or of any other matter affecting the subleased premises or this
transaction which might be pertinent in considering the leasing of said
subleased premises or the execution of this Sublease. Subtenant has, on the
contrary, relied solely on such representations, if any, as are expressly made
herein and on such investigations, examinations and inspections as Subtenant has
chosen to make or have made. Subtenant acknowledges that Sublessor has afforded
Subtenant the opportunity for full and complete investigations, examinations,
and inspections. If any alterations, improvements or other work are required in
order to separate the subleased premises from the balance of the premises
demised to Sublessor under the Underlying Lease or properly demise the subleased
premises to Subtenant, same shall be performed by Subtenant at Subtenant's own
cost and expense in accordance with the terms and provisions of this Sublease.
All trade fixtures, furniture, furnishings and other personal property currently
located in the subleased premises will be removed prior to the applicable
commencement date.
(f) INTENTIONALLY OMITTED.
(g) NOTICES AND PAYMENTS. Notices and other communications
hereunder shall be in writing and shall be given or made by nationally
recognized overnight courier service providing for overnight delivery (e.g.
Federal Express, DHL) or United States certified or registered mail with return
receipt requested provided the sender shall obtain a written receipt for such
delivery. All notices shall be deemed given when received, when acceptance of
delivery is refused or when delivery is attempted but cannot be effectuated (as
evidenced by the return receipt). All notices to Sublessor shall be given to it
at the address set forth above with copies in like manner to Novell, Inc. at ▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and to
▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇, Esq. All notices to Subtenant shall be given to it (i) prior to the Rent
Commencement Date, at its address set forth above and (ii) on or after the Rent
Commencement at the subleased premises in both instances to the attention of
Vice President of Corporate Services and to the Attention of Kit ▇▇▇▇▇, Esq.
with copy to ▇▇▇▇ and ▇▇▇▇, LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇▇▇, Attention
▇▇▇▇ ▇▇▇▇▇▇▇, Esq. Either party may change its address or addresses for notices
by a written notice to the other party. All payments to be made by Subtenant to
Sublessor shall be delivered to Sublessor at its address set forth above or to
such other address as Sublessor may hereafter designate in a written notice
given under this paragraph.
(h) TIME LIMITS. The time limits provided in the Underlying
Lease for the giving of notices, making demands, performance of any act,
condition or covenant, or the exercise of any right, remedy or option, are
changed for the purposes of this Sublease, by lengthening or shortening the same
in each instance by five (5) days (except that if the time limit provided in the
Underlying Lease for the giving of any notice, making any demand, performing any
act, condition or covenant or exercising any right shall be seven (7) days or
less, then such time limit shall be changed by lengthening or shortening the
same by three (3) days provided that in no event will the time limit given to
Subtenant be less than four (4) days), as appropriate, so that notices may be
given, demands made, or any act, condition or covenant performed, or any
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right, remedy or option hereunder exercised, by Sublessor or Subtenant, as the
case may be (and each party covenants that it will do so) within the time limit
relating thereto contained in the Underlying Lease.
(i) TERMINATION OF UNDERLYING LEASE. If for any reason the term
of the Underlying Lease is terminated or expires prior to the expiration date of
this Sublease, this Sublease shall thereupon automatically be terminated,
provided however, that the foregoing shall not affect the rights of Subtenant
under the Landlord SNDA.
(j) CASUALTY AND CONDEMNATION. Upon the occurrence of a fire
or other casualty or a condemnation or taking which permits the tenant under the
Underlying Lease to terminate the Underlying Lease pursuant to SECTION 14.1 or
SECTION 14.3 of the Underlying Lease, Sublessor shall have the right, at its
election, to terminate the Underlying Lease, but only with the prior consent of
Subtenant (which consent of Subtenant will not be unreasonably withheld or
delayed), in which event this Sublease shall automatically terminate (without
any liability to Sublessor) upon such a termination of the Underlying Lease. If
(i) a fire or other casualty which damages the subleased premises occurs, (ii)
either (1) according to Landlord's Restoration Estimate (as such term is defined
in the Underlying Lease) such damage to the subleased premises cannot reasonably
be expected to be repaired or restored within 360 days from the time that repair
or restoration work would commence or (2) the damage occurred during the last
nine months of the Term and according to Landlord's Restoration Estimate such
damage to the subleased premises cannot reasonably be expected to be repaired or
restored within one hundred eighty (180) days from the time that repair or
restoration work would commence and (iii) Sublessor, as tenant under the
Underlying Lease, has the right to terminate the Underlying Lease pursuant to
SECTION 14.1 or SECTION 14.3 of the Underlying Lease, then Subtenant may, at its
election, terminate this Sublease by notice given to Sublessor within 15 days
following Tenant's receipt of Landlord's Restoration Estimate, in which event
this Sublease will terminate on the date selected by Sublessor, which
termination date will be not less than 30 days or more than 45 days after the
date of notice of such termination. If a portion of the subleased premises shall
be taken by condemnation or right of eminent domain and Sublessor has the right
to terminate the Underlying Lease pursuant to SECTION 14.3 of the Underlying
Lease, then Subtenant shall have the right to terminate this Sublease by giving
notice to Sublessor no later than 15 days after Tenant has been deprived of
possession, in which event this Sublease will terminate as of the 15th day after
the date Subtenant is deprived of possession.
(k) ASSIGNMENT AND SUBLETTING. (i) Except as otherwise
expressly provided below, Subtenant shall not, voluntarily or involuntarily or
by operation of law or otherwise, assign, transfer, mortgage, pledge or encumber
this Sublease, or sublet all or any part of the subleased premises or permit or
suffer any person or entity to use or occupy all or any part of the subleased
premises without in each instance obtaining the prior written consent of
Sublessor. Any sale, assignment or transfer (whether by one or a series of
related or unrelated transactions and whether voluntarily, involuntarily or by
operation of law or otherwise) of 50% or more of the direct or indirect
ownership interests in Subtenant shall be deemed an assignment of this Sublease
requiring Sublessor's consent. The provisions of the preceding sentence shall
not be applicable to Subtenant for as long as the shares of Subtenant's stock
are regularly traded over the New York Stock Exchange, the American Stock
Exchange or NASDAQ.
9
(ii) Notwithstanding anything contained in this
Sublease to the contrary, (1) Sublessor shall not unreasonably withhold its
consent to any assignment of this Lease or to any subletting of all or a portion
of the subleased premises, and (2) Subtenant may assign this Sublease or sublet
all or a portion of the subleased premises, without Sublessor's consent, to an
Affiliate (as defined below), or in connection with a merger, consolidation or
the sale of all or substantially all of the assets of Subtenant, provided that
(A) in case of any assignment referred to in this clause (ii), such assignee
shall assume in writing all of Subtenant's obligations hereunder and Subtenant
shall not be relieved of its obligation hereunder, the form of the assignment
and assumption of sublease document is reasonably satisfactory to Sublessor and
an original thereof is delivered to Sublessor at least 10 days before the
effective date thereof, and (B) in the case of any sublease described in this
clause (ii) the form of the sublease document is reasonably satisfactory to
Sublessor and (C) Sublessor shall not be deemed to have unreasonably withheld
its consent to an assignment or sublease if (I) at the time Sublessor receives
Subtenant's notice, Sublessor or its Affiliates are occupying more than 20,000
rentable square feet of the Building, and the assignee or sub-subtenant is
Microsoft Corporation, BEA Associates, Iona Consulting or an Affiliate of any of
the foregoing (provided, however, that this clause (C)(I) shall not apply if any
one or more of said companies or their respective Affiliates is an Affiliate of
Subtenant or if the applicable sublease or assignment is occurring in connection
with any merger of Subtenant with any of said companies or their respective
Affiliates or any acquisition or sale of stock or assets involving Subtenant and
any of said companies or any of their Affiliates), (II) the proposed use or
business of the assignee or subtenant will increase Sublessor's obligations
under the Underlying Lease (other than in an insignificant manner), (III) in the
case of an assignment, in Sublessor's reasonable judgment, the assignee does not
possess adequate financial capability and liquidity to perform its obligation
under this Sublease, (IV) there is then an uncured monetary default under this
Sublease or an uncured non-monetary default under this Sublease which remained
uncured beyond the expiration of the applicable grace period set for herein, (V)
Sublessor has exercised its right of recapture set forth below in clause (iv) or
(VI) there will be more than two occupants of any floor which comprises the
subleased premises.
(iii) If Subtenant requires the consent of Sublessor
with respect to an assignment of this Sublease or a sublease of all or part of
the subleased premises Subtenant shall give a notice to Sublessor requesting
Sublessor's consent and containing all of the information described in Section
12.5 of the Underlying Lease. Sublessor's failure to respond to Subtenant's
request for Sublessor's consent with respect to a proposed assignment or
sublease within 20 days after Sublessor receives Subtenant's written request and
all of the information described in Section 12.5 of the Underlying Lease shall
constitute Sublessor's consent to the requested assignment or sublease.
(iv) With respect to any assignment of this Sublease
or sublease of all or substantially all of the subleased premises for all or
substantially all of the remainder of the Term which requires Sublessor's
consent, Sublessor shall have the right, at its option, by giving written notice
to Subtenant, within 15 days after Sublessor's receipt of Subtenant's notice
requesting Sublessor's consent to terminate this Sublease as of the proposed
effective date of such assignment or sublease (which shall be set forth in
Subtenant's notice to Sublessor requesting Sublessor's consent and which
proposed effective date shall not be earlier than 15 days after the expiration
of such 15 day period). If Sublessor shall exercise such right, then upon
10
the commencement date of the proposed assignment or sublease, all of Sublessor's
and Subtenant's obligations relating to the period after such date (but not
those relating to the period before such termination date) shall cease. Further,
in the event Sublessor does not exercise its option to terminate this Sublease
within said 15 day period and an assignment or sublease, as applicable has not
been executed and delivered to Sublessor within 90 days after the expiration of
said 15 day period and in accordance with the terms of Subtenant's notice,
Sublessor's waiver of the termination right shall be void and Subtenant shall
not assign this Sublease or enter into a sublease without first giving Sublessor
the notice set forth above in clause (iii) above and allowing Sublessor the
opportunity to exercise its termination right set forth herein.
(v) With respect to any assignment or sublease
consented to by Sublessor, such consent shall be upon the express and further
condition, covenant and agreement, and Subtenant hereby covenants and agrees
that in addition to the base rent additional rent and other charges to be paid
pursuant to this Sublease and any amount payable by Subtenant pursuant to
Section 12.6 of the Underlying Lease, as incorporated herein, with respect to
such assignment or sublease fifty percent (50%) of the "Assignment/Sublease
Profits" (as such term is hereinafter defined), if any, shall be paid to
Sublessor. The "Assignment/Sublease Profits" shall be the excess, if any, of (A)
the "Assignment/Sublease Net Revenues" as hereinafter defined over (B) the base
rent and additional rent and other charges payable by Subtenant under this Lease
(provided, however, that for the purpose of calculating the Assignment/Sublease
Profits in the case of a sublease, appropriate proportions in the applicable
base rent, additional rent and other charges under this Sublease shall be made
based on the percentage of the subleased premises subleased and on the terms of
the sublease). The "Assignment/Sublease Net Revenues" shall be the base rent,
additional rent and all other charges and sums payable either initially or over
the term of the sublease or assignment on account of the assigned or sublet
interest in the subleased premises or services provided by or on behalf of
Sublessor under this Sublease less the reasonable costs of Subtenant incurred in
such subleasing or assignment (the definition of which shall include but
necessarily be limited to rent concessions, brokerage commissions and alteration
allowances) amortized over the term of the sublease or assignment. All payments
of the Assignment/Sublease Profits due Sublessor shall be made within ten (10)
days of receipt of same by Subtenant.
(vi) As used herein, the term "Affiliate" shall mean
an entity which controls, is controlled by or is under common control with the
entity in question where the term "control" means ownership of more than 50% of
the ownership interests in the entity in question and the ability to control the
management and operation of the entity in question.
(vii) Sublessor hereby agrees that Subtenant may, at
Subtenant's sole cost and expense and at no cost, expense or liability to
Sublessor, communicate directly with Landlord in order to obtain Landlord's
consent to an assignment or sublease simultaneously with communicating with
Sublessor to obtain its consent provided that the foregoing will not affect
Sublessor's right to consent to such proposed assignment or sublease.
(viii) Sublessor agrees that the confidentiality
provisions set forth in Section 12.5 of the Underlying Lease will apply to any
information or documents given by Subtenant to Sublessor pursuant to this
Paragraph 5(k).
11
(l) BROKER. Subtenant and Sublessor each represents and
warrants to the other that the indemnifying party did not negotiate through or
communicate with any broker in connection with this transaction other than The
Columbia Group and the Staubach Company (collectively the "Brokers"). The
Brokers shall be paid commissions by Sublessor pursuant to separate agreements.
Subtenant agrees to indemnify, defend and hold Sublessor harmless from and
against any and all claims, loss, liability, costs and expenses (including,
without limitation, reasonable counsel fees), resulting from any claims that may
be made against Sublessor by any broker or other person (other than the Brokers)
claiming a commission, fee or other compensation by reason or of this
transaction, if the same shall arise by, through or on account of any act of
Subtenant or its representatives. Sublessor agrees to indemnify, defend and hold
Subtenant harmless from and against any and all claims, loss, liability, costs
and expenses (including, without limitation, reasonable counsel fees), resulting
from any claims that may be made against Subtenant by any broker or other person
claiming a commission, fee or other compensation by reason or of this
transaction, if the same shall arise by, through or on account of any act of
Sublessor or its representatives. The provisions of this clause (1) shall not be
construed to be for the benefit of any third party.
(m) NO SERVICES BY SUBLESSOR. Subtenant agrees and acknowledges
that Sublessor is not in control of the subleased premises, the Premises or the
Building or of any of the services or facilities that may be appurtenant to or
supplied at the subleased premises or by Sublessor, including, without
limitation, electricity, heat, air conditioning, water, elevator service,
repairs, maintenance, painting, and parking facilities other than the Retained
Services (as defined below), which Retained Services are under the control of
and to be provided by Sublessor, except as otherwise provided in Paragraph 6.
Sublessor shall not be responsible for any failure or interruption, for any
reason whatsoever, of any of such services or facilities to be provided by
Landlord or to be provided by Sublessor, and except as otherwise provided in
clause (n) below Subtenant agrees that no failure to furnish, or interruption
of, any such services or facilities shall give rise to (i) an abatement,
diminution or reduction of Subtenant's obligations hereunder whether in whole or
in part, (ii) any constructive eviction, whether in whole or in part, or (iii)
any liability on the part of Sublessor. If Subtenant shall require any service
or utility in excess of those provided under the Underlying Lease at no cost or
expense to the Tenant thereunder, Subtenant shall pay all costs and expenses
incurred by Sublessor in providing same together with a three percent (3%)
administrative charge.
(n) RENT ABATEMENT. Subtenant shall not be entitled to any rent
abatement pursuant to the Underlying Lease, as incorporated herein by reference,
unless and to the extent Sublessor shall receive a rent abatement from Sublessor
pursuant to the Underlying Lease, as incorporated herein by reference, with
respect to a portion of the subleased premises.
(o) RECORDATION. This Sublease shall not be recorded in any
public office.
(p) SIGNS. Subtenant may not place any sign (i) in the interior
of the Premises if it is visible outside of the Premises, (ii) on the exterior
of the Premises, (iii) anywhere in the Building outside of the Premises or (iv)
anywhere on the exterior of the Building in each instance without Sublessor's
consent, which consent will not be unreasonably withheld. With respect to one
sign on the exterior of the Premises on each of the first, sixth, seventh,
eighth and nine floors of the Building, Sublessor's consent will not be
unreasonably withheld provided that each such
12
sign complies with all applicable laws and the consent of Landlord; if required,
is first obtained. Subject to the last sentence of Section 17.27 of the
Underlying Lease and to the written consent of Landlord (it being acknowledged
an agreed that the waiver by Landlord of the limitations of said last sentence
of Section 17.27 of the Underlying Lease so as to permit the erection and
maintenance of such signage by Subtenant shall be a required provision of the
Landlord Consent), Sublessor hereby assigns to Akamai Technologies, Inc. all of
Sublessor's rights, if any, under Section 17.27 of the Underlying Lease to erect
corporate signage on the exterior of the Building. Subtenant hereby assumes for
the benefit of Sublessor all of the obligations of Sublessor under said Section
17.27. Subtenant shall be required, at Subtenant's sole cost and expense, to
obtain Landlord's consent to such assignment. The rights hereby assigned by
Sublessor to Subtenant are personal to Akamai Technologies, Inc. and may not be
assigned sublet or otherwise transferred to any other party other than an
assignee of Subtenant described in Section 12.2 of the Underlying Lease, as
incorporated herein by reference.
(q) REFUSAL BY SUBLESSOR. Whenever pursuant to the terms of
this Sublease or the Underlying Lease, Subtenant shall require the consent or
approval of Landlord, and Subtenant delivers to Sublessor a request that
Landlord give such consent or approval, then Sublessor agrees to deliver such
request to Landlord promptly (but in any event within five (5) days) after its
receipt by Sublessor. If after such delivery of a request for Landlord to give
its consent or approval, Landlord fails or refuses to give such consent or
approval, then, regardless of whether the Underlying Lease provides that such
consent or approval shall not be unreasonably withheld and/or delayed, (i)
Sublessor shall have no liability to Subtenant as a result thereof, and (ii)
Sublessor shall have no obligation to obtain such consent. Notwithstanding the
foregoing (i) if (1) if the consent or approval of Landlord is required, (2)
Landlord fails or refuses to give such consent or approval (3) pursuant to the
Underlying Lease, Landlord's consent or approval is not to be unreasonably
withheld and (4) Subtenant in good faith believes that Landlord unreasonably
withheld its consent or approval and promptly after such failure or refusal by
Sublessor Subtenant notifies Sublessor of such good faith belief, then Sublessor
agrees to use reasonable efforts (but at no cost, expense or liability to
Sublessor) to cause Landlord to give its consent or approval to Subtenant with
respect to the matter in question and (ii) if (1) pursuant to the Underlying
Lease Landlord is required to provide or perform any service or obligation, (2)
Landlord fails to provide or perform such service or obligation and (3)
Subtenant notifies Sublessor of such failure, then Sublessor agrees, to use
reasonable efforts, including, if reasonably appropriate, the commencement of a
lawsuit (but at no cost, expense or liability to Sublessor) to cause Landlord to
provide or perform such service or obligation.
(r) ALTERATIONS. (i) Sublessor shall make no alterations,
installations, changes, renovations, additions, replacements or improvements
("Alterations") in to or about the subleased premises without, in each instance
(1) the prior written consent of Sublessor and (2) compliance with the terms and
provisions of the Underlying Lease. Notwithstanding the foregoing, the consent
of Sublessor to an Alteration will not be unreasonably withheld if (1) the
Alteration will not adversely affect (A) any structural or exterior element of
the Building (B) any area or element of the Building outside of the subleased
premises or (C) any Building system, (ii) either the consent of Landlord is not
required under the Underlying Lease or such consent has been obtained and (3) if
required pursuant to the Underlying Lease or by Landlord, Subtenant agrees to
restore the Premises at the expiration or early termination of the Term to its
condition prior to such Alteration. All Alterations will be performed by
contractors approved by
13
Sublessor, such approval not to be unreasonably withheld. In addition, Subtenant
may install a generator on the roof of the Building or in the loading dock area
of the Building provided that the consent of Landlord is obtained, the consent
of Sublessor is obtained (which consent will not be unreasonably withheld) and
the provisions of the Underlying Lease and this Sublease are complied with.
Sublessor has not objection to Subtenant removing prior to the end of the Term
any generator or communication equipment installed in the subleased premises by
Subtenant, provided that the foregoing is permitted under the Underlying Lease,
or consented to in writing by Landlord in either instance with no liability or
obligation to Sublessor. Notwithstanding the foregoing, the consent of Sublessor
shall not be required with respect to any painting or other decorative
Alteration.
(ii) Sublessor hereby approves of the Alterations
described on EXHIBIT B attached hereto, provided that the provisions of this
Sublease and the Underlying Lease are complied with.
(iii) With respect to each Alteration, Subtenant will
not have the obligation to restore the subleased premises at the expiration or
early termination of the Term to its condition prior to such Alteration if (1)
either (A) Sublessor has no restoration obligation with respect to such
Alteration pursuant to the Underlying Lease or (B) Landlord agrees in writing
that Sublessor will have no restoration obligation with respect to such
Alteration and (2) such Alteration is a customary and standard tenant
improvement for premises used as office space.
(iv) With respect to Subtenant's initial Alterations
to prepare the subleased premises for Subtenant's initial occupancy, Sublessor's
failure to respond to Subtenant's request for Sublessor's consent for fifteen
(15) days shall be deemed Sublessor's consent to such request.
(v) Subtenant may install lines, conduits and similar
equipment through portions of the Building outside of the subleased premises in
locations approved by Sublessor, such approval not to be unreasonably withheld.
(s) SECURITY DEPOSIT. (i) Subtenant shall deposit with
Sublessor on or before May 10, 2002 by wire transfer of immediately available
funds the sum of One Million Three Hundred Eighty Nine Thousand Seventeen and
00/100 Dollars ($1,389,017.00) to be held by Sublessor in a separate interest
bearing account, or at Subtenant's option, (which option may be changed by
Subtenant during the Term) a "clean", unconditional, irrevocable and
transferable letter of credit (such letter of credit, as it may be renewed or
replaced as provided herein, the "Letter of Credit") in said amount of
$1,389,017.00, in form and substance satisfactory to Sublessor, issued by and
drawn on a bank reasonably satisfactory to Sublessor and which is a member of
the New York Clearing House Association, for the account of Sublessor, for a
term of not less than one (1) year, as security for the faithful performance and
observance by Subtenant of the terms, covenants, conditions and provisions of
this Sublease, including, without limitation, the surrender of possession of the
subleased premises to Sublessor as herein provided, provided, however, that on
or before July 15, 2002 Subtenant shall increase the security deposit by
$1,389,017.00, so that from and after July 15, 2002 the security deposit
(whether it consists of cash or a Letter Credit) shall equal Two Million Seven
Hundred Seventy Eight Thousand Thirty Four and 00/100 Dollars ($2,778,034.00).
All interest accrued on the cash security shall be paid
14
to Subtenant within 60 days after the end of each calendar year provided that
there is then no uncured default hereunder. If Subtenant shall default beyond
any applicable notice and/or grace period under any of the material terms,
covenants or conditions of this Sublease, Sublessor may apply the whole or any
part of the cash security so deposited (as appropriate), or present the Letter
of Credit for payment and apply the whole or any part of the proceeds thereof
(as appropriate), as the case may be, (i) toward the payment of any base rent,
additional rent or any other item of rental as to which Subtenant is in default,
(ii) toward any sum which Sublessor may expend or be required to expend by
reason of Subtenant's default in respect of any of the terms, covenants and
conditions of this Sublease, including, without limitation, any damage,
liability or expense (including, without limitation, reasonable attorneys' fees
and disbursements) incurred or suffered by Sublessor, and (iii) toward any
damage or deficiency incurred or suffered by Sublessor in the reletting of the
subleased premises, whether such damages or deficiency accrue or accrues before
or after summary proceedings or other re-entry by Sublessor. If Sublessor
presents the Letter of Credit for payment, the proceeds thereof not applied as
provided above shall be held as cash security. If Sublessor applies or retains
any part of the proceeds of the Letter of Credit or the cash security so
deposited, as the case may be, Subtenant, within 15 days after demand, shall
deposit with Sublessor the amount so applied or retained so that Sublessor shall
have the full deposit on hand at all times during the Term. If Subtenant shall
fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Sublease the Letter of Credit or the cash security, as the
case may be, shall be returned to Subtenant within 30 days after the expiration
date of the Term and after delivery of possession of the subleased premises to
Sublessor, provided that Subtenant does not then owe any monies or other
obligations hereunder to Sublessor. In the event of an assignment of the
Underlying Lease and this Sublease by Sublessor, (i) Sublessor shall have the
right to transfer the Letter of Credit or the cash security, as the case may be,
to the assignee, and Subtenant shall cause, at no cost to Sublessor, the bank
which issued the Letter of Credit to issue an amendment to the Letter of Credit
or issue a new Letter of Credit naming the assignee as the beneficiary
thereunder and (ii) provided that the new sublessor assumes in writing the
obligations of Sublessor with respect to the return of the security deposit,
Sublessor shall be released by Subtenant for all liability for the return of
such cash security or the Letter of Credit, as the case may be, and Subtenant
shall look solely to the new sublessor for the return of the cash security or
the Letter of Credit, as the case may be. The provisions hereof shall apply to
every transfer or assignment of the Letter of Credit or security made to a new
Sublessor. Subtenant shall not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and neither Sublessor nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. Subtenant shall renew the Letter
of Credit from time to time, at least thirty (30) days prior to the expiration
thereof, and deliver to Sublessor a new Letter of Credit or an endorsement to
the Letter of Credit, and any other evidence required by Sublessor that the
Letter of Credit has been renewed for a period of at least one (1) year. The
final expiration date of the Letter of Credit shall be no earlier than July 1,
2009. If Subtenant shall at any time fail to timely renew the Letter of Credit
as aforesaid, Sublessor may present the Letter of Credit for payment and retain
the proceeds thereof as cash security in lieu of the Letter of Credit.
(ii) If (1) for each of four consecutive calendar
quarters, the Net Cash Flow (as defined in clause (v) below) of Subtenant shall
be positive and (2) as of the last day of each of said four consecutive calendar
quarters (A) Subtenant has at least $100 million of unencumbered cash and (B)
the ratio of Subtenant's Current Assets to Subtenant's Current
15
Liabilities shall equal or exceed 2.0 to 1.0, then provided that Subtenant is
not then in default hereunder, with respect to any monetary default or in
default hereunder beyond the expiration of the applicable grace period, with
respect to any non-monetary default, the required amount of the security deposit
shall be reduced to $1,389,017, provided that if for any calendar quarter ending
after the date of the reduction of the required amount of the security deposit
the Net Cash Flow of Subtenant shall equal zero or be negative, then the
required amount of the security deposit will be restored to $2,778,034 and
within 40 days after the end of such calendar quarter Subtenant shall increase
the security deposit to said amount of $2,778,034. Once the security is so
increased, the provisions of the preceding sentence (with respect to the decease
and subsequent increase of the security deposit) shall continue to be effective.
(iii) Notwithstanding anything herein to the contrary,
as long as Subtenant is not then in default hereunder, with respect to any
monetary default or in default hereunder beyond the expiration of the applicable
grace period, with respect to any non-monetary default, on May 1, 2008 and on
the first day of each month thereafter the required amount of the security
deposit shall decrease by $231,502.83 per month (if the security deposit on May
1, 2008 is $2,778,034) or by $115,751.41 per month (if the security deposit on
May 1, 2008 is $1,389,017) until the required amount of the security deposit
shall be $694,508.49, at which time the required amount of the security deposit
shall remain $694,508.49 until the end of the Term.
(iv) Within 30 days after the end of each calendar
quarter during the Term, Subtenant shall deliver to Sublessor quarter-annual
financial statements of Subtenant certified by the chief financial officer of
Subtenant and accompanied by copies of the applicable Securities and Exchange
Commission filings of Subtenant showing (i) the Net Cash Flow of Subtenant
during such calendar quarter, (ii) the total cash owned by Subtenant as of the
last day of such calendar quarter and (iii) the total Current Assets and total
Current Liabilities of Subtenant as of the last day of such calendar quarter.
(v) As used herein, (i) the term "Net Cash Flow" shall
mean the available net cash of Subtenant from operations after payment of all
expenses, debt service and expenditures of Subtenant, (ii) the terms "Current
Assets" and "Current Liabilities" shall have the meanings given to them under
GAAP, and (iii) the term "GAAP" shall mean generally accepted accounting
principles consistently applied.
(vi) Subtenant's failure to deposit with Sublessor the
initial security deposit of $1,389,017 by May 10, 2002 shall constitute a
material event of default hereunder entitling Sublessor to terminate this
Sublease.
(t) PARKING. Subject to the terms and provisions of Article X
of the Underlying Lease, Subtenant shall have the right to use one hundred
seventy nine (179) unreserved parking privileges, at the rate paid by Sublessor
for unreserved parking privileges pursuant to the Underlying Lease. Subtenant
shall be obligated to pay for such privileges regardless of whether Subtenant in
fact uses the same. All parking charges payable hereunder shall be deemed
additional rent and shall be paid in advance on the first of each month with the
installments of base rent due hereunder. Subtenant acknowledges that the rate
for such parking privileges may increase at any time and Subtenant shall be
responsible for the increase in such
16
rate. As of the date hereof the rate for unreserved parking privileges is
$235.00 per month per parking space. Subtenant shall have no right to use any
reserved parking spaces. Subtenant shall have no right to use any reserved
parking spaces which Sublessor has the right to use pursuant to the Underlying
Lease and Subtenant shall have no obligation to pay any charges with respect to
any such reserved parking spaces.
(u) COMMUNICATIONS EQUIPMENT. Subject to the provisions of the
Underlying Lease and the provisions hereof, Subtenant shall have the right to
install on portions of the roof (other than Landlord's Roof Area (as such term
is defined in the Underlying Lease)) Communications Equipment (as such term is
defined in the Underlying Lease) solely for use by Subtenant for communications,
data and other transmission to and from the Building in connection with
Subtenant's conduct of its business as permitted hereunder but for no other
purpose. Notwithstanding the foregoing provisions of this paragraph, Subtenant
or may not install any such Communications Equipment or connect any such
Communications Equipment to the subleased premises except with the prior
approval of Sublessor, which approval shall not be unreasonably withheld,
delayed or conditioned. In furtherance thereof, with respect to any such
Communications Equipment, Subtenant shall submit to Sublessor plans and
specifications (including, but not limited to, design and size) for such
Communications Equipment and proposed location thereof on the roof of the
Building (other than on Landlord's Roof Area) for Sublessor's approval
(including, but not limited to the size and aesthetics of such Communications
Equipment and the architectural compatibility and relationship between such
Communications Equipment and the general area of the Site (as such term is
defined in the Underlying Lease) and neighboring roads). Subtenant, at
Subtenant's expense, shall repair any damage to the Building resulting from the
installation, operation, maintenance, repair, replacement or removal of its
Communications Equipment. Upon the expiration or earlier termination of the
Term, Subtenant, at Subtenant's expense shall remove its Communications
Equipment and restore the portion of the roof and Building on or in which its
Communications Equipment was located to as near as practicable its condition
prior to the installation thereof. The exercise of rights by subtenant under
this Paragraph 5(u) shall be subject to the approval of the Cambridge
Redevelopment Authority if and to the extent required by said Authority.
(v) INAPPLICABLE PROVISIONS. The following provisions of the
Underlying Lease shall not be part of and shall not apply to this Sublease:
Section 1.2 (other than the following definitions "Building"; "Premises";
"Property"; "Electricity"; and "Tenant's Property"); Section 1.3; Section 2.1;
Section 2.2(A); Section 2.2(C); Article III; Article IV; Section 6.2; Section
7.4; Section 7.6; Section 7.7; the last paragraph of Section 7.8; Section 7.9;
Section 9.1.1; the parenthetical starting in the third line of Section 11.2 and
ending in the sixth line thereof; the second sentence of Section 11.2; Section
12.3; Section 12.6; Section 13.1.1; Section 13.6; Section 17.5; Section 17.8;
Section 17.9; Section 17.12; Section 17.13; the proviso in the next to last
sentence and the last sentence of Section 17.15(b); Section 17.17(B); Section
17.24; Section 17.26; Section 17.27 and Exhibits B, C, E, F, G, H (Cleaning), I
and J. Notwithstanding the foregoing, (i) Subtenant may install in the subleased
premises up to seven (7) vending machines which dispense food, candy,
non-alcoholic beverages and sundries, provided Subtenant obtains such permits
and licenses, if any, as may be required under Legal Requirements, (ii) if
Sublessor shall receive an abatement of rent pursuant to the third grammatical
paragraph of Section 7.8 of the Underlying Lease due to electricity to the
subleased premises ceasing to function, Sublessor shall grant to Subtenant an
abatement of rent equal to the
17
abatement granted to Sublessor under the Underlying Lease with respect to the
subleased premises, and (iii) while the provisions of Section 2.2(A) shall not
be part of and shall not apply to this Sublease, Sublessor will use reasonable
efforts (at no cost, expense or liability to Sublessor) to ensure that Subtenant
enjoys the rights granted by Landlord thereunder.
(w) SUBORDINATION. This Sublease and the term and estate hereby
granted are and shall be subject and subordinate to (a) the lien of each
mortgage which may now or at any time hereafter affect the Building or
Sublessor's interest therein, (b) the Underlying Lease and (c) all other matters
to which the Underlying Lease is subject. The foregoing provision for the
subordination of this Sublease and the term and estate hereby granted shall be
self-operative an no further instrument shall be required to effect any such
subordination; but Subtenant shall, however, upon request by Sublessor, at
anytime or times, execute and deliver any and all reasonable instruments that
may be necessary or proper to effect such subordination or to confirm or
evidence the same. Sublessor agrees that it will not voluntarily subordinate the
Underlying Lease to the lien of any mortgage encumbering the Building or to any
ground lease affecting the Building, unless required to do so pursuant to the
Underlying Lease or pursuant to Section 17.12 or Section 17.13 of the Underlying
Lease in connection with obtaining a Non-Disturbance Agreement or a Recognition
Agreement (as such terms are defined in the Underlying Lease).
6. RETAINED SERVICES. Sublessor shall provide the following services to
the Building (collectively the "Retained Services"); (a) security for the lobby
of the Building, (b) interior Building cleaning services, and (c) trash removal
services. Sublessor shall arrange for the cleaning of the subleased premises and
the common areas of the Building in accordance with the cleaning specifications
attached hereto as EXHIBIT C. Sublessor will provide security services to the
lobby of the Building in accordance with the security specifications set forth
on EXHIBIT D hereto. Notwithstanding the foregoing, Sublessor may at any time
without the prior consent of Subtenant but upon five (5) days prior notice to
Subtenant, arrange for Landlord to perform all or part of the Retained Services.
7. SUBTENANT'S RIGHT OF FIRST REFUSAL - SUBLEASES. If at any time (a)
Sublessor desires to sublease any space in the Building (the "ROFR Space") to
any third party (other than to an Affiliate of Sublessor and other than pursuant
to a then existing right to sublease set forth in a then existing sublease
affecting space in the Building, there being no such right on the date hereof,
and Sublessor agreeing that no such right superior to Subtenant's rights
hereunder shall be granted to a subtenant unless disclosed in the LOI given to
Subtenant in connection with the applicable sublease) and (b) Sublessor shall
receive a term sheet or letter of intent from an unrelated third party (an
"LOI"), with respect to the ROFR Space which Sublessor desires to accept then
Sublessor shall not enter into a sublease with respect to such ROFR Space with
such entity pursuant to such LOI, unless Sublessor complies with the provision
of this PARAGRAPH 7. Without limiting the foregoing or any other provision of
this Sublease to the contrary, the right of first refusal to sublease hereby
granted to Subtenant shall be superior to any right or option to extend the term
or expand the area of any other sublease and to any other right of first offer,
right of first refusal or other similar right or option of first opportunity
granted to any other subtenant or other party (other than an Affiliate of
Sublessor) (Sublessor hereby further representing and warranting that there is
no such right or option in favor of any subtenant or other party on the date
hereof), it being understood and agreed that the term of any other sublease may
not be
18
extended beyond the initial term of such sublease, nor shall the area occupied
by any subtenant be expanded beyond the area initially occupied by such
subtenant, nor shall any right of first refusal, right of first offer or other
similar right or option of first opportunity granted to any subtenant or other
third party be exercised without again complying with the provisions of this
Section 7 solely with respect to such extension, expansion or other right or
option as though such extension, expansion or other right or option constituted
a new LOI which Sublessor desires to accept. Within 10 days after Sublessor's
receipt of the LOI, Sublessor shall give a notice (the "ROFR Notice") to
Subtenant offering to lease the ROFR Space to Subtenant on the same terms and
conditions as are set forth in the LOI, which ROFR Notice shall be accompanied
with a copy of the LOI. Subtenant shall have 10 days from the giving of the ROFR
Notice to elect to sublease the ROFR Space on the terms and conditions of the
LOI by giving written notice of such election to Sublessor. Subtenant's failure
to give any notice to Sublessor within said 10 day period shall be Subtenant's
irrevocable election not to sublease the ROFR Space. If Subtenant shall timely
and properly elect to sublease the ROFR Space, then within 20 days after the
giving of Subtenant's notice to Sublessor, Sublessor and Subtenant shall enter
into a sublease for the ROFR Space on the terms and conditions set forth in the
LOI and otherwise on the terms and conditions of this Sublease. If Subtenant
shall elect or be deemed to have elected not to sublease the ROFR Space,
Sublessor shall be free to enter into a sublease substantially on the terms of
the LOI or on terms that are more advantageous to Sublessor. If Sublessor does
not enter into such a sublease within 120 days after the expiration of said 10
day period, Sublessor must first again comply with the provisions of this
Paragraph 7, before subleasing the ROFR Space.
8. SUBTENANT'S RIGHT OF FIRST REFUSAL - ASSIGNMENT. If at any time (a)
Sublessor desires to assign Sublessor's rights under the Underlying Lease, this
Sublease and all other then existing Subleases affecting the Premises (the
"Assets") to any third party (other than to an Affiliate of Sublessor) and (b)
Sublessor shall receive an LOI with respect to the purchase of the Assets which
Sublessor desires to accept then Sublessor shall not sell the Assets to such
entity pursuant to such LOI, unless Sublessor complies with the provision of
this PARAGRAPH 8. Within 10 days after Sublessor's receipt of the LOI, Sublessor
shall give a notice (the "Asset Notice") to Subtenant offering to sell the
Assets to Subtenant on the same terms and conditions as are set forth in the
LOI, which Asset Notice shall be accompanied with a copy of the LOI. Subtenant
shall have 10 days from the giving of the Asset Notice to elect to purchase the
Assets on the terms and conditions of the LOI by giving written notice of such
election to Sublessor. Subtenant's failure to give any notice to Sublessor
within said 10 day period shall be Subtenant's irrevocable election not to
purchase the Assets. If Subtenant shall timely and properly elect to purchase
the Assets, then within 20 days after the giving of Subtenant's notice to
Sublessor, Sublessor and Subtenant shall enter into a contract of sale and
assignment documents on the terms and conditions set forth in the LOI. If
Subtenant shall elect or be deemed to have elected not to purchase the Assets,
Sublessor shall be free to sell the Assets substantially on the terms of the LOI
or on terms that are more advantageous to Sublessor. If Sublessor does not sell
the Assets within 120 days after the expiration of said 10 day period, Sublessor
must first again comply with the provisions of this Paragraph 8 before selling
the Assets.
9. LANDLORD'S APPROVAL. This Sublease shall have no effect until
Landlord shall have delivered to Sublessor its written consent to this Sublease
(the "Landlord Consent") and a subordination non-disturbance and attornment
agreement in favor of Subtenant (the "Landlord SNDA") both in form and substance
reasonably satisfactory to Sublessor and Subtenant.
19
Sublessor agrees to use reasonable efforts (without, however, having to incur
any cost, expense or liability other than the costs and expenses set forth in
Section 12.7B of the Underlying Lease which Sublessor shall be responsible to
pay) to obtain the Landlord Consent and the Landlord SNDA. If Sublessor does not
receive both the Landlord Consent and the Landlord SNDA for any reason
whatsoever on or before June 17, 2002, then (a) Sublessor shall not be obligated
to take any action to obtain the Landlord Consent or the Landlord SNDA, (b) this
Sublease shall be deemed void and of no effect and if Subtenant is then in
possession of all or any part of the subleased premises, Subtenant shall
immediately quit and surrender to Sublessor the subleased premises, remove all
of its property and repair any damage caused by such removal and restore the
subleased premises to the condition in which they were prior to the installation
of the items so removed, and (c) Sublessor will return the security deposit to
Subtenant. Notwithstanding this Sublease being deemed null and void and of no
effect as aforesaid, if Subtenant shall have been in possession of all or any
part of the subleased premises, Subtenant shall pay to Sublessor the base rent
and other charges for the period prior to Subtenant's quitting and surrendering
the subleased premises as aforesaid, and shall otherwise be obligated under this
Sublease as if it was the Subtenant and this Sublease were in full force and
effect.
10. APPORTIONMENT. If the Term does not commence on the first day of a
month or end on the last day of a month, base rent, additional rent and all
other charges for the partial month(s) will be apportioned.
11. AMENDMENT OF UNDERLYINGLEASE. Sublessor shall have the right to
modify or amend the Underlying Lease without the prior written consent of
Subtenant, unless such modification or amendment shortens the term of the
Underlying Lease, terminates this Sublease, reduces any rights or services to be
provided to Subtenant under this Sublease, increases any financial obligation of
Subtenant hereunder, increases (other than in an insignificant manner) any
non-financial obligation of Subtenant hereunder, in which event Subtenant's
consent to such modification or amendment shall be required; and any reference
in this Sublease to the Underlying Lease, shall mean the Underlying Lease as
modified or amended from time to time, provided that if Subtenant properly
withholds its consent, Subtenant shall not be subject to the terms and
provisions of such modification or amendment.
12. GOVERNING LAW. Irrespective of the place of execution or
performance, this Sublease shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
13. MISCELLANEOUS.
(a) PRIOR UNDERSTANDINGS; ENTIRE AGREEMENT. All understandings
and agreements heretofore had between the parties are merged in this Sublease
and any other written agreement(s) made concurrently herewith, which alone fully
and completely express the agreement of the parties. This Sublease contains a
complete statement of all the agreements and arrangements between the parties
with respect to its subject matter and cannot be changed or terminated orally.
This Sublease shall be construed without any presumption against the party
drafting this Sublease or causing the same to be drafted.
20
(b) SUBMISSION TO JURISDICTION. Subtenant and Sublessor each
(i) irrevocably agrees that any suit, action or other legal proceeding arising
out of or relating to this Sublease may be brought in the Courts of the
Commonwealth of Massachusetts or of the United States of America located in
Middlesex County, (ii) consents to the jurisdiction of each such court in any
such suit, action or proceeding and (iii) waives any objection which it may have
to the laying of venue of any such suit, action or proceeding in any of such
courts and any claim that any such suit, action or proceeding has been brought
in an inconvenient forum.
(c) LOBBY. The parties agrees to cooperate and work together to
change the lobby signage to reflect that the Building will cease to be a one
tenant building and will be a multi-tenant building. The changes (but excluding
any new signage for Subtenant) will be made at Sublessor's cost and expense on
or before October 1, 2002.
(d) CAPTIONS. The marginal captions in this instrument are used
for convenience in finding the subject matters, and are not to be taken as part
of this instrument, or to be used in determining the intent of the parties, or
otherwise interpreting this Sublease.
(e) SUBLESSOR'S COST AND EXPENSES. If Subtenant shall be in
default under this Sublease and such default shall remain uncured beyond the
expiration of the applicable grace period set forth herein, all attorneys' fees
and all other costs and expenses incurred by Sublessor in enforcing Sublessor's
rights hereunder or in collecting any base rent or additional rent hereunder
shall be additional rent hereunder and shall be payable by Subtenant within five
days after notice from Sublessor.
(f) SUBTENANT'S COST AND EXPENSES. If Sublessor shall be in
default under this Sublease and such default shall remain uncured for thirty
(30) days after written notice from Subtenant (provided that if such default
cannot with reasonable diligence be cured within said 30 day period and
Sublessor is diligently pursuing to complete such cure such 30 day grace period
shall be extended as long as Sublessor is diligently proceeding to complete such
cure), all attorneys' fees and all other costs and expenses incurred by
Subtenant in enforcing Subtenant's rights hereunder shall be payable by
Sublessor within five days after notice from Subtenant.
(g) SUBLESSOR'S RIGHT. Sublessor or Sublessor's agents shall
have the right (but shall not be obligated) to enter the subleased premises in
any emergency at any time and without notice (provided that Sublessor shall give
written notice within one business day after such emergency entry), and, at
other times upon at least one business day's prior written notice during normal
business hours on business days (and at Subtenant's option accompanied by a
representative of Subtenant), to examine or inspect the same and to make such
repairs, replacements, alterations, improvements, or additions as Sublessor may
deem necessary or desirable to any portion of the subleased premises or the
Building or which Sublessor may elect to perform, in the subleased premises or
the Building following Subtenant's failure to make repairs or perform any work
which Subtenant is obligated to perform under this Sublease, or for the purpose
of complying with laws, regulations and other directions of governmental
authorities. Subtenant shall permit Sublessor to use, repair, maintain and
replace pipes, ducts, wires, conduits and appurtenant fixtures in and through
the subleased premises and to erect or install new pipes, ducts, wires, conduits
and appurtenant fixtures therein provided that such erection or installation
will not materially and adversely interfere with Subtenant's use of the
21
subleased premises. Sublessor may, during the progress of any work in the
subleased premises, take all reasonably necessary materials and equipment into
the subleased premises without the same constituting an eviction nor shall
Subtenant be entitled to any abatement of rent while such work is in progress
nor to any damages by reason of loss or interruption of business or otherwise.
Sublessor agrees, when performing work in the subleased premises to use
reasonable efforts to minimize interference with Subtenant's business provided
that Sublessor shall have no obligation to pay workers at so-called overtime
rates. If, after giving the notice, if any, required above, Subtenant is not
present to open and permit an entry into the subleased premises, Sublessor or
Sublessor's agent may enter the same whenever such entry may be necessary or
permissible by master key or in the event of emergency (after trying to give
written or oral notice to Subtenant) forcibly and provided reasonable care is
exercised to safeguard Subtenant's property and such entry shall not render
Sublease or its agent liable therefor, nor in any event shall the obligations of
Subtenant hereunder be affected.
(h) SUCCESSORS AND ASSIGNS. This Sublease shall apply to all
respective successors and permitted assigns of the parties hereto but this
paragraph shall not be construed as a consent to any assignment or subletting by
Subtenant.
(Signatures on next page)
22
IN WITNESS WHEREOF, this Sublease has been duly executed by Sublessor
and Subtenant as of the day and year first herein above written.
NOVELL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President, Real Estate
AKAMAI TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
23
LIST OF EXHIBITS
Exhibit A-1 Floor Plan of First Floor
Exhibit A-2 Floor Plan of Sixth Floor
Exhibit A-3 Floor Plan of Seventh Floor
Exhibit A-4 Floor Plan of Eighth Floor
Exhibit ▇-▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇ Tenant's Initial Alterations
Exhibit C Cleaning Specifications
Exhibit D Security Specifications
24
FIRST AMENDMENT TO SUBLEASE
FIRST AMENDMENT TO SUBLEASE (this "Agreement") made as of the 6th day
of June, 2002 between NOVELL, INC., a Delaware corporation having an office at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Sublessor"); and AKAMAI
TECHNOLOGIES, INC., a Delaware corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇▇▇ ("Subtenant").
RECITALS
A. Sublessor have entered into a sublease dated as of May 3, 2002 (the
"Existing Sublease") relating to certain space in the building know as Eight
Cambridge Center, Cambridge, Massachusetts.
B. The parties hereto desire to amend the Existing Sublease as
hereinafter provided.
AGREEMENT
1. DEFINED TERMS. All capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Existing Sublease.
2. LANDLORD CONSENT AND LANDLORD SNDA. Concurrently with the execution
of this Agreement, Landlord, Sublessor and Subtenant have entered into a consent
agreement dated as of the date hereof (the "Consent Agreement"). Sublessor and
Subtenant each confirms and acknowledges that (a) it has received the Consent
Agreement and (b) the Consent Agreement constitutes both the Landlord Consent
and the Landlord SNDA in form and substance satisfactory to it.
3. AMENDMENT TO PARAGRAPH 2. Paragraph 2 of the Existing Sublease is
hereby deleted and the following is inserted in its place.
TERM. The term of this Sublease (the "Term") (a)
shall commence with respect to the portion of the
subleased premises located on the first floor on June
___, 2002, the date that Sublessor and Subtenant
received an original of the Consent Agreement (the
"Commencement Date"), (b) shall commence with respect
to the balance of the subleased premises on the later
of the Commencement Date or June 12, 2002 and (c)
shall end at the close of business on May 31, 2009
(the "Expiration Date") or upon such earlier date
upon which the term of this Sublease may expire or be
terminated pursuant to the terms and provisions of
this Sublease or pursuant to law.
25
4. AMENDMENT TO PARAGRAPH 4. Paragraph 4(c) of the Existing Sublease
is hereby deleted.
5. SUBLESSOR'S CONTRIBUTION.
(a) In lieu of Sublessor performing any work to the subleased
premises, Sublessor will contribute the aggregate amount of One Million Seven
Hundred Twelve Thousand One Hundred Sixty Five Dollar ($1,712,165), towards the
cost of Subtenant's initial work subject to the terms and conditions set forth
below in clause (b).
(b) Sublessor will pay to Subtenant (i) the sum of $570,721.67
on July 17, 2002, (ii) the sum of $570,721.67 on September 30, 2002 and (iii)
the sum of $570,721.66 on the later of October 7, 2002 or five business days
after Sublessor receives a certificate from the architect supervising Tenant's
initial work at the subleased premises certifying that Tenant's initial work at
the subleased premises has been substantially completed, provided and on the
express condition that on each such date (1) the face amount of the Letter of
Credit has previously been increased to $2,778,034, (2) there shall exist no
default by Subtenant under the Existing Sublease, as amended hereby, which
remains uncured beyond the expiration of the applicable grace period set forth
therein, (3) none of the events described in clauses (e), (f), (g), (h), (i) or
(j) of Section 15.1 of the Underlying Lease has occurred to Subtenant and remain
in effect (except that for purposes of this clause (3) the grace period for an
involuntary bankruptcy or proceeding shall be 15 days, and not 75 days) and (4)
no mechanic's lien has been filed against or attached to or otherwise encumbers
the subleased premises or any other portion of the Building as a result of any
of Subtenant's initial work which has not been bonded or discharged.
(c) If Sublessor shall fail to make any payment required to be
paid by Sublessor pursuant to Paragraph 5(b) above and such failure shall remain
uncured for 10 days after written notice from Subtenant, then Subtenant will
have the right to set off against the base rent required to be paid by Subtenant
under the Existing Sublease, as amended hereby, the amount of such defaulted
payment.
6. SECOND AMENDMENT TO THE LEASE. Immediately prior to the execution
of this Agreement, Landlord and Sublessor have entered into a second amendment
to lease dated as of the date hereof (the "Second Lease Agreement"). Subtenant
hereby consents to the execution and delivery by Sublessor of the Second Lease
Amendment. All references in the Existing Sublease to the "Underlying Lease",
shall hereafter mean the Underlying Lease (as such term is defined in the
Existing Sublease), as amended by the Second Lease Amendment.
7. SECURITY DEPOSIT. The date by which Subtenant was obligated
pursuant to Section 5(s) of the Existing Sublease to deliver the $1,389,017
Letter of Credit was extended to May 30, 2002. Subtenant delivered the
$1,389,017 Letter of Credit to Sublessor on May 29,
26
2002. Concurrently with the execution and delivery of this Agreement, Subtenant
has delivered to Sublessor an amendment to said Letter of Credit in the form of
Exhibit A attached hereto.
8. DELIVERY OF SECURITY DEPOSIT AFTER TERMINATION OF UNDERLYING LEASE.
Within 10 days after the termination of the Underlying Lease due to the
occurrence of an event of default thereunder and provided that the Existing
Sublease, as amended hereby, is then in force and effect, Sublessor will deliver
to Landlord (a) the security deposit then being held by Sublessor under the
Existing Sublease, as amended hereby, (whether such security deposit is in the
form of the Letter of Credit or cash) and (b) if the security deposit is in the
form of the Letter of Credit, an assignment of the Letter of Credit in favor of
Landlord signed by Sublessor in the form attached to the Letter of Credit.
Sublessor agrees to indemnify, defend and hold Subtenant harmless from and
against any liability, damage, cost or expense (including, without limitation,
reasonable attorney's fees) incurred by Subtenant as a result of Sublessor
failing to perform its obligations under the preceding sentence, provided
however that in no event will Sublessor's liability under this Paragraph 8
exceed the amount of the security deposit being held by Sublessor as of the date
the Underlying Lease terminates.
9. ALTERATIONS. While Sublessor has approved Subtenant's proposed
layout of the floors of the subleased premises as shown on Exhibit B to the
Existing Sublease, Sublessor must still review and approve Subtenant's plans and
specifications, such approval not to be unreasonably withheld.
10. ASSIGNMENT AND TERMINATION OF THE LEASE. Sublessor hereby covenants
and agrees that while the Existing Sublease, as amended, is in force and effect,
(a) Sublessor will not request or accept the consent of Landlord to an
assignment of the Underlying Lease if such request or acceptance would permit
Landlord to recapture the subleased premises, and (b) Sublessor will not
voluntarily terminate the Lease except as otherwise provided in Paragraph 5(j)
of the Existing Sublease.
11. MISCELLANEOUS.
(a) Except as amended hereby, the Existing Sublease shall
remain unchanged in force and effect.
(b) This Agreement may be executed in two counterparts but will
constitute one agreement.
(Signatures on following page)
27
IN WITNESS WHEREOF, Sublessor and Subtenant have executed this
Agreement as of the day first written above.
NOVELL, INC.
/s/ Novell, Inc.
-------------------------------
AKAMAI TECHNOLOGIES, INC.
/s/ Akamai Technologies, Inc.
-------------------------------
28
EXHIBIT A
UBS PaineWebber Inc.
Letter of Credit Department
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
BENEFICIARY:
Novell, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ June __, 2002
AMENDMENT NUMBER 1
TO IRREVOCABLE STANDBY
LETTER OF CREDIT NO. RAIDV3
Irrevocable Standby Letter of Credit No. RAIDV3 (the "Letter of Credit")
issued on May 28, 2002 in the face amount of $1,389,017 in favor of Novell, Inc.
("Beneficiary") is hereby amended as follows:
(a) The second grammatical paragraph of the Letter of Credit is hereby
amended by inserting the words "as it may be amended from time to time" after
the word "subtenant" in line 6 thereof.
(b) The sixth grammatical paragraph of the Letter of Credit is hereby
amended by deleting the words "our consent and" in line 2 thereof.
Very truly yours,
UBS ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: _______________________
AGREED:
NOVELL, INC.
By: ___________________