Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Eprise Corporation 97 479K
2: EX-1.1 Form of Underwriting Agreement 25 117K
3: EX-3.1 Third Amended and Restated Certificate of Inc. 27 105K
4: EX-3.5 By-Laws of Eprise Corporation 12 51K
5: EX-4.3 Warrant to Purchase 8 38K
6: EX-4.4 Warrant to Purchase 10 39K
7: EX-4.5 Warrant to Purchase 7 36K
8: EX-4.6 Antidilution Agreement 3 22K
9: EX-4.7 Warrant to Purchase 14 62K
16: EX-10.11 Eprise Corporation Retirement Saving Plan 139 463K
17: EX-10.12 Second Amended and Restated Stockholders Agreement 13 52K
18: EX-10.13 Second Amended and Restated Registration Rights 14 59K
19: EX-10.14 Registration Rights Agreement Dated July 18, 1997 6 41K
20: EX-10.15 Registration Rights Agreement Dated Dec. 5, 1997 6 41K
21: EX-10.16 Loan and Security Agreement 31 128K
22: EX-10.17 Negative Pledge Agreement 4 18K
23: EX-10.18 First Loan Modification Agreement 13 43K
10: EX-10.2 Sublease Agreement 12 52K
11: EX-10.3 Sublease Agreement 21 56K
12: EX-10.4 Eprise 1997 Stock Option Plan 15 73K
13: EX-10.6 Inner Circle Technologies, Inc. 1994 Stock Plan 9 46K
14: EX-10.8 Employment Agreement 10 53K
15: EX-10.9 Employment Agreement 4 23K
24: EX-16 Letter Regarding Changes in Certifying 1 10K
25: EX-21.1 List of Subsidiaries 1 8K
26: EX-23.1 Consent of Deloitte & Touche LLP 1 10K
27: EX-23.2 Consent of Arthur Andersen LLP 1 10K
28: EX-27.1 Financial Data Schedule 1 13K
29: EX-27.2 Financial Data Schedule 1 13K
30: EX-27.3 Financial Data Schedule 1 12K
EX-10.2 — Sublease Agreement
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EXHIBIT 10.2
SUBLEASE AGREEMENT
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This Sublease Agreement ("Sublease") is made as of ____________, 1997
by and between Nova Link USA Corporation, a Massachusetts corporation
(hereinafter referred to as "Sublessee"), and Merkert Enterprises, Inc., a
Massachusetts corporation (hereinafter referred to as "Sublessor").
W I T N E S S E T H:
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WHEREAS, pursuant to a Lease dated as of July 30, 1990 between
Toomey-FitzgeraldDelong, Inc., a Massachusetts corporation, as Lessee,
(hereinafter referred to as "Toomey") and Thomas J. Flatley d/b/a The Flatley
Company (hereinafter referred to as "Landlord"), Landlord leased certain space
to Toomey (such Lease, as so amended, is referred to herein as the "Lease"), a
copy of which is attached hereto as EXHIBIT A; and
WHEREAS, pursuant to an Assignment of Lease and Consent to Assignment
Agreement ("Assignment") dated April 14, 1997 between Toomey and Sublessor,
Toomey assigned its rights as Lessee under the Lease to Sublessor.
WHEREAS, Sublessee desires to sublet from Sublessor a portion of the
Premises referred to in the Lease.
NOW, THEREFORE, the parties hereto, for themselves, their successors
and assigns, mutually covenant and agree as follows:
1 . SUBLET PREMISES. Sublessor does hereby sublease to Sublessee and
Sublessee does hereby sublease from Sublessor, for the term and upon the
conditions hereinafter provided, the Sublet Premises, being an area of
approximately 12,399 square feet of rentable floor area on the fourth (4th)
floor, known as Suite 400 of the Framingham Office Park, 1671 Worcester Road,
Framingham, MA 01701, together with the right to use in common with others
entitled thereto, the hallways, stairways and elevators necessary for access to
the Sublet Premises (collectively, the "Sublet Premises"). Sublessee shall have
unlimited access to the Sublet Premises, twentyfour hours per day, seven days
per week, without prior notification of any person or party and shall be
provided with keys and access codes to any and all alarm systems, entry devices,
and the like which would affect Sublessee's ability to access the Sublet
Premises at any time.
2. TERM. The term of this Sublease shall commence on October 15, 1997
and shall end at 11:59 p.m. on September 30, 2000, or on such earlier date upon
which said term may expire or be terminated pursuant to a termination of the
Lease or any of the conditions or limitations or other provisions of this
Sublease or pursuant to law. In the event Landlord has not consented to this
Agreement by October 15, 1997, provided Landlord's failure to consent is not
caused by an issue within Sublessee's control other than Sublessee's refusal to
alter a material term or condition of this Sublease, Sublessee shall receive one
(1) free day of rent for each day thereafter that Landlord has not consented;
provided, however, that Sublessee shall have the right to terminate this
Sublease if Landlord has not consented by November 1, 1997. Sublessor shall
have the right to terminate this Sublease if Landlord fails to consent by
November 8, 1997, and Sublessee has not yet terminated. Notwithstanding anything
in this Sublease to the contrary, Sublessee acknowledges and agrees that all
provisions of the Lease with respect to Sublessor's Option to Extend (as
described in Section 40 of the Lease) shall not operate for the benefit of
Sublessee and may not be enforced by Sublessee, except as may be otherwise
expressly agreed in writing by Sublessor and Sublessee. Sublessor agrees that
Sublessee shall have reasonable access to the Sublet Premises on prior notice to
Sublessor for the purpose of installing, repairing, and/or upgrading utilities
and telecommunications systems at the Sublet Premises from the date Landlord
consents to this Agreement and Sublessee presents a certificate of insurance
acceptable to Sublessor.
3. RENT. During the term of this Sublease, the rent payable by
Sublessee shall be the sum of Sixteen Thousand Five Hundred Thirty-two Dollars
($16,532.00), consisting of the following:
Year One: Base rent of $14.00 per square foot ("Base Rent"),
plus a $2.00 per square foot charge for operating
expenses, real estate taxes and reimbursement of
lease transaction costs ("Additional Rent").
Years Two
and Three: Base Rent of $15.00 per square foot, plus a $1.00
per square foot charge for Additional Rent.
Notwithstanding anything in this Sublease to the contrary, Base Rent
and Additional Rent shall begin to accrue on November 1, 1997, and continue
thereafter on the first day of each and every calendar month during the term of
this Sublease. All payments of Base Rent and Additional Rent shall be paid to
Sublessor in advance of each month for which such rent is due.
Within three (3) days of Landlord's consent to this Sublease, but in no
event later than the date of occupancy, the installments of rent for the first
and last months of the term of this Sublease shall be paid by Sublessee.
Sublessor shall hold all moneys paid to it by Sublessee as prepaid rent in an
interest-bearing account, segregated from Sublessor's other assets and shall pay
all interest accruing thereon annually to Sublessee.
If the obligation of Sublessee to pay rent hereunder begins on a day
other than on the first day of a calendar month, rent from such date until the
first day of the following calendar month shall be prorated at the rate of
one-thirtieth (1/30th) of the monthly installment for each day payable in
advance. The monthly Base Rent, Additional Rent and any other charges herein
reserved or payable shall be paid to Sublessor at the address specified in
Section 22 hereof, or at such other place as Sublessor may designate in writing,
in lawful money of the United States of America without demand therefor and
without any deduction, set-off or abatement whatever.
4. REAL ESTATE TAXES AND OPERATING COSTS. Sublessee agrees to pay
Sublessor, as Additional Rent under this Sublease, Sublessee's pro rata share,
of (i) the amount by which the actual real estate taxes for the applicable
fiscal year exceed the real estate taxes for the base year
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and (ii) the amount by which the operating expenses for the applicable operating
year exceed the operating expenses for the base year. The base year shall be
fiscal year 1997 for purposes of computing any increase in real estate taxes and
calendar year 1997 for purposes of computing any increase in operating expenses.
Sublessee's pro rata share shall equal the square footage of the Sublet Premises
divided by the aggregate of all the rentable square footage (whether or not
rented or improved) within the building. Sublessee shall be responsible for
paying all utility charges in respect of the Sublet Premises, including without
limitation any charges for electricity related to the Sublet Premises. Sublessee
shall also pay to Sublessor, as Additional Rent, all charges for any additional
services requested by and provided to Sublessee, including, without limitation,
charges and fees for after-hours heating and air-conditioning services pursuant
to Section 12 of the Lease, or as may otherwise be agreed between Sublessee and
Landlord. Any Additional Rent which may be payable to Sublessor shall be
apportioned during the year in which the term of this Sublease commences and
during the year in which such term shall end, such that Sublessee shall be
obligated to pay a proportionate share of such Additional Rent which is
attributable to the number of days of their term hereof which are included in
the period for which such Additional Rent is payable by Sublessor under the
Lease. Sublessee shall pay Additional Rent within thirty (30) days of receipt of
this statement. Sublessee's obligations to pay Additional Rent shall survive the
termination of this Sublease.
5. AFTER HOURS AIR-CONDITIONING AND HEATING. Landlord and Sublessor
hereby acknowledge and agree that the Lease is hereby amended to reflect the
parties' agreement that air-conditioning, heating and ventilation shall be
provided to the Sublet Premises from 8:00 AM to 7:00 PM Monday through Friday
and from 8:00 AM to 1:00 PM on Saturdays and that the cost of any additional
air-conditioning, heating and/or ventilation requested by the Sublessee for the
Sublet Premises shall be fixed at the rate of Ten Dollars ($10.00) per hour.
6. SECURITY DEPOSIT. Upon execution of this Sublease, Sublessee shall
pay to Sublessor the sum of Sixteen Thousand Five Hundred and Thirty-two Dollars
($16,532.00), and within three days of the date Landlord consents to this
Sublease, Sublessee shall pay to Sublessor an additional sum of Sixteen Thousand
Five Hundred and Thirty-two Dollars ($16,532.00) as security (the "Security
Deposit) for the faithful performance by Sublessee of its obligations hereunder.
The Security Deposit shall be paid to Sublessor in cash. In the event of an
Event of Default (as defined in Section 19 hereof), Sublessee hereby authorizes
Sublessor, at Sublessor's election (with notice to Sublessee) and with or
without terminating this Sublease and without prejudice to any other right or
remedy Sublessor may have, to apply all or any portion of the Security Deposit
necessary to remedy such default. If said Security Deposit or portion thereof is
so applied, Sublessee, upon demand by Sublessor, shall within seven (7) days
after written notice therefor from Sublessor, deposit with Sublessor an amount
equal to the amount of the Security Deposit so applied. Any unapplied cash
portion of the Security Deposit shall be held by Sublessor in a separate escrow
account and interest earned thereon shall be paid to Sublessee on an annual
basis. On November 1, 1998, a payment in an amount equal to one (1) month's rent
(including any Additional Rent) shall be deducted from the Security Deposit and
applied towards Sublessee's obligations hereunder without any objection on the
part of Sublessor or demand to reinstate such portion of the Security Deposit so
applied, provided that Sublessee has never been and is not currently in default
under this Agreement. Any portion of the Security Deposit
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remaining at the end of the term of this Sublease shall be refunded to
Sublessee.
7. USE; SIGNS. Sublessee will use and occupy the Sublet Premises
solely for general office purposes. Without the prior written consent of
Landlord and Sublessor, the Sublet Premises will not be used for any other
purposes. Landlord hereby consents that Sublessee shall be entitled to place one
(1) exterior sign on the existing marquee at the Sublet Premises, provided the
same is consistent with the size, design and quality of the existing sign and
such sign complies with all applicable zoning laws.
8. CONDITION OF SUBLET PREMISES. Sublessee hereby acknowledges that
the Sublet Premises are hereby subleased in an as is condition, without any
representations or warranties made on the part of Sublessor; provided, however,
that (1) Sublessor hereby warrants and represents that there are no known
material defects to or in the Sublet Premises which have not been previously
disclosed in writing to Sublessee; and (2) Sublessor shall forthwith remove any
and all trash, debris and personal property located in the Sublet Premises at no
cost to Sublessee, including but not limited to that certain commercial
refrigerator located in the mechanical room, and promptly repair any damage to
the Sublet Premises caused by such removal. Sublessor hereby acknowledges that
Sublessee requires access to the Sublet Premises and, in particular, the
mechanical room for the purposes of installing utilities and telecommunications
equipment and that in the event such refrigerator is not removed prior to the
date Landlord consents to the Sublease, Sublessee shall be entitled to an
abatement of rent equal to the number of days for which it remains at the Sublet
Premises.
9. ALTERATIONS. In connection with the execution of this Sublease,
Sublessee shall not make any structural alterations or additions to the Sublet
Premises, but may make non-structural alterations (the "Sublessee Alterations")
at any time and from time to time. All such Sublessee Alterations are subject to
the Landlord's consent in accordance with the terms of the Lease. All such
Sublessee Alterations shall be at Sublessee's sole cost and expense and shall be
of such quality at least equal to the present construction. Without limitation
of the foregoing, Sublessee agrees that its general contractor shall be
licensed, insured and bonded in the Commonwealth of Massachusetts and shall be
subject to the review and approval of Landlord, which approval shall not be
unreasonably withheld or delayed.
If any Sublessee Alterations are made without Landlord's consent,
Landlord may remove the same, and may correct, repair and restore the Sublet
Premises and any damage arising from such removal, and Sublessee shall be liable
for any and all costs and expenses incurred by Landlord in the performance of
this work.
10. SUBLESSEE'S PERSONAL PROPERTY. Upon the expiration or earlier
termination of this Sublease, Sublessee shall remove all of its goods and
effects from the Sublet Premises (including, without limitation, all signs and
lettering affixed or painted by the Sublessee on the Sublet Premises), shall
repair all damage resulting from such removal or its use of the Sublet Premises,
and shall surrender the Sublet Premises, as so required, in good condition,
subject only to reasonable wear and tear and to damage, if any, by fire or other
casualty. The obligations of Sublessee as provided in this Section 10 shall
survive the termination of this Sublease.
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11. TERMS OF LEASE. All of the terms, provisions, covenants and
conditions of the Lease, as amended, are incorporated herein by reference and
hereby made a part of this Sublease and, Sublessee hereby assumes all of the
obligations and shall have all the rights of Sublessor as Tenant under the
covenants, agreements, terms and provisions set forth in the Lease, but only to
the extent they are applicable to the Sublet Premises and specifically excepting
Sections 4, 5, 5A, 8, 20, 39, 40, 41, 42 and 43. In the event that any provision
of this Sublease shall conflict with any provision of the Lease, this Sublease
Agreement shall control. Sublessor shall have all of the rights of the Landlord
under the Lease as against Sublessee and, as between the parties hereto,
Sublessor agrees to observe and perform the terms, covenants and conditions on
its part to be observed and performed hereunder and to use commercially
reasonable efforts to cause Landlord to observe and perform those applicable
terms, covenants and conditions to be observed and performed by Landlord under
the Lease with respect to the Sublet Premises.
12. NON-DISTURBANCE AND ATTORNMENT. So long as Sublessee is not in
default (after any required notice to Sublessee and beyond any period given
Sublessee to cure such default) in the payment of rent or Additional Rent or in
the performance of any of Sublessee's obligations under this Sublease, Landlord
shall not interfere with Sublessee's rights and privileges under this Sublease
or disturb Sublessee's occupancy of the Sublet Premises for any reason during
the term of this Sublease. If Landlord succeeds to the interest of Sublessor
under this Sublease by reason of the termination of the Lease, or by any other
manner, Sublessee shall be bound to Landlord under this Sublease for the balance
of the then remaining term (or any extension or renewal term, if applicable) of
this Sublease with the same effect as if Landlord were the "Sublessor" under
this Sublease and Sublessee, shall attom to Landlord as its landlord, said
attornment to be effective and self-operative without the execution of any
further instruments; provided, however, Sublessee shall be under no obligation
to pay rent to Landlord until Sublessee receives written notice from Landlord
that it has succeeded to the interest of Sublessor under this Sublease by reason
of the termination of the Lease or by any other manner. Upon such attornment, to
the extent of the then remaining balance of the term of this Sublease, Sublessee
and Landlord shall, except as provided herein, have the same respective rights
and obligations as Sublessee and Sublessor have under this Sublease. If Landlord
shall so succeed to the interest of Sublessor under this Sublease by reason of
the termination of the Lease, or by any other manner, Landlord shall be bound to
Sublessee under this Sublease, and Sublessee shall have the same rights and
remedies against Landlord for the breach of an agreement contained in this
Sublease that Sublessee would have had under this Sublease against Sublessor if
Landlord had not succeeded to the interest of Sublessor; provided, however,
Landlord shall not be:
(a) liable for (or be responsible for any cure or costs of cure
of) any default or any act or omission of Sublessor, including
any continuing condition that arose as a result of any such
act or omission or otherwise prior to Landlord succeeding to
Sublessor; or
(b) subject to any offsets or defenses which Sublessee might have
against Sublessor; or
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(c) bound by any rent or additional rent which Sublessee might
have paid for more than the current month to Sublessor except
the last month's rent as provided herein; or
(d) bound by any amendment or modification of this Sublease made
without Landlord's written consent; or
(e) liable for or on account of any security deposit or other sums
held by Sublessor unless the same was or were actually paid to
and received by Landlord.
Sublessor and Sublessee shall provide to Landlord copies of all notices
delivered to the other pursuant to this Sublease and such notices shall not be
effective against Landlord unless and until so provided to Sublessor. The term
"Landlord" shall be deemed to include Thomas J. Flatley d/b/a The Flatley
Company, and any of his or its successors and assigns, including anyone who
shall have succeeded to Sublessor's interest due to the termination of the Lease
or otherwise.
13. SUBLESSOR'S REPRESENTATIONS AND WARRANTIES. Sublessor hereby
represents and warrants as follows, which representations and warranties shall
survive the termination of this Sublease:
(a) Sublessor is a duly organized and validly existing
Massachusetts corporation in good standing with the
Commonwealth of Massachusetts;
(b) Sublessor has taken all necessary corporate action and has all
necessary corporate authority to enter into this Sublease on
the terms and conditions contained herein;
(c) Sublessor is not bound by any agreement, corporate action or
resolution, court order or other matter which would prohibit,
prevent or affect the validity of this Sublease;
(d) Nothing contained in the articles of organization, by-laws or
other governing documents of Sublessor would prohibit, prevent
or affect the validity of this Sublease; and
(e) The undersigned Sidney D. Rogers is the duly authorized and
validly elected Vice President of Sublessor and has been duly
authorized by Sublessor to execute and deliver this Sublease.
14. SUBLESSEE'S REPRESENTATIONS AND WARRANTIES. Sublessee hereby
represents and warrants as follows, which representations and warranties shall
survive the termination of this Sublease:
(a) Sublessee is a duly organized and validly existing
Massachusetts corporation in good standing with the
Commonwealth of Massachusetts;
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(b) Sublessee has taken all necessary corporate action and has all
necessary corporate authority to enter into this Sublease on
the terms and conditions contained herein;
(c) Sublessee is not bound by any agreement, corporate action or
resolution, court order or other matter which would prohibit,
prevent or affect the validity of this Sublease;
(d) Nothing contained in the articles of organization, by-laws or
other governing documents of Sublessee would prohibit, prevent
or affect the validity of this Sublease; and
(e) The undersigned Jon Radoff is the duly authorized and validly
elected President of Sublessee and has been duly authorized by
Sublessee to execute and deliver this Sublease.
15. SUBLESSEE'S AND SUBLESSOR'S COVENANTS. Sublessee covenants and
agrees that Sublessee will not do anything which would constitute a default
under the Lease or omit to do anything which Sublessee is obligated to do under
the terms of this Sublease and which would constitute a default under the Lease.
Sublessor covenants and agrees to pay the rent and any Additional Rent payable
as required under the Lease and not to do anything which would constitute or
give rise to a default under the Lease.
16. INDEMNIFICATION. To the fullest extent permitted by law, Sublessee
shall and hereby does indemnify and hold Sublessor and Landlord harmless from
and against any and all actions, claims, demands, damages, liabilities, expenses
and judgments (including, without limitation, reasonable attorneys' fees)
asserted against, imposed upon or incurred by Sublessor by reason of (a) any
violation caused, by Sublessee, its agents, servants, employees or invitees, of
any of the terms, covenants or conditions of the Lease or this Sublease, and (b)
any damage or injury to persons or property occurring upon or in connection with
Sublessee's use or occupancy of the Sublet Premises, except as a result of the
intentional or grossly negligent acts or omissions of Landlord or Sublessor, or
any of their respective agents, employees or invitees.
17. ASSIGNMENT AND SUBLEASE. Notwithstanding any provision of the Lease
to the contrary, Sublessee shall not assign, mortgage, pledge or otherwise
encumber this Sublease, nor sublet the Sublet Premises or any part thereof,
without in each obtaining the prior written consent of Landlord and Sublessor,
which consent may be given or withheld in Landlord and Sublessor's reasonable
discretion. Notwithstanding the foregoing, Sublessor shall not unreasonably
withhold its consent to one or more sublettings requested by Sublessee, provided
that Sublessee in each instance complies with all of the provisions of Section
31 of the Lease.
18. BROKERS. Sublessee represents and warrants to Sublessor that it has
not directly or indirectly dealt with any broker or agent with respect to the
Sublet Premises other than Cushman & Wakefield and Meredith & Grew. Sublessee
agrees to indemnify and hold harmless Sublessor against any claim by any other
broker or agent arising out of a breach of Sublessee's representations and
warranties in this Section 18. Sublessor represents and warrants to Sublessee
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that it has not directly or indirectly dealt with any broker or agent with
respect to the Sublet Premises other than Cushman & Wakefield and Meredith &
Grew. Sublessor agrees to indemnify and hold harmless Sublessee against any
claim by any other broker or agent arising out a breach of Sublessor's
representations and warranties in this Section 18.
19. DEFAULTS AND REMEDIES. The following shall constitute an event of
default (each, an "Event of Default") under this Sublease:
(i) Sublessee shall fail to pay rent or other sums payable under
this Sublease when due and such failure shall continue for
seven (7) full business days after written notice has been
given from Sublessor to Sublessee;
(ii) Sublessee shall fail to cure any other default under this
Sublease within thirty (30) days (or such further time as may
be required to diligently cure the same) from written notice
thereof from Sublessor to Sublessee;
(iii) Sublessee shall make an assignment for the benefit of
creditors, shall admit in writing its inability to pay its
debts as they come due, or shall file a petition for
liquidation or for reorganization or any arrangement or any
other relief under any provision of any federal or state
bankruptcy or insolvency law;
(iv) an involuntary petition under any provision of any federal or
state bankruptcy law shall be filed against Sublessee and not
be dismissed within sixty (60) days thereafter; or
(v) a lien or other encumbrance shall be filed against Sublessee's
leasehold interest and not be discharged within fifteen (15)
days thereafter.
Sublessee covenants and agrees that upon the occurrence of an Event of
Default, notwithstanding any termination of this Sublease under any of the
provisions of this Section, whether by summary proceedings, or termination, to
pay and be liable for on the days originally fixed herein for the payment
thereof, amounts equal to the several installments of rent and other charges
reserved as they would, under the terms of this Sublease, become due if this
Sublease had not been terminated and whether the Sublet Premises be relet or
remain vacant, in whole or in part, or for a period less than the remainder of
the term, or for the whole thereof, provided that in the event the Sublet
Premises be relet by Sublessor, Sublessee shall be entitled to a credit equal to
the net amount of rent received by Sublessor in reletting, after deduction of
all reasonable expenses incurred in reletting the Sublet Premises (including but
not limited to remodeling costs, brokerage fees, and the like) and in collecting
rent in connection therewith.
In the event that Base Rent or other payments are not made by the date
when such payments are due, then in addition to all other remedies otherwise
available to Sublessor, said past due payments shall carry interest and be
subject to a late charge as set forth in Section 51 of the Lease. Sublessee
specifically agrees to pay any such interest and late charge to Sublessor along
with the payment of Base Rent and other charges.
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20. ENTIRE AGREEMENT. This Sublease, together with those provisions of
the Lease applicable hereto, contains all of the covenants, agreements, terms,
provisions, conditions, warranties and understandings relating to the leasing of
the Sublet Premises and Sublessor's obligations in connection therewith, and
neither Sublessor nor any agent or representative of Sublessor has made or is
making, and Sublessee in executing and delivering this Sublease is not relying
upon, any warranties, representations, promises or statements whatsoever, except
to the extent expressly set forth in this Sublease. The failure of Sublessee or
Sublessor to insist in any instance upon the strict keeping, observance or
performance of any covenant, agreement, term, provision or condition of this
Sublease or to exercise any election herein contained shall not be construed as
a waiver or relinquishment for the future of such covenant, agreement, term,
provision, condition or election, but the same shall continue and remain in full
force and effect. No waiver or modification of any covenant, agreement, term,
provision or condition of this Sublease shall be deemed to have been made unless
expressed in writing and signed by Landlord, Sublessee and Sublessor. No
surrender of possession of the Sublet Premises or of any part thereof by
Sublessee or of any remainder of the term of this Sublease shall release
Sublessee from any of its obligations hereunder unless accepted by Sublessor in
writing. The receipt and retention by Sublessor of monthly Base Rent or
Additional Rent from anyone other than Sublessee shall not be deemed a waiver of
the breach by Sublessee of any covenant, agreement, term or provision of this
Sublease, or as the acceptance of such other person as a tenant, or as a release
of Sublessee from the further keeping, observance or performance by Sublessee of
the covenants, agreements, terms, provisions and conditions herein contained.
The receipt and retention by Sublessor of monthly Base Rent or Additional Rent
with knowledge of the breach of any covenant, agreement, term, provision or
condition herein contained shall not be deemed a waiver of such breach.
21. SUCCESSORS AND ASSIGNS. The obligations of this Sublease shall bind
and benefit the successors and permitted assigns of the parties with the same
effect as if mentioned in each instance where a party hereto is named or
referred to.
22. NOTICES. Any and all communications delivered hereunder shall be
sent by first-class mail postage pre-paid, return-receipt requested or
nationally recognized overnight courier: if to Landlord, at the addresses
specified in Section 24 of the Lease; if to Sublessee, at 200 Friberg Parkway,
Westborough, Massachusetts 01581, Attention: Jon Radoff, with a copy to Dennis
Townley, Esquire, Hill & Barlow, One International Place, Boston, Massachusetts
02110; and if to Sublessor, at Merkert Enterprises, Inc., 500 Turnpike Street,
Canton, Massachusetts 02021, Attn: Sidney D. Rogers, Jr., Vice President, or to
such other address and attention as any of the above shall notify the others in
writing.
23. INSURANCE. Notwithstanding any provisions in the Lease to the
contrary, Sublessee shall maintain the following insurance coverage:
Comprehensive public liability insurance in an amount not less than Three
Million Dollars ($3,000,000.00) per occurrence, with property damage insurance
in an amount not less than Five Hundred Thousand Dollars ($500,000.00), and
otherwise consistent with Section 20 of the Lease.
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24. LANDLORD CHANGES. In the event Landlord, upon review of this
Sublease, requests any minor non-material modifications to this Sublease,
Sublessor and Sublessee agree to cooperate in making those changes and resigning
this Sublease as necessary.
IN WITNESS WHEREOF, Sublessee and Sublessor have duly executed this
Sublease as of the day and year first above written.
Attest: NOVA LINK USA CORPORATION
By: /s/ Pat Bryant By: /s/ J. Radoff
Name: Pat Bryant Name: Jon Radoff
Title: Controller Title: President
(Corporate Seal)
Attest: MERKERT ENTERPRISES, INC.
By: /s/ Michael S. Gold By: /s/ Sidney D. Rogers
Name: Michael S. Gold Name: Sidney D. Rogers
Title: Assistant Clerk Title: Vice President
Attest: This Sublease, specifically Sections 5,
7, 11, and 12 are agreed, assented and
By: ____________________________ approved by: Thomas J. Flatley d/b/a The
Name: ____________________________ Flatley Company
Title: ____________________________
By: ___________________________
Name: ___________________________
Title: ___________________________
-10-
FIRST AMENDMENT TO
SUBLEASE AGREEMENT
------------------
WHEREAS, Merkert Enterprises, Inc., a Massachusetts corporation
("SUBLESSOR") and Nova Link USA Corporation, a Massachusetts corporation
("SUBLESSEE") have entered into a certain Sublease Agreement (the "Sublease");
and
WHEREAS, the parties now wish to modify certain provisions thereof';
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEEMED CONSENT. The parties agree that that certain letter from
Landlord (as defined in the Sublease) dated October 30, 1997 shall be deemed to
be Landlord's consent as contemplated by Paragraphs 2 and 3 of the Sublease. As
between Sublessor and Sublessee, Landlord shall be deemed to have consented as
of the date of execution of this First Amendment by both parties hereto (the
"DEEMED CONSENT DATE");
2. SECURITY DEPOSIT. Paragraph 6 of the Sublease is hereby amended by
the deletion and the replacement thereof with the following:
6. SECURITY DEPOSIT. Sublessor hereby acknowledges receipt from
Sublessee of the sum of Sixteen Thousand Five Hundred and
Thirty-two Dollars ($16,532.00) as security (the "Security
Deposit") for the faithful performance by Sublessee of its
obligations hereunder. In the event of an Event of Default (as
defined in Section 19 hereof), Sublessee hereby authorizes
Sublessor, at Sublessor's election (with notice to Sublessee) and
with or without terminating this Sublease and without prejudice to
any other right or remedy Sublessor may have, to apply all or any
portion of the Security Deposit necessary to remedy such default.
If said Security Deposit or portion thereof is so applied,
Sublessee, upon demand by Sublessor, shall within seven (7) days
after written notice therefor from Sublessor, deposit with
Sublessor an amount equal to the amount of the Security Deposit so
applied. Any unapplied cash portion of the Security Deposit shall
be held by Sublessor in a separate escrow account and interest
earned thereon shall be paid to Sublessee on an annual basis. On
December 1, 1998, the Security Deposit, together with any interest
accrued thereon, shall be applied towards Sublessee's obligations
hereunder without any objection on the part of Sublessor or demand
to reinstate the Security Deposit as so applied.
3. RENT COMMENCEMENT. The parties agree that Sublessee's obligation to
pay rent, as set forth in Paragraph 3 of the Sublease, shall commence on the
first business day which is at least fifteen ( 15) days after the Deemed Consent
Date.
4. WAIVER OF RIGHT TO TERMINATE. Each party hereby waives any right it
may have or have had pursuant to the provisions of Paragraph 2 of the Sublease
to terminate the Sublease for Landlord's failure to consent within the allotted
time set forth therein.
IN WITNESS WHEREOF, Sublessee and Sublessor have duly executed this
Sublease as of this _____ day of November, 1997.
Attest: NOVA LINK USA CORPORATION
By: /s/ Angela Bull By: /s/ J. Radoff
Name: Angela Bull Name: Jon Radoff
Title: Director Title: President
Attest: MERKERT ENTERPRISES, INC.
By: /s/ Michael S. Gold By: /s/ Sidney D. Rogers
Name: Michael S. Gold Name: Sidney D. Rogers
Title: Assistant Clerk Title: Vice President
-2-
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 9/30/00 | | 1 | | | | | 10-Q |
| Filed on: | | 1/14/00 |
| | 12/1/98 | | 11 |
| | 11/1/98 | | 3 |
| | 11/8/97 | | 2 |
| | 11/1/97 | | 1 | | 2 |
| | 10/30/97 | | 11 |
| | 10/15/97 | | 1 |
| | 4/14/97 | | 1 |
| List all Filings |
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