SUBLEASE
THIS SUBLEASE AGREEMENT ("Sublease") is made on this 5th day of
November, 1999, by and between THE MATHWORKS, INC., a Delaware corporation
(hereinafter called "Sublandlord"), and DIRECT HIT TECHNOLOGIES, INC., a
Delaware corporation (hereinafter called "Subtenant").
Reference is made to a Lease Agreement dated May 16, 1997, between
Sublandlord, as tenant, and LMF Cochituate Corp., a Massachusetts corporation,
as landlord (hereinafter called "Prime Landlord") as amended pursuant to (a)
that certain First Amendment of Lease, dated May 29, 1998, between Sublandlord
and Prime Landlord; (b) that certain Second Amendment to Lease, dated April 1,
1999, between Sublandlord and Prime Landlord; and (c) that certain Third
Amendment of Lease, dated May 13, 1999, between Sublandlord and Prime Landlord
(collectively referred to herein as the "Prime Lease") for approximately 102,398
square feet on the first, second, third, fourth, fifth and basement floors
located in the building commonly known as Cochituate Place, 24 Prime Parkway,
Natick, Massachusetts ("Building") together with the right to use in common with
others the common areas of the Building and the common areas of the
approximately 4.53 acre parcel of land thereunder (the "Lot"), all as more
particularly described in the Prime Lease (hereinafter "Premises").
WHEREAS, the Sublandlord and Subtenant have agreed that Sublandlord
will sublet to Subtenant a portion of the Premises consisting of approximately
22,032 square feet located on the fifth (5th) floor of the Building ("Subleased
Premises") more particularly described in EXHIBIT A attached hereto and made a
part hereof; and
WHEREAS, Sublandlord and Subtenant hereby execute and deliver this
Sublease upon the condition precedent of obtaining the Prime Landlord's written
consent.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and for the mutual covenants
contained herein, the parties agree as follows.
1. LEASE; COMMENCEMENT DATE; EXPIRATION DATE. Sublandlord
leases to Subtenant, and Subtenant leases from Sublandlord, the
Subleased Premises, together with any rights, privileges and easements
appurtenant thereto, for the term commencing at noon on November 18,
1999 ("Commencement Date") and ending at noon on October 31, 2002
("Expiration Date").
2. LESSEE'S ACCESS TO PREMISES. The Building is open to the
public from Monday through Friday from 8:00 A.M. to 6:00 P.M. and
Saturday from 8:00 A.M. to 1:00 P.M. Sublessee shall have access to the
Subleased Premises (24) hours per day, seven (7) days per week via a
card-key access system. Subtenant shall pay all fees associated with
its use of the card-key access system.
3. CONDITION OF THE SUBLEASED PREMISES. The Subleased Premises
are leased to Subtenant in their condition on the date hereof and
Sublandlord has made no representations, warranties or promises with
respect to the Subleased Premises or the suitability thereof for the
uses contemplated by this Sublease. Subtenant agrees to accept
possession of the Subleased Premises on the Commencement Date "as is,"
in the same condition as it is on the date hereof except that (a) the
Subleased Premises shall be delivered in broom clean condition free of
all occupants; (b) to the best of Sublandlord's actual knowledge, all
HVAC, electrical, plumbing and other systems serving the subleased
Premises are in good and operational condition; and (c) Sublandlord
shall make the repairs described on EXHIBIT B attached hereto and made
a part hereof. The "Subleased Premises" shall include the furniture
described on EXHIBIT C attached hereto and made a part hereof
("Furniture"). Provided that this Sublease is in full force and effect
on the Expiration Date, and that Subtenant is not in default of any of
the terms or conditions of this Sublease, title to the Furniture shall
be transferred to Subtenant upon the Expiration Date and Sublandlord
shall deliver a Bill of Sale for the same in the form attached hereto
as EXHIBIT D. Sublandlord represents that it holds title to the
Furniture and that the Furniture is not subject to any liens or
security interests. The Furniture is and shall be provided to Subtenant
in "as is" condition and SUBLANDLORD EXPRESSLY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
4. RENT. The annual base rent ("Base Rent") shall be
$484,704.00 U.S. dollars per year (based on $22.00 per square foot for
rent, drawn on a U.S. bank, payable in advance in equal monthly
installments of $40,392.00 on the Rent Commencement Date (as defined
below) and thereafter on the first day of each calendar month in
advance. The cost of HVAC and nightly cleaning is included in the
Additional Rent. Rent shall be prorated for any partial months at the
beginning and end of the Lease term. Rent and all other charges due
hereunder shall be payable without demand, notice, set-off, or
counterclaim, except as allowed hereunder, at Sublandlord's address set
forth above or at such other places as may be set forth in notices,
from time to time, from Sublandlord to Subtenant. The "Rent
Commencement Date" shall be December 15, 1999.
5. ADDITIONAL RENT. Subtenant agrees to pay as additional rent
("Additional Rent") to Sublandlord, its proportionate share of the
amount by which real estate and personal property taxes levied or
assessed or becoming payable for or in respect to the Lot on which the
Building is located and the Building and other improvements located on
the Lot for each tax period included in the term and any partial period
at the beginning and end thereof exceed the tax base amount for Fiscal
Year 2000 (July 1, 1999 - June 30, 2000). Subtenant also agrees to pay
as additional rent to Sublandlord, its proportionate share of the
Operating Costs (as defined in the Prime Lease) in excess of the
Operating Costs incurred in the operation of the Building and Lot in
calendar year 2000. Subtenant's proportionate share is equal to 20.6%.
Any sums payable to Sublandlord under this Paragraph 5 shall be paid by
Subtenant as required under the Prime Lease.
Sublandlord shall provide Subtenant with copies of all bills, invoices,
statements and reconciliations sent to Sublandlord relating to such
taxes and/or Operating Costs.
6. ELECTRICITY. Subject to the provisions of this Section, in
addition to Base Rent and Additional Rent, Subtenant shall pay a
monthly sum of $3,873.96 (based on $2.11 per square foot per annum) for
electricity to lights and plugs within the Subleased Premises.
Subtenant shall have the right, at its expense, to perform an audit of
electricity costs after October 31, 2000. Any such audit shall be
performed by an independent accounting firm. If the audit demonstrates
that electricity costs per rentable square foot is less than $2.11 per
rentable square foot, then Sublandlord will request a refund from Prime
Landlord equal to the amount by which rent paid for electricity
exceeded the actual cost thereof, and upon receipt of such refunded
from Prime Landlord, Sublandlord shall pay a proportionate, share of
such refund to Subtenant. Sublandlord shall not be obligated to pay any
electricity refund to Subtenant under this Section 5 unless Sublandlord
actually receives a refund from Prime Landlord. Subtenant acknowledges
and agrees that Prime Landlord is under no obligation to make such a
refund and that Sublandlord is only obligated to request such a refund
from Prime Landlord.
7. PERSONAL PROPERTY TAXES. Subtenant agrees to pay to local
tax authorities and other governmental agencies throughout the term of
this Sublease all personal property taxes which may be levied against
Subtenant's merchandise, trade fixtures and other personal property in
and about the Subleased Premises.
8. USE. The Subtenant shall use the Subleased Premises only as
allowed under Section 3.8(a) of the Prime Lease.
9. SUBORDINATE TO PRIME LEASE. This Sublease and all of its
terms, covenants, representations, warranties, agreements and
conditions are in all respects subject and subordinate to the Prime
Lease, which Prime Lease has been submitted to and examined by
Subtenant. Subtenant acknowledges notice and full knowledge of all of
the terms, covenants and conditions of the Prime Lease. Except as
otherwise provided in Section 10, in the event of any inconsistency
between the provisions of this Sublease and the Prime Lease, Subtenant
agrees that it shall be bound by the stricter provision. A true copy of
the Prime Lease is attached hereto as EXHIBIT E. Capitalized terms
defined in the Prime Lease and not otherwise defined herein shall have
the meanings as in the Prime Lease. Sublandlord shall not amend, modify
or supplement the Prime Lease in any way which would materially reduce
Subtenant's rights or the services due under the Prime Lease, or
materially increase Subtenant's obligations or liabilities without
obtaining Subtenant's prior written consent , which consent shall not
be unreasonably withheld, conditioned or delayed. In the event
Sublandlord requests in writing such consent from Subtenant and
Subtenant fails to respond within five (5) business days after receipt
of written request, Subtenant shall be deemed to have consented to any
such agreement.
10. PRIME LEASE. With respect to the Subleased Premises, the
terms and conditions of the Prime Lease are hereby incorporated by
reference and made a part
hereof, meaning that, as applicable, references to "Tenant" therein
shall be deemed to be "Subtenant" hereunder, references to "Landlord"
therein shall be deemed to be "Sublandlord" hereunder, references to
"Premises" shall be deemed to be "Subleased Premises", references to
"Commencement Date" shall be deemed to be "Commencement Date" (as
defined herein), references to "Termination Date" shall be deemed to be
"Expiration Date", references to "Lease" shall be deemed to be
"Sublease", provided (i) Prime Landlord shall continue to have all
rights set forth in the Prime Lease (notwithstanding the fact that
Sublandlord shall also have the same rights under this Sublease), and
(ii) Sublandlord shall not be deemed to have assumed any of the
obligations of Prime Landlord as a result of the incorporation of the
Prime Lease.
Notwithstanding the foregoing, the following provisions of the
Prime Lease are not incorporated herein: (a) the initial three
unnumbered paragraphs of the Prime Lease; (b) Article I; (c) provisions
in Article II which state the amount of Base Rent and Additional Rent;
(d) the first three sentences of Section 3.3; (e) Section 3.8(b); (f)
references in Section 5.1 to "Article II" shall be replaced with
"Sections 4, 5, and 6"; (g) the phrase "the cost of the same to be
borne by Tenant as an operating cost" in Section 6.2; (h) Section 7.4;
(i) Article IX; (j) Article X; (k) Article XI; (l) Paragraphs 1, 2 and
3 of Rider A to the Prime Lease; (m) Exhibits A, B and D to the Prime
Lease; and (n) the amendments to the Prime Lease. In addition, with
respect to Section 4.1 as incorporated herein, Sublandlord shall not
have the Prime Landlord's right to terminate this Sublease unless Prime
Landlord exercises such right under the Prime Lease. Sublandlord shall
use reasonable efforts to obtain the performance by Prime Landlord of
its obligations under the Prime Lease upon the written request of
Subtenant.
11. SUBTENANT OBLIGATIONS UNDER PRIME LEASE. For so long as
the Prime Lease remains in full force and effect, Subtenant agrees to
perform, fulfill, and observe all of the covenants, agreements,
obligations, conditions, representations, warranties, terms and
provisions imposed upon Sublandlord as tenant of the Subleased Premises
under the Prime Lease, provided, however, that Subtenant shall not be
obligated to perform any obligations of Sublandlord to the extent such
obligations are inconsistent or in conflict with the terms of this
Sublease. Subtenant agrees to indemnify and hold Sublandlord harmless
from and against all claims, liabilities, losses and damages of any
kind whatsoever which Sublandlord may incur by reason of Subtenant's
failure to perform, fulfill or observe any of the covenants or
agreements set forth herein or the applicable provisions set forth in
the Prime Lease to the extent such are Subtenant's obligations
hereunder. Sublandlord agrees to indemnify, defend and hold harmless
Subtenant from and against all claims, liabilities, losses and damages
of any kind whatsoever which Subtenant may incur by reason of
Sublandlord's failure to perform , fulfill or observe any of the
covenants or agreements set forth herein or its covenants or agreements
under the Prime Lease. The foregoing shall survive the expiration or
earlier termination of this Sublease.
12. TERMINATION. Sublandlord shall not voluntarily agree to a
termination of the term of the Prime Lease prior to the Expiration
Date. If the Prime Lease terminates as
a result of the default or breach by Sublandlord or Subtenant under
this Sublease and/or the Prime Lease, the defaulting party shall be
liable to the non-defaulting party for damages suffered as a result of
such termination. Notwithstanding the foregoing, if the Prime Landlord
is prepared to enter into a direct lease with Subtenant on no less than
the same economic terms as contained in this Sublease, Sublandlord
shall not have liability to Subtenant as a result of any such
termination of the Prime Lease. *reasonable and direct
13. ALTERATIONS. Notwithstanding the Prime Lease, Subtenant
shall not make any structural alterations or additions to the Subleased
Premises nor make any alterations or additions affecting basic building
systems without (a) the prior written consent of Sublandlord, which
consent shall not be unreasonably withheld, conditioned or delayed, and
(b) the consent of Prime Landlord as provided in the Prime Lease. Any
alterations made by Subtenant are subject to the terms and conditions
set forth below:
(a) All work shall be performed in accordance with
plans and specifications and by mechanics reasonably
acceptable to Prime Landlord and Sublandlord;
(b) Subtenant shall cause such work to be completed
in good and workmanlike manner and in compliance with any and
all applicable federal, state or local laws, codes,
ordinances, rules and regulations, including, but not limited
to, any demolition, building, zoning, health and environmental
laws, codes or ordinances, rules and regulations;
(c) Subtenant shall at all times remain responsible
for the actions of its consultants, representatives,
employees, agents, contractors and subcontractors and any
other parties responsible for any portion of the work;
(d) Subtenant shall not create or suffer or permit
any lien, charge or encumbrance to attach to or be filed
against the Subleased Premises, including, but not limited to,
any mechanics' lien, materialmen's lien or other claims for
lien made by parties claiming to have provided labor or
material to the Subleased Premises;
(e) Subtenant shall indemnify and hold Sublandlord
harmless from and against any and all losses, damages, costs
(including costs of suits and attorneys' fees), liabilities or
causes of action arising out of or relating to the work;
(f) Subtenant shall remain in substantial compliance
with all of the terms of this Sublease and shall not be in
default hereunder, unless Subtenant has the right to and is
proceeding to cure such default; and
(g) Subtenant shall and does hereby indemnify and
hold Sublandlord harmless from any and all claims, damages and
liability to Prime Landlord in connection with or resulting
from Subtenant's making, use, maintenance or
removal of trade fixtures and trade equipment from the
Subleased Premises to the extent permitted in the Prime
Lease.
14. ASSIGNMENT AND SUBLETTING. Subtenant shall not assign or
sublease this Sublease without the prior written consent of Sublandlord
which consent shall not be unreasonably withheld, conditioned or
delayed, and the prior written consent of Prime Landlord as provided in
the Prime Lease. In addition, Subtenant shall reimburse Sublandlord and
Prime Landlord promptly for reasonable legal expenses incurred by each
of Sublandlord and Prime Landlord (not to exceed $1,500.00 each) in
connection with any request by Subtenant for such consent. In the event
of such assignment or subletting by Subtenant, one-half of any rent
received by Subtenant in excess of that provided in this Sublease less
the cost(s) chargeable to acquisition of a sub-subtenant shall be paid
to Sublandlord as additional rent as and when received by Subtenant.
15. CASUALTY AND CONDEMNATION. Sublandlord shall have no
obligation to repair or restore the Subleased Premises, whether in the
event of fire or casualty or otherwise, and Sublandlord shall have no
obligation to Subtenant if all or part of the Subleased Premises are
taken in condemnation or by eminent domain proceedings. To the extent
that Sublandlord obtains compensation from Prime Landlord in the event
of condemnation or eminent domain proceedings, Subtenant shall be
entitled to a proportionate share of such compensation based on the
square footage of the Subleased Premises, and Subtenant shall have the
same termination rights as Sublandlord would have under the Prime Lease
as incorporated herein.
16. INSURANCE. Subtenant shall maintain, throughout the term
hereof at its sole cost and expense, insurance identical in all
respects to that required to be carried by Sublandlord under the Prime
Lease. The aforesaid insurance shall (i) be written by companies
licensed to do business in Massachusetts and reasonably acceptable to
Sublandlord, (ii) not be subject to cancellation, amendment or
modification except after at least thirty (30) days prior written
notice to Sublandlord and (iii) name Sublandlord and Prime Landlord as
additional insureds. The original insurance policies (or certificates
of insurance reasonably satisfactory to Sublandlord) shall be deposited
with Sublandlord prior to the commencement of the term of this Sublease
and renewals thereof shall be deposited with Sublandlord not less than
thirty (30) days prior to the end of the term of such coverage.
17. SIGNAGE. Subtenant shall have the right to place and
maintain at its sole expense, signage on the entrance door to the
Subleased Premises and the building directory, subject to Prime
Landlord's and Sublandlord's reasonable consent as to size, design and
shape.
18. PRIME LANDLORD'S CONSENT CONTINGENT. This Sublease is
contingent upon obtaining Prime landlord's written consent to all of
the terms and conditions of this Sublease. Sublandlord shall use
diligent good-faith efforts to obtain the Prime Landlord's consent to
this Sublease prior to the Commencement Date. In the event Prime
Landlord's
consent to the terms and conditions of this Sublease is not obtained
within ten (10) business days of the execution of this Sublease,
Subtenant shall have the right to terminate this Sublease by written
notice to Sublandlord and, upon delivery of such notice, Sublandlord
shall return the Security Deposit and this Sublease shall terminate. In
no event shall the Rent Commencement Date occur until an executed copy
of the Prime Landlord's consent is delivered to Subtenant.
19. HOLDING OVER. If Subtenant remains on the Subleased
Premises after the expiration of the term of this Sublease or after any
earlier termination provided for herein (unless due to a default of
Sublandlord under the Prime Lease), then such holding over shall not be
deemed to extend or renew the term of this Sublease or to create any
tenancy at will, but such holding over shall be as a
tenancy-at-sufferance only subject to all the provisions of this
Sublease. In addition, Subtenant shall indemnify and hold harmless from
and against all liability, damages, and claims incurred by in
connection with the holding over of Subtenant including, without on,
any liability of Sublandlord to Prime Landlord (unless due to a default
of Sublandlord under the Prime Lease). Notwithstanding the foregoing,
Sublandlord may, at its option, regain possession of the Subleased
Premises or any part thereof by any and all means available to
Sublandlord under this Sublease, the Prime Lease, or at law.
20. SECURITY DEPOSIT. Subtenant shall pay Sublandlord a
security deposit of Eighty Eight Thousand Five Hundred Thirty One
Dollars Ninety Two Cents ($88,531.92) concurrently with the execution
of this Sublease. Provided that Subtenant is not in default at the time
of payment of rent for the twenty-fifth month of the term of this
Sublease, Forty-Four Thousand Two Hundred Sixty-Five Dollars and
Ninety-Six Cents ($44,265.96) of the Security Deposit shall be applied
toward Base Rent and Additional Rent then due. Upon the expiration or
earlier termination of the term of this Sublease, the remaining balance
of the Security Deposit shall be returned to Subtenant.
21. BROKERAGE REPRESENTATIONS. Sublandlord and Subtenant
represent and warrant that they have had no dealings with any brokers
in connection with this Sublease other than R. W. Holmes Realty Co.,
Inc. and Fallon, Hines & O'Connor and will indemnify and hold harmless
each other from and against any loss or expense suffered by either
party as a result of such dealings with any other broker or agent.
Sublandlord shall pay a commission to R.W. Holmes Realty Co., Inc.
pursuant to its listing agreement, said commission to be split 50%/50%
with Fallon, Hines & O'Connor.
22. NOTICES. Any notice required hereunder shall be deemed to
have been given if delivered Certified Mail, Return Receipt Requested,
or by overnight courier such as Federal Express, to:
If to Prime Landlord: LMF Cochituate Corp.
182 West Central Street
Natick, Massachusetts 01760
Attention: Lou Franchi
If to Sublandlord: The Mathworks, Inc.
3 Apple Hill
Natick, Massachusetts 0 1 760
Attention: Jeanne O'Keefe
With a copy to: Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
Attention: Jane Thomassen, Esq.
If to Subtenant: Direct Hit
24 Prime Parkway
5th Floor
Natick, Massachusetts 01760
Attention: John McDonough
With a copy to: Testa, Hurwitz & Thibeault, LLP
125 High Street,
High Street Tower Boston,
Massachusetts 02110
Attention: Joseph R. Torpy
Any party may change its address for notice by notifying the other
parties as aforesaid.
23. NO PARTNERSHIP. Sublandlord shall not be held to be a
partner, joint venturer, or associate of Subtenant in the conduct of
its business, it being expressly understood and agreed that the
relationship between the parties hereto is and at all times shall
remain that of Sublandlord and Subtenant.
24. ENTIRE AGREEMENT. All prior understandings and agreements
between the parties are merged within this Sublease, which alone fully
and completely sets forth the understanding of the parties, and this
Sublease may not be changed or terminated orally or in any manner other
than by an agreement in writing and signed by the party against whom
enforcement of the change or termination is sought.
25. BINDING EFFECT. The covenants and agreements herein
contained shall bind and inure to the benefit of Sublandlord and
Subtenant and their respective successors and assigns.
26. GOVERNING LAW. The Sublease and all rights and remedies
thereunder shall be governed by the law of the Commonwealth of
Massachusetts.
27. SUBTENANT'S REPRESENTATIONS AND WARRANTIES. Subtenant
represents and warrants that the person executing this Sublease on
behalf of Subtenant is authorized to do so on behalf of the Subtenant.
28. SUBLANDLORD'S REPRESENTATIONS AND WARRANTIES. Sublandlord
represents, to its actual knowledge, and warrants and covenants, to its
actual knowledge, as follows:
(a) the copy of the Prime Lease attached hereto as
Exhibit B is true, accurate and complete, and has not been
modified, amended or terminated (as it applies to the
Subleased Premises) and is in full force and effect;
(b) the term of the Prime Lease as to the Subleased
Premises expires after October 31, 2002;
(c) Sublandlord is not in default under the Prime
Lease, nor Sublandlord done or failed to do anything which
with notice, the passage of time or both could ripen into a
default;
(d) Prime Landlord is not in default under the Prime
Lease, nor has Prime Landlord done or failed to do anything
which with notice, the passage of time or both could ripen
into a default;
(e) all Base Rent, Additional Rent and any other
charges due and payable under the Prime Lease have been paid
as billed or required in the normal course through the date of
this Sublease;
(f) all consents and approvals required to allow this
Sublease to be valid and effective (other than Prime
Landlord's consent) have been obtained;
(g) the person executing this Sublease on behalf of
Sublandlord is authorized to do so on behalf of the
Sublandlord, and
(h) Sublandlord will not extend the term of the Prime
Lease with respect to the Subleased Premises.
29. CONSENTS. Sublandlord acknowledges and agrees that (i) in
any case under this Sublease that requires the consent or approval of
both Prime Landlord and Sublandlord, Sublandlord agrees to submit the
matter to be so consented to or approved to Prime Landlord and (ii) in
the event that the consent or approval of any matter is not required of
Prime Landlord under the Prime Lease, no such consent or approval of
Sublandlord shall be required hereunder, unless, pursuant to the
express terms of this Sublease, Sublandlord's consent or approval is
required, in which event Sublandlord agrees that it shall not
unreasonably withhold or delay its consent or approval with respect
thereto. In connection with any matter requiring the consent or
approval of Prime Landlord under this Sublease, Sublandlord agrees to
cooperate with and assist Subtenant
in obtaining such Prime Landlord's consent or approval at Subtenant's
sole cost and expense.
SUBTENANT'S OPTION TO EXTEND
Subtenant (Direct Hit) shall have the right, exercisable no more than one (1)
time and provided Subtenant is not in default, beyond any applicable notice,
grace or cure period, at either time of exercise or upon the original
Termination Date to extend the Termination Date for the fifth floor premises of
22,032 rentable square, feet in the building commonly known as Cochituate Place,
24 Prime Parkway, Natick, Massachusetts for a period of five (5) additional
years (November 1, 2002 - October 31, 2007) at the then Fair Market Rent, as
determined below but in no event that $24.00 per rentable square foot. Subtenant
must exercise their extension option in writing on or before November 1, 2001.
Fair Market Rent shall be determined as follows: Landlord and Subtenant shall
agree on the then prevailing Fair Market Rent within fifteen (15) days of
Landlord's receipt of Subtenant's notice of extension. If the parties am unable
to reach agreement on the then prevailing Fair Market Rent by such date then
Subtenant shall have the right to rescind its notice of extension by delivering
to Landlord within five (5) business days thereafter written notice or
rescission of Subtenant's exercise of its option to extend. In the event
Landlord and Subtenant can not agree upon the then prevailing Fair Market Rent,
and Subtenant has not so rescinded its notice of extension, the following
procedure shall be followed. Each will select an appraiser or commercial real
estate broker with five or more years experience in the Natick rental market who
will jointly determine the market rent. If the appraisers and/or brokers so
selected cannot agree upon the market rent within twenty-one (21) days of their
selection, the appraisers and/or brokers so named shall select a third similarly
qualified appraiser or broker and the decision as to the market rent of any two
of the appraisers and/or brokers so selected shall bind the parties.
Both Subtenant and Landlord understand that the option to extend is subject to
the following: 1) review of Subtenant's financials and a mutually agreeable
security deposit, and 2) a mutually agreeable lease which must be executed by
December 15, 2001.
LANDLORD: LMF COCHITUATE CORP.
By: /s/ Pasquale Franchi
-----------------------------------
Pasquale Franchi, President
SUBTENANT: DIRECT HIT
By: /s/ Michael Cassidy
-----------------------------------
Duly Authorized
MATHWORKS, INC.
SUBLEASE PUNCH LIST
EXHIBIT B
1. ALL HOLES IN WALLS 1/2 DIAMETER OR LARGER WILL BE PATCHED AND MADE READY
FOR PRIMER AND PAINT.
2. ALL WALL SCONCE LIGHTING WILL BE IN GOOD WORKING ORDER THROUGHOUT ENTIRE
PREMISE
3. ALL FLUORESCENT LIGHTING WILL BE IN GOOD WORKING ORDER THROUGHOUT ENTIRE
PREMISE
4. ALL RECESSED LIGHTING WILL BE IN GOOD WORKING ORDER THROUGHOUT THE ENTIRE
PREMISE
5. ALL TRASH WILL BE REMOVED
6. ALL FURNITURE WILL REMAIN IN THE SPACE
7. ALL WHITEBOARDS WILL REMAIN THAT IS IN THE SPACE
8. ALL ATLAS WATER COOLERS WILL REMAIN
9. WINDOWS IN OFFICES AND WALL PANELS WILL BE CLEANED
10 A THOROUGH OFFICE CLEANING AND VACUUMING, RUG CLEANING WILL BE COMPLETED
11. ALL DAMAGED CEILING TILES WILL BE REPLACED THROUGHOUT THE ENTIRE PREMISE
12. ANY MISSING OFFICE WINDOW BLINDS WILL BE REPLACED
13. REPLACE ANY MISSING BASE MOLDING
14. GLUE ANY LOOSE BASE MOLDING
15. REMOVE DISHWASHER
16. REPAIR ALL WATER DAMAGE THROUGH ENTIRE PREMISE
EXHIBIT C
DESCRIPTION OF FURNITURE
EXHIBIT D
BILL OF SALE
In consideration of $10.00 paid and other valuable consideration, the
receipt of which is acknowledged, The Mathworks, Inc., a Delaware corporation
(the "Seller"), hereby unconditionally and irrevocably sells, conveys, transfers
and delivers to Direct Hit Technologies, Inc., a Delaware corporation (the
"Buyer"), the property listed on Exhibit A attached to this Bill of Sale (the
"Property"). Seller warrants to Buyer that Seller is the lawful owner of the
Property, that there is no assignment, mortgage or pledge of, or other
encumbrance upon, the Property, and that Seller has full right to sell the
Property.
EXECUTED under seal as of October 31, 2002.
The MathWorks, Inc.
By:
----------------------------
Name:
Title:
EXHIBIT E
PRIME LEASE
IN WITNESS WHEREOF the parties hereto set their hands and seals this
5th day of November, 1999.
SUBLANDLORD:
ATTEST: THE MATHWORKS, INC.
- ---------------------------
/s/ Mathworks, Inc.
-------------------------------
SUBTENANT:
ATTEST: DIRECT HIT
- ----------------------- By: /s/ Michael Cassidy
-------------------------------
Its: CEO
-------------------------------
THE MATHWORKS
5TH FLOOR - JESPER FURNITURE
NOVEMBER 2, 1999
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DESKS QTY
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Corner Desk JESPER-1000 42" x 24" 1
Full Desk JESPER-1000 62" x 30" 93
Full Return JESPER-1000 62" x 24" 59
FILES
3 Drawer Pedestal JESPER-1000 18"w x 27"h x 19.5"d 4
2 Drawer Ped Attached JESPER-1000 27
BOOKCASES
Tall JESPER-700 30"w x 69.5"h x 13"d 6
ACCESSORIES
Whiteboards 37
Greyboards 38
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