Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
HDR INFRASTRUCTURE EQUIPMENT LICENSE AGREEMENT
This HDR Infrastructure Equipment License Agreement (the "Agreement") is entered
into on September 18, 2000 by and between QUALCOMM Incorporated, a Delaware
Corporation, and Airvana, Inc., a Delaware corporation, with respect to the
following facts:
RECITALS
WHEREAS, QUALCOMM has developed certain proprietary Code Division Multiple
Access technology which may be useful in providing greater capacity and improved
quality and reliability compared to other Wireless internet technologies;
WHEREAS, LICENSEE desires to obtain a license of QUALCOMM's Intellectual
Property to manufacture and sell the Licensed HDR Products, and QUALCOMM desires
to grant such license in accordance with the terms and conditions set forth in
this Agreement; and
WHEREAS, QUALCOMM desires to obtain a license of LICENSEE's Intellectual
Property to manufacture and sell the Licensed HDR Products and Components and
LICENSEE desires to grant such license in accordance with the terms and
conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE, the parties hereby agree as follows:
1. HEADINGS AND DEFINITIONS.
All headings used in this Agreement are inserted for convenience only and
are not intended to affect the meaning or interpretation of this Agreement or
any clause. Reference to "third party or third parties" shall not mean either
Party. For the purpose of this Agreement, the following definitions apply:
"Affiliates" means, as to a Party, any present or future Parent of the Party and
any present or future Subsidiary of the Party and/or its Parent, but only for so
long as the Parent remains the Parent of the Party and the Subsidiary remains a
Subsidiary of the Party and/or its Parent. The term "Parent" means any
corporation or other legal entity that owns, directly or indirectly (i) more
than 50% of the shares or other securities of the Party entitled to vote for
election of directors (or other managing authority) of the Party or (ii) if such
Party does not have outstanding shares or securities, more than 50% of the
equity interest in such Party, but only for so long as such ownership or control
exists in (i) or (ii) above. The term "Subsidiary" of a Party means any
corporation or other legal
1
entity (i) the majority (more than 50%) of whose shares or other securities
entitled to vote for election of directors (or other managing authority) is now
or hereafter owned or controlled by such Party either directly or indirectly or
(ii) which does not have outstanding shares or security but the majority (more
than 50%) of the equity interest in which is now or hereafter owned or
controlled by such Party either directly or indirectly, but only for so long as
such ownership or control exists in (i) or (ii) above.
"CDMA" means code division multiple access technology.
"CDMA Applications" means all communication applications (regardless of the
transmission medium) which operate using code division multiple access ("CDMA")
technology, whether or not based on IS-95, cdma2000 or W-CDMA, and irrespective
of frequency band.
"CDMA ASICs" means QUALCOMM's cell site modem (CSM) CDMA application specific
integrated circuit, and any revision, generation, modifications or integration
to or of the CSM, purchased from QUALCOMM.
"Commercially Necessary IPR" means those Intellectual Property Rights which (i)
the Party or its Affiliates has the right to license to the other Party without
payment of royalties or any other consideration to any third party, (ii) are not
essential to the manufacture, use or sale of Licensed HDR Products and/or HDR
Components which comply with the specifications of the HAI and (iii) provide
Licensed HDR Products and/or Components with a competitive advantage (e.g.,
cost, lead-time or quality advantages) or which add to Licensed HDR Products or
Components a feature or other characteristic which may be reasonably required by
the market place; but the term Commercially Necessary IPR does not include any
trade name, trademark, service mark, or similar symbols, abbreviation,
contractions or simulations identifying the Party and its Affiliates (except as
set forth in Section 7, if the Party is QUALCOMM).
"Components" means application specific integrated circuits (ASICs), electronic
devices, integrated circuits, including firmware thereon, and/or families of
devices for use in products for CDMA Applications.
"Costs" means the actual labor, material and other direct costs, expenses and
associated indirect expenses, including overheads and general and administrative
expenses consistently applied in accordance with the U.S. generally accepted
accounting principles.
"Distributed Antenna" means a multi-node antenna system and related circuitry
that is designed to make use of delays in CDMA signal transmission and/or
reception so that rake receiver functionality can be utilized.
2
"Effective Date" means the date first set forth above.
"[**]" means [**], a [**] corporation and any of its subsidiaries in which it
owns or controls fifty percent (50%) or more of the voting power.
"Functions" means any or all of the following which incorporates any or all of
QUALCOMM's Intellectual Property: (i) handoff, (ii) CDMA waveform modulation
and/or demodulation, (iii) power control, (iv) rate control, (v) call packet
connection and/or routing, (vi) paging, (vii) data services, (viii) fax
services, (ix) system initialization and configuration, (x) diagnostic
monitoring or maintenance of any of the foregoing functions and/or (xi) any
other function.
"Future Commercially Necessary IPR" means all claims of any patents (foreign and
domestic) which fall within the definition of Commercially Necessary IPR, but
which do not fall within the definition of Included Commercially Necessary IPR.
"Have Made" means the right of LICENSEE under [**] Patents to have a third party
make a Licensed HDR Product for CDMA Applications for the use and benefit of
LICENSEE, provided that:
(i) LICENSEE owns and supplies the designs, or specifications, or working
drawings to such third party;
(ii) such designs, specifications, and working drawings are in sufficient
detail that no substantial additional design by such third party is
required;
(iii) such third party is not allowed to sell such Licensed HDR Product to
other third parties; and
(iv) each such Licensed HDR Product sold by LICENSEE shall bear the
trademarks, trade names, or other commercial indicia of LICENSEE,
although such Licensed HDR Products may be co-branded with the
trademarks, trade names, or other commercial indicia of the reseller
or distributor of such Licensed HDR Products. The requirements of this
subparagraph (iv) shall not apply where a customer requires that the
Licensed HDR Product bear only such customer's trademarks, trade
names, or other commercial indicia.
"HDR Air Interface" or "HAI" means the technical description of QUALCOMM's
proposed High Data Rate ("HDR") specification for data communication between
cell sites or other base station transceivers and user data terminals to the
extent adopted as an industry standard by recognized international standards
bodies and other CDMA-based standards which specify the same physical layer as
the HDR specification if approved by QUALCOMM
3
(i.e. QUALCOMM voted in favor of adopting such standard) and adopted by other
international standards bodies throughout the world.
"HDR BTS" means the HDR base station transceiver subsystem, which is wireless
access equipment that provides network transmit and/or receive functionality in
accordance with the HAI to and from HDR Terminals for Wireless Applications. The
HDR BTS is the link between the HDR Terminals and the internet. Included in the
HDR BTS are the antennas, transmitters, receivers, power amplifiers, controllers
and interface hardware to support the link to the internet. The HDR BTS does not
support wireless communications that are not based upon and compliant with the
HAI.
"HDR Channel Unit" or "HDR Infrastructure Modem Card" means any complete field
replaceable HDR BTS module or complete HDR Modem Assembly used to modulate or
demodulate the HDR waveform, process the data and/or perform ancillary functions
related to one or more CDMA channels for communication between an HDR BTS and
HDR Terminals. Examples of CDMA channels include, but are not limited to
traffic, pilot and control channels. HDR Channel Units do not support wireless
communications that are not based upon and compliant with the HAI.
"HDR Components" means application specific integrated circuits (ASICs),
electronic devices, integrated circuits, including firmware thereon, and/or
families of devices for use in Licensed HDR Products for Wireless Applications.
"HDR Enabling Infrastructure Equipment" means any product (including all of the
components, hardware, firmware and/or software contained therein) which performs
any or all of the Functions, irrespective of whether such product was initially
Sold as part of (included within) an HDR BTS, as an addition to existing HDR
BTS's, or for incorporation elsewhere within an HDR network. HDR Enabling
Infrastructure Equipment does not mean HDR Terminals, HDR Components (although
HDR Components may be incorporated into the HDR Enabling Infrastructure
Equipment that is Sold by a Party) or any assembly or subassembly that is not a
field replaceable unit. HDR Enabling Infrastructure Equipment includes, as an
example and not by way of limitation, (i) the HDR controller, (ii) the
Distributed Antenna, and (iii) any subsystem that includes selectors that
support soft and/or hard handoff.
"HDR Modem Assembly" means a complete HDR modem assembly which (i) incorporates
all or any part of QUALCOMM's Intellectual Property, (ii) complies with the HAI,
and (iii) operates solely when incorporated within, mechanically plugged into
and/or cabled to an HDR BTS. The HDR Modem Assembly must contain at a minimum a
complete printed circuit board and all of the circuitry, components and software
thereon, multiple integrated circuit devices, and all of
4
the circuitry necessary for the HDR BTS to perform all of the HDR reverse link
demodulation and HDR forward link modulation, and baseband processing.
"HDR Terminals" means a user data terminal which can be used to initiate and
receive Wireless CDMA data communications transmissions in accordance with the
HAI.
"Included Commercially Necessary IPR" means (1) with respect to the Intellectual
Property Rights being licensed by QUALCOMM, (a) all claims of any patents
(foreign and domestic) which are now issued or which are applied for on or
before [**] (or, in the case of foreign patents or patent applications filed
after [**], have a priority date based on a domestically filed patent
application filed on or before [**]) and which constitute Commercially Necessary
IPR and (b) all copyright, trade secrets, know-how, technical assistance and
other intellectual property rights which constitute Commercially Necessary IPR
and which may be furnished by QUALCOMM to LICENSEE pursuant to and during the
term of this Agreement and (2) with respect to the Intellectual Property Rights
being licensed by Licensee, (a) all claims of any patents (foreign and domestic)
which are now issued or which are applied for on or before [**] (or, in the case
of foreign patents or patent applications filed after [**], have a priority date
based on a domestically filed patent application filed on or before [**]) and
which constitute Commercially Necessary IPR and (b) all copyright, trade
secrets, know-how, technical assistance and other intellectual property rights
which constitute Commercially Necessary IPR and which may be furnished by
LICENSEE to QUALCOMM pursuant to and during the term of this Agreement.
"Intellectual Property Rights" means patents, copyrights, trade secrets,
know-how and other intellectual property rights.
"[**] Patents" means U.S. Patent Nos. [**] and any continuation,
continuation-in-part and divisional application based on such patents, and any
foreign counterparts of such patents, continuations, continuations-in-part or
divisional applications.
"IS-95 Related Systems" means IS-95 and any single carrier system with a
spreading bandwidth not greater than 1.25 MHz and based on or derived from
IS-95.
"Licensed HDR Products" means only the HDR BTS, HDR Channel Units, and HDR
Enabling Infrastructure Equipment.
"LICENSEE" means Airvana, Inc., a Delaware Corporation.
5
"LICENSEE's Intellectual Property" means LICENSEE's and its Affiliates'
Technically Necessary IPR and LICENSEE's and its Affiliates' Included
Commercially Necessary IPR.
"Masks" and "Mask Sets" mean the mask sets for Components and/or the computer
output data used to generate the mask sets for Components.
"Net Selling Price", with respect to each Licensed HDR Product Sold by LICENSEE,
shall mean one of the following, whichever is applicable:
(a) When Sold by LICENSEE to a Purchaser (a "Purchaser" being a person or
entity that does not control LICENSEE, is not controlled by LICENSEE or is not
in common control with LICENSEE; and the term "control" for the above purposes
shall mean the direct or indirect ownership or control of more than a twenty
five percent interest), the Net Selling Price shall be [**];
(b) When Sold by LICENSEE to a person or entity that is not a Purchaser (a
"Related Buyer"), the Net Selling price shall be [**] Related Buyer [**] Related
Buyer of Licensed HDR Products to a Purchaser but in no event less than [**].
(c) When retained by LICENSEE for its own use or lease, or when Sold by
LICENSEE to a Related Buyer for the Related Buyer's own use or lease, the Net
Selling Price shall be [**].
"Party" shall individually mean QUALCOMM or LICENSEE and the term "Parties"
shall collectively mean QUALCOMM and LICENSEE.
"[**]" shall mean [**], a company existing under the laws of [**].
"[**] HDR Technically Necessary Patents" means claims of any patents which [**]
(or any of its Affiliates) own or have the right to license that are essential
or claimed by [**] or any of its Affiliates to be essential to the manufacture,
use or sale of Licensed HDR Products (i.e., must necessarily be infringed upon
in order to comply with the HAI). Notwithstanding anything to the contrary
herein, the term "[**] HDR Technically Necessary Patents" at a minimum includes
U.S. patent numbers: [**], and their foreign counterparts.
"QUALCOMM's Intellectual Property" means QUALCOMM's Technically Necessary IPR
and QUALCOMM's Included Commercially Necessary IPR and [**] Patents; provided
that, notwithstanding the foregoing, the term "QUALCOMM's Intellectual Property"
shall not include any intellectual property, including but not limited to
patents, owned by [**].
6
"Qualifying Licensed HDR Product" means a Licensed HDR Product which contains
and incorporates a CDMA ASIC purchased by LICENSEE from QUALCOMM.
"Selling Price" means the gross selling price and/or value of other
consideration charged by the LICENSEE or its final vendee Related Buyer for each
Licensed HDR Product in the form in which it is Sold (whether or not assembled
and without excluding therefrom any Components or subassemblies thereof which
are included with such Licensed HDR Product) [**]. If Licensed HDR Products are
Sold in combination with other separate and distinct products or services (the
"Other Products"), the Selling Price for such Licensed HDR Products (the
"Combined Licensed HDR Products") shall be the [**] which LICENSEE charged to
Purchasers for Licensed HDR Products (of the same or substantially the same
quality and quantity) that were Sold without being combined with other products
or services in the [**] or in the most recent previous [**] in which Sales were
made. If no such Licensed HDR Products have been Sold to a Purchaser in the same
or any previous [**] to permit the fair determination of an arm's length price
of the Combined Licensed HDR Product, then the Selling Price for such Combined
Licensed HDR Product shall be the Selling Price charged by LICENSEE for such
Combined Licensed HDR Products [**] of the Other Products that LICENSEE can
clearly and convincingly prove were not part of the consideration allocated to
the Sale of the Licensed HDR Product being combined with other products or
services, [**] of the Licensed HDR Product. For the purpose of this definition,
"Sold in combination with" shall mean that two or more separate and distinct
products are sold together for a single price provided that such separate and
distinct products are not physically integrated into a single product.
"Sold," "Sale," "Sell" means put into use, sold, leased or otherwise transferred
and a sale shall be deemed to have occurred upon putting into use, shipment or
invoicing, whichever shall first occur.
"Technically Necessary IPR" means all claims of any patents (foreign and
domestic) issued on, before or after the Effective Date which (i) the Party or
its Affiliates has the right to license to the other Party without payment of
royalties or any other consideration to any third party (except for payments to
the Party or its Affiliates and payments to third persons for the invention or
creation made by such third persons while employed by any of the Party or its
Affiliates) and (ii) is essential to the manufacture, use or sale of a usable
Licensed HDR Product which complies with the specifications of the HAI (i.e.,
must be infringed upon in order to comply with the HAI) and/or Components, but
the term Technically
7
Necessary IPR does not include (a) manufacturing process, (b) semiconductor
structure not specific to Components and (c) any trade name, trademark, service
mark, or similar symbols, abbreviation, contractions or simulations identifying
the Party and its Affiliates.
"Wireless" and "Wireless Applications" means terrestrial-based, land mobile,
wireless data telecommunications applications, including but not limited to
cellular, personal communications services (PCS), wireless local loop and
wireless Wide Area Network (WAN) applications which are based upon and compliant
with the HAI. Notwithstanding the foregoing, the terms "Wireless" and/or
"Wireless Applications" shall not include (i) satellite applications (defined as
any application which utilizes a direct connection between the subscriber unit
and any satellite), and/or (ii) Cordless Telephone Applications (defined as
applications not dependent on use of a switch, including but not limited to a
PABX switch, for interface to the public network).
2. TERM OF AGREEMENT.
This Agreement shall commence upon the Effective Date and, unless otherwise
terminated or canceled as provided herein, shall continue in full force and
effect thereafter.
3. UP-FRONT LICENSE FEE TO QUALCOMM.
In partial consideration of the rights granted to LICENSEE under this
Agreement, LICENSEE shall pay an up-front license fee to QUALCOMM in the amount
of [**] dollars (US$[**]) (the "Up-Front License Fee"). LICENSEE shall pay the
Up-Front License Fee no later than [**] days after the Effective Date.
4. QUALCOMM LICENSE.
4.1 Grant of License From QUALCOMM. Subject to the terms and conditions of
this Agreement, including but not limited to timely payment of the license fees
and royalties set forth herein, QUALCOMM hereby grants to LICENSEE a worldwide,
personal, nontransferable and non-exclusive license (without the right to
sublicense, except to Affiliates of LICENSEE as permitted in Section 4.3) to use
QUALCOMM's Intellectual Property solely for Wireless Applications (a) to make
(and have made) and import, use, sell, lease or otherwise dispose of Licensed
HDR Products and (b) to make (and have made) HDR Components that have been
exclusively designed by or for LICENSEE (which design is owned and used
exclusively by LICENSEE) and import, use, sell, lease or otherwise dispose of
HDR Components; provided, however that such HDR Components may only be used,
sold, leased or otherwise disposed of by LICENSEE if they are included and used,
sold, leased or otherwise disposed
8
of by LICENSEE as part of and within complete Licensed HDR Products of LICENSEE
(or as replacement parts for Licensed HDR Products previously sold by LICENSEE).
No other, further or different license is hereby granted or implied.
4.1.1 [**] Patents. As part of QUALCOMM's Intellectual Property being
licensed under Section 4.1 above, QUALCOMM is granting rights to LICENSEE under
the [**] Patents. Notwithstanding anything to the contrary contained in this
Agreement, the license to LICENSEE under the [**] Patents granted in Section 4.1
may terminate in accordance with the provisions set forth below:
4.1.1.1 If LICENSEE or its Affiliates initiates a CDMA patent
infringement lawsuit against [**] or its affiliates (or their customers)
asserting that any product manufactured and sold by [**] for use in non-IS-95
based wireless applications infringes any of LICENSEE's (or its Affiliates')
patents and LICENSEE (or its Affiliates) does not prevail in such lawsuit, then
the license granted by QUALCOMM to LICENSEE under this Agreement only with
respect to the [**] Patents shall immediately terminate.
4.1.1.2 Licensed HDR Products that Contain QUALCOMM's CDMA ASICs.
Notwithstanding if the license under this Agreement as to the [**] Patents
terminates under Section 4.1.1.1 above, Licensed HDR Products manufactured by
LICENSEE for IS-95 based Wireless Applications, which Licensed HDR Products
incorporate QUALCOMM's CDMA ASICs purchased from QUALCOMM, will be free from
infringement from the [**] Patents.
4.2 Royalties. In partial consideration of the rights granted to Licensee
under the License Agreement, Licensee shall pay to QUALCOMM, no later than [**]
days after the end of each [**] during the term of the License Agreement, an
amount equal to [**] percent ([**]%) of the Net Selling Price for each HDR
Channel Unit or HDR Enabling Infrastructure Equipment that is Sold during [**]
by Licensee and its Affiliates, whether such HDR Channel Unit or HDR Enabling
Infrastructure Equipment is manufactured by Licensee or by third parties.
Notwithstanding the foregoing, with respect to each HDR Channel Unit or HDR
Enabling Infrastructure Equipment that is sold or delivered [**] of the Net
Selling Price of [**] such HDR Channel Unit or HDR Enabling Infrastructure
Equipment. LICENSEE shall not be required to pay royalties on HDR Channel Units
or HDR Enabling Infrastructure Equipment provided at no charge (or other
material consideration) to customers as demonstration or trial units,
9
provided that the total capacity of such demonstration or trial units upon which
LICENSEE does not pay royalties shall not exceed [**] per year.
4.2.1 Royalty Base Evaluation. Upon LICENSEE's written request,
QUALCOMM agrees to hold good faith discussions with LICENSEE to assist LICENSEE
in determining those items Sold by LICENSEE that fall within the definition of
HDR Enabling Infrastructure Equipment.
4.3 Right To Sublicense Affiliates. LICENSEE shall have the right to grant
sublicenses only to Affiliates of LICENSEE with respect to any rights conferred
upon LICENSEE under this Agreement; provided, however, that any such sublicense
shall be subject in all respects to the restrictions, exceptions, royalty and
other payment obligations, reports, termination provisions, and other provisions
contained in this Agreement; provided, however that no additional up-front
license fee shall be required to be paid with respect to any such sublicense.
LICENSEE shall also pay or cause its sublicensed Affiliates to pay the same
royalties on all Licensed HDR Products Sold by its sublicensed Affiliates as if
LICENSEE had Sold such Licensed HDR Products. LICENSEE shall report to QUALCOMM
the Net Selling Price for all Licensed HDR Products Sold by each such Affiliate.
LICENSEE shall be responsible and liable to QUALCOMM in the event that any of
its sublicensed Affiliates fails under any such sublicense to honor and comply
with all obligations of LICENSEE as though said obligations were made expressly
applicable to the sublicensed Affiliate. Except as set forth above, LICENSEE
shall have no right to sublicense any of QUALCOMM's Intellectual Property. Any
sublicense by LICENSEE to an Affiliate of LICENSEE shall terminate immediately
if such Affiliate ceases to be an Affiliate of LICENSEE.
4.4 Taxes. Any taxes, duties or imposts other than income or profits taxes
assessed or imposed upon the sums due hereunder, shall be borne and discharged
by LICENSEE and no part thereof shall be deducted from the amounts payable to
QUALCOMM under any clause of this Agreement, said amounts to be net to QUALCOMM,
free of any and all deductions. Notwithstanding the foregoing, in the event sums
payable under this Agreement become subject to income or profits taxes under the
tax laws of any country and applicable treaties between the United States and
such country, LICENSEE may, if and to the extent required by law, withhold from
each payment the amount of said income or profits taxes due and required to be
withheld [**] of each payment. LICENSEE will furnish and make available to
QUALCOMM relevant receipts regarding the payment of any country taxes paid over
to any country's government on behalf of QUALCOMM. Such tax receipts will
clearly indicate the amounts that have been withheld from the gross amounts due
to QUALCOMM. Any and all other taxes, levies, charges or fees will be paid by
LICENSEE for its own account.
10
4.5 Conversion to U.S. Dollars. Royalties shall be paid in U.S. dollars. To
the extent that the Net Selling Price for Licensed HDR Products Sold by LICENSEE
outside of the United States is paid to LICENSEE other than in U.S. dollars,
LICENSEE shall convert the portion of the royalty payable to QUALCOMM from such
Net Selling Price into U.S. dollars at the official rate of exchange of the
currency of the country from which the Net Selling Price was paid, as quoted by
the U.S. Wall Street Journal (or the Chase Manhattan Bank or another agreed-upon
source if not quoted in the Wall Street Journal) for the last business day of
the calendar quarter in which such Licensed HDR Products were Sold. If the
transfer of or the conversion into U.S. dollars is not lawful or possible, the
payment of such part of the royalties as is necessary shall be made by the
deposit thereof, in the currency of the country where the sale was made on which
the royalty was based to the credit and account of QUALCOMM or its nominee in
any commercial bank or trust company of QUALCOMM's choice located in that
country, prompt notice of which shall be given by LICENSEE to QUALCOMM.
4.6 [**] Covenant Not to Assert. QUALCOMM hereby represents and warrants
that [**], on behalf of itself and its Affiliates, covenants that [**] and its
Affiliates will not assert any of the [**] HDR Technically Necessary Patents
against LICENSEE's (or, if sublicensed in accordance with Section 4.3 of this
Agreement, LICENSEE's Affiliates') manufacture, use, sale, or importation of
Qualifying Licensed HDR Products solely for Wireless Applications; provided,
however, that [**] and/or its Affiliates may assert the [**]' HDR Technically
Necessary Patents against LICENSEE if LICENSEE asserts any of its patents
against [**] or its Affiliates and any of their telephone products or if
LICENSEE initiates a declaratory judgment action, reexamination proceedings or
opposition proceedings challenging the validity of any of the [**] HDR
Technically Necessary Patents. Nothing in this Section 4.6 shall prohibit, limit
or covenant against [**] rights to assert any of its patents against LICENSEE or
its Affiliates for infringement relating to any time division multiple access
(TDMA) equipment or system (including, without limitation, [**]).
4.7 [**] Patents.
4.7.1 [**] Patents Sublicensed. The term "[**] Patents" means all of
the following patents which are owned or sublicenseable by [**] without payment
of any royalty or other consideration to a third party: (a) [**] patents which,
but for the sublicenses granted under Section 4.7.2 below, would be infringed by
the use of QUALCOMM's CDMA ASICs for their intended purposes (the "[**] ASIC
Patents"), and (b) [**] Essential Patents which are, or are claimed by [**] to
be, essential to IS-95 Rev A or Rev B, whether or not such Essential Patents are
infringed by the use of QUALCOMM's CDMA ASICs (the
11
"Other [**] Patents"). For example, by incorporating QUALCOMM's existing (as of
the Effective Date) CDMA ASIC into a Licensed HDR Product Sold by LICENSEE, the
[**] Patents sublicensed to LICENSEE would include, but not necessarily be
limited to all of the following patents that [**] asserted against QUALCOMM in
litigation: U.S. Patent Nos. [**], and their foreign counterparts, reissuances,
divisionals, continuations and continuations in part.
The term "Essential Patents" means those patents (in any country of the
world) as to which it is, or is claimed by the patent owner to be, not possible
on technical (but not commercial) grounds, taking into account normal technical
practice and the state of the art generally available at the time of adoption or
publication of the relevant standard for CDMA Applications, to make, sell,
lease, otherwise dispose of, repair, use or operate equipment or methods which
comply with such standard without infringing such patent.
4.7.2 Sublicense Under [**] Patents. The following sublicense is
granted subject to the terms and conditions of this Agreement (including but not
limited to the payment of royalties hereunder in accordance with Section 4.2)
and Section 4.7.3 below: With respect only to those Licensed HDR Products Sold
by LICENSEE and its Affiliates that contain QUALCOMM's CDMA ASIC, QUALCOMM
hereby grants to LICENSEE a sublicense under all of the [**] ASIC Patents solely
for CDMA Applications and under all of the Other [**] Patents solely for IS-95
Related Systems to make (and Have Made), use, sell, offer for sale, lease or
otherwise dispose of, and import Licensed HDR Products into which QUALCOMM's
CDMA ASIC is incorporated. Notwithstanding the foregoing, no right or sublicense
is being granted for or may be extended under patents that apply to the portion
of any product that implements an air interface other than CDMA or analog (e.g.,
no rights and sublicenses are granted for or may be extended under patents that
apply to the GSM part of any product).
4.7.3 Non-Assertion Against [**]. The sublicense granted to LICENSEE
under Section 4.7.2 above shall continue only so long as LICENSEE and its
Affiliates do not assert, either in litigation or by a direct communication, any
Essential Patents for CDMA Applications against [**] CDMA subscriber,
infrastructure or test equipment products and LICENSEE does not dismiss such
litigation or withdraw such assertion or offer a royalty-free license under such
patents within [**] days after QUALCOMM's receipt of notice from [**] of such
litigation or communication.
4.8 Option to Obtain Infrastructure Equipment License. No later than [**]
months from the Effective Date, LICENSEE, at its option, may elect to obtain
from QUALCOMM an infrastructure equipment license on terms and conditions set
forth in the "Infrastructure Equipment License Agreement," a copy of which is
attached hereto as Exhibit B and incorporated herein by reference.
12
4.9 [**] Royalty Rate. If LICENSEE exercises the option set forth in
Section 4.8 of this Agreement, then beginning on the effective date of such
exercise and subject to the limited exceptions set forth below, if QUALCOMM
grants a license to a third party to manufacture and sell Licensed HDR Products
[**] under the terms and conditions of Section 4.2, and, which license will
permit such third party to manufacture and sell Licensed HDR Products for use
within Wireless Applications, QUALCOMM shall (i) promptly notify LICENSEE of the
[**], and (ii) extend to LICENSEE [**] and, at [**]. If LICENSEE intends to
accept such [**] rates, LICENSEE shall have up to [**] days after the date of
such notice to notify QUALCOMM that it accepts a license from QUALCOMM on such
[**], provided that LICENSEE must also, at QUALCOMM's request, accept and be
bound by all other material terms and conditions granted by QUALCOMM [**].
The above paragraph shall not apply with respect to (i) [**] of LICENSEE's
exercise of the option set forth in Section 4.8 of this Agreement, (ii) any
license granted by QUALCOMM to its Affiliates or (iii) any license granted by
QUALCOMM, [**] for which consists in whole or in part of patent rights or other
rights of such substantial value as, in the reasonable judgment of QUALCOMM, to
warrant (a) [**] provided in this Agreement, or (b) [**]. This Section 4.9 shall
not apply retroactively, nor shall it be construed as entitling LICENSEE to [**]
the grant of such third party license to such other licensee.
5. LICENSE BY LICENSEE
5.1 Grant of License from LICENSEE. Subject to the terms and conditions of
this Agreement, LICENSEE hereby grants to QUALCOMM a worldwide, personal,
nontransferable, non-exclusive, fully-paid, irrevocable and royalty free license
(without the right to sublicense, except to Affiliates of QUALCOMM as permitted
in Section 5.2) to use LICENSEE's Intellectual Property (a) to make (and have
made) and import, use, sell, lease or otherwise dispose of Licensed HDR Products
solely for Wireless Applications and (b) to make (and have made) Components that
have been exclusively designed by or for QUALCOMM (which design is owned and
used exclusively for QUALCOMM) and import, use, sell, lease or otherwise dispose
of Components. No other, further or different license is hereby granted or
implied.
5.2 Right To Sublicense Affiliates. QUALCOMM shall have the right to grant
sublicenses only to Affiliates of QUALCOMM with respect to any rights conferred
upon QUALCOMM under this Agreement; provided, however, that any such sublicense
shall be subject in all respects to the restrictions, exceptions, termination
provisions, and other provisions contained in this Agreement. QUALCOMM, in
addition to its sublicensed Affiliates, shall be responsible and liable to
LICENSEE in the event that any of its sublicensed Affiliates fails under any
such sublicense to honor and comply with all obligations of QUALCOMM as
13
though said obligations were made expressly applicable to the sublicensed
Affiliate. Except as set forth above, QUALCOMM shall have no right to sublicense
any of LICENSEE's Intellectual Property. Any sublicense by QUALCOMM to an
Affiliate of QUALCOMM shall terminate immediately if such Affiliate ceases to be
an Affiliate of QUALCOMM.
5.3 License Of Future Commercially Necessary IPR. Each Party agrees that,
to the extent it makes licenses of Future Commercially Necessary IPR generally
available to third parties, it will, if requested by the other Party, offer such
licenses to the other Party on commercially reasonable terms and conditions.
5.4 No LICENSEE Deliverables. Except as expressly provided for in this
Agreement, LICENSEE shall have no obligation to disclose any LICENSEE
Intellectual Property, know-how, trade secrets or other technology to QUALCOMM,
to Affiliates of QUALCOMM or to any third party.
6. COMMITMENT BY LICENSEE
6.1 Covenant Not to Assert. LICENSEE hereby covenants that neither it nor
its Affiliates will assert any of LICENSEE's Technically Necessary IPR against
any of QUALCOMM's other HDR infrastructure equipment licensees and their
Affiliates (collectively, the "Authorized Licensees") with respect to such
Authorized Licensee's use of any of LICENSEE's Technically Necessary IPR to
make, use and sell HDR infrastructure equipment and/or HDR Components solely for
Wireless Applications, provided that such Authorized Licensee has agreed with
QUALCOMM to an equivalent undertaking not to assert claims against LICENSEE and
its Affiliates. LICENSEE does not by this Section 6.1 agree, on behalf of itself
or its Affiliates, to waive its rights to assert any of LICENSEE's Commercially
Necessary IPR against any Authorized Licensee with respect to such Authorized
Licensee's use of any of LICENSEE's Commercially Necessary IPR. Any Authorized
Licensee that has agreed with QUALCOMM to an equivalent undertaking not to
assert claims shall be regarded as a third party beneficiary of this Section
6.1. QUALCOMM will promptly notify LICENSEE of any Authorized Licensees that
have agreed to such an equivalent undertaking.
6.2 License to Third Parties. The parties agree that it is in the interest
of each of the Parties and of the Wireless industry to obtain the widest
possible acceptance of the final HAI. Accordingly, LICENSEE agrees to negotiate
in good faith to promptly grant to Authorized Licensees which do not meet the
requirements of Section 6.1 a license to use all of LICENSEE's Technically
Necessary IPR to make, use and sell HDR infrastructure equipment and HDR
Components for Wireless Applications. Each such license shall be granted at
reasonable rates and otherwise on reasonable terms and conditions consistent
14
with LICENSEE's licensing policies, which may include that such third party
grant a cross-license to LICENSEE of technically necessary intellectual property
rights owned by such third party.
6.3 Commercial Efforts. LICENSEE shall use commercially reasonable efforts
to market, promote and sell Licensed HDR Products throughout the world.
7. MARKING
LICENSEE agrees to affix to the exterior or the interior of all Licensed
HDR Products incorporating any of QUALCOMM's Intellectual Property a legible
notice reading: "Licensed by QUALCOMM Incorporated under one or more of the
following Patents," followed by a list of applicable patent numbers taken from
the list of QUALCOMM's patents or as may otherwise be instructed by QUALCOMM.
8. QUALITY CONTROL
8.1 General Quality of Licensed HDR Products. Throughout the term of this
Agreement, LICENSEE shall maintain, for the Licensed HDR Products manufactured
or Sold by it, at least the same manufacturing, servicing and quality standards
currently utilized by LICENSEE in connection with its similar analog and, if
applicable, other digital products.
8.2 Standards Compliance Testing. LICENSEE represents and warrants that the
Licensed HDR Products and HDR Components that it makes or has made will adhere
with and conform to, in all respects, the specifications contained in the HAI
and that LICENSEE shall comply with the rules, regulations or other requirements
set by such authorized standards body. LICENSEE shall, at QUALCOMM's reasonable
written request, permit QUALCOMM or entities designated by QUALCOMM and accepted
by LICENSEE, which acceptance shall not be unreasonably withheld or delayed, to
perform tests of Licensed HDR Products being marketed by LICENSEE to ensure
compliance and conformity with the HAI. If such tests indicate material
noncompliance or nonconformity therewith, such tests shall be at LICENSEE's cost
and LICENSEE shall reimburse QUALCOMM for any such reasonable tests performed by
QUALCOMM at [**]. If such test does not indicate material noncompliance or
nonconformity, the test shall be at [**]. Nonconforming Licensed HDR Products,
if any, shall not be sold or marketed by LICENSEE until the non-conformity is
corrected.
15
9. INFORMATION
9.1 Restrictions on Disclosure and Use. All documentation and technical and
business information and intellectual property in whatever form recorded that a
Party does not wish to disclose without restriction ("Information") shall remain
the property of the furnishing Party and may be used by the receiving Party only
as follows. Such Information (a) shall not be reproduced or copied, in whole or
part, except for use as expressly authorized in this Agreement; and (b) shall,
together with any full or partial copies thereof, be returned or destroyed when
no longer needed or upon any termination of this Agreement, and (c) shall be
disclosed only to employees or agents of a Party with a need to know. Moreover,
such Information shall be used by the receiving Party only for the purpose of
performing under this Agreement or in the exercise of its rights it may receive
under the provisions of this Agreement. Unless the furnishing Party consents in
this Agreement or otherwise in writing, such Information shall be held in strict
confidence by the receiving Party. The receiving Party may disclose such
Information to other persons, upon the furnishing Party's prior written
authorization, but solely to perform acts which this clause expressly authorizes
the receiving Party to perform itself and further provided such other person
agrees in writing (a copy of which writing will be provided to the furnishing
Party at its request) to the same conditions respecting use of Information
contained in this clause and to any other reasonable conditions requested by the
furnishing Party. These restrictions on the use or disclosure of Information
shall not apply to any Information: (i) which can be proven to be or have been
independently developed by the receiving Party or lawfully received free of
restriction from another source having the right to so furnish such Information;
or (ii) after it has become generally available to the public without breach of
this Agreement by the receiving Party; or (iii) which at the time of disclosure
to the receiving Party was known to such Party free of restriction and clearly
evidenced by documentation in such Party's possession; or (iv) which the
disclosing Party agrees in writing is free of such restrictions.
9.2 Scope of Information. Information is subject to this Section 9 whether
delivered orally or in tangible form and without regard to whether it has been
identified or marked as confidential or otherwise subject to this Section 9.
Each Party agrees to use its best efforts to mark or otherwise identify
proprietary all Information they desire to be subject to the terms of this
clause before furnishing it to the other Party. And, upon request, a Party shall
promptly identify whether specified information must be held by the requesting
Party subject to this clause. Information which is delivered orally may be
summarized in writing by the disclosing Party and delivered to the receiving
Party within [**] days after disclosure thereof.
16
9.3 Furnishing Information to Third Parties. Nothing herein shall be deemed
to bar disclosure of Information by a receiving Party to third party
subcontractors, prospective customers or Affiliates of the receiving Party with
a need to know, without the written consent of the furnishing Party, if such
disclosure is reasonably necessary for enjoyment of the receiving Party's rights
to use Intellectual Property Rights licensed under this Agreement, and provided
that each such third party agrees in writing to protect the Information under
terms and conditions comparable, in all material respects, to the terms
contained in this Section 9 and Section 17 with respect to survivability.
10. WARRANTY/ DISCLAIMER/ LIMITATION OF LIABILITY.
10.1 QUALCOMM Warranty. QUALCOMM represents and warrants that it has the
right to enter into this Agreement with LICENSEE and that it has the right to
grant the licenses granted hereunder.
10.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY WARRANTIES IN THIS AGREEMENT AS TO PRODUCTS, TECHNOLOGY,
MATERIALS, SERVICES, INFORMATION OR OTHER ITEMS IT FURNISHES TO THE OTHER PARTY,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT SUCH ITEMS ARE FREE FROM THE
RIGHTFUL CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OR THE LIKE.
10.3 Limitation of Liability. EXCEPT IN THE CASE OF A BREACH OF SECTION 9
OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL OR ANY OTHER INDIRECT LOSS OR DAMAGE ARISING OUT OF
THIS AGREEMENT OR ANY RESULTING OBLIGATION OR THE USE OF ANY INTELLECTUAL
PROPERTY RECEIVED HEREUNDER, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH
OF CONTRACT, FOR TORT, OR ANY OTHER CAUSE OF ACTION. EACH PARTY SHALL BE
PERMITTED TO ENJOIN THE UNAUTHORIZED USE BY THE OTHER PARTY OR ITS AFFILIATES OF
ANY OF THE PARTY'S INFORMATION.
10.4 Negation of Representation and Warranties. Nothing contained in this
Agreement shall be construed as (a) requiring the filing of any patent
application, the securing of any patent or the maintaining of any patent in
force; (b) a warranty or representation by either Party as to the validity or
scope of any patent, copyright or other intellectual property right; (c) a
warranty or representation that any manufacture, sale, lease, use or importation
will be free from infringement of patents, copyrights or other intellectual
property rights of others, and it shall be the sole responsibility of LICENSEE
to make such
17
determination as is necessary with respect to the acquisition of licenses under
patents and other intellectual property of third parties; (d) an agreement to
bring or prosecute actions or suits against third parties for infringement; (e)
an obligation to furnish any manufacturing assistance; or (f) conferring any
right to use, in advertising, publicity or otherwise, any name, trade name or
trademark, or any contraction, abbreviation or simulation thereof (other than as
set forth in Section 7).
11. INDEMNITY FOR DAMAGE TO PERSONS, PROPERTY OR BUSINESS
11.1 Indemnification by LICENSEE. LICENSEE shall indemnify, defend and hold
QUALCOMM harmless from, any and all claims, judgments, liabilities, costs and
expenses (including attorneys' fees) arising out of or related, directly or
indirectly, to any injury, loss or damage to persons, property or business
arising from, relating to, or in any way connected with, any Licensed HDR
Products or Components which LICENSEE or its Affiliates manufactures or has
manufactured and sells to a third party or its Affiliate. LICENSEE agrees to
indemnify and hold harmless QUALCOMM against all liability or responsibility of
LICENSEE or of others for any failure attributable to LICENSEE in production,
design, operation or otherwise of products manufactured by or on behalf of
LICENSEE and Sold to third parties, except if such liability or responsibility
is due to infringement claims with respect to QUALCOMM's Intellectual Property.
11.2 Indemnification by QUALCOMM. QUALCOMM shall indemnify, defend and hold
LICENSEE harmless from, any and all claims, judgments, liabilities, costs and
expenses (including attorneys' fees) arising out of or related, directly or
indirectly, to any injury, loss or damage to persons, property or business
arising from, relating to, or in any way connected with, any Licensed HDR
Products or Components which QUALCOMM or its Affiliates manufactures or has
manufactured and sells to a third party or its Affiliate. QUALCOMM agrees to
indemnify and hold harmless LICENSEE against all liability or responsibility of
QUALCOMM or of others for any failure attributable to QUALCOMM in production,
design, operation or otherwise of products manufactured by or on behalf of
QUALCOMM and Sold to third parties, except if such liability or responsibility
is due to infringement claims with respect to LICENSEE's Intellectual Property.
11.3 Notice, Defense and Cooperation. The party seeking indemnification
under Section 11.1 or 11.2 above shall provide the indemnifying party with
prompt notice of any claim within such provisions, shall give the indemnifying
party the full right to defend any such claim and shall cooperate fully in such
defense.
18
12. TERMINATION
12.1 Termination Without Cause by LICENSEE. LICENSEE may for any reason, at
any time when it is not using any of QUALCOMM's Intellectual Property, terminate
this Agreement upon ninety (90) days' prior written notice to QUALCOMM; provided
that all license fees and royalties which have accrued under the terms of the
Agreement shall be due and owing and all such amounts and all previous amounts
paid are and shall remain non-refundable. In the event of any such termination,
the license granted by LICENSEE to QUALCOMM in Section 5.1 and 5.2 shall
survive.
12.2 Termination For Cause by QUALCOMM. QUALCOMM may terminate this
Agreement, by written notice to LICENSEE, if LICENSEE shall at any time default
in the payment hereunder or the making of any report hereunder, or shall commit
any material breach of any covenant, representation, warranty or agreement
herein contained, or shall make any false report to QUALCOMM; provided, however,
that in the case of any such breach which is capable of being cured, QUALCOMM
shall not have a right to terminate this Agreement for cause unless and until
LICENSEE shall have failed to remedy any such default, breach or report within
[**] days after written notice thereof by QUALCOMM. LICENSEE shall be able to
effectuate such cure with respect to a default in the payment of any royalty
hereunder no more than three times during the term of this Agreement. Upon
termination of this Agreement for cause, LICENSEE shall duly account to QUALCOMM
for all royalties and other payments within ten days of such termination.
12.3 Termination for Cause by LICENSEE. LICENSEE may terminate this
Agreement, by written notice to QUALCOMM, if QUALCOMM shall at any time commit
any material breach of any material covenant, representation, warranty or
agreement herein contained; provided, however, that in the case of any such
breach which is capable of being cured, LICENSEE shall not have a right to
terminate this Agreement for cause unless and until QUALCOMM shall have failed
to remedy any such material breach within [**] days after receipt by QUALCOMM of
written notice thereof by LICENSEE.
12.4 Bankruptcy, Dissolution or Liquidation. Either Party shall also have
the right to terminate this Agreement with immediate effect by giving written
notice of termination to the other Party at any time upon or before sixty (60)
days after the occurrence of any of the following events with respect to such
other Party (unless such event ceases within such period): (a) insolvency,
bankruptcy or liquidation or filing of any application therefor, or other
commitment of an affirmative act of insolvency; (b) attachment, execution or
seizure of substantially all of the assets or filing of any application
therefor; (c) assignment or transfer of that portion of the business to which
this Agreement
19
pertains to a trustee for the benefit of creditors; (d) disposition, by sale or
assignment of all of its rights, of that portion of the business or the material
assets to which this Agreement pertains in violation of Section 14 of this
Agreement; or (e) termination of its business or dissolution.
12.5 Termination of Agreement in the Event of Litigation. The license from
QUALCOMM to Licensee shall terminate in the event that LICENSEE initiates any
litigation against QUALCOMM or its Affiliates which includes any claim for
intellectual property infringement and LICENSEE does not prevail on all such
intellectual property infringement claims.
12.6 Rights Upon Termination. Upon any expiration or termination of this
Agreement, whether for cause or not, all licenses granted hereunder shall also
terminate (except as expressly stated in Section 12.1), and each Party shall
immediately (i) cease using any of the other Party's Intellectual Property
Rights and (ii) return or destroy all information and documentation furnished by
the other Party to such Party. Any termination or expiration of this Agreement
under this Section 12 shall not relieve LICENSEE from its obligation under
Section 13 hereof to make a report or from its liability for payment of
royalties on Licensed HDR Products Sold on or prior to the date of such
termination or expiration and shall not prejudice the right to recover any
royalties or other sums due or accrued at the time of such termination or
expiration and shall not prejudice any cause of action or claim accrued or to
accrue on account of any breach or default. Furthermore, any termination or
expiration of this Agreement under this Section shall not prejudice the right of
QUALCOMM to conduct a final audit of the records of the LICENSEE in accordance
with the provisions of Section 13 hereof. No termination hereunder shall limit
the rights of a Party to sell those Licensed HDR Products in inventory or in
process at the time of termination, subject to payment of the royalty applicable
to the sale of such Licensed HDR Products and continued compliance with the
other provisions of this Agreement.
13. RECORDS AND AUDITS.
13.1 Records. LICENSEE shall keep accurate and complete books and records
concerning any Licensed HDR Products it may sell under this Agreement. As
applicable, such books and records shall include the date of transaction
involving sales of Licensed HDR Products, including the number of items Sold.
LICENSEE shall require in its agreements with sublicensees that each sublicensee
agree to record keeping and audits substantially the same as described in this
Section 13. LICENSEE hereby agrees to cause its sublicensees to provide to
LICENSEE the records and supporting information sufficient to evidence the
accuracy of the royalty report to be submitted to QUALCOMM. Such records
(together with all supporting information) shall be included in the
20
records described herein and subject to audit by QUALCOMM as provided in this
Section. LICENSEE's agreements with its sublicensees shall expressly state that
QUALCOMM shall be able to enforce rights under Section 13.2 below directly
against any such sublicensee. LICENSEE shall furnish QUALCOMM within [**] days
after the end of each [**] a certificate, in the form attached hereto as Exhibit
A, signed by a responsible official of LICENSEE showing the transactions and
corresponding amounts during said [**] and any other information as may be
reasonably requested by QUALCOMM.
13.2 Audits. QUALCOMM may, no more than once each calendar year, cause its
independent public accounting firm to conduct an audit on reasonable notice of
LICENSEE's applicable books and records and sublicensee's records and its
supporting information obtained under Section 13.1 above to confirm the royalty
paid or to be paid to QUALCOMM in accordance with the terms and conditions set
forth in Section 4.2 above. The cost of such audit shall be borne by QUALCOMM,
unless such audit determines that the LICENSEE has underpaid the royalties due
hereunder by the lesser of (a) more than five percent (5%) or (b) [**]; in which
case, LICENSEE shall, in addition to paying the deficiency plus late payment
charges, pay the cost of such audit. LICENSEE shall preserve and maintain all
such books and records required for audit for a period of [**] years after the
[**] for which the books and records apply (but not more than [**] years after
any termination of this Agreement). All information acquired by QUALCOMM from
such audit shall be considered Information subject to the terms and conditions
of Section 9.
14. ASSIGNMENT.
Except as provided in this clause, LICENSEE shall not assign this Agreement
or any right or interest under this Agreement, nor delegate any obligation to be
performed under this Agreement (an "assignment"), without QUALCOMM's prior
written consent, which consent shall be at QUALCOMM's sole discretion, provided,
however, that such consent shall not be unreasonably withheld in the case that
such assignment or delegation is to a party deemed by QUALCOMM not to be in an
actual or potential dispute with QUALCOMM. For purposes of this Agreement, an
"assignment" by LICENSEE under this Section shall be deemed to include, without
limitation, the following: (a) a change in the beneficial ownership of LICENSEE
of greater than fifty percent (50%) (whether in a single transaction or a series
of transactions) if LICENSEE is a partnership, trust, limited liability company
or other like entity; (b) the acquisition of more than fifty percent (50%) of
any class of LICENSEE's voting stock (or any class of non-voting security
convertible into voting stock) by another party (whether in a single transaction
or series of transactions); or (c) the sale of more than fifty percent (50%) of
LICENSEE's assets (whether in a single
21
transaction or series of transactions). Any attempted assignment in
contravention of this Section 14 shall be void and ineffective.
15. COMPLIANCE WITH U.S. REGULATIONS.
Nothing contained in this Agreement shall require or permit LICENSEE or
QUALCOMM to do any act inconsistent with the requirements of (a) the regulations
of the United States Department of Commerce, or (b) the foreign assets controls
or foreign transactions controls regulations of the United States Treasury
Department, or (c) of any similar United States law, regulation or executive
order as the same may be in effect from time to time. To enable QUALCOMM to
export QUALCOMM's Intellectual Property or technical data to LICENSEE in
compliance with the requirements of the Export Administration Regulations (EAR),
LICENSEE hereby gives its assurance to QUALCOMM that LICENSEE will not re-export
or otherwise disclose, directly or indirectly, any of QUALCOMM's Intellectual
Property or "technical data" received from QUALCOMM, nor allow the direct
product thereof to be shipped directly or indirectly to any of the countries set
forth in this Section 15, unless permitted by U.S. law in effect at the time of
such export. To enable LICENSEE to export LICENSEE's Information or other
technical data to QUALCOMM in compliance with the requirements of the EAR,
QUALCOMM hereby gives its assurance to LICENSEE that QUALCOMM will not re-export
or otherwise disclose, directly or indirectly, any of LICENSEE's Information or
technical data received from LICENSEE, nor allow the direct product thereof to
be shipped directly or indirectly to any of the countries set forth below in
this Section 15, unless permitted by U.S. law in effect at the time of such
export:
Albania
Afghanistan
Angola
Armenia
Azerbaijan
Belarus
Bulgaria
Cambodia
Cuba
Estonia
Federal Republic of Yugoslavia (Serbia only)
Georgia
Iran
Iraq
Kazakhstan
Kyrgystan
Laos
Latvia
Libya
Lithuania
Macau
Moldova
Mongolia
North Korea
People's Republic Of China
Romania
Russia
Sudan
Syria
Tajikistan
Turkmenistan
Ukraine
Uzbekistan
Vietnam
22
Each Party agrees that no products, proprietary data, know-how, software, or
other information received from the other Party will be directly employed in
missile technology, sensitive nuclear, or chemical biological weapons end uses
or by such end users. The foregoing obligations are U.S. legal requirements, and
therefore, such obligations shall survive any termination of this Agreement.
16. PUBLICITY.
Except as provided in Section 21 of this Agreement, each Party (the
"Publishing Party") shall submit to the other Party proposed copy of all
advertising wherein the name, trademark, code, specification or service mark of
the other Party is mentioned; and the Publishing Party shall not publish or use
such advertising without the other Party's prior written approval. Such approval
shall be granted or withheld as promptly as possible (usually within [**] days),
and may be withheld only for good cause. No license is granted by LICENSEE to
QUALCOMM hereunder with respect to LICENSEE's or its Affiliates' trade name,
trademark, code, specification or service mark. No license is granted by
QUALCOMM to LICENSEE hereunder with respect to QUALCOMM's or its Affiliates'
trade name, trademark, code, specification or service mark.
17. SURVIVAL OF OBLIGATIONS.
The Parties' rights and obligations which, by their nature, would continue
beyond the termination, cancellation, or expiration of this Agreement, including
but not limited to those rights and obligations of the parties set forth in
Section 9 entitled "INFORMATION," shall survive such termination, cancellation,
or expiration.
18. SEVERABILITY.
If any provision in this Agreement shall be held to be invalid or
unenforceable, the remaining portions shall remain in effect. In the event such
invalid or unenforceable provision is considered an essential element of this
Agreement, the Parties shall promptly negotiate a replacement provision.
19. NON-WAIVER.
No waiver of the terms and conditions of this Agreement, or the failure of
either Party strictly to enforce any such term or condition on one or more
occasions shall be construed as a waiver of the same or of any other term or
condition of this Agreement on any other occasion.
23
20. NOTICES.
All notices, requests, demands, consents, agreements and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be mailed to the Party to whom notice is to be given, by
facsimile, and confirmed by first class mail, postage prepaid, and properly
addressed as follow (in which case such notice shall be deemed to have been duly
given on the day the notice is first received by the Party):
QUALCOMM Incorporated Airvana, Inc.
5775 Morehouse Drive 42 Nagog Park
San Diego, CA 92121-1714 Acton, MA 01720
Facsimile No.: (858) 658-2500 Facsimile No.: 978-263-9443
Telephone No.: (858) 587-1121 Telephone No.: 978-263-9440, x4030
Attn: President Attn: Randy Battat, President & CEO
with a copy to: with a copy to:
General Counsel Michael Bevilacqua
Hale and Dorr
60 State Street
Boston, MA 02109
Tel: 617-526-6448
Fax: 617-526-5000
The above addresses can be changed by providing notice to the other Party
in accordance with this Section.
21. PUBLICATION OF AGREEMENT.
The Parties agree to keep the existence of this Agreement and the fact that
LICENSEE is a QUALCOMM licensee confidential until the earlier of the first
commercial shipment of a Licensed HDR Product by LICENSEE, the mutual written
consent of both parties to an earlier announcement or the date one year after
the Effective Date (the "Publication Date"). Except as may otherwise be required
by law or as reasonably necessary for performance hereunder, each Party shall
keep this Agreement and its provisions confidential and shall not disclose this
Agreement or its provisions without first obtaining the written consent of the
other Party, which consent shall not be unreasonably withheld. After the
Publication Date, the confidentiality obligations hereunder do not apply to the
existence of this Agreement or the fact that QUALCOMM and LICENSEE has executed
this Agreement, but do apply to the terms and conditions of this Agreement. Any
press release or other announcement by either Party concerning the entering into
of this Agreement shall be subject to the
24
prior written approval of other Party, which approval shall not be unreasonably
withheld. In case a press release or other public announcement to the effect of
the Parties' entering into of this Agreement is issued by either Party pursuant
to the preceding sentence, (i) QUALCOMM may thereafter make a press release or
other public announcement to the effect that LICENSEE is one of QUALCOMM's
licensees for Licensed HDR Products without prior written approval of LICENSEE
and (ii) LICENSEE may thereafter make a press release or other public
announcement to the effect that LICENSEE is licensed by QUALCOMM for Licensed
HDR Products without prior written approval of QUALCOMM.
22. APPLICABLE LAW; VENUE.
This Agreement is made and entered into in the State of California and
shall be governed by and construed and enforced in accordance with the laws of
the State of California without regard to conflict of laws principles. Any
dispute, claim or controversy arising out of or relating to this Agreement, or
the breach or validity hereof, except for those disputes expressly addressed in
Section 23 hereof, shall be adjudicated only by a court of competent
jurisdiction in the county of San Diego, State of California.
23. DISPUTES RELATING TO FOREIGN PATENTS.
Any controversy, claim or dispute (separately or collectively, the
"Dispute") as to whether a product manufactured and/or sold by LICENSEE outside
the United States would, but for the license granted hereunder, infringe any
foreign patent of QUALCOMM licensed hereunder and therefore is subject to
royalties hereunder, shall be resolved in accordance with the procedures
specified in this Section 23 which shall be the sole and exclusive procedures
for the resolution of any such Dispute.
The Parties will attempt in good faith to resolve promptly any Dispute by
negotiations between senior executives of the Parties who have the authority to
settle the Dispute. If the Dispute is not resolved within [**] days of a party's
written request for negotiation, either party may initiate arbitration as
hereinafter provided.
A Party desiring to commence arbitration shall provide written notice to
the other Party setting forth the Dispute(s) to be arbitrated. Within [**] days
of receipt of such written notice, the Parties will attempt in good faith to
reach agreement on an impartial arbitrator having as nearly as practicable the
following qualifications in order of importance: (1) at least ten years
experience in patent litigation, including substantial participation in at least
two patent trials, and/or ten years experience in patent prosecution in the
telecommunications field and/or at least three years experience as a Federal
Court of Appeals or District Court Judge, (2) expertise in the field of digital
25
spread spectrum communications as applied to the telecommunications industry,
and (3) some familiarity with the patent laws of the country or countries at
issue in the Dispute. In the event the Parties are unable to agree upon an
arbitrator within [**] days of the above written notice, the arbitrator shall be
selected by Judicial Arbitration and Mediation Service/Endispute, Inc. (or some
similar company if the Judicial Arbitration and Mediation Service/Endispute,
Inc. is not available). The selected arbitrator shall be impartial and shall
have, as nearly as practicable, the qualifications set forth above. The Parties
will share equally the fees and expenses of the arbitrator.
The arbitration hearing shall commence in San Diego within [**] days of the
appointment of the arbitrator. The Parties shall be entitled to conduct
discovery prior to the arbitration hearing in accordance with Federal Rules of
Civil Procedure, subject to any limitations ordered by the arbitrator.
The arbitration hearing shall be conducted in accordance with the Federal
Rules of Civil Procedure and the Federal Rules of Evidence or such other
procedures and rules set by the arbitrator. The arbitrator shall be authorized
and empowered only to rule as to whether products manufactured and/or Sold by
LICENSEE in a foreign country or countries would, but for the license granted
hereunder, infringe any claim of the applicable foreign patent(s) of QUALCOMM,
and if so, the amount of the royalties owed by LICENSEE as to such product(s)
under Section 4.2 of this Agreement. The arbitrator shall award attorneys' fees
and costs to the prevailing Party. The arbitrator shall have no authority to
determine whether or not any product(s) of LICENSEE imported into or
manufactured and/or Sold in the United States is subject to the payment of
royalties under this Agreement or to determine any other issue except those
expressly set forth above. The arbitrator shall have no authority to make any
finding or award as to the validity or enforceability of any patent.
The final award of the arbitrator shall be rendered in writing and signed
by the arbitrator. The final award shall be entered within [**] days of the
commencement of the arbitration hearing. Each Party agrees to abide by the
arbitration award, and to the enforcement of the arbitration award in the United
States. Each Party further agrees that judgment may be entered upon the award in
any court of competent jurisdiction in the United States.
24. LATE CHARGE.
Each Party may charge the other a late charge, with respect to any amounts
that the other owes hereunder and fails to pay on or before the due date, in an
amount equal to the lesser of one and [**] percent ([**]%) per month, pro-rated,
or the maximum amount permitted by law.
26
25. ATTORNEYS' FEES.
In the event of any proceeding to enforce the provisions of this Agreement,
the prevailing Party (as determined by the court) shall be entitled to
reasonable attorneys' fees as fixed by the court.
26. ENTIRE AGREEMENT.
The terms and conditions contained in this Agreement supersede all prior
and contemporaneous oral or written understandings between the Parties with
respect to the subject matter thereof and constitute the entire agreement of the
Parties with respect to such subject matter, except as set forth in a Supply
Agreement between the Parties. Such terms and conditions shall not be modified
or amended except by a writing signed by authorized representatives of both
Parties.
27. INDEPENDENT CONTRACTORS.
The relationship between QUALCOMM and LICENSEE is that of independent
contractors. QUALCOMM and LICENSEE are not joint venturers, partners, principal
and agent, master and servant, employer or employee, and have no other
relationship other than independent contracting parties.
28. U.S. DOLLARS.
All payments to be made hereunder shall be made in dollars of the United
States of America by wire-transfer and at a bank to be designated by the payee.
27
29. FORCE MAJEURE
Neither Party shall be in default or liable for any loss or damage
resulting from delays in performance or from failure to perform or comply with
terms of this Agreement (other than the obligation to make payments, which shall
not be affected by this provision) due to any causes beyond its reasonable
control, which causes include but are not limited to Acts of God or the public
enemy; riots and insurrections; war; fire; strikes and other labor difficulties
(whether or not the Party is in a position to concede to such demands);
embargoes; judicial action; lack of or inability to obtain export permits or
approvals; and acts of civil or military authorities.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the Effective Date. This Agreement may be signed in counterpart.
QUALCOMM Incorporated LICENSEE
BY: /s/ M. Blecker BY: /s/ Randall S. Battat
--------------------------------- ------------------------------------
TITLE: Senior Vice President TITLE: President & CEO
28
EXHIBIT A
CERTIFICATE
The undersigned official of ________ ("LICENSEE") is providing the following
information to QUALCOMM pursuant to that certain HDR Infrastructure Equipment
License Agreement entered into between LICENSEE and QUALCOMM (the "Agreement").
All capitalized terms used in this Certificate have the definitions ascribed to
them in the Agreement.
This Certificate reflects the Royalties payable by LICENSEE for the [**] ended:
________________, 20___.
DETERMINATION [**] FROM SELLING
GENERAL INFORMATION REGARDING "SALE" OF SELLING PRICE PRICE CALCULATION OF ROYALTIES
----------------------------------------------------- ------------- ----------------- ------------------------------------
Date and Country of If sold to Number of Selling Price [**] [**] Applicable Applicable Amount of
Sale by LICENSEE and Related Buyer, Licensed HDR paid by Net Selling Royalty Royalty
Affiliates (e.g., if identity of Products Sold Purchaser Price Percentage
sold for use in the Related Buyer.
United States, state
"sold for use in
U.S.")
TOTAL ROYALTIES _______
DUE AND PAYABLE $______
The undersigned hereby certifies that the foregoing represents an accurate and
complete record of all royalties due and payable by LICENSEE for the [**]
specified above.
Signature:
Title:
Date:
EXHIBIT B
INFRASTRUCTURE EQUIPMENT LICENSE AGREEMENT
This Infrastructure Equipment License Agreement (the "Agreement") is entered
into on _______________, 2000 by and between QUALCOMM Incorporated, a Delaware
Corporation, and ________________________________, a ___________________________
corporation, with respect to the following facts:
RECITALS
WHEREAS, QUALCOMM has developed certain proprietary Code Division Multiple
Access technology which may be useful in providing greater capacity and improved
quality and reliability compared to other Wireless telephone technologies;
WHEREAS, LICENSEE desires to obtain a license of QUALCOMM's Intellectual
Property to manufacture and sell the Licensed Products, and QUALCOMM desires to
grant such license in accordance with the terms and conditions set forth in this
Agreement; and
WHEREAS, QUALCOMM desires to obtain a license of LICENSEE's Intellectual
Property to manufacture and sell the Licensed Products and LICENSEE desires to
grant such license in accordance with the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW THEREFORE, the parties hereby agree as follows:
1. HEADINGS AND DEFINITIONS.
All headings used in this Agreement are inserted for convenience only and
are not intended to affect the meaning or interpretation of this Agreement or
any clause. Reference to "third party or third parties" shall not mean either
Party. For the purpose of this Agreement, the following definitions apply:
"Affiliates" means, as to a Party, any present or future Parent of the Party and
any present or future Subsidiary of the Party and/or its Parent, but only for so
long as the Parent remains the Parent of the Party and the Subsidiary remains a
Subsidiary of the Party and/or its Parent. The term "Parent" means any
corporation or other legal entity that owns, directly or indirectly (i) more
than 50% of the shares or other securities of the Party entitled to vote for
election of directors (or other managing authority) of the Party or (ii) if such
Party does not have outstanding shares or securities, more than 50% of the
equity interest in such Party, but only for so long as such ownership or control
exists in (i) or (ii) above. The term "Subsidiary" of a Party means any
corporation or other legal entity (i) the majority (more than 50%) of whose
shares or other securities entitled to vote for election of directors (or other
managing authority) is now or hereafter owned or controlled by such Party either
directly or indirectly or (ii) which does not have outstanding shares or
security but the majority (more than 50%) of the equity interest in which is now
or hereafter owned or controlled by such Party either directly or indirectly,
but only for so long as such ownership or control exists in (i) or (ii) above.
"BSC" means the base station controller, which contains the controlling elements
and resources that provide a channel between the BTS(s) and the System Switch.
The BSC or any of the elements contained within the definition of the BSC may be
a part of or integrated into the System Switch.
"BTS" means the base station transceiver subsystem, which is wireless access
equipment that provides for network receive and/or transmit functionality to
and/or from Subscriber Units as a part of a cell site for Wireless Applications.
The BTS is the link between the Subscriber Units and the BSC. Included in the
BTS are the antennas, transmitters, receivers, power amplifiers and interface
hardware to support the link to the BSC.
"CDMA" means code division multiple access technology.
"CDMA Applications" means all communication applications (regardless of the
transmission medium) which operate using code division multiple access ("CDMA")
technology, whether or not based on IS-95, cdma2000 or W-CDMA, and irrespective
of frequency band.
"CDMA ASICs" means QUALCOMM's cell site modem (CSM) CDMA application specific
integrated circuit, and any revision, generation, modifications or integration
to or of the CSM, purchased from QUALCOMM.
"CDMA Enabling Infrastructure Equipment" means any product (including all of the
Components, hardware, firmware and/or software contained therein) which performs
any or all of the Functions and which is for use as part of (included within)
either the BTS, BSC or System Switch, irrespective of whether initially Sold as
part of (included within) a BTS, BSC or System Switch or as products to be added
to existing BTS's, BSC's or System Switches. CDMA Enabling Infrastructure
Equipment does not mean Subscriber Units, Components (although Components may be
incorporated into the CDMA Enabling Infrastructure Equipment that is Sold by a
Party) or any assembly or subassembly that is not a field replaceable unit. CDMA
Enabling Infrastructure Equipment includes, as an example and not by way of
limitation, the (i) [**], (ii) [**] that is [**] so that the [**] can be
utilized and (iii) [**], meaning the [**] that includes (a) [**], (b) [**], (c)
[**] using any QUALCOMM Intellectual Property, (d) [**] using any QUALCOMM
Intellectual Property and/or (e) other service options using any QUALCOMM
Intellectual Property.
"Channel Units" means any BTS module or field replaceable assembly used to
modulate or demodulate the CDMA waveform, process the data and/or perform
ancillary functions related to one or more CDMA channels for communication
between a BTS and Subscriber Units. Examples of CDMA channels include, but are
not limited to traffic, paging, sync, pilot and access channels. Channel Units
may contain Components.
"Commercially Necessary IPR" means those Intellectual Property Rights which (i)
the Party or its Affiliates has the right to license to the other Party without
payment of royalties or any other consideration to any third party, (ii) are not
essential to the manufacture, use or sale of Licensed Products and/or Components
which comply with the specifications of the CAI and (iii) provide Licensed
Products and/or Components with a competitive advantage (e.g., cost, lead-time
or quality advantages) or which add to Licensed Products or Components a feature
or other
-2-
characteristic which may be reasonably required by the market place; but the
term Commercially Necessary IPR does not include any trade name, trademark,
service mark, or similar symbols, abbreviation, contractions or simulations
identifying the Party and its Affiliates (except as set forth in Section 8, if
the Party is QUALCOMM).
"Common Air Interface" or "CAI" means the technical description of QUALCOMM's
CDMA digital air interface specification for communication between cell site or
other base station transceivers and Subscriber Units to the extent adopted as an
industry standard by the Telecommunications Industry Association or other
recognized international standards bodies. The term "Standard" includes only (i)
the TIA's IS-95 digital cellular standard and the related standards issued in
association therewith (e.g., IS-96, IS-97, IS-98, IS-99), and (ii) other CDMA
standards which specify the same Physical Layer as IS-95 if approved by QUALCOMM
(i.e. QUALCOMM voted in favor of adopting such standard) and adopted by other
international standards bodies throughout the world, and (iii) QUALCOMM's
proposed cdma2000 standards.
"Components" means application specific integrated circuits (ASICs), electronic
devices, integrated circuits, including firmware thereon, and/or families of
devices for use in products for wireless telecommunication applications.
"Costs" means the actual labor, material and other direct costs, expenses and
associated indirect expenses, including overheads and general and administrative
expenses consistently applied in accordance with the U.S. generally accepted
accounting principles.
"Distributed Antenna" means a multi-node antenna system and related circuitry
that is designed to make use of delays in CDMA signal transmission and/or
reception so that the rake receiver functionality can be utilized.
"Effective Date" means the date first set forth above.
"[**]" means [**], a [**] corporation and any of its subsidiaries in which it
owns or controls fifty percent (50%) or more of the voting power.
"Functions" means any or all of the following which incorporates any or all of
QUALCOMM's Intellectual Property: (i) handoff, (ii) CDMA waveform modulation and
/or demodulation, (iii) power control, (iv) call packet connection and/or
routing, (v) paging, (vi) voice encoding and/or decoding (vocoder) services,
(vii) data services, (viii) fax services, (ix) system initialization and
configuration, (x) diagnostic monitoring or maintenance of any of the foregoing
functions and/or (xi) any other function.
"Future Commercially Necessary IPR" means all claims of any patents (foreign and
domestic) which fall within the definition of Commercially Necessary IPR, but
which do not fall within the definition of Included Commercially Necessary IPR.
"Have Made" means the right of LICENSEE under [**] Patents to have a third party
make a Licensed Product for CDMA Applications for the use and benefit of
LICENSEE, provided that:
(i) LICENSEE owns and supplies the designs, or specifications, or working
drawings to such third party;
-3-
(ii) such designs, specifications, and working drawings are in sufficient
detail that no substantial additional design by such third party is
required;
(iii) such third party is not allowed to sell such Licensed Product to
other third parties; and
(iv) each such Licensed Product sold by LICENSEE shall bear the trademarks,
trade names, or other commercial indicia of LICENSEE, although such
Licensed Products may be co-branded with the trademarks, trade names,
or other commercial indicia of the reseller or distributor of such
Licensed Products. The requirements of this subparagraph (iv) shall
not apply where a customer requires that the Licensed Product bear
only such customer's trademarks, trade names, or other commercial
indicia.
"Included Commercially Necessary IPR" means (1) with respect to the Intellectual
Property Rights being licensed by QUALCOMM, (a) all claims of any patents
(foreign and domestic) which are now issued or which are applied for [**] and
which constitute Commercially Necessary IPR and (b) all copyright, trade
secrets, know-how, technical assistance and other intellectual property rights
which constitute Commercially Necessary IPR and which may be furnished by
QUALCOMM to LICENSEE pursuant to and during the term of this Agreement and (2)
with respect to the Intellectual Property Rights being licensed by Licensee, (a)
all claims of any patents (foreign and domestic) which are now issued or which
are applied for [**] and which constitute Commercially Necessary IPR and (b) all
copyright, trade secrets, know-how, technical assistance and other intellectual
property rights which constitute Commercially Necessary IPR and which may be
furnished by LICENSEE to QUALCOMM pursuant to and during the term of this
Agreement.
"Intellectual Property Rights" means patents, copyrights, trade secrets,
know-how and other intellectual property rights.
"[**] Patents" means U.S. Patent Nos. [**] and any continuation,
continuation-in-part and divisional application based on such patents, and any
foreign counterparts of such patents, continuations, continuations-in-part or
divisional applications.
"IS-95 Related Systems" means IS-95 and any single carrier system with a
spreading bandwidth not greater than 1.25 Mhz and based on or derived from
IS-95.
"Licensed Products" means only the BSC, BTS, System Switch, Channel Units, and
CDMA Enabling Infrastructure Equipment.
"LICENSEE" means _____________________________________________________________.
"LICENSEE's Intellectual Property" means LICENSEE's and its Affiliates'
Technically Necessary IPR and LICENSEE's and its Affiliates' Included
Commercially Necessary IPR.
"Masks" and "Mask Sets" mean the mask sets for Components and/or the computer
output data used to generate the mask sets for Components.
-4-
"Net Selling Price", with respect to each Licensed Product Sold by LICENSEE,
shall mean one of the following, whichever is applicable:
(a) [**];
(b) [**].
(c) [**].
"Party" shall individually mean QUALCOMM or LICENSEE and the term "Parties"
shall collectively mean QUALCOMM and LICENSEE.
"[**]" shall mean [**], a company existing under the laws of [**].
"[**]' CDMA Technically Necessary Patents" means claims of any patents which
[**] (or any of its Affiliates) own or have the right to license that are
essential or claimed by [**] or any of its Affiliates to be essential to the
manufacture, use or sale of Licensed Products (i.e., must necessarily be
infringed upon in order to comply with the CAI). Notwithstanding anything to the
contrary herein, the term "[**] CDMA Technically Necessary Patents" at a minimum
includes U.S. patent numbers: [**], and their foreign counterparts.
"Physical Layer" shall have the same meaning as given in the TIA's IS-95 digital
cellular standard.
"QUALCOMM's Intellectual Property" means QUALCOMM's Technically Necessary IPR
and QUALCOMM's Included Commercially Necessary IPR and [**] Patents; provided
that, notwithstanding the foregoing, the term "QUALCOMM's Intellectual Property"
shall not include any intellectual property, including but not limited to
patents, owned by [**].
"Qualifying Licensed Product" means a Licensed Product which contains and
incorporates a CDMA ASIC purchased by LICENSEE from QUALCOMM.
"Selling Price" means the gross selling price and/or value of other
consideration charged by the LICENSEE or its final vendee Related Buyer for each
Licensed Product in the form in which it is Sold (whether or not assembled and
without excluding therefrom any Components or subassemblies thereof which are
included with such Licensed Product) [**].
-5-
"Sold," "Sale," "Sell" means put into use, sold, leased or otherwise transferred
and a sale shall be deemed to have occurred upon putting into use, shipment or
invoicing, whichever shall first occur.
"Subscriber Unit" means a CDMA telephone, including but not limited to mobile,
transportable and portable telephones, which can be used to initiate and receive
Wireless CDMA telecommunications transmissions.
"System Switch" means the telephone switching equipment that provides the
interface between a Wireless system and the PSTN and/or may provide the
interface between BTS's and/or BSC's.
"Technically Necessary IPR" means all claims of any patents (foreign and
domestic) issued on, before or after the Effective Date which (i) the Party or
its Affiliates has the right to license to the other Party without payment of
royalties or any other consideration to any third party (except for payments to
the Party or its Affiliates and payments to third persons for the invention or
creation made by such third persons while employed by any of the Party or its
Affiliates) and (ii) is essential to the manufacture, use or sale of a usable
Licensed Product and/or Components which complies with the specifications of the
CAI (i.e., must be infringed upon in order to comply with the CAI); but the term
Technically Necessary IPR does not include (a) manufacturing process, (b)
semiconductor structure not specific to Components and (c) any trade name,
trademark, service mark, or similar symbols, abbreviation, contractions or
simulations identifying the Party and its Affiliates.
"Wireless" and "Wireless Applications" means terrestrial-based, land mobile,
wireless telecommunications applications, including but not limited to cellular,
personal communications services (PCS), wireless local loop and wireless PABX
applications which are based upon and compliant with the CAI. Notwithstanding
the foregoing, the terms "Wireless" and/or "Wireless Applications" shall not
include (i) satellite applications (defined as any application which utilizes a
direct connection between the Subscriber Unit and any satellite), and/or (ii)
Cordless Telephone Applications (defined as applications not dependent on use of
a switch, including but not limited to a PABX switch, for interface to the
public network).
-6-
2. TERM OF AGREEMENT.
This Agreement shall commence upon the Effective Date and, unless otherwise
terminated or canceled as provided herein, shall continue in full force and
effect thereafter.
3. UP-FRONT LICENSE FEE TO QUALCOMM.
In partial consideration of the rights granted to LICENSEE under this
Agreement, LICENSEE shall pay an up-front license fee to QUALCOMM in the amount
of [**] dollars (US$[**]) (the "Up-Front License Fee"). LICENSEE shall pay the
Up-Front License Fee no later than [**] days after the Effective Date.
4. DOCUMENTATION AND OTHER DELIVERABLES; TECHNICAL ASSISTANCE.
4.1 Documentation. In full satisfaction of its obligations to deliver
documentation to LICENSEE, QUALCOMM shall promptly deliver to LICENSEE within
[**] business days after the Effective Date the documentation specified in
Exhibit A.
4.2 Limitation on Deliverables. Nothing in this Agreement shall require the
delivery of any documentation or product designs not otherwise specified in
Exhibit A, including but not limited to: [**].
4.3 Representations and Limitations on Furnished Information. QUALCOMM
shall use reasonable commercial efforts to verify the accuracy of the
information furnished by it hereunder, but QUALCOMM shall not be liable for
damages arising out of or resulting from anything made available hereunder or
the use thereof nor be liable to LICENSEE for consequential, special or
incidental damages under any circumstances. The sole obligation of QUALCOMM with
respect to such information shall, subject to the other provisions herein or in
other written agreements between the Parties, be to furnish it to LICENSEE.
QUALCOMM shall have no responsibility for the ability of LICENSEE to use such
information, the quality or performance of the products produced therefrom by
LICENSEE, or the claims of third parties arising from the use of such products
or information. QUALCOMM does not warrant and shall not be responsible for any
design, specification, drawing, blueprint, reproduced tracing, or other data or
information furnished by it to LICENSEE, except that it shall furnish such in
good faith to the best of QUALCOMM's knowledge and ability.
4.4 Technical Meetings and Assistance. During the [**] after the Effective
Date of this Agreement, upon written request from LICENSEE with reasonable
advance written notice, QUALCOMM shall provide LICENSEE (a) up to an aggregate
of [**] man-hours of technical assistance at QUALCOMM's facilities in San Diego
to respond to LICENSEE's reasonable questions or comments to respond to
LICENSEE's reasonable questions or comments, with no more than [**] meeting days
in any [**] day period. After such [**] man-hours of technical assistance have
been used or the [**] has expired, QUALCOMM shall provide reasonable amounts of
technical assistance to LICENSEE on an as available basis and at QUALCOMM's then
standard rates for providing such technical assistance. In such event, QUALCOMM
shall be permitted to invoice LICENSEE for such charges on a [**] basis. Payment
by LICENSEE with respect to such invoices shall be on a "[**]" basis after the
date of the invoice. QUALCOMM may terminate such additional technical assistance
at any time upon written
-7-
notice to Licensee. This Agreement shall not require QUALCOMM to provide any
technical assistance relating to the design of Components or any technical
assistance not related to Licensed Products.
5. QUALCOMM LICENSE.
5.1 Grant of License From QUALCOMM. Subject to the terms and conditions of
this Agreement, including but not limited to timely payment of the license fees
and royalties set forth herein, QUALCOMM hereby grants to LICENSEE a worldwide,
personal, nontransferable and non-exclusive license (without the right to
sublicense, except to Affiliates of LICENSEE as permitted in Section 5.3) to use
QUALCOMM's Intellectual Property solely for Wireless Applications (a) to make
(and have made) and import, use, sell, lease or otherwise dispose of Licensed
Products and (b) to make (and have made) Components that have been exclusively
designed by or for LICENSEE (which design is owned and used exclusively by
LICENSEE) and import, use, sell, lease or otherwise dispose of Components;
provided, however that such Components may only be used, sold, leased or
otherwise disposed of by LICENSEE if they are included and used, sold, leased or
otherwise disposed of by LICENSEE as part of and within complete Licensed
Products of LICENSEE (or as replacement parts for Licensed Products previously
sold by LICENSEE). No other, further or different license is hereby granted or
implied.
5.1.1 [**] Patents. As part of QUALCOMM's Intellectual Property being
licensed under Section 5.1 above, QUALCOMM is granting rights to LICENSEE under
the [**] Patents. Notwithstanding anything to the contrary contained in this
Agreement, the license to LICENSEE under the [**] Patents granted in Section 5.1
may terminate in accordance with the provisions set forth below:
5.1.1.1 On or before November 2, 1996. If, at any time on or
before November 2, 1996, LICENSEE or its Affiliates initiates a CDMA patent
infringement lawsuit against [**] or its affiliates (or their customers)
asserting that any product manufactured or sold by [**] or its affiliates for
use in non-IS-95 based wireless applications infringes any of LICENSEE's (or its
Affiliates') patents, then the license granted by QUALCOMM to LICENSEE under
this Agreement with respect to the [**] Patents only shall immediately
terminate.
5.1.1.2 After November 2, 1996. If, at any time after November 2,
1996, LICENSEE or its Affiliates initiates a CDMA patent infringement lawsuit
against [**] or its affiliates (or their customers) asserting that any product
manufactured and sold by [**] for use in non-IS-95 based wireless applications
infringes any of LICENSEE's (or its Affiliates') patents and LICENSEE (or its
Affiliates) does not prevail in such lawsuit, then the license granted by
QUALCOMM to LICENSEE under this Agreement only with respect to the [**] Patents
shall immediately terminate.
5.1.1.3 Licensed Products that Contain QUALCOMM's CDMA ASICs.
Notwithstanding if the license under this Agreement as to the [**] Patents
terminates under Sections 5.1.1.1 or 5.1.1.2 above, Licensed Products
manufactured by LICENSEE for IS-95
-8-
based Wireless Applications, which Licensed Products incorporate QUALCOMM's CDMA
ASICs purchased from QUALCOMM, will be free from infringement from the [**]
Patents.
5.2 Royalties. In partial consideration of the rights granted to Licensee
under the License Agreement, Licensee shall pay to QUALCOMM, no later than [**]
days after the end of each [**] during the term of the License Agreement, an
amount equal to the percentages of the Net Selling Price for the Licensed
Products set forth below that are sold during such [**] by Licensee and its
Affiliates, whether such Licensed Products are manufactured by Licensee or by
third parties or QUALCOMM for Licensee:
(a) [**] ; and
(b) [**]
-9-
5.3 Right To Sublicense Affiliates. LICENSEE shall have the right to grant
sublicenses only to Affiliates of LICENSEE with respect to any rights conferred
upon LICENSEE under this Agreement; provided, however, that any such sublicense
shall be subject in all respects to the restrictions, exceptions, royalty and
other payment obligations, reports, termination provisions, and other provisions
contained in this Agreement; provided, however that no additional up-front
license fee shall be required to be paid with respect to any such sublicense.
LICENSEE shall also pay or cause its sublicensed Affiliates to pay the same
royalties on all Licensed Products Sold by its sublicensed Affiliates as if
LICENSEE had Sold such Licensed Products. LICENSEE shall report to QUALCOMM the
Net Selling Price for all Licensed Products Sold by each such Affiliate.
LICENSEE shall be responsible and liable to QUALCOMM in the event that any of
its sublicensed Affiliates fails under any such sublicense to honor and comply
with all obligations of LICENSEE as though said obligations were made expressly
applicable to the sublicensed Affiliate. Except as set forth above, LICENSEE
shall have no right to sublicense any of QUALCOMM's Intellectual Property. Any
sublicense by LICENSEE to an Affiliate of LICENSEE shall terminate immediately
if such Affiliate ceases to be an Affiliate of LICENSEE.
5.4 [**]
5.5 Invalid or Expired Patents. The obligation for LICENSEE to pay
royalties to QUALCOMM under Section 5.2 shall be [**] in the event all patents
which are licensed hereunder by QUALCOMM and used by LICENSEE have expired or
are held to be unenforceable against LICENSEE.
5.6 Taxes. Any taxes, duties or imposts other than income or profits taxes
assessed or imposed upon the sums due hereunder in the United States, shall be
borne and discharged by LICENSEE and no part thereof shall be deducted from the
amounts payable to QUALCOMM under any clause of this Agreement, said amounts to
be net to QUALCOMM, free of any and all deductions. Notwithstanding the
foregoing, in the event sums payable under this Agreement become subject to
income or profits taxes under the tax laws of any country and applicable
treaties between the United States and such country, LICENSEE may, if and to the
extent required by law, withhold from each payment the amount of said income or
profits taxes due and
-10-
required to be withheld [**] of each payment. LICENSEE will furnish and make
available to QUALCOMM relevant receipts regarding the payment of any country
taxes paid over to any country's government on behalf of QUALCOMM. Such tax
receipts will clearly indicate the amounts that have been withheld from the
gross amounts due to QUALCOMM. Any and all other taxes, levies, charges or fees
will be paid by LICENSEE for its own account.
5.7 Conversion to U.S. Dollars. Royalties shall be paid in U.S. dollars. To
the extent that the Net Selling Price for Licensed Products Sold by LICENSEE
outside of the United States is paid to LICENSEE other than in U.S. dollars,
LICENSEE shall convert the portion of the royalty payable to QUALCOMM from such
Net Selling Price into U.S. dollars at the official rate of exchange of the
currency of the country from which the Net Selling Price was paid, as quoted by
the U.S. Wall Street Journal (or the Chase Manhattan Bank or another agreed-upon
source if not quoted in the Wall Street Journal) for the last business day of
the calendar quarter in which such Licensed Products were Sold. If the transfer
of or the conversion into U.S. dollars is not lawful or possible, the payment of
such part of the royalties as is necessary shall be made by the deposit thereof,
in the currency of the country where the sale was made on which the royalty was
based to the credit and account of QUALCOMM or its nominee in any commercial
bank or trust company of QUALCOMM's choice located in that country, prompt
notice of which shall be given by LICENSEE to QUALCOMM.
5.8 [**] Covenant Not to Assert. QUALCOMM hereby represents and warrants
that [**], on behalf of itself and its Affiliates, covenants that [**] and its
Affiliates will not assert any of the [**]' CDMA Technically Necessary Patents
against LICENSEE's (or, if sublicensed in accordance with Section 5.3 of this
Agreement, LICENSEE's Affiliates') manufacture, use, sale, or importation of
Qualifying Licensed Products solely for Wireless Applications; provided,
however, that [**] and/or its Affiliates may assert the [**]' CDMA Technically
Necessary Patents against LICENSEE if LICENSEE asserts any of its patents
against [**] or its Affiliates and any of their telephone products or if
LICENSEE initiates a declaratory judgment action, reexamination proceedings or
opposition proceedings challenging the validity of any of the [**]' CDMA
Technically Necessary Patents. Nothing in this Section 5.8 shall prohibit, limit
or covenant against [**]' rights to assert any of its patents against LICENSEE
or its Affiliates for infringement relating to any time division multiple access
(TDMA) equipment or system (including, without limitation, [**]).
5.9 [**] Patents.
5.9.1 [**] Patents Sublicensed. The term "[**] Patents" means all of
the following patents which are owned or sublicenseable by [**] without payment
of any royalty or other consideration to a third party: (a) [**] patents which,
but for the sublicenses granted under Section 5.9.2 below, would be infringed by
the use of QUALCOMM's CDMA ASICs for their intended purposes (the "[**] ASIC
Patents"), and (b) [**] Essential Patents which are, or are claimed by [**] to
be, essential to IS-95 Rev A or Rev B, whether or not such Essential Patents are
infringed by the use of QUALCOMM's CDMA ASICs (the "Other [**] Patents"). For
example, by incorporating QUALCOMM's existing (as of the Effective Date) CDMA
ASIC into a Licensed Product Sold by LICENSEE, the [**] Patents sublicensed to
LICENSEE would include, but not necessarily be limited to all of the following
patents that [**] asserted against
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QUALCOMM in litigation: U.S. Patent Nos. [**], and their foreign counterparts,
reissuances, divisionals, continuations and continuations in part.
The term "Essential Patents" means those patents (in any country of the
world) as to which it is, or is claimed by the patent owner to be, not possible
on technical (but not commercial) grounds, taking into account normal technical
practice and the state of the art generally available at the time of adoption or
publication of the relevant standard for CDMA Applications, to make, sell,
lease, otherwise dispose of, repair, use or operate equipment or methods which
comply with such standard without infringing such patent.
5.9.2 Sublicense Under [**] Patents. The following sublicense is
granted subject to the terms and conditions of this Agreement (including but not
limited to the payment of royalties hereunder in accordance with Section 5.2)
and Section 5.9.3 below: With respect only to those Licensed Products Sold by
LICENSEE and its Affiliates that contain QUALCOMM's CDMA ASIC, QUALCOMM hereby
grants to LICENSEE a sublicense under all of the [**] ASIC Patents solely for
CDMA Applications and under all of the Other [**] Patents solely for IS-95
Related Systems to make (and Have Made), use, sell, offer for sale, lease or
otherwise dispose of, and import Licensed Products into which QUALCOMM's CDMA
ASIC is incorporated. Notwithstanding the foregoing, no right or sublicense is
being granted for or may be extended under patents that apply to the portion of
any product that implements an air interface other than CDMA or analog (e.g., no
rights and sublicenses are granted for or may be extended under patents that
apply to the GSM part of any product).
5.9.3 Non-Assertion Against [**]. The sublicense granted to LICENSEE
under Section 5.9.2 above shall continue only so long as LICENSEE and its
Affiliates do not assert, either in litigation or by a direct communication, any
Essential Patents for CDMA Applications against [**] CDMA subscriber,
infrastructure or test equipment products and LICENSEE does not dismiss such
litigation or withdraw such assertion or offer a royalty-free license under such
patents within [**] days after QUALCOMM's receipt of notice from [**] of such
litigation or communication.
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6. LICENSE BY LICENSEE
6.1 Grant of License from LICENSEE. Subject to the terms and conditions of
this Agreement, LICENSEE hereby grants to QUALCOMM a worldwide, personal,
nontransferable, non-exclusive, fully-paid, irrevocable and royalty free license
(without the right to sublicense, except to Affiliates of QUALCOMM as permitted
in Section 6.2) to use LICENSEE's Intellectual Property to (a) make (and have
made) and import, use, sell, lease or otherwise dispose of Licensed Products and
(b) to make (and have made), import, use, sell, lease or otherwise dispose of
Components. No other, further or different license is hereby granted or implied.
Notwithstanding anything to the contrary in this Agreement, QUALCOMM may assign
the licenses from LICENSEE under this Section 6.1 as to Components to any
successor (by purchase, divestiture, merger or otherwise) to all or
substantially all of QUALCOMM's Components business. QUALCOMM shall give prompt
written notice to LICENSEE of any such assignment.
6.2 Right To Sublicense Affiliates. QUALCOMM shall have the right to grant
sublicenses only to Affiliates of QUALCOMM with respect to any rights conferred
upon QUALCOMM under this Agreement; provided, however, that any such sublicense
shall be subject in all respects to the restrictions, exceptions, termination
provisions, and other provisions contained in this Agreement. QUALCOMM, in
addition to its sublicensed Affiliates, shall be responsible and liable to
LICENSEE in the event that any of its sublicensed Affiliates fails under any
such sublicense to honor and comply with all obligations of QUALCOMM as though
said obligations were made expressly applicable to the sublicensed Affiliate.
Except as set forth above, QUALCOMM shall have no right to sublicense any of
LICENSEE's Intellectual Property. Any sublicense by QUALCOMM to an Affiliate of
QUALCOMM shall terminate immediately if such Affiliate ceases to be an Affiliate
of QUALCOMM.
6.3 License Of Future Commercially Necessary IPR. Each Party agrees that,
to the extent it makes licenses of Future Commercially Necessary IPR generally
available to third parties, it will, if requested by the other Party, offer such
licenses to the other Party on commercially reasonable terms and conditions.
7. COMMITMENT BY LICENSEE
7.1 Covenant Not to Assert. LICENSEE hereby covenants that neither it nor
its Affiliates will assert any of LICENSEE's Technically Necessary IPR against
any of QUALCOMM's other Infrastructure Equipment licensees and their Affiliates
(collectively, the "Authorized Licensees") with respect to such Authorized
Licensee's use of any of LICENSEE's Technically Necessary IPR to make, use and
sell Infrastructure Equipment and/or Components solely for Wireless
Applications, provided that such Authorized Licensee has agreed with QUALCOMM to
an equivalent undertaking not to assert claims against LICENSEE and its
Affiliates. LICENSEE does not by this Section 7.1 agree, on behalf of itself or
its Affiliates, to waive its rights to assert any of LICENSEE's Commercially
Necessary IPR against any Authorized Licensee with respect to such Authorized
Licensee's use of any of LICENSEE's Commercially Necessary IPR. Any Authorized
Licensee that has agreed with QUALCOMM to an equivalent undertaking not to
assert claims shall be regarded as a third party beneficiary of
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this Section 7.1. QUALCOMM will promptly notify LICENSEE of any Authorized
Licensees that have agreed to such an equivalent undertaking.
7.2 License to Third Parties. The parties agree that it is in the interest
of each of the Parties and of the Wireless industry to obtain the widest
possible acceptance of the final CAI Accordingly, LICENSEE agrees to negotiate
in good faith to promptly grant to Authorized Licensees which do not meet the
requirements of Section 7.1 a license to use all of LICENSEE's Technically
Necessary IPR to make, use and sell Infrastructure Equipment and Components for
Wireless Applications. Each such license shall be granted at reasonable rates
and otherwise on reasonable terms and conditions consistent with LICENSEE's
licensing policies, which may include that such third party grant a
cross-license to LICENSEE of technically necessary intellectual property rights
owned by such third party.
7.3 Best Efforts. LICENSEE shall use its best efforts to market, promote
and sell Licensed Products throughout the world.
8. MARKING
LICENSEE agrees to affix to the exterior or the interior of all Licensed
Products incorporating any of QUALCOMM's Intellectual Property a legible notice
reading: "Licensed by QUALCOMM Incorporated under one or more of the following
Patents," followed by a list of applicable patent numbers taken from the list of
QUALCOMM's patents or as may otherwise be instructed by QUALCOMM.
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9. QUALITY CONTROL
9.1 General Quality of Licensed Products. Throughout the term of this
Agreement, LICENSEE shall maintain, for the Licensed Products manufactured or
Sold by it, at least the same manufacturing, servicing and quality standards
currently utilized by LICENSEE in connection with its similar analog and, if
applicable, other digital products.
9.2 Standards Compliance Testing. LICENSEE represents and warrants that the
Licensed Products and Components that it makes or has made will adhere with and
conform to, in all respects, the specifications contained in the CAI and that
LICENSEE shall comply with the rules, regulations or other requirements set by
such authorized standards body. LICENSEE shall, at QUALCOMM's reasonable written
request, permit QUALCOMM or entities designated by QUALCOMM and accepted by
LICENSEE, which acceptance shall not be unreasonably withheld or delayed, to
perform tests of LICENSEE's Licensed Products to ensure compliance and
conformity with the CAI. If such tests indicate material noncompliance or
nonconformity therewith, such tests shall be at LICENSEE's cost and LICENSEE
shall reimburse QUALCOMM for any such reasonable tests performed by QUALCOMM at
[**]. If such test does not indicate material noncompliance or nonconformity,
the test shall be at [**]. Nonconforming Licensed Products, if any, shall not be
sold or marketed by LICENSEE until the non-conformity is corrected.
10. INFORMATION
10.1 Restrictions on Disclosure and Use. All documentation and technical
and business information and intellectual property in whatever form recorded
that a Party does not wish to disclose without restriction ("Information") shall
remain the property of the furnishing Party and may be used by the receiving
Party only as follows. Such Information (a) shall not be reproduced or copied,
in whole or part, except for use as expressly authorized in this Agreement; and
(b) shall, together with any full or partial copies thereof, be returned or
destroyed when no longer needed or upon any termination of this Agreement, and
(c) shall be disclosed only to employees or agents of a Party with a need to
know. Moreover, such Information shall be used by the receiving Party only for
the purpose of performing under this Agreement or in the exercise of its rights
it may receive under the provisions of this Agreement. Unless the furnishing
Party consents in this Agreement or otherwise in writing, such Information shall
be held in strict confidence by the receiving Party. The receiving Party may
disclose such Information to other persons, upon the furnishing Party's prior
written authorization, but solely to perform acts which this clause expressly
authorizes the receiving Party to perform itself and further provided such other
person agrees in writing (a copy of which writing will be provided to the
furnishing Party at its request) to the same conditions respecting use of
Information contained in this clause and to any other reasonable conditions
requested by the furnishing Party. These restrictions on the use or disclosure
of Information shall not apply to any Information: (i) which can be proven to be
or have been independently developed by the receiving Party or lawfully received
free of restriction from another source having the right to so furnish such
Information; or (ii) after it has become generally available to the public
without breach of this Agreement by the receiving Party; or (iii) which at the
time of disclosure to the receiving Party was known to such Party free of
restriction and clearly evidenced by documentation in such Party's possession;
or (iv) which the disclosing Party agrees in writing is free of such
restrictions.
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10.2 Scope of Information. Information is subject to this Section 10
whether delivered orally or in tangible form and without regard to whether it
has been identified or marked as confidential or otherwise subject to this
Section 10. Each Party agrees to use its best efforts to mark or otherwise
identify proprietary all Information they desire to be subject to the terms of
this clause before furnishing it to the other Party. And, upon request, a Party
shall promptly identify whether specified information must be held by the
requesting Party subject to this clause. Information which is delivered orally
shall be summarized in writing by the disclosing Party and delivered to the
receiving Party within [**] days after disclosure thereof.
10.3 Furnishing Information to Third Parties. Nothing herein shall be
deemed to bar disclosure of Information by a receiving Party to third party
subcontractors, prospective customers or Affiliates of the receiving Party with
a need to know, without the written consent of the furnishing Party, if such
disclosure is reasonably necessary for enjoyment of the receiving Party's rights
to use Intellectual Property Rights licensed under this Agreement, and provided
that each such third party agrees in writing to protect the Information under
terms and conditions comparable, in all material respects, to the terms
contained in this Section 10 and Section 18 with respect to survivability.
11. DISCLAIMER/ LIMITATION OF LIABILITY.
11.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, QUALCOMM MAKES NO
WARRANTIES IN THIS AGREEMENT AS TO PRODUCTS, TECHNOLOGY, MATERIALS, SERVICES,
INFORMATION OR OTHER ITEMS IT FURNISHES TO LICENSEE, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, OR THAT SUCH ITEMS ARE FREE FROM THE RIGHTFUL CLAIM OF ANY
THIRD PARTY, BY WAY OF INFRINGEMENT OR THE LIKE.
QUALCOMM SHALL NOT BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, CONSEQUENTIAL OR
ANY OTHER INDIRECT LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR ANY RESULTING
OBLIGATION OR THE USE OF ANY INTELLECTUAL PROPERTY RECEIVED HEREUNDER, WHETHER
IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, FOR TORT, OR ANY OTHER
CAUSE OF ACTION. QUALCOMM SHALL BE PERMITTED TO ENJOIN THE UNAUTHORIZED USE BY
LICENSEE OR ITS AFFILIATES OF ANY OF QUALCOMM'S INFORMATION.
11.2 Negation of Representation and Warranties. Nothing contained in this
Agreement shall be construed as (a) requiring the filing of any patent
application, the securing of any patent or the maintaining of any patent in
force; (b) a warranty or representation by either Party as to the validity or
scope of any patent, copyright or other intellectual property right; (c) a
warranty or representation that any manufacture, sale, lease, use or importation
will be free from infringement of patents, copyrights or other intellectual
property rights of others, and it shall be the sole responsibility of LICENSEE
to make such determination as is necessary with respect to the acquisition of
licenses under patents and other intellectual property of third parties; (d) an
agreement to bring or prosecute actions or suits against third parties for
infringement; (e) an obligation to furnish any manufacturing assistance; or (f)
conferring any right to use, in
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advertising, publicity or otherwise, any name, trade name or trademark, or any
contraction, abbreviation or simulation thereof (other than as set forth in
Section 8).
12. INDEMNITY FOR DAMAGE TO PERSONS, PROPERTY OR BUSINESS
12.1 Indemnification by LICENSEE. LICENSEE shall indemnify, defend and hold
QUALCOMM harmless from, any and all claims, judgments, liabilities, costs and
expenses (including attorneys' fees) arising out of or related, directly or
indirectly, to any injury, loss or damage to persons, property or business
arising from, relating to, or in any way connected with, any Licensed Products
or Components which LICENSEE or its Affiliates manufactures or has manufactured
and sells to a third party or its Affiliate. LICENSEE agrees to indemnify and
hold harmless QUALCOMM against all liability or responsibility of LICENSEE or of
others for any failure attributable to LICENSEE in production, design, operation
or otherwise of products manufactured by or on behalf of LICENSEE and Sold to
third parties, except if such liability or responsibility is due to infringement
claims with respect to QUALCOMM's Intellectual Property.
12.2 [**]
12.3 Notice, Defense and Cooperation. The party seeking indemnification
under Section 12.1 or 12.2 above shall provide the indemnifying party with
prompt notice of any claim within such provisions, shall give the indemnifying
party the full right to defend any such claim and shall cooperate fully in such
defense.
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13. TERMINATION
13.1 Termination Without Cause by LICENSEE. LICENSEE may for any reason, at
any time when it is not using any of QUALCOMM's Intellectual Property, terminate
this Agreement upon ninety (90) days' prior written notice to QUALCOMM; provided
that all license fees and royalties which have accrued under the terms of the
Agreement shall be due and owing and all such amounts and all previous amounts
paid are and shall remain non-refundable. In the event of any such termination,
the license granted by LICENSEE to QUALCOMM in Section 6.1 and 6.2 shall
survive.
13.2 Termination For Cause by QUALCOMM. QUALCOMM may terminate this
Agreement, by written notice to LICENSEE, if LICENSEE shall at any time default
in the payment hereunder or the making of any report hereunder, or shall commit
any material breach of any covenant, representation, warranty or agreement
herein contained, or shall make any false report to QUALCOMM; provided, however,
that in the case of any such breach which is capable of being cured, QUALCOMM
shall not have a right to terminate this Agreement for cause unless and until
LICENSEE shall have failed to remedy any such default, breach or report within
[**] days after written notice thereof by QUALCOMM. LICENSEE shall be able to
effectuate such cure with respect to a default in the payment of any royalty
hereunder no more than three times during the term of this Agreement. Upon
termination of this Agreement for cause, LICENSEE shall duly account to QUALCOMM
for all royalties and other payments within ten days of such termination.
13.3 Termination For Cause by LICENSEE. LICENSEE may terminate this
Agreement, by written notice to QUALCOMM, if QUALCOMM shall at any time commit
any material breach of any material covenant, representation, warranty or
agreement herein contained; provided, however, that in the case of any such
breach which is capable of being cured, LICENSEE shall not have a right to
terminate this Agreement for cause unless and until QUALCOMM shall have failed
to remedy any such material breach within [**] days after receipt by QUALCOMM of
written notice thereof by LICENSEE.
13.4 Bankruptcy, Dissolution or Liquidation. A Party shall provide written
notice (the "Notice") to the other Party immediately upon the occurrence of any
of the following events (the "Events"): (a) insolvency, bankruptcy or
liquidation or filing of any application therefor, or other commitment of an
affirmative act of insolvency; (b) attachment, execution or seizure of
substantially all of the assets or filing of any application therefor; (c)
assignment or transfer of that portion of the business to which this Agreement
pertains to a trustee for the benefit of creditors; (d) disposition, by sale or
assignment of all of its rights, of that portion of the business or the material
assets to which this Agreement pertains; or (e) termination of its business or
dissolution. Either Party shall also have the right to terminate this Agreement
with immediate effect by giving written notice of termination to the other Party
at any time upon or before the later of (1) sixty (60) days after the occurrence
of any of the Events with respect to such other Party (unless such event ceases
within such period), or (ii) sixty (60) days after receipt of the Notice (unless
such event ceases within such period).
13.5 Termination of Agreement in the Event of Litigation. The license from
QUALCOMM to Licensee shall terminate in the event that LICENSEE initiates any
litigation
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against QUALCOMM or its Affiliates which includes any claim for intellectual
property infringement and LICENSEE does not prevail on all such intellectual
property infringement claims.
13.6 Rights Upon Termination. Upon any expiration or termination of this
Agreement, whether for cause or not, all licenses granted hereunder shall also
terminate (except as expressly stated in Section 13.1), and each Party shall
immediately (i) cease using any of the other Party's Intellectual Property
Rights and (ii) return or destroy all information and documentation furnished by
the other Party to such Party. Any termination or expiration of this Agreement
under this Section 13 shall not relieve LICENSEE from its obligation under
Section 14 hereof to make a report or from its liability for payment of
royalties on Licensed Products Sold on or prior to the date of such termination
or expiration and shall not prejudice the right to recover any royalties or
other sums due or accrued at the time of such termination or expiration and
shall not prejudice any cause of action or claim accrued or to accrue on account
of any breach or default. Furthermore, any termination or expiration of this
Agreement under this Section shall not prejudice the right of QUALCOMM to
conduct a final audit of the records of the LICENSEE in accordance with the
provisions of Section 14 hereof. No termination hereunder shall limit the rights
of a Party to sell those Licensed Products in inventory or in process at the
time of termination, subject to payment of the royalty applicable to the sale of
such Licensed Products and continued compliance with the other provisions of
this Agreement.
14. RECORDS AND AUDITS.
14.1 Records. LICENSEE shall keep accurate and complete books and records
concerning any Licensed Products it may sell under this Agreement. As
applicable, such books and records shall include the date of transaction
involving sales of Licensed Products, including the number of items Sold.
LICENSEE shall require in its agreements with sublicensees that each sublicensee
agree to record keeping and audits substantially the same as described in this
Section 14. LICENSEE hereby agrees to cause its sublicensees to provide to
LICENSEE the records and supporting information sufficient to evidence the
accuracy of the royalty report to be submitted to QUALCOMM. Such records
(together with all supporting information) shall be included in the records
described herein and subject to audit by QUALCOMM as provided in this Section.
LICENSEE's agreements with its sublicensees shall expressly state that QUALCOMM
shall be able to enforce rights under Section 14.2 below directly against any
such sublicensee. LICENSEE shall furnish QUALCOMM within [**] days after the end
of each [**] a certificate, in the form attached hereto as Exhibit B, signed by
a responsible official of LICENSEE showing the transactions and corresponding
amounts during said [**] and any other information as may be reasonably
requested by QUALCOMM.
14.2 Audits. QUALCOMM may, no more than once each calendar year, cause its
independent public accounting firm to conduct an audit on reasonable notice of
LICENSEE's applicable books and records and sublicensee's records and its
supporting information obtained under Section 14.1 above to confirm the royalty
paid or to be paid to QUALCOMM in accordance with the terms and conditions set
forth in Section 5.2 above. The cost of such audit shall be borne by QUALCOMM,
unless such audit determines that the LICENSEE has underpaid the royalties due
hereunder by the lesser of (a) more than five percent (5%) or (b) [**]; in which
case, LICENSEE shall, in addition to paying the deficiency plus late payment
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charges, pay the cost of such audit. LICENSEE shall preserve and maintain all
such books and records required for audit for a period of [**] years after the
[**] for which the books and records apply (but not more than [**] years after
any termination of this Agreement). All information acquired by QUALCOMM from
such audit shall be considered Information subject to the terms and conditions
of Section 10.
15. ASSIGNMENT.
Except as provided in this clause, LICENSEE shall not assign this Agreement
or any right or interest under this Agreement, nor delegate any work or
obligation to be performed under this Agreement (an "assignment"), without
QUALCOMM's prior written consent, which consent shall be at QUALCOMM's sole
discretion. Any attempted assignment in contravention of this Section 15 shall
be void and ineffective.
16. COMPLIANCE WITH U.S. REGULATIONS.
Nothing contained in this Agreement shall require or permit LICENSEE or
QUALCOMM to do any act inconsistent with the requirements of (a) the regulations
of the United States Department of Commerce, or (b) the foreign assets controls
or foreign transactions controls regulations of the United States Treasury
Department, or (c) of any similar United States law, regulation or executive
order as the same may be in effect from time to time. To enable QUALCOMM to
export QUALCOMM's Intellectual Property or technical data to LICENSEE in
compliance with the requirements of the Export Administration Regulations (EAR),
LICENSEE hereby gives its assurance to QUALCOMM that LICENSEE will not re-export
or otherwise disclose, directly or indirectly, any of QUALCOMM's Intellectual
Property or "technical data" received from QUALCOMM, nor allow the direct
product thereof to be shipped directly or indirectly to any of the following
countries, unless permitted by U.S. law in effect at the time of such export:
Albania
Afghanistan
Armenia
Azerbaijan
Belarus
Bulgaria
Cambodia
Cuba
Estonia
Federal Republic of Yugoslavia
(Serbia Only)
Georgia
Iran
Iraq
Kazakhstan
Kyrgystan
Laos
Latvia
Libya
Lithuania
Macau
Moldova
Mongolia
North Korea
People's Republic of China
Romania
Russia
Sudan
Syria
Tajikistan
Turkmenistan
Ukraine
Uzbekistan
Vietnam
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LICENSEE agrees that no products, proprietary data, know-how, software, or other
information received from QUALCOMM will be directly employed in missile
technology, sensitive nuclear, or chemical biological weapons end uses or by
such end users. The foregoing obligations are U.S. legal requirements, and
therefore, such obligations shall survive any termination of this Agreement.
17. PUBLICITY.
LICENSEE shall submit to QUALCOMM proposed copy of all advertising wherein
the name, trademark, code, specification or service mark of QUALCOMM is
mentioned; and LICENSEE shall not publish or use such advertising without
QUALCOMM's prior written approval. Such approval shall be granted or withheld as
promptly as possible (usually within [**] days), and may be withheld only for
good cause. No license is granted by LICENSEE to QUALCOMM hereunder with respect
to LICENSEE's or its Affiliates' trade name, trademark, code, specification or
service mark. No license is granted by QUALCOMM to LICENSEE hereunder with
respect to QUALCOMM's or its Affiliates' trade name, trademark, code,
specification or service mark.
18. SURVIVAL OF OBLIGATIONS.
The Parties' rights and obligations which, by their nature, would continue
beyond the termination, cancellation, or expiration of this Agreement, including
but not limited to those rights and obligations of the parties set forth in
Section 10 entitled "INFORMATION," shall survive such termination, cancellation,
or expiration.
19. SEVERABILITY.
If any provision in this Agreement shall be held to be invalid or
unenforceable, the remaining portions shall remain in effect. In the event such
invalid or unenforceable provision is considered an essential element of this
Agreement, the Parties shall promptly negotiate a replacement provision.
20. NON-WAIVER.
No waiver of the terms and conditions of this Agreement, or the failure of
either Party strictly to enforce any such term or condition on one or more
occasions shall be construed as a waiver of the same or of any other term or
condition of this Agreement on any other occasion.
21. NOTICES.
All notices, requests, demands, consents, agreements and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be mailed to the Party to whom notice is to be given, by
facsimile, and confirmed by first class mail, postage prepaid, and properly
addressed as follow (in which case such notice shall be deemed to have been duly
given on the day the notice is first received by the Party):
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QUALCOMM Incorporated LICENSEE
5775 Morehouse Drive ________________________________________
San Diego, CA 92121-1714 ________________________________________
________________________________________
Facsimile No.: (858) 658-2500 Facsimile No.: _________________________
Telephone No.: (858) 587-1121 Telephone No.: _________________________
Attn: President Attn: __________________________________
with a copy to: with a copy to:
General Counsel ________________________________________
The above addresses can be changed by providing notice to the other Party in
accordance with this Section.
22. PUBLICATION OF AGREEMENT.
Except as may otherwise be required by law or as reasonably necessary for
performance hereunder, each Party shall keep this Agreement and its provisions
confidential and shall not disclose this Agreement or its provisions without
first obtaining the written consent of the other Party, which consent shall not
be unreasonably withheld. The confidentiality obligations hereunder do not apply
to the existence of this Agreement or the fact that QUALCOMM and LICENSEE has
executed this Agreement, but do apply to the terms and conditions of this
Agreement. Any press release or other announcement by either Party concerning
the entering into of this Agreement shall be subject to the prior written
approval of other Party, which approval shall not be unreasonably withheld. In
case a press release or other public announcement to the effect of the Parties'
entering into of this Agreement is issued by either Party pursuant to the
preceding sentence, (i) QUALCOMM may thereafter make a press release or other
public announcement to the effect that LICENSEE is one of QUALCOMM's licensees
for Licensed Products without prior written approval of LICENSEE and (ii)
LICENSEE may thereafter make a press release or other public announcement to the
effect that LICENSEE is licensed by QUALCOMM for Licensed Products without prior
written approval of QUALCOMM.
23. APPLICABLE LAW; VENUE.
This Agreement is made and entered into in the State of California and
shall be governed by and construed and enforced in accordance with the laws of
the State of California without regard to conflict of laws principles. Any
dispute, claim or controversy arising out of or relating to this Agreement, or
the breach or validity hereof, except for those disputes expressly addressed in
Section 24 hereof, shall be adjudicated only by a court of competent
jurisdiction in the county of San Diego, State of California.
24. DISPUTES RELATING TO FOREIGN PATENTS.
Any controversy, claim or dispute (separately or collectively, the
"Dispute") as to whether a product manufactured and/or sold by LICENSEE outside
the United States would, but for the license granted hereunder, infringe any
foreign patent of QUALCOMM licensed
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hereunder and therefore is subject to royalties hereunder, shall be resolved in
accordance with the procedures specified in this Section 24 which shall be the
sole and exclusive procedures for the resolution of any such Dispute.
The Parties will attempt in good faith to resolve promptly any Dispute by
negotiations between senior executives of the Parties who have the authority to
settle the Dispute. If the Dispute is not resolved within [**] days of a party's
written request for negotiation, either party may initiate arbitration as
hereinafter provided.
A Party desiring to commence arbitration shall provide written notice to
the other Party setting forth the Dispute(s) to be arbitrated. Within [**] days
of receipt of such written notice, the Parties will attempt in good faith to
reach agreement on an impartial arbitrator having as nearly as practicable the
following qualifications in order of importance: (1) at least ten years
experience in patent litigation, including substantial participation in at least
two patent trials, and/or ten years experience in patent prosecution in the
telecommunications field and/or at least three years experience as a Federal
Court of Appeals or District Court Judge, (2) expertise in the field of digital
spread spectrum communications as applied to the telecommunications industry,
and (3) some familiarity with the patent laws of the country or countries at
issue in the Dispute. In the event the Parties are unable to agree upon an
arbitrator within [**] days of the above written notice, the arbitrator shall be
selected by Judicial Arbitration and Mediation Service/Endispute, Inc. (or some
similar company if the judicial Arbitration and Mediation Service/Endispute,
Inc. is not available). The selected arbitrator shall be impartial and shall
have, as nearly as practicable, the qualifications set forth above. The Parties
will share equally the fees and expenses of the arbitrator.
The arbitration hearing shall commence in San Diego within [**] days of the
appointment of the arbitrator. The Parties shall be entitled to conduct
discovery prior to the arbitration hearing in accordance with Federal Rules of
Civil Procedure, subject to any limitations ordered by the arbitrator.
The arbitration hearing shall be conducted in accordance with the Federal
Rules of Civil Procedure and the Federal Rules of Evidence or such other
procedures and rules set by the arbitrator. The arbitrator shall be authorized
and empowered only to rule as to whether products manufactured and/or Sold by
LICENSEE in a foreign country or countries would, but for the license granted
hereunder, infringe any claim of the applicable foreign patent(s) of QUALCOMM,
and if so, the amount of the royalties owed by LICENSEE as to such product(s)
under Section 5.2 of this Agreement. The arbitrator shall award attorneys' fees
and costs to the prevailing Party. The arbitrator shall have no authority to
determine whether or not any product(s) of LICENSEE imported into or
manufactured and/or Sold in the United States is subject to the payment of
royalties under this Agreement or to determine any other issue except those
expressly set forth above. The arbitrator shall have no authority to make any
finding or award as to the validity or enforceability of any patent.
The final award of the arbitrator shall be rendered in writing and signed
by the arbitrator. The final award shall be entered within [**] days of the
commencement of the arbitration hearing. Each Party agrees to abide by the
arbitration award, and to the enforcement of the
-23-
arbitration award in the United States. Each Party further agrees that judgment
may be entered upon the award in any court of competent jurisdiction in the
United States.
25. LATE CHARGE.
[**]
26. ATTORNEYS' FEES.
In the event of any proceeding to enforce the provisions of this Agreement,
the prevailing Party (as determined by the court) shall be entitled to
reasonable attorneys' fees as fixed by the court.
27. ENTIRE AGREEMENT.
The terms and conditions contained in this Agreement supersede all prior
and contemporaneous oral or written understandings between the Parties with
respect to the subject matter thereof and constitute the entire agreement of the
Parties with respect to such subject matter, except as set forth in the Supply
Agreement between the Parties of even date herewith. Such terms and conditions
shall not be modified or amended except by a writing signed by authorized
representatives of both Parties.
28. INDEPENDENT CONTRACTORS.
The relationship between QUALCOMM and LICENSEE is that of independent
contractors. QUALCOMM and LICENSEE are not joint venturers, partners, principal
and agent, master and servant, employer or employee, and have no other
relationship other than independent contracting parties.
29. U.S. DOLLARS.
All payments to be made hereunder shall be made in dollars of the United
States of America by wire-transfer and at a bank to be designated by the payee.
30. FORCE MAJEURE.
Neither Party shall be in default or liable for any loss or damage
resulting from delays in performance or from failure to perform or comply with
terms of this Agreement (other than the obligation to make payments, which shall
not be affected by this provision) due to any causes beyond its reasonable
control, which causes include but are not limited to Acts of God or the public
enemy; riots and insurrections; war; fire; strikes and other labor difficulties
(whether or not the Party is in a position to concede to such demands);
embargoes; judicial action; lack of or inability to obtain export permits or
approvals; and acts of civil or military authorities.
-24-
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the Effective Date. This Agreement may be signed in counterpart.
AMENDMENT TO HDR INFRASTRUCTURE EQUIPMENT LICENSE AGREEMENT (THE
"AMENDMENT")
Effective as of December 5, 2001 (the "Amendment Effective Date"), QUALCOMM
Incorporated ("QUALCOMM"), a Delaware corporation, and Airvana, Inc., a Delaware
corporation ("LICENSEE"), hereby agree to amend that certain HDR Infrastructure
Equipment License Agreement dated September 18, 2000 (the "License Agreement")
as follows:
1. Definitions. Unless otherwise specified in this Amendment, capitalized terms
shall have the meaning set forth in the Agreement.
2. Extension of Option to Obtain Infrastructure Equipment License. Section 4.8
of the License Agreement is hereby modified by replacing the words "No later
than [**] months after the Effective Date" therein with the words "No later than
December 27, 2002".
3. No Other Amendment or Modification. Except as expressly set forth in this
Amendment, the License Agreement shall remain in full force and effect without
modification. The terms and conditions of this Amendment and the License
Agreement shall not be modified or amended except by a writing signed by
authorized representatives of both parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed
by their duly authorized representatives as of the Amendment Effective Date.
QUALCOMM INCORPORATED AIRVANA, INC.
By: /s/ Greg R. Cobb By: /s/ Randall S. Battat
--------------------------------- ------------------------------------
Title: V.P. Business Development Title: President & CEO
1
Exhibit 10.8
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
CSM 6800 SOFTWARE AGREEMENT
This CSM 6800 Software Agreement (the "Agreement") is entered into as of April
20, 2004 (the "Effective Date"), by and between QUALCOMM Incorporated, a
Delaware corporation ("QUALCOMM") and Airvana, Inc., a Delaware corporation
("LICENSEE").
RECITALS
WHEREAS, QUALCOMM and LICENSEE have entered into that certain HDR Infrastructure
Equipment License Agreement dated September 18, 2000, pursuant to which QUALCOMM
granted LICENSEE a license under certain QUALCOMM intellectual property to
develop, manufacture and sell certain Code Division Multiple Access ("CDMA")
infrastructure equipment; and
WHEREAS, in accordance with the terms and conditions of this Agreement, QUALCOMM
is willing to deliver a copy of the Software (as defined below) to LICENSEE; and
WHEREAS, LICENSEE desires to receive a copy of the Software for its use in
accordance with the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, the parties, in consideration of the mutual promises set forth
herein, agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the meanings set
forth below:
"Affiliate" has the meaning given to it in the License Agreement.
"CSM 6800 ASIC" means QUALCOMM's CSM 6800 version of cell site modem application
specific integrated circuit.
"License Agreement" means that certain HDR Infrastructure Equipment License
Agreement dated September 18, 2000 between QUALCOMM and LICENSEE.
"Licensed HDR Products" has the meaning given to it in the License Agreement.
"LICENSEE" means Airvana, Inc., a Delaware corporation.
"Party" means QUALCOMM or LICENSEE and "Parties" means QUALCOMM and LICENSEE.
"QUALCOMM" means QUALCOMM Incorporated.
"Software" means QUALCOMM's CSM 6800 Software which in QUALCOMM's sole
discretion, may be in either source code and/or object code form, designed for
use with QUALCOMM's CSM 6800 ASIC, as more fully described in Exhibit A to this
Agreement.
2. SOFTWARE.
2.1 DELIVERY OF SOFTWARE. QUALCOMM shall make commercially reasonable
efforts to deliver the Software in accordance with the schedule set forth in
Exhibit A. However, QUALCOMM shall have the right, at its sole discretion, to
reschedule the releases as required, change the number of releases of the
Software, and/or modify the functionality contained in each such phase and/or
release. For a period ending one year after the final release described in
Exhibit A, (the "Standard Support Period"), QUALCOMM shall deliver bug fixes and
other upgrades to the Software that it generally makes available to other
Software licensees. At
1
LICENSEE's request and upon its payment of an additional support fee to QUALCOMM
in an amount to be mutually agreed upon by the Parties, QUALCOMM shall provide
Software support for the 12-month period immediately following the expiration of
Standard Support Period.
2.2 PAYMENT BY LICENSEE. In consideration for the delivery of the Software
and the rights granted to LICENSEE under Section 3 to use the Software in the
development of its Licensed HDR Products, no later than thirty (30) days after
the Effective Date LICENSEE shall pay to QUALCOMM a non-refundable payment (the
"Up-Front Fee") in the amount of [**] Dollars (US$[**]).
3. RIGHT TO USE. LICENSEE may use the Software solely to develop, manufacture,
sell, upgrade and repair Licensed HDR Products which incorporate QUALCOMM's CSM
6800 ASIC in accordance with and subject to the terms and conditions of the
License Agreement, including the payment of royalties on Licensed HDR Products.
As reasonably necessary to develop, manufacture, sell, upgrade and repair
Licensed HDR Products in accordance with and subject to the terms and conditions
of the License Agreement, LICENSEE shall have the right to (i) except as
provided below, alter, modify, translate or adapt the Software or create
derivative works based thereon; (ii) use or copy the Software for archival
purposes, and (iii) sublicense the object code only of the Software or
derivative works solely when embedded in Licensed HDR Products which incorporate
QUALCOMM's CSM 6800 ASIC in conjunction with the sale of such Licensed HDR
Products in accordance with and subject to the terms and conditions of the
License Agreement. LICENSEE shall have no right to (a) sublicense, transfer or
otherwise disclose the Software in source code form to any third party (other
than Affiliates of LICENSEE in accordance with Section 10), or (b) reverse
engineer, reverse assemble or reverse compile that portion of the code provided
in object code form. Except as expressly permitted above, LICENSEE shall not use
the Software for any other purpose. QUALCOMM retains all ownership rights in and
to the Software and derivative works and nothing herein shall be deemed to grant
any right to LICENSEE under any of QUALCOMM's patents (such rights, if any,
being granted only under the terms of the License Agreement).
4. WARRANTIES. QUALCOMM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THE SOFTWARE OR ANY OTHER INFORMATION OR DOCUMENTATION PROVIDED UNDER THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR
IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR
COURSE OF PERFORMANCE. NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED AS
(i) A WARRANTY OR REPRESENTATION BY QUALCOMM AS TO THE VALIDITY OR SCOPE OF ANY
PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT OR (ii) A WARRANTY OR
REPRESENTATION BY QUALCOMM THAT ANY MANUFACTURE OR USE WILL BE FREE FROM
INFRINGEMENT OF PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF
OTHERS, AND IT SHALL BE THE SOLE RESPONSIBILITY OF LICENSEE TO MAKE SUCH
DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF LICENSES UNDER
PATENTS AND OTHER INTELLECTUAL PROPERTY OF THIRD PARTIES.
5. INTELLECTUAL PROPERTY. Except as expressly provided in Section 3, this
Agreement does not convey to LICENSEE any intellectual property rights in the
Software, including but not limited to any rights under any patent, trademark,
copyright, or trade secret. Except as expressly provided in this Agreement,
LICENSEE may not use or sublicense Software, alone or in combination with other
software or products, without a separate license from QUALCOMM under all
applicable patents, copyrights and trademarks. LICENSEE's use and sale of any
Reportable Product incorporating QUALCOMM's CSM 6800 ASIC and all or any part of
the Software shall be solely in accordance with the terms and conditions of the
License Agreement. This Agreement shall not modify or abrogate LICENSEE's
obligations under the License Agreement, including but not limited to LICENSEE's
obligation to pay all royalties
2
specified thereunder for use of any licensed QUALCOMM intellectual property
(including the Software), and shall not expand or alter LICENSEE's rights
thereunder. Neither the delivery of the Software, nor any provision of this
Agreement shall be construed to grant to LICENSEE either expressly, by
implication or by way of estoppel, any license under any patents or other
intellectual property rights of QUALCOMM covering or relating to any other
product or invention or any combination of the Software with any other product.
6. REPRESENTATION REGARDING USE. LICENSEE hereby represents and warrants to
QUALCOMM that the Software will be used by LICENSEE solely to develop Licensed
HDR Products which incorporate QUALCOMM's CSM 6800 ASIC for manufacture and sale
subject to and in accordance with the License Agreement, including the payment
of the royalty contained therein.
7. TERM AND TERMINATION.
7.1 TERMINATION OF LICENSE AGREEMENT. This Agreement shall commence on the
Effective Date and shall, unless earlier terminated, continue until any
termination of the License Agreement.
7.2 TERMINATION BY EITHER PARTY. This Agreement may be terminated by a
party which is not in material breach hereunder, by written notice to the other
party, following the occurrence of any material breach by such other Party of
any material provision of this Agreement, which material breach is (if capable
of being cured) not cured within [**] days after receipt of such notice.
7.3 REMEDIES ON TERMINATION. In the event of any termination of this
Agreement, LICENSEE shall immediately (i) return to QUALCOMM the Software, and
any copies or updates thereof and (ii) cease using, or permitting to be used,
the Software and any adaptation, modification, derivation or translation
thereof, except that no termination hereof shall cause the termination of any
existing sublicense to any purchaser of LICENSEE's Licensed HDR Products
incorporating the Software or any adaptation, modification, derivation or
translation thereof. Any termination or expiration of this Agreement under this
Section 7 shall not relieve LICENSEE from its liability for payment any amounts
due hereunder and shall not prejudice the right to recover any sums due or
accrued at the time of such termination or expiration (including the full amount
of the Up-Front Fee) and shall not prejudice any cause of action or claim
accrued or to accrue on account of any breach or default. No termination
hereunder shall limit the rights of LICENSEE to sell those Licensed HDR Products
in inventory or in process at the time of termination, subject to payment of the
royalty applicable to the sale of such Licensed HDR Products under the License
Agreement, payment of the full amount of the Up-Front Fee due hereunder, and
continued compliance with the other provisions of this Agreement and the License
Agreement.
8. TAXES. All amounts stated herein and/or required to be paid hereunder are
stated in, and shall be paid in, U.S. Dollars. The prices do not include any
applicable sales, use, excise and/or withholding taxes (except as indicated
below with regard to withholding of income or profits taxes); customs duties;
fees; freight, insurance and delivery charges; or any other taxes, fees, or
charges. All taxes, fees and other charges imposed in conjunction with the
Deliverables shall be paid directly by LICENSEE. In the event QUALCOMM pays any
such fees, taxes, or charges, LICENSEE shall promptly reimburse QUALCOMM
therefor. Notwithstanding the foregoing, in the event sums payable under this
Agreement become subject to income or profits taxes under the tax laws of any
country and applicable treaties between the United States and such country,
LICENSEE may, if and to the extent required by law, withhold from each payment
the amount of said income or profits taxes due and required to be withheld of
each payment. LICENSEE will furnish and make available to QUALCOMM relevant
receipts regarding the payment of any country taxes paid over to any country's
government on behalf of QUALCOMM. Such tax receipts will clearly indicate the
amounts that have been withheld from the gross amounts due to QUALCOMM.
3
9. LIMITATION OF LIABILITY
9.1 EXCEPT IN THE EVENT OF A BREACH BY QUALCOMM OF SECTION 10 OF THIS
AGREEMENT, IN NO EVENT SHALL QUALCOMM BE LIABLE TO LICENSEE AND ITS AFFILIATES
FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED
TO ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL DAMAGES, ARISING OUT OF
THE USE OR INABILITY TO USE, OR THE DELIVERY OR FAILURE TO DELIVER, ANY OF THE
SOFTWARE, EVEN IF QUALCOMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT
REGARDLESS OF WHETHER LICENSEE'S REMEDIES HEREUNDER ARE DETERMINED TO HAVE
FAILED OF THEIR ESSENTIAL PURPOSE.
9.2 EXCEPT IN THE EVENT OF A BREACH BY QUALCOMM OF SECTION 10 OF THIS
AGREEMENT, IN ADDITION TO SECTION 9.1, THE ENTIRE LIABILITY OF QUALCOMM, AND THE
SOLE AND EXCLUSIVE REMEDY OF LICENSEE, FOR ANY CLAIM OR CAUSE OF ACTION ARISING
HEREUNDER (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE
UP-FRONT FEE PAID FOR THE SOFTWARE WHICH IS THE SUBJECT OF SUCH CLAIM OR CAUSE
OF ACTION.
9.3 EXCEPT IN THE EVENT OF A BREACH BY LICENSEE OF SECTION 3, SECTION 6 OR
SECTION 10 OF THIS AGREEMENT, LICENSEE SHALL NOT BE LIABLE TO QUALCOMM AND ITS
AFFILIATES FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT
NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL DAMAGES,
ARISING OUT OF THE USE OR INABILITY TO USE, OR THE DELIVERY OR FAILURE TO
DELIVER, ANY OF THE SOFTWARE, EVEN IF LICENSEE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL REMAIN
IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER QUALCOMM'S REMEDIES HEREUNDER ARE
DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9.4 EXCEPT IN THE EVENT OF A BREACH BY LICENSEE OF SECTION 3, SECTION 6, OR
SECTION 10 OF THIS AGREEMENT, IN ADDITION TO SECTION 9.3, THE ENTIRE LIABILITY
OF LICENSEE, AND THE SOLE AND EXCLUSIVE REMEDY OF QUALCOMM, FOR ANY CLAIM OR
CAUSE OF ACTION ARISING HEREUNDER (WHETHER IN CONTRACT, TORT, OR OTHERWISE)
SHALL NOT EXCEED THE UP-FRONT FEE PAID FOR THE SOFTWARE WHICH IS THE SUBJECT OF
SUCH CLAIM OR CAUSE OF ACTION.
10. RESTRICTIONS ON DISCLOSURE AND USE. All documentation and technical and
business information and intellectual property in whatever form recorded that a
Party does not wish to disclose without restriction ("Information") shall remain
the property of the furnishing Party and may be used by the receiving Party only
as follows. Such Information (a) shall not be reproduced or copied, in whole or
part, except for use as expressly authorized in this Agreement; (b) shall,
together with any full or partial copies thereof, be returned or destroyed when
no longer needed or upon any termination of this Agreement; and (c) shall be
disclosed only to employees or agents of a Party and Affiliates of a Party, all
with a need to know. Such Affiliates or agents shall enter into a nondisclosure
agreement with the receiving Party setting forth the obligations substantially
equal to those herein prior to the disclosure of Information by receiving Party
to such Affiliates or agents. Moreover, such Information shall be used by the
receiving Party only for the purposes contemplated under this Agreement or in
the exercise of its rights it may receive expressly under the provisions of this
Agreement. Unless the furnishing Party consents in this Agreement or otherwise
in writing, such Information shall be held in strict confidence by the receiving
Party. The receiving Party may disclose such Information to other persons, upon
the furnishing Party's prior written authorization, but solely to perform acts
which this clause
4
expressly authorizes the receiving Party to perform itself and further provided
such other person agrees in writing (a copy of which writing will be provided to
the furnishing Party at its request) to the same conditions respecting use of
Information contained in this clause and to any other reasonable conditions
requested by the furnishing Party. These restrictions on the use or disclosure
of Information shall not apply to any Information: (i) which can be proven to be
or have been independently developed by the receiving Party or lawfully received
free of restriction from another source having the right to so furnish such
Information; or (ii) after it has become generally available to the public
without breach of this Agreement by the receiving Party; or (iii) which at the
time of disclosure to the receiving Party was known to such Party free of
restriction and clearly evidenced by documentation in such Party's possession;
or (iv) which the disclosing Party agrees in writing is free of such
restrictions.
11. SCOPE OF INFORMATION. Information is subject to Section 10 whether delivered
orally or in tangible form and without regard to whether it has been identified
or marked as confidential or otherwise subject to Section 10. Each Party agrees
to use its best efforts to mark or otherwise identify proprietary all
Information they desire to be subject to the terms of these provisions before
furnishing it to the other Party. And, upon request, a Party shall promptly
identify whether specified information must be held by the requesting Party
subject to Section 10. Information which is delivered orally may be summarized
in writing by the disclosing Party and delivered to the receiving Party within
[**] days after disclosure thereof.
12. ASSIGNMENT. LICENSEE shall not assign this Agreement or any right or
interest under this Agreement, nor delegate any obligation to be performed under
this Agreement to any third party unless it has also assigned the License
Agreement to such third party in accordance with the assignment provisions
thereof. Any attempted assignment in contravention of this Section 12 shall be
void.
13. APPLICABLE LAW. This Agreement is made and entered into in the State of
California and shall be governed by and construed and enforced in accordance
with the laws of the State of California, excluding the U.N. Convention on
International Sale of Goods, without regard to conflict of laws principles. Any
dispute, claim or controversy arising out of or relating to this Agreement, or
the breach or validity hereof, shall be adjudicated only by a court of competent
jurisdiction in the county of San Diego, State of California, and each Party
hereby consents to the personal jurisdiction of such courts for that purpose. In
the event of any proceeding to enforce the provisions of this Agreement, the
prevailing Party (as determined by the court) shall be entitled to reasonable
attorneys' fees as fixed by the court.
14. FORCE MAJEURE. Neither Party shall be in default or liable for any loss or
damage resulting from delays in performance or from failure to perform or comply
with terms of this Agreement (other than the obligation to make payments, which
shall not be affected by this provision) due to any causes beyond its reasonable
control, which causes include but are not limited to Acts of God or the public
enemy; riots and insurrections; war; fire; strikes and other labor difficulties
(whether or not the Party is in a position to concede to such demands);
embargoes; judicial action; lack of or inability to obtain export permits or
approvals, necessary labor, materials, energy, components or machinery; and acts
of civil or military authorities.
15. LATE CHARGE. Each Party may charge the other a late charge, with respect to
any amounts that the other owes hereunder and fails to pay on or before the due
date, in an amount equal to the lesser of [**] percent ([**]%) per month,
pro-rated, or the maximum amount permitted by law.
16. MISCELLANEOUS PROVISIONS. No addition or modification of the Agreement shall
be effective unless made in writing and signed by the respective representatives
of QUALCOMM and LICENSEE. Any delay or failure to enforce at any time any
provision of the Agreement shall not constitute a waiver of the right thereafter
to enforce each and every provision thereof. If any of the provisions of the
Agreement is determined to be invalid, illegal, or otherwise unenforceable,
5
the remaining provisions shall remain in full force and effect. The Parties'
rights and obligations which by their sense and context are intended to survive
any termination or expiration of this Agreement shall so survive, including but
not limited to Sections 4, 5, 6, 9, 10, 11, 13 and 16 hereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the date first set forth above.
QUALCOMM INCORPORATED AIRVANA, INC.
By: /s/ James P. Lederer By: /s/ Vedat Eyuboglu
--------------------------------- ------------------------------------
Title: Vice President, Finance Title: Chief Technical Officer
6
EXHIBIT A
CSM 6800 SOFTWARE
CELL SITE MODEM (CSM) 6800 SOFTWARE: The CSM 6800 Software will contain the
following features and be designed to operate generally in accordance with the
Telecommunications Industry Association per the published 3rd Generation
Partnership Project 2, 3GPP2 C.S0024-A, "cdma2000 High Rate Packet Data Air
Interface Specification":
- ENHANCED IDLE STATE PROTOCOL including: Inactive, Sleep, Monitor and
Connection Setup States, utilized when the Access Terminal (AT) has
acquired a network and a connection is not open.
- ENHANCED ACCESS CHANNEL MAC PROTOCOL including Inactive and Active
States which provide procedures and messages for an AT to transmit and
an Access Network (AN) to receive the Access Channel.
- ENHANCED FORWARD TRAFFIC CHANNEL MAC PROTOCOL including: Single User
Simplex, Single User Multiplex and Multi-User MAC layer packets.
- HIGH RATE PACKET DATA BROADCAST-MULTICAST FEATURE: Capability to
configure, open, and close forward link broadcast (one-to-many
multimedia communication stream on the forward link) channels. This
feature will be compliant with the broadcast feature standard as being
defined in 3GPP2, C.SP0054-0.
- QUALITY OF SERVICE FEATURE: Support for multiple transmit queues per
user which can be configured to be Assured Forwarding (AF), Expedited
forwarding (EF) or best effort (BE). AF meets specified rate
guarantees, EF meets specified delay guarantees, and BE has no
associated guarantees.
- BTS PACKING FEATURE: Improves packing efficiency for users and flows
opened on the forward traffic channel, for both Rel. 0 and Rev. A. The
CSM 6800 driver will support connection and MAC layer packing. At the
driver API, RLP payloads of varying sizes will be accepted.
- ENCRYPTION supported per 3GPP2, C.S0039 specification.
The CSM 6800 Software will be delivered in multiple releases as follows:
ALPHA RELEASE 1.0 is scheduled for the fourth calendar quarter of 2004 (or no
later than ten days after the Effective Date, whichever is later). This release
is deemed to be of alpha quality. An alpha release is intended as an early
preview of the new features of the CSM6800 Driver Software and, although
representative of the commercial release, has not undergone complete testing and
may not include all features scheduled for the CSM 6800 Software.
RELEASE 1.0 is scheduled for the second calendar quarter of 2005 and will
include the same feature set as Alpha release but would be of commercial grade
having undergone more rigorous and complete testing than the Alpha release.
RELEASE 2.0 is scheduled for the fourth calendar quarter of 2005 and will
include new features not previously included in the Alpha and 1.0 Releases and
will be of commercial grade having undergone rigorous and complete testing.
LICENSEE acknowledges and understands that the CSM 6800 Software is not designed
to operate in accordance with each and every provision of the standards set
forth in this Exhibit A.
7
Exhibit 10.9
LEASE AGREEMENT BETWEEN
W9/TIB III REALTY, L.L.C.,
AS LANDLORD, AND
AIRVANA, INC.,
AS TENANT
DATED OCTOBER 4, 2004
19 ALPHA ROAD, CHELMSFORD, MASSACHUSETTS
BASIC LEASE INFORMATION
Lease Date: October 4, 2004
Landlord: W9/TIB III REALTY, L.L.C., a Delaware limited
liability company
Tenant: AIRVANA, INC., a Delaware corporation
Premises: The Land (as hereinafter defined) located at 19
Alpha Road, Chelmsford, Massachusetts together
with all improvements located thereon including
the building thereon containing approximately
63,220 rentable square feet (the "BUILDING", and
collectively, the "PREMISES"), as shown on the
site plan attached hereto as Exhibit A. The land
on which the Building is located (the "LAND") is
described on Exhibit B and includes certain
parking areas, roadways and driveways. The term
"PROJECT" shall collectively refer to the
Building, the Land and the driveways, parking
facilities, loading dock areas, roadways, any rail
tracks associated with the Building and similar
improvements and easements associated with the
foregoing or the operation thereof.
Term: Approximately eighty-four (84) months, commencing
on the Commencement Date and ending at 11:59 p.m.
local time on the last day of the 84th full
calendar month following the Commencement Date,
subject to adjustment and earlier termination as
provided in the Lease.
Commencement Date: The earlier of (a) the date on which Tenant
occupies any portion of the Premises and begins
conducting business therein, provided that the
term "conducting business" shall not include the
completion of the Work, or (b) subject to the
provisions of Section 28(g) below, two hundred
(200) days after the Lease Date. Subject to the
provisions of Section 28(g) below, Tenant shall
have access to the Premises upon full execution of
the Lease for performance of the Work and
installation of communications equipment and
furniture and other fit-up components, business
fixtures and equipment. During the period between
the date on which Tenant takes possession of the
Premises for such purposes and the Commencement
Date, Tenant shall be subject to all the
provisions of this Lease except payment of Basic
Rent and Additional Rent (defined below).
Basic Rent Basic Rent shall be the following amounts for the
following periods of time:
LEASE ANNUAL BASIC MONTHLY
MONTH RENT RATE BASIC RATE
------- ------------ ----------
1 - 36 $568,980.00 $47,415.00
37 - 60 $600,590.00 $50,049.17
61 - 84 $616,395.00 $51,366.25
As used herein, the term "LEASE MONTH" means each
calendar month during the Term (and if the
Commencement Date does not occur on the first day
of a calendar month, the period from the
Commencement Date to the first day of the next
calendar month shall be included in the first
Lease Month for purposes of determining the
duration of the Term and the monthly Basic Rent
rate applicable for such partial month).
Additional Rent: Tenant's Proportionate Share of Operating Costs,
Taxes and Insurance Costs.
Letter of Credit: $142,245.00
i
Rent: Basic Rent, Additional Rent, and all other sums
that Tenant may owe to Landlord or otherwise be
required to pay under the Lease.
Permitted Use: Office, research and development laboratory and
light assembly.
Tenant's Proportionate 100%, which is the percentage obtained by dividing
Share: (a) the number of rentable square feet in the
Premises as stated above by (b) the 63,220
rentable square feet in the Building. Landlord and
Tenant stipulate that the number of rentable
square feet in the Premises and in the Building
set forth above is conclusive and shall be binding
upon them.
Initial Liability Insurance $3,000,000
Amount
Tenant's Address Prior to Commencement Date: Following Commencement Date:
Airvana, Inc. Airvana, Inc.
25 Industrial Avenue 19 Alpha Road
Chelmsford, MA 01824 Chelmsford, MA 01824
Attention: Chief Financial Officer Attention: Chief Financial Officer
Telephone: 978-250-3000 Telephone: ___-___-____
Telecopy: 978-250-3910 Telecopy: ___-___-____
With a copy to:
Wilmer Cutler Pickering
Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Paul Jakubowski, Esq.
Telephone: 617-526-6193
Telecopy: 617-526-5000
Landlord's Address: With a copy to:
W9/TIB III Realty, L.L.C. W9/TIB III Realty, L.L.C.
c/o Grubb & Ellis Management c/o Archon Group, L.P.
Services, Inc. 600 East Las Colinas Blvd., Suite 400
267 Boston Road, Suite 6 Irving, Texas 75039
Billerica, MA 01862 Attention: General Counsel -
Attention: Property Manager 19 Alpha Road,
Telephone: 978-439-8000 Chelmsford, MA
Telecopy: 978-439-8080 Telephone: 972-368-2200
Telecopy: 972-368-3199
ii
The foregoing Basic Lease Information is incorporated into and made a part of
the Lease identified above. If any conflict exists between any Basic Lease
Information and the Lease, then the Lease shall control.
LANDLORD: W9/TIB III REALTY, L.L.C.,
a Delaware limited liability company
By: /s/ David Paul
------------------------------------
Name: David Paul
Title: VP
TENANT: AIRVANA, INC., a Delaware corporation
By: /s/ David P. Gamache
------------------------------------
Name: David P. Gamche
Title: CFO
(a) Repair Estimate......................................... 15
(b) Tenant's Rights......................................... 15
(c) Landlord's Rights....................................... 15
(d) Repair Obligation....................................... 15
(e) Abatement of Rent....................................... 15
17. Personal Property Taxes........................................ 16
18. Events of Default.............................................. 16
(a) Payment Default......................................... 16
(b) Intentionally Omitted................................... 16
(c) Estoppel................................................ 16
(d) Insurance............................................... 16
(e) Mechanic's Liens........................................ 16
(f) Other Defaults.......................................... 16
(g) Insolvency.............................................. 16
19. Remedies....................................................... 16
(a) Termination of Lease.................................... 17
(b) Termination of Possession............................... 17
(c) Perform Acts on Behalf of Tenant........................ 17
20. Payment by Tenant; Non-Waiver; Cumulative Remedies............. 17
(a) Payment by Tenant....................................... 17
(b) No Waiver............................................... 17
(c) Cumulative Remedies..................................... 18
21. Intentionally Omitted.......................................... 18
22. Surrender of Premises.......................................... 18
23. Holding Over................................................... 18
24. Certain Rights Reserved by Landlord............................ 19
(a) Building Operations..................................... 19
(b) Security................................................ 19
(c) Prospective Purchasers and Lenders...................... 19
(d) Prospective Tenants..................................... 19
25. Intentionally omitted.......................................... 19
26. Miscellaneous.................................................. 19
(a) Landlord Transfer....................................... 19
(b) Landlord's Liability.................................... 19
(c) Force Majeure........................................... 19
(d) Brokerage............................................... 20
(e) Estoppel Certificates................................... 20
(f) Notices................................................. 20
(g) Separability............................................ 20
(h) Amendments; Binding Effect; No Electronic Records....... 20
(i) Quiet Enjoyment......................................... 20
(j) No Merger............................................... 21
(k) No Offer................................................ 21
(l) Entire Agreement........................................ 21
(m) Waiver of Jury Trial.................................... 21
(n) Governing Law........................................... 21
(o) Notice of Lease......................................... 21
(p) Water or Mold Notification.............................. 21
(q) Joint and Several Liability............................. 21
(r) Financial Reports....................................... 21
(s) Landlord's Fees......................................... 22
(t) Telecommunications...................................... 22
(u) Confidentiality......................................... 22
(v) Authority............................................... 22
(w) Rooftop Equipment....................................... 22
(x) Signage................................................. 23
v
(y) List of Exhibits........................................ 23
(z) Prohibited Persons and Transactions..................... 23
(aa) Landlord's Default...................................... 24
(bb) Failure of Tenant to Continuously Occupy the Premises... 24
27. Letter of Credit............................................... 24
(a) General Provisions...................................... 24
(b) Drawings under Letter of Credit......................... 24
(c) Use of Proceeds by Landlord............................. 25
(d) Additional Covenants of Tenant.......................... 25
(e) Transfer of Letter of Credit............................ 26
(f) Nature of Letter of Credit.............................. 26
28. Environmental Requirements..................................... 26
(a) Prohibition against Hazardous Materials................. 26
(b) Environmental Requirements.............................. 26
(c) Removal of Hazardous Materials.......................... 26
(d) Tenant's Indemnity...................................... 27
(e) Inspections and Tests................................... 27
(f) Tenant's Financial Assurance in the Event of a Breach... 27
(g) ACM Removal............................................. 27
29. Parking........................................................ 28
30. Other Provisions............................................... 29
vi
LIST OF DEFINED TERMS
Page No.
-----------
2004 Estimated Operating Costs.................................... 2
Abatement Period ................................................. 28
ACM Contractors .................................................. 28
ACM Work ......................................................... 28
Adjoining 21 Alpha Parking Areas ................................. 28
Affiliate ........................................................ 1
Approval Criteria ................................................ D-2
Architect ........................................................ D-1
AS-IS ............................................................ D-1
Basic Lease Information .......................................... 1
Building ......................................................... i
Building's Structure ............................................. 1
Building's Systems ............................................... 1
Cash Inducement .................................................. 5
Casualty ......................................................... 15
Completed Application for Payment ................................ D-3
Construction Allowance ........................................... D-3
Construction Allowance Increase .................................. D-3
Damage Notice .................................................... 15
Default Rate ..................................................... 5
Engineered Parking Plan .......................................... 28
Environmental Requirements ....................................... 26
Event of Default.................................................. 16
Final LC Expiration Date ......................................... 24
GAAP ............................................................. 11
Hazardous Materials .............................................. 26
Insurance Costs .................................................. 12
Land ............................................................. i
Landlord ......................................................... 1, E-1
Landlord's Mortgagee ............................................. 12
Law .............................................................. 1
Laws ............................................................. I, E-1
LC Proceeds Account .............................................. 25
Lease ............................................................ 1, E-1, F-1
Lease Month....................................................... i
Letter of Credit ................................................. 24
Letter of Credit Amount .......................................... 24
Loss ............................................................. 12
Mortgage ......................................................... 12
OFAC ............................................................. 23
Operating Costs .................................................. 2
Operating Costs and Tax Statement ................................ 4
Parking Allowance ................................................ 28
Parking Work ..................................................... 28
Permitted Transfer ............................................... 10
Permitted Transferee ............................................. 10
Prevailing Rental Rate ........................................... G-1
Primary Lease .................................................... 12
Project .......................................................... i
Punchlist Items .................................................. E-1
Repair Period .................................................... 15
Rooftop Equipment ................................................ 22
vii
Security Deposit Laws ............................................ 26
SNDA ............................................................. 13
Space Plans....................................................... D-1
Substantial Completion............................................ D-3
Substantially Completed .......................................... D-3
Taking ........................................................... 14
Tangible Net Worth................................................ 11
Taxes ............................................................ 3
Telecommunications Services ...................................... 22
Tenant ........................................................... 1, 16, E-1
Tenant Party ..................................................... 1
Tenant's Off-Premises Equipment .................................. 1
Total Construction Costs ......................................... D-3
Transfer ......................................................... 9
Work ............................................................. D-1
Working Drawings ................................................. D-1
Working Drawings Delivery Deadline ............................... D-1
viii
LEASE
THIS LEASE AGREEMENT (this "LEASE") is entered into as of October 4, 2004,
between W9/TIB III REALTY, L.L.C., a Delaware limited liability company
("LANDLORD"), and AIRVANA, INC., a Delaware corporation ("TENANT").
1. DEFINITIONS AND BASIC PROVISIONS. The definitions and basic provisions
set forth in the Basic Lease Information (the "BASIC LEASE INFORMATION")
executed by Landlord and Tenant contemporaneously herewith are incorporated
herein by reference for all purposes. Additionally, the following terms shall
have the following meanings when used in this Lease: "AFFILIATE" means any
person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
party in question; "BUILDING'S STRUCTURE" means the Building's exterior walls,
roof, footings, foundations, structural portions of load-bearing walls,
structural floors and subfloors, and structural columns and beams; "BUILDING'S
SYSTEMS" means the Building's HVAC, life-safety, plumbing, electrical, and
mechanical systems; "including" means including, without limitation; "LAWS"
means all federal, state, and local laws, ordinances, rules and regulations, all
court orders, governmental directives, and governmental orders, and all
interpretations of the foregoing, and all restrictive covenants affecting the
Project, and "LAW" means any of the foregoing; "TENANT'S OFF-PREMISES EQUIPMENT"
means any of Tenant's equipment or other property that may be located on or
about the Project (other than on the Premises); and "TENANT PARTY" means any of
the following persons: Tenant; any assignees claiming by, through, or under
Tenant; any subtenants claiming by, through, or under Tenant; and any of their
respective agents, contractors, employees, licensees, guests and invitees.
2. LEASE GRANT. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises.
3. TENDER OF POSSESSION. Possession of the Premises will be tendered to
Tenant in the condition required by this Lease on the Lease Date. Within ten
(10) days after request by Landlord, Tenant shall execute and deliver to
Landlord a letter substantially in the form of Exhibit E hereto confirming (1)
the Commencement Date and the expiration date of the initial Term, and (2) that
Tenant has accepted the Premises. However, the failure of the parties to execute
such letter shall not defer the Commencement Date or otherwise invalidate this
Lease. Occupancy of the Premises by Tenant prior to the Commencement Date shall
be subject to all of the provisions of this Lease excepting only those requiring
the payment of Basic Rent and Additional Rent.
4. RENT.
(a) PAYMENT. Tenant shall timely pay to Landlord Rent, without notice
(except as set forth in Section 4(b)(1) below), demand, deduction or set off
(except as otherwise expressly provided herein), by good and sufficient check
drawn on a national banking association at Landlord's address provided for in
this Lease or as otherwise specified by Landlord and shall be accompanied by all
applicable state and local sales or use taxes. The obligations of Tenant to pay
Basic Rent and other sums to Landlord and the obligations of Landlord under this
Lease are independent obligations. Basic Rent, adjusted as herein provided,
shall be payable monthly in advance. The first monthly installment of Basic Rent
shall be payable contemporaneously with the execution of this Lease; thereafter,
Basic Rent shall be payable on the first day of each month beginning on the
first day of the second full calendar month of the Term. The monthly Basic Rent
for any partial month at the beginning of the Term shall equal the product of
1/365 of the annual Basic Rent in effect during the partial month and the number
of days in the partial month, and shall be due on the Commencement Date.
Payments of Basic Rent for any fractional calendar month at the end of the Term
shall be similarly prorated. Tenant shall pay Additional Rent at the same time
and in the same manner as Basic Rent.
(b) OPERATING COSTS; TAXES.
(1) Tenant shall pay to Landlord Tenant's Proportionate Share of
the annual Operating Costs (defined below). Landlord may make a good faith
estimate of Tenant's Proportionate Share of Operating Costs to be due by
Tenant for any calendar year or part thereof during the Term. During each
calendar year or partial calendar year of the Term, Tenant shall pay to
Landlord, in advance concurrently with each monthly installment of Basic
Rent, an amount equal to the estimated Tenant's
1
Proportionate Share of Operating Costs for such calendar year or part
thereof divided by the number of months therein. From time to time,
Landlord may estimate and re-estimate the amount of Tenant's Proportionate
Share of Operating Costs to be due by Tenant and deliver a copy of the
estimate or re-estimate to Tenant. Thereafter, the monthly installments of
Tenant's Proportionate Share of Operating Costs payable by Tenant shall be
appropriately adjusted in accordance with the estimations so that, by the
end of the calendar year in question, Tenant shall have paid all of
Tenant's Proportionate Share of Operating Costs as estimated by Landlord.
Any amounts paid based on such an estimate shall be subject to adjustment
as herein provided when actual Operating Costs are available for each
calendar year.
(2) The term "OPERATING COSTS" means all expenses and
disbursements (subject to the limitations set forth below) that Landlord
incurs in connection with the ownership, operation, and maintenance of the
Project, determined in accordance with sound accounting principles
consistently applied, including the following costs: (A) wages and salaries
of all on-site employees at or below the grade of senior building manager
engaged in the operation, maintenance or security of the Project (together
with Landlord's reasonable allocation of expenses of off-site employees at
or below the grade of senior building manager who perform a portion of
their services in connection with the operation, maintenance or security of
the Project), including taxes, insurance and benefits relating thereto; (B)
all supplies and materials used in the operation, maintenance, repair,
replacement, and security of the Project; (C) repairs and general
maintenance of the Project including paving and parking areas, roads, roof
repairs (Landlord is responsible, at its sole cost and expense, for
replacement of the parking areas and Building Structure items as provided
in Section 7), alleys and driveways, trash collection, sweeping and removal
of trash for the common areas, mowing and snow removal, landscaping and
exterior painting, the cost of maintaining utility lines, fire sprinklers
and fire protection systems, exterior lighting, and mechanical and plumbing
systems serving the Project and, to the extent the following items serve
more than one tenant in the Project, dock doors, drains and sump pumps; (D)
other costs (exclusive of fair market rental) with respect to the
management office for the Project; (E) service, maintenance and management
contracts with independent contractors for the operation, maintenance,
management, repair, replacement, and security of the Project (including
alarm service, window cleaning, and elevator maintenance); (F) costs of
professional services rendered for the general benefit of the Project; (G)
environmental insurance or environmental management fees; (H) the cost of
any insurance deductibles for insurance required to be maintained by
Landlord; and (I) costs for capital improvements made in order to comply
with any Law hereafter promulgated by any governmental authority or any new
interpretations of any Law hereafter rendered with respect to any existing
Law, as amortized using a commercially reasonable interest rate over the
useful economic life of such improvements as determined by Landlord in its
reasonable discretion. Attached hereto as Exhibit J is a line item summary
of estimated Operating Costs for calendar year 2005 ("2005 ESTIMATED
OPERATING COSTS") and said line item summary encompasses all categories of
Operating Costs for the Project. The 2005 Estimated Operating Costs reflect
Landlord's good faith estimate of such estimated Operating Costs for
calendar year 2005. Notwithstanding the 2005 Estimated Operating Costs,
Tenant acknowledges and agrees that the actual Operating Costs for calendar
year 2005 and for future calendar years may exceed the 2005 Estimated
Operating Costs and that Landlord is making no representation or warranty
as to the actual Operating Costs for calendar year 2005 and for future
calendar years. Notwithstanding any provisions of this Lease to the
contrary, Operating Costs related to the Project (as opposed to Operating
Costs related solely to the Premises) shall be determined by the recorded
easement agreements referenced in Exhibit B attached hereto and Tenant's
Proportionate Share of Operating Costs related to the Project shall equal
all those costs Landlord is required to pay under said easement agreements
as fee owner of the Premises exclusive of any costs relating to the
replacement of the parking areas.
If any roof repair caused by a roof leak is required (provided such
leak was not caused by any act or omission by any Tenant Party) on more
than five (5) different occasions in a given calendar year and an
experienced roof consultant mutually selected by Landlord and Tenant
determines in its reasonable judgment that the roof should be replaced (as
opposed to repaired), Landlord shall replace the roof within a reasonable
time period at its sole cost and expense.
At Tenant's election, Tenant may extend the existing roof warranty
beyond July, 2005 at its sole cost and expense by notifying Landlord on or
before May 1, 2005 that it desires Landlord to extend the existing roof
warranty beyond July, 2005 for an additional five (5) years. Upon receipt
of Tenant's notice
2
to Landlord to extend the existing roof warranty, Landlord shall arrange
for the roof to be inspected at Tenant's sole cost and expense (if any) on
or before June 1, 2005 and, at Tenant's option if Tenant desires Landlord
to so extend the existing roof warranty, for any repairs recommended by
said inspection to be made by Landlord's roofing contractor at Tenant's
sole cost and expense; provided, however, irrespective of whether Tenant
opts to have Landlord perform such repairs in order to extend the existing
roof warranty, Landlord shall perform any such roof repairs required to be
performed pursuant to the provisions of this Lease, including, without
limitation, Section 7 hereof.
Operating Costs shall not include costs for (i) capital improvements
made to the Project, other than capital improvements described in Section
4(b)(2)(I) and except for items which are generally considered maintenance
and repair items, such as painting of common areas, replacement of carpet
in elevator lobbies (if any), and the like; (ii) repair, replacements and
general maintenance paid by proceeds of insurance or by Tenant or other
third parties; (iii) principal, interest, amortization or other payments on
loans to Landlord; (iv) depreciation; (v) leasing commissions; (vi) legal
expenses for services, other than those that benefit the Project tenants
generally (e.g., tax disputes) (vii) Taxes; (viii) Insurance Costs; (ix)
renovating or otherwise improving space for occupants of the Project or
vacant space in the Project; (x) federal income taxes imposed on or
measured by the income of Landlord from the operation of the Project; (xi)
any ground or underlying lease rental; (xii) rentals for items which if
purchased, rather than rented, would constitute a capital cost; (xiii)
costs incurred by Landlord to the extent that Landlord is reimbursed by
insurance proceeds or is otherwise reimbursed; (xiv) advertising and
promotional expenditures, and costs of acquisition and maintenance of signs
in or on the Building identifying the owner of the Building; (xv) marketing
costs, including attorneys' fees (in connection with the negotiation and
preparation of letters, deal memos, letters of intent, leases, subleases
and/or assignments), space planning costs, and other costs and expenses
incurred in connection with lease, sublease and/or assignment negotiations
and transactions with prospective tenants or other occupants of the
Building; (xvi) management fees paid or charged by Landlord in connection
with the management of the Building to the extent such management fee is in
excess of the management fee customarily paid or charged by landlords of
the comparable buildings in the vicinity of the Building; (xvii) amounts
paid to Landlord or to subsidiaries or affiliates of Landlord for goods
and/or services in the Building to the extent the same exceeds the costs of
such goods and/or services rendered by unaffiliated third parties on a
competitive basis; (xviii) Landlord's general corporate overhead and
general and administrative expenses; (xix) costs incurred in connection
with upgrading the Building to comply with laws, rules, regulations and
codes in effect prior to the Lease Date; (xx) all assessments and premiums
(exclusive of real estate taxes and insurance premiums) which are not
specifically charged to Tenant because of what Tenant has done, which can
be paid by Landlord in installments without any interest or penalties,
shall be paid by Landlord in the maximum number of installments permitted
by law and not included as Operating Costs except in the year in which the
assessment or premium installment is actually paid; (xxi) costs arising
from Landlord's charitable or political contributions; (xxii) costs for
sculpture, paintings or other objects of art; and (xxiii) costs associated
with the operation of the business of the entity which constitutes Landlord
as the same are distinguished from the costs of operation of the Building,
including accounting and legal matters, costs of defending any lawsuits
with any mortgagee (except as the actions of Tenant may be in issue), costs
of selling, syndicating, financing, mortgaging or hypothecating any of
Landlord's interest in the Building, costs incurred in connection with any
disputes between Landlord and its employees, between Landlord and Building
management, or between Landlord and other tenants or occupants.
(3) Tenant shall also pay Tenant's Proportionate Share of the
Taxes for each year and partial year falling within the Term. Tenant shall
pay Tenant's Proportionate Share of Taxes in the same manner as provided
above for Tenant's Proportionate Share of Operating Costs. "TAXES" means
taxes, assessments, and governmental charges or fees whether federal,
state, county or municipal, and whether they be by taxing districts or
authorities presently taxing or by others, subsequently created or
otherwise, and any other taxes and assessments (including non-governmental
assessments for common charges under a restrictive covenant or other
private agreement that are not treated as part of Operating Costs) now or
hereafter attributable to the Project (or its operation), excluding,
however, penalties and interest thereon and federal and state taxes on
income, and inheritance, estate, succession, transfer, gift, franchise, or
capital stock tax, or any income taxes arising out of or related to
ownership and operation of income producing real estate, or any excise
taxes imposed upon Landlord based upon gross or net rentals or
3
other income received by it (if the present method of taxation changes so
that in lieu of or in addition to the whole or any part of any Taxes, there
is levied on Landlord a capital tax directly on the rents received
therefrom or a franchise tax, assessment, or charge based, in whole or in
part, upon such rents for the Project, then all such taxes, assessments, or
charges, or the part thereof so based, shall be deemed to be included
within the term "Taxes" for purposes hereof). Taxes shall include the costs
of consultants retained in an effort to lower taxes and all costs incurred
in disputing any taxes or in seeking to lower the tax valuation of the
Project. Upon Tenant's reasonable prior written request of Landlord, Tenant
may request that Landlord file for an abatement or protest or appeal the
appraised value of the Premises. Tenant shall use good faith efforts to
provide notice to Landlord of such request at least forty-five (45) days
prior to the date by which such abatement, protest or appeal must be filed
under applicable Law. Within fifteen (15) business days of the date
Landlord receives such request from Tenant, Landlord shall notify Tenant as
to whether Landlord elects to pursue such abatement, protest or appeal,
and, if Landlord so elects to pursue the same, then within a reasonable
period of time required to preserve Landlord's rights to engage in any such
abatement, protest or appeal, Landlord shall commence and diligently pursue
such abatement, protest or appeal with an attorney or tax consultant
reasonably satisfactory to Tenant. Tenant hereby acknowledges that Deloitte
Touche (or any other national firm with which Landlord has an arrangement
from time to time with respect to abatement work) shall be deemed
acceptable to Tenant. If within such fifteen (15) business day period
Landlord does not notify Tenant that Landlord elects to pursue any such
abatement, protest or appeal, Tenant shall then have the right to pursue
such abatement, protest or appeal using an attorney or tax consultant
reasonably satisfactory to Landlord.
(4) By April 1 of each calendar year, or as soon thereafter as
practicable, Landlord shall furnish to Tenant a statement of Operating
Costs and Taxes for the previous year (the "OPERATING COSTS AND TAX
STATEMENT"). If Tenant's payments of Operating Costs or Taxes under this
Section 4(b) for the year covered by the Operating Costs and Tax Statement
exceed Tenant's Proportionate Share of such items as indicated in the
Operating Costs and Tax Statement, then Landlord shall promptly credit or
reimburse Tenant for such excess; likewise, if Tenant's payments of
Operating Costs or Taxes under this Section 4(b) for such year are less
than Tenant's Proportionate Share of such items as indicated in the
Operating Costs and Tax Statement, then Tenant shall promptly pay Landlord
such deficiency.
(c) TENANT INSPECTION RIGHT. After receiving an annual Operating Costs
and Tax Statement and giving Landlord 30-days' prior written notice thereof,
Tenant may inspect or audit Landlord's records relating to Operating Costs and
Taxes for the period of time covered by such Operating Costs and Tax Statement
in accordance with the following provisions. If Tenant fails to object to the
calculation of Operating Costs and Taxes on an annual Operating Costs and Tax
Statement within 60 days after the statement has been delivered to Tenant, or if
Tenant fails to conclude its audit or inspection within 120 days after the
statement has been delivered to Tenant, then Tenant shall have waived its right
to object to the calculation of Operating Costs and Taxes for the year in
question and the calculation of Operating Costs and Taxes set forth on such
statement shall be final. Tenant's audit or inspection shall be conducted where
Landlord maintains its books and records, shall not unreasonably interfere with
the conduct of Landlord's business, and shall be conducted only during business
hours reasonably designated by Landlord. Tenant shall pay the cost of such audit
or inspection, including $150 per hour of Landlord's or the building manager's
employee time devoted to such inspection or audit in excess of eight (8) hours
for any such inspection or audit to reimburse Landlord for its overhead costs
allocable to the inspection or audit, unless the total Operating Costs and Taxes
for the period in question is determined to be in error by more than 5% in the
aggregate, and, as a result thereof, Tenant paid to Landlord at least 5% more
than the actual Operating Costs and Taxes due for such period, in which case
Landlord shall pay the audit cost. Tenant may not conduct an inspection or have
an audit performed more than once during any calendar year. Tenant or the
accounting firm conducting such audit shall, at no charge to Landlord, submit
its audit report in draft form to Landlord for Landlord's review and comment
before the final approved audit report is submitted to Landlord, and any
reasonable comments by Landlord shall be incorporated into the final audit
report. If such inspection or audit reveals that an error was made in the
Operating Costs or Taxes previously charged to Tenant, then Landlord shall
refund to Tenant any overpayment of any such costs, or Tenant shall pay to
Landlord any underpayment of any such costs, as the case may be, within 30 days
after notification thereof. Provided Landlord's accounting for Operating Costs
and Taxes is consistent with the terms of this Lease, Landlord's good faith
judgment regarding the proper interpretation of this Lease and the proper
accounting for Operating Costs and Taxes shall be binding on Tenant in
connection with any such audit or inspection. Tenant shall maintain the results
of each such audit or inspection confidential and shall not be permitted
4
to use any third party to perform such audit or inspection, other than an
independent firm of certified public accountants (1) reasonably acceptable to
Landlord, (2) which is not compensated on a contingency fee basis or in any
other manner which is dependent upon the results of such audit or inspection
(and Tenant shall deliver the fee agreement or other similar evidence of such
fee arrangement to Landlord upon request), and (3) which agrees with Landlord in
writing to maintain the results of such audit or inspection confidential.
Notwithstanding the foregoing, Tenant shall have no right to conduct an audit if
Landlord furnishes to Tenant an audit report for the period of time in question
prepared by an independent certified public accounting firm of recognized
national standing (whether originally prepared for Landlord or another party).
Nothing in this Section 4(c) shall be construed to limit, suspend or abate
Tenant's obligation to pay Rent when due, including Additional Rent.
(d) CASH INDUCEMENT. Landlord shall pay Tenant $350,000.00 in
immediately available funds (the "CASH INDUCEMENT") within ten (10) days of the
date that Tenant takes possession of the Premises for the purposes of conducting
its business therein.
5. DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments required of
Tenant hereunder shall bear interest from the date due until paid at the lesser
of twelve percent (12%) per annum or the maximum lawful rate of interest (such
lesser amount is referred to herein as the "DEFAULT RATE"); additionally,
Landlord, in addition to all other rights and remedies available to it, may
charge Tenant a fee not greater than five percent of the delinquent payment to
reimburse Landlord for its reasonable and actual costs incurred as a consequence
of Tenant's delinquency. In no event, however, shall the charges permitted under
this Section 5 or elsewhere in this Lease, to the extent they are considered to
be interest under applicable Law, exceed the maximum lawful rate of interest.
Notwithstanding the foregoing, the late fee referenced above shall not be
charged with respect to the first occurrence (but not any subsequent occurrence)
during any 12 month period that Tenant fails to make payment when due, until
five days after Landlord delivers written notice of such delinquency to Tenant.
6. INTENTIONALLY OMITTED.
7. LANDLORD'S MAINTENANCE OBLIGATIONS.
(a) BUILDING'S STRUCTURE. This Lease is intended to be a net lease;
accordingly, Landlord's obligations are limited to the replacement of the
Building's Structure and the parking areas, at its sole cost and expense;
Landlord shall not be responsible for (1) any such work until Tenant notifies
Landlord of the need therefor in writing or (2) for alterations to the
Building's Structure required by applicable Law because of Tenant's use of the
Premises (which alterations shall be Tenant's responsibility) with exception of
any roof replacement required in writing by the Town of Chelmsford or any other
governmental authority and not due to any act or omission of Tenant other than
Tenant's mere occupancy, which roof replacement shall be Landlord's
responsibility and shall be performed at Landlord's sole cost and expense.
Neither Landlord nor Tenant shall have the roof inspected or have any
communications with any person or entity regarding any aspect of the roof
without obtaining the prior written consent of the other party except to the
extent required by Law. The Building's Structure does not include skylights,
windows, glass or plate glass, doors or overhead doors, special fronts, or
office entries, dock bumpers, dock plates or levelers, loading areas and docks,
and loading dock equipment, all of which shall be maintained by Tenant;
provided, however, Landlord shall replace at its sole cost and expense the
windows identified on Exhibit K attached hereto with windows substantially
similar to the existing Building windows within one hundred twenty (120) days
after the Lease Date. Landlord's liability for any defects, repairs, replacement
or maintenance for which Landlord is specifically responsible for under this
Lease shall be limited to the cost of performing the work.
(b) OTHER LANDLORD OBLIGATIONS. Additionally, Landlord shall maintain
and repair as necessary the Building's Structure and the parking areas, and
other common areas of the Project, including driveways, alleys, landscape and
grounds surrounding the Building and utility lines in a good condition,
consistent with the operation of a bulk warehouse/industrial or service center
facility, including maintenance, repair, and replacement of rail tracks serving
the Premises, the exterior of the Building (including painting), landscaping
sprinkler systems, and any items normally associated with the foregoing (which
shall include the services customarily provided to comparable properties by
reputable professional management companies, including, without limitation,
maintenance, repairs and replacement of (u) the parking area associated with the
Building and located on the Premises, (v) all grass, shrubbery and other
landscape treatments on the Premises, (w) the exterior of the Building
(including painting), (x) exterior sprinkler systems and sewage lines, and (y)
any other maintenance, repair
5
or replacement items normally associated with the foregoing). All costs in
performing the work described in the foregoing sentence shall be included in
Operating Costs. Tenant shall promptly notify Landlord in writing of any work
required to be performed under this Section 7, and Landlord shall not be
responsible for performing such work until Tenant delivers to Landlord such
notice. Additionally, in no event shall Landlord be responsible for alterations
to the Building's Structure required by applicable Law because of Tenant's use
of the Premises (which alterations shall be made by Tenant at its sole cost and
expense). Notwithstanding anything to the contrary contained herein, Landlord
shall, in its sole and absolute discretion, determine the appropriate remedial
action required of it to satisfy its maintenance obligations hereunder (e.g.,
Landlord shall, in its sole discretion, determine whether, and to the extent,
repairs or replacements are the appropriate remedial action). While Tenant is
the sole occupant of the Building, Tenant may, with Landlord's prior written
consent (which consent shall not be unreasonably withheld, conditioned or
delayed), substitute at Tenant's expense any of the providers of the services
described in this Section 7(b) with reputable, licensed third party service
providers located in the area in which the Building is located; provided,
however, Tenant shall provide Landlord with copies of all contracts with any
such service provider and said contracts shall be in form and substance
reasonably satisfactory to Landlord. If in accordance with the provisions of the
preceding sentence, Tenant engages (at its own cost) providers for all of the
services to be provided by Landlord under this Section 7(b), Operating Costs
shall be reduced to $1,000.00 per month (thus eliminating the need for any other
category for Operating Costs for the Project as enumerated on Exhibit J attached
hereto other than taxes and insurance). If Tenant engages providers of the
services set forth in this Section 7(b) as aforesaid and any such services are
provided, in Landlord's reasonable discretion, at an unsatisfactory level as
would customarily be provided to comparable buildings, Landlord may, upon prior
written notice to Tenant, elect to provide such services and the management fee
shall no longer be reduced. Upon sixty (60) days prior written notice to
Landlord, Tenant may elect to provide such services.
(c) LANDLORD REPRESENTATIONS. As of the Lease Date, Landlord
represents and warrants to Tenant that (i) Landlord holds fee simple title to
the Premises, subject to no mortgage; (ii) no other party has any possessory
right to the Building or has claimed the same; and (iii) the Building's
Structure and, upon Tenant's seal coating and restriping certain parking areas
pursuant to Section 29 below, parking areas shall be in good condition and
repair.
8. IMPROVEMENTS; ALTERATIONS; TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS.
(a) IMPROVEMENTS; ALTERATIONS. Improvements to the Premises shall be
installed at Tenant's expense only in accordance with plans and specifications
which have been previously submitted to and approved in writing by Landlord,
which approval shall be governed by the provisions set forth in this Section
8(a). No alterations or physical additions in or to the Premises may be made
without Landlord's prior written consent, which shall not be unreasonably
withheld, conditioned or delayed; however, Landlord may withhold and/or
condition its consent to any alteration or addition that would adversely affect
(in the reasonable discretion of Landlord) (1) the Building's Structure or the
Building's Systems (including the Building's restrooms or mechanical rooms) or
(2) the exterior appearance of the Building or any other portion of the Premises
exterior to the Building. Tenant shall not paint or install lighting or
decorations, signs, window or door lettering, or advertising media of any type
visible from the exterior of the Building without the prior written consent of
Landlord, which consent may be withheld in Landlord's sole and absolute
discretion. Notwithstanding the foregoing, Tenant shall not be required to
obtain Landlord's consent for repainting, recarpeting, or other alterations,
tenant improvements, alterations or physical additions to the Building which are
cosmetic in nature totaling less than $25,000 in any single instance or series
of related alterations performed within a six-month period (provided that Tenant
shall not perform any improvements, alterations or additions to the Premises in
stages as a means to subvert this provision), in each case provided that (A)
Tenant delivers to Landlord written notice thereof, a list of contractors and
subcontractors to perform the work (and certificates of insurance for each such
party) and any plans and specifications therefor prior to commencing any such
alterations, additions, or improvements (for informational purposes only so long
as no consent is required by Landlord as required by this Lease), (B) the
installation thereof does not involve any core drilling or the configuration or
location of any exterior or interior walls of the Building, and (C) such
alterations, additions and improvements will not affect (i) the Building's
Structure or the Building's Systems, or (ii) the appearance of the Project's
common areas or the exterior of the Building. All alterations, additions, and
improvements shall be constructed, maintained, and used by Tenant, at its risk
and expense, in accordance with all Laws; Landlord's consent to or approval of
any alterations, additions or improvements (or the plans therefor) shall not
constitute a representation or warranty by Landlord, nor Landlord's acceptance,
that the same comply with
6
sound architectural and/or engineering practices or with all applicable Laws,
and Tenant shall be solely responsible for ensuring all such compliance. Tenant
shall promptly repair any damage caused by any such alterations, additions
and/or improvements. Landlord hereby consents to the performance of the
improvements set forth on the Space Plans attached hereto as Exhibit D-1.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the Premises,
including the loading areas and dock, and loading dock equipment in connection
with the Premises, in a clean, safe, and operable condition, and shall not
permit or allow to remain any waste or damage to any portion of the Premises.
Additionally, Tenant, at its sole expense, shall repair, replace (excluding the
Building's Structure and the parking areas located on the Premises) and maintain
in good condition and in accordance with all Laws and the equipment
manufacturer's suggested service programs, all portions of the Premises,
Tenant's Off-Premises Equipment and all areas, improvements and systems
exclusively serving the Premises including loading docks, sump pumps, dock
wells, dock equipment and loading areas, dock doors, dock seals, overhead doors,
"levellors" and similar leveling equipment, plumbing, water, fire sprinkler
system, and sewer lines up to points of common connection, entries, doors,
ceilings, windows, interior walls, and the interior side of demising walls, and
heating, ventilation and air conditioning systems (including any evaporative
units), and other building and mechanical systems serving the Premises. Such
repair and replacements include capital expenditures and repairs whose benefit
may extend beyond the Term. No later than fourteen (14) days prior to the end of
the Term, Tenant shall deliver to Landlord a certificate from an engineer
reasonably acceptable to Landlord certifying that all such items which Tenant is
required to maintain hereunder are then in good repair and condition and have
been maintained in accordance with this Section 8. Tenant shall repair or
replace, subject to Landlord's direction and supervision, any damage to the
Building caused by a Tenant Party. If Tenant fails to make such repairs or
replacements within fifteen (15) days after the occurrence of such damage, then
Landlord may make the same at Tenant's cost. If any such damage for which Tenant
is responsible for pursuant to this Section 8 occurs outside of the Building,
then Landlord may elect to repair such damage at Tenant's expense, rather than
having Tenant repair such damage. The cost of all maintenance, repair or
replacement work performed by Landlord under this Section 8 shall be paid by
Tenant to Landlord within thirty (30) days after Landlord has invoiced Tenant
therefor.
(c) PERFORMANCE OF WORK. All work described in this Section 8 shall be
performed only by Landlord or by contractors and subcontractors approved in
writing by Landlord, such approval not to be unreasonably withheld, conditioned
or delayed. Tenant shall cause all contractors and subcontractors to procure and
maintain insurance coverage naming Landlord, Landlord's property management
company and Landlord's asset management company as additional insureds against
such risks, in such amounts, and with such companies as Landlord may reasonably
require. Tenant shall provide Landlord with the identities, mailing addresses
and telephone numbers of all persons performing work or supplying materials
prior to beginning such construction and Landlord may post on and about the
Premises notices of non-responsibility pursuant to applicable Laws. All such
work shall be performed in accordance with all Laws and in a good and
workmanlike manner so as not to damage the Building (including the Premises, the
Building's Structure and the Building's Systems). All such work which may affect
the Building's Structure or the Building's Systems must be approved by the
Building's engineer of record at Tenant's expense and, at Landlord's election,
must be performed by Landlord's usual contractor for such work, provided that
the cost of such contractor's work shall not exceed the cost of other
similar-quality contractors for similar services in other similar buildings
located in the submarket in the city in which the Building is located. All work
affecting the roof of the Building must be performed by Landlord's roofing
contractor, and no such work will be permitted if it would void or reduce the
warranty on the roof. Upon Landlord's request, Tenant shall provide sworn
statements, including the names, addresses and copies of contracts for all
contractors, and upon completion of any work shall promptly furnish Landlord
with sworn owner's and contractor's statements and full and final waivers of
lien covering all labor and materials included in the work in question.
(d) MECHANIC'S LIENS. All work performed, materials furnished, or
obligations incurred by or at the request of a Tenant Party shall be deemed
authorized and ordered by Tenant only, and Tenant shall not permit any
mechanic's liens to be filed against the Premises or the Project in connection
therewith. Upon completion of any such work, Tenant shall deliver to Landlord
final lien waivers from all contractors, subcontractors and materialmen who
performed such work. If such a lien is filed, then Tenant shall, within ten days
after Landlord has delivered notice of the filing thereof to Tenant (or such
earlier time period as may be necessary to prevent the forfeiture of the
Premises, the Project or any interest of Landlord therein or the imposition of a
civil or criminal fine with respect thereto), either (1) pay the amount of the
lien and cause the lien to be released of record, or (2)
7
diligently contest such lien and deliver to Landlord a bond or other security
reasonably satisfactory to Landlord. If Tenant fails to timely take either such
action, then Landlord may pay the lien claim, and any amounts so paid, including
expenses and interest, shall be paid by Tenant to Landlord within ten days after
Landlord has invoiced Tenant therefor. Landlord and Tenant acknowledge and agree
that their relationship is and shall be solely that of "landlord-tenant"
(thereby excluding a relationship of "owner-contractor," "owner-agent" or other
similar relationships). Accordingly, all materialmen, contractors, artisans,
mechanics, laborers and any other persons now or hereafter contracting with
Tenant, any contractor or subcontractor of Tenant or any other Tenant Party for
the furnishing of any labor, services, materials, supplies or equipment with
respect to any portion of the Premises, at any time from the date hereof until
the end of the Term, are hereby charged with notice that they look exclusively
to Tenant to obtain payment for same. Nothing herein shall be deemed a consent
by Landlord to any liens being placed upon the Premises, the Project or
Landlord's interest therein due to any work performed by or for Tenant or deemed
to give any contractor or subcontractor or materialman any right or interest in
any funds held by Landlord to reimburse Tenant for any portion of the cost of
such work. Tenant shall defend, indemnify and hold harmless Landlord and its
agents and representatives from and against all claims, demands, causes of
action, suits, judgments, damages and expenses (including attorneys' fees) in
any way arising from or relating to the failure by any Tenant Party to pay for
any work performed, materials furnished, or obligations incurred by or at the
request of a Tenant Party. This indemnity provision shall survive termination or
expiration of this Lease.
(e) JANITORIAL SERVICES. Tenant, at its sole expense, shall provide
its own janitorial services to the Premises and shall maintain the Premises in a
clean and safe condition. Tenant shall store all trash and garbage within the
area and in receptacles designated from time to time by Landlord and shall, at
its sole expense, arrange for the regular pickup of such trash and garbage at
times, and pursuant to reasonable regulations, established by Landlord from time
to time. If Tenant fails to provide janitorial services to the Premises or trash
removal services in compliance with the foregoing, Landlord, in addition to any
other rights and remedies available to it, may provide such services, and Tenant
shall pay to Landlord the cost thereof, plus an administrative fee equal to 15%
of such cost, within ten (10) days after Landlord delivers to Tenant an invoice
therefor.
9. UTILITIES. Tenant shall pay for all water, gas, electricity, heat,
telephone, sewer, sprinkler charges and other utilities and services used at the
Premises, together with any taxes, penalties, surcharges, connection charges,
maintenance charges, and the like pertaining to Tenant's use of the Premises.
Tenant, at its expense, shall obtain all utility services for the Premises,
including making all applications therefor, obtaining meters and other related
equipment, and paying all deposits and connection charges. Landlord shall not be
liable for any interruption or failure of utility service to the Premises, and
such interruption or failure of utility service shall not be a constructive
eviction of Tenant, constitute a breach of any implied warranty or entitle
Tenant to any abatement of Tenant's obligations hereunder.
10. USE. Tenant shall use the Premises only for the Permitted Use and shall
comply with all Laws relating to the use, condition, access to, and occupancy of
the Premises and will not commit waste, overload the Building's Structure or the
Building's Systems or subject the Premises to use that would damage the
Premises. The Premises shall not be used for any use which is disreputable or
creates extraordinary fire hazards, or for the storage of any Hazardous
Materials (except as provided in Section 28 hereto). The storage of trucks and
other vehicles and the portable cell tower (which portable cell tower shall be
located only behind the rear of the Building) is permitted within the Premises;
provided, however, to the extent such vehicles and cell tower are located within
parking spaces on the Premises, such parking spaces shall be among those parking
spaces which Tenant is granted a right to use pursuant to the provisions of
Section 29 below. Tenant shall conduct its business and control each other
Tenant Party so as not to create any nuisance or unreasonably interfere with
Landlord in its management of the Building.
11. ASSIGNMENT AND SUBLETTING.
(a) TRANSFERS. Except as provided in Section 11(h), Tenant shall not,
without the prior written consent of Landlord, (1) assign, transfer, or encumber
this Lease or any estate or interest herein, whether directly or by operation of
law, (2) permit any other entity to become Tenant hereunder by merger,
consolidation, or other reorganization, (3) if Tenant is an entity other than a
corporation whose stock is publicly traded, permit the transfer of an ownership
interest in Tenant so as to result in a change in the current control of Tenant,
(4) sublet any portion of the Premises, (5) grant any license, concession, or
other right of occupancy of any portion of the
8
Premises, or (6) permit the use of the Premises by any parties other than Tenant
(any of the events listed in Section 11(a)(1) through 11(a)(6) being a
"TRANSFER").
(b) CONSENT STANDARDS. Landlord shall not unreasonably withhold,
condition or delay its consent to any assignment or subletting of the Premises,
provided that the proposed transferee (1) is creditworthy, (2) has a good
reputation in the business community, (3) will use the Premises for the
Permitted Use (thus, excluding, without limitation, uses for credit processing
and telemarketing), (4) will not use the Premises, Building or Project in a
manner that would materially increase the pedestrian or vehicular traffic to the
Premises, Building or Project, (5) is not a governmental entity, or subdivision
or agency thereof, (6) is not another occupant of the Building, and (7) is not a
person or entity with whom Landlord is then, or has been within the six-month
period prior to the time Tenant seeks to enter into such assignment or
subletting, negotiating to lease space in the Building, or any Affiliate of any
such person or entity; otherwise, Landlord may withhold its consent in its sole
discretion. Additionally, Landlord may withhold its consent in its sole
discretion to any proposed Transfer if any Event of Default by Tenant then
exists.
(c) REQUEST FOR CONSENT. If Tenant requests Landlord's consent to a
Transfer, then, at least fifteen (15) business days prior to the effective date
of the proposed Transfer, Tenant shall provide Landlord with a written
description of all terms and conditions of the proposed Transfer, copies of the
proposed documentation, and the following information about the proposed
transferee: name and address; reasonably satisfactory information about its
business and business history; its proposed use of the Premises; banking,
financial, and other credit information; and general references sufficient to
enable Landlord to determine the proposed transferee's creditworthiness and
character. Concurrently with Tenant's notice of any request for consent to a
Transfer, Tenant shall pay to Landlord a fee of $500.00 to defray Landlord's
expenses in reviewing such request, and Tenant shall also reimburse Landlord
immediately upon request for its reasonable attorneys' fees incurred in
connection with considering any request for consent to a Transfer.
(d) CONDITIONS TO CONSENT. If Landlord consents to a proposed
Transfer, then the proposed transferee shall deliver to Landlord a written
agreement whereby it expressly assumes Tenant's obligations hereunder; however,
any transferee of less than all of the space in the Premises shall be liable
only for obligations under this Lease that are properly allocable to the space
subject to the Transfer for the period of the Transfer. No Transfer shall
release Tenant from its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part thereof are subject
to a Transfer, then Landlord, in addition to its other remedies, may collect
directly from such transferee all rents becoming due to Tenant and apply such
rents against Rent. Tenant authorizes its transferees to make payments of rent
directly to Landlord upon receipt of notice from Landlord to do so following the
occurrence of an Event of Default hereunder. Tenant shall pay for the cost of
any demising walls or other improvements necessitated by a proposed subletting
or assignment.
(e) ATTORNMENT BY SUBTENANTS. Each sublease by Tenant hereunder shall
be subject and subordinate to this Lease and to the matters to which this Lease
is or shall be subordinate, and each subtenant by entering into a sublease is
deemed to have agreed that in the event of termination, re-entry or
dispossession by Landlord under this Lease, Landlord may, at its option, take
over all of the right, title and interest of Tenant, as sublandlord, under such
sublease, and such subtenant shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such sublease, except that Landlord
shall not be (1) liable for any previous act or omission of Tenant under such
sublease, (2) subject to any counterclaim, offset or defense that such subtenant
might have against Tenant, (3) bound by any previous modification of such
sublease not approved by Landlord in writing or by any rent or additional rent
or advance rent which such subtenant might have paid for more than the current
month to Tenant, and all such rent shall remain due and owing, notwithstanding
such advance payment, (4) bound by any security or advance rental deposit made
by such subtenant which is not delivered or paid over to Landlord and with
respect to which such subtenant shall look solely to Tenant for refund or
reimbursement, or (5) obligated to perform any work in the subleased space or to
prepare it for occupancy, and in connection with such attornment, the subtenant
shall execute and deliver to Landlord any instruments Landlord may reasonably
request to evidence and confirm such attornment. Each subtenant or licensee of
Tenant shall be deemed, automatically upon and as a condition of its occupying
or using the Premises or any part thereof, to have agreed to be bound by the
terms and
9
conditions set forth in this Section 11(e). The provisions of this Section 11(e)
shall be self-operative, and no further instrument shall be required to give
effect to this provision.
(f) CANCELLATION. Landlord may, within thirty (30) days after
submission of Tenant's written request for Landlord's consent to an assignment
of this Lease or subletting of greater than 50% of the rentable square feet in
the Premises for all or substantially all of the remainder of the Term, cancel
this Lease as to the portion of the Premises proposed to be sublet or assigned
as of the date the proposed Transfer is to be effective. If Landlord cancels
this Lease as to any portion of the Premises, then this Lease shall cease for
such portion of the Premises and Tenant shall pay to Landlord all Rent accrued
through the cancellation date relating to the portion of the Premises covered by
the proposed Transfer and any and all costs incurred to demise separately such
portion of the Premises. Thereafter, Landlord may lease such portion of the
Premises to the prospective transferee (or to any other person) without
liability to Tenant. Notwithstanding the foregoing, if Landlord provides written
notification to Tenant of its election to cancel this Lease as to any portion of
the Premises as provided above, Tenant may rescind its proposed assignment or
subletting of all or any portion of the Premises by notifying Landlord in
writing within three (3) business days following Landlord's written cancellation
notice.
(g) ADDITIONAL COMPENSATION. While no Event of Default exists, Tenant
shall pay to Landlord, immediately upon receipt thereof, fifty percent (50%) of
the excess of (1) all compensation received by Tenant for a Transfer less the
actual out-of-pocket costs reasonably incurred by Tenant with unaffiliated third
parties (i.e., brokerage commissions and tenant finish work) in connection with
such Transfer (such costs shall be amortized on a straight-line basis over the
term of the Transfer in question) over (2) the Rent allocable to the portion of
the Premises covered thereby. While any Event of Default exists, Tenant shall
pay to Landlord, immediately upon receipt thereof, the excess of (A) all
compensation received by Tenant for a Transfer over (B) the Rent allocable to
the portion of the Premises covered thereby.
In calculating any excess rent payable by Tenant to Landlord pursuant to
this provision, Tenant shall first be entitled to deduct (a) market improvement
allowances or other market economic concessions granted by Tenant to the
assignee or sublessee and (b) market brokerage commissions and/or reasonable
legal fees paid by Tenant in connection with the assignment or sublease.
(h) PERMITTED TRANSFERS. Notwithstanding Section 11(a), Tenant may
Transfer all or part of its interest in this Lease or all or part of the
Premises (a "PERMITTED TRANSFER") to the following types of entities (a
"PERMITTED TRANSFEREE") without the consent of Landlord:
(1) an Affiliate of Tenant;
(2) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity in which or
with which Tenant, or its corporate successors or assigns, is merged or
consolidated, in accordance with applicable statutory provisions governing
merger and consolidation of business entities, so long as (A) Tenant's
obligations hereunder are assumed by the entity surviving such merger or
created by such consolidation; and (B) the Tangible Net Worth of the
surviving or created entity is not less than the greater of (i) the
Tangible Net Worth of Tenant as of the date of such Transfer or (ii)
$8,000,000; or
(3) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity acquiring
all or substantially all of Tenant's stock or assets if such entity's
Tangible Net Worth after such acquisition is not less than (i) the Tangible
Net Worth of Tenant as of the date of such Transfer or (ii) $8,000,000.
Tenant shall promptly notify Landlord of any such Permitted Transfer. Tenant
shall remain liable for the performance of all of the obligations of Tenant
hereunder, or if Tenant no longer exists because of a merger, consolidation, or
acquisition, the surviving or acquiring entity shall expressly assume in writing
the obligations of Tenant hereunder. Additionally, the Permitted Transferee
shall comply with all of the terms and conditions of this Lease, including the
Permitted Use. No later than 30 days after the effective date of any Permitted
Transfer, Tenant agrees to furnish Landlord with (A) copies of the instrument
effecting any of the foregoing Transfers, (B) documentation establishing
Tenant's satisfaction of the requirements set forth above applicable to any such
Transfer,
10
and (C) evidence of insurance as required under this Lease with respect to the
Permitted Transferee. The occurrence of a Permitted Transfer shall not waive
Landlord's rights as to any subsequent Transfers. "TANGIBLE NET WORTH" means the
excess of total assets over total liabilities, in each case as determined in
accordance with generally accepted accounting principles consistently applied
("GAAP"), excluding, however, from the determination of total assets all assets
which would be classified as intangible assets under GAAP including goodwill,
licenses, patents, trademarks, trade names, copyrights, and franchises. Any
subsequent Transfer by a Permitted Transferee shall be subject to the terms of
this Section 11.
12. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY.
(a) TENANT'S INSURANCE. Effective as of the earlier of (1) the date
Tenant enters or occupies the Premises, or (2) the Commencement Date, and
continuing throughout the Term, Tenant shall maintain the following insurance
policies: (A) commercial general liability insurance in amounts of $3,000,000
per occurrence or, following the expiration of the initial Term, such other
amounts as Landlord may from time to time reasonably require (and, if the use
and occupancy of the Premises include any activity or matter that is or may be
excluded from coverage under a commercial general liability policy [e.g., the
sale, service or consumption of alcoholic beverages], Tenant shall obtain such
endorsements to the commercial general liability policy or otherwise obtain
insurance to insure all liability arising from such activity or matter
[including host liquor liability, if applicable] in such amounts as Landlord may
reasonably require), insuring Tenant, Landlord, Landlord's property management
company, Landlord's asset management company and, if requested in writing by
Landlord, Landlord's Mortgagee, against all liability for injury to or death of
a person or persons or damage to property arising from the use and occupancy of
the Premises and (without implying any consent by Landlord to the installation
thereof) the installation, operation, maintenance, repair or removal of Tenant's
Off-Premises Equipment, (B) insurance covering the full value of all alterations
and improvements and betterments in the Premises, naming Landlord and Landlord's
Mortgagee as additional loss payees as their interests may appear, (C) insurance
covering the full value of all furniture, trade fixtures and personal property
(including property of Tenant or others) in the Premises or otherwise placed in
the Project by or on behalf of a Tenant Party, (D) contractual liability
insurance sufficient to cover Tenant's indemnity obligations hereunder (but only
if such contractual liability insurance is not already included in Tenant's
commercial general liability insurance policy), (E) worker's compensation
insurance, and (F) business interruption insurance in an amount equal to
Tenant's Base Rent and Additional Rent obligations under this Lease for nine (9)
months. Tenant's insurance shall provide primary coverage to Landlord for the
property that will inure to Landlord during the Term of this Lease and for third
party liability exposures within the confines of the Premises. Tenant shall
furnish to Landlord certificates of such insurance and such other evidence
satisfactory to Landlord of the maintenance of all insurance coverages required
hereunder at least ten days prior to the earlier of the Commencement Date or the
date Tenant enters or occupies the Premises, and at least 15 days prior to each
renewal of said insurance, and Tenant shall obtain a written obligation on the
part of each insurance company to notify Landlord at least 30 days before
cancellation or a material change of any such insurance policies. All such
insurance policies shall be in form, and issued by companies with an A.M. Best
rating of A:VII or better, reasonably satisfactory to Landlord. If Tenant fails
to comply with the foregoing insurance requirements or to deliver to Landlord
the certificates or evidence of coverage required herein, Landlord, in addition
to any other remedy available pursuant to this Lease or otherwise, may, but
shall not be obligated to, obtain such insurance and Tenant shall pay to
Landlord on demand the premium costs thereof, plus an administrative fee of 5%
of such cost.
(b) LANDLORD'S INSURANCE. Throughout the Term of this Lease, Landlord
shall maintain, as a minimum, the following insurance policies: (1) property
insurance for the Building's replacement value (excluding property required to
be insured by Tenant), less a commercially-reasonable deductible if Landlord so
chooses, and (2) commercial general liability insurance in an amount of not less
than $3,000,000. Landlord may, but is not obligated to, maintain such other
insurance and additional coverages as it may deem reasonably necessary. The cost
of all insurance carried by Landlord with respect to the Project shall be
included in Insurance Costs (defined below). The foregoing insurance policies
and any other insurance carried by Landlord shall be for the primary benefit of
Landlord and under Landlord's sole control.
(c) NO SUBROGATION; WAIVER OF PROPERTY CLAIMS. Landlord and Tenant
each waives any claim it might have against the other for any damage to or
theft, destruction, loss, or loss of use of any property, to the extent the same
is insured against under any insurance policy of the types described in this
Section 12 that covers the Project, the Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements, or business,
11
or is required to be insured against under the terms hereof, regardless of
whether the negligence of the other party caused such Loss (defined below).
Additionally, Landlord and Tenant each waives any claim it may have against the
other for any Loss to the extent such Loss is caused by a terrorist act. Each
party shall cause its insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under subrogation or otherwise against
the other party. Notwithstanding any provision in this Lease to the contrary,
Landlord, its agents, employees and contractors shall not be liable to Tenant or
to any party claiming by, through or under Tenant for (and Tenant hereby
releases Landlord and its servants, agents, contractors, employees and invitees
from any claim or responsibility for) any damage to or destruction, loss, or
loss of use, or theft of any property of any Tenant Party located in or about
the Project, caused by casualty, theft, fire, third parties or any other matter
or cause, regardless of whether the negligence of any party caused such loss in
whole or in part. Tenant acknowledges that Landlord shall not carry insurance
on, and shall not be responsible for damage to, any property of any Tenant Party
located in or about the Project.
(d) INDEMNITY. Subject to Section 12(c), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including reasonable attorneys' fees) arising
from any injury to or death of any person or the damage to or theft,
destruction, loss or loss of use of any property or inconvenience (a "LOSS")
occurring in or on the Premises or arising out of the installation, operation,
maintenance, repair or removal of any property of any Tenant Party located in or
about the Project, including Tenant's Off-Premises Equipment, except to the
extent caused by the negligence or fault of Landlord or its agents. Subject to
Section 12(c), Landlord shall defend, indemnify, and hold harmless Tenant and
its agents from and against all claims, demands, liabilities, causes of action,
suits, judgments, damages, and expenses (including reasonable attorneys' fees)
for any Loss arising from any occurrence in or on the Premises to the extent
caused by the gross negligence or willful misconduct of Landlord. The
indemnities set forth in this Lease shall survive termination or expiration of
this Lease and shall not terminate or be waived, diminished or affected in any
manner by any abatement or apportionment of Rent under any provision of this
Lease. If any proceeding is filed for which indemnity is required hereunder, the
indemnifying party agrees, upon request therefor, to defend the indemnified
party in such proceeding at its sole cost utilizing counsel satisfactory to the
indemnified party.
(e) COST OF LANDLORD'S INSURANCE. Tenant shall pay Tenant's
Proportionate Share of the cost of the property and liability insurance carried
by Landlord from time to time with respect to the Building (including other
improvements and Landlord's personal property used in connection therewith),
which may include fire and extended coverage insurance (including extended and
broad form coverage risks, mudslide, land subsidence, volcanic eruption, flood,
earthquake and rent loss insurance) and comprehensive general public liability
insurance and excess liability insurance, in such amounts and containing such
terms as Landlord deems necessary or desirable (collectively, "INSURANCE
COSTS"). During each month of the Term, Tenant shall make a monthly payment to
Landlord equal to 1/12th of Tenant's Proportionate Share of Insurance Costs that
will be due and payable for that particular year. Each payment of Insurance
Costs shall be due and payable at the same time as, and in the same manner as,
provided above for Tenant's Proportionate Share of Operating Costs. The initial
monthly payment of Insurance Costs is based upon Landlord's good faith estimate
of Tenant's Proportionate Share of the estimated Insurance Costs for the
remainder of the first calendar year. The monthly payment of Insurance Costs is
subject to increase or decrease as determined by Landlord to reflect accurately
Tenant's Proportionate Share of estimated Insurance Costs. If, following
Landlord's receipt of the bill for the insurance premiums for a calendar year,
Landlord determines that Tenant's total payments of Insurance Costs are less
than Tenant's Proportionate Share of actual Insurance Costs, Tenant shall pay to
Landlord the difference upon demand; if Tenant's total payments of Insurance
Costs are more than Tenant's Proportionate Share of actual Insurance Costs,
Landlord shall retain such excess and credit it to Tenant's future payments of
Insurance Costs (unless such adjustment is at the end of the Term, in which
event Landlord shall refund such excess to Tenant).
13. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.
(a) SUBORDINATION. Subject to the obtaining of an SNDA pursuant to
Section 13(e), this Lease shall be subordinate to any deed of trust, mortgage,
or other security instrument (each, a "MORTGAGE"), or any ground lease, master
lease, or primary lease (each, a "PRIMARY LEASE"), that now or hereafter covers
all or any part of the Premises (the mortgagee under any such Mortgage,
beneficiary under any such deed of trust, or the lessor under any such Primary
Lease is referred to herein as a "LANDLORD'S MORTGAGEE"). Any Landlord's
Mortgagee
12
may elect, at any time, unilaterally, to make this Lease superior to its
Mortgage, Primary Lease, or other interest in the Premises by so notifying
Tenant in writing. Subject to the obtaining of an SNDA pursuant to Section
13(e), the provisions of this Section shall be self-operative and no further
instrument of subordination shall be required; however, in confirmation of such
subordination, Tenant shall execute and return to Landlord (or such other party
designated by Landlord) within ten (10) days after written request therefor such
documentation, in recordable form if required, as a Landlord's Mortgagee may
reasonably request to evidence the subordination of this Lease to such
Landlord's Mortgagee's Mortgage or Primary Lease (including a subordination,
non-disturbance and attornment agreement) or, if the Landlord's Mortgagee so
elects, the subordination of such Landlord's Mortgagee's Mortgage or Primary
Lease to this Lease.
(b) ATTORNMENT. Subject to the obtaining of an SNDA pursuant to
Section 13(e), Tenant shall attorn to any party succeeding to Landlord's
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming such attornment as
such party may reasonably request.
(c) NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to enforce
any remedy it may have for any default on the part of Landlord without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee whose address has
been given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
(d) LANDLORD'S MORTGAGEE'S PROTECTION PROVISIONS. If Landlord's
Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord's
Mortgagee shall not be: (1) liable for any act or omission of any prior lessor
(including Landlord) except to the extent the same continues following such
succession; (2) bound by any rent or additional rent or advance rent which
Tenant might have paid for more than the current month to any prior lessor
(including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (3) bound by any security or advance
rental deposit made by Tenant which is not delivered or paid over to Landlord's
Mortgagee and with respect to which Tenant shall look solely to Landlord for
refund or reimbursement; provided that Landlord hereby agrees to promptly
deliver such security or advance rental deposit to Landlord's Mortgagee if
Landlord's Mortgagee succeeds to the interest of Landlord under this Lease; (4)
bound by any termination, amendment or modification of this Lease made without
Landlord's Mortgagee's consent and written approval, except for those
terminations, amendments and modifications permitted to be made by Landlord
without Landlord's Mortgagee's consent pursuant to the terms of the loan
documents between Landlord and Landlord's Mortgagee or otherwise permitted to be
made by Tenant pursuant to the provisions of this Lease; (5) subject to the
defenses which Tenant might have against any prior lessor (including Landlord);
and (6) subject to the offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A) are expressly
provided in this Lease, (B) relate to periods of time following the acquisition
of the Building by Landlord's Mortgagee, and (C) Tenant has provided written
notice to Landlord's Mortgagee and provided Landlord's Mortgagee a reasonable
opportunity to cure the event giving rise to such offset event. Landlord's
Mortgagee shall have no liability or responsibility under or pursuant to the
terms of this Lease or otherwise after it ceases to own an interest in the
Project. Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any loan, and Tenant's
agreements set forth herein shall not be impaired on account of any modification
of the documents evidencing and securing any loan. Notwithstanding anything to
the contrary contained herein, any such Landlord's Mortgagee shall remain liable
to Tenant for the payment of the Construction Allowance (as set forth in Exhibit
D and in accordance with the provisions thereof) to the extent the same has not
been previously delivered to Tenant.
(e) SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT. The
Premises are not currently encumbered by a Landlord's Mortgagee. Landlord shall
use reasonable efforts to obtain a subordination, non-disturbance and attornment
agreement ("SNDA") from any Landlord's Mortgagee, in a form reasonably
acceptable to Tenant and such Landlord's Mortgagee or other institutional
lenders; however, Landlord's failure to obtain such agreement shall not
constitute a default by Landlord hereunder or prohibit the mortgaging of the
Premises; and further provided that any costs associated with obtaining such
subordination, non-disturbance and attornment agreement shall be paid by Tenant
within fifteen (15) days after Landlord's written request therefor. The
subordination of Tenant's rights hereunder to any Landlord's Mortgagee under
Section 13(a) shall be conditioned
13
upon such Landlord's Mortgagee's execution and delivery of an SNDA in a form
reasonably acceptable to Tenant and such Landlord's Mortgagee or other
institutional lenders.
14. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Project which are attached hereto as Exhibit C. Landlord may,
from time to time, reasonably change such rules and regulations for the safety,
care, or cleanliness of the Project and related facilities, provided that such
changes are applicable to all tenants of the Project, will not unreasonably
interfere with Tenant's use of the Premises and are enforced by Landlord in a
non-discriminatory manner. Tenant shall be responsible for the compliance with
such rules and regulations by each Tenant Party.
15. CONDEMNATION.
(a) TOTAL TAKING. If the entire Building or Premises are taken by
right of eminent domain or conveyed in lieu thereof (a "TAKING"), this Lease
shall terminate as of the date of the Taking.
(b) PARTIAL TAKING - TENANT'S RIGHTS. If any material part of the
Building and/or all reasonable means of access to the Building becomes subject
to a Taking and such Taking will prevent Tenant from conducting its business in
the Building in a manner reasonably comparable to that conducted immediately
before such Taking for a period of more than three hundred sixty-five (365)
consecutive days or for more than forty-five (45) days during the last year of
the Term, then Tenant may terminate this Lease as of the date of such Taking by
giving written notice to Landlord within thirty (30) days after the Taking, and
Basic Rent and Additional Rent shall be apportioned as of the date of such
Taking. If Tenant does not terminate this Lease, then Rent shall be abated on a
reasonable basis as to that portion of the Premises rendered untenantable by the
Taking.
(c) PARTIAL TAKING - LANDLORD'S RIGHTS. If any material portion, but
less than all, of the Building becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds arising from a Taking to a Landlord's
Mortgagee, then Landlord may terminate this Lease by delivering written notice
thereof to Tenant within thirty (30) days after such Taking, and Basic Rent and
Additional Rent shall be apportioned as of the date of such Taking. If Landlord
does not so terminate this Lease, then this Lease will continue, but if any
portion of the Premises has been taken, Rent shall abate as provided in the last
sentence of Section 15(b).
(d) TEMPORARY TAKING. If all or any portion of the Premises becomes
subject to a Taking for a limited period of time, this Lease shall remain in
full force and effect and Tenant shall continue to perform all of the terms,
conditions and covenants of this Lease, including the payment of Basic Rent and
all other amounts required hereunder. If any such temporary Taking terminates
prior to the expiration of the Term, Tenant shall restore the Premises as nearly
as possible to the condition prior to such temporary Taking to the extent of the
award received by Tenant. Landlord shall be entitled to receive the entire award
for any such temporary Taking, except that Tenant shall be entitled to receive
the portion of such award which (1) compensates Tenant for its loss of use of
the Premises within the Term and (2) reimburses Tenant for the reasonable
out-of-pocket costs actually incurred by Tenant to restore the Premises.
(e) AWARD. If any Taking occurs, then Landlord shall receive the
entire award or other compensation for the Land, the Building, and other
improvements taken; however, Tenant may separately pursue a claim (to the extent
it will not reduce Landlord's award) against the condemnor for the value of
Tenant's personal property which Tenant is entitled to remove under this Lease,
moving costs, loss of business, and other claims it may have.
(f) RESTORATION. In the event of any Taking of less than the whole of
the Building which does not result in a termination of this Lease, (1) Landlord,
at its expense but only to the extent of the award actually received by Landlord
pursuant to such Taking (after deducting any reasonable expenses incurred in
connection with such Taking), shall proceed with reasonable diligence to repair,
alter and restore the remaining parts of the affected Building to the extent
practicable, and (2) if requested by either party, Landlord and Tenant shall
promptly execute an amendment to this Lease confirming the deletion from the
Building of the space subject to the Taking.
14
16. FIRE OR OTHER CASUALTY.
(a) REPAIR ESTIMATE. If the Premises or the Building are damaged by
fire or other casualty (a "CASUALTY"), Landlord shall, within seventy-five (75)
days after such Casualty, deliver to Tenant a good faith estimate (the "DAMAGE
NOTICE") of the time needed to repair the damage caused by such Casualty.
(b) TENANT'S RIGHTS. If a material portion of the Premises is damaged
by Casualty such that Tenant is prevented from conducting its business in the
Premises in a manner reasonably comparable to that conducted immediately before
such Casualty and Landlord estimates that the damage caused thereby cannot be
repaired within two hundred ten (210) days after the commencement of repairs
(the "REPAIR PERIOD"), then Tenant may terminate this Lease by delivering
written notice to Landlord of its election to terminate within thirty (30) days
after the Damage Notice has been delivered to Tenant. If the Building is
materially damaged by fire or other casualty during the last twelve (12) months
of the Term and Tenant has not exercised its Term extension rights under this
Lease, then Tenant shall have the right, exercisable by notice to Landlord
delivered within thirty (30) days after the date of such fire or other casualty,
to terminate this Lease, effective as of the later of date of delivery of such
notice or the date Tenant vacates and surrenders the Premises in accordance with
the provisions of this Lease.
(c) LANDLORD'S RIGHTS. If a Casualty damages the Premises or a
material portion of the Building and (1) Landlord estimates that the damage to
the Premises cannot be repaired within the Repair Period, (2) the damage to the
Premises exceeds 50% of the replacement cost thereof (excluding foundations and
footings), as estimated by Landlord, and such damage occurs during the last two
years of the Term, (3) regardless of the extent of damage to the Premises, the
damage is not fully covered by Landlord's insurance policies or Landlord makes a
good faith determination that restoring the Building would be uneconomical, or
(4) Landlord is required to pay any insurance proceeds arising out of the
Casualty to a Landlord's Mortgagee, then Landlord may terminate this Lease by
giving written notice of its election to terminate within 30 days after the
Damage Notice has been delivered to Tenant.
(d) REPAIR OBLIGATION. If neither party elects to terminate this Lease
following a Casualty, then Landlord shall, within a reasonable time after such
Casualty, begin to repair the Premises and shall proceed with reasonable
diligence to restore the Premises to substantially the same condition as they
existed immediately before such Casualty; however, Landlord shall not be
required to repair or replace any alterations or betterments within the Premises
or any furniture, equipment, trade fixtures or personal property of Tenant or
others in the Premises or the Building, and Landlord's obligation to repair or
restore the Premises shall be limited to the extent of the insurance proceeds
actually received by Landlord for the Casualty in question. If this Lease is
terminated under the provisions of this Section 16, Landlord shall be entitled
to the full proceeds of the insurance policies providing coverage for all
alterations, improvements and betterments in the Premises. If Landlord does not
complete the restoration of the Premises within sixty (60) days after the time
period estimated by Landlord to repair the damage caused by such Casualty as
specified in the Damage Notice, as the same may be extended by force majeure or
delays caused by a Tenant Party, Tenant may terminate this Lease by delivering
written notice to Landlord and Landlord's Mortgagee within ten (10) days
following the expiration of such 60-day period (as the same may be extended as
set forth above) and prior to the date upon which Landlord substantially
completes such restoration. Such termination shall be effective as of the date
specified in Tenant's termination notice (but not earlier than thirty (30) days
nor later than ninety (90) days after the date of such notice) as if such date
were the date fixed for the expiration of the Term. If Tenant fails to timely
give such termination notice, Tenant shall be deemed to have waived its right to
terminate this Lease, time being of the essence with respect thereto.
Notwithstanding the foregoing, if upon the receipt of Tenant's written election
to terminate this Lease as provided in this Section 16(d), Landlord reasonably
believes it can complete the restoration of the Premises within thirty (30) days
following the receipt of such notice, Landlord may, in its sole discretion,
elect to proceed with such restoration and, provided Landlord substantially
completes such restoration within such 30-day period, Tenant's election to
terminate shall be null and void.
(e) ABATEMENT OF RENT. If the Premises are damaged by Casualty, Rent
for the portion of the Premises rendered untenantable by the damage shall be
abated on a reasonable basis from the date of damage until the completion of
Landlord's repairs (or until the date of termination of this Lease by Landlord
or Tenant as provided above, as the case may be), unless a Tenant Party caused
such damage, in which case, Tenant shall continue to pay Rent without abatement.
15
17. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes levied or
assessed against personal property, furniture, or fixtures placed by Tenant in
the Premises or in or on the Building or Project. If any taxes for which Tenant
is liable are levied or assessed against Landlord or Landlord's property and
Landlord elects to pay the same, or if the assessed value of Landlord's property
is increased by inclusion of such personal property, furniture or fixtures and
Landlord elects to pay the taxes based on such increase, then Tenant shall pay
to Landlord, within 30 days following written request therefor, the part of such
taxes for which Tenant is primarily liable hereunder; however, Landlord shall
not pay such amount if Tenant notifies Landlord that it will contest the
validity or amount of such taxes before Landlord makes such payment, and
thereafter diligently proceeds with such contest in accordance with Law and if
the non-payment thereof does not pose a threat of loss or seizure of the Project
or interest of Landlord therein or impose any fee or penalty against Landlord.
18. EVENTS OF DEFAULT. Each of the following occurrences shall be an "EVENT
OF DEFAULT":
(a) PAYMENT DEFAULT. Tenant's failure to pay Rent within five (5) days
after Landlord has delivered written notice to Tenant that the same is past due;
however, an Event of Default shall occur hereunder without any obligation of
Landlord to give any notice if Tenant fails to pay Rent when due and, during the
12 month interval preceding such failure, Landlord has given Tenant written
notice of failure to pay Rent on two (2) occasions;
(b) Intentionally Omitted
(c) ESTOPPEL. Tenant fails to provide any estoppel certificate after
Landlord's written request therefor pursuant to Section 26(e) and such failure
shall continue for five (5) days after Landlord's second written notice thereof
to Tenant;
(d) INSURANCE. Tenant fails to procure, maintain and deliver to
Landlord evidence of the insurance policies and coverages as required under
Section 12(a), and such failure shall continue for five (5) days after
Landlord's written notice thereof to Tenant;
(e) MECHANIC'S LIENS. Tenant fails to pay and release of record, or
diligently contest and bond around, any mechanic's lien filed against the
Premises or the Project for any work performed, materials furnished, or
obligation incurred by or at the request of Tenant, within the time and in the
manner required by Section 8(d);
(f) OTHER DEFAULTS. Tenant's failure to perform, comply with, or
observe any other agreement or obligation of Tenant under this Lease and the
continuance of such failure for a period of more than thirty (30) days after
Landlord has delivered to Tenant written notice thereof; however, if such
failure cannot be cured within such 30-day period (thus excluding, for example,
Tenant's obligation to provide Landlord evidence of Tenant's insurance coverage)
and Tenant commences to cure such failure within such 30-day period and
thereafter diligently pursues such cure to completion, then such failure shall
not be an Event of Default unless it is not fully cured within an additional
sixty (60) days after the expiration of the 30-day period; and
(g) INSOLVENCY. The filing of a petition by or against Tenant (the
term "TENANT" shall include, for the purpose of this Section 18(g), any
guarantor of Tenant's obligations hereunder) (1) in any bankruptcy or other
insolvency proceeding; (2) seeking any relief under any state or federal debtor
relief law; (3) for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in this Lease;
(4) for the reorganization or modification of Tenant's capital structure; or (5)
in any assignment for the benefit of creditors proceeding; however, if such a
petition is filed against Tenant, then such filing shall not be an Event of
Default unless Tenant fails to have the proceedings initiated by such petition
dismissed within 90 days after the filing thereof.
19. REMEDIES. Upon any Event of Default, Landlord may, in addition to all
other rights and remedies afforded Landlord hereunder or by law or equity, take
any one or more of the following actions:
16
(a) TERMINATION OF LEASE. Terminate this Lease by giving Tenant
written notice thereof, in which event Tenant shall pay to Landlord the sum of
(1) all Rent accrued hereunder through the date of termination, (2) all amounts
due under Section 20(a), and (3) an amount equal to (A) the total Rent that
Tenant would have been required to pay for the remainder of the Term plus
Landlord's estimate of aggregate expenses of reletting the Premises, minus (B)
the then present fair rental value of the Premises for such period, similarly
discounted;
(b) TERMINATION OF POSSESSION. Terminate Tenant's right to possess the
Premises without terminating this Lease by giving written notice thereof to
Tenant, in which event Tenant shall pay to Landlord (1) all Rent and other
amounts accrued hereunder to the date of termination of possession, (2) all
amounts due from time to time under Section 20(a), and (3) all Rent and other
net sums required hereunder to be paid by Tenant during the remainder of the
Term, diminished by any net sums thereafter received by Landlord through
reletting the Premises during such period, after deducting all costs incurred by
Landlord in reletting the Premises. If Landlord elects to proceed under this
Section 19(b), Landlord may remove all of Tenant's property from the Premises
and store the same in a public warehouse or elsewhere at the cost of, and for
the account of, Tenant, without becoming liable for any loss or damage which may
be occasioned thereby. Landlord shall use reasonable efforts to relet the
Premises on such terms as Landlord in its sole discretion may determine
(including a term different from the Term, rental concessions, and alterations
to, and improvement of, the Premises); however, Landlord shall not be obligated
to relet the Premises before leasing other portions of the Building and Landlord
shall not be obligated to accept any prospective tenant proposed by Tenant
unless such proposed tenant meets all of Landlord's leasing criteria. Landlord
shall not be liable for, nor shall Tenant's obligations hereunder be diminished
because of, Landlord's failure to relet the Premises or to collect rent due for
such reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this Lease, all actions taken
by Landlord to dispossess or exclude Tenant from the Premises shall be deemed to
be taken under this Section 19(b). If Landlord elects to proceed under this
Section 19(b), it may at any time elect to terminate this Lease under Section
19(a); provided, however, in no event shall Tenant be required to pay any sums
due under this Lease for any given period more than once; or
(c) PERFORM ACTS ON BEHALF OF TENANT. Perform any act Tenant is
obligated to perform under the terms of this Lease (and enter upon the Premises
in connection therewith if necessary) in Tenant's name and on Tenant's behalf,
without being liable for any claim for damages therefor, and Tenant shall
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease (including, but
not limited to, collection costs and legal expenses), plus interest thereon at
the Default Rate.
20. PAYMENT BY TENANT; NON-WAIVER; CUMULATIVE REMEDIES.
(a) PAYMENT BY TENANT. Upon any Event of Default, Tenant shall pay to
Landlord all costs incurred by Landlord (including court costs and reasonable
attorneys' fees and expenses) in (1) obtaining possession of the Premises, (2)
removing and storing Tenant's or any other occupant's property, (3) repairing,
restoring, altering, remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant, (4) if Tenant is dispossessed of the
Premises and this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting), (5) performing Tenant's obligations which
Tenant failed to perform, and (6) enforcing, or advising Landlord of its rights,
remedies, and recourses arising out of the default. To the full extent permitted
by law, Landlord and Tenant agree the federal and state courts of the state in
which the Premises are located shall have exclusive jurisdiction over any matter
relating to or arising from this Lease and the parties' rights and obligations
under this Lease.
(b) NO WAIVER. Landlord's acceptance of Rent following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such
term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of
17
Rent or any writing delivered in connection therewith; accordingly, Landlord's
acceptance of a partial payment of Rent shall not constitute an accord and
satisfaction of the full amount of the Rent that is due.
(c) CUMULATIVE REMEDIES. Any and all remedies set forth in this Lease:
(1) shall be in addition to any and all other remedies Landlord may have at law
or in equity, (2) shall be cumulative, and (3) may be pursued successively or
concurrently as Landlord may elect. The exercise of any remedy by Landlord shall
not be deemed an election of remedies or preclude Landlord from exercising any
other remedies in the future. Additionally, Tenant shall defend, indemnify and
hold harmless Landlord, Landlord's Mortgagee and their respective
representatives and agents from and against all claims, demands, liabilities,
causes of action, suits, judgments, damages and expenses (including reasonable
attorneys' fees) arising from Tenant's failure to perform its obligations under
this Lease.
21. INTENTIONALLY OMITTED.
22. SURRENDER OF PREMISES. No act by Landlord shall be deemed an acceptance
of a surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord. At the
expiration or termination of this Lease, Tenant shall deliver to Landlord the
Premises with all improvements located therein in good repair and condition,
free of Hazardous Materials placed on the Premises during the Term, broom-clean,
reasonable wear and tear (and condemnation and Casualty damage not caused by
Tenant, as to which Sections 15 and 16 shall control) excepted, and shall
deliver to Landlord all keys to the Premises. Provided that Tenant has performed
all of its obligations hereunder, Tenant may remove all unattached trade
fixtures, furniture, and personal property placed in the Premises or elsewhere
in the Building by Tenant (but Tenant may not remove any such item which was
paid for, in whole or in part, by Landlord or any wiring or cabling unless
Landlord requires such removal). All alterations, additions or improvements made
in or upon the Premises shall, at Landlord's option, (to be exercised pursuant
to following sentence), either be removed by Tenant prior to the end of the Term
(and Tenant shall repair all damage caused thereby), or shall remain in the
Premises at the end of the Term without compensation to Tenant. In connection
with Landlord's review and approval of any of Tenant's proposed alterations,
additions or improvements to the Premises, Landlord may notify Tenant in
writing, contemporaneously with Landlord's notice of approval to Tenant with
respect to the improvements in question, that Landlord will require Tenant to
remove such alterations prior to the expiration of the Term; however, if Tenant
submits plans and specifications to Landlord for proposed alterations, additions
or improvements to the Premises and delivers a Removal Notice (defined below) to
Landlord contemporaneously with such submission by Tenant, and Landlord fails to
notify Tenant that Tenant will be required to remove such alterations, additions
or improvements to the Premises at the expiration of the Term, Landlord may not
request such removal at the expiration of the Term. A "Removal Notice" means a
written notice from Tenant to Landlord that conspicuously states in bold,
uppercase typeface that Tenant will not be required to remove the alterations,
additions or improvements in question at the end of the Term unless,
contemporaneously with Landlord's notice of approval to Tenant with respect to
the improvements in question, Landlord notifies Tenant in writing that Landlord
will require Tenant to remove such alterations prior to the expiration of the
Term. Notwithstanding the foregoing, if Tenant does not obtain Landlord's prior
written consent for any alterations, additions or improvements to the Premises
(whether such approval is required hereunder or otherwise), Tenant shall, at
Landlord's written request, remove all such alterations, additions,
improvements, trade fixtures, personal property, equipment, wiring, conduits,
cabling, and furniture (including Tenant's Off-Premises Equipment) as Landlord
may request; however, Tenant shall not be required to remove any addition or
improvement to the Premises or the Project if Landlord has specifically agreed
in writing that the improvement or addition in question need not be removed.
Tenant shall repair all damage caused by such removal. Notwithstanding the
foregoing, Landlord hereby acknowledges that Landlord will not require the
removal or restoration of the improvements set forth on the Space Plans attached
hereto as Exhibit D-1 at the expiration of the Term provided Tenant has complied
with its maintenance and repair obligations under this Lease. All items not so
removed shall, at Landlord's option, be deemed to have been abandoned by Tenant
and may be appropriated, sold, stored, destroyed, or otherwise disposed of by
Landlord without notice to Tenant and without any obligation to account for such
items. The provisions of this Section 22 shall survive the end of the Term.
23. HOLDING OVER. If Tenant fails to vacate the Premises at the end of the
Term, then Tenant shall be a tenant at sufferance and, in addition to all other
damages and remedies to which Landlord may be entitled for such holding over,
(a) Tenant shall pay, in addition to the other Rent, Basic Rent equal to 150% of
the Rent payable during the last month of the Term, and (b) Tenant shall
otherwise continue to be subject to all of Tenant's
18
obligations under this Lease. The provisions of this Section 23 shall not be
deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law. If Tenant fails to surrender the Premises
within thirty (30) days after the termination or expiration of this Lease, in
addition to any other liabilities to Landlord accruing therefrom, Tenant shall
protect, defend, indemnify and hold Landlord harmless from all loss, costs
(including reasonable attorneys' fees) and liability resulting from such
failure, including any claims made by any succeeding tenant founded upon such
failure to surrender, and any lost profits to Landlord resulting therefrom.
24. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of such
rights does not unreasonably interfere with Tenant's occupancy of the Premises,
Landlord shall have the following rights:
(a) BUILDING OPERATIONS. Upon twenty-four (24) hours prior written or
verbal notice to Tenant's Office Manager at the Premises, and with respect to
the performance of Landlord's obligations under this Lease, to make inspections,
repairs, alterations, additions, changes, or improvements in and about the
Project, or any part thereof, to enter upon the Premises (after giving Tenant
reasonable notice thereof, which may be oral notice, except in cases of real or
apparent emergency, in which case no notice shall be required) and, during the
continuance of any such work, to temporarily close doors, entryways, public
space, and corridors in the Building; and to interrupt or temporarily suspend
Building services and facilities during Landlord's diligent performance of its
obligations under this Lease provided Tenant shall be able to access the
Building;
(b) SECURITY. To take such reasonable measures as Landlord deems
advisable for the security of the Building and its occupants; evacuating the
Building for cause, suspected cause, or for drill purposes; temporarily denying
access to the Building; and closing the Building after normal business hours and
on Sundays and holidays, subject, however, to Tenant's right to enter when the
Building is closed after normal business hours under such reasonable regulations
as Landlord may prescribe from time to time;
(c) PROSPECTIVE PURCHASERS AND LENDERS. Upon twenty-four (24) hours
prior written or verbal notice to Tenant's Office Manager at the Premises, to
enter the Premises at all reasonable hours to show the Premises to prospective
purchasers or lenders; and
(d) PROSPECTIVE TENANTS. At any time during the last nine (9) months
of the Term (or earlier if Tenant has notified Landlord in writing that it does
not desire to renew the Term) or at any time following the occurrence of an
Event of Default, and in each case upon twenty-four (24) hours prior written or
verbal notice to Tenant's Office Manager at the Premises, to enter the Premises
at all reasonable hours to show the Premises to prospective tenants.
25. INTENTIONALLY OMITTED.
26. MISCELLANEOUS.
(a) LANDLORD TRANSFER. Landlord may transfer any portion of the
Project and any of its rights under this Lease. If Landlord assigns its rights
under this Lease, then Landlord shall thereby be released from any further
obligations hereunder arising after the date of transfer, provided that the
assignee assumes in writing Landlord's obligations hereunder arising from and
after the transfer date.
(b) LANDLORD'S LIABILITY. The liability of Landlord (and its partners,
shareholders or members) to Tenant (or any person or entity claiming by, through
or under Tenant) for any default by Landlord under the terms of this Lease or
any matter relating to or arising out of the occupancy or use of the Premises
and/or other areas of the Building shall be limited to Tenant's actual direct,
but not consequential, damages therefor and shall be recoverable only from the
interest of Landlord in the Premises, net proceeds derived from the sale
thereof, and, to the extent actually received by Landlord (thus excluding
amounts paid to Landlord's Mortgagees), insurance proceeds and condemnation
awards, and Landlord (and its partners, shareholders or members) shall not be
personally liable for any deficiency.
(c) FORCE MAJEURE. Other than for Landlord's or Tenant's obligations
under this Lease that can be performed by the payment of money (e.g., payment of
Rent and maintenance of insurance), whenever a
19
period of time is herein prescribed for action to be taken by either party
hereto, such party shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, terrorist
acts or activities, governmental laws, regulations, or restrictions, or any
other causes of any kind whatsoever which are beyond the control of such party.
(d) BROKERAGE. Neither Landlord nor Tenant has dealt with any broker
or agent in connection with the negotiation or execution of this Lease, other
than Cushman & Wakefield of Massachusetts, Inc. and Richards Barry Joyce &
Partners, each of whose commission shall be paid by Landlord pursuant to a
separate written agreement. Except as set forth in the immediately preceding
sentence, Tenant and Landlord shall each indemnify the other against all costs,
expenses, attorneys' fees, liens and other liability for commissions or other
compensation claimed by any broker or agent claiming the same by, through, or
under the indemnifying party.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant shall furnish to
any party designated by Landlord, within fifteen (15) days after Landlord has
made a written request therefor, a certificate signed by Tenant confirming and
containing such factual certifications and representations as to this Lease as
Landlord may reasonably request. Unless otherwise required by Landlord's
Mortgagee or a prospective purchaser or mortgagee of the Project, the initial
form of estoppel certificate to be signed by Tenant is attached hereto as
Exhibit F. If Tenant does not deliver to Landlord the certificate signed by
Tenant within such required time period, Landlord, Landlord's Mortgagee and any
prospective purchaser or mortgagee, may conclusively presume and rely upon the
following facts: (1) this Lease is in full force and effect: (2) the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord: (3) not more than one monthly installment of Basic Rent and other
charges have been paid in advance: (4) there are no claims against Landlord nor
any defenses or rights of offset against collection of Rent or other charges:
and (5) Landlord is not in default under this Lease. In such event, Tenant shall
be estopped from denying the truth of the presumed facts.
(f) NOTICES. All notices and other communications given pursuant to
this Lease shall be in writing and shall be (1) mailed by first class, United
States Mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified in the Basic Lease
Information, (2) hand delivered to the intended addressee, (3) sent by a
nationally recognized overnight courier service, or (4) sent by facsimile
transmission during normal business hours followed by a confirmatory letter sent
in another manner permitted hereunder. All notices shall be effective upon
delivery to the address of the addressee (even if such addressee refuses
delivery thereof). The parties hereto may change their addresses by giving
notice thereof to the other in conformity with this provision.
(g) SEPARABILITY. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu of such clause or
provision, there shall be added as a part of this Lease a clause or provision as
similar in terms to such illegal, invalid, or unenforceable clause or provision
as may be possible and be legal, valid, and enforceable.
(h) AMENDMENTS; BINDING EFFECT; NO ELECTRONIC RECORDS. This Lease may
not be amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord, and no custom or practice which
may evolve between the parties in the administration of the terms hereof shall
waive or diminish the right of Landlord to insist upon the performance by Tenant
in strict accordance with the terms hereof. Landlord and Tenant hereby agree not
to conduct the transactions or communications contemplated by this Lease by
electronic means, except by facsimile transmission as specifically set forth in
Section 26(f); nor shall the use of the phrase "in writing" or the word
"written" be construed to include electronic communications except by facsimile
transmissions as specifically set forth in Section 26(f). The terms and
conditions contained in this Lease shall inure to the benefit of and be binding
upon the parties hereto, and upon their respective successors in interest and
legal representatives, except as otherwise herein expressly provided. This Lease
is for the sole benefit of Landlord and Tenant, and, other than Landlord's
Mortgagee, no third party shall be deemed a third party beneficiary hereof.
(i) QUIET ENJOYMENT. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease.
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(j) NO MERGER. There shall be no merger of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof if the same
person acquires or holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the leasehold Premises or any interest in such
fee estate.
(k) NO OFFER. The submission of this Lease to Tenant shall not be
construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
(l) ENTIRE AGREEMENT. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and supersedes
all oral statements and prior writings relating thereto. Except for those set
forth in this Lease, no representations, warranties, or agreements have been
made by Landlord or Tenant to the other with respect to this Lease or the
obligations of Landlord or Tenant in connection therewith. The normal rule of
construction that any ambiguities be resolved against the drafting party shall
not apply to the interpretation of this Lease or any exhibits or amendments
hereto.
(m) WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
LANDLORD AND TENANT EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR WITH
RESPECT TO THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
(n) GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the state in which the Premises are located.
(o) NOTICE OF LEASE. Tenant agrees not to record this Lease and,
subject to the provisions of Section 26(u) below, to keep the terms of this
Lease confidential, but each party hereto agrees, at the request of the other,
to execute a so-called Notice of Lease in the form attached hereto as Exhibit I
complying with applicable law. In no event shall such document set forth the
Rent or other charges payable by Tenant hereunder. Tenant hereby grants to
Landlord a power of attorney to execute and record a release releasing such
Notice following the expiration or earlier termination of the Term of this
Lease.
(p) WATER OR MOLD NOTIFICATION. To the extent Tenant or its agents or
employees discover any water leakage, water damage or mold in or about the
Premises or Project, Tenant shall promptly notify Landlord thereof in writing.
(q) JOINT AND SEVERAL LIABILITY. If Tenant is comprised of more than
one party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease. All unperformed obligations of Tenant hereunder
not fully performed at the end of the Term shall survive the end of the Term,
including payment obligations with respect to Rent and all obligations
concerning the condition and repair of the Premises.
(r) FINANCIAL REPORTS. Within fifteen (15) days after Landlord's
request, Tenant will furnish Tenant's most recent audited financial statements
(including any notes to them) to Landlord, or, if no such audited statements
have been prepared, such other financial statements (and notes to them) as may
have been prepared by an independent certified public accountant or, failing
those, Tenant's internally prepared financial statements. If Tenant is a
publicly traded corporation, Tenant may satisfy its obligations hereunder by
providing to Landlord Tenant's most recent annual and quarterly reports. Tenant
will discuss its financial statements with Landlord and, following the
occurrence of an Event of Default hereunder, will give Landlord access to
Tenant's books and records in order to enable Landlord to verify the financial
statements. Landlord will not disclose any aspect of Tenant's financial
statements except (1) to Landlord's Mortgagee or prospective mortgagees or
purchasers of the Building or Landlord's attorneys, (2) to the parties'
attorneys in litigation between Landlord and Tenant, and/or (3) if required by
court order, provided that with respect to items (1) and (2) of this sentence,
Landlord shall first obtain a non-disclosure agreement from each such mortgagee,
purchaser or attorney on terms reasonably satisfactory to Tenant, Landlord,
Landlord's Mortgagees and Landlord's attorneys, as applicable. Tenant shall not
be required to deliver the financial statements required under this Section
26(r) more than once in any 12-month
21
period unless requested by Landlord's Mortgagee or a prospective buyer or lender
of the Building or an Event of Default occurs.
(s) LANDLORD'S FEES. Whenever Tenant requests Landlord to take any
action not required of it hereunder or give any consent required or permitted
under this Lease, Tenant will reimburse Landlord for Landlord's reasonable,
out-of-pocket costs payable to third parties and incurred by Landlord in
reviewing the proposed action or consent, including reasonable attorneys',
engineers' or architects' fees, within 30 days after Landlord's delivery to
Tenant of a statement of such costs. Tenant will be obligated to make such
reimbursement without regard to whether Landlord consents to any such proposed
action.
(t) TELECOMMUNICATIONS. Tenant acknowledges that Landlord shall not be
required to provide or arrange for any telecommunications systems, including
voice, video, data, Internet, and any other services provided over wire, fiber
optic, microwave, wireless, and any other transmission systems
("TELECOMMUNICATIONS SERVICES") and that Landlord shall have no liability to any
Tenant Party in connection with the installation, operation or maintenance of
Telecommunications Services or any equipment or facilities relating thereto.
Tenant, at its cost and for its own account, shall be solely responsible for
obtaining all Telecommunications Services. Tenant shall comply with the
provisions of this Lease, including, without limitation, the provisions of
Section 8 hereof, in connection with the installation of any Telecommunications
Services or any equipment or facilities relating thereto.
(u) CONFIDENTIALITY. Tenant acknowledges that the terms and conditions
of this Lease are to remain confidential for Landlord's benefit, and may not be
disclosed by Tenant to anyone, by any manner or means, directly or indirectly,
without Landlord's prior written consent; however, Tenant may disclose the terms
and conditions of this Lease if required by Law or court order, and to its
attorneys, accountants, employees and existing or prospective financial partners
provided same are advised by Tenant of the confidential nature of such terms and
conditions and agree to maintain the confidentiality thereof (in each case,
prior to disclosure). Tenant shall be liable for any disclosures made in
violation of this Section by Tenant or by any entity or individual to whom the
terms of and conditions of this Lease were disclosed or made available by
Tenant. The consent by Landlord to any disclosures shall not be deemed to be a
waiver on the part of Landlord of any prohibition against any future disclosure.
(v) AUTHORITY. Tenant (if a corporation, partnership or other business
entity) hereby represents and warrants to Landlord that Tenant is a duly formed
and existing entity qualified to do business in the state in which the Premises
are located, that Tenant has full right and authority to execute and deliver
this Lease, and that each person signing on behalf of Tenant is authorized to do
so. Landlord hereby represents and warrants to Tenant that Landlord is a duly
formed and existing entity qualified to do business in the state in which the
Premises are located, that Landlord has full right and authority to execute and
deliver this Lease, and that each person signing on behalf of Landlord is
authorized to do so.
(w) ROOFTOP EQUIPMENT. Tenant may install, at Tenant's risk and
expense and to be used solely by Tenant, an array of antennas (not to exceed
forty (40) antennas without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed), including GPS receivers, omni
antennas, and a dish style antennae, none of which shall be more than six (6)
feet in diameter (the "ROOFTOP EQUIPMENT") on the roof or the upper edge of the
rear of the Building at a location approved by Landlord. The Rooftop Equipment
shall be used only by Tenant. Before installing the Rooftop Equipment, Tenant
shall submit to Landlord for its approval plans and specifications which (A)
specify in detail the design, location and size of the Rooftop Equipment and (B)
are sufficiently detailed to allow for the installation of the Rooftop Equipment
in a good and workmanlike manner and in accordance with all Laws. None of the
Rooftop Equipment shall protrude more than five (5) feet above the elevation of
the roof on which it is installed and all such equipment to the extent
reasonably practicable must be painted in a color reasonably acceptable to
Landlord to minimize visibility. If Landlord approves of such plans, Tenant
shall install (in a good and workmanlike manner), maintain and use the Rooftop
Equipment in accordance with all Laws and shall obtain all consents and permits
required for the installation and operation thereof; copies of all such permits
and evidence of such consents must be submitted to Landlord before Tenant begins
to install the Rooftop Equipment. Tenant shall thereafter maintain all permits
necessary for the maintenance and operation of the Rooftop Equipment while it is
on the Building and operate and maintain the Rooftop Equipment in such a manner
so as not to unreasonably interfere with any equipment (including any other
satellite, antennae, or other transmission
22
facility) on the Building's roof or in the Building. To the extent reasonably
practicable, Landlord may require that Tenant screen the Rooftop Equipment seen
from the street with a parapet or other screening device acceptable to Landlord.
Tenant shall maintain the Rooftop Equipment and screening device, if applicable,
in good repair and condition. Upon Landlord's written request (but not
otherwise), Tenant shall, at its risk and expense, remove the Rooftop Equipment
(including all wiring related thereto), within five (5) days after the
occurrence of any of the following events: (i) the termination of Tenant's right
to possess the Premises; (ii) the termination of this Lease; (iii) the
expiration of the Term; or (iv) the vacation of the Premises by Tenant and any
and all assignees and/or sublessees approved by Landlord hereunder for a period
of greater than sixty (60) consecutive days (but prior to the termination of
this Lease or Tenant's right to possession of the Premises). If Tenant fails to
do so, Landlord may remove all or any part of the Rooftop Equipment and store or
dispose of it in any manner Landlord deems appropriate without liability to
Tenant; Tenant shall reimburse Landlord for all costs incurred by Landlord in
connection therewith within ten (10) days after Landlord's request therefor.
Tenant shall repair any damage to the Building caused by or relating to the
Rooftop Equipment, including that which is caused by its installation,
maintenance, use, or removal and shall indemnify Landlord against all
liabilities, losses, damages, and costs arising from the installation,
maintenance, use, or removal of the Rooftop Equipment (UNLESS THE LIABILITIES,
LOSSES, DAMAGES, AND COSTS IN QUESTION WERE CAUSED BY LANDLORD'S SOLE OR GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT). All work relating to the Rooftop Equipment
shall, at Tenant's expense, be coordinated with Landlord's roofing contractor so
as not to affect any warranty for the Building's roof and shall not penetrate
the roof.
(x) SIGNAGE. Tenant shall have the right to install exterior signage
on the exterior monument of the Premises and on the exterior of the Building.
All such exterior monument signage and exterior Building signage must be
installed and maintained in accordance with all Laws and subject to Landlord's
prior written approval, which approval shall not be unreasonably withheld,
conditioned, or delayed
(y) LIST OF EXHIBITS. All exhibits and attachments attached hereto are
incorporated herein by this reference.
Exhibit A - Site Plan of Premises
Exhibit B - Description of the Land
Exhibit C - Building Rules and Regulations
Exhibit D - Tenant Finish-Work: Allowance
Exhibit D-1 - Tenant's Space Plans
Exhibit D-2 - List of Approved Contractors and Subcontractors
Exhibit E - Form of Confirmation of Commencement Date Letter
Exhibit F - Form of Tenant Estoppel Certificate
Exhibit G - Renewal Option
Exhibit H - Letter of Credit
Exhibit I - Notice of Lease
Exhibit J - 2005 Estimated Operating Costs
Exhibit K - List of Windows to be Replaced by Landlord
Exhibit L - List of Items Used by Tenant Containing Hazardous
Materials
Exhibit M - Tenant's Proposed Parking Lot Expansion Plan
(z) PROHIBITED PERSONS AND TRANSACTIONS.
Tenant represents and warrants that neither Tenant nor any of its
affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors,
representatives or agents is, nor will they become, a person or entity with whom
U.S. persons or entities are restricted from doing business under regulations of
the Office of Foreign Asset Control ("OFAC" of the Department of the Treasury
(including those named on OFAC's Specially Designated and Blocked Persons List)
or under any statute, executive order (including the September 4, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action
and is not and will not Transfer this Lease to, contract with or otherwise
engage in any dealings or transactions or be otherwise associated with such
persons or entities.
23
(aa) LANDLORD'S DEFAULT. Except as provided below in this Section
26(aa), and except where the provisions of this Lease grant Tenant an express,
exclusive remedy, or expressly deny Tenant a remedy, Tenant's exclusive remedy
for Landlord's failure to perform its obligations under this Lease following the
Commencement Date shall be limited to damages, injunctive relief, or specific
performance; in each case, Landlord's liability or obligations with respect to
any such remedy shall be limited as provided in Section 26(b). Landlord shall be
in default under this Lease if Landlord fails to perform any of its obligations
hereunder following the Commencement Date and such failure continues for thirty
(30) days after Tenant delivers to Landlord written notice specifying such
failure; however, if such failure cannot reasonably be cured within such 30-day
period, but Landlord commences to cure such failure within such 30-day period
and thereafter diligently pursues the curing thereof to completion, then
Landlord shall not be in default hereunder or liable for damages therefor.
(bb) FAILURE OF TENANT TO CONTINUOUSLY OCCUPY THE PREMISES. If, for
more than nine (9) months in any twelve (12) month period, Tenant (1) abandons
or vacates the Premises or any substantial portion thereof or (2) fails to
continuously operate its business in the Premises, Landlord may cancel this
Lease (at its option and in its sole discretion) upon giving written notice to
Tenant as of the date specified in such notice. If Landlord cancels this Lease,
then this Lease shall cease and Tenant shall pay to Landlord all Rent accrued
through the cancellation date. Thereafter, Landlord may lease the Premises (or
any portion thereof) to any person without liability to Tenant.
27. LETTER OF CREDIT.
(a) GENERAL PROVISIONS. Concurrently with Tenant's execution of this
Lease, Tenant shall deliver to Landlord, as collateral for the full performance
by Tenant of all of its obligations under this Lease and for all losses and
damages Landlord may suffer as a result of any default by Tenant under this
Lease, a standby, unconditional, irrevocable, transferable letter of credit (the
"LETTER OF CREDIT") in the form of Exhibit H hereto and containing the terms
required herein, in the face amount of $142,245.00 (the "LETTER OF CREDIT
AMOUNT"), naming Landlord as beneficiary, issued (or confirmed) by a financial
institution acceptable to Landlord in Landlord's sole discretion (it being
hereby acknowledged that Silicon Valley Bank is an acceptable financial
institution for the purposes of issuing the Letter of Credit as of the Lease
Date), permitting multiple and partial draws thereon, and otherwise in form
acceptable to Landlord in its sole discretion. Tenant shall cause the Letter of
Credit to be continuously maintained in effect (whether through replacement,
renewal or extension) in the Letter of Credit Amount through the date (the
"FINAL LC EXPIRATION DATE") that is one hundred twenty (120) days after the
scheduled expiration date of the Term or any renewal Term. If the Letter of
Credit held by Landlord expires earlier than the Final LC Expiration Date
(whether by reason of a stated expiration date or a notice of termination or
non-renewal given by the issuing bank), Tenant shall deliver a new Letter of
Credit or certificate of renewal or extension to Landlord not later than thirty
(30) days prior to the expiration date of the Letter of Credit then held by
Landlord. Any renewal or replacement Letter of Credit shall comply with all of
the provisions of this Section, shall be irrevocable, transferable and shall
remain in effect (or be automatically renewable) through the Final LC Expiration
Date upon the same terms as the expiring Letter of Credit or such other terms as
may be acceptable to Landlord in its sole discretion.
(b) DRAWINGS UNDER LETTER OF CREDIT. Landlord shall have the right to
draw upon the Letter of Credit, in whole or in part, at any time and from time
to time:
If an Event of Default occurs; or
If the Letter of Credit held by Landlord expires earlier than the
Final LC Expiration Date (whether by reason of a stated expiration date or a
notice of termination or non-renewal given by the issuing bank), and Tenant
fails to deliver to Landlord, at least thirty (30) days prior to the expiration
date of the Letter of Credit then held by Landlord, a renewal or substitute
Letter of Credit that is in effect and that complies with the provisions of this
Section 27.
No condition or term of this Lease shall be deemed to render the Letter of
Credit conditional to justify the issuer of the Letter of Credit in failing to
honor a drawing upon such Letter of Credit in a timely manner. Tenant hereby
acknowledges and agrees that Landlord is entering into this Lease in material
reliance upon the ability of
24
Landlord to draw upon the Letter of Credit upon the occurrence of any Event of
Default by Tenant under this Lease or upon the occurrence of any of the other
events described above in this Section 27(b).
(c) USE OF PROCEEDS BY LANDLORD. The proceeds of the Letter of Credit
may be applied by Landlord against any Rent payable by Tenant under this Lease
that is not paid when due and/or to pay for all losses and damages that Landlord
has suffered or that Landlord reasonably estimates that it will suffer as a
result of any default by Tenant under this Lease. Landlord shall deposit any
unused proceeds in a separate account in the name of Landlord or its designee at
a financial institution selected by Landlord in its sole discretion (the "LC
PROCEEDS ACCOUNT"). Landlord may apply funds from the LC Proceeds Account
against any Rent payable by Tenant under this Lease that is not paid when due
and/or to pay for all losses and damages that Landlord has suffered or that
Landlord reasonably estimates that it will suffer as a result of any default by
Tenant under this Lease. Tenant hereby grants Landlord a security interest in
the LC Proceeds Account and agrees that, in addition to all other rights and
remedies available to Landlord under applicable Law, Landlord shall have all
rights of a secured party under the Massachusetts Uniform Commercial Code with
respect to the LC Proceeds Account. The LC Proceeds Account shall be under the
sole control of Landlord. Tenant shall not have any right to direct the
disposition of funds from the LC Proceeds Account or any other right or interest
in the LC Proceeds Account. Tenant shall, at any time and from time to time,
execute, acknowledge and deliver such documents and take such actions as
Landlord or the bank with which the LC Proceeds Account is maintained may
reasonably request concerning the creation or perfection of the security
interest granted to Landlord in (including Landlord's control of) LC Proceeds
Account or to effect the provisions of this Section 27(c). Tenant does hereby
make, constitute and appoint Landlord its true and lawful attorney-in-fact, for
it and in its name, place and stead, to execute and deliver all such instruments
and documents, and to do all such other acts and things, as Landlord may deem to
be necessary or desirable to protect and preserve the rights granted to Landlord
under this Section 27(c). Tenant hereby grants to Landlord the full power and
authority to appoint one or more substitutes to perform any of the acts that
Landlord is authorized to perform under this Section 27(c), with a right to
revoke such appointment of substitution at Landlord's pleasure. The power of
attorney granted pursuant to this Section 27(c) is coupled with an interest and
therefore is irrevocable. Any person dealing with Landlord may rely upon the
representation of Landlord relating to any authority granted by this power of
attorney, including the intended scope of the authority, and may accept the
written certificate of Landlord that this power of attorney is in full force and
effect. Photographic or other facsimile reproductions of this executed Lease may
be made and delivered by Landlord, and may be relied upon by any person to the
same extent as though the copy were an original. Anyone who acts in reliance
upon any representation or certificate of Landlord, or upon a reproduction of
this Lease, shall not be liable for permitting Landlord to perform any act
pursuant to this power of attorney. Provided Tenant has performed all of its
obligations under this Lease, Landlord agrees to pay to Tenant within thirty
(30) days after the Final LC Expiration Date the amount of any proceeds of the
Letter of Credit received by Landlord and not applied against any Rent payable
by Tenant under this Lease that was not paid when due or used to pay for any
losses and/or damages suffered by Landlord (or reasonably estimated by Landlord
that it will suffer) as a result of any default by Tenant under this Lease and
return the Letter of Credit to Tenant; provided, that if prior to the Final LC
Expiration Date a voluntary petition is filed by Tenant or any Guarantor, or an
involuntary petition is filed against Tenant or any Guarantor by any of Tenant's
or Guarantor's creditors, under the Federal Bankruptcy Code, then Landlord shall
not be obligated to make such payment in the amount of the unused Letter of
Credit proceeds until either all preference issues relating to payments under
this Lease have been resolved in such bankruptcy or reorganization case or such
bankruptcy or reorganization case has been dismissed, in each case pursuant to a
final court order not subject to appeal or any stay pending appeal.
(d) ADDITIONAL COVENANTS OF TENANT. If, as result of any application
or use by Landlord of all or any part of the Letter of Credit, the amount of the
Letter of Credit shall be less than the Letter of Credit Amount, Tenant shall,
within ten (10) days following notice from Landlord of the same, provide
Landlord with additional letter(s) of credit in an amount equal to the
deficiency (or a replacement letter of credit in the total Letter of Credit
Amount), and any such additional (or replacement) letter of credit shall comply
with all of the provisions of this Section 27 and if Tenant fails to comply with
the foregoing, notwithstanding anything to the contrary contained in this Lease,
the same shall constitute an uncurable Event of Default by Tenant. Tenant
further covenants and warrants that it will neither assign nor encumber the
Letter of Credit or any part thereof or any interest in the LC Proceeds Account
and that neither Landlord nor its successors or assigns will be bound by any
such assignment, encumbrance, attempted assignment or attempted encumbrance.
25
(e) TRANSFER OF LETTER OF CREDIT. Landlord may, at any time and
without notice to Tenant and without first obtaining Tenant's consent thereto,
transfer all or any portion of its interest in and to the Letter of Credit to
another party, person or entity, including Landlord's Mortgagee and/or to have
the Letter of Credit reissued in the name of Landlord's Mortgagee. If Landlord
transfers its interest in the Building and transfers the Letter of Credit (or
any proceeds thereof then held by Landlord) in whole or in part to the
transferee, Landlord shall, without any further agreement between the parties
hereto, thereupon be released by Tenant from all liability therefor. The
provisions hereof shall apply to every transfer or assignment of all or any part
of the Letter of Credit to a new landlord. In connection with any such transfer
of the Letter of Credit by Landlord, Tenant shall, at Tenant's sole cost and
expense, execute and submit to the issuer of the Letter of Credit such
applications, documents and instruments as may be necessary to effectuate such
transfer. The issuer's transfer and processing fees in connection with any
transfer of the Letter of Credit shall be capped at one-quarter of one percent
(1/4%).
(f) NATURE OF LETTER OF CREDIT. Landlord and Tenant (1) acknowledge
and agree that in no event or circumstance shall the Letter of Credit or any
renewal thereof or substitute therefor or any proceeds thereof (including the LC
Proceeds Account) be deemed to be or treated as a "security deposit" under any
Law applicable to security deposits in the commercial context ("SECURITY DEPOSIT
LAWS"), (2) acknowledge and agree that the Letter of Credit (including any
renewal thereof or substitute therefor or any proceeds thereof) is not intended
to serve as a security deposit, and the Security Deposit Laws shall have no
applicability or relevancy thereto, and (3) waive any and all rights, duties and
obligations either party may now or, in the future, will have relating to or
arising from the Security Deposit Laws.
28. ENVIRONMENTAL REQUIREMENTS.
(a) PROHIBITION AGAINST HAZARDOUS MATERIALS. Except for Hazardous
Materials (as hereinafter defined) contained in products used by Tenant in de
minimis quantities for ordinary cleaning and business purposes and those items
listed on Exhibit L, Tenant shall not permit or cause any party to bring any
Hazardous Materials upon the Premises or in the Project or transport, store,
use, generate, manufacture, dispose, or release any Hazardous Materials on or
from the Premises or the Project without Landlord's prior written consent.
Tenant, at its sole cost and expense, shall operate its business in the Premises
in strict compliance with all Environmental Requirements (as hereinafter
defined) and all requirements of this Lease. Tenant shall complete and certify
to disclosure statements as requested by Landlord from time to time relating to
Tenant's transportation, storage, use, generation, manufacture, or release of
Hazardous Materials on the Premises or in the Project, and Tenant shall promptly
deliver to Landlord a copy of any notice of violation relating to the Premises
or the Project of any Environmental Requirement.
(b) ENVIRONMENTAL REQUIREMENTS. The term "ENVIRONMENTAL REQUIREMENTS"
means all Laws regulating or relating to health, safety, or environmental
conditions on, under, or about the Premises or the Project or the environment
including the following: the Comprehensive Environmental Response, Compensation
and Liability Act; the Resource Conservation and Recovery Act; the Clean Air
Act; the Clean Water Act; the Toxic Substances Control Act and all state and
local counterparts thereto, and any common or civil law obligations including
nuisance or trespass, and any other requirements of Section 4 and Exhibit C of
this Lease. The term "HAZARDOUS MATERIALS" means and includes any substance,
material, waste, pollutant, or contaminant that is or could be regulated under
any Environmental Requirement or that may adversely affect human health or the
environment, including any solid or hazardous waste, hazardous substance,
asbestos, petroleum (including crude oil or any fraction thereof, natural gas,
synthetic gas, polychlorinated biphenyls (PCBs), and radioactive material). For
purposes of Environmental Requirements, to the extent authorized by law, Tenant
is and shall be deemed to be the responsible party, including the "owner" and
"operator" of Tenant's "facility" and the "owner" of all Hazardous Materials
brought on the Premises or the Project by a Tenant Party and the wastes,
by-products, or residues generated, resulting, or produced therefrom.
(c) REMOVAL OF HAZARDOUS MATERIALS. Tenant, at its sole cost and
expense, shall remove all Hazardous Materials stored, disposed of or otherwise
released by a Tenant Party onto or from the Premises or the Project, in a manner
and to a level satisfactory to Landlord in its sole discretion, but in no event
to a level and in a manner less than that which complies with all Environmental
Requirements and does not limit any future uses of the Premises or the Project
or require the recording of any deed restriction or notice regarding the
Premises or the Project. Tenant shall perform such work at any time during the
period of this Lease upon written request by
26
Landlord or, in the absence of a specific request by Landlord, before Tenant's
right to possession of the Premises terminates or expires. If Tenant fails to
perform such work within the time period specified by Landlord or before
Tenant's right to possession terminates or expires (whichever is earlier),
Landlord may at its discretion, and without waiving any other remedy available
under this Lease or at law or equity (including an action to compel Tenant to
perform such work), perform such work at Tenant's cost. Tenant shall pay all
costs incurred by Landlord in performing such work within ten days after
Landlord's request therefor. Such work performed by Landlord is on behalf of
Tenant and Tenant remains the owner, generator, operator, transporter, and/or
arranger of the Hazardous Materials for purposes of Environmental Requirements.
Tenant agrees not to enter into any agreement with any person, including any
governmental authority, regarding the removal of Hazardous Materials that have
been disposed of or otherwise released onto or from the Premises or the Project
without the written approval of the Landlord.
(d) TENANT'S INDEMNITY. Tenant shall indemnify, defend, and hold
Landlord harmless from and against any and all losses (including diminution in
value of the Premises or the Project and loss of rental income from the
Project), claims, demands, actions, suits, damages (including punitive damages),
expenses (including remediation, removal, repair, corrective action, or cleanup
expenses), and costs (including actual attorneys' fees, consultant fees or
expert fees and including removal or management of any asbestos brought into the
Premises or the Project or disturbed in breach of the requirements of this
Section 28, regardless of whether such removal or management is required by Law)
which are brought or recoverable against, or suffered or incurred by Landlord as
a result of any release of Hazardous Materials or any breach of the requirements
under this Section 28 by a Tenant Party regardless of whether Tenant had
knowledge of such noncompliance. Notwithstanding any provisions in this Section
28 to the contrary, Tenant shall not be required to remove or remediate any
contamination resulting from the presence of Hazardous Materials existing upon
or under the Premises or the Building prior to the Lease Date unless any Tenant
Party exacerbates such existing contamination and shall be released from all
liability relating to the presence of Hazardous Materials existing upon or under
the Premises or the Building prior to the Lease Date unless any Tenant Party
exacerbates such existing contamination. The obligations of Tenant under this
Section 28 shall survive any expiration or termination of this Lease.
(e) INSPECTIONS AND TESTS. Landlord shall have access to, and a right,
at its sole cost and expense and following written notice to Tenant, to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Requirements, its obligations under this Section 28, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant's
operations. Such inspections and tests shall be conducted at Landlord's expense,
unless such inspections or tests reveal that Tenant has not complied with any
Environmental Requirement, in which case Tenant shall reimburse Landlord for the
reasonable cost of such inspection and tests. Landlord's receipt of or
satisfaction with any environmental assessment in no way waives any rights that
Landlord holds against Tenant. Tenant shall promptly notify Landlord of any
communication or report that Tenant makes to any governmental authority
regarding any possible violation of Environmental Requirements or release or
threat of release of any Hazardous Materials onto or from the Premises or the
Project. Tenant shall, within five (5) days of receipt thereof, provide Landlord
with a copy of any documents or correspondence received from any governmental
agency or other party relating to a possible violation of Environmental
Requirements or claim or liability associated with the release or threat of
release of any Hazardous Materials onto or from the Premises or the Project.
(f) TENANT'S FINANCIAL ASSURANCE IN THE EVENT OF A BREACH. In addition
to all other rights and remedies available to Landlord under this Lease or
otherwise, Landlord may, in the event of a breach of the requirements of this
Section 28 that is not cured within thirty (30) days following notice of such
breach by Landlord, require Tenant to provide financial assurance (such as
insurance, escrow of funds or third party guarantee) in an amount and form
satisfactory to Landlord. The requirements of this Section 28 are in addition to
and not in lieu of any other provision in this Lease. Tenant's obligations under
this Section 28 shall also apply to the areas where Tenant's Off-Premises
Equipment is located.
(g) ACM REMOVAL. No asbestos containing material (ACM) shall be
removed or disturbed within the Building by anyone other than by someone
employed by Landlord. Tenant shall coordinate the demolition portion of the Work
(as hereinafter defined in Exhibit D) with the ACM Contractor (as hereinafter
defined) chosen by Landlord, and consented to by Tenant (which consent shall not
be unreasonably withheld,
27
conditioned or delayed), to perform the ACM Work (as hereinafter defined).
Tenant shall complete the demolition portion of the Work before November 22,
2004 and shall turn over control and possession of the Building to Landlord for
the performance of the ACM Work on or before 7:00 a.m. on November 22, 2004 and
throughout the Abatement Period (as hereinafter defined). If Tenant does not
turn over control and possession of the Building to Landlord for the performance
of the ACM Work on or before 7:00 a.m. on November 22, 2004, the Abatement
Period shall be extended on a day-for-day basis for each day beyond November 22,
2004 in which Tenant fails to turn over control and possession of the Building
and for such additional period of time as is reasonably necessary for Landlord
to arrange to have the ACM Work performed and to perform the ACM Work.
Landlord shall have from 7:00 a.m. on November 22, 2004 through 11:59 p.m.
on December 11, 2004 (the "ABATEMENT PERIOD") to perform the ACM Work, and no
Tenant Parties shall have access to or shall access the Building during the
Abatement Period. For the purposes of this Lease: the "ACM WORK" shall mean and
include the removal and disposal of all carpeting and ACM identified within the
Building by Landlord's consultant and any other ACM within the Building
discovered during Tenant's demolition portion of the Work in accordance with all
applicable Laws by one of the ACM Contractors chosen by Landlord and consented
to by Tenant (which consent shall not be unreasonably withheld, conditioned or
delayed); and the "ACM CONTRACTORS" shall mean LVI Environmental Services,
Yankee Environmental, Aulson and Response Remediation. The two hundred (200) day
period referred to in the definition of the Commencement Date in the Basic Lease
Information above shall be extended on a day for day basis for each day beyond
the Abatement Period it takes for Landlord to complete the ACM Work except to
the extent that any interference by any Tenant Parties causes a delay with the
performance of any such ACM Work. Landlord shall deliver a certificate of
abatement from the selected ACM Contractor to Tenant after completion of the ACM
Work.
Landlord shall solicit bids to perform the ACM Work from all of the ACM
Contractors. Upon receipt of any bid packages from some or all of the ACM
Contractors, Landlord shall submit copies of such bid packages to Tenant,
together with its choice of the ACM Contractor to perform the ACM Work in
accordance with the bid package submitted by said Contractor. Landlord shall
choose the ACM Contractor who submits the lowest bid provided said ACM
Contractor's bid includes the full scope of the ACM Work. Within five (5)
business days of Tenant's receipt of such bid packages and Landlord's choice of
the ACM Contractor to perform the ACM Work, Tenant shall consent to Landlord's
choice of the ACM Contractor (which consent shall not be unreasonably withheld,
conditioned or delayed) or notify Landlord as to why it does not consent;
failure of Tenant to timely respond to Landlord's choice of the ACM Contractor
shall be deemed to be a consent to said ACM Contractor.
Landlord and Tenant shall equally share the cost to perform the ACM Work
provided such cost does not exceed $70,000. Tenant shall be solely responsible
to pay for any portion of the cost to perform the ACM Work in excess of $70,000,
such that Landlord's total liability with respect to the cost to perform the ACM
Work shall not exceed $35,000. Tenant shall pay Landlord its share of the cost
to perform the ACM Work within thirty (30) days of Tenant's receipt of a
reasonably detailed invoice (together with any reasonably available supporting
documentation) from Landlord pertaining to the performance of the ACM Work.
29. PARKING. Tenant shall have the right to use as appurtenant to the
Premises two hundred fifty-seven (257) parking spaces located on the Premises,
which parking spaces shall be shown on the Engineered Parking Plan (as
hereinafter defined). Such parking spaces will be available to Tenant without
charge during the Term. Landlord shall not be responsible for enforcing Tenant's
parking rights against third parties. Subject to Landlord's prior written
approval (which approval shall not be unreasonably withheld, conditioned or
delayed if the Engineered Parking Plan is substantially similar to the plan
attached hereto as Exhibit M) of a final engineered parking plan (the
"ENGINEERED PARKING PLAN"), Tenant may expand the parking lot on the Premises as
shown on Exhibit M attached hereto at its sole cost and expense provided any
such expansion complies with all applicable Law, including, without limitation,
local zoning law, and the provisions of this Lease, including, without
limitation, the provisions of Section 8 hereof. Landlord shall provide Tenant
with an allowance in an amount not to exceed $19,000.00 (the "PARKING
ALLOWANCE") to be used to pave over the brick area of the parking lot on the
Premises, to fill any existing cracks and seal coat the existing parking areas
located on the Premises (with exception of the front lot as shown on Exhibit M)
and that portion of the parking areas located on the property known and numbered
as 21 Alpha Road to the northwest of the Building which adjoin the parking areas
on the Premises (the "ADJOINING 21 ALPHA PARKING AREAS"), to paint "21" or "21
Alpha" on those parking spaces located in the Adjoining 21 Alpha Parking Areas,
and to restripe up to 257 parking spaces shown on the Engineered Parking Plan
(collectively, the "PARKING WORK").
28
Portions of the Parking Allowance shall be disbursed to Tenant on or before
September 30, 2005, upon Tenant's request thereof, not more than once a month
and upon Landlord's receipt of the following: (i) final or partial lien waivers,
as the case may be, from all persons performing work or supplying or fabricating
materials for the Parking Work, fully executed and acknowledged and in
recordable form; and (ii) evidence reasonably satisfactory to Landlord that the
portion of the Parking Work relating to said request of Tenant has been
completed.
30. OTHER PROVISIONS. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS
HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL
CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, DEMAND, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
[NO FURTHER TEXT ON THIS PAGE. SEE NEXT PAGE FOR SIGNATURES]
29
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this Lease to be duly executed as a
Massachusetts instrument under seal on the respective dates set forth below, but
for reference purposes, this Lease shall be dated as of the date first above
written. If the execution date is left blank, this Lease shall be deemed
executed as of the date first written above.
LANDLORD: W9TIB III REALTY L.L.C.,
a Delaware limited liability company
By: /s/ David Paul
------------------------------------
Name: David Paul
Title: VP
Execution Date: 10-8-04
TENANT: AIRVANA, INC., a Delaware corporation
By: /s/ David P. Gamache
------------------------------------
Name: David P. Gamache
Title: CFO
Execution Date: 10-6-04
30
EXHIBIT A
SITE PLAN OF PREMISES
[MAP]
A-1
EXHIBIT B
DESCRIPTION OF THE LAND
A certain parcel of land with the buildings thereon situated on the Northerly
side of Alpha Road in Chelmsford, Mass. and shown as Lot 500 on "Plan of Land in
Chelmsford, Mass., as drawn for Raymond A. & Barbara Carye, August, 1980,
Merrimack Engineering Services, Inc." which plan is recorded in Middlesex North
District Registry of Deeds, Plan Book 132, Plan 13; bounded and described as
follows:
Beginning at a point on the Northerly side of Alpha Road in Chelmsford,
Middlesex County, Massachusetts, at the Southwesterly corner of land now or
formerly of Vibrac Corp., thence running:
S 61 degrees 45'21"W a distance of 145.78' along Alpha Road, to a point of
curvature on the sideline of Alpha Road, thence, along the Northerly sideline of
Alpha Road, on a curve to the right with a
radius of 275' a distance of 185.82' to the point of tangency of the curve,
thence along a curve to the left with a
radius of 460' a distance of 204.39' to other land of Alpha Development
Corporation ("Alpha"), thence
N 28 degrees 14'39"W a distance of 390.74' along land of Alpha to a point,
thence
N 61 degrees 45'21" E a distance of 359.80' along land of Alpha to a point,
thence
N 28 degrees 14'39"W a distance of 171.82' along land of Alpha to a point,
thence
N 48 degrees 35'11"E a distance of 139.60' along land of Alpha to a point,
thence
S 28 degrees 51'26"E a distance of 408.65' to a point, thence,
S 61 degrees 45'21"W a distance of 0.10' to a point, thence,
S 28 degrees 14'38"E a distance of 335.00' to the Northerly sideline of Alpha
Road, being the point of beginning.
Together with the easements, rights, benefits, and appurtenances described in
the following instruments (all recording references refer to the Middlesex North
District Registry of Deeds): (a) Dedication of Easements dated October 6, 1981
and recorded in Book 2518, Page 137, as amended by that certain Grant of
Easements and Amendment to Dedication dated February 5, 2004 and recorded with
said Deeds in Book 18840, Page 119; and (b) Supplementary Dedication of
Easements dated March 23, 1982 and recorded in Book 2529, Page 84.
Parcel 2 of 2
A perpetual non-exclusive easement appurtenant to Lot 500 as shown: on the plan
referred to in Parcel 1 above for pedestrian and vehicular ingress and egress
and the right to connect to and utilize utility lines installed, or to be
installed, in or under that portion of Alpha Road which is a private way (and to
maintain and report the same) and for all purposes for which public streets and
ways may be used in the Town of Chelmsford, Massachusetts in, over and on the
private way or street known as "Alpha Road" as said Alpha Road is shown on the
Plan recorded with Middlesex North District Registry of Deeds in Plan Book 132
as Plan No. 13, to and from said Lot 500 and to and from those portions of Alpha
Road which constitute a public street or way.
NOTE: As used herein the term "recorded" shall mean "recorded with the Middlesex
Northern District Registry of Deeds".
B-1
EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking areas associated therewith, and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, loading dock areas
and associated overhead doors, and other similar areas shall not be obstructed
by tenants or used by any Tenant or used for purposes other than ingress and
egress to and from the leased premises and for going from one to another part of
the Building.
2. Plumbing (including outside drains and sump pumps), fixtures and
appliances shall be used only for the purposes for which designed, and no
sweepings, rubbish, rags or other unsuitable material shall be thrown or
deposited therein. Damage resulting to any such fixtures or appliances from
misuse by a tenant or its agents, employees or invitees, shall be paid by such
tenant.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows or doors or other part of the Building visible from the exterior of
the Premises without the prior written consent of Landlord.
4. Tenant, at its expense, shall be responsible for providing all door
locks in the Premises and shall provide to Landlord, at Tenant's expense,
contemporaneously with the installation of such devices, a master key, card
keys, access codes or other means to allow Landlord immediate access to all
areas within the Premises.
5. Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which shall in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such supporting devices as Landlord may require.
All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
6. Corridor doors, when not in use, shall be kept closed. Nothing shall be
swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals (other than seeing-eye dogs) shall be brought into or kept in,
on or about any tenant's leased premises. No portion of any tenant's leased
premises shall at any time be used or occupied as sleeping or lodging quarters.
7. Tenant shall not make or permit any vibration or improper, objectionable
or unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them. Tenant shall not
introduce, disturb or release asbestos or PCB's into or from the Premises.
8. Tenant shall not keep in the Building any flammable or explosive fluid
or substance (other than typical office supplies [e.g., photocopier toner] used
in compliance with all Laws). Tenant shall not install or operate any steam or
gas engine or boiler, or other mechanical apparatus in the Premises without the
prior written consent of Landlord (except as part of the Work). The use of oil,
gas or inflammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra hazardous shall
not be brought into the Building.
9. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
10. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
11. All vehicles are to be currently licensed, in good operating condition,
parked for business purposes having to do with Tenant's business operated in the
Premises, parked within designated parking spaces, one vehicle to each space. No
vehicle shall be parked as a "billboard" vehicle in the parking lot. Any vehicle
parked improperly
C-1
may be towed away. Tenant, Tenant's agents, employees, vendors and customers who
do not operate or park their vehicles as required shall subject the vehicle to
being towed at the expense of the owner or driver. Landlord may place a "boot"
on the vehicle to immobilize it and may levy a charge of $50.00 to remove the
"boot." Tenant shall indemnify, hold and save harmless Landlord of any liability
arising from the towing or booting of any vehicles belonging to a Tenant Party.
12. Other than outside storage of dumpsters and trash compactors, and
trucks and other vehicles and the portable cell tower (which portable cell tower
shall be located behind the rear of the Building). Tenant shall not permit
storage outside the Building, including dumping of waste or refuse or permit any
harmful materials to be placed in any drainage system or sanitary system in or
about the Premises.
13. Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary use of
the Premises.
14. Tenant hall not park or operate any semi-trucks or semi-trailers in the
parking areas associated with the Building.
15. Tenant will not permit any Tenant Party to bring onto the Project any
handgun, firearm or other weapons of any kind or illegal drugs.
16. Tenant shall not permit its employees, invitees or guests to smoke in
the Building or the lobbies, passages, corridors, elevators, vending rooms, rest
rooms, stairways or any other area shared in common with other tenants in the
Building.
C-2
EXHIBIT D
TENANT FINISH-WORK: ALLOWANCE
(Tenant Performs the Work)
1. ACCEPTANCE OF PREMISES. Except as set forth in this Exhibit, Tenant
accepts the Premises in their "AS-IS" condition on the date that this Lease is
entered into.
2. SPACE PLANS.
(a) PREPARATION AND DELIVERY. Attached hereto as Exhibit D-1 are the
space plans and specifications prepared by Flavin Architects (the "ARCHITECT")
depicting improvements to be installed in the Premises (the "SPACE PLANS").
(b) APPROVAL PROCESS. Landlord hereby approves the Space Plans.
3. WORKING DRAWINGS.
(a) PREPARATION AND DELIVERY. On or before the tenth (10th) day
following the Lease Date (such date is referred to herein as the "WORKING
DRAWINGS DELIVERY DEADLINE"), Tenant shall provide to Landlord for its approval
final working drawings, prepared by the Architect, of all improvements that
Tenant proposes to install in the Premises; such working drawings shall include
the partition layout, ceiling plan, electrical outlets and switches, telephone
outlets, drawings for any modifications to the mechanical and plumbing systems
of the Building, and detailed plans and specifications for the construction of
the improvements called for under this Exhibit in accordance with all applicable
Laws.
(b) APPROVAL PROCESS. Landlord shall notify Tenant whether it approves
of the submitted working drawings within ten (10) business days after Tenant's
submission thereof (such approval not to be unreasonably withheld, conditioned
or delayed). If Landlord disapproves of such working drawings, then Landlord
shall notify Tenant thereof specifying in reasonable detail the reasons for such
disapproval, in which case Tenant shall, within five (5) business days after
such notice, revise such working drawings in accordance with Landlord's
objections and submit the revised working drawings to Landlord for its review
and approval. Landlord shall notify Tenant in writing whether it approves of the
resubmitted working drawings within five (5) business days after its receipt
thereof. This process shall be repeated until the working drawings have been
finally approved by Tenant and Landlord. If Landlord fails to notify Tenant that
it disapproves of the initial working drawings within ten (10) business days
(or, in the case of resubmitted working drawings, within five (5) business days)
after the submission thereof, then Landlord shall be deemed to have approved the
working drawings in question.
(c) LANDLORD'S APPROVAL; PERFORMANCE OF WORK. If any of Tenant's
proposed construction work will affect the Building's Structure or the
Building's Systems, then the working drawings pertaining thereto must be
approved by the Building's engineer of record. Landlord's approval of such
working drawings shall not be unreasonably withheld, provided that (1) they
comply with all Laws, (2) the improvements depicted thereon do not adversely
affect (in the reasonable discretion of Landlord) the Building's Structure or
the Building's Systems (including the Building's restrooms or mechanical rooms),
the exterior appearance of the Building, or the appearance of the Building's
common areas or elevator lobby areas, (3) such working drawings are sufficiently
detailed to allow construction of the improvements in a good and workmanlike
manner, and (4) the improvements depicted thereon conform to the rules and
regulations promulgated from time to time by Landlord for the construction of
tenant improvements (a copy of which has been delivered to Tenant). As used
herein, "WORKING DRAWINGS" means the final working drawings approved by
Landlord, as amended from time to time by any approved changes thereto, and
"WORK" means all demolition and improvements to be performed or constructed in
accordance with and as indicated on the Working Drawings, together with any work
required by governmental authorities to be made to other areas of the Building
as a result of the improvements indicated by the Working Drawings. Landlord's
approval of the Working Drawings shall not be a representation or warranty of
Landlord that such drawings are adequate for any use or comply with any Law, but
shall merely be the consent of Landlord
D-1
thereto. Landlord shall, at Tenant's request, sign the Working Drawings to
evidence its review and approval thereof. After the Working Drawings have been
approved, Tenant shall cause the Work to be performed in accordance with the
Working Drawings.
4. CONTRACTORS; PERFORMANCE OF WORK. The Work shall be performed only by
licensed contractors and subcontractors approved in writing by Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed. Attached
hereto as Exhibit D-2 is a list of contractors and subcontractors approved by
Landlord. All contractors and subcontractors shall be required to procure and
maintain insurance against such risks, in such amounts, and with such companies
as Landlord may reasonably require. Certificates of such insurance, with paid
receipts therefor, must be received by Landlord before the Work is commenced.
The Work shall be performed in a good and workmanlike manner free of defects and
shall materially conform with the Working Drawings.
5. CONSTRUCTION CONTRACTS.
(a) TENANT'S GENERAL CONTRACTOR. Tenant shall enter into a
construction contract with a general contractor selected by Tenant and approved
by Landlord (such approval not to be unreasonably withheld, conditioned or
delayed) in a form acceptable to Tenant's representative for the Work, which
shall comply with the provisions of this Section 5 and provide for, among other
things, (1) a one-year warranty for all defective Work; (2) a requirement that
Tenant's Contractor maintain general commercial liability insurance of not less
than a combined single limit of $5,000,000, naming Landlord, Landlord's property
management company, Landlord's asset management company, Landlord's Mortgagee,
Tenant, and each of their respective Affiliates as additional insureds; (3) a
requirement that the contractor perform the Work in substantial accordance with
the Space Plans and the Working Drawings and in a good and workmanlike manner,
(4) a requirement that the contractor is responsible for daily cleanup work and
final clean up (including removal of debris); and (5) those items described in
Section 5(b) (collectively, the "APPROVAL CRITERIA"). Landlord shall have three
(3) business days to notify Tenant whether it approves the proposed construction
agreements. If Landlord disapproves of the proposed construction agreements,
then it shall specify in reasonable detail the reasons for such disapproval, in
which case Tenant shall revise the proposed construction agreements to correct
the objections and resubmit them to Landlord within two (2) business days after
Landlord notifies Tenant of its objections thereto, following which Landlord
shall have two (2) business days to notify Tenant whether it approves the
revised construction agreements. If Landlord fails to notify Tenant that it
disapproves of the construction agreements within three (3) business days after
the initial construction agreements or two (2) business days after the revised
construction agreements (as the case may be) are delivered to Landlord, then
Landlord shall be deemed to have approved the construction agreements.
(b) ALL CONSTRUCTION CONTRACTS. Unless otherwise agreed in writing by
Landlord and Tenant, each of Tenant's construction contracts shall: (1) provide
a schedule and sequence of construction activities and completion; (2) be in a
contract form that satisfies the Approval Criteria; (3) require the contractor
and each subcontractor to name Landlord, Landlord's property management company,
Landlord's asset management company, and Tenant as additional insured on such
contractor's insurance maintained in connection with the construction of the
Work; (4) be assignable following an Event of Default by Tenant under this Lease
to Landlord and Landlord's Mortgagees; and (5) contain at least a one-year
warranty for all workmanship and materials.
6. CHANCE ORDERS. Tenant may initiate changes in the Work. To the extent
such change is materially inconsistent with the previously approved Work, each
such change must receive the prior written approval of Landlord, such approval
not to be unreasonably withheld, conditioned or delayed; however, if such
requested change would adversely affect (in the reasonable discretion of
Landlord) (a) the Building's Structure or the Building's Systems (including the
Building's restrooms or mechanical rooms), or (b) the exterior appearance of the
Building or any other portion of the Premises exterior to the Building, Landlord
may withhold and/or condition its consent in its sole and absolute discretion.
Landlord shall notify Tenant of whether it approves of the proposed change
within three (3) business days after it receives such request from Tenant. If
Landlord fails to notify Tenant that it disapproves of such change within three
(3) business days after it receives such request from Tenant, then Landlord
shall be deemed to have approved such change. Tenant shall, upon completion of
the Work, furnish Landlord with an accurate architectural "as-built" plan of the
Work as constructed, which plan shall be incorporated into this Exhibit D by
this reference for all purposes. If Tenant requests any changes to the Work
described in the Space Plans or the Working Drawings, then such increased costs
and any additional design costs incurred in connection therewith as the result
of any such change shall be added to the Total Construction Costs.
D-2
7. DEFINITIONS. As used herein "SUBSTANTIAL COMPLETION," "SUBSTANTIALLY
COMPLETED," and any derivations thereof mean the Work in the Premises is
substantially completed (as reasonably determined by Landlord or as certified by
the Architect) in accordance with the Working Drawings. Substantial Completion
shall have occurred even though minor details of construction, decoration,
landscaping and mechanical adjustments remain to be completed.
8. WALK-THROUGH; PUNCHLIST. When Tenant considers the Work in the Premises
to be Substantially Completed, Tenant will notify Landlord and within three (3)
business days thereafter, Landlord's representative and Tenant's representative
shall conduct a walk-through of the Premises and identify any necessary touch-up
work, repairs and minor completion items that are necessary for final completion
of the Work. Neither Landlord's representative nor Tenant's representative shall
unreasonably withhold his or her agreement on punchlist items. Tenant shall use
reasonable efforts to cause the contractor performing the Work to complete all
punchlist items within thirty (30) days after agreement thereon.
9. EXCESS COSTS. The entire cost of performing the Work (including design
of and space planning for the Work and preparation of the Working Drawings and
the final "as-built" plan of the Work, costs of construction labor and
materials, electrical usage during construction, additional janitorial services,
general tenant signage, related taxes and insurance costs, licenses, permits,
certifications, surveys and other approvals required by Law, all of which costs
are herein collectively called the "TOTAL CONSTRUCTION COSTS") in excess of the
Construction Allowance (hereinafter defined) shall be paid by Tenant. Upon
approval of the Working Drawings and selection of a contractor, Tenant shall
promptly execute a work order agreement which identifies such drawings and
itemizes the Total Construction Costs and sets forth the Construction Allowance.
10. CONSTRUCTION ALLOWANCE. Landlord shall provide to Tenant a construction
allowance not to exceed $38.00 per rentable square foot in the Premises (the
"CONSTRUCTION ALLOWANCE") to be applied toward the Total Construction Costs, as
adjusted for any changes to the Work; provided, however, not more than $3.00 per
rentable square foot of the Construction Allowance shall be applied to the
architectural and engineering design portion of the Total Construction Costs.
The Construction Allowance may be increased by up to $5.00 per rentable square
foot in the Premises (the "CONSTRUCTION ALLOWANCE INCREASE") at Tenant's written
request to Landlord, which Construction Allowance Increase shall be amortized
monthly over the remainder of the initial Term at an annual interest rate of ten
percent (10%) and such amortized amounts shall be paid monthly over the
remainder of the initial Term together with the Monthly Basic Rent. Upon either
party's request, the parties shall execute an amendment to this Lease reflecting
such amortized monthly payments required to be paid by Tenant over the remainder
of the initial Term. No advance of the Construction Allowance shall be made by
Landlord until Tenant has first paid to the contractor from its own funds (and
provided reasonable evidence thereof to Landlord) the anticipated amount by
which the projected Total Construction Costs exceed the amount of the
Construction Allowance. Thereafter, Landlord shall pay to Tenant the
Construction Allowance in multiple disbursements (but not more than once in any
calendar month) following the receipt by Landlord of the following items: (a) a
request for payment; (b) final or partial lien waivers, as the case may be, from
all persons performing work or supplying or fabricating materials for the Work,
fully executed, acknowledged and in recordable form; and (c) the Architect's
certification that the Work for which reimbursement has been requested has been
finally completed, including (with respect to the last application for payment
only) any punchlist items, on the appropriate AIA form or another form approved
by Landlord, and, with respect to the disbursement of the last 10% of the
Construction Allowance: (1) the temporary certificate of occupancy issued for
the Premises; (2) Tenant's occupancy of the Premises; (3) delivery of the
architectural "as-built" plan for the Work as constructed (as set forth above)
to Landlord's construction representative (set forth below); and (4) an estoppel
certificate confirming such factual matters as Landlord or Landlord's Mortgagee
may reasonably request (collectively, a "COMPLETED APPLICATION FOR PAYMENT").
Landlord shall pay the amount requested in the applicable Completed Application
for Payment to Tenant within thirty (30) days following Tenant's submission of
the Completed Application for Payment. If, however, the Completed Application
for Payment is incomplete or incorrect, Landlord's payment of such request shall
be deferred until thirty (30) days following Landlord's receipt of the Completed
Application for Payment. Notwithstanding anything to the contrary contained in
this Exhibit, Landlord shall not be obligated to make any disbursement of the
Construction Allowance during the pendency of any of the following: (A) Landlord
has received written notice of any unpaid claims relating to any portion of the
Work or materials in connection therewith, other than claims which will be paid
in full from such disbursement; (B) there is an unbonded lien outstanding
against the Building or the Premises or Tenant's interest therein by reason of
work done, or claimed to have been done, or materials supplied or specifically
D-3
fabricated, claimed to have been supplied or specifically fabricated, to or for
Tenant or the Premises; (C) the conditions to the advance of the Construction
Allowance are not satisfied; or (D) an Event of Default by Tenant exists. The
Construction Allowance must be used (that is, the Work must be fully complete
and the Construction Allowance disbursed) within six (6) months following the
Commencement Date or shall be deemed forfeited with no further obligation by
Landlord with respect thereto, time being of the essence with respect thereto.
11. CONSTRUCTION REPRESENTATIVES. Landlord's and Tenant's representatives
for coordination of construction and approval of change orders will be as
follows, provided that either party may change its representative upon written
notice to the other:
Landlord's Representative: W9/TIB III Realty, L.L.C.
c/o Archon Group, L.P.
919 18th Street, NW, Suite 500
Washington, D.C. 20006
Attention: Richard Thuma
Telephone: 202-312-6700
Telecopy: 202-312-6703
Tenant's Representative: Airvana, Inc.
25 Industrial Avenue
Chelmsford, MA 01824
Attention: Dave Gamache, Chief Financial
Officer
Telephone: 978-250-2694
Telecopy: 978-250-3911
12. MISCELLANEOUS. To the extent not inconsistent with this Exhibit,
Sections 8(a) and 22 of this Lease shall govern the performance of the Work and
Landlord's and Tenant's respective rights and obligations regarding the
improvements installed pursuant thereto.
D-4
EXHIBIT D-1
TENANT'S SPACE PLANS
D-1-1
EXHIBIT D-2
LIST OF APPROVED CONTRACTORS AND SUBCONTRACTORS
BID CALL REPORT - BY TRADE
CORPORATE INTERIORS GROUP SUBCONTRACTOR LIST
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
01526 - Scaffolding Staging
Lanco Scaffolding Kendal Moran (617) 623-0060 (617) 776-9260 ? False ___________
33 Earl Street
Somerville MA 02143
Marr Scaffolding Co. Ernie Brousseau (401) 467-3110 (401) 467-3132 ? False ___________
1 Ernest Street
Providence, RI 02905
Marr Steel & Precast Erectors Chris Graham (617) 269-7200 (617) 269-8604 ? False ___________
One D Street
South Boston, MA 02127
Shaughnessy Aerialifts Jack Shaughnessy (617) 268-3000 (617) 268-1993 ? False ___________
346 D Street
Boston, MA 02127
Triple G Scaffold Services Corp. Jim Hedin (800) 826-0660 (781) 878-8921 ? False ___________
29 Accord Park Drive
Norwell, MA 02061
01561 - General Labor/Clean
Front Line Tom Watson (508) 634-6600 (508) 634-3611 ? False ___________
8 Landing Lane
Hopedale, MA 01747
Onesource Richard Babinea (617) 623-3800 (617) 625-7630 ? False ___________
59 Innerbelt Road
Somerville, MA 02143
SOS Corp. Brent Oldfield (508) 473-0466 (508) 478-4049 ? False ___________
331 West Street
Milford, MA 01757
01562 - Dumpsters Disposal
Roberts Corporation Robert Stalker Jr. (603) 880-0122 (603) 883-8671 ? False ___________
P. O. Box 456
Hudson, NH 03051
Waste Solutions, Inc. Michael Mowbray (781) 834-7007 (781) 834-0004 ? False ___________
965 Plain Street
Marshfield, MA 02050
01710 - General Final Cleaning
Resource Project Group David Krivelow (781) 356-8600 (781) 356-8611 ? False ___________
140 Wood Road
Braintree, MA 02184
SOS Corp. Brent Oldfield (508) 473-0466 (508) 478-4049 ? False ___________
331 West Street
Milford, MA 01757
02070 - Demolition
OCP Special Projects Corp. Bruce Novak (781) 933-4250 (781) 933-4290 ? False ___________
21 H Olympia Avenue
Woburn, MA 01801
Commonwealth Contracting Services Roger P. Cook (508) 941-6868 (508) 941-6966 ? False ___________
203 Spark Street
Brockton, MA 02302-1622
D. Clancy & Sons, Inc. Daniel J. LaPoint (617) 436-1000 (617) 436-9396 ? False ___________
35 Chickatawbut Street
Dorchester, MA 02122
D-2-1
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 02070 - Demolition
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Edifice Wrecking Co., Inc. Rob LeBlanc (617) 924-9090 (617) 924-2092 ? False ___________
84 Arsenal Street
Watertown, MA 02272
Front Line Tom Watson (508) 634-6600 (508) 634-3611 ? False ___________
8 Landing Lane
Hopedale, MA 01747
Mac's Contracting Co., Inc. William J. MacDo (617) 389-0842 (617) 387-2057 ? False ___________
165 Rear Chelsea Street
Everett, MA 02149
North American Site Developers, Allan Wyatt (617) 254-3140 (617) 254-3069 ? False ___________
Inc.
218 Lincoln Street
Allston, MA 02134
Nova Contractors, Inc. Dave Michalak (781) 393-9900 (781) 395-6611 ? False ___________
15 Cooper Street
Medford, MA 02155
Resource Project Group David Krivelow (781) 356-8600 (781) 356-8611 ? False ___________
140 Wood Road
Braintree, MA 02184
SMS Services Inc. Shawn M. Slatter (978) 683-1156 (978) 683-9771 ? False ___________
55 Equestrian Road
North Andover, MA 01845
SOS Corp. Brent Oldfield (508) 473-0466 (508) 478-4049 ? False ___________
331 West Street
Milford, MA 01757
Universal Construction Services John Coppola (781) 295-0050 (781) 295-0051 ? False ___________
34 Broadway
Wakefield, MA 01880
Yankee Environmental Services Larry Hill (978) 815-7707 (978) 463-2864 ? False ___________
194 Northern Blvd.
Newburyport, MA 01950
02075 - Concrete Sawcutting Coring
Boston Contract Drilling Jerry Penn (617) 232-6767 (617) 965-1206 ? False ___________
83 Felton Street
Waltham, MA 02453
Easton Concrete Cutting and Dennis Riley (508) 238-0062 (508) 238-0145 ? False ___________
Drilling
125 Eastman Street
S. Easton, MA 02334
Pro Cut, Inc. Leo Cardarelli (781) 899-0006 (781) 899-5742 ? False ___________
124 Calvary Street
Waltham, MA 02454
02080 - Asbestos Abatement
A.C.T. Abatement Corp. Ed Platais (978) 794-9530 (978) 794-3563 ? False ___________
18 Broadway
Lawrence, MA 01840
Aulson Company Dick Quinn (978) 975-4500 (978) 975-0101 ? False ___________
49 Danton Drive
Methuen, MA 01844
Covino Environmental Estimating (781) 396-4888 (781) 396-0241 ? False ___________
300 Wildwod Avenue
Woburn, MA 01801
CYN Environmental Services Rich Bell (781) 341-1777 (781) 341-6298 ? False ___________
100 Tosca Drive
Stoughton, MA 02072
D. Clancy & Sons, Inc. Daniel J. LaPoint (617) 436-1000 (617) 436-9396 ? False ___________
35 Chickatawbut Street
Dorchester, MA 02122
D-2-2
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 02080 - Asbestos Abatement
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Eagle Environmental Pete Namnik (978) 692-0002 (978) 692-0311 ? False ___________
150 Hayden Road
Groton, MA 01450
Fleet Industrial Services, LLC George Costello (781) 815-1112 (781) 815-1104 ? False ___________
935 East First Street
South Boston, MA 02127
LVI Environmental Services David Pearson (617) 389-8880 (617) 389-9502 ? False ___________
401-S Second Street
Everett, MA 02149
Yankee Environmental Services Larry Hill (978) 815-7707 (978) 463-2864 ? False ___________
194 Northern Blvd.
Newburyport, MA 01950
02152 - Shoring
FES Shoring, Inc. Mike Emerson (617) 884-8887 (617) 884-4747 ? False ___________
207 Spencer Ave.
Chelsea, MA 02150
Isaac Blair Co. Louie Giiunta (617) 426-6968 (617) 598-4651 ? False ___________
8 Damrell Street
South Boston, MA 02127
New England Foundation Co., Inc. John Roma (617) 689-0550 (617) 689-0551 ? False ___________
77 Federal Avenue
Quincy, MA 02169
02200 - Earthwork
D.F. Frangioso & Co., Inc. Dominic Frangio (617) 361-3378 (617) 361-9154 ? False ___________
149 Providence Street
Hyde Park, MA 02136
G. Conway Inc. Edmond Williams (617) 242-2051 (617) 242-2301 ? False ___________
8 Bunker Hill Industrial Pk.
Charlestown, MA 02129
J. Derenzo Contractors Co. Mike McCarthy (508) 427-6441 (508) 427-6485 ? False ___________
354 Howard Street
Brockton, MA 02302
J.P. McCabe Jim Smith (617) 268-2030 (617) 268-7498 ? False ___________
509 East First Street
S. Boston, MA 02127
James W. Flett Co., Inc. Mark Murphy (617) 484-8500 (617) 484-1279 ? False ___________
800 Pleasant Street
Belmont, MA 02478
M.J. Scully & Co., Inc. Kevin Scully (978) 657-5655 (978) 657-0450 ? False ___________
314 Main Street
Wilmington, MA 01887
R.F. Roach Co. Rick Roach (781) 331-9988 (781) 331-9989 ? False ___________
47 Winter Street
Weymouth, MA 02188
Welch Corp., The Dick Bailey (617) 254-7550 (617) 783-2072 ? False ___________
35 Electric Avenue
Brighton, MA 02135
02522 - Unit Pavers
Kenneth Castellucci & Mike Varone (401) 333-5400 (401) 333-5420 ? False ___________
Associates, Inc.
9 New England Way
Lincoln, RI 02865
United Stone & Site Jeff Hartwell (860) 928-6559 (860) 928-6582 ? False ___________
169 Munyon Road
East Putnam, CT 06260
D-2-3
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 02522 - Unit Pavers
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
ValleyCrest Landscape Development Andy Connolly (617) 254-1700 (617) 254-0234 ? False ___________
17 Electric Avenue
Boston, MA 02135
02820 - Fencing Gates
Eastern Fence Company Hubert Pettiford (617) 298-2022 (617) 298-4151 ? False ___________
218 West Seldon Street
Mattapan, MA 02126
Perfection Fence Co. Todd Skulsky (781) 837-3600 (781) 834-1105 ? False ___________
985 Plain St.
Marshfield, MA 02050
Steelco Chainlink Fence Co. Mariano Haro (781) 449-8990 (781) 449-7182 ? False ___________
14 Franklin Street
Needham Heights, MA 02494
Walpole Woodworkers Dave Norton (508) 668-2800 (508) 668-7301 ? False ___________
Route 30
Framingham, MA 01701
03300 - Cast in Place Concrete
Bidgood Associates, Inc. Bill Bidgood (781) 662-5283 (781) 662-0350 ? False ___________
99 Essex Street
Melrose, MA 02176
Northern Construction Service, John DiVito (781) 340-9440 (781) 340-5708 ? False ___________
LLC
775 Pleasant Street
Weymouth, MA 02189
03310 - Concrete Formwork
D&M Concrete Floor Co. Kevin DeMello (508) 675-2423 (508) 674-8870 ? False ___________
2 Lark Street
Fall River, MA 02721
J.P. McCabe Jim Smith (617) 268-2030 (617) 268-7498 ? False ___________
509 East First Street
S. Boston, MA 02127
JL Marshall & Sons, Inc. Kevin Osborne (508) 399-8910 (508) 399-8342 ? False ___________
3 Clara Street
Seekonk, MA 02771
Mansour Construction, Inc. Dave Sullivan (603) 427-1991 (603) 427-1995 ? False ___________
64 Tide Mill Road
Greenland, NH 03840
Redmond Concrete Construction Co. Bob Hawkes Jr. (978) 948-7313 (978) 948-5554 ? False ___________
240 Newburyport Tpke.
Rowley, MA 01969
S&F Concrete Contractors, Inc. Rodney Frias (978) 562-3495 (978) 562-9461 ? False ___________
166 Central Street
Hudson, MA 01749
03315 - Reinforcing Steel
Fabricators
Barker Steel Company Dick Ronzio (508) 473-8484 (508) 634-6881 ? False ___________
55 Summer Street
Milford, MA 01757-1679
Harris Rebar Boston, Inc. Eugene McManu (508) 291-7150 (508) 291-7160 ? False ___________
45 Kings Highway
West Wareham, MA 02576
Rebars & Mesh, Inc. Lisa Russeau (800) 558-6713 (978) 372-0831 ? False ___________
111 Avco Road
Haverhill, MA 01835
D-2-4
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 03315 - Reinforcing Steel
Fabricators
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Turner Steel Co. Glenn Turner (508) 583-7800 (508) 580-4542 ? False ___________
128 North Main Street
West Bridgewater, MA 02379
03328 - Concrete Floor Leveling
Eastern Floor Services Dan Hynes (508) 947-1781 (508) 946-6081 ? False ___________
123 Wareham Street
Middleboro, MA 02346
New England Specialty Concrete Roger Harvey (978) 462-1825 (978) 462-1827 ? False ___________
99 Elm Street
Salisbury, MA 01952
03345 - Concrete Flatwork
American Concrete Systems Jerry Keogh (781) 245-1577 (781) 245-1577 ? False ___________
101 Greenwood Avenue
Wakefield, MA 01880
Frias Concrete Floors, Inc. Dick Stanhope (978) 562-4553 (978) 562-1283 ? False ___________
120 Central Street
Hudson, MA 01749
04200 - Masonry
Architectural Paving and Stone Jim Schmidlein (781) 337-2780 (781) 331-8784 ? False ___________
402 Libbey Parkway
Weymouth, MA 02189
Bostonian Masonry Corp. John Topalis (508) 668-4400 (508) 668-7074 ? False ___________
153 Washington Street
East Walpole, MA 02032
Commercial Masonry Corp. Mark Lareau (508) 830-1700 (508) 830-1702 ? False ___________
6 Resnik Road
Plymouth, MA 02360
D'Agostino Associates Mike Polonis (617) 965-3025 (617) 558-7664 ? False ___________
46 Farwell Street
Newtonville, MA 02160
D.J. Construction Co. Inc. Bob Tenaglia (617) 696-8724 (617) 696-0128 ? False ___________
63 Sears Road
Milton, MA 02186
Empire Masonry Corp. Tom McCormick (508) 660-1011 (508) 660-1028 ? False ___________
231 Norfolk Street
Walpole, MA 02081
Fred Salvucci Corp. Carl Pigeon (781) 272-1662 (781) 272-1585 ? False ___________
6 B Street
Burlington, MA 01803
J.A.J. Co., Inc. Joe Iacopucci (781) 395-5510 (781) 395-5548 ? False ___________
21 Prescott Street
Medford, MA 02155
Kenneth Castellucci & Mike Varone (401) 333-5400 (401) 333-5420 ? False ___________
Associates, In
9 New England Way
Lincoln, RI 02865
NER Construction Management, Inc. Sharon Lewis (978) 988-1111 (978) 988-1110 ? False ___________
867 Woburn Street
Wilmington, MA 01887-3490
Phoenix Bay State Const Rich DeCoste (617) 442-4908 (617) 442-9094 ? False ___________
79 Shirley Street
Boston, MA 02119
Pizzoli Bros. Eric Pizzoli (617) 389-7877 (617) 389-7868 ? False ___________
15 Garden Street
Everett, MA 02149
D-2-5
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 04200 - Masonry
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Salvucci Masonry Co., Inc. Greg Salvucci (781) 894-8164 (781) 894-8167 ? False ___________
59 Hammond Street
Suite 1
Waltham, MA 02451
04400 - Stonework
United Stone & Site Jeff Hartwell (860) 928-6559 (860) 928-6582 ? False ___________
169 Munyon Road
East Putnam, CT 06260
04500 - Masonry Restoration
Acme Waterproofing Co., Inc. Denis Morel (781) 982-2250 (781) 982-2694 ? False ___________
241 West Water Street
Rockland, MA 02370
Brisk Waterproofing Co. Eric Miller (781) 937-3661 (781) 937-3715 ? False ___________
21 Wheeling Ave.
Woburn, MA 01801
Brunca Waterproofing Steve (401) 353-2769 (401) 353-3810 ? False ___________
One Goldsmith Street
North Providence, RI 02904
Folan Waterproofing Co. Frank Gagliardi (508) 238-6550 (508) 238-9425 ? False ___________
795 Washington Street
Easton, MA 02375
Hankin Construction Co., Inc. Evan Hankin (781) 932-0655 (781) 932-8742 ? False ___________
21A Olympia Ave
Woburn, MA 01801
NER Construction Management, Inc. Sharon Lewis (978) 988-1111 (978) 988-1110 ? False ___________
867 Woburn Street
Wilmington, MA 01887-3490
Restoration Preservation Masonry Buddy Rocheford (508) 393-8033 (508) 393-9871 ? False ___________
79 Lyman Street
Northborough, MA 01532
Thompson Waterproofing Lisa Thompson (617) 471-9966 (617) 472-9977 ? False ___________
93 Federal Avenue
Quincy, MA 02169
05120 - Structural Steel
Fabricators
Capco Steel Corp. John Casale (401) 861-1220 (401) 861-3699 ? False ___________
33 Acorn Street
Providence, RI 02903
Capone Iron Corporation Mark Natale (978) 948-8000 (978) 948-8650 ? False ___________
20 Turncotte Memorial Drive
Rowley, MA 01969-3706
Cives Steel Company Barry Brackett (207) 622-6141 (207) 622-2151 ? False ___________
103 Lipman Road
Augusta, ME 04330
Isaacson Structural Steel, Inc. Norman Lefebvre (603) 752-6680 (603) 752-4237 ? False ___________
40 Jericho Road
Berlin, NH 03570
Marr Steel & Precast Erectors Chris Graham (617) 269-7200 (617) 269-8604 ? False ___________
One D Street
South Boston, MA 02127
New Corp. Steel Paul Griffin (508) 580-5004 (781)-447-1415 ? False ___________
91 Forest Street
Brockton, MA 02302
Novel Iron Works Keith Moreau (603) 436-7950 (603) 436-1403 ? False ___________
250 Ocean Road
Greenland, NH 03840
D-2-6
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 05120 - Structural Steel
Fabricators
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Ocean Steel & Construction Ltd. Bob Smith (781) 221-2153 (781) 221-2155 ? False ___________
25 Burlington Mall Road
Burlington, MA 01803
Smith Steel, Inc. Charlie Smith (603) 753-9844 (603) 753-9798 ? False ___________
115 North Main Street
Boscawen, NH 03303
Sunrise Erectors, Inc. David Connaught (781) 828-8814 (781) 828-8244 ? False ___________
35 Pequit Street
Canton, MA 02021
05200 - Steel Erection
Marr Steel & Precast Erectors Chris Graham (617) 269-7200 (617) 269-8604 ? False ___________
One D Street
South Boston, MA 02127
Sunrise Erectors, Inc. David Connaught (781) 828-8814 (781) 828-8244 ? False ___________
35 Pequit Street
Canton, MA 02021
05500 - Misc Metals
American Architectural Iron Co., Paul Debski (617) 567-0011 (617) 567-9054 ? False ___________
Inc.
80 Liverpool Street
East Boston, MA 02128
Boston Steel Fabricators, Inc. Steve Brown (781) 767-1540 (781) 767-4613 ? False ___________
610 South Street
Holbrook, MA 02343
Columbia Metals Service Company Chris Keough (781) 293-5650 (781) 293-5798 ? False ___________
700 Industrial Drive
Halifax, MA 02338
DeAngelis Iron Work, Inc. Chris Connelly (508) 238-4310 (508) 238-7757 ? False ___________
305 Depot Street
South Easton, MA 02375
Morrison Steel Brian Morrison (508) 478-1909 (508) 478-5535 ? False ___________
29 Walnut Street
Milford, MA 01757
Ryan Iron Works, Inc. Kevin Maze (508) 822-8001 (508) 823-1359 ? False ___________
1830 Broadway
Raynham, MA 02767
Santini Bros. Iron Works, Inc. Oreste Santini (781) 396-1450 (781) 395-6704 ? False ___________
9 Cooper Street
Medford, MA 02155
Smith Steel, Inc. Charlie Smith (603) 753-9844 (603) 753-9798 ? False ___________
115 North Main Street
Boscawen, NH 03303
Southeastern Elio Roffo (781) 878-1505 (781) 982-9862 ? False ___________
Air Station Industrial Park
Rockland, MA 02370
Studs & Steel, Inc. Mike Cusano (781) 447-9500 (781) 447-9503 ? False ___________
P.O. Box 149
Quincy, MA 02170
Sunrise Erectors, Inc. David Connaught (781) 828-8814 (781) 828-8244 ? False ___________
35 Pequit Street
Canton, MA 02021
Van Norden Co. Bill Cantor (617) 969-2605 (617) 527-3555 ? False ___________
55 Border Street
Newton, MA 02165
05710 - Misc Ornamental Metals
D-2-7
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 05710 - Misc Ornamental Metals
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Santini Bros. Iron Works, Inc. Oreste Santini (781) 396-1450 (781) 395-6704 ? False ___________
9 Cooper Street
Medford, MA 02155
06050 - Rough Carpentry
Central Ceilings, Inc. Greg Connoly (508) 238-6985 (508) 238-2191 ? False ___________
36 Norfolk Avenue
South Easton, MA 02375
Continental Construction Co., Inc. Bill Sullivan (508) 778-6000 (508) 778-5758 ? False ___________
110 Breeds Hill Rd.
Hyannis, MA 02601
Martucelli Builders Jim Martucelli (508) 747-0608 (508) 747-5714 ? False ___________
18 Savery Avenue
Plymouth, MA 02360
Murphy & Sons Construction Co., Charles P. Murph (781) 878-0913 (781) 878-1023 ? False ___________
Inc.
258 King Street
Hanover, MA 02339
New England Finish Systems, Inc. Bob Salemi (603) 893-5083 (603) 893-5096 ? False ___________
11C Industrial Way
Salem, NH 03079
06200 - Finish Carpentry Millwork
Alpine Woodworking Assoc., Inc. Earl Davis (603) 429-1406 (603) 429-1407 ? False ___________
31 Railroad Ave.
Merrimack, NH 03054
American Milling (Union) Jim Roach (781) 344-7574 (781) 344-5874 ? False ___________
88 Evans Drive
Stoughton, MA 02027
Anthony Galluzzo Corp Joseph Galluzzo (603) 434-6140 (603) 434-2585 ? False ___________
14 Liberty Drive
Londonderry, NH 03053
Apex Woodworking Ray McCann (781) 821-1404 (781) 821-1565 ? False ___________
130 Jackson Street
Canton, MA 02021
Architectural Interior Products, Dennis Caton (603) 883-0069 (603) 883-0496 ? False ___________
Inc.
6 State Street
Nashua, NH 03063
Butler Construction Estimating (508) 842-5484 ? False ___________
165 Memorial Drive Unit A
Shrewbury, MA 01545
C.W. Keller & Associates, Inc. Shawn Keller (603) 382-2028 (603) 382-4611 ? False ___________
9 Hale Spring Road
Plaistow, NH 03865
Caliper Woodworking Corp. Bruce Guckert (617) 269-7726 (617) 269-4621 ? False ___________
22 Elkins Street
South Boston, MA 02127
Chebli Architectural Woodwork Abdo Chebli (781) 642-0733 (781) 642-0734 ? False ___________
50 Sun Street
Waltham, MA 02453
Curry Woodworking, Inc. David Curry, Jr. (508) 587-5500 (508) 587-8172 ? False ___________
61 Strafello Drive
Avon, MA 02322
Freeman Carder Company Louis Santos (781) 899-0500 (781) 894-9947 ? False ___________
20 Sun Street
Waltham, MA 02453
Herrick & White Ltd. Richard Roy (401) 658-0440 (401) 658-1438 ? False ___________
3 Flat Street
Cumberland, RI 02864
D-2-8
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 06200- Finish Carpentry Millwork
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Iaccarino & Sons, Inc. Francis X. Iaccar (508) 869-2136 (508) 869-6935 ? False ___________
200 Shrewsbury Street
Boylston, MA 01505
Liberty Woodworking, Inc. Michael Rivers (781) 933-9119 (781) 933-7766 ? False ___________
100 B Ashburton Avenue
Woburn, MA 01801
Mark Richey Woodworking & Design Barry Rugo (978) 768-3356 (978) 768-1100 ? False ___________
106 Western Avenue
Essex, MA 01929
Millwork One - MA Margaret (413) 562-7284 (413) 562-7425 ? False ___________
91 Union Street,
Westfield, MA 01085
North American Woodworking Corp. Andy McDonald (781) 391-8010 (781) 391-1124 ? False ___________
3163 Mystic Valley Parkway
Medford, MA 02155
Patella Woodworking - New England Scott Robertson (617) 236-5518 (617) 236-5524 ? False ___________
28 Exter Street
Suite 811
Boston, MA 02116
South Shore Millwork Anthony McKnigh (508) 226-5500 (508) 226-1161 ? False ___________
7 Maple Street
Norton, MA 02786
Thibco, Inc. Colin Pilcher (603) 623-3011 (603) 218-0049 ? False ___________
41 Alpheus Street
Manchester, NH 03103-5705
Trickett Woodworks Company Paul Trickett (603) 647-6991 (603) 647-6997 ? False ___________
8 Grey Point Avenue
Auburn, NH 03032
Walter A. Furman Co., Inc. Joe Ciosek (508) 674-7751 (508) 679-1244 ? False ___________
180 Liberty Street
Fall River, MA 02722
Woodworks, The Joe Hamden (603) 432-4050 (603) 432-3906 ? False ___________
16 N. Wentworth Avenue
Londonderry, NH 03053
Wright Architectural Millwork Walter Price (413) 586-3528 (413) 585-0826 ? False ___________
115 Industrial Drive
Northampton, MA 01060
Young's Woodworking, Inc. Chris Young (978) 834-9028 (978) 834-9029 ? False ___________
29 Rocky Hill Road
Amesbury, MA 01913
06201 - Finish Carpentry
Installation
Archer Corporation George Allen Jr. (781) 324-6262 (781) 397-9303 ? False ___________
349 Washington Street
Malden, MA 02148
Component Assembly Systems Dominic Duffy (781) 396-4320 (781) 396-7756 ? False ___________
260 Salem Street
Medford, MA 02155
Garnet Construction Co., Inc. Scott Reiff (207) 627-4591 (207) 627-9001 ? False ___________
93 Trail Road
Casco, ME 04015
Griffin Interiors, Inc. Mike Griffin (978) 658-4562 (978) 658-4493 ? False ___________
12 Bay Street, Unit 103
Wilmington, MA 01887
06202 - Historic Restoration
R.R. Woodman, Inc. Robert Cruicksha (617) 524-3530 (617) 524-7755 ? False ___________
675 VFW Parkway
Chestnut Hill, MA 02467
D-2-9
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 06202- Historic Restoration
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
06400 - Architectural Woodwork
Archer Corporation George Allen Jr. (781) 324-6262 (781) 397-9303 ? False ___________
349 Washington Street
Malden, MA 02148
07100 - Waterproofing
Dampproofing
Acme Waterproofing Co., Inc. Denis Morel (781) 982-2250 (781) 982-2694 ? False ___________
241 West Water Street
Rockland, MA 02370
Brisk Waterproofing Co. Eric Miller (781) 937-3661 (781) 937-3715 ? False ___________
21 Wheeling Ave.
Woburn, MA 01801
Chapman Waterproofing Company Nick Bonugli (617) 288-3000 (617) 288-3005 ? False ___________
395 Columbia Road
Boston, MA 02125
Folan Waterproofing Co. Frank Gagliardi (508) 238-6550 (508) 238-9425 ? False ___________
795 Washington Street
Easton, MA 02375
NER Construction Management, Inc. Sharon Lewis (978) 988-1111 (978) 988-1110 ? False ___________
867 Woburn Street
Wilmington, MA 01887-3490
P.J. Spillane Co., Inc. Leonard James (617) 389-6200 (617) 389-4138 ? False ___________
97 Tileston Street
Everett, MA 02149
Restoration Preservation Masonry Buddy Rocheford (508) 393-8033 (508) 393-9871 ? False ___________
79 Lyman Street
Northborough, MA 01532
Thompson Waterproofing Lisa Thompson (617) 471-9966 (617) 472-9977 ? False ___________
93 Federal Avenue
Quincy, MA 02169
07250 - Spray on Fireproofing
Component Spray Fireproofing Angelo (781) 396-2340 (781) 396-7756 ? False ___________
260 Salem Street
Medford, MA 02155
East Coast Fireproofing Co. Inc. Bill Goodman (508) 668-3422 (508) 668-4587 ? False ___________
140 South Street
Walpole, MA 02081
H. Carr & Sons, Inc. Mike Cavanaugh (617) 426-3667 (603) 890-3819 ? False ___________
184 High Street
Boston, MA 02110
Island Lathing & Plastering, Inc. Tony DaCosta (401) 723-2040 (401) 723-1990 ? False ___________
835 School Street
Pawtucket, RI 02860
M.L. McDonald Company Paul Collette (617) 923-0900 (617) 926-8418 ? False ___________
50 Oakland Street
Watertown, MA 02472
Northeast Restoration Jerrold Doherty (781) 391-9545 (781) 391-7599 ? False ___________
Fireproofing
31 Canal Street
Medford, MA 02155
07530 - Membrane Roofing
Boston Roofing and Design Richard Foley (508) 481-7567 (508) 481-0416 ? False ___________
Corporation
251 Boston Road
Southborough, MA 01772
D-2-10
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 07530 - Membrane Roofing
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
C&C Cornice Company, Inc. Paul Cappello (617) 332-4747 (617) 964-6593 ? False ___________
78 Silver Lake Avenue
Newton, MA 02495-0068
Capeway Roofing Jose Calheta (508) 674-0800 (508) 679-2670 ? False ___________
664 Sanford Street
Westport, MA 02790
Delta Roofing Peter Owens (978) 436-9990 (978) 436-9997 ? False ___________
5 Esquire Road
Billerica, MA 01862
Dumas Roofing George Dumas (508) 832-6995 (508) 832-2819 ? False ___________
28 Appleton Road
Auburn, MA 01501
Gilbert & Becker Co., Inc. Steve Ryan (617) 265-4342 (617) 265-0936 ? False ___________
16-24 Clapp Street
Dorchester, MA 02125
Hartford Roofing Ted Ensom (781) 341-2299 (781) 344-1012 ? False ___________
53 Evans Drive
Stoughton, MA 02072
J. T. Cazeault & Sons of Plymouth David Cazeault (800) 649-3880 (508) 830-0620 ? False ___________
51 Liberty Street
Plymouth, MA 02362
John F. Shea Co., Inc. Josh David (617) 298-0356 (617) 296-8859 ? False ___________
41 Hollingsworth Street
Mattapan, MA 02126
John Henry Roofing, Inc. James Madden (617) 787-1414 (617) 787-5135 ? False ___________
62 Hichborn Street
Brighton, MA 02135
K.P.R. Roofing, Inc. Dean B. Burpee (781) 380-7773 (781) 380-7775 ? False ___________
196 Plain Street
Braintree, MA 02184
LeClair Roofing & Waterproofing, Steve LeClair (978) 851-8304 (978) 851-9884 ? False ___________
Inc.
830 Livingston Street
Tewksbury, MA 01876
Marshall Roofing & Sheet Metal Steve Flood (781) 324-3332 (781) 324-6605 ? False ___________
Co.
20 Waite Court
Malden, MA 02148
Multi-State Roofing Chuck Hale (978) 297-3660 (978) 297-3954 ? False ___________
158 Franklin Street
Winchendon, MA 01475
Oak Roofing Louis D'Angolo (781) 933-0450 (781) 933-3361 ? False ___________
25 Garfield Avenue
Woburn, MA 01801
Titan Roofing, Inc. Bill Bernhardt (413) 536-1624 (413) 533-2560 ? False ___________
70 Orange Street
Chicopee, MA 01013
W.S. Aiken Bob Conway (617) 889-0665 (617) 884-0525 ? False ___________
224 Crescent Avenue
Chelsea, MA 02150
07900 - Caulking & Sealants
Chapman Waterproofing Company Nick Bonugli (617) 288-3000 (617) 288-3005 ? False ___________
395 Columbia Road
Boston, MA 02125
DeBrino Caulking Associates, Inc. Lewis Houghtalin (518) 732-7234 (518) 732-2281 ? False ___________
1304 Route 9
Castleton, NY 12033
NER Construction Management, Inc. Sharon Lewis (978) 988-1111 (978) 988-1110 ? False ___________
867 Woburn Street
Wilmington, MA 01887-3490
D-2-11
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 07900 - Caulking & Sealants
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
P.J. Spilliane Co., Inc. Leonard James (617) 389-6200 (617) 389-4138 ? False ___________
97 Tileston Street
Everett, MA 02149
08100 - Metal Doors Frames
Hardware
Columbus Door Company Ron Branch (401) 781-7792 (401) 467-3620 ? False ___________
1884 Elmwood Avenue
Warwick, RI 02888
Door Systems, Inc. Steve Osborne (800) 545-3667 (508) 626-2052 ? False ___________
120 Alexander Street
Framingham, MA 01702
Galeno & Associates, Inc. Peter Galeno (508) 238-5083 (508) 238-5028 ? False ___________
83 Eastman Street
South Easton, MA 02375
HCV Craftsmen Inc. Tom O'Toole (781) 963-0177 (781) 963-1054 ? False ___________
52 York Avenue
Randolph, MA 02368
Hennigar Door Kevin (781) 397-2999 (781) 397-0315 ? False ___________
22 Sharon Street
Malden, MA 02148
Kamco Supply Company Spencer Nelson (603) 432-2128 (603) 432-7680 ? False ___________
19 Independence Drive
Londonderry, NH 03053
New England Door Supply Sam Kilroy (617) 989-1900 (617) 989-1924 ? False ___________
107 Norfolk Ave
Boston, MA 02119
Noreastco Door & Millwork Mark/Dick (781) 821-1404 (781) 821-1565 ? False ___________
130 Jackson Street
Canton, MA 02021
O'Connor Door Corporation Kevin McDade (781) 444-3902 (781) 444-3903 ? False ___________
29 Charles Street
Needham, MA 02494
Partition Systems, Inc. Mike Sheehan (781) 942-0383 (978) 664-0295 ? False ___________
50 Concord Street
North Reading, MA 01864
Quarter's Hardware, Inc. Tom Young (781) 935-9272 (781) 935-9378 ? False ___________
300 Salem Street
Woburn, MA 01888-9272
RACO Interior Products, Inc. Abbey McNally (800) 272-7226 (713) 682-2079 ? False ___________
2000 Silber Road
Houston, TX 77055
Thompson Co., Inc. Rob Taylor (781) 331-6610 (781) 337-1128 ? False ___________
805 Pleasant Street
East Weymouth, MA 02189
08360 - Overhead Doors & Grilles
Cliff Compton Inc. Dave Garran (781) 843-2100 (781) 843-8579 ? False ___________
34 Garden Park
Braintree, MA 02184
Desco Door Sales, Inc. David Desmond (781) 319-0444 (781) 319 0603 ? False ___________
816 Webster Street
Marshfield, MA 02050
Door Systems, Inc. Steve Osborne (800) 545-3667 (508) 262-2052 ? False ___________
120 Alexander Street
Framingham, MA 01702
Gordon Industries, Inc. Johan Gordon (617) 269-5566 (617) 268-3701 ? False ___________
202 West First Street
South Boston, MA 02127
D-2-12
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 08360 - Overhead Doors & Grilles
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
New England Overhead Door, Inc. David Plaiffe (508) 473-0030 (508) 634-9098 ? False ___________
43 Pond Street
Milford, MA 01757
Overhead Door Co. of Boston Bob Mortell (800) 336-9991 (978) 774-1719 ? False ___________
300 Weymouth Street
Rockland, MA 02370
08410 - Aluminum Entrance &
Storefront
Aluminum & Glass Concepts, Inc. Dave Curtis (800) 585-6363 (978) 657-5819 ? False ___________
210 Andover Street
Unit 25
Wilmington, MA 01887
Assured Glass & Aluminum, Inc. John Surprenant (978) 957-9231 (978) 957-6476 ? False ___________
62 Valley Hill Road
Pelham, NH 03076
Cheviot Corporation Duncan Noonan (781) 449-1100 (781) 449-1109 ? False ___________
55 Fourth Avenue
Needham, MA 02494
Closure Company Brian Dempster (781) 935-7220 (781) 933-0317 ? False ___________
17B Gill Street
Woburn, MA 01801
Glass Installations, Inc. James Doyle (617) 293-4337 (617) 298-4621 ? False ___________
16 Allerton Road
Milton, MA 02186
Karas and Karas Jay Argus (617) 268-8800 (617) 464-1867 ? False ___________
455 Dorchester Avenue
South Boston, MA 02127
Salem Glass Company Scott Stelmack x (978) 744-5177 (978) 745-4036 ? False ___________
3 Technology Way
Salem, MA 01970
Tower Glass Co., Inc. Stephen R. Maur (781) 935-4870 (781) 935-5841 ? False ___________
10A Wheeling Avenue
Woburn, MA 01801
08810 - Glass and Glazing
Assured Glass & Aluminum, Inc. John Surprenant (978) 957-9231 (978) 957-6476 ? False ___________
62 Valley Hill Road
Pelham, NH 03076
Cheviot Corporation Duncan Noonan (781) 449-1100 (781) 449-1109 ? False ___________
55 Fourth Avenue
Needham, MA 02494
Closure Company Brian Dempster (781) 935-7220 (781) 993-0317 ? False ___________
17B Gill Street
Woburn, MA 01801
Coastal Glass and Aluminum Co., Jay Muese (781) 935-9315 (781) 935-9678 ? False ___________
In
300 Salem Street
Woburn, MA 01801
Galaxy Glass Mark Brown (603) 626-1800 (603) 626-1830 ? False ___________
114 Londenderry Turnpike
Hooksett, NH 03079
Glass Installations, Inc. James Doyle (617) 293-4337 (617) 298-4621 ? False ___________
16 Allerton Road
Milton, MA 02186
Hub Glass Gerald Riley (617) 625-6661 (617) 625-0223 ? False ___________
216 McGrath Highway
Somerville, MA 02143
Ispwich Bay Glass David Wenneka (978) 948-6644 (978) 948-2995 ? False ___________
420 Newburyport Turnpike
Rowley, MA 01969
D-2-13
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 08810 - Glass and Glazing
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Melrose Glass Co. Bob McConarghy (781) 662-8599 (781) 662-4915 ? False ___________
169 Main Street
Melrose, MA 02176
Moniz Glass and Aluminum Constrac George Moniz (781) 599-4416 (781) 598-6120 ? False ___________
27 Spencer Street
West Lynn, MA 01905
Salem Glass Company Scott Stelmack x (978) 744-5177 (978) 745-4036 ? False ___________
3 Technology Way
Salem, MA 01970
Tower Glass Co., Inc. Stephen R. Maur (781) 935-4870 (781) 935-5841 ? False ___________
10A Wheeling Avenue
Woburn, MA 01801
Wayside Glass Vinny Purpura (508) 485-3600 (508) 485-1603 ? False ___________
940 Boston Pond Road
Marlborough, MA 01753
09250 - Gypsum Drywall
Admiral Drywall, Ltd. Jack Scott (978) 262-9387 (987) 262-0167 ? False ___________
P.O. Box 934
Nutting Lake, MA 01865
Angelini Plastering, Inc. Jason Haas (978) 664-3836 (978) 664-0771 ? False ___________
304 Main Street
North Reading, MA 01864
Cazz Construction Company Rick Cataloni (781) 848-3875 (781) 848-3876 ? False ___________
25 Adams Street
Braintree, MA 02184
Central Ceilings, Inc. Greg Connoly (508) 238-6985 (508) 238-2191 ? False ___________
36 Norfolk Avenue
South Easton, MA 02375
Clifford & Galvin Contracting Jim Clifford (508) 588-9990 (508) 586-5181 ? False ___________
131 West Street
Bridgewater, MA 02379
Component Assembly Systems Dominic Duffy (781) 396-4320 (781) 396-7756 ? False ___________
260 Salem Street
Medford, MA 02155
Drywall, Ltd. Bill Murphy (781) 821-0150 (781) 821-1659 ? False ___________
1020 Turnpike Street
Canton, MA 02021
Fazio Construction Corp. Victor Fazio (781) 324-1139 (781) 321-2043 ? False ___________
288 Charles Street
Malden, MA 02148
H. Carr & Sons, Inc. Mike Cavanaugh (617) 426-3667 (603) 890-3819 ? False ___________
184 High Street
Boston, MA 02110
Jerry Construction, Inc. Patrick Albert (603) 882-3968 (603) 882-8838 ? False ___________
5 Security Drive
Hudson, NH 03051
K & J Interiors Chris Molinaro (508) 830-0670 (508) 830-0605 ? False ___________
4 Court Street
Plymouth, MA 02360
M.L. McDonald Company Paul Collette (617) 923-0900 (617) 926-8418 ? False ___________
50 Oakland Street
Watertown, MA 02472
Manganaro Northeast, LLC Dave Manganaro (781) 322-7929 (781) 397-7584 ? False ___________
350 Main Street, 2nd Floor
Malden, MA 02148
Mecca Construction Corporation Joe Maglione (781) 932-9793 (781) 932-9782 ? False ___________
10-W Gill Street
Woburn, MA 01801
D-2-14
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 09250 - Gypsum Drywall
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
New England Finish Systems, Inc. Bob Salemi (603) 893-5083 (603) 893-5096 ? False ___________
11C Industrial Way
Salem, NH 03079
Pelletier & Sons, Inc. Jeff Pellitier (978) 343-6333 (978) 345-2567 ? False ___________
552 Oak Hill Road
Fitchburg, MA 01420
Sweeney Drywall Dan Sweeney (781) 272-1518 (781) 272-7662 ? False ___________
13A Street
Burlington, MA 01803
T.J. McCartney, Inc. Dennis McDonne (603) 889-6380 (603) 880-0770 ? False ___________
3 Capitol Street, Suite 1
Nashua, NH 03063
Unity Construction Bob Sullivan (781) 665-1179 (781) 665-1183 ? False ___________
291 First Street
Melrose, MA 02176
09310 - Ceramic Tile
Bonomo Tile Sal Bonomo (781) 461-9950 (781) 461-9938 ? False ___________
215 Bridge Street
Dedham, MA 02026
Capital Floors, Inc. Jerry (781) 595-8246 (781) 595-1804 ? False ___________
26 Union Street
Lynn, MA 01902
Contract Flooring Installations Troy Bickford (508) 230-1760 (508) 230-2835 ? False ___________
290 Turnpike Street
South Easton, MA 02375
Falcucci Marble Refinishers Inc. Tom Falcucci (617) 469-3764 (617) 469-3319 ? False ___________
511 Cummins Highway
Boston, MA 02131
High Point Interiors Dick McLaughlin (781) 826-8133 (781) 826-8688 ? False ___________
201 Oak Street
Pembroke, MA 02359
McLaughlin Marble & Tile Co., Greg McLaughlin (781) 837-9834 (781) 837-6224 ? False ___________
Inc.
425 Union Bridge Road
Duxbury, MA 02332
Merrimac Tile Company Inc. Tom Indoccio (603) 432-2544 (603) 425-6597 ? False ___________
18 Tsienneto Road
Derry, NH 03038
Port Morris Tile & Marble Corp. Mark S. Liljegren (617) 265-7585 (617) 265-8510 ? False ___________
66 Von Hillem Street
Boston, MA 02125-1164
Spectra Contract Flooring Dave (781) 994-6800 (781) 994-6900 ? False ___________
80 Commercial Way
Woburn, MA 01801
Uni-Con Floors, Inc. Steve (508) 675-3974 (508) 675-4177 ? False ___________
2137A South Main Street
Fall River, MA 02724
Zani Tile Company, Inc. Jim Fahey (617) 924-8130 (617) 924-1485 ? False ___________
199 Dexter Avenue
Watertown, MA 02472
09380 - Marble Granite
Falcucci Marble Refinishers Inc. Tom Falcucci (617) 469-3764 (617) 469-3319 ? False ___________
511 Cummins Highway
Boston, MA 02131
High Point Interiors Dick McLaughlin (781) 826-8133 (781) 826-8688 ? False ___________
201 Oak Street
Pembroke, MA 02359
D-2-15
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 09380 - Marble Granite
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
J.A.J. Co., Inc. Joe Iacopucci (781) 395-5510 (781) 395-5548 ? False ___________
21 Prescott Street
Medford, MA 02155
Kenneth Castellucci &
Associates, In Mike Varone (401) 333-5400 (401) 333-5420 ? False ___________
9 New England Way
Lincoln, RI 02865
McLaughlin Marble & Tile Co., Inc. Greg McLaughlin (781) 837-9834 (781) 837-6224 ? False ___________
425 Union Bridge Road
Duxbury, MA 02332
Port Morris Tile & Marble Corp. Mark S. Liljegren (617) 265-7585 (617) 265-8510 ? False ___________
56 Von Hillern Street
Boston, MA 02125-1164
United Stone & Site Jeff Hartwell (860) 928-6559 (860) 928-6582 ? False ___________
169 Munyon Road
East Putnam, CT 02620
Zani Tile Company, Inc. Jim Fahey (617) 924-8130 (617) 924-1485 ? False ___________
199 Dexter Avenue
Watertown, MA 02472
09400 - Terrazzo
DePaoli Mosaic Company Fred Morgan (617) 445-2381 (617) 442-5618 ? False ___________
126 Magazine St.,
Boston, MA 02119
Port Morris Tile & Marble Corp. Mark S. Liljegren (617) 265-7585 (617) 265-8510 ? False ___________
56 Von Hillern Street
Boston, MA 02125-1164
09510 - Acoustical Ceiling
Allan Construction Mark Allan (781) 273-6660 (781) 273-6699 ? False ___________
One Murray Ave.
Burlington, MA 01803
American Acoustical Contractors
Cor Anthony Giordan (781) 828-5774 (781) 828-6877 ? False ___________
120 Cedar Street
Canton, MA 02021
BABB Acoustics Inc. Dave or Steve (781) 306-0226 (781) 306-0079 ? False ___________
359 Washington Street Rear A
Malden, MA 02148
Bonaco, Inc. Michael Buonopa (781) 942-1400 (781) 942-3600 ? False ___________
23 Walkers Brook Drive
Reading, MA 01867
Central Ceilings, Inc. Greg Connoly (508) 238-6985 (508) 238-2191 ? False ___________
36 Norfolk Avenue
South Easton, MA 02374
Cheviot Corporation Duncan Noonan (781) 449-1100 (781) 449-1109 ? False ___________
55 Fourth Avenue
Needham, MA 02494
Dillion Acoustical Ceiling, Inc. Mark (401) 232-2106 (401) 232-3357 ? False ___________
410 Harris Road, Unit B
Smithfield, RI 02917
T&T Acoustics, Inc. Scott M. Turgeon (978) 957-6231 (978) 458-8811 ? False ___________
45 Colburn Avenue
Dracut, MA 01826
09520 - Acoustical Wall Treatment
Allan Construction Mark Allan (781) 273-6660 (781) 273-6699 ? False ___________
One Murray Ave.
Burlington, MA 01803
D-2-16
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 09520 - Acoustical Wall Treatment
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Cheviot Corporation Duncan Noonan (781) 449-1100 (781) 449-1109 ? False ___________
55 Fourth Avenue
Needham, MA 02494
M.L. McDonald Company Paul Collette (617) 923-0900 (617) 926-8418 ? False ___________
50 Oakland Street
Watertown, MA 02472
09550 - Wood Flooring
Becht Corp. Stephen J. Becht (978) 858-0580 (978) 858-0582 ? False ___________
120 Lumber Lane
Tewksbury, MA 01876
Floor Sanders Varouj Nersesian (617) 783-1711 (617) 783-3504 ? False ___________
214 Lincoln Street, Suite 111
Allston, MA 02134
Kaswell & Co., Inc. Josh (508) 879-1120 (508) 820-0841 ? False ___________
58 Pearl Street
Framingham, MA 01701
Lyons Flooring Co. John Lyons (781) 376-9977 (781) 376-9988 ? False ___________
14 Union Street
Woburn, MA 01801
09650 - Resilient Flooring
A.J. Flooring Joe DiCarlo (978) 464-0298 (978) 464-0284 ? False ___________
487 Hubbardston Road
Princeton, MA 01541
Allegheny Contract Flooring Bob Mandile (781) 935-1077 (781) 932-2330 ? False ___________
36 Holton Street
Winchester, MA 01890
Business Interiors Floor Coverings Les Stiles (781) 938-9994 (781) 938-8833 ? False ___________
5 Wheeling Avenue
Woburn, MA 01801-6822
Circle Floors Michael Rush x1 (617) 381-6600 (617) 381-9050 ? False ___________
1911 Revere Beach Parkway
Everett, MA 02149
Contract Flooring Installations Troy Bickford (508) 230-1760 (508) 230-2835 ? False ___________
290 Turnpike Street
South Easton, MA 02375
E Floor, Inc. Doug Mann (781) 329-7722 (781) 329-3773 ? False ___________
1200 East Street
Westwood, MA 02090
Independent Flooring Corp. Thomas Connors (781) 986-0777 (781) 986-0707 ? False ___________
East Randolph Industrial Park
69 Teed Drive - Rear
Randolph, MA 02368
J.C. Floorcovering Ed Higgins (617) 569-6029 (617) 569-2322 ? False ___________
301 Border Street
East Boston, MA 02128
Spectra Contract Flooring Dave (781) 994-6800 (781) 994-6900 ? False ___________
80 Commercial Way
Woburn, MA 01801
Xpress Flooring Contractors, Inc. Joe Piscitello (508) 230-2503 (508) 230-2504 ? False ___________
Easton Industrial Park
South Easton, MA 02375
09680 - Carpet
A.J. Flooring Joe DiCarlo (978) 464-0298 (978) 464-0284 ? False ___________
487 Hubbardstone Road
Princeton, MA 01541
D-2-17
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 09680 - Carpet
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Allegheny Contract Flooring Bob Mandile (781) 935-1077 (781) 932-2330 ? False ___________
36 Holton Street
Winchester, MA 01890
Business Interiors Floor Coverings Les Stiles (781) 938-9994 (781) 938-8833 ? False ___________
5 Wheeling Avenue
Woburn, MA 01801-6822
Circle Floors Michael Rush x1 (617) 381-6600 (617) 381-9050 ? False ___________
1911 Revere Beach Parkway
Everett, MA 02149
Contract Flooring Installations Troy Bickford (508) 230-1760 (508) 230-2835 ? False ___________
290 Turnpike Street
South Easton, MA 02375
Independent Flooring Corp. Thomas Connors (781) 986-0777 (781) 986-0707 ? False ___________
East Randolph Industrial Park
69 Teed Drive - Rear
Randolph, MA 02368
Spectra Contract Flooring Dave (781) 994-6800 (781) 994-6900 ? False ___________
80 Commercial Way
Woburn, MA 01801
09900 - Painting
Ahern Painting Co., Inc. Bob White (781) 665-5600 (781) 665-5612 ? False ___________
368 Main Street
Melrose, MA 02174
Arthur Cole Painting Brian Lincks (508) 799-9019 (508) 797-4049 ? False ___________
39 Mason Street
Worcester, MA 01601
Avondale, Inc./L&M Associates Michael Lahart (508) 477-3386 (508) 539-3308 ? False ___________
630 Old Barnstable Road
Mashpee, MA 02649
Commercial Painting, Inc. Bill Turchetta (401) 726-0865 (401) 726-0866 ? False ___________
75 Beverage Hill Avenue
Pawtucket, RI 02860
East Coast Spraying Corp. Arthur Ratts (978) 441-9021 (978) 970-1494 ? False ___________
225 Stedman Street
Lowell, MA 01851
Fenway Painters Inc. John E. Smith (781) 944-4581 (978) 694-4008 ? False ___________
8 Day Street
Wilmington, MA 01887
John M. Kennedy & Co., Inc. Mark Kennedy (617) 825-0610 (617) 825-1299 ? False ___________
1813 Dorchester Avenue
Dorchester, MA 02124
Kaloutas Painting Jim Kaloutas (978) 532-1414 (978) 532-0207 ? False ___________
11 Railroad Ave.
Peabody, MA 01960
M.L. McDonald Company Erin Copithorne (617) 923-0900 (617) 926-8418 ? False ___________
50 Oakland Street
Watertown, MA 02472
McAdam Painting Dan McAdam (617) 923-9503 (617) 923-9541 ? False ___________
83 Spring Street
Watertown, MA 02472
Merchant Brothers Painting Co.,
Inc. Peter Merchant (781) 878-1667 (781) 878-1667 ? False ___________
655 Market Street
Rockland, MA 02370
North Shore Decorators Keleigh Calnan (978) 887-3344 (978) 887-5693 ? False ___________
462 Boston Street, Suite One
Topsfield, MA 01983
Paint Systems of New England, LLC Bill McNaught (603) 893-5083 (603) 893-5096 ? False ___________
11 C Industrial Way
Salem, NH 03079
D-2-18
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 09900 - Painting
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Sentry Painting Robert Berg (978) 640-1327 (978) 640-0971 ? False ___________
1501 Main Street
Tewksbury, MA 01876
Soep Painting Corp. Ray Obrien (781) 322-7800 (781) 322-7458 ? False ___________
263 Commercial Street
Malden, MA 02148
Thomas P. Sloane, Inc. Tom Sloane (781) 306-0538 (781) 306-0323 ? False ___________
121 Mystic Avenue
Medford, MA 02153
Van Molte Painting John Van Molte (978) 456-5193 (978) 486-0219 ? False ___________
43 Brown Avenue
Leominster, MA 01453
W.T. Kenney Co., Inc. Barry Rounds (781) 643-2105 (781) 643-7433 ? False ___________
11 Prescott Street
Arlington, MA 02474
Wall Dimensions, Inc. Bill Farrar (603) 598-8080 (603) 598-1826 ? False ___________
225 Lowell Road
Hudson, NH 03051
09950 - Wallcovering
Soep Painting Corp. Ray Obrien (781) 322-7800 (781) 322-7458 ? False ___________
263 Commercial Street
Malden, MA 02148
10001 - Specialties
Bay State Building Specialities, Jerry Pratt (781) 335-3510 (781) 335-3470 ? False ___________
Inc.
50 Finnell Drive, Unit 6
Weymouth, MA 02188
New England Specialties, Inc. John Paquette, Jr. (508) 833-7700 (508) 833-7701 ? False ___________
114 State Road, Unit A5
Sagamore Beach, MA 02562-1714
Pyrobain Gary Glazer (781) 449-7720 (781) 449-5056 ? False ___________
64 Booth Street
Needham, MA 02494
Sanahart International Sales Peter Trahanas (781) 455-6656 (781) 455-6505 ? False ___________
220 Reservoir Street
Needham, MA 02494
Unlimited Specialties Bob McDonald (617) 471-7070 (617) 770-2175 ? False ___________
141 Main Street
Quincy, MA 02169
Ver-Tex Construction Fred Jennings (781) 821-0858 (781) 821-2556 ? False ___________
Specialities, Inc
905 Turnpike Street
Canton, MA 02021
Walsh-Hannon-Gladwin, Inc. Ron Pasek (978) 887-5700 (978) 887-9680 ? False ___________
461 Boston Road
Topsfield, MA 01983
10110 - Chalk, Tack, &
Marker Boards
AMF Specialities, Inc. Antonio Cracchiol (617) 267-8388 (617) 267-9779 ? False ___________
390 Commwealth Avenue
Boston, MA 02215
ATR Sales, Inc. Carl Backholm (508) 393-8529 (508) 393-7766 ? False ___________
41 Talbot Road
Northboro, MA 01532
Bay State Building Specialities, Jerry Pratt (781) 335-3510 (781) 335-3470 ? False ___________
Inc.
50 Finnell Drive, Unit 6
Weymouth, MA 02188
D-2-19
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 10110 - Chalk, Tack, & Marker
Boards
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Bright Window Coverings, Inc. Chris Kaddras (781) 246-0935 (781) 245-8176 ? False ___________
151 Foundry Street
Wakefield, MA 01880
Kreative Window Treatments Jay Purpura (781) 767-5588 (781) 767-2526 ? False ___________
145A Union St.
Holbrook, MA 02343
Walsh-Hannon-Gladwin, Inc. Ron Pasek (978) 887-5700 (978) 887-9680 ? False ___________
461 Boston Road
Topsfield, MA 01983
10160 - Toilet Partitions
Automation Solutions, Inc. Bill Stuffle (617) 542-4445 (617) 542-4441 ? False ___________
283 Franklin Street, 5th Floor
Boston, MA 02110
New England Specialties, Inc. John Paquette, Jr. (508) 833-7700 (508) 833-7701 ? False ___________
114 State Road, Unit A5
Sagamore Beach, MA 02562-1714
Northern Corp. Rich Thoman (508) 481-2444 (508) 481-2973 ? False ___________
175 Boston Road
Southborough, MA 01772
O'Connor Door Corporation Kevin McDade (781) 444-3902 (781) 444-3903 ? False ___________
29 Charles Street
Needham, MA 02494
Unlimited Specialties Bob McDonald (617) 471-7070 (617) 770-2175 ? False ___________
141 Main Street
Quincy, MA 02169
Ver-Tex Construction Fred Jennings (781) 821-0858 (781) 821-2556 ? False ___________
Specialities, Inc
905 Turnpike Street
Canton, MA 02021
Walsh-Hannon-Gladwin, Inc. Ron Pasek (978) 887-5700 (978) 887-9680 ? False ___________
461 Boston Road
Topsfield, MA 01983
10200 - Louvers
Air Engineering Filters, Inc. Bob Beaton (978) 988-2000 (978) 988-2200 ? False ___________
3 Lopez Road
Wilmington, MA 01887-2563
Cantor-Flynn Associates Inc. Mike Cantor (508) 829-7613 (781) 297-3538 ? False ___________
150 Copperwood Drive
Stoughton, MA 02072
G. Wilson Associates (781) 834-3843 (781) 344-1537 ? False ___________
108 Acorn Street
Marshfield, MA 02050
Geldart Associates Gary Geldart (781) 643-4641 (781) 643-0478 ? False ___________
201 Sylvia Street
Arlington, MA 02174
Mettro Architecural Sales Doug Metcalf (781) 545-8100 (781) 545-5805 ? False ___________
50 Cole Parkway
Scituate, MA 02066
10270 - Access Flooring
Central Ceilings, Inc. Greg Connoly (508) 238-6985 (508) 238-2191 ? False ___________
36 Norfolk Avenue
South Easton, MA 02374
Cheviot Corporation Duncan Noonan (781) 449-1100 (781) 449-1109 ? False ___________
55 Fourth Avenue
Needham, MA 02494
D-2-20
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List -10270 - Access Flooring
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
F.H. Chase, Inc. Eric Gray (508) 339-3309 (508) 339-3306 ? False ___________
120 Forbes Boulevard
Mansfield, MA 02048
Longden Company, Inc. Gerald Ayotte (978) 568-1800 (978) 567-8917 ? False ___________
446 River Road
Hudson, MA 01749
Pitcher Associates Robert C. Blinn (603) 434-1505 (603) 434-1004 ? False ___________
9 Tinkham Avenue
Derry, NH 03038
10430 - Exterior and Interior
Signs
ABP Sign & Awning Bill (508) 966-4000 (508) 966-4816 ? False ___________
20 William Way
Bellingham, MA 02109
Barto Signs Denis Maltais (603) 882-2368 (603) 882-7680 ? False ___________
158 Greeley Street
Hudson, NH 03051
Janedy Signs William Penney (617) 776-5700 (617) 381-0900 ? False ___________
27 Carter St.
Everett, MA 02149
SignAge Alan Sawyer (617) 868-1600 (617) 868-1612 ? False ___________
One Broadway
Cambridge, MA 02142
Signs by J, Inc. Pam Hallett (617) 825-9855 (617) 825-5293 ? False ___________
100 Tenean Street
Dorchester, MA 02122
Signs Of Life Al Barber (508) 583-9700 ? False ___________
View Point Sign & Awning Jim Rieger (508) 303-8400 (508) 303-8480 ? False ___________
40 Locke Drive
Marlborough, MA 01752
10620 - Operable Walls
Central Ceilings, Inc. Greg Connoly (508) 238-6985 (508) 238-2191 ? False ___________
36 Norfolk Avenue
South Easton, MA 02375
KWIK-WALL/New England. Inc. (Huf Paul McDonald (781) 871-4941 (781) 871-8874 ? False ___________
100 Weymouth Street
Rockland, MA 02370
Pappas Co., Inc. George Pappas (617) 964-8700 (617) 965-9447 ? False ___________
42 Riverdale Avenue
Newton, MA 02458
10650 - Operable Partitions
Pappas Co. Inc. George Pappas (617) 964-8700 (617) 965-9447 ? False ___________
42 Riverdale Avenue
Newton, MA 02458
10670 - Storage Shelving
Systematics, Inc. John Schaefer (508) 393-9100 (508) 393-9370 ? False ___________
80 Lyman Street
Northboro, MA 02458
11130 - Audio Visual Equipment
D-2-21
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List -11130 - Audio Visual Equipment
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Boston Light & Sound, Inc. Zeke Zola (617) 787-3131 (617) 787-4257 ? False ___________
290 No. Beacon Street
Brighton, MA 02135
Crimson Tech Michael (800) 868-5150 (800) 499-4901 ? False ___________
33 Upton Drive
Wilmington, MA 01887
H.B. Communications Scott Hilton (781) 647-1991 (781) 647-1811 ? False ___________
1432 Main Street
Waltham, MA 02154
12500 - Window Treatments
Baystate Window Coverings Ken Depattio (781) 224-0600 (781) 224-2553 ? False ___________
40 Salem Street
Lynnfield, MA 01940
Bright Window Coverings, Inc. Chris Kaddras (781) 246-0935 (781) 245-8176 ? False ___________
151 Foundry Street
Wakefield, MA 01880
King's Draperies Inc. Gary E. King (508) 230-0055 (508) 230-5655 ? False ___________
195 Washington Street
Easton, MA 02356
Kreative Window Treatments Jay Purpura (781) 767-5588 (781) 767-2526 ? False ___________
145A Union St.
Holbrook, MA 02343
Lois Peters & Company Lois Peters (978) 371-9997 (978) 287-4458 ? False ___________
Hawthorne Old Stow Road
Unit 3
W. Concord, MA 01742
Marjorie Royer Interiors, Inc. Jim Robinson (978) 774-0533 (978) 750-8208 ? False ___________
50 N. Liberty Street
Middleton, MA 01949
Moody Carlson Sam Freeman (508) 877-2700 (508) 879-0698 ? False ___________
945 Concord Street
Framingham, MA 01701
Ver-Tex Construction Fred Jennings (781) 821-0858 (781) 821-2556 ? False ___________
Specialties, Inc.
905 Turnpike Street
Canton, MA 02021
14200 - Elevators
Delta Beckwith Elevator Company Bill Lewis (617) 824-5636 (617) 427-1494 ? False ___________
274 Southhampton Street
Boston, MA 02118-2755
Eagle Elevator Company, Inc. Reinhardt Becker (617) 269-1122 (617) 269-1132 ? False ___________
22 Elkin Street
South Boston, MA 02127
Fujitec America, Inc. Wayne Thompso (781) 961-7190 (781) 961-7197 ? False ___________
43 Teed Drive
Randolph, MA 02368
Kone Inc. Casey Marshall (781) 828-6355 (781) 828-6499 ? False ___________
One New Boston Drive
Canton, MA 02021
Otis Elevator/United Technologies George McGee (781) 433-7741 (781) 433-7760 ? False ___________
61 Fourth Avenue
Needham, MA 02494
Schindler Elevator Co. Dave Colonies (508) 660-5454 (508) 660-5440 ? False ___________
4 Walpole Park South Drive
Walpole, MA 02081
ThyssenKrupp Elevator Co. Randy Waters (617) 547-9000 (617) 876-3167 ? False ___________
665 Concord Avenue
Cambridge, MA 02138
D-2-22
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List -14200 - Elevators
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
15300 - Sprinkler
A & M Fire Protection Perry Alternese (508) 695-7607 (508) 695-7604 ? False ___________
191 Colonial Road
North Attleboro, MA 02760
Amandti & Sons Tom Armanti (978) 745-4144 (978) 745-8833 ? False ___________
389 Highland Avenue
Salem, MA 01970
American Plumbing & Heating Corpo Dan Bent (781) 335-3533 (781) 335-3222 ? False ___________
72 Sharp Street
Bulding C-8
Hingham, MA 02043
Artec Sprinkler Corp. Gerard Guilmette (978) 459-2568 (978) 453-4473 ? False ___________
545 Broadway Street
Lowell, MA 01854
Atlantic Fire Protection Richard Chaisso (781) 294-8999 (781) 294-8939 ? False ___________
30 Verna Hall Drive
Pembroke, MA 02359
Best Automatic Sprinkler Jeff Fergueson (781) 380-3800 (617) 770-4555 ? False ___________
77 Elm Street
Braintree, MA 02184
Bristol Fire Protection, Inc. James P. Carty (508) 699-4494 (508) 695-8237 ? False ___________
17 Cross Street
Plainville, MA 02762
Carlysle Engineering, Inc. Bill Newell (617) 522-6650 (617) 522-9021 ? False ___________
132 Brookside Avenue
Jamaica Plain, MA 02130
City Point Fire Protection John Cokinos (781) 340-9300 (781) 331-4063 ? False ___________
208 Mathewson Drive
East Weymouth, MA 02189
Classic Fire Control, Inc. Mike Breen (781) 682-4200 (781) 682-4288 ? False ___________
63 Mathewson Drive
Weymouth, MA 02189
Ebacher Company Keith Palmer (978) 388-4086 (978) 388-4208 ? False ___________
40 Portsmith Rd.
Amesbury, MA 01913
Environmental Fire Protection Don Carliss (508) 485-8183 (508) 624-7740 ? False ___________
249 Cedar Hill Street
Marlboro, MA 01752-3004
Fire Suppression Systems of New John Polucha (508) 234-2223 (508) 234-7977 ? False ___________
England
781 Main Street
Whitinsville, MA 01588
Fireguard Automatic Sprinkler Bob O'Dell (781) 740-4423 (781) 740-1441 ? False ___________
201 Whiting Street
Hingham, MA 02043
General Fire Protection Dominic Perella (617) 923-4717 (617) 923-4709 ? False ___________
70 Watertown Street
Watertown, MA 02172
H.F.P. Sprinkler of Natick Jim Lawrence (413) 568-4709 (413) 562-7296 ? False ___________
32 Char Drive
Westfield, MA 01085
Hampshire Fire Protection Paul Deloire (603) 432-8221 (603) 434-3194 ? False ___________
8 North Wentworth Avenue
Londonderry, NH 03053
Infinity Fire Protection Chris Fletcher (508) 668-1100 (508) 668-1165 ? False ___________
1776 Washington Street
Walpole, MA 02081
J.C. Cannistraro, LLC Ken Reagan (617) 926-0092 (617) 926-5340 ? False ___________
80 Rosedale Avenue
Watertown, MA 02472
D-2-23
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List -15300 - Sprinkler
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Just Fire Systems Maria (508) 278-9433 (508) 278-7890 ? False ___________
44 Depot Street
Uxbridge, MA 01569
M.J. Daly & Sons Bill Froehlich (781) 963-8070 (781) 963-8709 ? False ___________
89 York Avenue
Randolph, MA 02368
Methuen Fire Protection Mark (978) 957-1958 (978) 957-6723 ? False ___________
1266 Hildreth Street
Dracut, MA 01826
Metro-Swift Sprinkler Corp. Rick Rennick (978) 532-2907 (978) 531-2433 ? False ___________
58r Pulaski Street
Peabody, MA 01960
Midland Fire Protection, Inc. David Munroe (401) 823-7575 (401) 823-7589 ? False ___________
6 Grandview Street
Coventry, RI 02816
Noremac Sprinkler Corp. Wayne Davis (508) 476-1037 (508) 476-9156 ? False ___________
132 Perry Street
East Douglas, MA 01516
Northeast Automatic Sprinkler Dave Odell (781) 740-4205 (781) 740-4209 ? False ___________
150 Recreation Park Drive
Hingham, MA 02043
Norwood Fire Protection John Meal (781) 828-4142 (781) 344-7670 ? False ___________
30 Old Page Street
Stoughton, MA 02072
Quality Automatic Sprinkler Corp. Joel R. Leach (781) 878-4052 (781) 871-0464 ? False ___________
225 Concord Street
Rockland, MA 02370
Simplex Grinnel Paul Ramponi (781) 828-5310 (781) 828-9609 ? False ___________
63 Nahatan Street
Norwood, MA 02062
Suburban Fire Protection, Inc. Jan K. Motyl-Szar (508) 393-7158 (508) 393-7358 ? False ___________
100 Otis Street
Northborough, MA 01532-2438
Valley Fire Protection Co. Don (978) 640-9660 (978) 640-9660 ? False ___________
747 Chandler Street
Tewksbury, MA 01876
Walker Fire Protection Bill Walker (617) 268-8601 (617) 268-8614 ? False ___________
29 Elkins Street
Boston, MA 02127-1621
Xcel Fire Protection, Inc. Clem Clare (603) 890-3331 (603) 898-9999 ? False ___________
11A Industrial Way, Unit #11
Salem, NH 03079
15400 - Plumbing
A.P. Cassidy Co., Inc. Al Cassidy (781) 545-6874 (781) 545-6874 ? False ___________
One Buttonwood Lane
Scituate, MA 02066
Amari Co., Inc. Bob Amari (603) 882-4118 (603) 882-4214 ? False ___________
11 Caldwell Drive
Amherst, NH 03031
American Plumbing & Heating Corpo Dan Bent (781) 335-3533 (781) 335-3222 ? False ___________
72 Sharp Street, Building C-8
Hingham, MA 02043
Bernadan, Inc. Dan Caldararo (617) 325-9700 (617) 325-9713 ? False ___________
1208A VFW Parkway
West Roxbury, MA 02132
Cheever Bros. Roy Cheever (978) 887-9478 (978) 887-3535 ? False ___________
41 Surrey Lane
Topsfield, MA 01983
D-2-24
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List -15400 - Plumbing
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
Commonwealth Plumbing Corp. Peter Hannon (781) 982-9960 (781) 982-9962 ? False ___________
141 Weymouth Street
Rockland, MA 02370
Crane Mechanical Co., Inc. Kenny Crane (617) 541-8400 (617) 541-1900 ? False ___________
915 Massachusetts Avenue
Boston, MA 02118
D.R. Howard, Inc. Bob Howard (617) 846-9591 (617) 539-0550 ? False ___________
38 Pleasant Park Road
Winthrop, MA 02152
Dan-Cel Company Sebuh Petrosian (617) 923-1011 (617) 925-5746 ? False ___________
15 Crawford Street
Watertown, MA 02172
Denron Plumbing & HVAC, Inc. Dick Morris (603) 627-4186 (603) 617-0559 ? False ___________
605 Front Street
Manchester, NH 03102
Dowd Plumbing Artie Dowd (781) 821-1212 (781) 821-3434 ? False ___________
3 Morton Street
Stoughton, MA 02072
E.H. Marchant Co., Inc. Michael Petrilli (617) 773-6333 (617) 773-9806 ? False ___________
153 Old Colony Avenue
Quincy, MA 02170
Ebacher Company Keith Palmer (978) 388-4086 (978) 388-4208 ? False ___________
40 Portsmith Rd.
Amesbury, MA 01913
F.A. Williams, Inc. Bob Oulette (617) 489-4770 (617) 489-5465 ? False ___________
12 Brighton Street
Belmont, MA 02478
Grasseschi Plumbing & Heating, James J. Grasse (508) 753-3028 (508) 799-4953 ? False ___________
Inc.
1299 Grafton Street
Worcester, MA 01604
J.C. Cannistraro, LLC Ken Reagan (617) 926-0092 (617) 926-5340 ? False ___________
80 Rosedale Avenue
Watertown, MA 02472
J.F. Plumbing Company, Inc. John Fratotillo (781) 878-3859 (781) 871-1086 ? False ___________
333 Weymouth St.
Rockland, MA 02370
J.F. Shine Mechanical, Inc. Dan Weider (617) 325-6300 (617) 325-6314 ? False ___________
2383 Centre Street
West Roxbury, MA 02132
Kennedy Mechanical Jack Turner (781) 933-7333 (781) 933-6222 ? False ___________
271 Salem Street
Woburn, MA 01801
Lundy Plumbing & Heating John Lundy (781) 741-5710 (781) 749-6295 ? False ___________
5 Pine Crest Road
Hingham, MA 02043
McGlone Plumbing, Inc. Ivy White (781) 843-4604 (781) 843-4655 ? False ___________
111 French Avenue
Braintree, MA 02184
Millis Plumbing Bob Greamer (508) 668-1040 (508) 668-1998 ? False ___________
220 Norfolk Street
Walpole, MA 02081
Northern Peabody Nicholas Masci (603) 669-3601 (603) 669-2285 ? False ___________
25 Depot Street
Manchester, NH 03101
O'Shaughnessy Plumbing, Inc. P.J. O'Shaughnessy (617) 436-5171 (617) 436-2800 ? False ___________
540 Gallivan Blvd.
Dorchester, MA 02124
P.J. Dionne Co., Inc. Judy (978) 657-3990 (978) 657-3992 ? False ___________
60 Jonspin Rd.
Wilmington, MA 01887
D-2-25
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 15400 - Plumbing
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
P.J. Sullivan Co., Inc. Steve Venturelli (781) 440-0015 (781) 440-0017 ? False ___________
273 Lenox Street, Unit 2
Norwood, MA 02062
Puopolo & Sons Steve Puopolo (617) 441-8900 (718) 641-2414 ? False ___________
24 Beck Road
Arlington, MA 02476
Sagamore Plumbing & Heating, Inc. Patrick Harold (781) 331-1600 (781) 331-8641 ? False ___________
320 Libbey Industrial Parkway
Weymouth, MA 02189
Thomas G. Gallagher, Inc. Larry Halte (617) 661-7000 (617) 547-6418 ? False ___________
54 Washburn Avenue
Cambridge, MA 02140
Valante Mechanical Contractors, Joe Valante (617) 773-7200 (617) 773-8280 ? False ___________
Inc.
32 Furnace Avenue
Quincy, MA 02169
15500 - HVAC
Aerodyne Mechanical Contractors Lori (617) 268-3711 (508) 420-9448 ? False ___________
42 Mill Pond
Marstons Mills, MA 02648
Alvin Hollis Co. Jim Bicknell (781) 335-2100 (781) 335-6134 ? False ___________
One Hollis Street
South Weymouth, MA 02190
Apex Sheetmetal Tony Sacco (781) 871-6227 (781) 871-5280 ? False ___________
56 Charles Street
North Abington, MA 02351
Bryant Sheetmetal, Inc. Russell W. Bryan (781) 871-6950 (781) 871-6951 ? False ___________
10 Bishop Lane
Rockland, MA 02370
C.P. Blouin Joe Cullen (603) 474-3400 (603) 474-7118 ? False ___________
203 New Zealand Road
Seabrook, NH 03874
Comfort Air Systems Craig Beaudry (508) 879-0800 (508) 875-9085 False ___________
119 Herbert Street
Framingham, MA 01701
CommAir (Commonwealth Air Troy Dinapoli (617) 268-6400 (617) 268-4837 ? False ___________
Conditioning)
200 Old Colony Avenue
South Boston, MA 02127
Commercial Air Control, Inc. Bob Coluci (781) 337-1650 (781) 335-7191 ? False ___________
19 Rantoule Street
South Weymouth, MA 02190
Corporate Mechanical, Inc. Michael Mahoney (978) 988-1981 (978) 988-1980 ? False ___________
200 Jefferson Road
Wilmington, MA 01887
Cotti-Johnson Corporation John Boutin (781) 821-1511 (781) 821-1599 ? False ___________
80 Cedar Street
Canton, MA 02021
Cox Engineering Company Tom Murray (781) 302-3300 (781) 302-3444 ? False ___________
35 Industrial Drive
Canton, MA 02021
D.J. Plumbing & Heating, Inc. David Johanson (978) 739-4646 (978) 739-4455 ? False ___________
250 North Street
Danvers, MA 01923
Denron Plumbing & HVAC, Inc. Dick Morris (603) 627-4186 (603) 627-0559 ? False ___________
605 Front Street
Manchester, NH 03102
Environmental Systems Dick LePorte (508) 226-6006 (508) 222-1344 ? False ___________
6 Howard Ireland Drive
Attleboro, MA 02703
D-2-26
Bid Call Report - By Trade
Corporate Interiors Group Subcontractor List - 15400 - HVAC
Company Name Contact Business Fax Bidding Plans Notes
------------ ------------------ -------------- -------------- ------- ----- -----------
F.A. Williams, Inc. Bob Oulette (617) 489-4770 (617) 489-5465 ? False ___________
12 Brighton Street
Belmont, MA 02478
Farina Corp. Gerard Farina (617) 242-0365 (617) 242-7457 ? False ___________
24 Spice Street
Charlestown, MA 02129
Fred Williams, Inc. Jerry Lyons (781) 961-1500 (781) 961-1879 ? False ___________
20 Scanton Drive
Randolph, MA 02368
Gillis Sheetmetal Charlie Gillis (781) 767-5141 (781) 767-5097 ? False ___________
275 Centre Street
Holbrook, MA 02343
Grinnel Mechanical Mike Grinnel (781) 273-1835 (781) 273-0105 ? False ___________
13 Grant Street
Burlington, MA 01803
Hamel & McAlister, Inc. Ray Hamel (781) 272-0100 (781) 272-9001 ? False ___________
215 Middlesex Turnpike
Burlington, MA 01803
Harrington Bros. Inc. Jack Nigro (781) 341-1999 (781) 341-3601 ? False ___________
1043 Turnpike Street
Stoughton, MA 02072
Hermes Engineering, Inc. Samuel Horowitz (508) 270-8842 (508) 270-9146 ? False ___________
60 Tripp Street
Framingham, MA 01702-8751
J.C. Higgins Roger Griffiths (781) 341-1500 (781) 344-9283 ? False ___________
70 Hawes Way
Stoughton, MA 02072
J.C. Cannistraro, LLC Ken Reagan (617) 926-0092 (617) 926-5340 ? False ___________
80 Rosedale Avenue
Watertown, MA 02472
J.F. Shine Mechanical, Inc. Dan Weilder (617) 325-6300 (617) 325-6314 ? False ___________
2383 Centre Street
West Roxbury, MA 02132
Karpouzis & Sons Comm. Reg., Inc. Dan Gay (508) 872-2500 (508) 872-4118 ? False ___________
875 Waverly Street
Framingham, MA 01701
Lake HVAC Buddy Davis (781) 438-8814 (781) 438-9504 ? False ___________
41 Pleasant Street
Stoneham, MA 02180
Larkin Hathaway Inc. Tim Hathaway (508) 697-8387 (508) 697-8389 ? False ___________
90 First Street
Bridgewater, MA 02324
Limbach Co., LLC Rick Dorci (781) 935-6700 (781) 935-6084 ? False ___________
180 New Boston Street
Woburn, MA 01801
Lohrman HVAC,
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