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Indenture Lease W/ Andover Mills Realty

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Sectors: Computer Software and Services
Governing Law: Massachusetts, View Massachusetts State Laws
Effective Date: October 01, 1993
Related Agreement Types:
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Exhibit 10.17


BRICKSTONE SQUARE
ANDOVER, MASSACHUSETTS


LEASE


LANDLORD: ANDOVER MILLS REALTY LIMITED PARTNERSHIP,
a Massachusetts Limited Partnership


TENANT: FTP SOFTWARE, INC., a Massachusetts Corporation


DATE: October 1, 1993


BUILDING No. 100: 5th Floor


LEASE NO.: 505A


TABLE OF CONTENTS


1. BASIC LEASE PROVISIONS .................................................. 1


2. CONSTRUCTION OF PREMISES ................................................ 3


3. POSSESSION AND SURRENDER OF PREMISES .................................... 3
4. TERM .................................................................... 3


5. RENT .................................................................... 4


6. TAXES ................................................................... 4


7. OPERATING COSTS ......................................................... 5


8. INSURANCE ............................................................... 5


9. MONTHLY PAYMENT OF TAXES, OPERATING COSTS AND INSURANCE
PREMIUMS ................................................................ 7


10. UTILITIES ............................................................... 7


11. USE OF PREMISES ......................................................... 8


12. MAINTENANCE AND REPAIRS ................................................. 9


13. ALTERATIONS ............................................................ 10


14. INDEMNITY; SATISFACTION OF REMEDIES .................................... 11
15. COMMON AREA AND PARKING ................................................ 12


16. DAMAGE OR DESTRUCTION .................................................. 13


17. CONDEMNATION ........................................................... 13


18. ASSIGNMENT AND SUBLETTING .............................................. 14


19. MORTGAGEE PROTECTION ................................................... 17


20. ESTOPPEL CERTIFICATES .................................................. 17


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21. DEFAULT ................................................................ 18


22. REMEDIES FOR DEFAULT ................................................... 18


23. [SEE EXHIBIT "F" -- BANKRUPTCY AND INSOLVENCY] ......................... 20
24. GENERAL PROVISIONS ..................................................... 20


25. HAZARDOUS SUBSTANCES ................................................... 25


EXHIBIT LIST
------------


"A" Project Site Plan "B" Premises "C" Workletter "D" Base Rent "E" Current Rules and Regulations "F" Bankruptcy Provisions Rider #1 Right of First Offer Rider #2 Extension Option


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INDEX TO DEFINED TERMS
----------------------


Term Section Page - ---- ------- ----
Affiliates 24.18(a) 13 Alterations 13 5 Bankruptcy Code Exhibit "F" Base Rent 1.1(e) 1 Building 1.1(d) 1 Common Area 15 6 Condemnation 17 7 Expansion Option 28.1 Rider #1 Expansion Space 28.1 Rider #1 Guarantor 1.1(k) 1 Hazardous Substances 25 13 Landlord's Mortgagee 19.1 8 Landlord's Work 2 2 Laws 24.18(b) 13 Lease Year 4 2 Liabilities 24.18(c) 13 Liens 13.4 5 Maximum Amount 1.2 Exhibit "C" Offer Space 27 Rider #1 Operating Costs 7.1 2 Option Rider #2 Premises 1.3 1 Project 1.2 1 Rent 5 2 Rent Commencement Date 1.1(a) 1 Security Deposit 1.1(g) 1 Systems and Equipment 24.18(d) 13 Superior Leases and Mortgages 24.4 11 Taxes 6.2 2 Tenant's Broker 1.1(l) 1 Tenant's Percentage 1.1(f) 1 Tenant's Property 3 2 Transfer 18.1 7


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LEASE
-----


THIS INDENTURE OF LEASE, dated as of October 1, 1993, is between ANDOVER HILLS REALTY LIMITED PARTNERSHIP, a Massachusetts Limited Partnership ("Landlord"), and FTP SOFTWARE, INC., a Massachusetts corporation ("Tenant").


Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord on the following terms and conditions:


1. BASIC LEASE PROVISIONS.
----------------------


1.1 Summary.
-------


(a) Rent Commencement Date: Ten (10) days after Landlord's Work is
substantially completed, but if Tenant occupies the Premises for the
conduct of its business earlier, then the Rent Commencement Date will be
the date that Tenant so occupies. Landlord will use all diligent efforts to
substantially complete Landlord's Work on or before March 1, 1994.


(b) Term: Until August 31, 2002, subject to extension as provided in
Rider #2 or earlier termination in accordance with this Lease.


(c) Premises: The fifth (5th) floor of the Building, as shown in
Exhibit "B". The Premises have an initial agreed rentable area of 66,286
square feet, which will be increased if more space is leased as described
in Rider #1.


(d) Building: Building 100 as shown in Exhibit "A".


(e) Base Rent: (see Exhibit "D").


(f) Tenant's Percentage: 7.05%, subject to proportional increase if
the size of the Premises increases pursuant to this Lease.


(g) Security Deposit: [an amount equal to two (2) months initial base
rent.]


(h) Use of Premises: As offices and for the packaging, creation and
duplication of computer software, light assembly, testing, configuring
computer hardware, and training (but no manufacturing).


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(i) Notice to Tenant Before Possession of Premises:


FTP Software
Two High Street
North Andover, Massachusetts 01845
Attn: Chief Financial Officer


With a copy to:
--------------


Edward Rosner, Esq.
Flott, Rosner and O'Brien
919 18th Street
Washington, DC 20006


(j) Notice to Landlord:


c/o Brickstone Properties, Inc.
300 Brickstone Square
Andover, Massachusetts 01810
Attn: Martin Spagat


With a copy to:
--------------


c/o U.S. Managers Realty, Inc.
433 North Camden Drive
Suite 960
Beverly Hills, CA 90210
Attn: John G. Baker, Esq.


(k) Guarantor: N/A.


(l) Tenant's Broker: John C. Cissel/F.R. Partnership.


(m) Certain Other Defined Terms: [See Section 24.18]


If there is a conflict between this summary and the rest of this Lease, the
rest of this Lease will control.


1.2 Project. Exhibit "A" is the general site plan of the principal
------- buildings, improvements and areas that are now part of the project commonly known as Brickstone Square, Andover, Massachusetts (the "Project"). Landlord reserves the right to change the Project from time to time.


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1.3 Description of Premises. Landlord reserves the space above hung
----------------------- ceilings, below the floor and within the walls of the Premises, and the right to install, relocate, remove, use, maintain, repair and replace Systems and Equipment within or serving the Premises or other parts of the Buildings or the Project. To the extent that it does not interfere with or damage Landlord's Work and/or existing Systems and Equipment or the rest of the Building or the use and occupancy of any other tenant, Tenant, at its cost, may install wiring for its computers and equipment above hung ceilings and within the interior walls of the Premises, provided that Tenant otherwise complies with the rest of this Lease and that Landlord will have no obligations or Liabilities in connection therewith. Tenant will indemnify and hold Landlord harmless from Liabilities in connection with this wiring and installation, maintenance and removal. Tenant will maintain the wiring and, at Landlord's request, will remove the wiring and repair any damage on the expiration or earlier termination of this Lease.


2. CONSTRUCTION OF PREMISES.
------------------------


Landlord will perform "Landlord's Work" and Tenant will perform "Tenant's Work" (if any) as described in the Workletter attached as Exhibit "C" to prepare the Premises for Tenant's initial occupancy. Landlord's Work will be deemed substantially completed even if Landlord has not completed "punch list" or other minor items, as long as Landlord agrees to complete these items. Tenant's final punch list will be submitted to Landlord within thirty (30) days after Landlord notifies Tenant that Landlord's Work is substantially completed. At Landlord's option, certification by Landlord's architect of the substantial completion of Landlord's Work or the issuance of a temporary or final certificate of occupancy will be binding on the parties as to the date of substantial completion. Notwithstanding the foregoing, Landlord's Work will not be deemed substantially complete if any uncompleted item of Landlord's Work renders the Premises untenantable.


3. POSSESSION AND SURRENDER OF PREMISES.
------------------------------------


When this Lease terminates, Tenant will remove all of its signs, movable trade fixtures and equipment, inventory and other personal property ("Tenant's Property"). Tenant's Property remaining after termination will be deemed abandoned and Landlord may keep, sell, destroy or dispose of it without any Liabilities to Tenant. Tenant will repair all damage and surrender the Premises broom clean and in good order, condition and repair, and otherwise in the same condition as on the Rent Commencement Date, normal wear and tear excepted.


4. TERM.
----


The Lease term begins on the date of this Lease and ends August 31, 2002, unless terminated earlier in accordance with this Lease or extended per Rider #2. A "Lease Year" is a period of twelve (12) consecutive calendar months during the Lease term, starting with the Rent Commencement Date. However, the first Lease Year is the first twelve (12) full calendar months plus the partial month (if any) after the Rent Commencement Date if the Rent


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Commencement Date is not the first day of the month, and the last Lease Year may be less than twelve (12) months if the Lease is terminated early.


5. RENT.
----


Tenant will pay the annual base rent as shown in Exhibit "D" in equal monthly installments in advance beginning on the Rent Commencement Date and thereafter on the first day of each month during the term, prorated for any portion of a month. The term "rent" includes base rent, additional rent and all other amounts to be paid by Tenant under this Lease, whether or not specifically described as rent. All rent due under this Lease will be paid without demand, deduction, counterclaim or offset of any type in lawful U.S. legal tender at 433 North Camden Drive, Suite 960, Beverly Hills, California 90210, Attn: Accounting Dept., or to such other person or place as Landlord may from time to time designate by written notice pursuant to this Lease. Tenant will pay the first month's base rent when it executes this Lease.


6. TAXES.
-----


6.1 Definition of Taxes. "Taxes" means all taxes, assessments, and other
------------------- governmental or quasi-governmental levies, charges and fees imposed against, for or in connection with all or any portion of: the Project; the use, ownership, leasing, occupancy, operation, management, repair, maintenance, demolition or improvement of the Project; Landlord's right to receive, or the receipt of, rent, profit or income from the Project; improvements, utilities and services, whether because of special assessment districts or otherwise; the value of Landlord's interest in the Project; a reassessment due to any change in ownership or other transfer of all or any portion of the Project; and fixtures, equipment and other real or personal property used by Landlord in connection with the Project. Taxes also include, without limitation, license fees, sale, use, capital and value-added taxes, penalties, interest and costs incurred in contesting taxes, and any governmental or quasi-governmental charges or taxes in addition to, in substitution or in lieu of, partially or totally, any taxes or charges previously included within this definition, including taxes or governmental or quasi-governmental charges completely unforeseen by the parties and collected from whatever source. Taxes do not include: Landlord's federal,
-------------------- state or municipal net income, franchise, excise, inheritance, gift or estate taxes.


6.2 Payment of Taxes. Subject to Article 9, as of the Rent Commencement
---------------- Date Tenant will pay its Tenant's Percentage of all Taxes directly to Landlord as additional rent within ten (10) days after receipt of Landlord's bill.


6.3 Tenant's Taxes. Tenant will pay before delinquency all taxes,
-------------- assessments, license fees and charges levied, assessed or imposed on Tenant, Tenant's business operations and Tenant's Property.


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7. OPERATING COSTS.
---------------


7.1 Definition of Operating Costs. "Operating Costs" are all costs and
----------------------------- expenses incurred in connection with the Project and its ownership, operation, management, maintenance, repair, replacement and improvement, including, without limitation, costs for: services, costs and utilities not otherwise directly paid or reimbursed by tenants; materials, supplies and equipment; deductibles under Landlord's insurance policies; wages and payroll, including bonuses, (all of which, for existing employees, will not increase by more than ten percent (10%) per annum, cumulative, and, for employees subsequently hired, will not increase by more than ten percent (10%) per annum, cumulative, over their initial wages and payroll, including bonuses); fringe benefits, workers compensation and payroll taxes; professional and consulting fees; management fees at prevailing rates or, if no managing agent is retained, an amount in lieu thereof not in excess of prevailing rates; complying with any laws and insurance requirements; "environmental audits" deemed necessary by Landlord (but no more than once per year); and the Common Area (including the parking area). Operating Costs do not
---------------------- include: Taxes, depreciation of the Project structures and improvements; - ------- Landlord's loan or ground lease payments; brokerage commissions; marketing costs; legal fees and costs to enforce any leases; and costs to construct new leasable area in the Project. If Landlord in the future leases space to other tenants on a gross rather than net basis, Operating Costs will not thereby be increased over what they would have been if Landlord had leased on a net basis.


7.2 Payment of Operating Costs. Subject to Article 9, as of the Rent
-------------------------- Commencement Date Tenant will pay its Tenant's Percentage of Operating Costs described in Section 7.1, both as additional rent within fifteen (15) days after receipt of Landlord's bill.


7.3 Building Operating Costs. From time to time, Landlord may determine
------------------------ that certain costs otherwise included within the definition of Operating Costs more properly relate only or primarily to the Building (as a hypothetical example, elevator maintenance). If Landlord so elects, these costs will be deducted from Operating Costs and allocated only to tenants of the Building, Tenant's share of these costs will be calculated by dividing Tenant's rentable square footage by the rentable square footage [***] in the Building, and Tenant will pay its share of these costs in the manner described in Section 7.2.


8. INSURANCE.
---------


8.1 Tenant's Insurance.
------------------


(a) Tenant will maintain during the term:


(i) Comprehensive general public liability insurance (Broad
Form CGL), with contractual liability, cross-liability and fire legal
liability endorsements, protecting against all claims and liabilities
for personal, bodily


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and other injuries, death and property damage including, without
limitation, broad form property damage insurance, automobile and
personal injury coverage. This insurance also will insure Tenant's
indemnities pursuant to this Lease. The amount of this insurance will
not be less than $5,000,000.00 combined single limit for each
occurrence.


(ii) "All risk" casualty insurance, covering all of the Tenant's
Work, Tenant's Property and all Alterations made by or for the benefit
of Tenant. This insurance will be for full replacement value.


(iii) [INTENTIONALLY OMITTED]


(iv) Worker's compensation insurance in statutory limits, and
employer's liability insurance of not less than $1,000,000.00.


(v) Builder's risk insurance (completed value form) for work
required of or permitted to be made by Tenant. The amount of this
insurance will be reasonably satisfactory to Landlord and must be
obtained before any work is begun.


(b) All policies of insurance carried by Tenant must: name Landlord
and its designees as additional insureds; contain a waiver by the insurer
of any right to subrogation against Landlord and its Affiliates; be from
insurers acceptable to Landlord; and state that the insurers will not
cancel, fail to renew or modify the coverage without first giving Landlord
and any other additional insureds at least thirty (30) days prior written
notice.


(c) Tenant will supply copies of each paid-up policy or a certificate
from the insurer certifying that the policy has been issued and complies
with all of the terms of this Article. The policies or certificates will be
delivered to Landlord within thirty (30) days after this Lease is signed
and renewals provided not less than thirty (30) days before the expiration
of the coverage. Landlord always may inspect and copy any of the policies.
Tenant waives any right to recover against Landlord for Liabilities in
connection with any type of cause or peril which is supposed to be insured
against under the insurance policies required to be maintained by Tenant.


8.2 Landlord's Insurance; Payment; and Waiver of Subrogation.
--------------------------------------------------------


(a) Landlord will maintain casualty, liability and other insurance
policies in such amounts, with such deductibles and providing protection
against such perils as Landlord determines to be necessary in its sole
discretion (which may include, without limitation, rental loss insurance
policies). All losses on all policies maintained pursuant to this Article
will be settled in Landlord's name (or as otherwise designated


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by Landlord) and proceeds will belong and be paid to Landlord. Landlord
makes no representations or warranties as to the adequacy of any insurance
to protect Landlord's or Tenant's interests. Landlord's insurance policies
will contain waivers of subrogation.


(b) Subject to Article 9, Tenant will pay directly to Landlord as
additional rent Tenant's Percentage of the cost of all premiums for
Landlord's insurance for the Project within fifteen (15) days after receipt
of Landlord's bill.


(c) Tenant and its Affiliates will not undertake, fail to undertake
or permit any acts or omissions which will in any way increase the cost of,
violate, void or make voidable all or any portion of any insurance policies
maintained by Landlord, unless Landlord gives its specific written consent
and Tenant pays all increased costs directly to Landlord on demand.


9. MONTHLY PAYMENT OF TAXES, OPERATING COSTS AND INSURANCE PREMIUMS.
----------------------------------------------------------------


At any time and from time to time, and subject to later change, Landlord may elect to have Tenant pay Tenant's share of Taxes, Operating Costs and Landlord's insurance premiums (or any of them) in monthly installments, in advance on the first of each month, based on amounts estimated by Landlord (as revised from time to time). If these estimated monthly payments are required, after the end of each tax fiscal year, Lease Year or other relevant periods selected by Landlord, Landlord will deliver to Tenant a statement of the actual amounts due for the period. Any additional amounts due from Tenant will be payable as additional rent within fifteen (15) days after receipt of Landlord's statement, and any overpayment by Tenant will be refunded by Landlord or deducted from the next monthly installments due for that particular payment category. Quarterly, or less frequently, Landlord may deliver a bill to Tenant for Tenant's share of Taxes, Operating Costs or insurance premiums, and Tenant will pay the amount due to Landlord as additional rent within fifteen (15) days (ten (10) days for Taxes) after receipt of Landlord's bill. Tenant will receive a credit for any estimated monthly payments already paid by Tenant for the period covered by that bill.


10. UTILITIES.
---------


Landlord will be solely responsible for bringing utility services to the Premises to the extent now existing and/or as provided as part of Landlord's Work in Exhibit "C". Tenant will pay when due to the furnishing parties all fees and costs for utility services, and meters and equipment (to the extent not supplied as part of Landlord's Work), furnished to the Premises, including, without limitation, telephone, electricity, HVAC, sewer, water and gas (if furnished). If utilities and services for the Premises are not separately metered or charged, Tenant will pay its share (as reasonably determined by Landlord) of such costs directly to


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Landlord as additional rent, either monthly when base rent is due, or within fifteen (15) days after receipt of Landlord's bill, at Landlord's option. Landlord is not responsible for any Liabilities incurred by Tenant or Tenant's Affiliates nor may Tenant abate rent, terminate this Lease or pursue any other right or remedy against Landlord or Landlord's Affiliates, as a result of any termination or malfunction of any utilities or utility systems.


11. USE OF PREMISES.
---------------


Tenant will use the Premises for the purposes described in Section 1.1(h), but for no other purpose. Tenant will:


(a) Operate its business in an attractive and first class manner.
Tenant will not permit any objectionable or unreasonable noises,
vibrations, odors or fumes in or to emanate from the Premises, nor commit
or permit any waste, improper, immoral or offensive use of the Premises,
any public or private nuisance or anything that disturbs the quiet
enjoyment of the other tenants, licensees, occupants or customers of the
Project. All deliveries and pickups must be conducted at times and in the
manner reasonably prescribed by Landlord. All trash and waste products must
be stored, discharged, processed and removed in the manner prescribed by
Landlord, and so as not to be visible to other tenants or create any health
or fire hazard.


(b) Install only window coverings and treatments approved by Landlord
and, once installed, keep them sufficiently closed to shield from outside
view any machinery or other equipment that Landlord determines is unsightly
or inconsistent with that portion of the Project. Tenant will vent only
through louvres in the windows of the Premises, but Tenant may not detach
those louvres.


(c) Not permit any coin or token operated vending, video, pinball,
gaming or other mechanic
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