SUBLEASE
SUBLEASE made as of February 15, 1999 by and between Xenergy Inc., a
Massachusetts corporation with a principal office at Three Burlington Xxxxx
Drive, Burlington, Massachusetts 01803-4543 (the "Sublandlord"), and
Xxxxxxx.xxx, Inc., a Delaware corporation, with a principal office at 00-X
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Subtenant").
WITNESSETH:
WHEREAS, pursuant to that certain Lease dated March 28, 1991 (the
"Master Lease"), a copy of which has been delivered to Subtenant, Xxxxx X.
Hekiman and Xxxxxxx X. Xxxxxx as Trustees of Burlington Xxxxx Office Trust No.
III under Declaration of Trust dated March 1, 1984 and recorded with the
Middlesex South Registry of Deeds in Book 15673, Page 31, as amended (herein
referred to as "Original Landlord"), leased to Sublandlord, as Tenant, certain
premises located in the fourth floor of the building known as and numbered Three
Burlington Xxxxx Drive, Burlington, Massachusetts, as more particularly
described in the Master Lease (the "Demised Premises") Three Burlington Xxxxx
LLC (the "Landlord") is the successor to the Original Landlord as landlord under
the Master Lease; and
WHEREAS, subject to the agreements, covenants and conditions herein
contained Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes
to sublease to Sublessee, a portion of the Demised Premises containing 9,731
square feet of rentable space, and being shown on the plan attached hereto as
Exhibit A (the "Subleased Premises");
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEMISE.
1.1 Sublandlord, in consideration of the rents herein reserved and of
the agreements, covenants and conditions herein contained and expressed on the
part of Subtenant to be kept, performed and observed, hereby demises and lets
unto Subtenant and Subtenant hereby leases from Sublandlord the Subleased
Premises. The Subleased Premises are leased in an "as is" condition.
The foregoing notwithstanding, Subtenant may, at its sole cost and expense,
make the alterations and improvements described in Exhibit B attached hereto
(the "Tenant Improvements"), using one or more responsible contractors, and
pursuant to plans and specifications, first approved by Sublandlord. All such
Tenant Improvements shall be made in a good and first class workmanlike manner
employing materials of good quality and so as to conform with all applicable
provisions of the Master Lease and applicable zoning, building, fire, health and
other codes, regulations, ordinances and laws. Subtenant shall pay promptly when
due the entire cost of such Tenant Improvements so that the Subleased Premises
shall at all times be free of liens for labor and materials. Any contractor or
other person undertaking such Tenant Improvements shall be covered by
worker's compensation insurance and evidence thereof shall be furnished to
Sublandlord prior to the performance by such contractor or person of any such
work to the Subleased Premises.
Subject to the terms and conditions of Section 2.2 of the Master
Lease, Subtenant shall have available for its use and that of its employees and
invitees a number of parking spaces equal to 3.3 per 1,000 square feet of
rentable space included in the Subleased Premises. Such parking spaces shall be
used by Subtenant, its employees and invitees in common with others entitled
thereto.
Subject to Landlord's approval, Subtenant at its expense may install a
sign at the Building entrance and have its name and location placed in the
tenant directory in the Building lobby.
Sublandlord will also lease to Subtenant during the term hereof at no
additional charge certain office furniture, as more particularly described in
Exhibit C attached hereto, for use in the Subleased Premises during the term
hereof. Subtenant acknowledges that Sublandlord has made no representations or
warranties regarding any such furniture, and Subtenant shall be responsible for
any damages to such leased furniture, wear and tear excepted. The cost to
Subtenant for any such damage shall not exceed the fair market value of such
damaged furniture.
2. TENANCY-AT-WILL; TERM.
2.1 Subtenant hereby acknowledges and agrees that it shall be a tenant
at will of the Subleased Premises at all times from the Commencement Date until
the Conversion Date, as those terms are hereinafter defined. The "Commencement
Date" shall mean that date which is the earlier of (i) February 15, 1999; or
(ii) the date on which Subtenant takes occupancy of the Subleased Premises. The
"Conversion Date" shall mean that date on which Subtenant enters into a
financing arrangement with a commercial bank or other institutional lender for
greater than $2 millon and pays the Additional Deposit as provided in Section
4.1 hereof. Anything in this Sublease to the contrary notwithstanding, in the
event that Subtenant does not enter into such financing arrangement and does not
pay the Additional Deposit to Sublandlord on or before June 30, 1999, then this
Sublease shall be deemed to terminate automatically on such date without further
action or notice by Sublandlord, and Sublandlord shall have all rights and
remedies pursuant to the provisions of this Sublease and applicable law. The
period prior to the Conversion Date or termination of this Sublease pursuant to
the foregoing sentence shall be hereinafter referred to as the "Tenancy at
Will".
2.2 Provided that this Lease is not terminated pursuant to the
provisions of Section 2.1, on the Conversion Date the Tenancy at Will shall be
converted to a subleasehold having a term (the "Fixed Term") commencing on the
Conversion Date and ending on August 15, 2000, unless sooner terminated in
accordance with the terms hereof.
3. RENT.
3.1 Subtenant covenants and agrees to pay to Sublandlord, at its
address
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first hereinabove written or at such other address as Sublandlord may by notice
in writing to Subtenant from time to time direct, on the Commencement Date and
thereafter, monthly, in advance, on the fifteenth day of each month during the
Tenancy at Will or the Fixed Term, as the case may be, fixed rent (the "Fixed
Rent") in a monthly amount equal to (i) $10,750.00 (the "Abated Rental Rate")
during the first six (6) months from and after the Commencement Date, it being
acknowledged that during such six (6) month period Subtenant shall pay rent at
the annual rate of $21.50 per square foot of rentable space with respect to a
portion of the Subleased Premises consisting of 6,000 square feet of rentable
space shown on Exhibit A, and that during such six (6) month period Subtenant
shall receive a rent abatement with respect to the remainder of the Subleased
Premises; and (ii) $17,434.71 (the "Full Rental Rate") during the remainder of
the term, representing annual rent in the amount of $21.50 per square foot of
rentable space with respect to the entire Subleased Premises.
Fixed Rent for any partial month shall be paid by Subtenant at such
rate on a pro rata basis, and if the Tenancy at Will or the Fixed Term commences
on a day other than the fifteenth day of a calendar month, the first payment
which Subtenant shall make shall be a payment equal to a proportionate part of
such monthly Fixed Rent for the partial month from the Commencement Date to the
fifteenth day of the succeeding calendar month, and the monthly Fixed Rent for
such succeeding calendar month.
3.2 The parties agree that the Fixed Rent payable by Subtenant
hereunder is intended to be gross rent inclusive of charges for daily
cleaning and gas furnished to the Subleased Premises, which are not
separately metered, and that Subtenant shall not be responsible for payment
of any portion of any Tax Amount Escalation Factor or any Operating Base
Escalation Factor (as those terms are defined in the Master Lease) which may
be payable by Sublandlord to Landlord pursuant to the Master Lease or any
other charges under the Master Lease not specifically identified herein.
Notwithstanding the foregoing, Subtenant shall be responsible for its pro
rata share (based on a ratio in which the rentable square foot area of the
Subleased Premises is the numerator and the rentable square foot area of the
Demised Premises is the denominator) of charges for electricity for lighting
and equipment utilized at the Demised Premises, currently estimated to be 85
CENTS per square foot of rentable space per year. Subtenant's share of such
electricity charges shall constitute additional rent ("Additional Rent")
hereunder, and shall be due and payable by Subtenant in each month on the
same date that Fixed Rent is due and payable. Sublandlord shall provide
Subtenant with monthly statements containing a calculation of Subtenant's pro
rata share of such electricity charges during each month in which Subtenant
occupies the subleased Premises. Subtenant also agrees that it shall be
responsible for all costs and expenses ("Overtime HVAC Expenses") associated
with the provision of HVAC services that Subtenant requests to be provided to
the Subleased Premises at times other than Normal Building Operating Hours,
which term is defined in the Master Lease to include the hours of 8:00 A.M.
to 6:00 P.M. Monday through Friday. Subtenant shall pay all such Overtime
HVAC Expenses as Additional Rent promptly upon receipt of Sublandlord's
invoice therefor.
3.3 All other costs and expenses which Subtenant is required to pay
under this Sublease, including without limitation costs for additional services
or additional utilities supplied to the Subleased Premises by Sublandlord or
Landlord, if any, together with all penalties that may accrue thereon in the
event of the Subtenant's failure to pay
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such amounts, and all damages, costs and expenses which Sublandlord may incur by
reason of any failure by Subtenant to comply with the terms of this Sublease,
shall be deemed to be Additional Rent when due and payable. Sublandlord shall
have all rights and remedies with respect to such failure as Sublandlord has for
the non-payment of Fixed Rent.
3.4 Subtenant shall pay to Sublandlord a late charge of one percent
(1.0%) per month on all amounts due to Sublandlord under this Sublease which are
not paid within five (5) days from the date that the same shall become due and
payable.
4. SECURITY DEPOSIT.
4.1 In addition to the amount paid by Subtenant to Sublandlord
pursuant to Section 3.1 to be applied toward the first monthly rental payment
hereunder, Subtenant has this day deposited with Sublandlord the sum of
$10,750.00 (the "Initial Deposit") (representing one month's Fixed Rent at the
Abated Rental Rate) as security for the full and faithful observance, payment
and performance by Subtenant of all the terms, covenants and conditions of this
Sublease upon Subtenant's part to be performed. On the Conversion Date Subtenant
shall deposit with Sublandlord the additional sum of $21,500.00 (the "Additional
Deposit") (representing an additional two months' Fixed Rent at the Abated
Rental Rate). The Initial Deposit and the Additional Deposit shall be
collectively referred to hereinafter as the "Security Deposit". Such sums shall
be returned to Subtenant within a reasonable time, which shall not exceed thirty
(30) days, after the expiration of the term provided Subtenant shall have fully
and faithfully observed, paid and performed all of the said terms, covenants and
conditions. If all or any part of the Security Deposit is applied to an
obligation of Subtenant hereunder, Subtenant shall immediately upon request by
Sublandlord restore the Security Deposit to its original amount. Subtenant shall
not have the right to call upon Sublandlord to apply all or any part of the
Security Deposit to cure any default or fulfill any obligation of Subtenant, but
such use shall be solely in the discretion of Sublandlord. Provided that
Sublandlord gives Subtenant written notice of the name of such grantee or
transferee, upon any conveyance by Sublandlord of its interest under this
Sublease, the Security Deposit may be delivered by Sublandlord to Sublandlord's
grantee or transferee. Upon any such delivery, Subtenant hereby releases
Sublandlord herein named of any and all liability with respect to the Security
Deposit, its application and return, and Subtenant agrees to look solely to such
grantee or transferee, provided that such grantee or transferee agrees in
writing to be bound by all of the same terms and conditions by and between
Sublandlord and Subtenant contained in this Sublease and the Master Lease. It is
further understood that this provision shall also apply to subsequent grantees
and transferees.
5. PERMITTED USES.
5.1 Subtenant shall use the Subleased Premises for business office use
and other uses incidental thereto to the extent permitted by law and consistent
with the use of the Building as a so-called first-class office building and for
no other purposes.
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6. NO ASSIGNMENT OR SUBLETTING.
6.1 Subtenant may not assign this Sublease or sublet any portion of
the Subleased Premises under any circumstances.
7. CONDITION OF THE PREMISES.
7.1 Subtenant acknowledges that except as otherwise expressly provided
herein, neither Sublandlord nor any person on behalf of the Sublandlord has made
any warranties or representations regarding the condition or suitability of the
Subleased Premises, and that Subtenant has inspected the Subleased Premises to
its satisfaction prior to the execution of this Sublease.
8. SURRENDER.
8.1 At the termination of this Sublease, Subtenant shall surrender the
Subleased Premises to Sublandlord, broom clean with all alterations, additions
and improvements thereto, in as good condition as on the date of delivery to
Subtenant or as the Subleased Premises may be put in during the term of the
Sublease, reasonable wear and tear and loss by fire and casualty excepted. For
each day after termination of the Tenancy at Will as provided in Section 2.1 or
the expiration of the term, as the case may be, or the earlier termination of
this Sublease, and prior to Subtenant's performance of its obligations to
surrender the Demised Premises under this Article 8, Subtenant shall (i) pay to
Sublandlord rent in two (2) times the Fixed Rent computed on a daily basis,
together with all Additional Rent payable with respect to each such day, and
(ii) defend, indemnify and hold harmless the Sublandlord from and against all
loss, claims, cost and damage resulting from Subtenant's delay in surrendering
the Subleased Premises as above provided.
9. INSURANCE.
9.1 Subtenant shall obtain prior to the Commencement Date, and shall
keep in force at all times thereafter, Comprehensive General Liability Insurance
in accordance with the broadest form of such coverage as is available from time
to time in the jurisdiction in which the Subleased Premises are located naming
Sublandlord and Landlord as additional insureds and insuring Subtenant against
liability for injury to persons and damage to property, covering all Subtenant's
obligations under this Sublease. The minimum limits of liability of such
insurance shall be $1 million per occurrence, Bodily Injury Liability (including
death) and Property Damage Liability, and shall be for such higher limits, if
directed by Landlord, as are customarily carried in that area in which the
Building is located upon property similar to the Building.
9.2 All insurance required under Section 9.1 above shall be written
with Subtenant's current insurance company or companies reasonably satisfactory
to Landlord and Sublandlord and in forms customarily in use from time to time
in the locality of the Subleased Premises. Subtenant shall, upon request,
furnish the Landlord and Sublandlord with duplicates of certificates of said
policies, and said policies shall provide that the coverage thereunder may not
lapse, be modified, cancelled, or its renewal be refused without ten (10) days
prior written notice to Landlord, Sublandlord and Subtenant and if required by
Sublandlord or Landlord, to holders of mortgages on the Subleased Premises.
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10. INCORPORATION OF PROVISIONS OF
MASTER LEASE BY REFERENCE.
10.1 Except as otherwise expressly provided herein, all of the terms,
covenants and conditions of the Master Lease are incorporated herein by
reference and made a part hereof with the same force and effect as if set forth
herein in their entirety, it being understood and agreed that such terms and
conditions shall fix the obligations of Subtenant with the same effect as if
Subtenant were the tenant in the Master Lease; provided, however, that whenever
the terms and conditions of the Master Lease are contradictory to or
inconsistent with the terms and conditions hereof, the terms and conditions
hereof shall be controlling; provided further that (a) nothing herein contained
shall be construed to derogate from the obligations of the Sublandlord and
Subtenant to comply with the provisions of the Master Lease; and (b) those
incorporated provisions of the Master Lease which are protective and for the
benefit of the Landlord shall in this Sublease be deemed to be protective and
for the benefit of both the Landlord and Sublandlord, and those provisions of
the Master Lease which are protective and for the benefit of the Tenant shall be
deemed to be protective and for the benefit of the Tenant and Subtenant.
11. COVENANTS OF THE PARTIES.
11.1 Subtenant covenants and agrees to perform and observe all the
terms, covenants and conditions applicable to the Subleased Premises and
required to be performed by Sublandlord as Lessee under the Master Lease, except
for the obligation to make payments of rent (including additional rent) to
Landlord or as otherwise provided herein. Subtenant further agrees that
Subtenant's performance of all such obligations shall be performed by Subtenant
for the benefit of Sublandlord as well as for the benefit of Landlord, and that
Sublandlord shall have, with respect to Subtenant, this Sublease and the
Subleased Premises, all of the rights and benefits provided to the Landlord by
the Master Lease. Subtenant will exonerate, indemnify and hold harmless
Sublandlord from and against any and all claims, suits, obligations, liabilities
and damages, including without limitation reasonable attorneys' fees and
disbursements, resulting from the inaccuracy of Subtenant's representations
and warranties and the failure by Subtenant to perform, fulfill or observe
Subtenant's covenants and agreements set forth in this Sublease.
11.2 This Sublease and all of the terms, covenants, representations,
warranties, agreements and conditions hereof are in all respects subject and
subordinate to the Master Lease, and Subtenant covenants and agrees with
Sublandlord not to do or permit to be done any act of commission or omission
which would constitute a violation or default under the Master Lease if done or
permitted to be done by Sublandlord.
11.3 Sublandlord shall, upon written request by Subtenant, use
reasonable efforts to obtain from Landlord all permissions and consents needed
by Subtenant to perform any act permitted by this Sublease when such permissions
or consents are required by reason of the incorporation by reference of the
terms, covenants and conditions of the Master Lease. Subtenant shall reimburse
Sublandlord upon demand for the reasonable costs and expenses (including
reasonable attorney fees) incurred by
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Sublandlord in obtaining or pursuing such permissions and consents provided that
such fees shall be shared by Sublandlord and Subtenant on a proportionate basis
in any instance in which Sublandlord is also seeking any such permission or
consent for its own benefit.
11.4 Provided that Subtenant is not in default hereunder, Subtenant
shall be entitled to the benefit of Landlord's obligations under the Master
Lease to the extent such obligations relate to the Subleased Premises.
Notwithstanding anything contained herein or in the Master Lease to the
contrary, however, but subject to Section 11.5 of this Sublease, Sublandlord
shall not be responsible for the performance of the Landlord's obligations under
the Master Lease, and Sublandlord shall not be liable in damages or otherwise
for any negligence of Landlord or for any damage or injury suffered by Subtenant
as a result of any act or failure to act by Landlord, or any default by Landlord
in the performance of its obligations under the Master Lease, nor shall any such
action, failure to act, or default by Landlord constitute a constructive
eviction or default by Sublandlord hereunder.
11.5 In the event of any breach of Landlord's obligations under the
Master Lease, Sublandlord hereby authorizes Subtenant to deal directly with
Landlord with respect to said breach. In the event that Landlord fails to remedy
such breach after such request from Subtenant, Sublandlord, upon the written
request of Subtenant shall, if necessary, commence and diligently prosecute
proceedings to enforce, in its own name and for the benefit of Subtenant, the
performance of any of Landlord's obligations under the Master Lease which
Landlord wrongfully fails or refuses to perform. Should Subtenant so request
Sublandlord and such enforcement of Landlord's obligations under the Master
Lease shall be for the sole benefit of Subtenant, then Subtenant shall indemnify
Sublandlord and save Sublandlord harmless from and against any and all
liabilities, obligations, claims, damages, fines, penalties, causes of action,
costs and expenses (including without limitation reasonable attorney fees and
disbursements) imposed upon or incurred by or asserted against Sublandlord by
reason of any action or inaction by Sublandlord and/or Subtenant to enforce any
obligations of Landlord under the Master Lease for the benefit of Subtenant.
Should Subtenant so request Sublandlord, and the enforcement of Landlord's
obligations under the Master Lease shall be of mutual benefit to Sublandlord and
Subtenant, then the costs and expenses of any such enforcement proceedings shall
be shared by Sublandlord and Subtenant in proportion to the benefit conferred.
Sublandlord shall promptly provide Subtenant with a copy of any notice by
Sublandlord to Landlord with respect to any matter materially affecting the
Subleased Premises.
11.6 Sublandlord shall not incur any liability whatsoever to Subtenant
for any injury, inconvenience, incidental or consequential damages incurred or
suffered by Subtenant as a result of the exercise by Landlord of any of the
rights reserved to Landlord under the Master Lease, nor shall such exercise
constitute a constructive eviction or a default by Sublandlord hereunder;
provided, however, that Sublandlord shall be liable for damages to Subtenant
arising from Sublandlord's breach of its covenant in Section 11.9 hereof to
perform and observe the terms of the Master Lease, and provided further that if
and so long as a recognition agreement between Landlord and Subtenant reasonably
acceptable to Subtenant is in effect, all damages under this Section 11.6
arising from and after the effective date of such recognition agreement shall be
deemed to have been
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totally mitigated.
11.7 Sublandlord covenants that, subject to the terms and conditions
of the Master Lease and this Sublease, if and so long as Subtenant keeps and
performs each term and condition herein contained on its part to be kept and
performed, Subtenant shall not be disturbed in the enjoyment of the Subleased
Premises by Sublandlord or by anyone claiming by, through or under Sublandlord.
11.8 Sublandlord covenants and agrees that Sublandlord will not enter
into any amendment, modification or other agreement with respect to the Master
Lease which will prevent or adversely affect the use by Subtenant of the
Subleased Premises in accordance with the terms of this Sublease, or increase
the obligations of Subtenant, except as provided herein, or decrease its rights
under this Sublease, except as provided herein, or in any other way adversely
affect Subtenant, or shorten the term of this Sublease (unless acting in
accordance with the terms hereof), without the prior written consent of
Subtenant.
11.9 Sublandlord covenants and agrees to perform and observe all the
terms, covenants and conditions required to be performed by Sublandlord as
Tenant under the Master Lease, except for those obligations which Subtenant has
agreed to perform under the terms of this Sublease.
12. DEFAULTS BY SUBTENANT.
12.1 In the event that Subtenant shall default in the payment of Fixed
Rent or Additional Rent hereunder, or shall default in the performance or
observance of any of the terms, conditions and covenants of this Sublease,
Sublandlord, in addition to and not in limitation of any rights otherwise
available to it, shall have the same rights and remedies with respect to such
default as are provided to the Landlord under the Master Lease with respect to
defaults by the Tenant thereunder, with the same force and effect as though all
such provisions relating to any such default or defaults were set forth herein
in their entirety, and Subtenant shall perform with respect to the Subleased
Premises all of the obligations of the Tenant under the Master Lease with
respect to such default which are applicable thereto.
12.2 In the event of a default by Subtenant in the performance of any
of its non-monetary obligations hereunder, Sublandlord may, at its option, and
without waiving any other remedies for such default herein or at law or by
incorporation by reference of the Master Lease provided, at any time thereafter,
give written notice to Subtenant that if such default is not cured, or the cure
not commenced, within ten (10) days after receipt of such notice by Subtenant,
and if so commenced is not thereafter pursued diligently to completion,
Sublandlord may cure such default for the account of Subtenant, and any amount
paid or incurred by Sublandlord in so doing shall be deemed paid or incurred for
the account of Subtenant and Subtenant agrees to promptly reimburse Sublandlord
therefor and save Sublandlord harmless therefrom; provided, however, that
Sublandlord may cure any such default as aforesaid prior to the expiration of
any waiting period, upon 48 hours prior notice to Subtenant if reasonably
necessary to protect Sublandlord's interests under the Master Lease, or without
notice if required to prevent injury or damage to persons or property. If
Subtenant shall fail to reimburse Sublandlord upon demand for
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any amount paid for the account of Subtenant hereunder, said amount shall be
added to, and become due as a part of, the next payment of Fixed Rent due
hereunder.
13. TERMINATION; DAMAGE, DESTRUCTION OR EMINENT DOMAIN.
13.1 This Sublease shall terminate upon any termination of the Master
Lease for any reason (subject, however, to the provisions of Section 11.8
hereof) whatsoever which deprives the Sublandlord, as Tenant under the Master
Lease, of possession of that portion of the Demised Premises which is the
Subleased Premises, without any liability therefor upon the part of Sublandlord
to Subtenant and with the same force and effect as if the date of such
termination had expressly been provided in this Sublease as the date of
termination hereof.
13.2 In the event that the rent due to Landlord from Sublandlord as
Tenant under the Master Lease shall be abated as a result of damage or
destruction to the Subleased Premises or as a result of eminent domain
proceedings affecting the Subleased Premises, the rent due to Sublandlord from
Subtenant hereunder shall be proportionately abated.
13.3 Subtenant shall not be entitled to any part of any damages
awarded to Sublandlord as the result of an eminent domain proceeding; provided,
however, that Subtenant may make a claim against the condemning authority for
the value of Subtenant's trade fixtures or other personalty which Subtenant
shall be entitled to remove upon termination of the Sublease, provided that such
separate award shall not reduce the award payable to Sublandlord.
14. MISCELLANEOUS.
14.1 ADDITIONAL REPRESENTATIONS OF SUBTENANT. Subtenant hereby
represents, warrants and covenants as follows:
(i) Subtenant is a corporation duly organized, validly existing and in
good standing under the laws of Delaware, and is qualified and in good standing
as a foreign corporation in Massachusetts and in any and all other jurisdictions
in which the failure to so qualify would have a material adverse effect on its
business or operations.
(ii) The execution, delivery and performance of this Sublease by
Subtenant has been duly and validly authorized by all necessary corporate action
of Subtenant. Subtenant has all requisite corporate power and authority to enter
into this Sublease.
(iii) The execution, delivery and performance of this Sublease by
Subtenant will not violate (a) any provision of its Articles of Organization or
By-Laws; (b) any law of any jurisdiction by which Subtenant is bound; or (c) any
provision of, or result in a default or acceleration of, or result in the
creation of any lien, charge
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or encumbrance upon any asset of Subtenant pursuant to any agreement,
instrument, order, judgment or decision to which Subtenant is a party or
by which it is bound.
(iv) There is no legal, administrative, arbitration or other action
or proceeding or governmental investigation pending or, to the knowledge
of Subtenant, threatened against Subtenant, or against any officer,
director or employee thereof, which, if adversely determined, might call
into question the validity of this Sublease or which might restrict
transactions contemplated by this Sublease.
14.2 RIGHT OF ENTRY. Sublandlord shall have the right to enter the
Subleased Premises at reasonable times and upon reasonable prior notice (which
need not be in writing), except in cases of emergency, for the purpose of
inspection, maintenance and repair, exhibiting the Subleased Premises to
prospective purchasers, lenders and tenants and for any other reasonable
purpose.
14.3 SUBTENANT ACCESS. At no additional charge to Subtenant,
Sublandlord shall furnish or cause Landlord to furnish to Subtenant for use by
its employees, access cards to the Subleased Premises as described in Section
2.2 of the Master Lease. Subtenant shall provide such access cards only to its
bona fide employees, a list of which shall be provided to Sublandlord on and as
of the Commencement Date. The aforesaid list shall be updated as may be
necessary to keep it current at all times.
14.4 NOTICES. All notices, demands or other communications to be
given, made or sent by either party to the other under this Sublease shall be
deemed to have been fully given, made or sent when made in writing and delivered
by hand, or when mailed, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the party at its address first
hereinabove written, or in the case of Subtenant to the Subleased Premises, or
to such other address or addresses as may from time to time hereafter be
designated by the parties by like notice.
14.5 BINDING EFFECT. This Sublease shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective personal
representatives, successors and permitted assigns.
14.6 APPLICABLE LAW. This Sublease and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
14.7 MODIFICATION. Neither this Sublease nor any provision hereof may
be waived, modified, amended, discharged or terminated, except by an instrument
in writing signed by the party against which the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument. Any such waiver, modification,
amendment, discharge or termination of this Sublease is subject to the prior
written approval of Landlord.
14.8 APPROVAL OF LANDLORD. The obligations of the parties hereto are
conditioned upon the written approval of Landlord of this Sublease.
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14.9 SEVERABILITY. If any term or provision of this Sublease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Sublease or the application of
such term or provision to other persons or circumstances shall not be affected
thereby, and each term and provisions of this Sublease shall be valid and
enforceable to the fullest extent permitted by law.
14.10 BROKER. Each of Sublandlord and Subtenant represents and
warrants to the other that it has not dealt with any broker in connection with
the transactions contemplated by this Sublease, other than the Sublandlord's
broker, Lynch, Murphy, Xxxxx & Partners Incorporated (the "Broker"). Each party
agrees to indemnify and hold the other harmless from and against any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorney fees and
disbursements) asserted against or incurred by the other by reason of, or
arising out of, any claim for a commission or other fee by any person or firm
claiming to have dealt with the indemnifying party in connection with the
transactions contemplated by this Sublease or the negotiation hereof, it being
agreed that Sublandlord shall be solely for commissions due and payable to the
Broker with respect to such transactions.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
duly executed under seal as of the date first hereinabove written.
XENERGY INC.
By: /s/ Xxxx X. Xxxxxx
------------------------
, its Treasurer
XXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
, its President
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EXHIBIT A
SUBLEASED PREMISES
SEE ATTACHED FLOOR PLAN
-12-
EXHIBIT B
TENANT IMPROVEMENTS
Removal of approximately 4-5 simple drywalls
Carpet "patching"
"Almost to the ceiling" removal (one wall near
kitchenette and one near reception area)
ALL AS INDICATED ON THE ATTACHED FLOOR PLAN
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EXHIBIT C
LEASED FURNITURE
All Metal Desks
1-two right drawers
2-three right drawers
3-three left drawers
6-three drawers, L shaped, similar to desks in office
1-three left drawers, three right drawers with broken middle drawer
2-three left drawers, three right drawers with middle drawer
Wooden Topped Desks
1-middle drawer only
1-two right drawers, two left drawers
3-two right drawers, three left drawers
1-two left drawers, three right drawers
7-three left drawers, two right drawers with middle drawer
4-two left drawers, three right drawers with middle drawer
1-three right drawers, three left drawers with middle drawer
1-two left drawers, one right drawer with wooden drawers xxx.xxx
Wooden Desks
1-three left drawers, three right drawers
1-two right drawers, two left drawers with shelving above head
1-two right drawers with left arm, left arm contains drawers and
shelves
1-two left drawers, two right drawers
1-three left drawers, two right drawers
Cubical Desks
2
Wooden Tables
2-small
2-round
Conference Tables
1
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Folding Tables
14
Plant Stand
1-glass
Book Shelves
11-metal
1-tall wood
1-medium wood
File Cabinets
10 vertical four drawer
5-vertical two drawer
6-horizontal two drawer
2-horizontal four drawer
Cabinet
1-three drawer
Swivel Chairs
22-grey, high back with cloth arms
1-blue, medium back
1-grey, low back with cloth arms
2-grey, medium back with black arms
3-red, high back without arms
1-grey, high back with black arms
1-grey, medium, wide back with cloth arms
1-light blue, medium back without arms
4-green, medium back with black arms
1-dark green, medium back with black arms
Cloth Side Chairs
24-black and purple, low back with black arms
8-red, low, wide back with cloth arms
Plastic Side Chairs
14
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