Exhibit 10.32
CONSENT TO SUBLEASE
Consent to Sublease, dated February 19, 1999, by and among Xenergy, Inc., a
Massachusetts corporation with a principal office at Three Burlington Xxxxx
Drive, Burlington, Massachusetts 01803-4543 ("Sublandlord"), Xxxxxxx.xxx,
Inc., a Delaware corporation with a principal office at 00-X Xxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("Subtenant"), and Three Burlington Xxxxx LLC, a
Massachusetts limited liability company, with a principal office c/o Finard &
Company, LLC, Three Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Landlord").
Landlord is the owner of certain property located at Three Burlington Xxxxx
Drive in Burlington, Massachusetts, a portion of which (the "Premises") has
been leased to Sublandlord under a lease (the "Lease") dated March 28, 1991.
Sublandlord wishes to sublease a portion of the Premises (the "Subleased
Premises") to Subtenant pursuant to a Sublease, dated February 15, 1999, a
true, accurate and complete copy of which is attached hereto as Exhibit A
(the "Sublease").
Pursuant to the Lease, Sublandlord, as the tenant thereunder, may not sublet
the Premises without first obtaining Landlord's written approval.
In consideration of their mutual covenants contained herein, and intending to
be bound hereby, the parties agree as follows:
1. Subtenant understands and agrees that the Sublease is in fact a
sublease of Sublandlord's interest in the Lease; and the Sublease is subject
to the provisions of the Lease and is subordinate thereto. In the event the
Lease shall be canceled or terminated for any reason, the term of the Sublease
shall automatically terminate as of the date of such cancellation or
termination.
2. Subtenant covenants that, notwithstanding any provisions of the
Sublease to the contrary, Subtenant shall not commit, or suffer to be
committed, any act or omission in violation of the provisions of the Lease,
and Subtenant agrees directly with Landlord to be bound by all the
obligations of the Sublandlord thereunder with respect to the subleased
Premises subleased by Subtenant, with the exception of rent and additional
rent which is governed by the Sublease.
3. The consent given by Landlord in this Consent shall not be deemed
to create any obligations on the part of Landlord with respect to the
Sublease or the Premises, or constitute any consent to any further sublease
or assignment, or relieve Sublandlord of its obligations under the Lease.
Sublandlord shall remain fully and primarily liable for the prompt and timely
payment of all rent, additional rent and other charges under the Lease and
for the timely performance of all of the tenant's obligations under the
Lease. Sublandlord shall be deemed to have waived any and all suretyship
defenses.
4. As a condition of Landlord's consent, Sublandlord shall reimburse
Landlord, within 30 days of receipt of Owner's invoice with supportive
evidence, for any reasonable costs (including all attorney's fees) that
Landlord incurred in connection with the consideration of the consent
contained herein.
5. Landlord hereby consents to the sublease of the Premises to
Subtenant pursuant to the Sublease.
6. This Consent is given and conditioned upon all of the following
additional terms, conditions and agreements:
(a) This Consent shall not be deemed Landlord's consent to any
work or alterations of the Subleased Premises or any signage, all
of which require the
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Landlord's prior written consent pursuant to the terms of the
Lease, except Landlord approves of the altercations described on
Exhibit B to the Sublease.
(b) Simultaneously with the execution of this consent, Subtenant
shall deliver to Landlord a certificate or certificates of
insurance confirming that the required insurance is in force and
all premiums are current, and naming Landlord and its managing
agent, Finard & Company, LLC, as additional insureds.
(c) Owner shall promptly be provided with copies of all written
notices given or received by either Sublandlord or Subtenant under
the Sublease.
(d) Except in the case of an emergency situation, all
communications or requests, written or oral, which Subtenant desires
to make to Landlord regarding the leases, the Premises or any
portion thereof, or services, operations and management of the
property, shall be communicated and made to Landlord solely by and
through Sublandlord.
(e) Sublandlord and Subtenant each hereby confirm and agree that
Subtenant does not have the right to sublet its interests in the
Subleased Premises or to assign its rights under the Sublease
without, in each such instance, first obtaining the Landlord's
prior written consent, which consent may be withheld at the
Landlord's sole and absolute discretion.
(f) Following the occurrence of a default under the Lease, Owner,
in addition to any other remedies provided hereunder or at law, may
at its option collect directly from Subtenant all rents becoming
due to the Sublandlord under the Sublease and apply such rent
against any amounts due Landlord by Sublandlord under the Lease;
and it is understood that no such election or collection or payment
shall be construed to constitute a novation of the Lease or a
release of Sublandlord hereunder, or to create any lease or
occupancy agreement between the Landlord and Subtenant or impose
any obligations on Landlord, or otherwise constitute the
recognition of the Sublease by Landlord for any purpose.
(g) Notwithstanding anything in the Sublease to the contrary, any
right under the Lease to extend the term may be exercised solely by
Sublandlord and solely in accordance with the terms and conditions
of the Lease.
7. Sublandlord hereby certifies that the Lease is in full force and
effect, that there have been no modifications or amendments thereto, that all
rent, additional rent and other payments due under the Lease as of the date
hereof have been paid by Sublandlord, and, as of the date hereof, to the
Sublandlord's knowledge, there exists no default under the Lease.
[see next page for signatures]
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Executed under seal on the above-written date.
SUBTENANT: SUBLANDLORD:
XXXXXXX.XXX, INC. XENERGY INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xxxxx Xxxxxxx Name: Xxxx X. Xxxxxx
Title: President Title: Treasurer
Duly authorized Duly authorized
LANDLORD:
THREE BURLINGTON XXXXX LLC
By: Burlington Xxxxx Building III Joint Venture LLP
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, as General Partner of
Finard Burlington Company Limited Partnership
By: /s/ Xxxxxxx X. Xxxxx by Attorney in Fact
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Xxxxxxx X. Xxxxx
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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EXHIBIT A
SUBLEASE
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