SUBLEASE AGREEMENT
This
Sublease Agreement (the "Sublease")
is
made as of July 14, 2005 by and between CAPGEMINI
U.S. LLC,
a
Delaware limited liability company, (the "Sublessor"),
and
EMAGIN
CORPORATION,
a
Delaware corporation (the "Sublessee").
RECITALS:
A. Bellevue
Place Office Building Limited Partnership, a Washington limited partnership
(the
"Landlord")
and
Ernst & Young U.S. LLP, a Delaware limited liability partnership
("E&Y"),
entered into that certain Bank of America Office Lease and First Lease Addendum,
both dated April 20, 2000 (the "Office
Lease"),
for
certain space on the fourteenth (14th)
floor
in the Bank of America Building at Bellevue Place, 10500 NE 8th
Street,
Bellevue, Washington (the "Building"),
which
leased space is more specifically described in the Office Lease. The Office
Lease was subsequently assigned to Sublessor, formerly known as Cap Gemini
Ernst
& Young U.S. LLC, pursuant to that certain Assignment of Lease dated
February 26, 2002 (the "Assignment").
B. The
Office Lease was further amended by that certain Second Lease Addendum dated
October 23, 2003 (the "Second
Addendum").
The
Office Lease, as amended by the Second Addendum, is hereinafter referred to
as
the "Prime
Lease".
C. Sublessor
desires to sublet the Subleased Premises (as defined herein) located in the
Building to Sublessee, and Sublessee desires to sublease the Subleased Premises
from Sublessor, for the term and upon the conditions set forth
herein.
NOW,
THEREFORE, in consideration of the rent and other payments hereinafter set
forth, the covenants and agreements of the parties contained herein, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Demise.
Subject
to Section
23
hereof,
Sublessor does hereby agree to sublease the Subleased Premises to Sublessee,
and
Sublessee does hereby accept and sublease the Subleased Premises from Sublessor,
for the term and upon the conditions set forth herein.
2. Term.
Provided Landlord has consented to this Sublease pursuant to Section
23
the term
of the sublease of the Subleased Premises shall commence on July 1, 2005 (the
"Commencement
Date").
This
Sublease shall expire at 11:59 p.m. on August 31, 2009, but in no event later
than the expiration date of the Prime Lease, unless sooner terminated in
accordance with the provisions of this Sublease.
Notwithstanding
the foregoing, if the Landlord has not consented to this Sublease on or before
July 1, 2005, then Sublessor and Sublessee agree that the Commencement Date
may
be moved forward for up to an additional 31 days (i.e.
August
1, 2005) in order to further pursue such request and to accommodate the
Landlord’s requirements in connection with its review and approval thereof;
whereupon the Rent Commencement Date and the Base Rent adjustment dates
referenced in Section 5 (a) below shall also be moved forward by the same number
of days. Sublessor and Sublessee agree to use their best efforts to obtain
the
Landlord’s consent as soon as reasonably possible following the date of
execution of this Sublease.
-1-
Notwithstanding
the Commencement Date, upon execution of this Sublease, and Landlord’s consent
to the Sublease, Sublessee shall have the right to access the Subleased Premises
prior to the Commencement Date, rent-free and without any other consideration
to
Sublessor, for the purpose of installing Tenant’s fixtures and equipment.
3. Subleased
Premises.
The
"Subleased
Premises"
shall
mean approximately 18,961 rentable square feet on the 14th
floor of
the Building, as more specifically depicted on Exhibit
A
attached
hereto and made a part hereof. The Subleased Premises include all of the Leased
Premises identified in the Prime Lease.
4. Use.
The
Sublessee may use the Subleased Premises under the trade name “eMagin” solely
for general office purposes (including incidental light assembly of electronic
equipment, if and to the extent permitted in the Prime Lease or consented to
by
the Landlord), in accordance with all applicable laws, ordinances and
regulations and subject to the Incorporated Provisions (defined in Section
6
below) of the Prime Lease and this Sublease.
5. Payment
of Rent.
(a)
Beginning
on September 1, 2005 (the
"Rent
Commencement Date"),
Sublessee shall pay base rent as follows (the "Base
Rent"):
|
Dates
|
Monthly
Base Rent
|
Annual
Base Rent Per RSF
|
|
Rent
Commencement Date - June 30, 2006
|
$22,561.39
|
$14.28
/ RSF
|
|
July
1, 2006 - June 30, 2007
|
$39,028.06
|
$24.70
/ RSF
|
|
July
1, 2007 - August 31, 2009
|
$40,608.14
|
$25.70
/ RSF
|
Sublessor
hereby directs Sublessee, and Sublessee does hereby agree, that such payment
of
Base Rent and payment of all other amounts due and payable to Sublessor under
this Sublease shall be made to (and to the order of) Capgemini U.S. LLC,
Corporate Real Estate Services, One Panorama Center, 0000 Xxx Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000 (or at such other place as the Sublessor
subsequently shall designate in writing) and shall be paid in lawful money
of
the United States of America without notice or demand, and without abatement,
deduction, counter-claim or setoff. Any installment of Base Rent that is
received by Sublessor after the fifth (5th) day of the calendar month shall,
at
Sublessor's option, be subject to a late charge of ten percent (10%) of the
amount thereof and such charge shall be paid by Sublessee upon demand by
Sublessor, it being understood that the late fee described herein shall not
be
deemed a liquidated damages calculation and shall not preclude any other remedy
of Sublessor under this Sublease or at law. To the extent that this Sublease
shall commence on a day other than the first day of any calendar month, or
terminate on a day other than the last day of any calendar month, the Base
Rent
under this Sublease shall be prorated on a per diem basis for that particular
month.
-2-
(b) In
addition to payment of Base Rent as aforesaid, Sublessee shall pay to Sublessor
Operating Costs and Maintenance Expenses, as such term is defined in the Prime
Lease, with respect to the Subleased Premises, to the extent that such Operating
Costs and Maintenance Expenses exceed that which Sublessor must pay for the
calendar year 2005 (the “Base Year”). For example, if the Operating Costs and
Maintenance Expenses required to be paid by Sublessor for the Base Year are
determined to be $9.70 per foot (the “Base Year Rate”), and the Operating Costs
and Maintenance Expenses required to be paid by Sublessor for calendar year
2006
are estimated by the Landlord to be $10.70 per foot as determined pursuant
to
the Prime Lease, then Sublessee shall pay said $1.00 increase in the Base Year
Rate to Sublessor as additional rent at the same times and in the same manner
as
specified in the Prime Lease. Furthermore, to the extent that Landlord charges
Sublessor for any
service, act or utility provided to the Subleased Premises beyond the basic
services, acts and utilities that are required to be supplied by the Prime
Lease
without charge, including, without limitation, heating, air conditioning,
utilities and additional cleaning, Sublessee shall pay for such charges as
additional rent, immediately upon demand therefor to the extent such charges
relate to the Subleased Premises (the
"Additional
Rent").
(c) All
payments referenced in this Section
5,
including, without limitation, Base Rent and Additional Rent are hereinafter
referred to collectively as "Rent".
(d) Notwithstanding
the provisions of this Section 5 regarding Sublessee’s obligation to pay Rent to
Sublessor, Sublessor and Sublessee understand, acknowledge and agree that the
Base Rent and Additional Rent required to be paid by Sublessor to Landlord
under
the Prime Lease is more than the Rent required to be paid by Sublessee pursuant
to this Sublease, and that Sublessor shall continue to be obligated to pay
such
Base Rent and Additional Rent (except to the extent that Sublessee is required
to pay the excess Operating Costs and Maintenance Expenses as provided in
Section 5 (b) above) to the Landlord at the times and in the manner specified
in
the Prime Lease.
6. Certain
Provisions of Lease Incorporated.
The
following provisions of the Prime
Lease
(the "Incorporated
Provisions")
are
explicitly incorporated herein by reference and made a part hereof: Paragraphs
2.2, 6.5, Article 9, Paragraphs 10.2, 10.3, 11.2, 11.3, 12.1, 12.2, Article
13,
Article 14, Article 15, Article 16, Article 19, Article 21, Article 22, Article
23, Article 26, Paragraph 34.2, Article 37 (excluding Paragraphs 37.7 and
37.14). No consent, waiver, amendment, or other change by Landlord as permitted
under the Prime Lease of Sublessor's obligations and liabilities as tenant
under
the Prime
Lease
shall reduce or limit Sublessee's obligations and liabilities to Sublessor
hereunder unless Sublessor shall have agreed in writing that such consent,
waiver, amendment or change shall be effective hereunder. Unless the context
requires otherwise, for the period during the term of this Sublease only, (i)
references in the Incorporated Provisions to Landlord shall refer to Sublessor
(subject to the provisions of this Sublease which relieve Sublessor of any
obligation or responsibility for the performance of the obligations of Landlord
under the Prime
Lease),
(ii) references in such provisions to Tenant shall refer to Sublessee, and
(iii)
references in such provisions to the Premises shall refer to the Subleased
Premises hereunder. Sublessee expressly assumes toward Sublessor and agrees
to
perform all of the obligations, responsibilities and covenants that Sublessor
has assumed as Tenant under the Incorporated Provisions in respect of the
Subleased Premises. Sublessee acknowledges that it has received a copy of the
Prime Lease, and agrees not to do, or cause to be done, any act (whether of
omission or commission) which would result in a default under or breach of
any
term, covenant, provision or condition of the Prime Lease. Sublessee shall
not
have any expansion, contraction or similar rights (including without limitation
any rights of first offer or rights of first refusal) under the Prime Lease,
or
any rights to cancel, terminate, extend or renew the term of the Prime
Lease.
Notwithstanding
the incorporation herein of the Incorporated Provisions or anything otherwise
contained in this Sublease to the contrary,
(a) Sublessor
shall not be obligated to render or provide any of the services required to
be
provided by Landlord under the Prime Lease or the Incorporated Provisions,
respectively, and Sublessor shall not be obligated to satisfy any obligations
of
the Landlord thereunder; and
(b) Sublessor
shall not have any responsibility or liability to Sublessee (i) on account
of
any act or omission of Landlord, any default by Landlord, or breach by Landlord
of any term, covenant or condition of the Prime
Lease,
or any failure by Landlord to perform any of its obligations under the
Prime
Lease,
or (ii) by reason of any condition of or in the Building or the Subleased
Premises now or hereafter existing;
provided,
however, that Sublessor shall, at Sublessee's request and expense, take all
such
reasonable actions as Sublessee shall direct to enforce Sublessor's rights
and
remedies under the Prime
Lease
with respect to the Subleased Premises or, at Sublessor’s option, authorize
Sublessee to enforce the same in Sublessor's name. Sublessee shall indemnify
and
hold harmless Sublessor against any loss, liability, claim, cost or expense
arising out of or in connection with any actions taken pursuant to the preceding
sentence, and Sublessee shall be entitled to receive and retain any recovery
allocable to the Subleased Premises during the term of this Sublease resulting
from such actions, after recovery by Sublessor of all loss, liability, claim,
cost and expense due to Sublessor by Sublessee hereunder.
7. Net
Return.
The
payments of Sublessee hereunder to Sublessor are intended to constitute an
absolutely net return to Sublessor with respect to the Subleased Premises,
and
except to the extent of (i) the difference between the Base Rent payable
hereunder and the Base Rent payable under the Prime
Lease,
and (ii) excluding the cost of Operating Costs and Maintenance Expenses to
be
paid by Sublessor for the Subleased Premises, all costs of any kind relating
to
the Incorporated Provisions (with respect to the Subleased Premises), this
Sublease, or the use and operation of the Subleased Premises shall be the
responsibility of the Sublessee. Without limiting the generality of the
foregoing, (i) whenever Sublessee requires Landlord to furnish any service
or
perform any act for which Landlord is entitled to make a separate charge under
the Prime
Lease,
including, without limitation, heating, air conditioning and utilities,
Sublessee shall pay the same, and (ii) Sublessee shall pay to Sublessor any
charges billed to Sublessor from time to time, to the extent any such charges
are allocable, as determined by Sublessor, for services provided to the
Subleased Premises.
-3-
8. Property
Located in or about the Subleased Premises.
All
improvements, fixtures, equipment and personal property in or about the
Subleased Premises shall be in or about the Subleased Premises at the sole
risk
of Sublessee. The improvements, fixtures, equipment and personal property in
or
about the Subleased Premises as of the Commencement Date (as more particularly
described on Exhibit
B
attached
hereto and made a part hereof, the "Sublessor's
Property"),
other
than the equipment, trade fixtures and personal property of Sublessee or anyone
claiming by, through or under Sublessee shall be and remain the property of
Sublessor and shall be kept by Sublessee in good condition and repair (subject
to normal wear and tear) and shall not be removed from the Subleased Premises.
Sublessor makes no warranties of any kind or nature, whether express or implied
(including without limitation warranties of merchantability or fitness for
a
particular purpose), with respect to the Sublessor’s Property, and Sublessee
accepts the Sublessor’s Property for use during the term hereof in its "as is"
and "where is" condition. Sublessee shall insure the Sublessor's Property in
the
name of Sublessor as part of the property insurance required hereunder.
Sublessor shall have the right to enter the Subleased Premises at all reasonable
times and after giving Sublessee reasonable notice, for the purpose of, among
other things, inspecting the Subleased Premises and the Sublessor's Property.
In
consideration of the Rent payable to Sublessor, and provided that Sublessee
shall not then be in default under this Sublease, upon the end of the term
of
this Sublease (or if, this Sublease is terminated by Landlord on account of
Sublessor’s default of its obligations under the Prime Lease excluding any such
termination on account of Sublessee’s default of its obligations under this
Sublease) Sublessor shall transfer the Sublessor's Property to Sublessee in
its
"as is" and "where is" condition, with all representations and warranties
(including without limitation warranties of merchantability or fitness for
a
particular purpose) hereby waived by Sublessee. Any applicable sales, use or
similar tax or charge which may be imposed or due by reason of such use or
transfer of Sublessor’s Property shall be the sole responsibility of Sublessee,
and Sublessee agrees to pay such taxes or charges to Sublessor at any time
upon
demand (including after the termination or expiration of this Sublease).
Sublessee hereby acknowledges that it has inspected the Sublessor's Property
and
waives any and all claims against Sublessor arising out of any damage, defect
or
condition relating to the Sublessor's Property.
9. Surrender.
At the
termination of this Sublease, by lapse of time or otherwise, Sublessee shall
surrender possession of the Subleased Premises to Sublessor and deliver all
keys
to the Subleased Premises and all locks therein to Sublessor and make known
to
Sublessor the combination of all combination locks in the Subleased Premises
and
shall return the Subleased Premises and the Sublessor's Property (to the extent
the Sublessor’s Property has not been transferred to Sublessee pursuant to the
terms of Section
8
of this
Sublease) to Sublessor in broom clean condition and in as good condition as
Sublessee originally took possession, normal wear and tear excepted, failing
which Sublessor may restore the Subleased Premises and the Sublessor’s Property
to such condition and the Sublessee shall pay the cost thereof to Sublessor
on
demand. Upon or prior to such termination of this Sublease, Sublessee shall
remove all of Sublessee's personal property (but not Landlord's personal
property) and only those improvements, alterations and additions, which as
a
condition to Sublessor's or Landlord's consent to the installation thereof,
are
required to be removed and restored upon termination hereof.
-4-
10. Assignment
and Subletting. Sublessee
shall have no right to sublet the Subleased Premises or any portion thereof
or
assign or otherwise transfer its interest in this Sublease, whether expressly
or
by operation of law, without the prior written consent of Sublessor and all
other consents and approvals that may be required under the Prime
Lease.
11. Representations
and Warranties of Sublessor.
As of
the date hereof, Sublessor represents and warrants to Sublessee, and agrees,
as
follows: (i) the Prime Lease which is identified by the documents referenced
above in Recital Paragraphs A and B represents a true, correct and complete
copy
of the Prime Lease; (ii) the Prime Lease has not been modified or amended except
as set forth in the documents referenced above in Rectal Paragraphs A and B;
(iii) Sublessor has received no written notice from Landlord of default still
outstanding; (iv) Sublessor will not, from the date hereof through the date
of
termination of this Sublease, trigger an Event of Default (as
defined in the Prime Lease) (excluding those caused by breach of this Sublease
by Sublessee or any acts or omissions of Sublessee) which results in Landlord
rightfully terminating and retaking possession of the Subleased Premises from
Sublessee prior to the end of the term of this Sublease;
(v) no
liens exist, nor will be permitted by Sublessor to exist, against the Subleased
Premises in violation of Section 22 of the Prime Lease for work performed,
materials furnished, equipment supplied or obligations incurred by or on behalf
of Sublessor; (vi) if any rent is abated pursuant to paragraph 16 of the Prime
Lease, the Rent owed by Sublessee pursuant to this Sublease shall also be abated
proportionately and for the same time, and (vi) any award which may be sought
by
Sublessor pursuant to Section 28.4 of the Prime Lease will be prorated between
Sublessor and Sublessee based upon their respective interests in the Subleased
Premises..
12. Indemnification
By Sublessee.
Sublessee agrees, to the extent not expressly prohibited by law, to pay, and
to
protect, defend, indemnify and save harmless Sublessor and Landlord and their
respective past, present and future employees, officers and agents (each an
"Indemnified
Party"
and
collectively, the "Indemnified
Parties"),
from
and against any liabilities, losses, damages, costs or expenses (including,
but
not limited to, attorneys' fees and expenses) of any nature whatsoever which
may
be imposed upon, incurred by, or asserted against any Indemnified Party by
reason of or in connection with (i) any accident, injury to, or death of any
person or any damage to property or any other events occurring on or about
the
Subleased Premises, or (ii) any breach by Sublessee (excluding any breach caused
by Sublessor) of any term or condition of the Incorporated Provisions or the
Prime Lease, with respect to the Subleased Premises, or this Sublease or any
failure by Sublessee to perform or comply with (x) any of the terms of the
Incorporated Provisions, with respect to the Subleased Premises or (y) this
Sublease, or (z) any restrictions, statutes, laws, ordinances or regulations
affecting the Subleased Premises or any part thereof or Sublessee’s use of the
Subleased Premises.
13. Indemnification
by Sublessor.
Subject
to the limitations on Sublessor’s liabilities as specified in Section 24 below,
Sublessor agrees, to the extent not expressly prohibited by law, to pay, and
to
protect, defend, indemnify and save harmless Sublessee and Sublessee’s past,
present and future employees, officers and agents (each an "Indemnified
Party"
and
collectively, the "Indemnified
Parties"),
from
and against any liabilities, losses, damages, costs or expenses (including,
but
not limited to, attorneys' fees and expenses) of any nature whatsoever which
may
be imposed upon, incurred by, or asserted against any Indemnified Party which
result from Sublessor’s breach of the Prime Lease (except to the extent such
breach arises out of Sublessee’s breach of this Sublease).
-5-
14. Insurance.
As
pursuant to the Incorporated Provisions, Sublessee shall obtain all insurance
policies (and in such amounts) required under the Prime Lease, including, but
not limited to, personal property insurance covering the Sublessee's personal
property. Sublessee shall include Sublessor and Landlord as additional insureds
under all liability-related insurance policies required under the terms of
the
Prime
Lease
and under all liability related insurance policies which Sublessee may carry
with respect to the Subleased Premises, any property located thereon, or with
respect to any claim or accident arising on or about the Subleased Premises.
Prior to the commencement of the term of this Sublease or any occupancy of
or
access to the Subleased Premises by Sublessee, Sublessee shall deliver to
Sublessor certificates of insurance showing such policies to be valid and in
effect. Any rights of settlement allocated to Sublessor as Tenant under the
Prime
Lease
shall continue to be the rights of Sublessor hereunder.
Sublessee
hereby releases Sublessor and Landlord, and their respective officers,
employees, agents and representatives, from any and all claims or demands of
damage, liability, loss, expense or injury to the Subleased Premises or to
the
furnishings, fixtures, equipment, inventory or other property of Sublessee
in,
about or upon the Subleased Premises, which is caused by or results from perils,
events or happenings which are the subject of insurance carried by Sublessee
which is required under this Sublease or otherwise in force at the time of
any
such loss, whether or not due to the negligence of Sublessor or Landlord or
their respective officers, employees, agents and representatives, and regardless
of cause or origin. Any insurance carried by Sublessee with respect to the
Buildings or the Subleased Premises (or property therein or occurrences thereon)
shall include a clause or endorsement denying to the insurer rights of
subrogation against Sublessor and Landlord and their respective officers,
employees, agents and representatives.
15. Defaults.
It
shall be an Event of Default hereunder if:
(a) Sublessee
shall fail to pay Rent when due; or
(b) Sublessee
shall fail to pay when due any payments required to be made by Sublessee as
described in this Sublease other than Rent (after, in the case of the first
such
failure, ten (10) business days’ written notice from Sublessor, and thereafter
without requirement of such notice and grace period; or
(c) Sublessee
shall fail to keep or perform any one or more of the other terms, conditions,
covenants or agreements of this Sublease or the Incorporated Provisions, and
such failure shall continue for ten (10) days after notice of such failure
to
Sublessee; or
(d) Sublessee
shall cause or permit to occur a default under the Incorporated Provisions
which
is not cured prior to five (5) days before the expiration of any cure period
applicable thereto pursuant to the Incorporated Provisions or the Prime
Lease.
-6-
16. Remedies.
In the
event of an Event of Default by Sublessee hereunder, Sublessor may exercise
any
remedies available to Landlord under the Incorporated Provisions, and, in
addition to or, at its option, in lieu of, any or all other remedies provided
for herein or in the Incorporated Provisions or available to Sublessor at law
or
in equity, Sublessor shall be entitled to enjoin such breach or a threatened
breach, or to perform such obligation or cure such breach on behalf of Sublessee
and recover the cost of such performance or cure from Sublessee upon demand.
Notwithstanding anything to the contrary contained in the Prime Lease, Sublessor
shall have the right to terminate this Sublease immediately upon an Event of
Default by Sublessee and, at Sublessor's sole option, Sublessor shall have
the
right to retain all equipment and fixtures located on the Subleased Premises
as
security for the outstanding obligations of Sublessee.
17. Tenant
Improvements.
Sublessor has not made any warranty or representation as to the condition of
the
Subleased Premises or any agreement or promise to decorate, alter, repair or
improve the Subleased Premises and Sublessee hereby waives any and all rights
it
may have, express or implied, against Sublessor in connection therewith. The
Subleased Premises are to be leased to Sublessee in "as-is" condition.
18. Alterations.
Sublessee shall make no alterations or improvements to the Subleased Premises
except in accordance with the requirements of the Prime
Lease
and with the prior written consent of Sublessor which consent shall not be
unreasonably withheld or delayed, and, to the extent such consent is required
under the Prime Lease, the prior written consent of Landlord. Such alteration
shall be completed in accordance with a schedule and plans and specifications
submitted to and approved by the Landlord and Sublessor. Sublessee hereby
indemnifies and holds harmless Sublessor against any loss, liability, cost,
damage or claim arising out of or relating to any alteration or improvements
made by or on behalf of Sublessee to the Subleased Premises, whether or not
approved by Sublessor.
19. Notices.
All
notices and demands hereunder shall be in writing and shall be served in person,
by prepaid certified United States Mail, return receipt requested, or by
nationally recognized overnight courier, as follows:
If
to
Sublessor:
Corporate
Real Estate Services
Capgemini
U.S. LLC
One
Panorama Center
0000
Xxx
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
With
a
copy to:
Office
of
the General Counsel
Capgemini
U.S. LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
-7-
If
to
Sublessee:
eMagin
Corporation
Bellevue
Place
10500
NE
0xx
Xxxxxx,
00xx
Xxxxx
Xxxxxxxx,
Xxxxxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxx Xxxxxxx
Such
notices shall be deemed served when delivered, if served in person, or by
certified mail, or on the next business day after delivery to a nationally
recognized overnight courier service. Any party may change the address for
notices to it by a notice given as described herein.
20. Brokers.
Sublessor and Sublessee represent and warrant that they have not dealt with
any
brokers in connection with the sublease of the Subleased Premises other than
Xxxxxxxx Xxxx Company and Washington Partners Corporate Real Estate. Sublessor
and Sublessee do hereby indemnify, defend and agree to hold each other harmless
from and against any and all loss, cost, liability or obligations (including
reasonable attorneys' fees) related to any fees or commissions claimed by any
parties, to the extent such claims are based on the acts or agreements of the
indemnifying party.
21. Security
Deposit.
In
order to secure Sublessee's performance hereunder, Sublessee hereby agrees
that
within three days of the Sublease Approval date, it shall deposit with Sublessor
a security deposit in the amount of EIGHTY-ONE THOUSAND TWO HUNDRED SIXTEEN
Dollars and 00/100 Dollars ($81,216.00) (the "Security
Deposit").
Such
Security Deposit shall be held by Sublessor, without interest, and upon the
occurrence of any default of the Sublessee's obligations hereunder, may be
applied or retained for the payment or performance of such obligations. The
use,
application or retention of the Security Deposit, or any portion thereof, by
Sublessor shall not prevent Sublessor from exercising any other right or remedy
provided by this Sublease or by law (it being intended that Sublessor shall
not
first be required to proceed against the Security Deposit) and shall not operate
as a limitation on any recovery to which Sublessor may otherwise be entitled.
If
any portion of the Security Deposit is used, applied or retained by Sublessor
for the purposes set forth above, Sublessee agrees, within ten (10) days after
the written demand therefor is made by Sublessor, to deposit cash with the
Sublessor in an amount sufficient to restore the Security Deposit to its
original amount.
Notwithstanding the foregoing, provided no Sublessee default has occurred,
Sublessor will apply two (2) months of such deposit toward Sublessee’s Base Rent
otherwise due for the last two months of the Sublease Term.
22. Miscellaneous.
-8-
(a) Sublessor
and Landlord and their agents shall have the right of access to the Subleased
Premises at all reasonable times on reasonable notice to Sublessee (except
in
the event of an emergency, in which case no notice is necessary) in order to
inspect or exhibit the Subleased Premises.
(b) This
Sublease contains the entire agreement between the parties hereto, and shall
not
be modified in any manner except by a writing signed by the party against which
such modification is sought to be enforced.
(c) The
agreements, terms, covenants, and condi-tions herein shall bind and inure to
the
benefit of Sublessor and Sublessee and their respective heirs, personal
representatives, successors, and permitted assigns.
(d) Each
of
the indemnifications contained in this Sublease shall survive the expiration
or
earlier termination of this Sublease. In addition, Section
24 shall
survive the expiration or earlier termination of this Sublease.
(e) The
Recitals to this Agreement are incorporated herein by this reference as if
set
forth in full including, but not limited to, the terms, conditions and
provisions of the Office Lease and the Prime Lease as described in Recital
Paragraphs A and B.
23. Landlord's
Consent.
Sublessor and Sublessee acknowledge that this Sublease is subject to Sublessor's
receipt of the written approval of and consent by the Landlord to the sublease
transaction described herein.
24. Limitation
on Liability of Sublessor.
In no
event will Sublessor be liable for consequential, incidental, indirect, punitive
or special damages (including loss of profits or business) regardless of whether
such liability is based on breach of contract, tort, strict liability, breach
of
warranties, failure of essential purpose or otherwise, and even if advised
of
the likelihood of such damages.
25. Security.
Sublessee shall contract directly with security providers for any services
it
deems reasonably appropriate, and Sublessee acknowledges that Sublessor shall
have no liability or responsibility for security of the Subleased
Premises.
26. Parking.
Subject
to the terms of the Prime Sublease, Sublessor hereby assigns to Sublessee
effective upon the Commencement Date any and all rights which the Sublessor
has
under the Prime Lease to the number of parking spaces in the parking lot(s)
in
or adjacent to the Building equal to the ratio allocated to Sublessor under
the
Prime Lease, provided that (i) Sublessor shall not be a party to any lease
of
parking spaces by Sublessee, as any lease shall be solely between Sublessee
and
Landlord (or its parking garage operators), and Sublessor shall not have any
responsibility (or make any warranty) to Sublessee with respect to such spaces,
(ii) any such lease of parking spaces shall be at Sublessee's sole cost and
expense, which shall be paid in accordance with the prevailing parking rates
charged by the Landlord (or its parking garage operators), and (iii) this
assignment of rights to any parking spaces shall be conditioned on Sublessee’s
agreement to lease such spaces from Landlord (or its parking garage operators),
and (iv) Sublessor shall not be required to assign any parking spaces to the
extent Sublessor would continue to have any payment or other obligations to
the
Landlord (or its parking garage operators) relating to any such spaces.).
Sublessee agrees to indemnify and save harmless Sublessor from and against
any
liabilities, losses, damages, costs or expenses (including, but not limited
to,
attorneys' fees and expenses) of any nature whatsoever which may be imposed
upon, incurred by, or asserted against Sublessor by reason of or in connection
with Sublessee’s use of the parking garage or such parking spaces.
-9-
27. Subordination
and Attornment.
This
Sublease shall be subject and subordinate to the Prime Lease and all mortgages,
deeds of trust, ground leases and security agreements now or hereafter
encumbering the Building. In the event of termination of the Prime Lease for
any
reason, or in the event of any reentry or repossession of the Subleased Premises
by Landlord, Landlord may at its option, either (i) terminate this Sublease,
or
(ii) take over all of the right, title and interests of Sublessor under this
Sublease, in which case the Sublessee will attorn to Landlord, but nevertheless
Landlord will not (1) be liable for any previous act or omission of Sublessor
under this Sublease, (2) be subject to any defense or offset previously accrued
in favor of the Sublessee against Sublessor, or (3) be bound by any previous
modification of this Sublease made without Landlord's written consent, or by
any
previous prepayment by Sublessee of more than one month's rent.
28. No
Presumption Against Draftor.
Sublessor and Sublessee acknowledge that both parties have been represented
by
counsel and are fully aware of the contents of this Sublease. Therefore,
Sublessee hereby waives any presumption that may exist under law or equity
against the Sublessor by virtue of Sublessor creating the initial draft of
this
Sublease.
[Signature
Page Follows]
-10-
IN
WITNESS WHEREOF, the parties have executed this Sublease as of the day and
year
first above written.
| SUBLESSOR: | SUBLESSEE: | ||
| CAPGEMINI U.S. LLC, a | EMAGIN CORPORATION, a | ||
| Delaware limited liability company | Delaware corporation | ||
| /s/ Xxxxxxx Xxxxxxxxx | /s/ Xxxx Xxxxxxx | ||
|
Xxxxxxx Xxxxxxxxx |
Xxxx Xxxxxxx |
||
| Its: Chief Financial Officer | Its: Chief Financial Officer |
-11-
EXHIBIT
A
SUBLEASED
PREMISES
-12-
EXHIBIT
B
SUBLESSOR'S
PROPERTY
