CONSENT TO SUBLEASE AGREEMENT AND SECOND AMENDMENT TO LEASE
CONSENT TO SUBLEASE AGREEMENT
AND SECOND AMENDMENT TO LEASE
This Consent to Sublease Agreement and Second Amendment to Lease (thisAND SECOND AMENDMENT TO LEASE
“Agreement”) is made as of the 28th day of July, 2008 by and among HUB PROPERTIES
TRUST, a Maryland real estate investment trust (“Landlord”), HONEYWELL TECHNOLOGY
SOLUTIONS INC., a Delaware corporation (“Tenant”), successor by merger to the interest of
Dimensions International, Inc. (“Dimensions”) and CUISINE SOLUTIONS, INC., a Delaware
corporation (“Subtenant”).
WHEREAS, Landlord and Dimensions entered into that certain Lease dated March 3,
2004, as amended by that certain First Amendment to Lease (the “First Amendment”) dated
October 25, 2005 (collectively, the “Original Lease”) for the lease of certain premises (the
“Premises”) as more particularly described in the Lease, located in a portion of the building (the
“Building”) located at and known as 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx; and
WHEREAS, Landlord consented to the deemed assignment of the Original Lease as a
result of a change of control of Dimensions pursuant to that certain Landlord’s Consent to
Assignment (the “Consent”) dated May 29, 2007 (the Original Lease, as affected by the Consent,
is collectively referred to herein as the “Lease”); and
WHEREAS, Tenant and Subtenant desire to enter into a Sublease (the “Sublease”), a
copy of which is attached hereto as Exhibit A, for Subtenant’s use and occupancy of the portion
of the Premises (the “Sublease Premises”) shown on the floor plan attached hereto as Exhibit B;
and
WHEREAS, Landlord has agreed to consent to the Sublease subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Lease.
2. Tenant shall, contemporaneously with its execution hereof, deposit $28,475.33
with Landlord (the “Security Deposit”) which sum shall be held by Landlord as security for the
faithful performance of all the terms of the Lease to be observed and performed by Tenant.
Tenant shall not mortgage, assign, transfer or encumber the Security Deposit and any such act on
Tenant’s part shall be without force and effect and shall not be binding on Landlord. If Tenant
fails to perform any of the terms of the Lease beyond the expiration of any applicable cure
period, then Landlord may, at Landlord’s option and without notice or prejudice to any other
remedy which Landlord may have on account thereof, appropriate and apply the entire Security
Deposit, or so much thereof as may be necessary, toward the payment of any amount due
hereunder but unpaid or loss or damage sustained by Landlord due to such breach by Tenant; and
Tenant shall upon demand restore the Security Deposit to the original amount deposited. Upon
such application by Landlord and until Tenant shall have restored the Security Deposit to the
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amount initially deposited hereunder, Tenant shall be deemed to be in default in the payment of
Additional Rent for purposes of Section 8.1(a)(I) of the Lease. So long as Tenant is not in
default under the Lease, Landlord shall return the Security Deposit, or so much thereof as shall
have not theretofore been applied in accordance with the terms hereof (and less any amount
Landlord shall estimate shall be due from Tenant on account of Operating Costs and Taxes), to
Tenant promptly following the expiration or earlier termination of the Term of the Lease and the
surrender of possession of the Premises by Tenant in accordance with the terms of the Lease.
While Landlord holds the Security Deposit, Landlord shall have no obligation to pay interest on
it and may commingle it with other funds. If Landlord conveys its interest in the Property, the
Security Deposit, or any part thereof not previously applied, will be turned over to the transferee,
and Tenant will look solely to such transferee for proper application and return of the Security
Deposit in accordance with the terms hereof.
3. Landlord hereby consents to the Sublease, subject to and upon the terms and
conditions hereof and in reliance of the representations, warranties and agreements contained
herein. Tenant and Subtenant acknowledge and agree that (i) Landlord is not a party to the
Sublease and is not bound by the provisions thereof, (ii) Landlord has not and will not review or
pass upon any of the provisions of the Sublease, (iii) the Sublease will not be modified or
amended in any material way without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed and (iv) the Sublease is intended to grant
Subtenant a subleasehold interest and is not an assignment of Tenant’s interest under the Lease
and consequently notwithstanding anything to the contrary contained in the Sublease the term of
the Sublease shall expire no later than one (1) day prior to the expiration or earlier termination of
the term of the Lease. Nothing herein contained shall be construed as a consent to, or approval
by Landlord of, any of the provisions of the Sublease, but is merely a consent to the act of
subletting by Tenant to Subtenant. To the extent of any inconsistencies between the terms of the
Sublease and the terms of the Lease or this Agreement, the terms of the Lease or this Agreement
shall prevail. In furtherance of the foregoing, Tenant and Subtenant agree that (i) Landlord’s
obligations to Tenant are governed only by the Lease and this Agreement, (ii) Landlord shall not
be bound or estopped by any provisions of the Sublease, including any provision purporting to
impose any obligations upon Landlord and (iii) nothing contained herein shall be (a) construed as
a consent to, approval of, or ratification by Landlord of, any of the particular provisions of the
Sublease, or any plan or drawing referred to or contained therein (except as may be expressly
provided herein), or (b) construed to modify, waive, impair or affect any of the covenants,
agreements, terms, provisions, obligations or conditions contained in the Lease (except as herein
expressly provided), or to waive any breach thereof, or to increase the obligations or diminish the
rights of Landlord under the Lease, or to increase the rights or diminish the obligations of Tenant
thereunder.
4. Tenant represents and warrants that (a) the Lease is in full force and effect and
constitutes the entire agreement between Landlord and Tenant with respect to the Premises; (b)
Tenant has not previously assigned, mortgaged, pledged or otherwise transferred any interest
under the Lease nor has it sublet, licensed or otherwise granted any occupancy rights to any third
party currently occupying any portion of the Premises; (c) to the actual knowledge, without
inquiry, of Tenant’s employee, Xxxxx X. Xxxx, Tenant knows of no defense or counterclaim to
the enforcement of the obligations of the Tenant under the Lease and has no knowledge of any
default by Landlord; (d) Tenant is not entitled to any reduction, offset or abatement of the rent
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payable under the Lease; (e) a true and complete copy of the Sublease is attached hereto as
Exhibit A, and the Sublease constitutes the complete agreement between Tenant and Subtenant
with respect to the subject matter thereof; and (f) to the actual knowledge, without inquiry, of
Tenant’s employee, Xxxxx X. Xxxx, Tenant is not in default of any of its obligations or covenants,
and has not breached any of its representations or warranties under the Lease. Tenant represents
that Xxxxx X. Xxxx is the person knowledgeable of the foregoing matters.
5. Tenant hereby reaffirms that it shall remain fully responsible and primarily liable
for the prompt payment of all amounts payable by Tenant under the Lease and the performance
of all of the terms, covenants, conditions and provisions of the Lease required to be performed on
the part of Tenant thereunder.
6. Subtenant agrees that it shall perform and comply with and be bound by all
obligations of Tenant under the Lease relating to the Sublease Premises including, but without
limitation, all obligations relating to the maintenance of insurance and the naming of Landlord as
an additional insured thereunder. The Sublease shall be subject and subordinate at all times to
the Lease, and shall be subject to all of the covenants, agreements, terms, provisions and
conditions of the Lease and this Agreement. Subtenant shall not do or permit anything to be
done in connection with Subtenant’s occupancy of the Sublease Premises which would violate
any such covenants, agreements, terms, provisions and conditions. Landlord shall not deem use
by Subtenant, during the term of the Sublease, of up to 400 square feet of the Sublease Premises
in the area shown on Exhibit B-1 as Presentation Product for purposes of display of food
products as a breach of restrictions on use of the Premises as provided in Section 6.1.2 of the
Lease, provided such use shall comply with all zoning, building or other land use ordinances,
codes and regulations and shall not entail any cooking of food. Tenant and Subtenant
acknowledge that Landlord has made no express warranty or representation, and disclaims any
implied warranty or representation, that such use is consistent or in compliance with any zoning,
building or other land use ordinance, code or regulation, and Subtenant acknowledges that it has
performed such investigation as it deems appropriate to satisfy itself that the Sublease Premises
are suitable for its purposes and in particular that such food display use is in compliance with the
foregoing.
7. Tenant and Subtenant agree that after notice from Landlord, Subtenant shall pay
all rents and all other sums due under the Sublease to Landlord. Any amounts so paid by
Subtenant to Landlord shall be credited against Tenant’s obligations under the Lease in a manner
reasonably determined by Landlord.
8. Landlord’s consent under this Agreement shall not be construed as a consent by
Landlord to, or as permitting, any other or further assignment or subletting by either Tenant or
Subtenant. Notwithstanding anything to the contrary contained in the Lease, the Sublease or this
Agreement to the contrary, Subtenant shall not, without the prior written consent of Landlord in
each instance, (i) assign the Sublease, (ii) sub-sublease all or any part of the Sublease Premises,
or (iii) make any alterations, additions or structural changes in or to the Sublease Premises.
9. Tenant hereby authorizes Subtenant to obtain services and materials for or related
to the Sublease Premises, and Tenant agrees to pay for such services and materials as additional
rent under the Lease upon written demand from Landlord. However, at Landlord’s option and
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for Tenant’s convenience, Landlord may xxxx Subtenant for such services and materials, or any
portion thereof, in which event Subtenant agrees to pay for the services and materials so billed,
but such billing shall not relieve Tenant from its primary obligation to pay for such services and
materials. The authority herein given by Tenant to Subtenant shall be continuing and Tenant
shall not revoke such authority without giving at least ten (10) days’ prior notice to Landlord.
10. Tenant and Subtenant agree that Landlord shall not be responsible for the
payment of any commissions or fees in connection with this Agreement or the Sublease and they
each jointly and severally agree to indemnify and hold Landlord harmless from and against any
claims, liability, losses or expenses, including reasonable attorneys’ fees, incurred by Landlord in
connection with any claims for commissions or fees by any broker or agent in connection with
this Agreement or the Sublease.
11. If the Lease is terminated prior to the stated expiration date provided in the Lease,
the term of the Sublease shall (if not previously terminated or expired), subject to Landlord’s
right to elect to require Subtenant to attorn as hereinafter provided, likewise terminate on the date
of such termination. In connection with such termination, Subtenant, at its sole expense, shall
surrender the Sublease Premises to Landlord in the manner provided for in, or required by, the
Lease, including the removal of all its personal property from the Sublease Premises and from
any part of the Building, and removal of any alterations so required, and repair all resulting
damage to the Sublease Premises and the Building. Any property not so removed shall be
deemed abandoned and may be removed and disposed of by Landlord in such manner as
Landlord shall determine and, in addition to any obligations of Tenant under the Lease,
Subtenant shall pay Landlord, within ten (10) days of demand, the entire cost and expense
incurred by Landlord in effecting such removal and disposition and in making any incidental
repairs and replacements to the Sublease Premises. If Subtenant shall fail to vacate and
surrender the Sublease Premises in accordance with the provisions of this paragraph, Landlord
shall be entitled to all of the rights and remedies which are available to a landlord against a
tenant holding over after the expiration of a term, and any such holding over shall be deemed a
default under the Lease. In addition, Tenant agrees that any failure of Subtenant to vacate and
surrender the Sublease Premises on or before the expiration or earlier termination of the term of
the Lease as hereinabove required shall constitute a failure of Tenant to vacate and surrender the
Premises as required by the Lease and shall constitute a holding over of the entire Premises, and
Subtenant agrees that it will not seek, and it expressly waives any right to seek, any stay of the
prosecution of, or the execution of any judgment awarded in, any action by Landlord to recover
possession of the Premises.
In the event of the termination of the Lease, Subtenant agrees, at Landlord’s option, to
attorn to the Landlord and to continue the use, possession and occupancy of the Sublease
Premises upon all of the terms, covenants, conditions and agreements set forth in the Sublease
for the remainder of the term of the Sublease, except that Landlord shall not be (a) be liable for
any act or omission of Tenant under the Sublease, (b) be subject to any credit, counterclaim,
offset or defense which theretofore accrued to Subtenant against Tenant, (c) be bound by any
previous modification of the Sublease not consented to in writing by Landlord or by any
previous prepayment of more than one (1) month’s rent, (d) be bound by any covenant of Tenant
to undertake or complete any construction of the Sublease Premises or any portion thereof or to
provide or perform any service or item not required to be provided or performed by Landlord
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under the Lease any and all of which obligations shall be deemed void as between Landlord and
Subtenant, (e) be required to account for any security deposit of Subtenant other than any
security deposit actually delivered to Landlord by Tenant, (f) be bound by any obligation to
make any payment or grant any credits to Subtenant, (g) be liable for the payment of any monies
owing by Tenant to the credit of Subtenant or (h) be required to remove any person occupying
the Sublease Premises or any part thereof. This provision shall be self-operative upon
Landlord’s written notice to Subtenant of Landlord’s election to exercise such option.
12. Tenant and Subtenant each represent and warrant that no compensation or
consideration of any kind other than as set forth in the Sublease has been or will be paid by
Subtenant to Tenant in connection with the Sublease, including moneys paid for the use, sale or
rental of Tenant’s furniture, leasehold improvements, equipment, furniture or other personal
property. Tenant furthermore agrees that if it shall receive any compensation or consideration in
connection with the Sublease which exceeds Tenant’s obligation on account of rent and
additional rent under the Lease with respect to the Sublease Premises, Tenant shall pay to
Landlord all amounts due as a result pursuant to the provisions of Section 6.2.1(h) of the Lease.
13. Tenant shall, contemporaneously with the execution of this Agreement, reimburse
Landlord Two Thousand Five Hundred Dollars ($2,500.00) for legal fees and administrative
expenses incurred by Landlord in connection with the execution and delivery of this Agreement.
14. Section 2.5 of the Lease (Right of First Offer) is hereby deleted and of no further
force or effect.
15. Landlord hereby acknowledges that Landlord’s Fourth Floor Contribution shall be
available to Tenant in accordance with the terms of the First Amendment irrespective of the fact
that Tenant may elect to apply the same toward the cost of alterations performed on behalf of
Subtenant rather than Tenant; and the parties agree that their respective obligations under Section
6.1.9 of the Lease shall apply to any such alterations.
16. Landlord hereby notifies Tenant and Subtenant that the Declaration of Trust of
Hub Properties Trust provides, and Tenant and Subtenant agree, that no trustee, officer, director,
employee or agent of Hub Properties Trust (including any person or entity from time to time
engaged to supervise and/or manage the operation of Landlord) shall be liable for any payment
or performance hereunder or under the Lease on the part of Landlord and that (subject to any
other limitations contained in the Lease) Tenant and Subtenant (and any party claiming by,
through or under Tenant or Subtenant) shall look solely to the assets of Hub Properties Trust for
payment of any claim hereunder or under the Lease.
17. Any notice given by any party to another party hereto shall be in writing and shall
be delivered by hand or mailed by certified or registered mail, return receipt requested, or by a
nationally recognized courier service that provides a receipt for delivery such as Federal Express,
United Parcel Service or U.S. Postal Service Express Mail to such other party at the address
given below or such other address as such other party may from time to time designate in writing
to the other parties in accordance with these provisions. Notices shall be effective on the date
delivered to (or the first date such delivery is attempted and refused by) the parties to which such
notice is required or permitted to be given or made under this Agreement.
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Landlord: Hub Properties Trust
c/o Reit Management & Research LLC
0000 00xx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxx Xxxxx, Vice President, Mid-Atlantic Region
with a copy to: Hub Properties Trust
c/o Reit Management & Research LLC
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Tenant: Honeywell Technology Solutions Inc.
c/o Honeywell International Inc.
Global Real Estate
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Vice President, Global Real Estate
with a copy to: Honeywell Technology Solutions Inc.
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xx XxXxxxxxx – Director Contracts & Procurement
Subtenant: Cuisine Solutions, Inc.
0000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
18. The Lease and this Agreement constitute the entire agreement of the parties with
respect to Landlord’s consent to the Sublease. This Agreement may not be amended, modified,
altered or changed except in writing signed by all parties hereto.
19. This Agreement shall be construed and governed by the laws of the state in which
the Building is located.
20. Landlord’s rights and remedies under this Agreement shall be in addition to every
other right or remedy available to it under the Lease, at law, or in equity or otherwise. The
invalidity or unenforceability of any provision of this Agreement shall not impair the validity and
enforceability of any other provision of this Agreement.
21. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have executed this
Agreement under seal as of the day and year first above written.
LANDLORD:
HUB PROPERTIES TRUST
By: _/s/ Xxxxxxxx X. Clark______________
Xxxxxxxx X. Xxxxx
Senior Vice President
TENANT:
HONEYWELL TECHNOLOGY SOLUTIONS
INC.
By: __/s/ Xxxx Tus___________________
Name: Xxxx Tus
Title: Vice President
SUBTENANT:
CUISINE SOLUTIONS, INC.
By: __/s/ Xxxxxx Zilkowski____________
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
Exhibit A
Sublease.
See attached copy.
Exhibit B
Floor Plan.
See attached copy.
Exhibit B-1
See attached copy.
