Exhibit 10.26
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is made as of the 15 day of
November, 2004, by and between The Lincoln Electric Company, an Ohio
corporation, ("Sublessor"), whose present address is 00000 Xx. Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000 AND GigaBeam Corporation, a Delaware corporation
("Sublessee"), whose address is 000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
RECITALS:
A. Sublessor is a party to that certain Office Lease dated 12/29/1995
(the "Master Lease"), by and between Sublessor, as tenant, and CalEast
Industrial Investors, LLC, a California limited liability company, as landlord
(the "Master Landlord"), covering certain premises (the "Master Lease
Premises"), known as Suite 950, consisting of 3,803 square feet of rentable
area, located on the first (1st) floor of the office building located at 000
Xxxxxx Xxxx Xxxxx in Herndon, Virginia (the "Building"). A copy of the Master
Lease is attached as Exhibit "A" and hereby made a part hereof.
B. Sublessor wishes to sublease to Sublessee, and Sublessee desires to
sublease from Sublessor, the Master Lease Premises, as more particularly
described on the sketch attached hereto as Exhibit "B" and hereby made a a part
of this Sublease (the "Subleased Premises").
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Sublease, and intending to be legally bound, Sublessor and Sublessee agree
as follows:
TERMS:
1. Recitals. The foregoing Recitals are true and correct and are hereby
incorporated herein by reference.
2. Definitions. Capitalized terms not defined in this Sublease shall
have the meanings given to them in the Master Lease.
3. Sublease Term and Termination. Sublessor hereby subleases the
Subleased Premises to Sublessee, and Sublessee hereby subleases the Subleased
Premises from Sublessor, for a term (the "Sublease Term") beginning on December
15, 2004 (the "Sublease Commencement Date") and expiring on January 15, 2006
(the "Sublease Expiration Date").
4. Rent. The amount of Base Rent payable pursuant to this Sublease shall be(any
partial months shall be pro-rated):
12/15/04 - 1/20/05 $3,211.67 per month
1/21/05 - 1/15/06 $3,308.02 per month
In addition, Sublessee shall pay to Sublessor any and all amounts Sublessor pays
to Master Landlord during the Sublease Term for Operating Expenses and Taxes
(Additional Rent) charges not included under the Base Rent estimated at $3.25
per square foot (Operating Expenses are $559.00 and Taxes are $472.00).
Upon execution of this Sublease, Sublessee shall pay to Sublessor, Base Rent,
Operating Expenses and taxes in the amount of $8,485.34 as payment for the first
two months of Rent and a security deposit in the amount of $4,242.67. Article
6.1 of the Master Lease is hereby modified to provide that the Security Deposit
shall be increased to two month's Rent in the event of default as stated in
Article 6.1 of the Master Lease.
5. Acceptance of Subleased Premises. Sublessee shall accept the
Subleased Premises with all systems in good working order and broom clean.
Sublessee's acceptance of the Subleased Premises shall be deemed its approval of
the condition of the Subleased Premises.
6. Insurance. Sublessee agrees to carry and maintain, at its expense,
all insurance required of Sublessor under the Master Lease and to furnish to
both Sublessor and Master Landlord policies or duly executed certificates of
insurance with respect thereto prior to the Sublease Commencement Date.
7. Use of Subleased Premises. Sublessee may use the Subleased Premises
for design, development and manufacturing of wireless communications equipment
in addition to general office and warehouse use and in compliance with the
Master Lease and for no other purpose.
8. Liability of Sublessor. Sublessee hereby agrees that Sublessor shall
not be liable for and Sublessee hereby waives all claims for, injury to
Sublessee's business or any loss of income therefrom or for loss or damage to or
theft of the goods, inventory, equipment, merchandise or other property of
Sublessee, Sublessee's affiliates, or any other person in or about the Subleased
Premises or the Building and the real property in which the Subleased Premises
are located, nor shall Sublessor be liable for any injury to the person of
Sublessee or Sublessee's affiliates, whether such damage or injury is caused by
or results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether said damage or injury results from winds or weather, conditions
arising upon the Subleased Premises or upon portions of the Building, or from
other sources or places, and regardless of whether the cause of such damage or
injury or the means of repairing the same is inaccessible to Sublessee.
9. Brokers. Sublessee represents and warrants to the Sublessor that
it has not dealt with any broker other than Advantis Real Estate Services
Company, representing Sublessee in connection with this transaction, who shall
be paid a market commission per a separate agreement. Sublessor represents and
warrants to the Sublessee that it has not dealt with any broker representing
Sublessor in connection with this transaction.
10. Notices. All notices and demands under this Sublease shall be in
writing and shall be effective by transmission to the applicable address set
forth below, (i) on the same day sent, by facsimile transmission with a
confirmation of transmission and receipt, or (ii) one (1) day after being sent
by overnight delivery with a nationally recognized overnight delivery service
that provides tracking and proof of receipt, or (iii) three (3) days after being
deposited in the U.S. mails, by registered or certified mail, return receipt
requested (except for notices to Master Landlord, which shall be given in
accordance with Section 31 of the Master Lease).
If to Master Landlord: As required under the Master Lease
If to Sublessor: Attention: General Counsel
At the address set forth in
the opening paragraph of
this Sublease.
If to Sublessee: At the address set forth in the opening
paragraph of this Sublease.
Either party may change its address for notices and demands under this Sublease
by notice to the other party.
11. Subordination to Lease.
(a) This Sublease is subject and subordinate to the Master Lease.
Sublessee shall not cause a default under the Master Lease or permit its
employees, agents, contractors or invitees to cause a default under the Master
Lease. If the Master Lease terminates before the expiration of the term of this
Sublease, Sublessor shall not be liable to Sublessee for any damages arising out
of such termination.
(b) Except as set forth below, all the terms, covenants and
conditions in the Master Lease are incorporated as a part of this Sublease,
provided, however, all references in the Lease to "Landlord", "Tenant", "Lease",
"Premises", "Lease Commencement Date", "Lease Expiration Date" and "Term" are
hereby revised to read: "Sublessor", "Sublessee", "Sublease", "Subleased
Premises", "Sublease Commencement Date", "Sublease Expiration Date" and
"Sublease Term"; further provided, however, that while it is not practical in
this Sublease to allocate between Sublessor and Sublessee, the specific
obligations of Sublessor, as tenant, and Master Landlord, as landlord, under the
provisions of the Master Lease, Sublessor and Sublessee hereby agree: (i)
Sublessor shall have no obligation or responsibility to observe or perform those
covenants or undertakings of the Master Landlord which by their nature are the
obligations of the owner of the Building, including, without limitation any
obligation to provide services, make repairs or maintain insurance, and
Sublessee shall seek such observance and performance and obtain such services
solely from the Master Landlord; (ii) Sublessee shall direct its performance of
all responsibilities and obligations of the tenant under the Master Lease under
all of the provisions of the Master Lease incorporated herein, both to Sublessor
and the Master Landlord; (iii) nothing herein shall create or be deemed to
create any privity of contract or privity of estate between Master Landlord and
Sublessee; notwithstanding the provisions of the Master Lease incorporated
herein, Master Landlord shall not have or be deemed to have any responsibilities
or obligations to Sublessee; (iv) to the extent Sublessor shall have the right
to terminate the Master Lease under any provisions of the Master Lease,
Sublessor shall have the right to do so without the consent or approval of
Sublessee, provided (A) Sublessor shall notify Sublessee of such election in
writing within thirty (30) days of exercising such termination right; and (B)
allow Sublessee thirty (30) days from its receipt of such notice to vacate the
Subleased Premises; (v) to the extent incorporated into this Sublease, Sublessee
shall perform each and every of the obligations of the Sublessor, as the tenant
under the Master Lease; (vi) notwithstanding any other provision of this
Sublease, Sublessor, as sublessor under this Sublease, shall have the benefit of
all rights, remedies and limitations of liability enjoyed by Master Landlord, as
the landlord under the Master Lease, but, notwithstanding the incorporation of
certain of the terms, covenants and conditions of the Master Lease as provided
above, (A) Sublessor shall not be bound by any representations or warranties of
the Master Landlord under the Master Lease; (B) in any instance where the
consent of Master Landlord is required under the terms of the Master Lease, the
consent of Sublessor and Master Landlord shall be required; and (C) Sublessor
shall not be liable to Sublessee for any failure or delay in Master Landlord's
performance of its obligations, as landlord under the Master Lease, and no such
failure or delay in performance by Master Landlord shall excuse or be deemed a
waiver of any of the obligations of Sublessee hereunder, provided that upon
request of Sublessee, Sublessor shall, at Sublessee's expense, use reasonable
efforts to cooperate with Sublessee in its efforts to cause Master Landlord to
perform its obligations under the Master Lease, provided that in no event shall
Sublessor be obligated to institute legal proceedings.
12. Sublessee's Repairs. Sublessee shall take good care of the
Subleased Premises and the fixtures and appurtenances therein and shall make all
repairs and replacements needed to keep them in first class order and condition.
Sublessee shall, at its own cost and expense, repair and replace all damage and
injury to the Subleased Premises and the Building and to fixtures and equipment
caused by Sublessee or its employees, agents, invitees, licensees, subtenants,
contractors or subcontractors, or assignees as a result of all or any of them
moving into or out of the Building or by installation or removal of furniture,
to the fixtures or other property, which repairs and replacements shall be in
quality and in class equal to the original, undamaged condition immediately
prior to the damage caused by Sublessee or such parties.
13. Landlord's Approval. This Sublease is subject to the approval of
the Master Landlord pursuant to Article 11 of the Master Lease. Both parties
shall cooperate to timely furnish to Landlord any information necessary to
Master Landlord's decision.
Sublessee agrees that this Sublease may be assigned to Master Landlord and that
in such event, Sublessor shall be released from all obligations to Sublessee
under this Sublease.
14. No Assignment or Subletting. Sublessee shall not assign, convey or
mortgage this Sublease or any interest under this Sublease, or allow any
transfer thereof or any lien upon Sublessee's interest by operation of law, nor
further sublet the Subleased Premises or any part thereof, nor permit the
occupancy of the Subleased Premises or any part thereof by anyone other than
Sublessee. Any requested assignment of this Sublease to any legal successor to
the Sublessee shall be subject to approval by Sublessor at Sublessor's sole
discretion following 60 days required notice to Sublessor requesting approval of
said assignment.
15. Entire Agreement. This Sublease contains all of the agreements,
conditions, warranties and representations relating to the sublease of the
Subleased Premises and may be amended or modified only by written instruments
executed by both Sublessor and Sublessee.
16. Authority. Sublessor and Sublessee each represent and warrant to
the other that the individual(s) executing and delivering this Sublease on its
behalf is/are duly authorized to do so any that this Sublease is binding on
Sublessee and Sublessor in accordance with its terms. Simultaneously with the
execution of this Sublease, Sublessee shall deliver evidence of such authority
to Sublessor in a form reasonably satisfactory to Sublessor.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed as a sealed instrument and delivered as of the day and year first above
written.
WITNESSES: SUBLESSOR:
The Lincoln Electric Company,
an Ohio corporation
/s/Xxxxxx X. Brown_______________ By: /s/ Xxx Xxxxx __________________
Print Name: Xxxxxx X. Brown____ Name: Guy Cline___________________
Title: Company Counsel ____________
Date: 11-19-2004__________________
WITNESSES: SUBLESSEE:
GigaBeam Corporation,
a Delaware coroporation
/s/ X. Xxxxx Butler_____________ By: /s/Xxxxxxx Xxxxxxxx _____________
Print Name: X. Xxxxx Butler_____ Name: Xxxxxxx Goldbeck_____________
Title: CFO_________________________
Date: 11-22-04_____________________
