Exhibit 10.39
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SUBLEASE
THIS SUBLEASE dated January 1, 2003 between ePresence, Inc. (the "Sublandlord")
and Switchboard, Inc. (the "Subtenant").
ARTICLE I
REFERENCE DATA
1.1 Subjects Referred To.
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Each reference in this Sublease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1:
Date of Sublease: January 1, 2003
Sublandlord: ePresence, Inc., a Massachusetts corporation
Sublandlord's Address: 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Subtenant: Switchboard, Inc., a Delaware corporation
Subtenant's Address: 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Headlandlord: Commonwealth Westborough Limited Partnership
Headlandlord's Address c/o X.X. Xxxxx Properties, Inc.
Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Headlease: Lease Agreement dated April 21, 1989 by and
between CB Westborough C limited
Partnership, as landlord, and Sublandlord as
tenant, as amended from time to time.
Commonwealth Westborough Limited Partnership
is the successor in interest to
CB-Westborough C Limited Partnership.
Headlease Premises: The premises situated at 000
Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx,
as described in the Headlease, containing
approximately 79,203 rentable square feet
(constituting all of the rentable square
feet in the building) (the "Building").
Premises: The Premises are shown in Exhibit B attached hereto.
Rentable Floor Area
Of Premises: 17,463 on the first floor of the Building including
common areas.
Commencement Date: January 1, 2003
Term Expiration Date: December 31, 2003
Rent Commencement Date: January 1, 2003
Monthly Fixed Rent: $18,918.25 ($13.00 per Sq. Ft.)
Security Deposit: None
Utilities: All provided except for electricity, telephone and
Internet connectivity.
Electricity: Separately metered, paid for by Subtenant directly
to utility company.
Permitted Uses: All permitted uses in Headlease.
Parking Spaces Under the terms of the Headlease,
Subtenant, at Subtenant's expense may
install several visitor parking spaces in
front of the entrance to the Premises.
Subtenant shall be entitled to use of an
additional 100 general parking spaces.
Signs: Subject to signage criteria of Headlandlord
under the terms of the Headlease, Subtenant,
at Subtenants expense, may place signage at
the entrance to the Premises.
Cafeteria Access: Allocated on a per head basis at commencement
of Sublease, and revised during the Term as
applicable.
Health Club Access: Ten (10) passes as included in Monthly Fixed Rent.
1.2 Exhibits
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The exhibits listed below in this section are incorporated in this Sublease
by reference and are to be construed as part of this Sublease.
EXHIBIT A Headlease
EXHIBIT B Floor Plan of Premises
ARTICLE II
PREMISES AND TERM
2.1 Premises. Subject to and with the benefit of the provisions of this
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Sublease, Sublandlord hereby subleases the Premises to Subtenant, and Subtenant
subleases the Premises from Sublandlord. The Premises are subleased in their
condition "as is" on the Commencement Date.
2.2 Term. To have and to hold beginning on the Commencement Date and
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continuing until the Term Expiration Date (the "Term"), subject to earlier
termination as provided herein.
ARTICLE III
RENT
3.1 Monthly Fixed Rent. Subtenant shall Pay Sublandlord the Monthly Fixed
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Rent in advance on the first calendar day of each month included in the Term,
Commencing on the Rent Commencement Date. Monthly Fixed Rent shall include HVAC,
security and nightly janitorial service five (5) days per week.
3.2 Additional Rent. Pursuant to the Headlease, Sublandlord is required to
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pay 100% of all operating, tax, maintenance and repair costs for the Building
(as such terms are defined in the Headlease), and such other amounts payable as
in the Headlease (collectively, the "Operating Costs"). Subtenant shall pay
Sublandlord as additional rent hereunder, 22% of any increase over the base year
of all Operating Costs allocable to the periods of time included in the Term
(the "Additional Rent"). The Base Year for Operating Costs and Taxes are 2003.
Subtenant shall pay such amounts within ten (10) days of billing by Sublandlord,
which bills shall include, where applicable, copies of the applicable statements
from Headlandlord. Any surplus shall be promptly refunded to Subtenant and
Subtenant shall promptly pay any deficit in such payments after the Headlandlord
finally determines the amounts payable by the Sublandlord under the Headlease.
Capital repairs and repairs to the roof, structural elements and Building
systems shall be the sole responsibility of the Sublandlord and shall not be
included in the Operating Costs.
3.3 Electricity. A separate meter for the measurement of electric
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consumption has been installed covering the Premises. Subtenant shall pay for
such electric consumption directly to the utility company providing such
service.
3.4 Telephone. Sublandlord and Subtenant have entered into a separate
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agreement covering charges for telephone usage.
3.5 Internet Connectivity. Subtenant shall be responsible for payment for
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its internet connectivity.
3.5 Payments. All payments of Monthly Fixed Rent and Additional Rent shall
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be made to Sublandlord at Sublandlord's Address set forth in Section 1.1, or to
such other address as Sublandlord may designate by notice to Subtenant from time
to time.
ARTICLE IV
SUBTENANT'S CONENANTS
Subtenant covenants during the Term and such further time as Subtenant
occupies any part of the Premises:
4.1 Subtenant's Payments. Subtenant shall pay all Monthly Fixed Rent,
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Additional Rent and any other amounts payable when due.
4.2 Maintenance and Repair. Subtenant shall, at its own cost and expense,
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keep and maintain all parts of the interior of the Premises in good condition in
accordance with the Headlease.
4.3 Occupancy and Use. Subtenant shall not use the Premises for any uses
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other than the Permitted Uses, and shall not make use of the Premises which is
prohibited by any applicable law, ordinance, code, regulation, license, permit,
variances or governmental order.
4.4 Alterations and additions. Subtenant shall not make any improvements,
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repairs, alterations, replacements, decorations and/or additions to the Premises
without first obtaining the written approval of the Sublandlord, which approval
shall not be unreasonably withheld or delayed, and the written approval of the
Headlandlord on the terms and conditions set forth in the Headlease.
All construction work required or permitted by this Sublease shall be done
in a good and workmanlike manner and in compliance with all applicable laws and
all lawful ordinances, regulations and orders of governmental authority and
insurers of the Building.
4.5 Assignment and Subletting. Except with Sublandlord's prior written
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consent, which consent shall not be unreasonably withheld or delayed, Subtenant
shall not assign, transfer, mortgage or pledge this Sublease, or sublease (which
term shall be deemed to include the granting of concessions and licenses and the
like) all or any part of the Premises, or suffer or permit this Sublease or the
leasehold estate hereby created or any other rights arising under this Sublease
to be assigned, transferred or encumbered, in whole or in part, whether
voluntarily, involuntarily or by operation of law, or permit the occupancy of
the Premises by anyone other than Subtenant. Any attempted assignment, transfer,
mortgage, pledge, sublease or encumbrance without such consent shall be void.
In the event that any assignee or transferee of Subtenant pays to Subtenant
any amount in excess of the Monthly Fixed Rent, Additional Rent and any amounts
and/or charges then payable hereunder, Subtenant shall promptly pay one hundred
(100) percent of said excess to Sublandlord as and when received by Subtenant.
If Subtenant shall receive from any assignee or transferee, either directly or
indirectly, any consideration for the assignment of this Sublease, either in the
form of cash, goods or services, Subtenant shall pay an amount equivalent to one
hundred (100) percent of such consideration to Sublandlord as and when received
by Subtenant.
Notwithstanding the foregoing, any assignment, transfer, mortgage or pledge
of this Sublease is subject to and conditioned upon receipt of the prior written
consent of the Headlandlord as provided in the Headlease.
No assignment or subletting shall affect the continuing primary liability
of Subtenant (which, following the assignment, shall be joint and several with
the assignee).
4.6 Indemnification. Except to the extent caused by the gross negligence or
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willful misconduct of Landlord, its agents, servants or employees, Subtenant
shall indemnify and hold harmless Sublandlord, Sublandlord's agents and
employees, from and against any and all claims, demands, suits, judgments,
liabilities, costs and expenses, including reasonable attorneys' fees and
damages, both real and alleged, arising out of or in connection with Subtenant's
use and possession of the Premises, or arising out of the failure of Subtenant,
its agents, contractors or employees to perform any covenant, term or condition
of this Sublease or the Headlease to be performed by the Subtenant hereunder, or
any injury to person or damage to property on or about the Premises, resulting
in part or whole by the negligence or misconduct of Subtenant, its agents,
servants or employees. Sublandlord agrees to indemnify and hold Subtenant
harmless from and against any and all claims, demands, suits, judgments,
liabilities, costs and expenses, including reasonable attorneys' fees, arising
out of the failure of Sublandlord, its agents, contractors or employees to
perform any covenant, term or condition of this Sublease or of the Headlease to
be performed by Sublandlord Hereunder.
4.5 Insurance. Subtenant shall maintain in responsible companies with a
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general policy rating of A or better and a financial class of VI or better by
A.M. Best, Inc. and qualified to do business and in good standing in
Massachusetts, comprehensive general liability insurance covering the Premises
insuring Sublandlord and Headlandlord as well as Subtenant, with limits which
shall at the commencement of the term, be at least $2,000,000 per occurrence in
respect to injury to person (including death) and from time to time during the
Term shall be for such higher limits, if any, as are customarily carried in the
Marlborough and Westborough areas with respect to similar properties, property
damage insurance which shall at the commencement of the Term be at least
$500,000 per occurrence in respect to property damage or destruction, including
loss or use thereof and worker's compensation insurance with statutory limits
covering all of Subtenant's employees working in the Premises. In addition,
Subtenant shall be responsible for insuring its personal property. Prior to the
Commencement Date, Subtenant shall deposit promptly with Sublandlord,
certificates of such insurance naming Sublandlord and Headlandlord as additional
insured, and all renewals thereof not less than fifteen (15) days prior to
expiration bearing the endorsement that the policies will not be cancelled or
change to reduce insurance provided thereby until after thirty (30) days written
notice to Sublandlord.
ARTICLE V
CASUALTY AND TAKING
5.1 Termination of Headlease. In the event that during the Term, all or any
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part of the Premises or the Headlease Premises are destroyed or damaged by fire
or other casualty, or taken by eminent domain, and either Sublandlord or
Headlandlord terminates the Headlease pursuant to its terms because of such
damage, destruction or taking, then this Sublease shall likewise terminate on
the same date that the Headlease terminates. Sublandlord shall give Subtenant
prompt notice of such termination and the date on which it shall occur.
5.2 Repair and Restoration. In the event any such damage, destruction or
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taking of the Premises and this Sublease is not terminated pursuant to section
5.1 above, then Sublandlord shall use reasonable effort to cause Headlandlord to
repair and restore the Premises to the extent required by the terms of the
Headlease.
5.3 Reservation of Award. Any and all rights to receive awards made for
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damages to the Premises and the leasehold hereby created accruing by reason of
exercise of eminent domain or by reason of anything lawfully done in pursuance
of public or other authority, are reserved to Sublandlord and Headlandlord.
Subtenant hereby releases and assigns to Sublandlord and Headlandlord all
Subtenant's rights to such awards and covenants to deliver such further
assignments and assurances thereof as Sublandlord and Headlandlord may from time
to time request.
ARTICLE VI
HEADLEASE
6.1 Sublease Subject to Headlease. This Sublease is subject to the
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Headlease. Subject to the terms of this Section 6.1, all terms and conditions of
the Headlease are incorporated into and made a part of this Sublease as if
Sublandlord were the landlord thereunder and Subtenant were the tenant. In case
of a conflict between the incorporated provisions of the Headlease and the
remaining provisions of this Sublease, the later shall control. Subtenant
assumes and agrees to perform the tenant's obligations under the Headlease
during the Term, except that the obligation to pay rent or other amounts to
Headlandlord under the Headlease shall not be an obligation of Subtenant, and
Subtenant shall pay the rent to Sublandlord under this Sublease. Subtenant shall
not commit or suffer any act or omission that will violate any of the provisions
of the Headlease.
If the Headlease terminates as a result of a default or breach of the
Subtenant under this Sublease and/or the Headlease, then the Subtenant shall be
liable to the Sublandlord for the direct damages suffered as a result of such
termination. Subtenant covenants not to commit or suffer any act or omission
that will violate the Headlease.
6.2 Excluded Obligations. Notwithstanding anything to the contrary herein,
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the incorporated provisions of the Headlease are amended or qualified as
follows:
i. Sublandlord shall not be liable under any circumstances for a loss or
injury to property, or interference with Subtenant's business, however
occurring, incidental to any failure to furnish any utilities or services.
ii. Sublandlord shall have no responsibility to perform or construct (or to
pay the cost of performing or constructing) any repair, maintenance or
improvement in or to the Premises, except as specifically set forth in Section
2.1 of this Sublease, and except for repair and maintenance of the Premises'
HVAC systems, plumbing systems and twenty-four (24) hour card access system.
iii. Rent shall be abated under this Sublease only to the extent that
Sublandlord receives a corresponding rent abatement under the Headlease.
iv. Wherever the Headlease grants to Sublandlord a grace or cure period,
the corresponding grace or cure period under this Sublease shall be two (2)
business days shorter in duration.
The parties acknowledge that Sublandlord's ability to satisfy certain of
its obligations to Subtenant under this Sublease is contingent upon the full and
timely performance of Headlandlord's obligations under the Headlease. The
parties further acknowledge that, while Sublandlord will use reasonable efforts
to cause Headlandlord to perform its obligations under the Headlease,
Sublandlord will not be liable to Subtenant for any breach of Sublandlord's
obligations under this Sublease, nor shall any breach diminish Sublandlord's
rights hereunder, where the same is caused by or attributable to failure of the
Headlandlord to perform its obligations under the Headlease.
6.3 Headlandlord's Rights. Headlandlord shall have all rights with respect
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to the Premises which it has reserved to itself as landlord under the Headlease.
6.4 Termination of Headlease. In the event that Headlandlord terminates the
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Headlease pursuant to its terms or the Headlease otherwise terminates or
Expires, this Sublease shall likewise simultaneously terminate.
ARTICLE VII
MISCELLANEOUS
7.1 Notices from One Party to the Other. All notices required or permitted
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hereunder shall be in writing, duly signed by the party giving such notice and
transmitted by prepaid registered or certified mail, return receipt requested,
by telegram or telefax, or delivered by hand and addressed as follows:
to Sublandlord: ePresence, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Fax. No. (000) 000 0000
Attn. Contracts and Legal Dept.
To Subtenant: Switchboard, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Fax. No. (000) 000 0000
Attn. General Counsel
Or to such other address as Sublandlord or Subtenant shall designate by written
notice to each other. Any notice shall be deemed duly given on the second
business day following the date of mailing, or when delivered to such address by
hand, or if transmitted by telefax or telegram, on the business day received.
7.2 Estoppel Certificates. Upon not less than twenty (20) days prior notice
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by the Sublandlord, Subtenant shall execute, acknowledge and deliver to
Sublandlord a statement in writing, addressed to such person as Sublandlord
shall designate, certifying (a) that this Sublease is unmodified and in full
force and effect, (b) the dates to which Monthly Fixed Rent, additional Rent
have been paid, and (c) that Sublandlord is not in default hereunder (or if in
default, specifying the nature of such default in reasonable detail). The person
to whom it is addressed as to the facts stated therein may rely upon any such
certificate.
7.3 Brokerage. Subtenant and Sublandlord mutually represent and warrant
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that they have dealt with no broker in connection with this transaction. Each
agrees to defend, indemnify and save the other harmless from and against any and
all costs, expenses or liability for any compensation, commission or charges
claimed by any broker or agent with respect to the indemnifying party's dealings
in connection with this Sublease.
7.4 Applicable Law. This Sublease shall be governed and construed in
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accordance with the laws of the Commonwealth of Massachusetts.
7.5 Security Deposit. None required.
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7.6 Construction. If any terms, covenant, condition or provision of this
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Sublease or the application thereof to any person or circumstances shall be
declared invalid or unenforceable by the final ruling of a court of competent
jurisdiction having final review, the remaining terms, covenants, conditions and
provisions of this sublease and there application to persons or circumstances
shall not be affected thereby and shall continue to be enforced and recognized
as valid agreements of the parties.
This Sublease constitutes the entire agreement between the parties hereto
with respect to the transactions contemplated herein, and it supercedes all
prior discussions, undertakings or agreements, including without limitations the
Offer to Sublease, between the parties.
There are no oral or written agreements between Sublandlord and Subtenant
affecting this Sublease. This Sublease may be amended, and the provisions hereof
may be waived or modified, only by instruments in writing executed by authorized
representatives of Sublandlord and Subtenant.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Sublease.
Unless repugnant to the context, the words "Sublandlord" and "Subtenant"
appearing in this Sublease shall be construed to mean those named above and
their respective heirs, executors, administrators, successor and assigns, and
those claiming through or under them respectively. If there be more than one
tenant, the obligations imposed by this Sublease upon Subtenant shall be joint
and several.
7.7 Access and Security. Normal Building hours shall be from 7:00a.m. to
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6:00p.m. Monday through Friday. The Building has a twenty-four (24) hour card
access system. Subtenant shall be responsible for its own security access at the
entrance to the Premises.
7.8 Signs. Subject to the prior written approval and signage criteria of
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Headlandlord under the terms of the Headlease, Subtenant, at Subtenant's
expense, may place signage at the side entrance to the Premises.
7.9 Cafeteria. Subtenant shall have the right to use the cafeteria in the
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Building during the Term of this Sublease under the terms of a cost sharing
arrangement separate from this agreement.
7.10 Health Club Access. Sublandlord shall make available to Subtenant, at
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no additional cost to Subtenant, ten (10) passes to the health club located in
the Building for use during the Term of this Sublease.
THIS SUBLEASE is executed as a sealed instrument in two or more
counterparts on the day and year first written above.
SUBLANDLORD SUBTENANT
EPRESENCE, INC. SWITCHBOARD, INC.
By: /s/Xxxxxxx X. Xxxxxxxxx By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxx
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Title: SVP & CFO Title: VP & CFO
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