Exhibit 10.52
SUBLEASE
This SUBLEASE (the "Sublease") is dated as of the ___ day of _________,
2001 by and between AUTHORISZOR, INC., a Delaware corporation ("Sublandlord"),
and DIRECTECH, INC., a Delaware corporation ("Subtenant").
R E C I T A L S
WHEREAS, pursuant to that certain Lease dated as of April 28, 2000 by
and between Massachusetts Mutual Life Insurance Company ("Prime Landlord"), as
landlord, and Sublandlord, as tenant, (the "Prime Lease"), a copy of which Prime
Lease is attached hereto as Exhibit A, Sublandlord leased from Prime Landlord
certain premises (the "Subleased Premises") located on the fifth floor of the
building commonly known as One Van de Graaff Drive, Burlington, Massachusetts
(the "Building"), containing approximately 11,950 rentable square feet of space,
as more fully described in the Prime Lease; and
WHEREAS, Subtenant desires to sublease from Sublandlord the Subleased
Premises (the "Subleased Premises"), and Sublandlord is willing to sublease the
Subleased Premises to Subtenant on the provisions, covenants and conditions
hereinafter set forth.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants made herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and agreed, Sublandlord hereby subleases to Subtenant
and Subtenant hereby takes and hires from Sublandlord the Subleased Premises, on
the terms and conditions set forth below:
I. Defined Terms. All terms defined in the Prime Lease and used herein
shall, unless otherwise defined herein, have the meanings ascribed to such terms
in the Prime Lease.
II. Term. The term of this Sublease (the "Sublease Term") shall
commence on July 1, 2001 (the "Sublease Term Commencement Date"), and shall
expire on April 28, 2005, unless sooner
terminated in accordance with the provisions of this Sublease.
III. Delivery. The Subleased Premises shall be delivered to Subtenant,
broom-clean and free of all occupants but otherwise "as-is, where-is and with
all faults", without representation or warranty, express or implied, and
Subtenant hereby waives, disclaims and renounces any representation or warranty.
IV. Basic Rent. Subtenant shall pay to Sublandlord, in advance, from
and after the Sublease Term Commencement Date, in monthly installments, without
withholding, offset or reduction, Basic Rent at the rate of $31,368.75 per
month, exclusive of electricity charges. Basic Rent for any partial calendar
months at the beginning or end of the Sublease Term shall be prorated on a daily
basis. Subtenant acknowledges that Sublandlord's payments of Basic Rent for the
Sublease Premises are paid to Prime Landlord on the first day of each calendar
month during the Term and Subtenant therefore covenants and agrees that its
payments of Basic Rent hereunder shall be paid to Sublandlord at least two (2)
business days prior to the first of each calendar month.
V. Additional Rent. Subtenant acknowledges that, pursuant to Article 4
of the Prime Lease, Sublandlord is obligated to pay to Prime Landlord additional
rent on account of escalations in operating expenses and real estate taxes for
the Building, as more particularly described in the Prime Lease. Subtenant shall
pay to Sublandlord with its monthly payment of Basic Rent Sublandlord's
additional rent obligations under the Prime Lease, together with any other
additional rent payable from time to time by Sublandlord under the Prime Lease.
Sublandlord shall deliver to Subtenant promptly after receipt thereof any
invoices for Additional Rent delivered to Sublandlord by Prime Landlord.
Additional Rent payable hereunder for any partial calendar month at the
beginning or end of the Sublease Term shall be pro-rated on a daily basis.
VI. Use. The Subleased Premises shall be used for general office
purposes and for no other purposes whatsoever.
VII. Prime Lease. Subtenant agrees that it will do nothing in, on or
about the Subleased Premises which would result in the breach by Sublandlord of
its undertakings and obligations under the Prime Lease. Except for the following
provisions, this Sublease shall be subject to and on all of the terms and
conditions as are contained in the Prime Lease and the provisions of the Prime
Lease are hereby incorporated into this Sublease as if Sublandlord were the
landlord thereunder and Subtenant the tenant thereunder:
The defined economic terms for "Monthly Rent," "Security Deposit,"
"Term," and the like are inapplicable;
A. Section 5.A (Landlord's Work) and Section 5.B (Tenant's Work)
are inapplicable;
B. Article 16 of the Prime Lease (Subletting and Assignment) is
inapplicable;
C. Article 23 of the Prime Lease (Security Deposit) is
inapplicable;
D. Article 24 of the Prime Lease (Brokerage Commission) is
inapplicable;
E. Exhibit B of the Prime Lease (Work Letter) is inapplicable.
Where appropriate, references to "Landlord" in the Prime Lease shall be
deemed to mean "Sublandlord" hereunder and references to "Tenant" in the Prime
Lease shall be deemed to mean "Subtenant" hereunder, it being understood and
agreed that Sublandlord will not be acting as, or assuming any of the
responsibilities of, Prime Landlord, and all references in the Prime Lease to
Landlord-provided services or Landlord insurance requirements, and any other
references which by their nature relate to the owner or operator of the
Building, rather than to a tenant of the Building subleasing space to a
subtenant, shall continue to be references to Prime Landlord and not to
Sublandlord.
VIII. Subtenant's Covenants. Subtenant covenants to Sublandlord to
perform all of the covenants and obligations to be performed by Sublandlord as
Tenant under the Prime Lease as the same relate to the Subleased Premises and to
comply with this Sublease and the applicable provisions of the Prime Lease, as
modified by this Sublease, in all respects. If Subtenant shall fail to make any
payment or perform any act required to be made or performed by Subtenant under
the Prime Lease pursuant to Subtenant's assumption of Sublandlord's obligations
thereunder as they relate to the Subleased Premises, and such default is not
cured by Subtenant by the first to occur of (i) one-half of the period specified
in the Prime Lease for curing such default, or (ii) five (5) days prior to the
expiration of such Prime Lease cure period, Sublandlord, without waiving or
releasing any obligation or default hereunder, may (but shall be under no
obligation to) make such payment or perform such act for the account and at the
expense of Subtenant, and may take any and all such actions as Sublandlord in
its sole discretion deems necessary or appropriate to accomplish such cure. If
Sublandlord shall reasonably incur any expense in remedying such default,
Sublandlord shall be entitled to recover such sums upon demand from Subtenant as
Additional Rent under this Sublease.
IX. Sublandlord's Covenants. Sublandlord covenants to Subtenant to
perform all of the terms and provisions required of it under the Prime Lease and
to promptly pay when due all rents due and accruing to Prime Landlord under the
Prime Lease. Sublandlord will use reasonable efforts to enforce on behalf of
Subtenant Sublandlord's rights under the Prime Lease. Nothing contained in this
Sublease shall be construed as a guarantee by Sublandlord of any of the
obligations, covenants, warranties, agreements or undertakings of Prime Landlord
in the Prime Lease, nor as an undertaking by Sublandlord to Subtenant on the
same or similar terms as are contained in the Prime Lease.
X. Indemnification. Subtenant shall indemnify Sublandlord and hold
Sublandlord harmless from and against any and all claims, demands suits,
judgments, liabilities, costs and expenses, including reasonable attorney's
fees, arising out of or in connection with Subtenant's use and possession of the
Subleased 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 of the Prime Lease to be performed by Subtenant hereunder.
XI. Assignment and Subletting. Subtenant shall not assign this Sublease
or sublet the Subleased Premises in whole or in part, nor shall Subtenant
participate in any transaction which would constitute an assignment under the
terms of Article 16 of the Prime Lease.
XII. Security Deposit. Upon execution hereof, Subtenant has delivered
to Sublandlord the sum of $127,466.67 ("Subtenant's Security Deposit"), such sum
to be held by Sublandlord as security for the performance of Subtenant's
obligations under this Sublease. Upon the occurrence of any default by Subtenant
hereunder after expiration of any applicable grace or cure periods, Subtenant
agrees that Sublandlord may apply all or any part of Subtenant's Security
Deposit, together with accrued interest, if any, to any obligation of Subtenant
hereunder. Such application shall not excuse the default of Subtenant hereunder.
If all or any portion of Subtenant's Security Deposit is applied by Sublandlord
against any of Subtenant's obligations hereunder, Subtenant shall promptly
restore Subtenant's Security Deposit to the original sum. Interest on
Subtenant's Security Deposit shall in all instances be retained by Sublandlord.
XIII. Brokers. Each of Sublandlord and Subtenant represents and
warrants to the other that it has not dealt with any broker in connection with
this Sublease other than Xxxxxxxx Xxxxx Xxxxxxxx & Everest and CB/Xxxxxxx Xxxxx
(collectively, "Broker"), and each agrees to indemnify, defend and hold the
other harmless from and against any breach of said representation and warranty.
Sublandlord shall be responsible for the commission to be paid to the Broker
pursuant to a separate agreement.
XIV. Electricity Charge. Subtenant shall be responsible for payment of
all electrical charges for the Subleased Premises (together with any excess
costs for electrical service occasioned by Subtenant's use of the Subleased
Premises), to be paid by Subtenant prior to the date when due directly to the
utility company, to the extent that the same are separately metered, and, to the
extent not so metered, to Sublandlord within ten (10) days after billing
therefor.
XV. Insurance. Subtenant shall comply with all insurance requirements
of the Prime Lease, including the provisions of Article 8 thereof. Subtenant
shall deliver to Sublandlord certificates which evidence such insurance prior to
the Sublease Term Commencement Date, and thereafter as required under the Prime
Lease, and shall name in all such insurance policies both the Prime Landlord and
Sublandlord as additional insureds thereunder.
XVI. Parking. Subtenant shall be entitled to use of the parking spaces
allocated to Sublandlord under the Prime Lease, in accordance with and subject
to the provisions of Article 26 of the Prime Lease. Sublandlord shall have no
obligation to police the parking areas or enforce Subtenant's parking rights
hereunder.
XVII. Miscellaneous.
A. Counterparts. This instrument may be signed in
counterparts, which, taken together, shall constitute
a single Sublease instrument.
B. Notices. Notices to Sublandlord or Subtenant required
or permitted hereunder shall be sent in the manner
prescribed in the Prime Lease, to the Premises until
further notice in the case of notices to Sublandlord,
and to the Subleased Premises in the case of notices
to Subtenant.
C. Amendments. This Sublease may not be changed or
terminated orally but only by an agreement in writing
signed by both Sublandlord and Subtenant.
D. No Waiver. The failure of either party to insist on
strict performance of any covenant or condition
hereof, or to exercise any option contained herein,
shall not be construed as a waiver of such covenant,
condition or option in any other instance.
E. Memorandum of Lease. Subtenant shall not record this
Sublease or any memorandum hereof.
F. Governing Law. This Sublease has been negotiated,
executed and delivered in the Commonwealth of
Massachusetts, and the parties agree that the rights
and obligations of the parties under this Sublease
shall be governed and construed in accordance with
the laws of the Commonwealth of Massachusetts.
G. Severability. The invalidity of any of the provisions
of this Sublease will not impair or affect in any
manner the validity, enforceability or effect of the
rest of this Sublease.
H. Entire Agreement. All understandings and agreements,
oral or written, heretofore made between the parties
hereto are merged in this Sublease, which alone fully
and completely expresses the agreement between
Sublandlord and Subtenant.
I. Relationship Between the Parties. This Sublease does
not create the relationship of principal and agent,
nor does it create any partnership, joint venture, or
any association or relationship between Sublandlord
and Subtenant other than as and to the extent
specifically provided in this Sublease, the sole
relationship of Sublandlord and Subtenant being that
of sublandlord and subtenant as provided in this
Sublease.
J. Remedies Cumulative. Except as specifically provided
herein, all rights and remedies of Sublandlord under
this Sublease shall be cumulative and none shall
exclude any other rights and remedies allowed by law.
K. Condition Precedent. The effectiveness of this
Sublease is expressly subject to and conditional upon
obtaining Prime Landlord's written consent to this
Sublease pursuant to Article 16 of the Prime Lease.
L. Termination of Prime Lease. If either Prime Landlord
or Sublandlord terminates the Prime Lease pursuant to
its terms or the Prime Lease otherwise terminates or
expires, this Sublease shall likewise and
simultaneously terminate.
[End of text on page]
IN WITNESS WHEREOF, the parties have executed this Sublease as an
instrument under seal as of the date first written above.
SUBLANDLORD:
AUTHORISZOR, INC., a Delaware corporation
By:
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Name:
Title:
SUBTENANT:
DIRECTECH, INC.
By:
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Name:
Title:
Consent to the foregoing Sublease is hereby granted.
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation
By:
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Name:
Title:
EXHIBIT A
PRIME LEASE
[See Attached]
