SUBLEASE
EXHIBIT
10.01
This
Sublease (the “Sublease”)
is
made as of March 1, 2006 (the “Effective
Date”)
by and
between CiDRA Corporation, a Delaware corporation (“Sublandlord”),
and
XXX.xxx, Inc., a Delaware corporation (“Subtenant”).
W I T N E
S
S E T H:
WHEREAS,
pursuant to a certain Lease dated as of March 11, 1998 between XXX Xxxxxx Road,
LLC (“Master
Landlord”)
as
landlord thereunder, and Sublandlord as tenant thereunder, as amended by
Amendment No. 1 to Lease dated June 1, 1998 and Amendment No. 2 dated March
8,
2004, a copy of which is attached as Exhibit A
hereto
(the “Master
Lease”),
Master Landlord leased to the Sublandlord approximately 89,766 rentable square
feet of space (comprised of approximately 77,066 usable square feet of space
and
approximately 12,700 square feet of common area space; the “Premises”)
located in the building (the “Building”)
situated on the land commonly known as 00 Xxxxxx Xxxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxx (the “Property”),
upon
and subject to the terms and conditions set forth in the Master Lease;
and
WHEREAS,
Subtenant desires to Sublease from Sublandlord and Sublandlord desires to
Sublease to Subtenant, a portion of the Premises comprised of approximately
18,387 rentable square feet of space (comprised of approximately 15,612 usable
square feet and 2,435 square feet of allocable common area space) for the uses
set forth in the Master Lease located on the ground floor of the Building,
as
shown on the site plan attached hereto as Exhibit
B,
including all furniture and fixtures therein (hereinafter referred to as the
“Subleased
Premises”). The
Subleased Premises comprise approximately 20% (“Subtenant’s
Share”)
of the
Premises, which percentage is based upon a fraction, the numerator of which
is
the rentable square feet of the Subleased Premises and the denominator of which
is the rentable square feet of the Premises, which percentage shall be revised
in the event of an increase or decrease of the Premises or Subleased Premises;
and
WHEREAS,
Subtenant and Sublandlord also desire to allow access to certain common area
spaces located within the Premises, including hallways; corridors; bathrooms;
mailroom; loading dock; shipping and receiving area (to the extent permitted
under the Master Lease); cafeteria area; foyers and fitness center, as shown
on
the site plan attached hereto as Exhibit C (hereinafter referred to as the
“Common
Area”).
In
addition, Subtenant shall be entitled to the nonexclusive right to use the
common areas set forth in Paragraph 2 of the Master Lease to the extent
available to Sublandlord; and
WHEREAS,
capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Master Lease.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto hereby agree as follows:
1.
DEMISE
OF PREMISES.
Sublandlord hereby demises and Subleases to Subtenant, and Subtenant hereby
hires and takes from Sublandlord, the Subleased
Premises for the Term (as hereinafter defined) and upon the conditions
hereinafter set forth. Except as expressly provided herein, the Subleased
Premises are being delivered in their AS IS condition, without representation
or
warranty whatsoever by Sublandlord. Sublandlord represents that the copy of
the
Master Lease attached hereto is a true and complete copy of the Master Lease;
that the Master Lease is in full force and effect; that Sublandlord is not
in
default under the Master Lease; and that, to the best of its knowledge, Master
Landlord is not in default under the Master Lease.
2.
TERM.
(a)
Subject to Section 21 hereof, the term of this Sublease shall commence on March
1, 2006 (the “Commencement
Date”)
and
expire on the Expiration Date (as defined below), subject to earlier termination
or extension, as provided herein (the “Term”).
(b)
The
Term shall end at 5:00 p.m., Eastern Standard Time, on March 25, 2011 (the
“Expiration
Date”),
unless the term shall sooner terminate or be extended pursuant to the provisions
hereof or pursuant to law.
3.
SUBORDINATION
TO AND INCORPORATION OF THE MASTER LEASE.
(a)
This
Sublease is in all respects subject and subordinate to the terms and conditions
of the Master Lease. Subtenant agrees that Subtenant has reviewed and is
familiar with the Master Lease, and will not do or suffer or permit anything
to
be done which would result in a default or breach on the part of Sublandlord
as
tenant under the Master Lease or cause the Master Lease to be terminated. If,
however, the Master Lease is terminated prior to its scheduled expiration,
for
any reason whatever (except as a result of a breach or default by Sublandlord),
as to all or any portion of the Subleased Premises, this Sublease shall likewise
and to the same extent terminate, without further notice and without further
obligation or liability on the part of Sublandlord. If the Master Lease shall
be
terminated by the Master Landlord as a result of any breach of the Master Lease
or default arising from Subtenant’s failure or neglect in observing the terms
and conditions thereof, Subtenant shall be liable to Sublandlord for all damages
incurred or suffered by Sublandlord as a result thereof, and shall indemnify
and
defend Sublandlord from and against the same. If the Master Lease shall be
terminated by the Master Landlord as a result of any breach of the Master Lease
or default arising from Sublandlord’s failure or neglect in observing the terms
and conditions thereof, Sublandlord shall be liable to Subtenant for all damages
incurred or suffered by Subtenant as a result thereof, and shall indemnify
and
defend Subtenant from and against same. These indemnities shall survive the
expiration or early termination of Sublease.
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(b)
Except as otherwise expressly provided in this Sublease, the terms, covenants,
conditions, rights, obligations, remedies and agreements of the Master Lease
are
incorporated into this Sublease by reference and made a part hereof as if fully
set forth herein and shall constitute the terms of this Sublease, mutatis,
mutandis,
Sublandlord
being substituted for “Landlord” thereunder and Subtenant being substituted for
“Tenant” thereunder, except
to
the extent that such terms are specifically inconsistent with the terms of
this
Sublease, except for Sections 3 (except the second to last sentence of the
last
paragraph thereof), 4, 6 (except the definition of Common Expenses and the
sentences which follow to the end of the second paragraph thereof), the last
paragraph of Section 12 of the Master Lease, 15, Landlord’s obligations under
Section 21 of the Master Lease, 23, 25, 29, 36 and 37 of the Master
Lease.
(c)
During the Term, Sublandlord covenants and agrees (i) to observe and perform
all
of its obligations under the Master Lease to the extent not assumed by Subtenant
under this Sublease and not to take any action or inaction that would cause
an
event of default by Sublandlord thereunder, (ii) to provide Subtenant with
prompt notice of any modification to the Master Lease and any notice of default
by Subtenant under the Master Lease received from Master Landlord, and (iii)
not
to enter into any amendment or modification of the Master Lease which would
have
a material impact on this Sublease or the Subleased Premises without the prior
written consent of Subtenant.
4.
RENT.
(a)
Commencing on the June 1, 2006 (the “Rent
Commencement Date”)
and
monthly thereafter until the Expiration Date, subject to the below provisions
of
this Section 4(a), Sublessee shall pay to Landlord annual fixed rent (the
“Fixed
Rent”) equal
to
the following:
|
Date
|
Fixed
Rent Per RSF
|
Monthly
Installments
|
|
6/1/06
- 3/31/07
|
$11.50
|
$17,620.88
|
|
4/1/07-3/25/11
|
$12.06
|
$18,478.94
|
There
shall be no Fixed Rent or Subtenant Surcharges (as hereinafter defined) from
the
Commencement Date through May 31, 2006. The rent is payable in advance in equal
monthly installments of amounts listed in the table above prorated on a per
diem
basis in the case of any partial months during the Term. The first installment
of Fixed Rent shall be due on the Rent Commencement Date and each monthly
installment thereafter shall be due on or before the first (1st) day of calendar
month preceding the calendar month for which such payment is made, without
notice or demand and without abatement, set-off or deduction. The Fixed Rent
includes Subtenant’s share of charges for Common Expenses (as defined in the
Master Lease), Taxes (as defined in the Master Lease), electricity, insurance,
trash removal, cleaning supplies, bathroom supplies, cafeteria service subsidy,
fitness center usage, parking and exterior security system, but does not include
Subtenant Surcharges.
(b)
In
addition to the Fixed Rent and any other sums which Subtenant may be obligated
to pay pursuant to any other provision of this Sublease, Subtenant agrees to
pay
to Sublandlord all Subtenant Surcharges as additional rent hereunder in
accordance with the provisions of
3
Section
4(c) of this Sublease, below. As used herein, the term “Subtenant
Surcharges”
shall
mean, (A) commencing in 2007, Subtenant’s Share of all increases in (i) Common
Expenses in excess of Sublandlord’s Common Expenses due for calendar year 2006
(“Base
Year”),
on a
prorated basis, (ii) expenses for trash removal, cleaning supplies, bathroom
supplies, cafeteria service subsidy, and security system due for the Base Year,
and (iii) Taxes in excess of Sublandlord’s Taxes due for the Base Year; and (B)
all amounts which become due and payable by Landlord to the Master Landlord
under the Master Lease (without additional charge or profit to Landlord) whether
as additional charges or for any extra services or otherwise, in each case
which
would not have become due and payable but for the acts and/or failures to act
of
Subtenant under this Sublease or which are otherwise attributable to the
Subleased Premises, including but not limited to: (i) any increases in the
Master Landlord’s or Sublandlord’s fire, rent or other insurance premiums
resulting from any act or omission of Subtenant, (ii) any additional rent or
charges under the Master Lease payable by Sublandlord on account of any
additional service used by Subtenant as may be provided under the Master Lease
or with the consent of Master Landlord, and (iii) due to any excess use of
electricity as detected by an independent electrical consultant hired by
Sublandlord.
(c)
Subtenant shall pay the additional rents set forth in subsection (b) of this
Section 4 within five (5) business days after the presentation of copies of
Master Landlord’s statements therefore by the Sublandlord to
Subtenant,
provided that to the extent that the Master Landlord does not issue statements
therefor, Subtenant shall make any such payment five (5) business days before
the corresponding or related payment is due and payable by Sublandlord to the
Master Landlord or to a third party, upon prior written notice from Sublandord
to Subtenant advising of same, or as otherwise herein provided. Sublandlord
shall have the right to require Subtenant to pay monthly estimates of the
Subtenant Surcharges to the extent that Sublandlord is required to make monthly
estimated payment of Additional Rent under Paragraph 6 of the Master Lease,
which amount will be due on the first of each month, commencing with the next
month following written notice from Sublandlord (together with substantiating
detail from the Master Landlord of the assessment of such additional charges
against Sublandlord); provided,
however,
Sublandord shall provide Subtenant with prompt notice of any true-up of such
estimates between Master Landlord and Sublandlord, and the parties hereto shall
effect a corresponding true-up of the estimated Subtenant Surcharges paid by
Subtenant in advance hereunder. Notwithstanding the foregoing, (i) if the
Master Lease provides that a payment of additional rent is payable by
Sublandlord to the Master Landlord within a shorter period of time, Subtenant
shall pay the additional rent provided for in this Section 4 relating to such
payment of additional rent in immediately available funds no later than the
business day next preceding the date that Sublandlord shall be so required
to
pay, upon prior written notice from Sublandord to Subtenant advising of same,
and (ii) if the Master Lease provides that a payment of additional rent
thereunder is payable by Sublandlord to the Master Landlord on demand, then
Subtenant shall pay any additional rent provided for in this Section 4 relating
to such payment of additional rent under the Master Lease upon the demand of
Sublandlord.
Any
failure or delay by Sublandlord in billing any sum set forth in this Section
4
shall not constitute a waiver of Subtenant's obligation to pay the same in
accordance with the terms of this Sublease.
(d)
Sublandlord shall promptly furnish to Subtenant a copy of each notice or
statement from the Master Landlord affecting the Subleased Premises with respect
to Subtenant's
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obligations
hereunder. If Sublandlord, of its own accord or the reasonable request (and
sole
cost) of Subtenant, disputes the correctness of any such notice or statement
(which right to dispute shall not be deemed to create an obligation to litigate,
arbitrate or mediate), and if such dispute is resolved in Sublandlord's favor,
or if Sublandlord shall receive any refund of additional rent with or without
a
dispute, Sublandlord shall promptly apply to Subtenant’s account any refund
(after deducting from the amount of any such refund an equitable portion of
all
expenses, including court costs and reasonable attorneys' fees, incurred by
Sublandlord in resolving such dispute) received by Sublandlord in respect (but
only to the extent) of any related payments of additional rent made by Subtenant
less any amounts theretofore received by Subtenant directly from the Master
Landlord and relating to such refund; provided,
however,
that,
if Sublandlord is required under the terms of the Master Lease to pay such
amounts pending the determination of any such dispute (by agreement or
otherwise), Subtenant shall pay the full amount of the Fixed Rent and Subtenant
Surcharges in accordance with this Sublease and the Master Landlord’s statement
or notice.
(e)
The
Fixed Rent, Subtenant Surcharges and any other amounts payable pursuant to
this
Sublease shall be paid by Subtenant to Sublandlord at the address first set
forth in Section 24 hereof, or at such other place as Sublandlord may hereafter
designate from time to time in writing, in lawful money of the United States
of
America, by, at Sublandlord's option, a good unendorsed check, subject to
collection, as and when the same become due and payable, without demand therefor
and without any deduction, set-off or abatement whatsoever. Any other amounts
of
additional rents and other charges herein reserved and payable shall be paid
by
Subtenant in the manner and to the persons set forth in the statement from
Sublandlord describing the amounts due. All Subtenant Surcharges and all other
costs, charges and expenses which Subtenant assumes, agrees or is obligated
to
pay to Sublandlord pursuant to this Sublease shall be additional rent and in
the
event of nonpayment thereof Sublandlord shall have all the rights and remedies
with respect thereto as are herein provided for in case of nonpayment of the
Fixed Rent reserved hereunder.
(f)
A
monthly late charge in the amount of five percent (5%) of the amount due may,
at
Sublandlord’s option, be charged as additional rent for any payments of Fixed
Rent received later than the tenth (10th)
day of
the month. A fifty dollar ($50.00) service charge may be charged as additional
rent for any returned checks.
5. USE. Subtenant
shall have the right to use and occupy the Subleased Premises for uses permitted
under the Master Lease or as otherwise agreed to by the parties as evidenced
by
the execution of Landlord’s Consent to Sublease attached hereto as Exhibit
D.
6. SECURITY
DEPOSIT.
On the
Commencement Date, Subtenant
shall
pay
to Sublandlord a security deposit equal to approximately three month’s rent
hereunder, which shall be FIFTY TWO THOUSAND, EIGHT HUNDRED SIXTY TWO and 63/100
Dollars
($52,862.63) (“Security
Deposit”),
to
secure the faithful performance of the terms of this Sublease, including the
payment of all rental amounts that come due. Sublandlord shall maintain the
same
in a risk-free, interest-bearing separate account (e.g., certificate of deposit,
or the like), earmarked as being Subtenant’s Security Deposit hereunder and
established using Subtenant’s taxpayer identification number. It is agreed that
in the event Subtenant defaults beyond any applicable notice and cure
5
period
in
respect of any of the terms, provisions, covenants, and conditions of this
Sublease, including, but not limited to, the payment of Fixed Rent and Subtenant
Surcharges, Sublandlord may draw upon the funds held on account as the Security
Deposit to the extent required for the payment of any Fixed Rent and Subtenant
Surcharge or any other sum as to which Subtenant is in default or for any sum
which Sublandlord may expend or may be required to expend by reason of
Subtenant’s default (beyond applicable notice and cure periods) in respect of
any of the terms, provisions, covenants, and conditions of this Sublease,
including, but not limited to, any damages or deficiency accrued before or
after
summary proceedings or other re-entry by Sublandlord. In the event that
Subtenant shall fully and faithfully comply with all of the terms, provisions,
covenants, and conditions of this Sublease, the funds on deposit with
Sublandlord, including all interest accrued thereon, shall be returned to
Subtenant within thirty (30) days after the Expiration Date and after delivery
of entire possession of the Subleased Premises to Sublandlord. In the event
of
the termination of the Master Lease prior to expiration of this Sublease,
Sublandlord shall return the Security Deposit and all interest accrued thereon
to Subtenant within three (3) business days following expiration of the Master
Lease. Sublandlord agrees to return the Security Deposit and all accrued
interest thereon to Subtenant within three (3) business days following the
deposit with Sublandlord by a permitted assignee of funds equal to the original
Security Deposit, to be held as the new Security Deposit hereunder, in the
name
of such assignee (or, at Subtenant’s direction, to apply the security deposit
for the benefit of the designated assignee of this Sublease) and, otherwise,
Subtenant covenants that it will not assign or encumber or attempt to assign
or
encumber any funds on deposit, and that, except as provided herein, neither
Sublandlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. Except in connection
with the termination or expiration of this Sublease, in the event Sublandlord
withdraws funds on deposit as the Security Deposit as permitted hereunder,
Subtenant shall provide cash in the amount of the amount so drawn within seven
(7) days after Sublandlord notifies Subtenant of the withdrawal so that at
all
times the total amount of funds in the account held by Sublandlord shall be
equal to the aggregate Security Deposit. Notwithstanding anything to the
contrary above, in the event Sublandlord is involved in a bankruptcy or
insolvency proceeding under state or Federal law at any time during the final
three months of the Term of this Sublease, then the parties hereto agree that
Subtenant may elect to satisfy its then current monthly rental obligation
hereunder by directing Sublandlord, in writing, to apply the corresponding
portion of the Security Deposit as a credit toward Subtenant’s rental
obligations hereunder.
7. CONDITION
OF PREMISES.
Subtenant represents and warrants that it has made a thorough examination of
the
Subleased Premises, all appurtenances attached thereto, and all improvements
located therein, and it is familiar with the condition thereof. Subtenant
acknowledges that it enters into this Sublease without any representation or
warranties by Sublandlord or anyone acting or purporting to act on behalf of
Sublandlord, as to present or future condition of the Subleased Premises or
the
appurtenances thereto or any improvements therein or of the Building, except
as
otherwise specifically set forth herein. Subject to the following sentences,
it
is further agreed that Subtenant does and will accept the Subleased Premises
“AS
IS” in its present condition. Sublandlord has no obligation to perform any work
therein, or contribute to the cost of any work, other than 50% of the cost
of
the renovation to the front lobby area (being conducted by Subtenant, as a
permitted Alteration (as defined in Section 8) hereunder), designed to permit
general access to the Building for Sublandlord and Subtenant, and segregated
office access to each of the parties from within that front lobby area.
Sublandlord
6
agrees
to
reimburse Subtenant for this amount within three (3) business days of delivery
of an itemized statement from Subtenant (or Subtenant’s architect) listing such
costs.
8.
ALTERATIONS.
Subtenant shall not make any changes, alterations, additions or improvements
(collectively, “Alterations”)
to the Subleased Premises without (i) first obtaining the written consent of
Sublandlord, which consent shall not be unreasonably withheld, conditioned
or
delayed, and (ii) if required by the Master Lease, first obtaining the written
consent of the Master Landlord. Sublandlord hereby acknowledges and agrees
that
it has consented to Subtenant’s plans for Subtenant’s initial build-out of the
Subleased Premises shown on the floor plan and statement of work attached hereto
as Exhibit D, subject to Master Landlord’s consent to the same.
9.
FAILURE
OF SUBLANDLORD TO PERFORM OBLIGATIONS.
Notwithstanding anything to the contrary stated herein, Subtenant acknowledges
and agrees that Sublandlord shall have no obligation to provide any services
to
the Premises or to perform the terms, covenants, conditions or obligations
contained in the Master Lease on the part of Master Landlord to be performed.
Subject to the below provisions of this Section 9, Subtenant agrees to look
solely to the Master Landlord for the furnishing of such services and the
performance of such terms, covenants, conditions or obligations. In the event
that Master Landlord shall fail to furnish such services or to perform any
of
the terms, covenants, conditions or obligations contained in the Master Lease
on
its part to be performed, Sublandlord shall be under no obligation or liability
whatsoever to Subtenant for such failure; however,
Sublandlord shall use commercially reasonable best efforts, upon Subtenant’s
request, to cause Master Landlord to comply with its obligations under the
Master Lease affecting the Subleased Premises, including without limitation
making written requests of Master Landlord to so perform and, when deemed
necessary by Subtenant, bringing legal action, at Subtenant’s cost, to enforce
Sublandlord’s rights under the Master Lease relating to the Subleased Premises.
10. ACCESS.
Sublandlord, Master Landlord and their respective agents, employees, contracts
and designers may, at reasonable times and upon reasonable notice, enter the
Subleased Premises (a) to view the Subleased Premises, (b) without implying
any
obligation on the part of Sublandlord to do so, make repairs and alterations
as
Sublandlord and/or Master Landlord should elect to do, and (c) to show the
Subleased Premises to others, before the expiration of the Term. Master
Landlord’s right to access is governed by the Master Lease. Sublandlord shall
use reasonable efforts to not unreasonably interfere with the conduct of
Subtenant’s business at the Subleased Premises with respect to the aforesaid
access rights.
11. INDEMNIFICATION;
INSURANCE.
Subtenant shall indemnify, defend and hold harmless Sublandlord and Master
Landlord and
their
respective partners, agents, employees, mortgagees or contractors from and
against any and all claims, actions, liabilities, losses, damages, costs and
expenses (including, but not limited to, court costs and reasonable attorneys'
fees and disbursements) arising from or in connection with (i) the use of the
Subleased Premises during the Term, (ii) the conduct or management of any work
or thing whatsoever done in or about the Subleased Premises during the Term
and
from any condition or any injury to or death of persons or damage to property
occurring or resulting from an occurrence during the Term in or about the
Subleased Premises, unless caused by the Sublandlord; and (ii) any breach or
default on the part of
7
the
Subtenant in the performance of any covenant or agreement on the part of the
Subtenant to be performed pursuant to the terms of this Sublease which causes
a
breach of the Master Lease or from any negligent act or omission on the part
of
the Subtenant or any of its “Related Parties,” as hereinafter defined, related
to or arising from the use and occupancy of the Subleased Premises or the
Cafeteria, fitness center and other Common Areas under this Sublease and Master
Lease. The Subtenant further agrees to indemnify the Sublandlord from and
against all reasonable costs, expenses (including reasonable attorneys’ fees)
and other liabilities incurred in connection with any such indemnified claim
or
action or proceeding brought thereon, any and all of which, if reasonably
suffered, paid or incurred by the Sublandlord, the Subtenant shall pay promptly
upon demand to the Sublandlord as additional rent. Sublandlord shall indemnify,
defend and hold harmless Subtenant and Master Landlord and their respective
partners, agents, employees, officers, directors, mortgagees or contractors
from
and against any and all claims, actions, liabilities, losses, damages, costs
and
expenses (including, but not limited to, court costs and reasonable attorneys'
fees and disbursements) arising from or in connection with the gross negligence
or willful misconduct of Sublandlord or its partners, employees, agents or
contractors, or any breach or default by Sublandlord of Sublandlord's
obligations under this Sublease. The terms of this Section shall survive the
termination or expiration of this Sublease. Subtenant shall be required to
maintain at its own expense, during the term of this Sublease, Comprehensive
General Liability Insurance, including contractual liability coverage, with
minimum limits of not less than $5,000,000 per occurrence, and applicable
Worker’s Compensation insurance with statutory minimum limits, and Employer’s
Liability Insurance with minimum limits of not less than $5,000,000. Such
insurance policies shall be issued by insurance companies licensed to do
business in Connecticut, shall name Sublandlord and Master Landlord as
additional insureds as their interests may appear and shall provide that the
insurance shall not be canceled or materially changed in the scope or amount
of
coverage unless fifteen (15) days advance written notice is given to
Sublandlord. Prior to the Commencement Date, Subtenant shall provide Sublandlord
with a certificate of insurance, evidencing such coverages and naming
Sublandlord and Master
Landlord as
additional insureds.
12. ASSIGNMENT
AND SUBLETTING.
Except
as more fully provided in Sections 12(a), 12(b) and 12(c) below, Subtenant
shall
not assign, mortgage, or encumber, nor sublet, the Subleased Premises, or any
part thereof, to anyone other than a Successor Entity (as defined below), an
Affiliate (as defined below) or other permitted assignee/sublessee, without
the
prior written consent of Sublandlord and Master Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed. Anything in this Section
12 to the contrary notwithstanding:
(a) Subtenant
may, upon thirty (30) days’ prior written notice to Sublandlord and Master
Landlord (but without Sublandlord’s and Master Landlord’s prior consent), assign
its entire interest in this Sublease, or sublet the whole of the Subleased
Premises, on one or more occasions, to an Affiliate of Subtenant or to a
Successor Entity of Subtenant, provided
that the
following conditions have been met: (i) Subtenant shall not be in default beyond
expiration of applicable notice and cure periods, if any, of any of the terms,
covenants, conditions and agreements of this Sublease as of the date of
assignment or sublet, as the case may be; (ii) such assignee or sublessee shall
have a net worth, as of the proximate date of the assignment or sublet, at
least
equal to the net worth of Subtenant as of the date hereof, as evidenced by
the
assignee’s or sublessee’s most recent audited financial statements, no more than
twelve (12) months old, or most recent unaudited, interim financial statements,
as the case may be; and (iii) in the case of an
8
assignment
or sublet, Subtenant shall remain primarily liable for the performance or
observance of all of the terms and provisions on Subtenant’s part to be
performed or observed under this Sublease for the remainder of the then current
term (it being understood and agreed that Sublessee shall be released from
all
of such future obligations in the event the assignee or sublessee extends or
renews the Sublease or contracts for the sublet of additional space within
the
Premises). Subtenant’s notice to the Sublandlord and Master Landlord shall
include information and documentation showing that each of the above conditions
has been, or as of the effective date of assignment or sublet will be,
satisfied. In the case of an assignment or sublease for which consent would
be
required hereunder, Subtenant shall reimburse the Master Landlord for any
reasonable and documented costs that may be incurred by the Master Landlord
in
connection with such proposed assignment or sublease, including, without
limitation, the reasonable and documented costs of making investigations as
to
the acceptability of any proposed assignee or subtenant, and reasonable and
documented attorneys’ fees with respect to each proposed assignment or sublease,
subject in any event to a cap of $500.00, in connection with each proposed
assignment or sublet, as the case may be.
(b) If
Subtenant is a corporation, limited liability company, partnership, or similar
entity, and if Subtenant experiences a Change of Control (as defined below)
during the Term, such Change of Control shall constitute an assignment under
this Section 12 and shall necessitate Sublandlord and Master Landlord’s
consents, subject to and except as otherwise provided in this Section 12. The
provision in the foregoing sentence of this Section 12(b) requiring consent
shall not apply to Subtenant so long as Subtenant is an entity with a class
of
outstanding securities which is listed or quoted on a recognized securities
exchange or market immediately prior to the effective date of the proposed
Change of Control transaction, or if in excess of 50% of its voting stock is
owned directly or indirectly by another entity with a class of securities which
are so listed or quoted, immediately prior to the effective date of the proposed
Change of Control transaction.
(c) For
the
purpose of this Sublease, an “Affiliate”
of
a
party shall mean any entity which directly or indirectly controls or is
controlled by or is under common control with such party. For the purposes
of
this Section 12, “control”
(including “controlling,”
“controlled
by”
and
“under
common control with”)
as
used with respect to any entity, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and
policies of such entity, whether through the ownership of voting securities,
or
by contract or otherwise. A “Successor
Entity,”
as
used
in this Section, shall mean an entity assuming this Sublease in connection
with
such entity’s acquisition of all or substantially all of the assets of
Subtenant, its successors or assigns (by stock or asset acquisition, merger,
consolidation or the like), or any successor to a Successor Entity.
For
purposes hereof, a “Change
of Control”
shall
mean the occurrence after the date hereof of any of the following (i) an
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”))
(a
“Person”),
other
than Subtenant or an employee benefit plan sponsored by Subtenant, becomes
(for
the first time, as result of the subject transaction) the beneficial owner
(as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Subtenant representing more than fifty percent (50%) of the total
voting power represented by Subtenant’s then
9
outstanding
voting securities,
or (ii)
Subtenant merges into or consolidates with any other Person, or any Person
merges into or consolidates with Subtenant and, after giving effect to such
transaction, the stockholders of Subtenant immediately prior to such transaction
own outstanding voting securities which are less than in excess of 50% of the
aggregate voting power of Subtenant or the successor entity of such transaction,
or (iii) Subtenant sells or transfers all or substantially all of its assets
to
another Person and the stockholders of Subtenant immediately prior to such
transaction own outstanding voting securities of Subtenant representing less
than 50% of the aggregate voting power of the acquiring entity immediately
after
the transaction.
13. CASUALTY
AND CONDEMNATION.
Notwithstanding any provision hereof to the contrary, in the event that the
Master Lease shall be terminated by Master Landlord, as applicable, on account
of any fire, casualty or condemnation (and whether or not the Premises are
affected thereby), this Sublease shall terminate as of the same date that the
Master Lease terminates, without any further liability or obligation on the
part
of Sublandlord to Subtenant whatsoever, and Subtenant’s obligation to pay Fixed
Rent, additional rent and Subtenant Surcharges shall be apportioned as of the
date on which Sublandlord’s obligation to pay rent to Master Landlord ceases
under the Master Lease. In the case of any casualty or condemnation affecting
the Premises giving Sublandlord the right to terminate the Master Lease,
Sublandlord may terminate the Master Lease in its sole and unfettered
discretion, and Sublandlord shall incur no liability or obligation to Subtenant
in so doing, and Subtenant’s obligation to pay Fixed Rent, additional rent and
Subtenant Surcharges shall be apportioned as of the date on which Sublandlord’s
obligation to pay rent to the Master Landlord ceases under the Master Lease.
Sublandlord shall provide Subtenant with notice of such termination
simultaneously with its notice to Master Landlord. As to any other casualty
or
condemnation materially affecting the Subleased Premises, Subtenant shall have
the right to terminate this Sublease (i) if the reconstruction by Master
Landlord of the Subleased Premises has not been substantially completed within
six (6) months after the date of casualty, by delivering written notice of
termination to Sublandlord within thirty (30) days of the expiration of said
six
month period; or (ii) if the casualty occurs in the last year of the term and
cannot be reasonably reconstructed within ninety (90) days of the casualty.
If
Subtenant does not so terminate this Sublease and Sublease and Master Landlord
do not terminate the Master Lease pursuant to the terms of the Master Lease,
(i)
it shall be the obligation of Master Landlord under the Master Lease to repair
and restore the same (to the extent set forth therein), and (ii) Subtenant
shall
be entitled to an abatement (to the extent Sublandlord is entitled to a rent
abatement under the Master Lease) of Fixed Rent and additional rent to the
extent the Subleased Premises are unusable or inaccessible by Subtenant in
the
conduct of its business. The abatement, to the extent applicable, shall be
from
the date of the casualty to the date the Subleased Premises are
restored.
14. CAFETERIA.
Subtenant acknowledges that Sublandlord presently operates a subsidized
cafeteria facility in the Building (the “Cafeteria”).
To
the extent Sublandlord elects to continue to operate a Cafeteria in the Premises
(Sublandlord having no obligation to do so), the Cafeteria shall be available
for the use of the employees and a reasonable number of invitees of Subtenant,
subject to such reasonable rules and regulations as Sublandlord may provide
in
writing to all tenants of the Building.
15. FITNESS
CENTER.
There
is presently a fitness center in the Building, which shall be available to
all
employees of Subtenant on the same terms and conditions as are
10
available
to the employees of all other tenants at the Building, to the extent Sublandlord
elects to continue to operate a fitness center in the Premises (Sublandlord
having no obligation to do so).
Subtenant, and each employee of Subtenant desiring to use the fitness center,
must first sign a release and waiver of liability releasing Sublandlord and
Master Landlord of any liability for injury or damage (including indirect and
consequential damages and reasonable attorneys’ fees) resulting from such use of
the fitness center, and Subtenant agrees to protect, defend, indemnify and
save
the Sublandlord and Master Landlord harmless from and against any and all claims
and liability arising from or as a result of an employee of Subtenant using
the
fitness center. This indemnity shall survive the expiration or early termination
of this Sublease.
16. PARKING.
Subtenant shall have the right to use a ratable portion of Sublandlord’s parking
spaces at the Property to the extent available to Sublandlord under the Master
Lease (and such additional unreserved spaces as shall generally be available
to
Sublandlord at any given time), provided that spaces shall not be designated
as
exclusive or reserved for Subtenant’s use.
17. SIGNAGE.
Subtenant may, at its expense, install signage on its entrance door, subject
to
the prior approval of Master Landlord.
It
is the
responsibility of Subtenant to ensure that any such signage is in compliance
with applicable zoning regulations.
18. FURNITURE.
During
the Term, Subtenant shall have the right to use the existing cubicles in the
Subleased Premises (of which there are approximately 56 in number). Subtenant
shall maintain such cubicles in their current condition, subject to ordinary
wear and tear and shall keep the same lien free; provided, however, that if
any
of such cubicles shall become obsolete or are otherwise unusable or unnecessary
for Subtenant’s operations, Subtenant shall have the right (a) after providing
Sublandlord with ten (10) business days prior written notice of its intention
to
discard and Sublandlord’s failure to retrieve the disassembled cubicles (which
obligation to disassemble shall be Subtenant’s) during such period, to deem the
property abandoned and to discard same at any location off of the Property
in
any lawful manner without any liability for the value of the cubicles therefor;
or (b) to reconfigure the cubicles.
19. ENVIRONMENTAL.
Sublandlord represents and warrants that, to the best of its knowledge, there
are currently no Hazardous Materials or Wastes on, in, at or affecting the
Property in violation of any Law. Sublandlord represents and warrants that
it
has not received any notices or communications from any governmental authority,
of any violation of Law at the Property with respect to the acquisition,
handling, storage, treatment, shipment or disposal of, or any other matters
pertaining to, Hazardous Materials or Wastes at the Property. Sublandlord has
completed a Phase 1 site assessment of the Property and the general area of
the
Property is monitored for certain chemicals related to the previous
operations. Sublandlord
has provided Subtenant with a copy of such Phase 1.
Subtenant
hereby covenants to Sublandlord that: (a) Subtenant shall (i) comply with all
Laws applicable to the discharge, generation, manufacturing, removal,
transportation, treatment, storage, disposal and handling of Hazardous Materials
or Wastes as apply to the activities of the Subtenant, its directors, officers,
employees, agents, contractors, subcontractors, licensees, invitees, successors
and assigns (“Related Parties”) at the Property, (ii) remove any Hazardous
11
Materials
or Wastes unlawfully used or brought onto the Property by Subtenant or any
of
its Related Parties, or otherwise discharged, released or disposed by Subtenant
or any of its Related Parties immediately upon discovery of same in accordance
with all applicable laws and orders of governmental authorities having
jurisdiction, (iii) pay or cause to be paid all costs associated with such
removal including remediation and restoration of the Subleased Premises, and
(iv) indemnify Sublandlord and Master Landlord from and against all losses,
claims and costs arising out of the migration of Hazardous Materials or Wastes
used or brought onto the Property by or otherwise discharged, released or
disposed of by Subtenant or any of its Related Parties from or through the
Subleased Premises into or onto or under other portions of the Building or
the
Property or other properties; (b) Subtenant shall keep the Property free of
any
lien imposed pursuant to any applicable Law in connection with any Hazardous
Materials or Wastes used, brought in to, discharged, released or disposed of
on
the Subleased Premises by Subtenant or any of its Related Parties; (c) Subtenant
or any of its Related Parties shall not install or permit to be installed or
to
exist in the Subleased Premises any asbestos, asbestos-containing materials,
urea formaldehyde insulation or any other chemical or substance which is
unlawful or unlawfully used and has been determined to be a hazard to health
and
environment; (d) Subtenant shall not cause or permit to exist, as a result
of an
intentional or unintentional act or omission on the part of Subtenant or any
of
its Related Parties or any occupant of the Subleased Premises authorized by
Subtenant, its agents, contractors, employees, a releasing, spilling, leaking,
pumping, emitting, pouring, discharging, emptying or dumping of any Hazardous
Materials or Wastes on the Subleased Premises; (e) Subtenant shall give all
notifications and prepare all reports required by Law or any other law with
respect to Hazardous Materials or Wastes existing on, released from or emitted
from the Subleased Premises, or discharged or disposed of as a result of
Subtenant’s or any of its Related Parties’ actions or inactions or business
operations (and shall give copies of all such notifications and reports to
Sublandlord); (f) Subtenant shall promptly notify Sublandlord in writing of
any
unlawful release, spill, leak, emittance, pouring, discharging, emptying or
dumping of Hazardous Materials or Wastes in or on the Subleased Premises; (g)
Subtenant shall pay for periodic environmental monitoring by Sublandlord of
the
Subleased Premises as well as subsurface testing paid as additional rent if
the
Sublandlord reasonably believes a violation of a Hazardous Materials or Waste
Law exists as a result of Subtenant or any of its Related Parties’ actions; and
(h) Subtenant shall promptly notify Sublandlord and Master Landlord in writing
of any summons, citation, directive, notice, letter or other communication,
written or oral, from any local, state or federal governmental agency, or of
any
claim or threat of claim known to Subtenant, made by any third party relating
to
the presence or releasing, spilling, leaking, pumping, emitting, pouring,
discharging, emptying or dumping of any Hazardous Materials or Wastes onto
the
Subleased Premises. Subtenant represents and warrants that, to its knowledge,
Subtenant does not currently use any Hazardous Materials or Wastes in its
business operations in violation of law, and Subtenant shall immediately notify
Sublandlord and Master Landlord prior to bringing any Hazardous Materials or
Wastes onto the Premises for use in Subtenant’s business operations not in
compliance with applicable laws, which notice shall include a list of such
Hazardous Materials or Wastes and quantities thereof. Subtenant shall not be
permitted to bring Hazardous Materials or Wastes on the Property except in
accordance with all laws.
The
term
“Hazardous Materials or Wastes” shall mean any hazardous or toxic materials,
pollutants, chemicals, or contaminants, including without limitation asbestos,
asbestos-
12
containing
materials, urea formaldehyde foam insulation, polychlorinated biphenyls (PCBS)
and petroleum products as defined, determined or identified as such in any
Laws,
as hereinafter defined. The term “Laws” means any federal, state, county,
municipal or local laws, rules or regulations (whether now existing or
hereinafter enacted or promulgated) including, without limitation, the Clean
Xxxxx Xxx, 00 X.X.X. §0000 et
seq.
(1972),
the Clean Xxx Xxx, 00 X.X.X. §0000 et
seq.
(1970),
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Subsection 1802, and The Resource Conservation
and
Recovery Act, 42 U.S.C. Subsection 6901 et
seq.,
any
similar state laws, as well as any judicial or administrative interpretation
thereof, including any judicial or administrative orders or
judgments.
Subtenant
hereby agrees to defend, indemnify and hold harmless Sublandlord and Master
Landlord and their employees, agents, contractors, subcontractors, licensees,
invitees, successors and assigns from and against any and all claims, losses,
damages, liabilities, judgments, costs and expenses (including, without
limitation, attorneys’ fees and costs incurred in the investigation, defense and
settlement of claims or remediation of contamination), excluding consequential
or indirect damages, incurred by such indemnified parties as a result of or
in
connection with the presence or removal of Hazardous Materials or Wastes from
the Subleased Premises resulting from the Subtenant’s occupancy of the Subleased
Premises or as a result of or in connection with activities by Subtenant or
its
Related Parties prohibited under this Section 19. The provisions of the Section
shall survive the expiration or termination of this Sublease.
Sublandlord
hereby agrees to defend, indemnify and hold harmless Subtenant, its employees,
agents, contractors, subcontractors, licensees, invitees, successors and assigns
from and against any and all claims, losses, damages, liabilities, judgments,
costs and expenses (including, without limitation, attorneys’ fees and costs
incurred in the investigation, defense and settlement of claims or remediation
of contamination), excluding consequential or indirect damages, incurred by
such
indemnified parties solely as a result of any Hazardous Materials or Wastes
brought onto the Premises by Sublandlord, except for such damages, claims,
losses, liabilities, judgment costs or expenses that are a result of Subtenant’s
actions or the actions of any of Subtenant’s Related Parties. The provisions of
the Section shall survive the expiration or termination of this Sublease.
20. CONSENTS.
In no
event shall Sublandlord be liable for failure to give its consent or approval
in
any situation where consent or approval has been withheld or refused by
Master
Landlord,
whether
or not such withholding or refusal was proper.
21. CONSENT
OF MASTER LANDLORD.
Subtenant hereby acknowledges and agrees that this Sublease is subject to and
conditioned upon Sublandlord obtaining the written consent (the “Consent”)
of
Master Landlord as provided in the Master Lease. Promptly following the
execution and delivery of this Sublease by Sublandlord and Subtenant,
Sublandlord shall submit this Sublease, together with the form Landlord Consent
to Sublease attached hereto, to Master Landlord. It is expressly understood
and
agreed that notwithstanding anything to the contrary contained herein, the
Term
shall not commence, nor shall Subtenant take possession of the Subleased
Premises or any part thereof, until the Consent has been obtained. Subtenant
hereby agrees that it shall cooperate in good faith with Sublandlord and shall
comply with any reasonable
13
requests
made of Subtenant by Sublandlord and Master Landlord in the procurement of
the
Consent and the negotiation of the Landlord Consent to Sublease. In
the
event that Master Landlord fails to approve this Sublease within five (5)
business days of the date hereof, either party, upon notice to the other within
three (3) business days after the expiration of such five (5) business day
period, may elect to terminate this Sublease, whereupon Sublandlord shall
promptly refund any amounts deposited hereunder, and this Sublease shall be
of
no further force and effect.
22. DEFAULT
BY SUBTENANT.
Subtenant covenants and agrees that in the event that it shall default in the
performance of any of the terms, covenants and conditions of this Sublease
or
the Master Lease, Sublandlord shall be entitled to exercise any and all of
the
rights and remedies to which it is entitled by law, including, without
limitation, the remedy of summary proceeding, and also any and all of the rights
and remedies specifically provided for in the Master
Lease,
which
are incorporated herein and made a part hereof, with the same force and effect
as if herein specifically set forth in full, and that wherever in the
Master
Lease
rights
and remedies are given to Master Landlord therein named, the same shall be
deemed to refer to Sublandlord herein. Notwithstanding anything to the contrary
stated in the Master Lease, the cure periods to which Subtenant shall be
entitled with respect to Subtenant’s defaults under the first paragraph of
Section 22 thereof shall be as follows: (i) five (5) days for monetary defaults,
and (ii) twenty (20) days for nonmonetary defaults. The sixty (60) day period
set forth therein shall be forty-five (45) days with respect to Subtenant’s
defaults.
23. DEFAULT
BY SUBLANDLORD.
If
Sublandlord defaults under any of the terms or provisions of this Sublease
(a
"Sublandlord
Default")
and
does not cure the same within a period of thirty (30) days after written notice
from Subtenant that such a default exists, or within a reasonable period of
time
thereafter if such default cannot reasonably be cured within thirty (30) days,
provided Sublandlord is diligently prosecuting the cure to completion, Subtenant
shall have: (i) all rights and remedies permitted by law for a landlord default;
and (ii) with respect to material defaults, the right to require Sublandlord
to
use reasonable efforts to enforce its self help rights under Section 23 of
the
Master Lease, which reasonable efforts shall not be deemed to include an
obligation to litigate, arbitrate or mediate.
24. NOTICE.
Whenever, by the terms of this Sublease, any notice, demand, request, approval,
consent or other communication (each of which shall be referred to as a
“notice”) shall or may be given either to Sublandlord or to Subtenant, such
notice shall be in writing and shall be sent by hand delivery, reputable
overnight courier, or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows (or to such other address or addresses
as
may from time to time hereafter be designated by Sublandlord or Subtenant,
as
the case may be, by like notice):
|
(a)
|
If intended for Sublandlord, to: | ||
| CiDRA Corporation | |||
|
00
Xxxxxx Xxxx Xxxxx
|
|||
| Xxxxxxxxxxx, XX 00000 | |||
| Attn: Xxxxxxx Xxxxxx, Vice President and General Counsel | |||
14
|
(b)
|
If intended for Subtenant, to: | ||
| XXX.xxx, Inc. | |||
| 000 Xxxx Xxxxx Xxxxx, 0xx Xxxxx | |||
| Xxx Xxxxx, Xxxxxxxxxxx 00000 | |||
| Attn: Xxxxxx Xxxxxx, Vice President - Business Operations |
All
such
notices shall be deemed to have been served on the date of actual receipt (in
the case of hand delivery), or one (1) business day after such notice shall
have
been deposited with a reputable overnight courier, or three (3) business days
after such notice shall have been deposited in the United States mails within
the continental United States (in the case of mailing by registered or certified
mail as aforesaid).
25. OFFER
FOR EXTENSION OF TERM ON EXISTING PREMISES.
Sublandlord’s lease of the Premises expires March 31, 2011, subject to a
one-time right to extend for seven (7) years. At least nine (9) months prior
to
expiration of this Sublease, Sublandlord shall provide Subtenant with written
notice of its intention to extend or not extend, as the case may be, the Master
Lease with the Master Landlord (“Sublandlord’s
Extension Notice”).
If
Sublandlord advises Subtenant in Sublandlord’s Extension Notice of its intention
to extend the Master Lease, or enter into a new lease for the Premises, and
the
conditions described below have been satisfied, then Sublandlord may offer
Subtenant the right, at its sole option, to extend the term of this Sublease
for
a term to be determined by Sublandlord, in its sole discretion (provided,
such
term shall be at least a minimum of one (1) year and no more than three (3)
years, unless otherwise mutually agreed to by the parties), which offer shall
be
made by Sublandlord in writing and delivered to Subtenant at the same time
as
the delivery of Sublandlord’s Extension Notice or commensurate with
Sublandlord’s notification to the Master Landlord of its exercise of its renewal
option under the Master Lease (“Sublandlord
Extension Offer”).
The
Sublandlord Extension Offer shall be on all of the terms herein, except that
the
Fixed Rent shall commence upon the commencement of the extension term and shall
be equal to the greater of (i) 95% of the then Market Basic Rent of the
Subleased Premises (as determined in accordance with Section 25 of the Master
Lease), or (ii) the Fixed Rent at the expiration of the then-current Term,
as
adjusted for Subtenant Surcharges.
The
Sublandlord Extension Offer may be exercised by Subtenant only by notice of
exercise given by Subtenant to Sublandlord within sixty (60) days after receipt
of the Sublandlord Extension Offer. Failure to so exercise within such period
shall render any subsequent attempted exercise void and of no effect, any
principles of law to the contrary notwithstanding. The Sublandlord Extension
Offer may not be exercised if Subtenant shall be in default hereunder beyond
any
applicable notice and cure period either at the time of the attempted exercise
or at the time of the proposed commencement of the extension term.
26. RIGHT
OF FIRST REFUSAL AND FIRST OFFER FOR ADDITIONAL AVAILABLE SPACE.
In the
event that during the Term, Sublandlord desires to sublease any of the Premises
(the “Available
Space”)
to an
entity other than an Affiliate or Successor Entity of Sublandlord, and
Sublandlord either offers to sublease such Available Space (“Right
of First
15
Offer”)
or
receives a bona fide offer to lease such Available Space from an independent
entity other than an Affiliate or Successor Entity of Sublandlord or Subtenant,
Sublandlord shall notify Subtenant in writing within five (5) business days
following receipt by Sublandlord of a bona fide offer from such an entity that
is acceptable to Sublandlord (a “Bona
Fide Offer”)
(including an offer or acceptance from a current tenant or subtenant of the
Building). Subtenant shall have an option, exercisable by notice to Sublandlord
within fifteen (15) business days after receipt of Sublandlord’s notice, to
lease the Available Space in accordance with the provisions contained in this
Sublease, including a term coterminous with the Term; provided, however, (i)
with respect to a Bona Fide Offer, the Fixed Rent for the Available Space shall
be the fixed rent specified in the Bona Fide Offer to Sublandlord, and
Sublandlord shall provide Subtenant with all tenant improvement allowances
and/or rent concessions included in the Bona Fide Offer, and with respect to
the
Right of First Offer, the Fixed Rent shall equal the greater of (i) 95% of
the
then Market Base Rent of the Subleased Premises (as determined in accordance
with Section 25 of the Master Lease), or (ii) the then current Fixed Rent of
the
Subleased Premises, subject to increases as stated herein. Fixed Rent for the
Available Space shall commence on the date Landlord delivers the Available
Space
to Subtenant free of other tenants and occupants. Promptly after Subtenant
exercises this Right of First Refusal or the Right of First Offer, the parties
shall enter into an amendment to this Sublease that incorporates the Available
Space as part of the Subleased Premises, or, at Subtenant’s or Sublandlord’s
option, a separate lease on the Available Space. If Subtenant elects not to
lease the Available Space, Sublandlord shall have the right to lease the
Available Space to any entity on terms and conditions substantially similar
to
those in the Bona Fide Offer or if Subtenant fails to exercise the Right of
First Offer, then upon any terms.
27. COUNTERPARTS;
ETC.
This
Sublease may be executed in one or more counterparts, and by different parties
hereto on separate counterparts, each of which shall be deemed an original,
but
all of which together shall constitute one and the same instrument. For purposes
hereof, the term “business days” shall refer to any weekday other than a U.S.
Federal holiday or bank holiday in the State of Connecticut.
28. HOLDOVER.
If
Subtenant fails to surrender the Subleased Premises at the expiration or earlier
termination of this Sublease, occupancy of the Subleased Premises after the
termination or expiration shall be that of a tenancy at sufferance. Subtenant’s
occupancy of the Subleased Premises during the holdover shall be subject to
all
the terms and provisions of this Sublease and Subtenant shall pay an amount
(on
a per month basis without reduction for partial months during the holdover)
equal to 150% of the sum of the Fixed Rent and Subtenant Surcharges due for
the
period immediately preceding the holdover. No holdover by Subtenant or payment
by Subtenant after the expiration or early termination of this Sublease shall
be
construed to extend the Term or prevent Sublandlord from immediate recovery
of
possession of the Subleased Premises by summary proceedings or
otherwise.
29. BROKER.
Subtenant warrants to Sublandlord that it has had no dealings with any broker,
agent or any other party in connection with the negotiation or execution of
this
Sublease except Sentry
Commercial Real Estate. Subtenant agrees to indemnify, defend and hold
Sublandlord harmless from and against any and all claims, cost, expense or
liability for
16
commissions
or other compensation claimed by any other broker or agent with which Subtenant
has dealt in connection with this Sublease.
[remainder
of page intentionally left blank; signature page follows]
17
IN
WITNESS WHEREOF, Sublandlord and Subtenant herein have duly executed this
instrument on the day and year first above written.
| SUBLANDLORD: | CIDRA CORPORATION | |
| |
|
|
| By: | F. Xxxxx Xxxxxx | |
|
Name: F. Xxxxx Xxxxxx |
||
| Title: President & CEO | ||
| SUBTENANT: | XXX.xxx, Inc. | |
| |
|
|
| By: | Xxxxx X. Xxxxxxx | |
|
Name: Xxxxx X. Xxxxxxx |
||
| Title: President & CEO | ||
18
