Exhibit 10.9
SUBLEASE
Execution Date: As of September 30, 2005
Reference is made to that certain Lease ("Lease") dated April 11, 1997 by
and between Burlington Crossing, LLC, as Landlord ("Prime Landlord") and ▇▇▇▇▇
Clinic Hospital, Inc., as Tenant ("Landlord") as amended by that certain First
Amendment to Lease dated as of May 24, 2005, with respect to the building
("Building") known as ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇. The "Premises"
under the Lease consist of certain space located on the second floor of the
Building and other appurtenant rights, as more particularly defined in the
Lease.
WHEREAS, Landlord desires to sublease the Premises to iRobot Corporation
("Tenant"); and
WHEREAS, the Premises contain 24,019 square feet, more or less, of
rentable area on the second floor of the Building and are substantially as shown
on Exhibit A; and
WHEREAS, Tenant desires to sublease the Premises on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the rents to be paid by Tenant to
Landlord and the full and complete performance of all terms, covenants, and
conditions herein contained to be performed by Landlord and Tenant, the parties
hereto hereby agree as follows:
I. SUBLEASE OF PREMISES
A. Landlord hereby subleases the Premises to Tenant, and Tenant hereby
hires and takes the Premises from Landlord, in accordance with the terms and
conditions set forth herein. This Sublease shall be upon all of the same terms
and conditions of the Lease applicable to the Premises, except to the extent
inconsistent with the provisions of this Sublease (in which event the provisions
of this Sublease shall control).
B. As appurtenant to Tenant's demise of the Premises, Tenant shall have
the right to use, in common with Landlord and others entitled thereto, the
common facilities, building service fixtures and equipment set forth in the
second paragraph of Section 2.1 of the Lease, all as subject to Prime Landlord's
Rules and Regulations and such other reasonable rules and regulations as may be
made by Prime Landlord or Landlord from time to time of which Tenant is given
notice.
C. Each party shall have the right, at its own cost, to remeasure the
Premises within thirty (30) days after the Execution Date. Such remeasurement
shall be effected in accordance with the most recent standards published by the
Building Owners and Managers Association. If either party exercises such right,
such remeasurement shall be
effected by an architect or engineer who is reasonably acceptable to the other
party. If such remeasurement is not completed and the written results delivered
to both parties on or before the date thirty (30) days after the Execution Date,
then the parties shall be conclusively deemed to have agreed that the Total
Rentable Area of the Premises is as set forth in Article II of this Sublease,
and neither party shall have any further right to remeasure the Premises.
II. DEFINITIONS
All of the terms used in this Sublease shall have the same definitions as
set forth in the Lease, except as herein set forth:
LANDLORD: ▇▇▇▇▇ Clinic Hospital, Inc.
TENANT: iRobot Corporation
PRIME LANDLORD: Burlington Crossing, LLC
TERM COMMENCEMENT DATE: As to Phase 1, November 1, 2005; as to
Phase 2, January 1, 2006.
TERMINATION DATE: 11:59 p.m. on September 30, 2007.
TOTAL RENTABLE AREA OF
THE SUBLET PREMISES: As of the Phase 1 Term Commencement Date,
5,000 square feet, more or less; as of the
Phase 2 Term Commencement Date, 19,019
square feet, more or less.
BASE RENT: $18.50 per square foot, or a total of
$92,500 for the Phase 1 space based on a
rentable area of 5,000 square feet and an
occupancy date of November 1, 2005;
$351,851.50 for the additional space to be
occupied upon the Phase 2 Term Commencement
Date, based on a rentable area of 19,019
square feet and an occupancy date of January
1, 2006, all as more particularly set forth
on Exhibit B hereto. The rent payable
hereunder shall be adjusted as necessary to
reflect actual square footage and to conform
with Article III B.
TENANT'S ELECTRICITY COSTS: Landlord's electricity costs.
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PERMITTED USE: General office, research and development and
uses ancillary thereto, so long as such
ancillary uses are permitted under
applicable laws. Tenant shall obtain all
governmental permits and approvals required
for the Permitted Use, if any.
III. TERM
A. The term of this Sublease in respect of each Phase of the Sublet
Premises shall commence as of the Term Commencement Date in respect of such
Phase and shall, subject to the provisions of this Sublease, terminate on the
Termination Date.
B. Landlord shall use good faith efforts to deliver the space pertaining
to each Phase on the date so specified herein or as soon thereafter as possible.
However, except as set forth immediately hereinafter, if Landlord fails to
deliver the space pertaining to a given Phase to Tenant on a timely basis, then
Landlord shall have no obligation or liability to Tenant other than to continue
to use good faith efforts to deliver said space to Tenant as soon as possible
thereafter. In the event that Landlord does not deliver the Phase 2 space by
January 15, 2006, then the rent otherwise payable hereunder shall be reduced by
the sum of $1,500 for each full week thereafter that the space has still not
been delivered, provided that if Landlord has not delivered the Phase 2 space by
February 15, 2006, then the rent otherwise payable hereunder shall be reduced by
the sum of $2,500 for each full week thereafter that the space has still not
been delivered. As to each Phase rent shall begin to accrue on the later of the
Term Commencement Date or the date that the space has been delivered to Tenant.
C. Tenant shall have no right to extend the term of the Sublease.
IV. CONDITION OF THE PREMISES
A. Except as set forth in Section B of this Article IV, Tenant shall take
the Premises "as-is", in the condition in which the Premises are in as of the
Term Commencement Date, without any obligation on the part of Landlord to
prepare or construct the Premises for Tenant's occupancy, Tenant hereby
acknowledging that, except as expressly set forth in this Sublease, Landlord has
made no representation or warranty to Tenant as to the condition of the Premises
or the Building.
B. Notwithstanding the foregoing, Landlord shall deliver the Premises in
broom clean condition.
V. PAYMENT OF RENT AND TENANT'S ELECTRICITY COSTS
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A. All rent and Tenant's Electricity Costs payable under this Sublease
shall be paid by Tenant at the following address, or such other place as
Landlord may designate in writing to Tenant:
▇▇▇▇▇ Clinic
Finance Department
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
B. Subject to Article III B, the November, 2005 rent for Phase 1 of the
Premises shall be due and payable within three (3) business days of the Phase 1
Term Commencement Date, and the January, 2006 rent for Phase 2 of the Sublet
Premises shall be due and payable on the Phase 2 Term Commencement Date;
otherwise, throughout the term of this Sublease rent shall be payable in equal
monthly installments on the first day of each month in advance. Tenant's
Electricity Costs shall be paid within fifteen (15) days of receipt of proof of
Landlord's electricity ▇▇▇▇ in respect of the Premises for the immediately prior
service period.
VI. OPERATING COST ESCALATION PAYMENTS
A. Commencing as of the Term Commencement Date and continuing thereafter
throughout the remainder of the term of this Sublease, Tenant shall pay to
Landlord, as additional rent, all Operating Cost Escalation payments which are
payable by Landlord as tenant under the Lease to Prime Landlord in respect of
the term of this Sublease. Tenant's obligations under this Section A shall be
pro-rated with respect to any calendar year that does not fall entirely within
the term of this Sublease. Tenant shall pay to Landlord the estimated monthly
payments on account of Operating Cost Escalation payments at the same times and
in the same manner as Landlord is required to make the corresponding estimated
monthly payments to Prime Landlord. Tenant shall pay any other proportional
amounts required on account of Operating Cost Escalation payments within fifteen
(15) days of billing therefor by Prime Landlord.
B. Tenant shall be entitled to any net rebate or abatement of taxes
assessed against the Premises in respect of the term of this Sublease.
C. Tenant acknowledges and agrees that Landlord shall have no
responsibility or control with respect to the amount of Operating Cost
Escalation payments payable by Tenant.
D. If Landlord has not exercised its rights, pursuant to Section 4.2 of
the Lease, to audit Prime Landlord's records relating to Landlord's Statements
with respect to any calendar year during the term of this Sublease, Landlord
shall, upon written request of Tenant, and at Tenant's expense, exercise such
right and provide the results of such audit to Tenant.
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VII. MAINTENANCE, REPAIR AND REPLACEMENT
Tenant and not Landlord shall be responsible for performing all
maintenance, repair and replacement within the Premises that is required under
the Lease. Notwithstanding the foregoing, if Landlord is required to perform any
maintenance, repair or replacement as the result of the negligence or willful
misconduct of Tenant or Tenant's agents, employees or contractors, Tenant shall,
within thirty (30) days of billing therefor, reimburse Landlord for the full
amount of such cost, except in the event that such work is caused by an event,
act or condition which is covered by any casualty or property insurance
maintained by Landlord, in which event Tenant shall only be responsible for the
costs of such maintenance, repair or replacement to the extent that such costs
are within the deductible carried by Landlord under such policy.
VIII. TENANT ALTERATIONS
A. Tenant shall not make any alteration, installation, removal, addition
or improvement ("Installations") to the Premises without obtaining the prior
written consent of Prime Landlord and Landlord. Landlord agrees that its consent
shall not be unreasonably withheld or delayed. Landlord's review of any such
Installations may, at Landlord's election, include the prior review of Tenant's
plans by a structural or mechanical engineer. Landlord shall provide Tenant
reasonable access to the Premises following the Execution Date in order to take
measurements and make other preparations for such Installations.
B. Without limiting the foregoing, Tenant's right to make any such
Installations shall be subject to all of the restrictions and conditions set
forth in the Lease.
C. Any Installations or other work performed by Tenant shall be performed
in accordance with Prime Landlord's construction rules and regulations, if any.
D. Tenant hereby agrees that, at Landlord's election (which election
Landlord shall make at the time that Landlord approves Tenant's plans for such
Installations if Tenant so requests of Landlord in writing at the time that
Tenant requests Landlord's approval for such Installations), Tenant shall, at
its sole cost and expense, remove any Installations made by Tenant in the
Premises and shall repair any damage to the Premises or the Building caused by
the installation or removal of such Installations.
IX. INDEMNITY, SUBROGATION, AND LIABILITY INSURANCE
A. Tenant shall indemnify Landlord and Prime Landlord from and against any
liability for injury, loss, accident or damage on the Premises to any person or
property not
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caused by the indemnified party, or its employees or agents, and from any
claims, actions, proceedings and costs in connection therewith, arising from
omission, fault, negligence or other misconduct of Tenant or arising from any
use made or thing done or occurring in the Premises caused by Tenant's
negligence or willful and wanton act. Further, Tenant agrees to keep Tenant's
employees working in the Premises covered by workers' compensation insurance and
to furnish Landlord with a certificate thereof. In no event, however, shall
Tenant be liable for consequential, indirect or incidental damages.
B. Tenant shall procure, and keep in force and pay for commercial general
liability insurance insuring Tenant on a claims made basis against all claims
and demands for personal injury liability (including, without limitation, bodily
injury, sickness, disease, and death) or damage to property which may be claimed
to have occurred from and after the time Tenant and/or its contractors enter the
Premises of not less than One Million ($1,000,000.00) Dollars for injury to or
death of a single person, not less than Two Million ($2,000,000.00) Dollars per
occurrence and Five Hundred Thousand ($500,000.00) Dollars for property damage
or in such higher amounts then customary and maintained by comparable companies
using similar buildings in Tenant's business in the greater Boston area. Such
insurance shall be effected with an insurer reasonably approved by Landlord,
authorized to do business in the Commonwealth of Massachusetts under a valid and
enforceable policy wherein Tenant names Landlord and Prime Landlord as
additional insureds. Such insurance shall provide that it shall not be canceled
or modified without at least thirty (30) days' prior written notice to each
insured named therein. On or before the time Tenant and/or its contractors enter
the Premises and thereafter not less than fifteen (15) days prior to the
expiration date of each expiring policy, original copies of the policy provided
for herein issued by the insurer, or a certificate of such policy setting forth
in full the provisions thereof and issued by such insurer shall be delivered by
Tenant to Landlord.
X. SUBLETTING AND ASSIGNMENT
Tenant shall not assign this Sublease or make any sublease of any portion
of the Premises without obtaining the prior written consent of Prime Landlord
and Landlord. Landlord agrees that its consent shall not be unreasonably
withheld or delayed.
XI. SUBLEASE SUBJECT TO LEASE
Tenant acknowledges that this Sublease is subject and subordinate in all
respects to the Lease (including, without limitation, Prime Landlord's rights of
access to the Premises and its right to terminate the Lease in the event of
certain takings and casualties). Therefore:
A. Tenant agrees that it will not take any action which would constitute
an Event of Default under the Lease, as applicable to this Sublease, and Tenant
agrees to indemnify, defend, and hold Landlord harmless from and against any and
all liability, loss, cost, damage or expense, including reasonable attorneys
fees, arising out of or in
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connection with any act or failure on the part of Tenant which constitutes an
Event of Default under this Sublease or under the Lease. In no event, however,
shall Tenant be liable for consequential, indirect or incidental damages.
B. Wherever Landlord's consent is required under this Sublease, the
consent of Prime Landlord shall also be required. It is understood and agreed
that Landlord shall not be deemed to be unreasonable in withholding its consent
if Prime Landlord has not granted its consent.
C. Tenant acknowledges and agrees that Landlord shall have no obligation
to perform any maintenance, repair, service or other obligation which is
required to be performed by Prime Landlord under the Lease. In the event that
Prime Landlord fails to perform any such obligation, Landlord shall use its good
faith efforts to require Prime Landlord to comply with its obligations under the
Lease.
D. Tenant acknowledges and agrees that Landlord shall have no liability or
obligation to Tenant based upon any act or omission of Prime Landlord or the
agents, employees, or contractors of Prime Landlord. Without limiting the
foregoing, Landlord shall have no liability to Tenant, and Tenant's obligation
to pay rent due under this Sublease shall not be reduced or abated, in the event
that Prime Landlord fails to provide any service, to perform any maintenance or
repairs, or to perform any other obligation which Prime Landlord is required to
provide or to perform pursuant to the Lease, except that if Landlord's
obligation to pay base rent and other charges under the Lease is abated with
respect to the Premises, then Tenant's obligation to pay base rent and other
charges under this Sublease shall be abated in the same proportion that
Landlord's obligation to pay base rent and other charges under the Lease is
abated.
E. Landlord shall, in its capacity as tenant under the Lease, perform and
fulfill all of its covenants, obligations and agreements under the Lease in
accordance with the provisions thereof, and shall not do anything which would
cause the Lease to be terminated or forfeited. Landlord shall indemnify and hold
Tenant harmless from and against any and all claims, liabilities, losses,
damage, demands expenses (including, without limitation, reasonable attorney's
fees), actions and causes of action (collectively "Losses") by reason of any
breach or default on the part of Landlord, in its capacity as tenant under the
Lease by reason of which the Lease is terminated or forfeited. Notwithstanding
anything to the contrary herein contained: (i) in no event shall Landlord be
responsible to Tenant for any Losses arising from any act or omission of Tenant,
or anyone claiming by, through, or under Tenant, and (ii) in no event shall
Landlord be liable for consequential, indirect or incidental damages.
XII. NOTICES
Any notices required or permitted to be sent under this Sublease shall be
sent to the following addresses, or such other addresses as either party may
advise the other:
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To Landlord: ▇▇▇▇▇ Clinic
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Copy to: ▇▇▇▇▇ Clinic
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Legal Services
To Tenant: iRobot Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copy To: ▇▇▇▇▇▇▇ Procter LLP
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
XIII. BROKER
Landlord and Tenant warrant and represent to each other that each has
dealt with no broker or agent in connection with this Sublease other than CB
▇▇▇▇▇▇▇ ▇▇▇▇▇/Whittier Partners and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & Partners. Tenant
agrees to indemnify, defend, and hold Landlord harmless of and from all claims
(including reasonable attorneys fees and expenses) that may be made by any
person against Landlord for breach of Tenant's warranty. Landlord agrees to
indemnify, defend and hold harmless Tenant from all claims (including reasonable
attorneys fees and expenses) which may be made by any person against Tenant for
breach of Landlord's warranty. Landlord shall pay the commission due to CB
▇▇▇▇▇▇▇ ▇▇▇▇▇/Whittier Partners and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & Partners.
XIV. PERMITTED USE
Tenant shall have the right to use the Premises for the Permitted Use, as
defined in Article II of this Sublease, and for no other purpose whatsoever,
unless such purpose has first been approved in writing by Prime Landlord and
Landlord.
XV. APPLICABLE LEASE PROVISIONS
The following provisions of the Lease shall have no applicability to this
Sublease:
- Article 3
- Exhibits B, H, I, J, K
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XVI. LIMITATIONS ON LIABILITY
In no event shall either party or the agents or employees (or any of the
officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals or representatives and the like,
disclosed or undisclosed, thereof) of either party ever be liable for
consequential, indirect, or incidental damages. Without limiting the foregoing,
in no event shall either party or the agents or employees (or any of the
officers, trustees, directors, partners, beneficiaries, joint venturers,
members, stockholders or other principals or representatives and the like,
disclosed or undisclosed, thereof) of either party ever be liable for lost
profits of the other party.
XVII. TENANT'S ACCESS TO PREMISES
Subject to causes beyond Landlord's reasonable control, Tenant shall have
access to the Sublet Premises throughout the term of this Sublease, 24 hours per
day, 365 days per year.
XVIII. CONSENT OF PRIME LANDLORD
The parties hereby acknowledge and agree that this Sublease shall not be
effective unless and until the parties have obtained the consent of Prime
Landlord. Therefore, if Prime Landlord has not given its written consent to this
Sublease on or before 7 days after the Execution Date of this Sublease, either
party shall have the right, exercisable by giving written notice to the other
party prior to the date that Prime Landlord gives its written consent to this
Sublease, to cancel this Sublease and to render it void and without force or
effect.
EXECUTED UNDER SEAL as of the date first above-written.
LANDLORD:
▇▇▇▇▇ CLINIC HOSPITAL, INC.
By: /s/ ▇▇▇ ▇'▇▇▇▇▇▇ EVP, CFO & Treasurer
-------------------------------------
(Name) (Title)
Hereunto Duly Authorized
TENANT:
iROBOT CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. Clear
-------------------------------------
▇▇▇▇▇▇▇▇ ▇. Clear, SVP & CFO
Hereunto Duly Authorized
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