Massachusetts-Bedford-24 Crosby Drive Sublease - RSA Security Inc. and Atex Media Command Inc.
AGREEMENT OF SUBLEASE
This Agreement of Sublease (this "SUBLEASE") is made as of the
10th day of January 2003 by and between RSA Security Inc., a Delaware
corporation with offices at 174 Middlesex Turnpike, Bedford, Massachusetts
(hereinafter referred to as "SUBLANDLORD"), and Atex Media Command, Inc., a
Delaware corporation with offices at 15 Crosby Drive, Bedford, Massachusetts
(hereinafter referred to as "SUBTENANT").
WITNESSETH:
WHEREAS, pursuant to that certain Lease by and between Beacon
Properties, L.P. (the "PRIME LANDLORD") and Sublandlord (f/k/a Security Dynamics
Technologies, Inc.) dated March 11, 1996, as amended by a First Amendment to
Lease dated May 10, 1997 and by a Second Amendment to Lease dated April 8, 1998
(the "PRIME LEASE" a copy of which Prime Lease, redacted as appropriate, is
attached hereto as EXHIBIT A), Sublandlord has leased space located at the
Crosby Corporate Center, known in the Prime Lease as Building 3, 24 Crosby
Drive, Bedford, Massachusetts, and also referred to in the Prime Lease as the
First Amendment Additional Premises (the "BUILDING");
WHEREAS, Subtenant desires to sublease from Sublandlord, and
Sublandlord desires to sublease to Subtenant, the entire Building 3 at the
Crosby Corporate Center as set forth above (hereinafter referred to as the
"DEMISED PREMISES"); and
WHEREAS, the parties hereto desire to provide for the
subletting of the Demised Premises on the terms and conditions set forth in this
Sublease.
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. Demised Premises. Subject to the written consent of
the Prime Landlord, Sublandlord does hereby sublease to Subtenant, and Subtenant
does hereby sublease from Sublandlord, for the term and upon the conditions
hereinafter provided, the Demised Premises, including the right to use all
common areas relating to the Building as set forth in the Prime Lease. The
Demised Premises consist of approximately 31,515 square feet of gross rentable
area (the "RENTABLE AREA") and are outlined on EXHIBIT B attached hereto and
made a part hereof.
2. Condition of Demised Premises.
Sublandlord shall deliver the Demised Premises in broom clean
but otherwise in its "as is" condition. Sublandlord shall not be required to
make any alterations, improvements, repairs or decorations to the Demised
Premises, and the Subtenant acknowledges that the provisions of Article 4 of the
Prime Lease, Article 6 of the First Amendment to the Prime Lease, Article 5 of
the Second Amendment to the Prime Lease, or any other provision requiring work
to be completed prior to occupancy of the Demised Premises are not applicable to
this Sublease. Subtenant's possession of the Demised Premises on the
Commencement Date (as defined hereafter) shall be conclusive evidence that the
Demised Premises have been delivered in accordance with the provisions of this
Sublease and are acceptable to Subtenant.
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Subtenant shall make no alterations, additions or improvements
to the Demised Premises without the prior written consent of Sublandlord and
Prime Landlord All alterations, additions or improvements to the Premises shall
be subject to the provisions of the Prime Lease.
3. Term.
The term of this Sublease shall commence on the later of (i)
January 10, 2003 or (ii) receipt of Prime Landlord's consent to this Sublease
(the "COMMENCEMENT DATE") and shall end at midnight on June 30, 2009, or on such
earlier date upon which said term may expire or be terminated pursuant to any of
the conditions or limitations or other provisions of this Sublease or pursuant
to law (the "TERM"). Notwithstanding the Commencement Date, Subtenant's
obligation to pay Base Rent (as defined hereafter) shall commence on March 15,
2003 (the "RENT COMMENCEMENT DATE"). In addition, Subtenant shall receive an
abatement of Base Rent in the thirteenth (13th) calendar month following the
Commencement Date, provided that there is no default hereunder.
3a. Early Termination Right. Subtenant shall have the
right to terminate this Sublease effective as of thirty six (36) months from the
Commencement Date, by giving nine (9) months prior written notice to the
Sublandlord of such determination, provided that Subtenant is not in default
(after the expiration of any applicable grace periods) both as of the time
Subtenant gives its notice and as of the effective date of the early
termination. Should the Subtenant fail to give notice to the Sublandlord in
writing as described above, time being of the essence, this right of early
termination shall have been waived. Should the Subtenant terminate this Sublease
as herein described, Subtenant must (a) vacate the Demised Premises and quit its
use of the Demised Premises as of the effective date of termination as if the
Sublease had expired at the end of the Term contemplated herein, (b) remove all
of its fixtures, furnishings and possessions as of the effective date of the
termination, and (c) pay Sublandlord an early termination fee in the amount of
One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00). Except as stated in
immediately preceding sentence, upon such early termination, Subtenant shall be
relieved of all of its future obligations of the terms of this Sublease, except
those which expressly survive the expiration or termination hereof.
4. Use. Subtenant shall use and occupy the Demised
Premises solely for general office purposes of a software company, including,
without limitation, for software development and customer support purposes, and
shall comply with all applicable laws, ordinances, governmental regulations, and
all protective covenants and restrictions of record affecting such use, and all
rules and regulations of the Prime Landlord with respect to the Building.
5. Base Rent. Commencing on the Rent Commencement Date,
Subtenant shall pay base rent ("BASE RENT") for the Term hereby created in the
annual amount of Three Hundred Thousand and 00/100 Dollars ($300,000.00),
payable in equal monthly installments of Twenty Five Thousand and 00/100 Dollars
($25,000.00).
(The Base Rent and the Additional Rent (as defined hereafter)
are referred to herein as "RENT"). If the obligation of Subtenant to pay Base
Rent hereunder begins on a day other than on the first day of a month, Base Rent
from such date until the first day of the
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following month shall be pro-rated at the rate of one-thirtieth (1/30) of the
Base Rent for each day payable in advance. Subtenant will pay said Base Rent by
check made payable to Sublandlord and sent to 174 Middlesex Turnpike, Bedford,
Massachusetts, or to such other party as Sublandlord may designate, at its
address provided in the notice section hereof, or at such other address as
Sublandlord may hereafter designate in writing, in lawful money of the United
States, without notice, demand, set-off or deduction whatsoever, except as
otherwise provided in the Prime Lease. Base Rent shall be due and payable on the
first day of each month.
6. Security Deposit. Subtenant shall provide Sublandlord
a security deposit in the sum of Twenty Five Thousand and 00/100 Dollars
($25,000.00) payable upon execution of this Sublease. In the event of any
default (and after the expiration of any applicable notice and cure periods) by
Subtenant hereunder, Sublandlord shall have the right, but shall not be
obligated, to apply all or any portion of the deposit to cure such default, in
which event Subtenant shall be obligated to promptly deposit with Sublandlord
that portion of the deposit used to cure such default. Said security deposit may
be mingled with other funds of Sublandlord and no fiduciary relationship shall
be created with respect to such deposit, nor shall Sublandlord be liable to pay
Subtenant interest thereon. If Subtenant faithfully performs all the covenants
and conditions on its part to be performed, then the security deposit shall be
returned to Subtenant within thirty (30) days after the expiration of the
Sublease.
In lieu of delivering a cash security deposit to Sublandlord,
Subtenant may deliver to Sublandlord an irrevocable letter of credit in the
amount required in the immediately preceding paragraph, in a form and from an
institutional bank reasonably satisfactory to Sublandlord. If the issuing bank's
credit quality drops below an investment grade credit rating, Sublandlord
reserves the right to require Subtenant to replace the original letter of credit
with a substitute letter of credit from another bank reasonably acceptable to
Sublandlord, which letter of credit shall be clean and irrevocable and otherwise
be subject to the same terms and conditions as the original letter of credit.
7. Additional Rent.
(a) Commencing as of January 1, 2004, Subtenant shall
pay, in addition to Base Rent, its proportionate share of the (a) the Operating
Costs (as defined in the Prime Lease) which are in excess of the Operating Costs
in the Operating Cost Base Year, and (b) the Taxes (as defined in the Prime
Lease) which are in excess of the Taxes in the Tax Base Year (both of which
payments, in addition to those payments set forth in Section 7(b) and any other
amounts due hereunder, are referred to as "ADDITIONAL RENT"). For purposes of
calculating such excess amounts, the term "Operating Cost Base Year" shall be
calendar year 2003, and "Tax Base Year" shall be fiscal tax year 2003 (which
payments, in addition to those payments set forth in Section 7(b) and any other
amounts due hereunder, are referred to as "ADDITIONAL RENT"). All payments due
by Subtenant under this Section 7(a) shall be made on the same day as comparable
payments are due by Sublandlord under the Prime Lease. Subtenant's obligations
hereunder, to the extent accrued prior to the Sublease expiration date, shall
survive the expiration of the Sublease. Subtenant's proportionate share with
respect to the Demised Premises is set forth in the Prime Lease. Subtenant shall
have no independent right to request an audit of Prime Landlord's books and
records, but in the event that Sublandlord audits the books and records of the
Prime Landlord with respect to any payment of Additional Rent, Sublandlord
agrees to
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provide Subtenant with copies of any such books and records, provided that
Subtenant agrees to sign any reasonable confidentiality agreement required by
Prime Landlord; and provided further, that Sublandlord shall, upon the
reasonable written request of Subtenant and consistent with the rights accorded
to Sublandlord under the Prime Lease, request an audit of Prime Landlord's books
and records.
(b) Subtenant shall also pay, as Additional Rent, all
electricity charges with respect to the Demised Premises, as set forth in
Article 8 of the Prime Lease, and any other utility charges to the extent
required under the Prime Lease.
8. Obligations Under the Prime Lease. This Sublease and
Subtenant's rights under this Sublease shall at all times be subject to and are
made upon all of the terms, covenants, and conditions of the Prime Lease (except
as otherwise set forth herein), with the same force and effect as if fully set
forth herein at length, the termination (for whatever reason) of which Prime
Lease shall automatically terminate this Sublease upon notice to Subtenant.
Sublandlord agrees that it shall not cause to be done or suffer or permit any
act to be done which would cause the Prime Lease to be voluntarily or
consensually cancelled, terminated, forfeited or surrendered, except for
Sublandlord's termination rights in the event of a casualty or taking pursuant
to Articles 18 and 20 of the Prime Lease. Except as otherwise expressly provided
for herein or as may be inconsistent or in conflict with the terms and
provisions of this Sublease, Subtenant shall keep, observe and perform or cause
to be kept, observed and performed, faithfully all those terms, covenants and
conditions of Sublandlord under the Prime Lease with respect to the Demised
Premises, except as otherwise set forth herein. Notwithstanding the foregoing,
where "Premises" or "Lease" or words of similar import appear in the Prime
Lease, the same shall be deemed to mean the Demised Premises (as defined in this
Sublease) and this Sublease, respectively, and wherever the words "Landlord" and
"Tenant" appear in the Prime Lease, the words shall be deemed to refer to
Sublandlord and Subtenant, respectively.
Notwithstanding the foregoing, to the extent that Sublandlord has any
rights or options to extend or renew the Prime Lease, or any expansion options
or right of first offers, Subtenant shall have no right to exercise such rights
or options. In addition, notwithstanding the provisions of this Section 8 of the
Sublease to the contrary, Sublandlord shall have no obligation to perform or
furnish any of the work, services, repairs or maintenance undertaken to be
provided to the Demised Premises that are made or performed by Prime Landlord
under the Lease (including but not limited to the Prime Landlord's Covenants set
forth in Article 8 of the Prime Lease), or any other term, covenant or condition
required to be performed by Prime Landlord under the Lease, and for all such
services and rights Subtenant will look solely to Prime Landlord; provided,
however, that Sublandlord shall, upon reasonable notice from Subtenant of a
default in the services provided by Prime Landlord with respect to the Demised
Premises, shall use reasonable efforts to cause Prime Landlord to provide such
services in accordance with the Prime Lease, provided, however, that "reasonable
efforts" shall not require Sublandlord to expend any sums or commence any
proceedings in connection with the same. To the extent that Sublandlord receives
any abatement of its rental obligations under Paragraph 8.7(b) of the Prime
Lease as a result of the failure of Prime Landlord to perform or provide any of
the work or services to be provided by Prime Landlord in respect of the Demised
Premises, Subtenant shall receive a corresponding abatement of its Rent due
hereunder.
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9. Insurance.
(a) Subtenant shall obtain and at all times
during the term hereof maintain, at its sole cost and expense, policies of
insurance in the amount and otherwise in conformance with the requirements of
the Prime Lease.
(b) Subtenant shall deliver to Sublandlord
certificates of such insurance at the beginning of the term of this Sublease,
and thereafter certificates of renewal thereof not less than fifteen (15) days
prior to the expiration of any such policy. In the event that Subtenant shall
fail promptly to furnish any insurance herein required, Sublandlord may effect
the same and pay the premium therefor for a period not exceeding one (1) year of
the expiration hereof, and the premium so paid by Sublandlord shall be payable
by Subtenant to Sublandlord within five (5) business days of receipt by
Subtenant of notice of payment thereof from Sublandlord.
(c) All policies of insurance as aforesaid shall
name both Sublandlord and the Prime Landlord as additional insureds, as their
interests may appear, and include a clause waiving the rights of subrogation
against Prime Landlord and Sublandlord,
10. Defaults. If Subtenant shall (i) fail to pay when due
any Rent or other sums due hereunder, or (ii) shall fail to faithfully perform
any other obligation under this Sublease, or (iii) any other default under
Article 21 of the Prime Lease occurs, then Subtenant shall be in default of this
Sublease and, Sublandlord shall have all of the rights and remedies accorded to
the Prime Landlord under the Prime Lease, subject to the notice and cure
provisions set forth in Article 21.7 (Grace Period) of the Prime Lease,
provided, however, that the grace periods in favor of Subtenant hereunder with
respect to any non-monetary default shall be five (5) days less than the grace
periods in favor of Sublandlord under the Prime Lease. Subtenant further agrees
to reimburse Sublandlord for all costs and expenses, including reasonable
attorneys' fees, incurred by Sublandlord in asserting its rights hereunder
against Subtenant or any other party claiming by, through or under Subtenant.
11. Subordination. This Sublease is subject and
subordinate to the Prime Lease, to all ground and underlying leases, and to all
mortgages and deeds of trust which may now or hereafter affect such leases, the
leasehold estate or estates thereby created or the real property of which the
Demised Premises form a part, and to any and all renewals, modifications,
consolidations, replacements and extensions thereof.
12. Assignments and Further Subleases.
(a) Subtenant agrees that it will not assign or encumber,
or permit to be encumbered, its rights or interests under this Sublease, nor
sublet the whole or any part of the Demised Premises, directly or indirectly, by
operation of law or otherwise, without the prior written consent of Sublandlord
and Prime Landlord. Sublandlord agrees that it shall not unreasonably withhold
its consent to any proposed assignment or sublet, provided that the proposed
assignment or sublet complies with all conditions set forth in the Prime Lease.
Subtenant further agrees that, notwithstanding any assignment or sublease,
Subtenant shall
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remain fully liable for the payment of Rent and Additional Rent and for the
other obligations of this Sublease on the part of Subtenant to be performed or
observed.
(b) In the event Subtenant subleases or assigns all or
part of the Demised Premises to a tenant pursuant to Section 12 (a) above, and,
after deducting all reasonable expenses incurred by Subtenant in connection with
such sublease or assignment (including attorneys fees, brokerage commissions,
tenant improvements paid by Subtenant and rent concessions) said tenant is
obligated to pay Subtenant more in any month than Subtenant is obligated to pay
Sublandlord under this Sublease, then Subtenant shall pay Sublandlord fifty
percent (50%) of the amount by which the said tenant's payment obligations
exceed the Subtenant's payment obligations hereunder.
13. Quiet Enjoyment and Consent of Prime Landlord.
Sublandlord covenants and agrees with Subtenant that, upon Subtenant paying the
rent reserved in this Sublease and observing and performing all the terms,
covenants and conditions of this Sublease on Subtenant's part to be observed and
performed, Subtenant may peaceably and quietly enjoy the Demised Premises during
the term of this Sublease free from any claim by Sublandlord or persons claiming
under Sublandlord, in accordance with the terms, covenants and conditions of
this Sublease.
14. Indemnification. Subtenant and Sublandlord shall be
governed by the terms of Article 15 of the Prime Lease with respect to each
party's indemnification of the other, provided, however, that Subtenant's
indemnity obligations thereunder shall run to both Sublandlord and the Prime
Landlord.
15. Notices. Any notice, demand or other communication
which must or may be given or made by either party hereto shall be in writing
and shall be given or made by hand delivery, commercial courier, against
receipt, or by mailing the same by registered or certified mail, postage
prepaid, addressed:
In the case of Subtenant, to
Prior to Occupancy:
Atex Media Command, Inc.
15 Crosby Drive
Bedford, MA 01730
After Occupancy:
Atex Media Command, Inc.
24 Crosby Drive
Bedford, MA _____
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In the case of Sublandlord, to
RSA Security Inc.
174 Middlesex Turnpike
Bedford, MA 01730
Attn: Margaret Seif, General Counsel
Either party may, by notice to the other given as aforesaid, designate a new or
additional address to which any such notice, demand or other communication
thereafter shall be given, made or mailed. Any notice, demand or communication
given hereunder shall be deemed delivered when actually received or refused.
16. Surrender. Upon the expiration of the Term, Subtenant
shall quit and surrender to Sublandlord the Demised Premises (including the
furnishings, phone systems and any other items, if any, owned by Sublandlord and
which Subtenant used throughout the Term), broom clean and in as good order and
condition as they were on the Commencement Date, ordinary wear and casualty
excepted, and Subtenant shall remove from the Demised Premises all of its
personal property, furnishings and trade fixtures. Subtenant's obligations to
perform and observe this covenant shall survive the expiration or other
termination of the term of this Sublease.
17. Holdover. In the event Subtenant shall not
immediately surrender the Demised Premises upon the expiration of the Term,
Subtenant shall become a month-to-month tenant at one hundred seventy five
percent (175%) of the Rent then in effect, subject to all of the terms,
conditions, covenants and agreements of this Sublease. Subtenant shall be liable
to Sublandlord for, and shall indemnify Sublandlord against all claims made
against Sublandlord resulting from Sublandlord's delay in delivering possession
of the Demised Premises to Prime Landlord.
18. Sublandlord's Compliance with Prime Lease.
Sublandlord agrees to pay all rents and other sums required of it, and comply
with all other provisions of the Prime Lease. Sublandlord hereby represents and
warrants that the Prime Lease (a) is presently in full force and effect, and has
not been amended or modified, (b) there is presently no outstanding default in
the payment of rent or other sums due under the Prime Lease and (c) to the best
of Sublandlord's knowledge, there is presently no outstanding breach or default
of the Prime Lease by either Sublandlord or Prime Landlord.
Subtenant agrees that in any case where the provisions of this
Sublease require the consent or approval of Sublandlord prior to the taking of
any action, it shall be a condition precedent to the taking of such action that
the prior consent or approval of Prime Landlord shall have been obtained if
Prime Landlord' consent must be obtained under the Prime Lease in such cases. In
the event Prime Landlord's consent is so obtained, Sublandlord agrees that its
consent shall not be unreasonably withheld, delayed or conditioned except as
otherwise provided herein. Sublandlord agrees that it shall use commercially
reasonable efforts to obtain Prime Landlord's consent in such circumstances
(provided that in no event shall Sublandlord be required to compensate Prime
Landlord to obtain such consent), but otherwise shall not have any duty or
responsibility with respect to obtaining the consent or approval of Prime
Landlord.
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19. Casualty and Taking. In the event of any taking by
eminent domain or damage by fire or other casualty to the Demised Premises
thereby rendering the Demised Premises wholly or in part untenantable, Subtenant
shall benefit in the same manner as Sublandlord, and acquiesce in and be bound
by any action taken by or agreement entered into between Prime Landlord and
Sublandlord, as set forth in Articles 18 through 20 of the Prime Lease with
respect thereto.
20. Broker. The parties warrant that they have had no
dealings with any broker or agent in connection with this Sublease except for T3
Realty Advisors, LLC and The Staubach Company. Sublandlord and Subtenant each
covenant to pay, hold harmless and indemnify the other party from and against
any and all costs, expense or liability for any compensation, commissions and
charges claimed by and broker or agent other than the brokers designated in this
Section with respect to this Sublease or the negotiation thereof arising from a
breach of the foregoing warranty. Sublandlord shall be responsible for payment
of any brokerage commission to the brokers designated in this Section pursuant
to the agreements separately executed between such brokers and the parties to
this Sublease.
21. Furniture. The Premises shall be delivered to
Subtenant with all furniture currently located therein, and Subtenant shall have
the use of said furniture for the duration of the Term at no additional charge.
Said furniture shall be returned to Sublandlord at the expiration or earlier
termination of this Sublease in the same condition as of the date of this
Sublease, reasonable wear and tear excepted.
22. General Provisions.
(a) Benefit and Burden. The covenants,
conditions, agreements, terms and provisions herein contained shall be binding
upon, and shall inure to the benefit of, the parties hereto and each of their
respective personal representatives, successors, heirs, executors,
administrators and assigns.
(b) Governing Law. It is the intention of the
parties hereto that this Sublease (and the terms and provisions hereof) shall be
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts (but not including the choice of law rules thereof).
(c) Entire Agreement. This Sublease contains the
final and entire agreement between the parties hereto, and they shall not be
bound by any terms, statements, conditions or representations, oral or written,
express or implied, not herein contained.
(d) Conflicts Between this Sublease and the
Prime Lease. With respect to the relationship between Sublandlord and Subtenant,
the terms and conditions of this Sublease shall take precedence with respect to
any conflict between the terms and conditions contained herein and the terms and
conditions of the Prime Lease. Nothing herein shall be construed in any way to
affect the rights and obligations of Sublandlord and the Prime Landlord under
the Prime Lease.
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(e) Captions. The captions throughout this
Sublease are for convenience of reference only and the words contained therein
shall in no way be held or deemed to define, limit, describe, explain, modify,
amplify or add to the interpretation, construction or meaning of any provision
of or the scope or intent of this Sublease, nor in any way affect this Sublease.
(f) Singular and Plural. Wherever appropriate
herein, the singular includes the plural and the plural includes the singular.
(g) Counterparts. This Sublease may be executed
in several counterparts, but all counterparts shall constitute but one and the
same instrument.
(h) No Recordation. Neither this Sublease nor
any short-form memorandum or version hereof shall be recorded by either party.
(i) Parking. Subtenant shall have the same
parking rights with respect to the Demised Premises as set forth in the Prime
Lease, and subject to any restrictions or regulations set forth in the Prime
Lease. Subtenant acknowledges that it has no exclusive parking rights except for
"Tenant's Building No. 3 Exclusive Parking Area", as defined in Article 9 of the
First Amendment to the Prime Lease.
(j) Signage. Subtenant shall have the right to
erect signage at the Demised Premises and the Building in accordance with the
provisions of the Prime Lease.
(k) Rooftop Rights. Sublandlord agrees to use
its best efforts to assist Subtenant in securing any rooftop rights from the
Prime Landlord with respect to the Building and which are additional to those
already granted to Sublandlord by Prime Landlord, provided, however, that
Sublandlord, other than its agreement to use such best efforts, shall not have
any duty or responsibility with respect to obtaining the consent or approval of
Prime Landlord, and in no event shall Sublandlord be required to compensate
Prime Landlord to obtain such consent. Sublandlord and shall have no liability
to Subtenant in the event that Prime Landlord fails to grant Subtenant such
additional rooftop rights. Any agreement for such additional rights shall be
negotiated directly between Subtenant and Prime Landlord, without the
participation of Sublandlord. Subtenant agrees that Sublandlord shall not be
required to pay any cost or expense in connection with Subtenant's rooftop
rights.
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IN WITNESS WHEREOF, Sublandlord and Subtenant have each
executed this Sublease on the day and year first hereinabove written.
SUBLANDLORD:
RSA SECURITY INC.
By: /s/ Gerard Wilson 1/13/02
---------------------------
Its: VP + CIO
/s/ Jeffrey D. Glidden 1/13/02
------------------------------
SUBTENANT:
ATEX MEDIA COMMAND, INC.
By: /s/ Nancy M. Faunce
-------------------
Its: President + CEO
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EXHIBIT A
Prime Lease
Attached hereto.
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EXHIBIT B
Outline of the Space
Attached hereto.
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