Massachusetts-Bedford-36 Crosby Drive Sublease - RSA Securty Inc. and 170 Systems Inc.
AGREEMENT OF SUBLEASE
This Agreement of Sublease (this "SUBLEASE") is made as of the
10th day of December, 2003 by and between RSA Security Inc., a Delaware
corporation with offices at 174 Middlesex Turnpike, Bedford, Massachusetts
(hereinafter referred to as "SUBLANDLORD"), and 170 Systems, Inc., a Delaware
corporation with offices at 25 First Street, Cambridge, Massachusetts
(hereinafter referred to as "SUBTENANT").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Lease by and between Beacon
Properties, L.P., and assigned to EOP-Crosby Corporate Center, L.L.C. on
_______________ (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
and by a Third Amendment to Lease dated May 9, 2000 (the "PRIME LEASE" a copy of
which Prime Lease, redacted as appropriate, is attached hereto as EXHIBIT A),
Sublandlord has leased, inter alia, space located at the Crosby Corporate
Center, known in the Prime Lease as Building 9, 36 Crosby Drive, Bedford,
Massachusetts, and also referred to in the Prime Lease as the Second Amendment
Additional Premises (the "BUILDING");
WHEREAS, Subtenant desires to sublease from Sublandlord, and
Sublandlord desires to sublease to Subtenant, a portion of the Building as set
forth below (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 and contingent upon 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 is agreed to be approximately 39,000 square feet of
gross rentable area (the "RENTABLE AREA"), consisting of the entire second floor
of the Building and a portion of the first floor of the Building, and are
outlined on EXHIBIT B attached hereto and made a part hereof. Subtenant shall
also have the non-exclusive right to use, in common with others, all common
areas of the Building, including the fitness room and showers, cafeteria area
and loading dock, provided that Subtenant shall obtain the consent of
Sublandlord, which consent shall not be unreasonably withheld, and subject to
the provisions of the Prime Lease, prior to any use or operation of the
cafeteria area. Sublandlord shall not be responsible or liable for any costs,
expenses or other obligations with respect to the operation of the cafeteria
area or fitness room, all of which costs and expenses shall be borne by
Subtenant and any other tenants of the Building. Subtenant shall have, in common
with other tenants of the Building, the
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right to use the UPS and generator, which usage shall not exceed Subtenant's and
each such other tenant's respective pro rata share of the Building.
2. Condition of Demised Premises.
Sublandlord shall deliver the Demised Premises in broom clean
but otherwise in its "as is" condition, except for adding certain demising walls
and completing other work to make the Building suitable for more than one tenant
("Sublandlord's Work"). Sublandlord shall promptly commence Sublandlord's Work
after Prime Landlord has consented to this Sublease and shall use diligent
efforts to complete said work as soon as practicable, although Subtenant
expressly acknowledges that Sublandlord's Work may not be completed as of the
Commencement Date (as defined hereafter), and Sublandlord's failure to have
completed Sublandlord's Work by said date shall not delay the Commencement Date
or any of Subtenant's obligations hereunder. In the event Sublandlord's Work is
not completed by the Commencement Date, Sublandlord shall use diligent efforts
to complete said work as soon as practicable thereafter, and shall use
reasonable efforts to minimize any interference with Subtenant's use of the
Demised Premises. Except as set forth herein, 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.
Except as set forth in the attached EXHIBIT C, Subtenant shall
make no alterations, additions or improvements to the Demised Premises without
the prior written consent of Sublandlord and Prime Landlord, which consent shall
not be unreasonably withheld or delayed by Sublandlord.
3. Term.
The term of this Sublease shall commence on the later of (i)
February 1, 2004 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"). A Notice Of Lease Commencement (the form of which is shown
on the attached EXHIBIT D ) shall be executed by the Subtenant within five ( 5 )
days of its delivery to the Subtenant by the Sublandlord. Notwithstanding
anything to the contrary contained herein, Subtenant's obligation to pay Base
Rent (as defined hereafter) shall not commence until August 1, 2004 (the "RENT
COMMENCEMENT DATE"). Subtenant shall be responsible for all other charges
hereunder, including but not limited to the payment of all electricity charges,
starting on the Commencement Date.
Upon execution of this Sublease and receipt of written consent from the
Prime Landlord, Subtenant shall be allowed to enter the Demised Premises prior
to the Commencement Date for
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purposes of designing and implementing information technology support systems
and complete the alterations as set forth in EXHIBIT C (the "EARLY OCCUPANCY
PERIOD"). Subtenant's use of the Demised Premises during the Early Occupancy
Period shall be subject to all terms and conditions of this Sublease except for
the obligation to pay Rent.
4. Use. Subtenant shall use and occupy the Demised
Premises solely for purposes consistent with the uses permitted under the Prime
Lease, 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; provided, however, that Tenant shall not hereby be under any
obligation to comply with any laws, ordinances or governmental regulations
requiring any structural alteration of or in connection with the Demised
Premises, unless such alteration is required by reason of Subtenant's particular
use or manner of use of the Demised Premises, or a condition which has been
created by or at the sufferance of Subtenant or as a result of the existence of
this Sublease, or is required by reason of a breach of any of Subtenant's
covenants and agreements hereunder.
5. Base Rent. Commencing on the Rent Commencement Date,
Subtenant shall pay base rent ("BASE RENT") for the Term hereby created as
follows:
August 1, 2004-January 31, 2005: Two Hundred Forty Three
Thousand Seven Hundred Fifty and 00/100 Dollars ($243,750.00), payable in equal
monthly installments of Forty Thousand Six Hundred Twenty Five and 00/100
Dollars ($40,625.00);
February 1, 2005-January 31, 2006: Five Hundred Forty Six
Thousand and 00/100 Dollars ($546,000.00), payable in equal monthly installments
of Forty Five Thousand Five Hundred and 00/100 Dollars ($45,500.00);
February 1, 2006-January 31, 2007: Five Hundred Sixty Five
Thousand Five Hundred and 00/100 Dollars ($565,500.00), payable in equal monthly
installments of Forty Seven Thousand One Hundred Twenty Five and 00/100 Dollars
($47,125.00); and
February 1, 2007-June 30, 2009: Five Hundred Seventy Five
Thousand Two Hundred Fifty and 00/100 Dollars ($575,250.00), payable in equal
monthly installments of Forty Seven Thousand Nine Hundred Thirty Seven and
50/100 Dollars ($47,937.50).
(The Base Rent and the Additional Rent (as defined hereafter) are referred to
herein as "RENT"). Subtenant shall have no obligation to pay the Base Rent for
the period commencing on the Commencement Date and ending on the Rent
Commencement Date. 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 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
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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. (a) Simultaneously with the
execution of this Sublease, Subtenant shall provide Sublandlord with an
Irrevocable Standby Letter of Credit (the "Original Letter of Credit") which
shall be (1) in substantially the form attached hereto as EXHIBIT E; (2) issued
by a bank reasonably acceptable to Sublandlord upon which presentation may be
made in Boston, Massachusetts; (3) in the amount of One Hundred Sixty Two
Thousand Five Hundred and 00/100 Dollars ($162,500.00); and (4) for a term of
one (1) year, subject to the provisions of subparagraph (b) of this Section 6.
The Original Letter of Credit and any Replacement Letter(s) of Credit,
Substitute Letter(s) of Credit and Additional Letter(s) of Credit (as such terms
are defined hereinbelow) are referred to herein collectively and respectively as
the "Letter of Credit."
(b) The Letter of Credit shall be automatically renewable
in accordance with terms of EXHIBIT E; provided, however, that Subtenant shall
be required to deliver to Sublandord a new letter of credit satisfying the
conditions set forth in subparagraph (a) of this Section 6 (the "Substitute
Letter of Credit") on or before the date thirty (30) days prior to the
expiration of the term of the Letter of Credit then in effect if the issuer of
such letter of Credit gives notice of its election not to renew such Letter of
Credit for any additional period pursuant thereto.
(c) In the event that Subtenant is in default, beyond the
expiration of any applicable grace periods, of its obligations under this
Sublease, then the Sublandlord shall have the right, but not the obligation, at
any time after such event to (1) draw down from said Letter of Credit the amount
necessary to cure such default and/or (2) to exercise all rights and remedies
Sublandlord may have on account of such default and to draw down from said
Letter of Credit the amount which, in Sublandlord's reasonable opinion, is
necessary to satisfy Subtenant's liability on account thereof. In the event that
Sublandlord elects to cure a default by drawing down said Letter of Credit,
Subtenant shall, within ten (10) business days of written demand therefor,
deliver to Sublandlord an additional Letter of Credit satisfying the foregoing
conditions (the "Additional Letter of Credit"), except that the amount of such
Additional Letter of Credit shall be the amount of such draw. Failure by
Subtenant to timely deliver to Sublandlord such Additional Letter of Credit
shall be a default not susceptible of cure, entitling Sublandlord to exercise
any and all remedies pursuant to Section 10 hereof on account thereof.
(d) In the event Subtenant fails timely to deliver to
Sublandlord a Substitute Letter of Credit. then Sublandlord shall have the
right, at any time after such event, without giving any further notice to
Subtenant, to draw down the Letter of Credit and to hold the proceeds thereof
(the "Security Proceeds") in a segregated bank account, bearing interest in the
name of Sublandlord, which may be withdrawn and applied by Sublandlord under the
same circumstances and for the same purposes as if the Security Proceeds were a
Letter of Credit. If Sublandlord draws down the Letter of Credit pursuant to
this subparagraph (d), then:
(1) Such draw and Sublandlord's right to hold
the Security Proceeds pursuant to this subparagraph (d) shall be Sublandlord's
sole remedy based on Subtenant's failure to timely deliver a Substitute Letter
of Credit as required hereunder; and
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(2) Within ten (10) days after the Prime
Landlord has notified Sublandlord as to whether any damage exists with respect
to the Demised Premises, Sublandlord shall return to Subtenant any Security
Proceeds then being held by Sublandlord, to the extent that any such Security
Proceeds exceed the amounts then due from Subtenant to Sublandlord.
Nothing contained in this paragraph 6(d), however, shall
prevent Sublandlord from exercising all of its rights and remedies under the
Sublease in the event Subtenant fails to deliver in a timely manner a Substitute
Letter of Credit.
(e) To the extent that Sublandlord has not previously
drawn upon any Letter of Credit or Security Proceeds (collectively, the
"Collateral") held by Sublandlord, and to the extent that Subtenant has
faithfully performed all of its covenants and obligations hereunder and is not
otherwise in default of its obligations under this Sublease as of the
Termination Date, Sublandlord shall return such Collateral to Subtenant within
ten (10) days after the Prime Landlord notified Sublandlord as to whether any
damage exists with respect to the Demised Premises.
7. Additional Rent.
(a) Subtenant shall pay, in addition to Base Rent, its
Proportionate Share (as hereinafter defined) of the (a) Operating Costs (as
defined in the Prime Lease) which are in excess of the Operating Costs in the
Operating Cost Base Year, and (b) 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
2004, and "TAX BASE YEAR" shall be fiscal tax year 2004. 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 shall be equal to the Rentable Area set forth in
Section 1 of this Agreement of Sublease, divided by 77,666 square feet, as set
forth in the Prime Lease (provided, however, that if less than 95% of the
Building is occupied by tenants at any time during the term of this Sublease,
then the cleaning charges for such period shall be extrapolated by Sublandlord
to the estimated cleaning charges that would have been incurred if the Building
had been at least 95% occupied by tenants; and such extrapolated amount shall
for the purposes hereof be deemed to be the amount of the cleaning charges for
such period).
(b) Subtenant shall also pay as Additional Rent,
commencing on the Commencement Date, its Proportionate Share of all electricity
charges with respect to the Building, and any other utility charges to the
extent required under the Prime Lease. Subtenant shall pay such charges within
thirty (30) days of receipt of billing from Sublandlord. If less than 95% of the
Building is occupied by tenants at any time during the term of this Sublease,
then the electricity charges for such period shall be extrapolated by
Sublandlord to the estimated electricity charges that would have been incurred
if the Building had been at least 95% occupied by tenants; and such extrapolated
amount shall for the purposes hereof be deemed to be the
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amount of the electricity charges for such period. Sublandlord reserves the
right, but shall be under no obligation, to sub-meter the Demised Premises at
any time during this Sublease.
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.
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. 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 use commercially reasonable efforts to cause
Prime Landlord to perform its obligations under the Prime Lease for the benefit
of Subtenant (provided that in no event shall Sublandlord be required to
compensate Prime Landlord to obtain such consent). In the event Sublandlord is
entitled, under the Prime Lease, to a rent abatement 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, then Subtenant
shall be entitled to the Proportionate Share of such abatement, unless the
effect on the Demised Premises of such failure by Prime Landlord shall be
substantially disproportionate to the amount of the abatement, in which event
the parties shall equitably adjust the abatement as between themselves, based on
the relative impact of such failure.
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
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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. 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. Notwithstanding
anything to the contrary in this Section 10 contained, Sublandlord agrees not to
take any action to terminate this Sublease (a) for default by Subtenant in the
payment when due of any sum of money, if Subtenant shall cure such default
within five (5) business days after written notice thereof is given by
Sublandlord to Subtenant; provided, however, that no such notice need be given
and no such default in the payment of money shall be curable if on two (2) prior
occasions in the same twelve (12) month period, there had been a default in the
payment of money which had been cured after notice thereof had been given by
Sublandlord to Subtenant as herein provided; or (b) for default by Subtenant in
the performance of any covenant other than a covenant to pay a sum of money, if
Subtenant shall cure such default within a period of twenty (20) days after
written notice thereof given by Sublandlord to Subtenant (except where the
nature of the default is such that remedial action should appropriately take
place sooner, as indicated in such written notice), or within such additional
period as may reasonably be required to cure such default if (because of
governmental restrictions or any other cause beyond the reasonable control of
Subtenant) the default is of such nature that it cannot be cured within such
twenty (20) day period; provided, however, that (1) there shall be no extension
of time beyond such twenty (20) day period for the curing of any such default
unless, not more than fifteen (15) days after the receipt of the notice of
default, Subtenant in writing (i) shall specify the cause on account of which
the default cannot be cured during such period and shall advise Sublandlord of
its intention duly to institute all steps necessary to cure the default and (ii)
shall, as soon as reasonably practicable, duly institute and thereafter
diligently prosecute to completion all steps necessary to cure such default; and
(2) that no notice of the opportunity to cure a default need be given, and no
grace period whatsoever shall be allowed to Subtenant if the default is
incurable or if the covenant or condition the breach of which gave rise to the
default had, by reason of the breach on a prior occasion, been the subject of a
notice hereunder to cure such default.
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.
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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
or delay 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, and that it shall use commercially reasonable efforts to obtain the
consent of Prime Landlord thereto; provided, however, that any cost of obtaining
such consent of Prime Landlord shall be borne by Subtenant. Subtenant further
agrees that, notwithstanding any assignment or sublease, Subtenant shall remain
fully liable for the payment of Base 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 one
hundred percent (100%) 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 it has full power and
authority to enter into this Sublease, subject to the consent of the Prime
Landlord, and 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 by, through or
under Sublandlord, in accordance with the terms, covenants and conditions of
this Sublease.
14. Indemnification. Subtenant hereby agrees to indemnify
and hold Sublandlord and the Prime Landlord harmless from and against any cost,
damage, claim, liability or expense (including reasonable attorney's fees)
incurred by or claimed against Sublandlord and the Prime Landlord, directly or
indirectly, as a result of Subtenant's use or occupancy of the Demised Premises
or as a result of any breach of this Sublease. Sublandlord shall provide notice
to Subtenant of any third party claim for which it is seeking indemnification
hereunder promptly after it actually becomes aware of such claim, and Subtenant
shall defend such claim with counsel reasonably acceptable to Sublandlord.
Sublandlord shall, at Subtenant's sole cost and expense, cooperate with
Subtenant in the prosecution of such defense.
Sublandlord hereby agrees to indemnify and hold Subtenant
harmless from and against any costs, damage, claim, liability or expense
(including reasonable attorney's fees) incurred by or claimed against Subtenant,
directly or indirectly, caused by Sublandlord's negligence or willful
misconduct. Subtenant shall provide notice to Sublandlord of any third party
claim for which it is seeking indemnification hereunder promptly after it
actually becomes
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aware of such claim, and Sublandlord shall defend such claim with counsel
reasonably acceptable to Subtenant. Subtenant shall, at Sublandlord's sole cost
and expense, cooperate with Sublandlord in the prosecution of such defense.
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:
170 Systems, Inc.
25 First Street
Cambridge, MA 02141
Attn: Chief Financial Officer
After Occupancy:
170 Systems, Inc.
36 Crosby Drive
Bedford, MA 01730
Attn: Chief Financial Officer
With a required copy to:
Dionne & Gass
73 Tremont Street
Boston, MA 02108
Attn: Joanne A. Robbins, Esq.
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, broom clean and in
as good order and condition as they were on the Commencement Date, ordinary wear
and casualty excepted, and Subtenant
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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 two hundred percent (200%) 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 Sublandlord has delivered to Subtenant a full and complete copy of
the Prime Lease and all other agreements between the Prime Landlord and
Sublandlord relating to the leasing, use and occupancy of the Demised Premises,
and 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.
Sublandlord shall not agree to any amendment to the Prime Lease which
might have an adverse effect on Subtenant's occupancy of the Demised Premises or
its use of the Demised Premises for their intended purpose, or which might
increase Subtenant's obligations hereunder, unless Sublandlord shall first
obtain Subtenant's prior written approval thereof.
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 acquiesce in and be bound by any action taken by or agreement entered into
between Prime Landlord and Sublandlord as set forth in the Prime Lease with
respect thereto. In the event Sublandlord is entitled, under the Prime Lease, to
a rent abatement as a result of a fire or other casualty or as a result of a
taking under the power of eminent domain, then Subtenant shall be entitled to
Proportionate Share of such rent abatement unless the effect on the Demised
Premises of such fire or other casualty or such taking shall be substantially
disproportionate to the amount of the abatement, in which event the parties
shall
<PAGE>
equitably adjust the abatement as between themselves, based on the relative
impact of the fire or other casualty, or the taking, as the case may be.
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. 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 broker designated in this Section pursuant to
separate agreement.
21. Furniture, Equipment. The Premises shall be delivered
to Subtenant with all furniture, equipment and telephone/data cabling currently
located therein, and Subtenant shall have the use of said furniture for the
duration of the Term at no additional charge. Sublandlord makes no
representations or warranties that the existing furniture, equipment or cabling
is sufficient for Subtenant's business purposes, and Subtenant accepts such
furniture, equipment and cabling in its "as is" condition. As long as Subtenant
is not in default under this Sublease, then all such furniture, equipment
(excluding UPS, generator and mechanical equipment) and cabling shall become
Subtenant's property at the expiration of this Sublease and Subtenant shall be
required to remove the same at the expiration of this Sublease in accordance
with the provisions of the Prime Lease.
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.
(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
<PAGE>
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
non-exclusive right, in common with other tenants of the Building, to use the
parking spaces shown as "Tenant's Building No. 9 Exclusive Parking Area"
pursuant to Article 11 of the Second Amendment to the Prime Lease, subject to
any restrictions or regulations set forth in the Prime Lease. Subtenant
acknowledges that it has no parking rights except for "Tenant's Building No. 9
Exclusive Parking Area."
(j) Signage. Subject to the prior consent of
Sublandlord and Prime Landlord, 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) Consent of Prime Landlord. The terms and
conditions of this Sublease, and all rights and obligations of the parties
hereunder, are subject to the consent of the Prime Landlord in accordance with
the terms of the Prime Lease. Subtenant shall promptly deliver to Sublandlord
any information reasonably requested by Prime Landlord (in connection with Prime
Landlord's approval of this Sublease) with respect to the nature and operation
of Subtenant's business and/or the financial condition of Subtenant, and
Sublandlord shall promptly submit such information to Prime Landlord and
diligently seek to obtain Prime Landlord's consent hereto. If Prime Landlord
fails to consent to this Sublease within thirty (30) days after the execution
and delivery of this Sublease, Subtenant shall have the right to terminate this
Sublease by giving written notice thereof to Sublandlord at any time thereafter,
but before Prime Landlord grants such consent.
<PAGE>
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
--------------------------------------
Its: CIO & VP, Facilities
12/8/2003
SUBTENANT:
170 SYSTEMS, INC.
By: /s/Paul M. Smith, Jr.
--------------------------------------
Its: Chief Financial Officer
<PAGE>
EXHIBIT A
Prime Lease
Attached hereto.
<PAGE>
EXHIBIT B
Outline of the Space
Attached hereto.
[Two architectural drawings showing the floor plan of the
Demised Premises and the construction work to be conducted.]
<PAGE>
EXHIBIT C
Tenant's Work
<PAGE>
EXHIBIT D
Form of Notice of Lease Commencement
SUBLANDLORD: RSA SECURITY, INC.
SUBTENANT: 170 SYSTEMS, INC.
SUBLEASE DATED: DECEMBER ___, 2003
PREMISES: A Portion of Building NO. 9, 36 Crosby Drive, Bedford, MA
The parties hereto agree that the Commencement Date of the above-referenced
Sublease is _______, 2003.
IN WITNESS WHEREOF, Sublandlord and Subtenant have each executed this
Sublease on the day and year first hereinabove written.
SUBLANDLORD:
RSA SECURITY INC.
By: ______________________________________
Its: ______________________________________
SUBTENANT:
170 SYSTEMS, INC.
By: ______________________________________
Its: ______________________________________
<PAGE>
EXHIBIT E
Form of Letter of Credit
(NAME OF BANK)
IRREVOCABLE STANDBY LETTER OF CREDIT
Date of Issue:__________________ No._______________
APPLICANT: BENEFICIARY:
170 Systems, Inc. [SUBLANDLORD]
25 First Street
Cambridge, MA 02141
Attn: Chief Financial Officer
AMOUNT: $162,000.00
At the request and for the account of 170 Systems, Inc. (the "Account Party"),
we hereby establish in your favor our irrevocable Letter of Credit no. _____ in
the amount of One Hundred Sixty-Two Thousand Five Hundred and 00/100 Dollars
($162,500.00).
This Letter of Credit is issued with respect to that certain sublease agreement,
by and between the Beneficiary, as Sublandlord, and the Account Party, as
Subtenant. Said sublease agreement, and any amendments or modifications thereof,
is hereinafter referred to as the "Sublease." Our obligations under this Letter
of Credit are solely as set forth herein and are completely independent of the
obligations of the Account Party under the Sublease. We do not undertake any
obligation under the Sublease, nor do we undertake any responsibility to
ascertain any facts, or to take any other action, with respect to the Sublease,
and we acknowledge that our obligations under this Letter of Credit shall not be
affected by any circumstance, claim or defense of any party as to the
enforceability of the Sublease or any dispute as to the accuracy of the
Statement (as defined below). The references to the Sublease in this Letter of
Credit are solely to describe the required contents of the Statement.
Funds under this Letter of Credit are available to you against presentation of
the following documents at our office at ______________________ prior to close
of business on the expiration date set forth below.
1. The original of this Letter of Credit.
2. Your sight draft on us in an amount not exceeding the amount of this
Letter of Credit (less sums previously paid by us hereunder) executed by the
person executing the Statement and bearing the number of this Letter of Credit;
and
<PAGE>
3. A statement (the "Statement") executed by a natural person, stating
that such person is your duly authorized representative, and that you are
entitled to draw upon this Letter of Credit.
The expiration date of this Letter of Credit is _____________, 200_, provided,
however, that the expiration date of this Letter of Credit shall be
automatically extended, without notice of amendment, for successive one (1) year
periods, unless we give you written notice of our election not to extend the
expiration date ("Notice of Non-Renewal") not later than sixty (60) days prior
to the date this Letter of Credit is scheduled to expire. A Notice of
Non-Renewal shall be effective when actually delivered by certified mail, return
receipt requested, or courier service to your address set forth above or such
other address and/or person as you shall specify to us for such purpose by
written notice received by us prior to the time the Notice of Non-Renewal is
sent.
This Letter of Credit is transferable in its entirety through us and successive
transfers shall be permitted. There will be no charge for the transfer of this
Letter of Credit. We will honor complying drafts presented hereunder by a
transferee (and cease to honor drafts presented hereunder by you) upon our
receipt of the fully executed transfer form attached hereto as Attachment 1.
This Letter of Credit may be drawn upon in one or more drafts not exceeding in
the aggregate, the amount available hereunder.
We hereby issue this Letter of Credit in your favor, and we hereby undertake to
honor all drafts drawn under and in compliance with the terms of this Letter of
Credit.
This Letter of Credit shall be governed by and construed in accordance with the
Uniform Customs and Practices for Documentary Credits (1993 Revision)
International Chamber of Commerce Publication 500.
_______________________
Authorized Signature
<PAGE>
ATTACHMENT 1
[TRANSFER FORM - to be provided by Bank]