Massachusetts-Bedford-20 Crosby Drive Sublease - RSA Security Inc. and Empirix Inc.
AGREEMENT OF SUBLEASE
This Agreement of Sublease (this "SUBLEASE") is made as of the 4th
day of May 2004 by and between RSA Security Inc., a Delaware corporation with
offices at 174 Middlesex Turnpike, Bedford, Massachusetts (hereinafter referred
to as "SUBLANDLORD"), and Empirix Inc., a Delaware corporation with offices at
1430 Main Street, Waltham, MA 02451 (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 MA-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 1, 20 Crosby Drive, Bedford,
Massachusetts (the "BUILDING");
WHEREAS, Subtenant desires to sublease from Sublandlord, and
Sublandlord desires to sublease to Subtenant, a portion of 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 61,000 square feet of gross
rentable area (the "RENTABLE AREA"), consisting of 35,000 square feet on the
second floor of the Building, and 26,000 square feet on the first floor of the
Building, and are outlined on EXHIBIT B attached hereto and made a part hereof.
Subtenant shall have the right to use, at its sole cost, the Building's UPS,
supplemental cooling systems and generator. Sublandlord warrants that such UPS,
supplemental cooling systems and generator (collectively, the "Supplemental
Systems") shall be in good working order on the Commencement Date (as defined
hereafter).
Subtenant shall have the option (each time the option is exercised
it shall be referred to as an "EXPANSION OPTION"), to be exercised not more than
two (2) times during the Term (as defined hereafter), at any time subject to the
terms of this Sublease, to expand the Demised Premises in accordance with the
provisions of this Section to include the some or all of the space outlined as
the Expansion Area on EXHIBIT B-1 attached hereto, consisting of 13,426
<PAGE>
square feet of Rentable Floor Area (the "EXPANSION AREA") on the second (2nd)
floor of the Building. The Expansion Option may be exercised in each case by
Subtenant by written notice to Sublandlord (each, an "EXPANSION NOTICE") at any
time during the Term (as defined hereafter); provided however that any Expansion
Notice must be given prior to the fifteenth day of any month. If Subtenant
exercises an Expansion Option, the Subtenant shall so inform the Sublandlord in
writing, including a statement of how much of the Expansion Area Subtenant
wishes to expand into, and that portion of the Expansion Area shall thereafter
be added to the Demised Premises for the remainder of the Term effective fifteen
(15) days after the date of such written notice (the "Effective Date").
Subtenant shall have the right to erect cubicles siding and perform electrical
and network wiring work for such cubicles within any portion of the Expansion
Area in advance of and prior to its occupancy thereof, and such action shall not
constitute "use or occupancy" and shall not be deemed an exercise of the
Expansion Option by Subtenant; provided that the work surfaces for such cubicles
shall only be installed after Tenant provides an Expansion Notice. Except as set
forth in the immediately preceding sentence, if Subtenant occupies any portion
of the Expansion Area for any purpose without providing Sublandlord with an
Expansion Notice (an "Expansion Event"), Subtenant shall vacate the Expansion
Area within two (2) days of its receipt of written notice from Sublandlord;
provided, however that Subtenant shall be entitled only to two (2) such
Expansion Events and two such associated written notices from Sublandlord during
the Term of this Sublease, after which Subtenant's occupancy of any portion of
the Expansion Area for any purpose (other than to erect cubicles as stated
above) shall be deemed an immediate exercise of the Expansion Option, whether or
not Subtenant has given Sublandlord an Expansion Notice. Subtenant's lease of
any portion of the Expansion Area shall be on all of the terms and conditions in
effect for the Demised Premises immediately prior to such expansion, except
that: (i) Base Rent shall be increased in each case as a result of the inclusion
of the applicable portion of the Expansion Area expended into by Subtenant, and
Subtenant shall pay, commencing on the Effective Date, Base Rent for the
applicable portion of the Expansion Area at the same then-current rate payable
with respect to the original Demised Premises, and (ii) Subtenant's
Proportionate Share for purposes of calculating Operating Costs and Taxes shall
be adjusted, commencing on the Effective Date, and shall reflect that Subtenant
occupies an additional portion of the Building, up to one hundred percent (100%)
of the Building should Subtenant expand into the entire Expansion Area.
The minimum amount of the Expansion Area to be expanded into by Subtenant
in the exercise of any Expansion Option as set forth herein shall be 6,500
square feet of space.
If Subtenant shall exercise an Expansion Option in accordance with this
Section, the provisions of this Section shall be self-operative, but upon
request by Sublandlord or Subtenant, the parties shall execute an agreement
specifying the area and location of the Demised Premises as expanded, the Base
Rent applicable to the applicable portion of the Expansion Area, and the date
the Demised Premises are to be, or have been, expanded under that Expansion
Option. The Expansion Area shall be delivered to Subtenant in accordance with
Exhibit B-1 and Exhibit C, but otherwise in its "as is" condition.
Notwithstanding any provision of this Section to the contrary, the
Expansion Option shall be void, at Sublandlord's election, if Subtenant is in
default hereunder, after any applicable notice and cure periods have expired, at
the time Subtenant elects to exercise an Expansion
2
<PAGE>
Option or at the time the Expansion Area would be added to the Demised Premises.
Nothing in this Section shall be construed to grant to Subtenant any rights or
interest in any space in the Building (other than the right to occupy the
original Demised Premises as set forth herein), and any claims by Subtenant
alleging a failure of Sublandlord to comply herewith shall be limited to claims
for monetary damages. Subtenant may not assert any rights in any space nor file
any lis pendens or similar notice with respect thereto.
2. Condition of Demised Premises.
Sublandlord shall perform those alterations set forth on the
attached EXHIBIT C (the "BUILDOUT WORK") in a good and workmanlike manner, and
in accordance with plans attached hereto as EXHIBIT D. Sublandlord acknowledges
and agrees that the Buildout Work shall be more fully described in a set of
plans and specifications and construction documents acceptable to Sublandlord
and Subtenant and to be prepared by Margulies & Associates and AHA Engineers
(the "Architectural and Engineering Plans") following good engineering
practices. The costs for the Buildout Work shall be paid by Sublandlord and
Subtenant in accordance with the allocation set forth on EXHIBIT D. Except for
Buildout Work, Sublandlord shall deliver the Demised Premises vacant and free of
Sublandlord's personalty with all Supplemental Systems in good operating order,
and in broom clean but otherwise in its "as is" condition, in accordance with
all town, state and local codes, ordinances, regulations and requirements.
Except as set forth herein and in the Architectural and Engineering Plans,
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; provided,
however, that Subtenant shall have a period of thirty (30) days following the
Commencement Date in which to examine the Demised Premises to determine whether
there are any material variations in the Demised Premises from the requirements
set forth in EXHIBIT C, EXHIBIT D and/or the Architectural and Engineering
Plans. In the event that Subtenant discovers any such variations, Subtenant
shall submit a written description of such items (the "Punch List") to
Sublandlord within such thirty (30) day period, and Sublandlord shall promptly
remedy such variations.
Sublandlord shall be solely responsible for the cost of the
Architectural and Engineering Plans detailing the Buildout Work for the scope of
work set forth on the attached EXHIBIT D. To the extent that Subtenant makes
material changes or additions to the scope of work set forth on EXHIBIT D, then
Subtenant shall be solely responsible for any revised or additional
Architectural and Engineering Plans. Sublandlord shall act as construction
manager with respect to the Buildout Work, at no additional cost to Subtenant.
Sublandlord and Subtenant agree to cooperate with each other in
order to obtain the certificate of occupancy for the Demised Premises from the
Town of Bedford.
3
<PAGE>
Subtenant shall make no alterations, additions or improvements to
the Demised Premises without the prior written consent of Sublandlord and Prime
Landlord (Sublandlord's consent not to be unreasonably withheld or delayed),
except that Subtenant shall be allowed to perform certain "SUBTENANT'S WORK" as
set forth on EXHIBIT E.
3. Term.
The term of this Sublease shall commence on the later of (i) September 1,
2004 or (ii) the date the Buildout Work is substantially completed, with only
minor items remaining to be completed that do not materially interfere with
Subtenant's use of the Demised Premises, as evidenced by Subtenant's receipt of
a temporary or permanent certificate of occupancy for the Demised Premises from
the Town of Bedford, if required (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 F ) shall
be executed by the Subtenant within five (5) days of its delivery to the
Subtenant by the Sublandlord. Notwithstanding the foregoing, if the Buildout
Work is not substantially completed, with only minor items remaining to be
completed that do not materially interfere with Subtenant's use of the Demised
Premises, by October 31, 2004 (other than due to Subtenant fault or delay, force
majeur or other causes beyond Sublandlord's reasonable control), then Subtenant
may terminate this Sublease by written notice to Sublandlord without payment or
penalty.
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 solely for purposes of performing Subtenant's
Work in preparation for occupancy (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 general office purposes, research, development, light manufacturing
and any uses ancillary thereto all in compliance with 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.
Sublandlord represents that it has no actual knowledge that the Demised Premises
may not be used such purposes.
5. Base Rent. Commencing on the Commencement Date, Subtenant
shall pay base rent ("BASE RENT") for the Term hereby created as follows:
September 1, 2004 - August 31, 2005: Seven Hundred Sixty Two
Thousand Five Hundred and 00/100 Dollars ($762,500.00)($12.50 per rentable
square foot), payable in equal monthly installments of Sixty Three Thousand Five
Hundred Forty One and 67/100 Dollars ($63,541.67);
4
<PAGE>
September 1, 2005 - August 31, 2006: Seven Hundred Seventy Seven
Thousand Seven Hundred Fifty and 00/100 Dollars ($777,750.00)($12.75 per
rentable square foot), payable in equal monthly installments of Sixty Four
Thousand Eight Hundred Twelve and 50/100 Dollars ($64,812.50);
September 1, 2006 - August 31, 2007: Seven Hundred Ninety Three
Thousand and 00/100 Dollars ($793,000.00)($13.00 per rentable square foot),
payable in equal monthly installments of Sixty Six Thousand Eighty Three and
33/100 Dollars ($66,083.33);
September 1, 2007 - August 31, 2008: Eight Hundred Eight Thousand
Two Hundred Fifty and 00/100 Dollars ($808,250.00)($13.25 per rentable square
foot), payable in equal monthly installments of Sixty Seven Thousand Three
Hundred Fifty Four and 17/100 Dollars ($67,354.17); and
September 1, 2008 - June 30, 2009: Six Hundred Eighty Six Thousand
Two Hundred Fifty and 00/100 Dollars ($686,250.00)($13.50 per rentable square
foot), payable in equal monthly installments of Sixty Eight Thousand Six Hundred
Twenty Five and 00/100 Dollars ($68,625.00).
(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 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. (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 in a form
satisfactory to Sublandlord and issued by a bank reasonably acceptable to
Sublandlord upon which presentation may be made in Boston, Massachusetts.
Sublandlord agrees that Silicon Valley Bank shall be reasonably acceptable to
Sublandlord. The Letter of Credit shall be in the amount of Three Hundred Ninety
Six Thousand Five Hundred and 00/100 Dollars and 00/100 Dollars ($396,500.00);
and shall be for a term of one (1) year, subject to the provisions of
subparagraph (b) of this Section 6, with a final expiry date no earlier than
August 31, 2009. 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." Provided that no default has occurred
under this Sublease which remains uncured after the conclusion of the applicable
Notice Period (as defined below): (i) the Letter of Credit shall be reduced to
Two Hundred Sixty Four Thousand Three Hundred Thirty Three and 33/100 Dollars
($264,333.33) on the second anniversary of the Commencement Date; (ii) the
Letter of Credit shall be reduced to One Hundred Ninety Eight Thousand Two
Hundred Fifty and 00/100 Dollars ($198,250.00) on the third anniversary of the
Commencement Date; and (iii) the Letter
5
<PAGE>
of Credit shall be reduced to One Hundred Thirty Two Thousand One Hundred Sixty
Six and 67/100 Dollars ($132,166.66) on the fourth anniversary of the
Commencement Date. In lieu of reducing the Letter of Credit(s), Substitute
Letter(s) of Credit may be issued for the reduced amounts as set forth herein).
(b) The Letter of Credit shall be automatically renewable for
successive one (1) year terms, provided, however, that Subtenant shall be
required to deliver to Sublandlord 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
(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.
6
<PAGE>
(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 expiration or earlier termination of
this Sublease, 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
2005 and "Tax Base Year" shall be fiscal tax year 2005; Operating Costs shall be
appropriately adjusted to 95% occupancy when establishing the Base Year. At the
time that Sublandlord notifies Subtenant of the amount of Additional Rent,
Sublandlord shall provide Subtenant with copies of any appropriate supporting
documentation provided by Prime Landlord setting forth the amount said excess
Operating Expenses and Taxes. Subtenant shall have the right to exercise
Sublandlord's audit rights pursuant to Article 9.3(b) of the Prime Lease with
respect to the Demised Premises; provided that Sublandlord shall have no
obligation to conduct any independent audit. 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 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
paragraph 1 of this Agreement of Sublease, divided by 74,426 square feet
(provided, however, that if less than 95% of the Building is occupied by tenants
at any time during the term of this Sublease (including during the Operating
Cost BaseYear), 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, one hundred percent (100%) of all electricity charges with
respect to the Building, and one hundred percent (100%) of 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.
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 or as may be inconsistent or in conflict with the
terms and provisions of this Sublease), 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
7
<PAGE>
provided for herein or as may be inconsistent or in conflict with the terms and
provisions of this Sublease (including the amount of Base Rent and Additional
Rent), 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. To the extent
that Sublandlord receives any abatement of Rent hereunder 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 proportional abatement of its Rent due hereunder. Sublandlord
agrees to use commercially reasonable best efforts to cause the Prime Landlord
to perform all of the Prime Landlord's obligations under 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.
Sublandlord agrees that Subtenant may bring an action in Sublandlord's name to
enforce any obligation of Prime Landlord, at Subtenant's sole cost and expense.
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.
8
<PAGE>
(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) fail to faithfully perform any other
obligation under this Sublease, or (iii) default under Article 21 of the Prime
Lease, then Subtenant shall be in default of this Sublease and, should Subtenant
fail to remedy the same within the applicable Notice Period, 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 contained in the Prime
Lease, the time limits (the "Notice Periods") contained in the Prime Lease for
giving of notices, making of demands, curing defaults or performing any act,
condition or covenant on the part of "Tenant", thereunder, are changed for the
purpose of incorporation herein by reference by shortening the same in each
instance by five (5) days, so that in each instance Subtenant shall have five
(5) fewer days to observe or perform hereunder than Sublandlord has as the
"Tenant" under the Prime Lease; provided, however, that if the Prime Lease
allows a Notice Period of five (5) days or less, then Subtenant shall
nevertheless be allowed the number of days equal to one-half of the number of
days in each Notice Period to give any such notice, make any such demands, cure
any such default or perform any such act, condition or covenant; provided,
further, that if one-half of the number of days in the Notice Period is not a
whole number, Subtenant shall be allowed the number of days equal to one-half of
the number of days in the Notice Period rounded up to the next whole number.
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
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. Subtenant further agrees that, notwithstanding any assignment or
sublease, Subtenant shall 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.
9
<PAGE>
(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; provided however that Sublandlord shall be
entitled to one hundred percent (100%) of such excess payments if Subtenant is
in default 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 Sections 15.3 and 15.3A, 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:
Empirix Inc.
1430 Main Street
Waltham, MA 02451
Attn: Chief Financial Officer
After Occupancy:
Empirix, Inc.
20 Crosby Drive, Building 1
Bedford, MA 01730
Attention: Chief Financial Officer
10
<PAGE>
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 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 as a result of Subtenant's failure, if any, to so surrender the Demised
Premises.
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, and covenants and agrees that it shall not enter
into any modification or other agreement with respect to the Prime Lease which
would (i) constitute a default under the provisions of the Prime Lease or
prevent or adversely affect the use by Subtenant of the Demised Premises in
accordance with the terms of this Sublease, (ii) increase the obligations of
Subtenant or decrease its rights under this Sublease, or (iii) in any other way
increase the Rent or Additional Rent required to be paid by Subtenant under the
terms of this Sublease or, to the extent applicable, under the terms 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
except as provided above, (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. SUBLANDLORD FURTHER
ACKNOWLEDGES THAT ITS TERMINATION RIGHT AS SET FORTH IN PARAGRAPH 1 TO THE RIDER
TO THE PRIME LEASE WITH RESPECT TO BUILDING ONE HAS EXPIRED, AND THAT NEITHER
SUBLANDLORD NOR SUBTENANT HAS ANY SUCH TERMINATION RIGHTS.
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
11
<PAGE>
obtained if Prime Landlord's 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.
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 addition, in the event of any taking by eminent domain or
damage by fire or other casualty to the Demised Premises, Subtenant shall be
entitled to exercise, if applicable, the "Tenant's" termination rights set forth
in 18.4(a), 18.4(b) or 20.2 of the Prime Lease with respect to the Demised
Premises, provided, however, that it must provide notice of any such termination
twenty (20) days earlier than required by Sublandlord under the terms of the
Prime Lease.
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 and Meredith & Grew, Inc. 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 solely responsible for payment
of any brokerage commission to the brokers designated in this Section pursuant
to separate agreement.
21. 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
12
<PAGE>
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 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 right to use, in
common with others, on a non-reserved basis, the parking spaces in the area
shown as Tenant's Exclusive Parking Area" pursuant to Article 2.3 of 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 the "Tenant's
Exclusive Parking Area."
(j) Signage. Subject to the prior consent of Sublandlord and
Prime Landlord, Subtenant shall have the right to erect building standard
signage at the Demised Premises and the Building in accordance with the
provisions of the Prime Lease. Sublandlord shall not unreasonably withhold or
delay its consent to Subtenant's proposed signage.
(k) Access. Subtenant shall have access to the Demised
Premises and the parking areas appurtenant thereto twenty-four (24) hours per
day, three hundred sixty five (365) days per year, and shall have the right to
use the existing card readers throughout the Building. Subtenant shall be solely
responsible for the setup, use, operation, and maintenance of said system.
Sublandlord makes no representations or warranties that the existing security
system is operational or sufficient for Subtenant's use, and Subtenant accepts
such card security system in its "as is" condition.
(l) 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.
13
<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/Jeffrey D. Glidden
------------------------------------
Its: CFO
SUBTENANT:
Empirix Inc.
By: /s/Paul G. Fitzgerald
------------------------------------
Paul G. Fitzgerald
Its: Corporate Controller
14
<PAGE>
EXHIBIT A
Prime Lease
Attached hereto.
15
<PAGE>
EXHIBIT B
Outline of the Space
Attached hereto.
[architectural drawings of the space]
16
<PAGE>
EXHIBIT B-1
Expansion Area
Attached hereto.
[architectural drawing]
17
<PAGE>
EXHIBIT C
Landlord's Work
18
<PAGE>
EXHIBIT C
SCOPE OF RENOVATIONS: RSA ITEMS
20 Crosby Drive, Bedford, Massachusetts
April 30, 2004
1. R Remove all existing systems furniture (cubicles).
R Paint all GWB walls in demised premises. Two coat coverage. Paint to
be selected from leading manufacturer. No special finishes.
R Replace carpet throughout demised premises unless identified
otherwise in drawings. Carpet to be per the samples provided by RSA
and Chapman Construction. $18 allowance assumed in allowance. See
letter of transmittal dated 4/13/2004 to Empirix.
R Paint existing hollow metal doors and frames. Existing extruded
aluminum door frames to remain as is, except where trim is to be
replaced with demolition materials. Existing stained doors to remain
as is.
2. R Demolish former Production and Packing Rooms.
R Install carpet throughout space.
R Infill ACT.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas.
4. R Demolish 3 enclosed rooms, 6 private offices and 2 closets.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas.
R Interior windows to CITG Lab are no longer required.
5. R Demolish existing partition separating two rooms to create one
larger room.
R Remove one door and frame; infill with GWB.
R Infill ACT.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas.
6. R Demolish 1 existing private office.
R Infill ACT.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas. Remove two supplemental coils. Tie ducts into
base building system.
7. R Provide new cabinet fronts with new plastic laminate selected by
Empirix.
R Resurface front faces of cabinet carcasses with new plastic laminate
selected by Empirix.
R Replace VCT floor tile in second floor kitchen.
8. R Replace all carpet on Floor 2. Carpet selection by Empirix.
19
<PAGE>
Empirix 20 Crosby Drive, Bedford, Massachusetts
Scope of Renovations: Exhibit D RSA Items
April 30, 2004
Page 2
10. R Demolish 4 existing private offices.
R Infill ACT.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas.
11. R Demolish 3 existing private offices.
R Infill ACT.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas.
12. R Demolish 2 existing private offices.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas.
R Infill ACT.
13. R Paint all dry wall surfaces in labs
14. R All tile to remain as is in labs that remain.
15. R IT Data Center: 15 tons cooling, thirty (30) 20 AMP dual outlet
receptacles.
16. R ETS lab: 5 tons cooling, ten (10) 20 AMP dual outlet receptacles.
17. R CITG lab: 10 tons cooling, Twenty four (24) 20 AMP dual outlet
receptacles.
21. R UPS, generator and HVAC systems brought to good working order.
24. R Carefully remove and tag existing Tel Data for re-use.
25. R Provide standard VCT in existing lab space.
26. R Demolish 5 existing private offices.
R Infill ACT.
R Modify HVAC, fire protection, lighting, and life safety as required
for new cubicle areas.
29. R Repair shade in Training Room.
20
<PAGE>
EXHIBIT D
Plans and Specifications
------------------------
[architectural drawings]
21
<PAGE>
EXHIBIT E
Subtenant Work
22
<PAGE>
EXHIBIT E
SCOPE OF RENOVATIONS: EMPIRIX ITEMS
20 Crosby Drive, Bedford, Massachusetts
April 30, 2004
3. E Erect new systems furniture (cubicles) as directed by Empirix.
Layout by M&A (with Empirix). Power, voice/data connections by
engineer. Final cubicle size to be determined by Empirix. Layout
shown is for illustration only.
9. E Erect partition to screen Break Area.
18. E Any additional air conditioning or electrical requirements will be
by Empirix.
19. E Relocate and install the Inergen system in IT Data Center. Expand
as required.
20. E Bring and existing IT Data Center partitions to deck and seal room
for Inergen system.
22. E Remove and infill door out of IT Data Center into CITG Lab. Retain
one existing double door and one existing single door from the IT
Data Center into the corridor.
23. E Create Inergen tank storage room.
25. E Add wire partition to separate lab into three spaces.
27. E Telephone stations: Replace with new stations with plastic
laminate selected by Empirix. Carry as add alternative.
E Construct privacy wall to enclose break area for training customers.
28. E
30. E Add door in Board Room to Equipment room use existing salvage door
(removed during first floor demolition) from demo area.
31. E Add salvaged window to PSO Lab (removed during first floor
demolition).
32. E Relocate existing supplemental cooling unit in PSO Lab to
Engineering Lab.
33. E Add door to Engineering Lab to access third space. - use existing
door from Demolition area
34. E Add voice/data/electrical floor devices in enlarged rooms.
23
<PAGE>
EXHIBIT F
Notice of Lease Commencement
SUBLANDLORD: RSA Security, Inc.
SUBTENANT: Empirix, Inc.
SUBLEASE DATED: May ___, 2004
PREMISES: A Portion of Building No. 1, 20 Crosby Drive, Bedford, MA
The parties hereto agree that the Commencement Date of the
above-referenced Sublease is _______, 2004.
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:
EMPIRIX, INC.
By: ____________________________________
Its: ____________________________________
24