CONSENT TO SUBLEASE
AGREEMENT
AND SECOND AMENDMENT TO LEASE
This Consent to
Sublease Agreement and Second Amendment to Lease (this
“Agreement”) is made as of the 28th day of July, 2008
by and among HUB PROPERTIES
TRUST, a Maryland real estate investment trust
(“Landlord”), HONEYWELL TECHNOLOGY
SOLUTIONS INC., a Delaware corporation (“Tenant”),
successor by merger to the interest of
Dimensions International, Inc. (“Dimensions”) and
CUISINE SOLUTIONS, INC., a Delaware
corporation (“Subtenant”).
WHEREAS, Landlord and Dimensions entered into that certain Lease
dated March 3,
2004, as amended by that certain First Amendment to Lease (the
“First Amendment”) dated
October 25, 2005 (collectively, the “Original Lease”)
for the lease of certain premises (the
“Premises”) as more particularly described in the
Lease, located in a portion of the building (the
“Building”) located at and known as 2800 Eisenhower
Avenue, Alexandria, Virginia; and
WHEREAS, Landlord consented to the deemed assignment of the
Original Lease as a
result of a change of control of Dimensions pursuant to that
certain Landlord’s Consent to
Assignment (the “Consent”) dated May 29, 2007 (the
Original Lease, as affected by the Consent,
is collectively referred to herein as the “Lease”);
and
WHEREAS, Tenant and Subtenant desire to enter into a Sublease (the
“Sublease”), a
copy of which is attached hereto as Exhibit A, for
Subtenant’s use and occupancy of the portion
of the Premises (the “Sublease Premises”) shown on the
floor plan attached hereto as Exhibit B;
and
WHEREAS, Landlord has agreed to consent to the Sublease subject to
the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined shall
have the meanings
ascribed to such terms in the Lease.
2. Tenant shall, contemporaneously with its execution hereof,
deposit $28,475.33
with Landlord (the “Security Deposit”) which sum shall
be held by Landlord as security for the
faithful performance of all the terms of the Lease to be observed
and performed by Tenant.
Tenant shall not mortgage, assign, transfer or encumber the
Security Deposit and any such act on
Tenant’s part shall be without force and effect and shall not
be binding on Landlord. If Tenant
fails to perform any of the terms of the Lease beyond the
expiration of any applicable cure
period, then Landlord may, at Landlord’s option and without
notice or prejudice to any other
remedy which Landlord may have on account thereof, appropriate and
apply the entire Security
Deposit, or so much thereof as may be necessary, toward the payment
of any amount due
hereunder but unpaid or loss or damage sustained by Landlord due to
such breach by Tenant; and
Tenant shall upon demand restore the Security Deposit to the
original amount deposited. Upon
such application by Landlord and until Tenant shall have restored
the Security Deposit to the
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amount initially deposited hereunder, Tenant shall be deemed to be
in default in the payment of
Additional Rent for purposes of Section 8.1(a)(I) of the Lease. So
long as Tenant is not in
default under the Lease, Landlord shall return the Security
Deposit, or so much thereof as shall
have not theretofore been applied in accordance with the terms
hereof (and less any amount
Landlord shall estimate shall be due from Tenant on account of
Operating Costs and Taxes), to
Tenant promptly following the expiration or earlier termination of
the Term of the Lease and the
surrender of possession of the Premises by Tenant in accordance
with the terms of the Lease.
While Landlord holds the Security Deposit, Landlord shall have no
obligation to pay interest on
it and may commingle it with other funds. If Landlord conveys its
interest in the Property, the
Security Deposit, or any part thereof not previously applied, will
be turned over to the transferee,
and Tenant will look solely to such transferee for proper
application and return of the Security
Deposit in accordance with the terms hereof.
3. Landlord hereby consents to the Sublease, subject to and upon
the terms and
conditions hereof and in reliance of the representations,
warranties and agreements contained
herein. Tenant and Subtenant acknowledge and agree that (i)
Landlord is not a party to the
Sublease and is not bound by the provisions thereof, (ii) Landlord
has not and will not review or
pass upon any of the provisions of the Sublease, (iii) the Sublease
will not be modified or
amended in any material way without the prior written consent of
Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed and (iv) the
Sublease is intended to grant
Subtenant a subleasehold interest and is not an assignment of
Tenant’s interest under the Lease
and consequently notwithstanding anything to the contrary contained
in the Sublease the term of
the Sublease shall expire no later than one (1) day prior to the
expiration or earlier termination of
the term of the Lease. Nothing herein contained shall be construed
as a consent to, or approval
by Landlord of, any of the provisions of the Sublease, but is
merely a consent to the act of
subletting by Tenant to Subtenant. To the extent of any
inconsistencies between the terms of the
Sublease and the terms of the Lease or this Agreement, the terms of
the Lease or this Agreement
shall prevail. In furtherance of the foregoing, Tenant and
Subtenant agree that (i) Landlord’s
obligations to Tenant are governed only by the Lease and this
Agreement, (ii) Landlord shall not
be bound or estopped by any provisions of the Sublease, including
any provision purporting to
impose any obligations upon Landlord and (iii) nothing contained
herein shall be (a) construed as
a consent to, approval of, or ratification by Landlord of, any of
the particular provisions of the
Sublease, or any plan or drawing referred to or contained therein
(except as may be expressly
provided herein), or (b) construed to modify, waive, impair or
affect any of the covenants,
agreements, terms, provisions, obligations or conditions contained
in the Lease (except as herein
expressly provided), or to waive any breach thereof, or to increase
the obligations or diminish the
rights of Landlord under the Lease, or to increase the rights or
diminish the obligations of Tenant
thereunder.
4. Tenant represents and warrants that (a) the Lease is in full
force and effect and
constitutes the entire agreement between Landlord and Tenant with
respect to the Premises; (b)
Tenant has not previously assigned, mortgaged, pledged or otherwise
transferred any interest
under the Lease nor has it sublet, licensed or otherwise granted
any occupancy rights to any third
party currently occupying any portion of the Premises; (c) to the
actual knowledge, without
inquiry, of Tenant’s employee, David S. Derr, Tenant knows of
no defense or counterclaim to
the enforcement of the obligations of the Tenant under the Lease
and has no knowledge of any
default by Landlord; (d) Tenant is not entitled to any reduction,
offset or abatement of the rent
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payable under the Lease; (e) a true and complete copy of the
Sublease is attached hereto as
Exhibit A, and the Sublease constitutes the complete agreement
between Tenant and Subtenant
with respect to the subject matter thereof; and (f) to the actual
knowledge, without inquiry, of
Tenant’s employee, David S. Derr, Tenant is not in default of
any of its obligations or covenants,
and has not breached any of its representations or warranties under
the Lease. Tenant represents
that David S. Derr is the person knowledgeable of the foregoing
matters.
5. Tenant hereby reaffirms that it shall remain fully responsible
and primarily liable
for the prompt payment of all amounts payable by Tenant under the
Lease and the performance
of all of the terms, covenants, conditions and provisions of the
Lease required to be performed on
the part of Tenant thereunder.
6. Subtenant agrees that it shall perform and comply with and be
bound
