SUBLEASE

 

Exhibit 10.42

                                    SUBLEASE

 

THIS SUBLEASE (this "Sublease") is made and entered into as of September 9, 2005

between Cookson Electronics,   Inc., a Rhode Island corporation,   as successor to

Cookson   Electronics    Process    Technology,    Inc.   f/k/a   Cookson   Performance

Solutions, Inc., having an address of 50 Sims Avenue,   Providence,   Rhode Island

02909    ("Sublandlord"),    and   Axeda   Systems    Operating    Company,    Inc.,   a

Massachusetts   corporation,   having an   address   of 21 Oxford   Road,   Mansfield,

Massachusetts 02048 ("Subtenant").

 

                              W I T N E S S E T H:

                               - - - - - - - - - -

 

         WHEREAS, Sublandlord is a party to that Lease dated December 17, 1999,

between Keep Your Day Job, LLC, a Delaware limited liability company

("Landlord"), and Sublandlord, as amended from time to time (the "Prime Lease").

A copy of the Prime Lease is hereby attached to and hereby made a part of this

Sublease as Exhibit A;

 

          WHEREAS, pursuant to the Prime Lease, Landlord leased to Sublandlord

the real property and improvements thereon located at 25 Forbes Boulevard, Unit

#3 Foxborough, Massachusetts (the "Premises"); and

 

         WHEREAS, subject to the consent of Landlord, Subtenant desires to

sublease from Sublandlord, and Sublandlord desires to sublease to Subtenant, the

Premises, all upon the terms and subject to the conditions and provisions

hereinafter set forth.

 

         NOW, THEREFORE, WITNESSETH, that for and in consideration of the

foregoing and of the mutual covenants and promises contained herein and other

good and valuable considerations, the receipt and sufficiency of which are

hereby mutually acknowledged, Sublandlord and Subtenant hereby agree as follows:

 

1. Demise; Use. Sublandlord hereby subleases to Subtenant, and Subtenant hereby

subleases from Sublandlord, the Premises, for the term and rental and upon the

other terms and conditions hereinafter set forth. The Premises shall be used and

occupied by Subtenant solely for Permitted Uses (as defined in the Prime Lease)

in connection with Subtenant's software business.

 

2. Term. The term of this Sublease shall commence on the date that is the later

of (a) September 1, 2005 or (b) the date on which the written consent of

Landlord to this Sublease is obtained and delivered to Subtenant (in either

instance, the "Commencement Date"), and unless sooner terminated pursuant to the

provisions hereof, shall terminate on March 31, 2007 (the "Expiration Date").

 

          Each of Sublandlord and Subtenant hereby acknowledges and agrees that

this Sublease is subject to and conditioned upon Sublandlord obtaining the

written consent (the "Consent") of Landlord as provided in the Prime Lease.

Promptly following the execution and delivery of this Sublease by Sublandlord

and Subtenant, Sublandlord shall submit this Sublease to Landlord. It is

expressly understood and agreed that notwithstanding anything to the contrary

contained herein, the Term shall not commence until the Consent has been

obtained. Each of Sublandlord and Subtenant hereby agrees that it shall comply

with any reasonable requests made by Landlord in the procurement of the Consent;

provided, however, that in no event shall Sublandlord or Subtenant be obligated

to make any payment to Landlord in order to obtain the Consent, other than as

expressly set forth in the Prime Lease.

 

                                       1

<PAGE>

         If the Commencement Date shall not have occurred on or before September

15, 2005, Subtenant may terminate this Sublease by written notice to

Sublandlord, in which event this Sublease shall terminate as of the date ten

(10) days after receipt of such notice (unless Landlord shall have caused the

Commencement Date to occur on or before such tenth day), and any monies paid by

Subtenant to Sublandlord shall thereafter be immediately returned to Subtenant.

 

3. Gross Rent.

 

     (a) Subtenant   shall pay to Sublandlord   gross annual rental ("Gross Rent")

     for the Sublease Premises as follows:

 

 

   Annual Gross Rent Rate

       Per Square Foot             Annual Gross Rent         Monthly Installments

----------------------------   ------------------------   -----------------------

            $8.50                    $125,043.50                $10,420.29

----------------------------   ------------------------   -----------------------

 

Annual Gross Rent shall be due and payable in twelve (12) equal installments.

Each such installment shall be due and payable in advance on the first (1st) day

of each calendar month of the term of this Sublease. If the term of this

Sublease commences on a day other than the first (1st) day of a month or ends on

a day other than the last day of a month, Gross Rent for such month shall be

prorated. Prorated Gross Rent for any such partial first (1st) month of the term

hereof shall be paid on the Commencement Date.

 

     (b) All Gross Rent and additional rent shall be paid without   counterclaim,

     setoff or   deduction   whatsoever   and shall be paid to   Sublandlord   at its

     address for notices or at such other place as Sublandlord   may designate by

     notice to Subtenant.

 

     (c) Sublandlord   shall provide to Subtenant a credit to be applied to Gross

     Rent   ("Rent   Credit")   equal   to   $4,900   for   the   cost of   certain   HVAC

     modifications that Subtenant reasonably deems to be necessary, upon receipt

     by   Sublandlord   of an   invoice   for the   HVAC   modifications   and   written

     evidence (satisfactory to Sublandlord) that Subtenant has paid such invoice

     in full. The Rent Credit shall be applied to the first monthly   installment

     of Gross Rent following   Sublandlord's   receipt of the invoice and evidence

     of payment.

 

4. Additional Rent; Payments; Interest; Utilities.

 

     (a) Except for "Base Rent" (as defined in the Prime Lease),   the payment of

     which   Subtenant   shall have no obligation   under this Sublease,   Subtenant

     shall also pay to   Sublandlord   all other   amounts   payable by   Sublandlord

     under   the   Prime   Lease   which   are    attributable    to   the   Premises   or

     attributable to Subtenant, its agents, employees, customers or invitees. By

     way of example   and not by way of   limitation,   ["Operating   Expenses"   and

     "Real   Property   Taxes" (as those terms are defined in the Prime Lease) and

     any increases thereto during the term of this Sublease, charges by Landlord

     for   furnishing   air   conditioning   or heating to the   Premises at times in

     addition   to those   certain   times   specified   in the   Prime   Lease,   costs

     incurred by   Landlord   in   repairing   damage to the   Premises   caused by an

     employee of   Subtenant,   increased   insurance   premiums   due as a result of

     Subtenant's   use of the   Premises,   and   amounts   expended   or   incurred by

     Landlord   on account   of any   default by   Subtenant   which   gives rise to a

     default   under the Prime   Lease would all be amounts   payable by   Subtenant

     pursuant to Section 4(a) of this Sublease.

 

     (b) Each amount due   pursuant   to Section   4(a) of this   Sublease   and each

     other amount payable by Subtenant   hereunder,   unless a date for payment of

     such amount is provided for   elsewhere in this   Sublease,   shall be due and

     payable on the fifth   (5th) day   following   the date on which   Landlord   or

     Sublandlord has given notice to Subtenant of the amount thereof,   but in no

     event later than the date on which any such amount is due and payable under

     the Prime Lease.

 

     (c) All amounts   other than Gross Rent   payable to   Sublandlord   under this

     Sublease shall be deemed to be   "additional   rent" due under this Sublease.

     All past due   installments   of Gross   Rent and   additional   rent shall bear

     interest   from the date due until paid at the rate per annum   equal to five

     percent (5.00%) in excess of the Prime Rate (herein defined) in effect from

     time to time, which rate shall change from time to time as of the effective

     date of each change in the Prime   Rate,   unless a lesser rate shall then be

     the maximum rate   permissible by law with respect   thereto,   in which event

     said lesser rate shall be charged.   For the purposes of this Sublease,   the

     term "Prime   Rate" shall mean the rate of interest   announced   from time to

     time by Bank of America,   N.A. (or if Bank of America, N.A. shall no longer

     exist,   such other financial   institution as Sublandlord may select) as its

     prime or corporate base rate.

 

     (d) Subtenant shall pay Landlord on the due dates for services requested by

     Subtenant   which are billed by Landlord   directly to Subtenant   rather than

     Sublandlord.

 

     (e) During the term of the Sublease, Subtenant shall be responsible for the

     payment of all expenses   relating to the supplying of any and all utilities

     to the Premises as set forth below.   Said utilities shall include,   but are

     not limited to, electricity,   heat, telephone,   water usage and consumption

     and sewer charges and assessments and any other utility service provided to

     the   Premises.   Sublandlord   shall not be   responsible   for, and   Subtenant

     hereby releases and indemnifies   Sublandlord from and against,   any and all

     claims,   demands,   charges, costs or other actions in all forms relating to

     damage to persons or property occurring or arising from the failure of such

     utilities to be supplied to the Premises regardless of cause.

 

                                       2

<PAGE>

5. Security Deposit. Concurrently with Subtenant's execution of this Sublease,

Subtenant shall deposit with Sublandlord: (a) Ten Thousand Four Hundred Twenty

and 30/100 Dollars ($10, 420.30) in the form of a cash payment; and (b) Thirty

One Thousand Two Hundred Sixty and 90/100 Dollars ($31,260.90), in the form of a

"clean," unconditional, irrevocable and transferable letter of credit (the

"Letter of Credit") in the same amount, issued by and drawn on a bank

satisfactory to Sublandlord for the account of Sublandlord, for a term of not

less than the term of this Sublease, containing terms and conditions that are

satisfactory to Sublandlord, in Sublandlord's sole and absolute discretion, as

security for the faithful performance and observance by Subtenant of the terms,

conditions and provisions of this Sublease (collectively, the "Sublease Security

Deposit"). If Subtenant defaults in respect of any of the terms, provisions and

conditions of this Sublease, including, but not limited to, the payment of Gross

Rent, any additional rent or any other monetary item, Sublandlord may apply or

retain the whole or any part of the security so deposited, and/or present the

Letter of Credit for payment and apply or retain the whole or any part thereof,

as the case may be, to the extent required for the payment of any Gross Rent,

any additional rent or any other monetary item as to which Subtenant is in

default or for any sum which Sublandlord may expend or may be required to expend

by reason of Subtenant's default or for any sum which Sublandlord may expend or

may be required to expend by reason of Subtenant's default in respect of any of

the terms, covenants and conditions of this Sublease, including but not limited

to, any damages or deficiency in the reletting of the Premises, whether such

damages or deficiency accrue or accrues before or after summary proceedings or

other re-entry by Sublandlord. If Sublandlord applies or retains any part of the

proceeds of the Letter of Credit or security so deposited, as the case may be,

Subtenant, upon demand, shall deposit with Sublandlord the amount so applied or

retained so that Sublandlord shall have the full deposit on hand at all times

during the term of this Sublease. If Subtenant shall fully and faithfully comply

with all of the terms, provisions, covenants and conditions of this Sublease,

the Letter of Credit or security, as the case may be, shall be returned to

Subtenant within 30 days after the termination of this Sublease and after

delivery of possession of the entire Premises to Sublandlord in the condition

required hereunder. Subtenant will not assign or encumber or attempt to assign

or encumber the monies deposited herein as security and neither Sublandlord nor

its successors or assigns shall be bound by any such assignment, encumbrance,

attempted assignment or attempted encumbrance.

 

6. Condition of Premises and Personal Property .

 

     (a) The Premises and Personal   Property (as   hereinafter   defined) shall be

     delivered by   Sublandlord   to   Subtenant,   and   Subtenant   shall accept the

     Premises and Personal   Property,   in its "as-is" condition   existing on the

     date first   written   above except that as a condition of the   occurrence of

     the   Commencement   Date Sublandlord   shall, at Sublandlord's   sole cost and

     expense,   remove or cause to be removed   the   compressor   in the   Premises.

     Subtenant's   taking   possession of the Premises and Personal Property shall

     be conclusive   evidence as against Subtenant that the Premises and Personal

     Property   were in   satisfactory   condition   at that   time.   No   promise   of

     Sublandlord   to alter,   remodel or improve the   Premises,   except as may be

     expressly provided herein,   and no representation   respecting the condition

     of the   Premises or Personal   Property,   have been made by   Sublandlord   to

     Subtenant. Subtenant may not make any improvements,   alterations, additions

     or   changes to the   Premises   without   first   procuring   the prior   written

     consent of Sublandlord to the same, which consent shall not be unreasonably

     withheld,   conditioned   or delayed,   and   Landlord if required by the Prime

     Lease.   It   is   hereby    acknowledged    that    Landlord's    disapproval   of

     improvements,   alterations,   additions or changes to the Premises requested

     by Subtenant shall be reasonable   grounds for Sublandlord's   disapproval of

     the same.   Notwithstanding   anything   herein to the   contrary,   Sublandlord

     represents   and warrants to Subtenant that to   Sublandlord's   knowledge (i)

     all equipment,   machinery and   facilities   servicing and used in connection

     with the operation of the Premises,   including without limitation the HVAC,

     plumbing and electrical   systems,   are, and will be as of the   Commencement

     Date,   in good   working   order and (ii)   Sublandlord   has not   received any

     written   notice   that   the   Premises   are not in full   compliance   with all

     applicable laws,   ordinances and regulations,   including without limitation

     the provisions of the Americans with Disabilities Act.

 

      (b)   Sublandlord   hereby agrees that the personal   property (the   "Personal

     Property")    set   forth   on   Exhibit   B,   which   is   attached    hereto   and

     incorporated   herein by reference,   shall remain on the Premises for use by

     the Subtenant during the term of this Sublease.   Upon the expiration of the

     term of this   Sublease and provided   that   Subtenant has paid all base rent

     due hereunder,   all right,   title and interest of Sublandlord in and to the

     Personal   Property   shall   transfer   to and   vest in the   Subtenant   in its

     "as-is"   and   then   current   condition,   and   if   requested   by   Subtenant,

     Sublandlord   shall   execute   and   deliver   to   Subtenant   a   bill   of   sale

     reflecting such conveyance.

 

                                        3

<PAGE>

7. The Prime Lease.

 

     (a) This Sublease and all rights of Subtenant hereunder and with respect to

     the   Premises   are subject and   subordinate   to the terms,   conditions   and

     provisions   of the Prime   Lease and to all matters to which the Prime Lease

     is or shall be subject and subordinate. Subtenant hereby assumes and agrees

     to perform faithfully and be bound by, with respect to the Premises, all of

     Sublandlord's obligations,   covenants, agreements and liabilities under the

     Prime   Lease   and   all   terms,   conditions,    provisions   and   restrictions

     contained in the Prime Lease, except

 

          (i) for the payment of "Base Rent" (as defined in the Prime Lease), it

          being   understand that Subtenant's   corresponding   obligations are set

          forth in Section 3 of this Sublease; and

 

(ii) that the following provisions of the Prime Lease do not apply to this

Sublease: (iii) any provisions in the Prime Lease allowing or purporting to

allow Sublandlord any rent concessions or construction allowances; and (iv) any

provisions which grants to Sublandlord any option to expand the Premises, extend

the term of the Prime Lease or any other option.

 

     (b) Without limitation of the foregoing:

 

          (i)   Whenever   the consent or   approval   of Landlord is required   with

          respect to any matter   pertaining to the Prime Lease,   Subtenant shall

          also obtain the prior written consent or approval of Sublandlord   with

          respect to the subject   matter.   It is hereby agreed that in the event

          Landlord disapproves of any manner pertaining to the Prime Lease, such

          disapproval shall be reasonable grounds for Sublandlord's   disapproval

          of the subject matter;

 

          (ii) If Subtenant desires to take any other action and the Prime Lease

          would require that   Sublandlord   obtain the consent of Landlord before

          undertaking any action of the same kind, Subtenant shall not undertake

          the same without the prior written consent of Sublandlord. Sublandlord

          may   condition its consent on the consent of Landlord   being   obtained

          and may   require   Subtenant   to   contact   Landlord   directly   for such

           consent;

 

          (iii) All rights given to Landlord and its agents and   representatives

          by the Prime Lease to enter the Premises shall inure to the benefit of

          Sublandlord   and their   respective   agents   and   representatives   with

          respect to the Premises;

 

          (iv)   Sublandlord   shall also have all   rights,   privileges,   options,

          reservations and remedies with respect to this Sublease,   the Premises

          and Subtenant,   to the same extent, granted or allowed to, or held by,

          Landlord   under the Prime Lease with respect to the Prime   Lease,   the

          Premises and   Sublandlord;   and Subtenant   shall also have all rights,

          privileges,   options,   reservations   and remedies with respect to this

          Sublease, the Premises and Sublandlord, to the same extent, granted or

          allowed to, or held by,   Sublandlord   as tenant   under the Prime Lease

          with respect to this Sublease,   the Premises and Sublandlord except as

          otherwise provided to the contrary in this Sublease;

 

          (v) Subtenant shall maintain insurance of the kinds and in the amounts

          required to be maintained by   Sublandlord   under the Prime Lease.   All

          policies of   liability   insurance   shall name as   additional   insureds

          Landlord and Sublandlord and their respective   officers,   directors or

          partners,   as the case may be, and the respective agents and employees

          of each of them; and

 

          (vi) Subtenant   shall not do anything or suffer or permit   anything to

          be done   which   could   result   in a default   under the Prime   Lease or

          permit the Prime Lease to be cancelled or terminated.

 

     (c) It is expressly   understood and agreed that Sublandlord does not assume

     and shall not have any of the   obligations or liabilities of Landlord under

     the Prime Lease and