EX-10.18.1



 





EXHIBIT
10.18.1




SUBLEASE




     THIS SUBLEASE (this “Sublease”) is made and entered as of this 3rd day of March 2006 by and
between LUDLOW TECHNICAL PRODUCTS CORPORATION, a New York corporation formerly known as Graphic
Controls Corporation (“Sublandlord”), with an address at c/o Tyco Healthcare Group LP 15 Hampshire
Street, Mansfield, MA 02048, and SYNACOR, INC., a Delaware corporation (“Subtenant”), with an
address at 40 La Riviere Drive, Buffalo, New York 14202.



WITNESSETH:




          A. Sublandlord is the tenant under that certain Property Lease dated March 13, 1998 (the
“Original Lease”), with Waterfront Associates, LLC, as successor by conversion to Waterfront
Associates (“Landlord”), as landlord, covering Building No. 3, Waterfront Village Center, 40 La
Riviere Drive, Buffalo, New York 14202, as amended by that certain First Amendment to Lease dated
April 29, 1998, that Second Amendment to Lease dated April 21, 1999, and that Third Amendment to
Lease dated July 30, 1999 (collectively, the three amendments are the “Amendments”). As amended,
the Original Lease is referred to herein as the “Lease.”




          B. Under the terms and conditions of this Sublease, Subtenant desires to sublease from
Sublandlord approximately 20,027 rentable square feet located on the third (3rd) floor
of the Building (the “Premises”), which Premises is shown cross-hatched on Exhibit A
attached hereto and incorporated herein.




     NOW THEREFORE, in consideration of the mutual covenants set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Sublandlord and Subtenant agree as follows:



ARTICLE 1

DEFINITIONS; RECITALS




     Section 1.1
Definitions. Capitalized terms used herein and not otherwise defined
shall have the same meanings given to them in the Lease. For the purposes of this Sublease, unless
the context otherwise requires:



          (a) “Base Building Systems” shall mean the mechanical, gas, utility, electrical, sanitary,
heating, air conditioning, ventilating, elevator, plumbing, sprinkler, cabling and wiring,
life-safety and other service systems of the Building, excluding (i) the distribution portions of
such systems within the Premises, and (ii) any supplemental HVAC and other systems installed by
Subtenant within the Premises.




          (b) “Building” shall mean the building known as Building No. 3, Waterfront Village Center, 40
LaRiviere Drive, Buffalo, New York 14202, which Building includes approximately 102,816 rentable
square feet of space.




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          (c) “Common Areas” shall mean the Land and all portions of the Building not intended as
leasable area, including without limitation the parking facilities, the lobby, public corridors and
equipment rooms.




          (d) “Land” shall mean the parcel of land situated in the City of Buffalo, the County of Erie
and State of New York, more particularly described on Exhibit B attached hereto.




          (e) “Property” shall mean the Land and Building.




          (f) “Sublandlord’s Representatives” shall mean Sublandlord’s employees, agents, contractors,
and invitees.




          (g) “Subtenant’s Property” shall mean all trade fixtures, furniture, and equipment installed
at the sole expense of Subtenant and which are not replacements of any property of Sublandlord,
whether any such replacement is made at Subtenant’s expense or otherwise. Subtenant’s Property
shall not include items which become affixed to the Premises and cannot be removed without causing
material damage to the Building.




          (h) “Subtenant’s Representatives” shall mean Subtenant, Subtenant’s subtenants and
assignees, if applicable, and Subtenant’s employees, agents, contractors, licensees, and
invitees.




          (i) “Subtenant’s Share” shall mean 19.5%, which is the number of rentable square feet
in the Premises divided by the number of rentable square feet in the Building.




          (j) “Unavoidable Delays” shall mean any and all delays beyond a party’s reasonable
control, including without limitation, governmental restrictions, governmental regulations,
controls, order of civil, military or naval authority, governmental preemption, strikes, labor
disputes, lock-outs, shortage of labor or materials, inability to obtain materials or reasonable
substitutes therefore, default of any building or construction contractor or subcontractor, Acts of
God, fire, earthquake, floods, explosions, actions of the elements, extreme weather conditions,
enemy action, civil commotion, riot or insurrection, fire or other unavoidable casualty.
Notwithstanding anything herein to the contrary, a monetary default by Subtenant is never an
Unavoidable Delay.




     Section 1.2 Recitals. The recitals set forth above are incorporated into this Sublease by
reference as if fully set forth herein.



ARTICLE 2

DEMISE; TERM




     Section 2.1 Demise. Conditioned upon receipt by Sublandlord of Landlord’s written consent
executed in substantially the form attached hereto as Exhibit C, Sublandlord hereby
subleases and demises to Subtenant, and Subtenant hereby takes and hires from Sublandlord, the
Premises on the terms and conditions and subject to the provisions hereinafter set forth herein.



     Section 2.2 Commencement Date. The term (the “Term”) of this Sublease shall
commence on April 1, 2006 (the “Commencement Date”).



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     Section 2.3 Expiration Date. Subject to the terms, covenants, or conditions of
this Sublease, the Term shall end on the earlier of: (a) March 31, 2016, or (b) five days before
the expiration or earlier termination, for any reason whatsoever, of the Lease. The date of
expiration of this Sublease shall be referred to herein as the “Expiration Date.”



     Section 2.4 Termination by Subtenant. Provided that Subtenant is not in default
when Subtenant delivers the early termination notice or on the cancellation note, Subtenant may, at
its sole option, terminate this Sublease effective as of March 31, 2011 (the “Cancellation Date”).
To exercise such termination right, Subtenant must no later than June 30, 2010, give notice thereof
to Sublandlord together with Subtenant’s payment to Sublandlord of $120,000.00 (the “Cancellation
Fee”) in lawful money of the United States of America. As a condition to the effectiveness of
Subtenant’s cancellation right, Subtenant shall pay to Sublandlord prior to the Cancellation Date
any past-due amounts then outstanding under the Sublease. If Subtenant fails timely to deliver the
Cancellation Fee or the cancellation notice or is otherwise unable to comply with or exercise this
cancellation option, then Subtenant’s right to cancel this Lease under this section shall expire;
time is of the essence with respect thereto.



     Section 2.5 Delivery Date. Sublandlord and Subtenant presently anticipate that
possession of the Premises will be tendered to Subtenant in the condition required by this Sublease
on or about April 1, 2006 (the “Estimated Delivery Date”). If Sublandlord is unable to tender
possession of the Premises in such condition to Subtenant by the Estimated Delivery Date, then (a)
the validity of this Sublease shall not be affected or impaired thereby,
(b) Sublandlord shall not be in default hereunder or be liable for damages therefor, and
(c) Subtenant shall accept possession of the Premises when Sublandlord tenders possession
thereof to Subtenant. By occupying the Premises, Subtenant shall be deemed to have accepted the
Premises in their condition as of the date of such occupancy, subject to the performance of
punch-list items that remain to be performed by Sublandlord, if any.



ARTICLE 3

CONDITION OF THE PREMISES; USE




     Section 3.1 AS-IS Condition of Premises. Except as otherwise expressly provided
to the contrary herein, Subtenant accepts the Premises “AS-IS” in its presently existing condition.
Subtenant acknowledges that (a) it was given a full opportunity to inspect the Premises; (b) as of
the Commencement Date, Subtenant has inspected the Premises; (c) neither Sublandlord nor its agents
or employees have made any representations or warranties as to the condition of the Premises, or
the suitability or fitness of the Premises for the conduct of Subtenant’s business or for any other
purpose; and (d) subject to the provisions of Section 3.2 below, neither Sublandlord nor its agents
or employees agreed to undertake any alterations or construct any tenant improvements in the
Premises.



     Section 3.2 Sublandlord’s Preparation; Subtenant’s Early Entry. Notwithstanding
anything herein to the contrary, Sublandlord shall deliver the Premises to the Subtenant with all
Base Building Systems serving the Premises in working order and condition, with functioning light
bulbs in each light fixture located therein, and free of damaged ceiling tiles. In addition,
subject to Landlord’s consent, either (i) Sublandlord shall repaint the existing painted walls in
the Premises with Building-standard paint in Subtenant’s choice of color in Building-standard



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quantities, in which case Subtenant shall select the color choice and provide notice thereof to
Landlord on or before March 6, 2006; or (ii) under the terms and conditions of this Sublease,
Subtenant may enter the Premises before the Commencement Date (“Subtenant’s Early Entry”) solely
for the purposes of performing such repainting itself and re-carpeting the Premises, provided that
Sublandlord has approved the contractor performing the work, which approval shall not be
unreasonably withheld. If Subtenant elects to do such painting itself, then before doing any work,
Subtenant shall submit to Sublandlord an estimate prepared by a contractor for the cost of the
repainting. Sublandlord shall reimburse Subtenant for the actual cost of such repainting or
$9,000, whichever amount is less. Subtenant shall be responsible for any costs above that cap
amount. Subtenant’s Early Entry shall be governed by the terms of this Sublease, including without
limitation the requirement that Subtenant maintain the insurance coverage required under Article 10
hereof. Before Subtenant’s Early Entry, Subtenant shall furnish to Sublandlord a certificate
evidencing the required insurance coverage. Except as set forth in Section 4.1, Subtenant shall not
be required to pay any Rent prior to the Commencement Date. If Subtenant decides to repaint the
Premises itself, then Subtenant shall provide notice to Sublandlord of such election no later than
March 6, 2006.




     Section 3.3 Permitted Uses. Subtenant shall use and occupy the Premises for
general office and administrative uses consistent with first class office buildings in Buffalo, New
York, and for no other purpose whatsoever. Subtenant shall not use or occupy or suffer or permit
the use or occupancy of the Premises or any part thereof in any manner which, in Sublandlord’s
judgment, shall adversely affect or interfere with any services required to be furnished by
Sublandlord to Subtenant or to any other subtenant or occupant of any part of the Building, or with
the proper and economical rendition of any such service or with the use or enjoyment of any part of
the Building by Sublandlord, or by any other subtenant or occupant. Subtenant shall comply with all
laws relating to the use, condition, access to, and occupancy of the Premises and will not commit
waste.



     Section 3.4 Access. Subject to any reasonable security procedures that may be
instituted by Sublandlord and/or Landlord from time to time, Subtenant shall have access to the
Premises and the parking areas twenty-four (24) hours per day, seven (7) days per week and 52 weeks
per year.



ARTICLE 4

RENT




     Section 4.1 Fixed and Additional Rent. Subtenant shall pay to Sublandlord,
without notice, billing, demand, deduction, or set off, in lawful money of the United States of
America, at the address of Sublandlord first above written or at such place as Sublandlord may
designate, the following:



          (a) Annual
fixed rent (“Fixed Rent”) in the amount of $280,378,00, payable in equal monthly
installments of $23,364.84 each for the period commencing on
July 1, 2006 (the “Rent Commencement
Date”) until the Expiration Date. Fixed Rent is payable in equal monthly installments in advance on
the first day of each and every calendar month during such period.




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             (b)     Additional
rent (“Additional Rent”)consisting of all other sums
of money as shall become due and payable by Subtenant hereunder (for
default in the payment of which Sublandlord shall have the same
remedies as for a default in the payment of Fixed Rent), commencing on
the Commencement Date. Unless otherwise specified herein, Additional
Rent shall be payable within ten (10) days after receipt of an invoice from Sublandlord.

     Fixed Rent and Additional Rent are herein collectively called “Rent.” There shall
be no abatement of, deduction from, counterclaim or setoff against Rent, except as
otherwise specifically provided in this Sublease. If the Term commences on a day other
than the first day of a calendar month or ends on a day other than the last day of a
calendar month, then Rent (and all other sums or charges due or payable by Subtenant
to Sublandlord hereunder) for the first and last fractional months of the Term shall
be appropriately prorated. The first monthly installment of Fixed Rent shall be
payable contemporaneously with the execution of this Sublease; thereafter, Fixed Rent
shall be payable on the first day of each month beginning on the first day of the
second full calendar month following the Rent Commencement Date.



     Section 4.2 Late Charge. If Subtenant shall fail to pay when due any
Rent, Subtenant shall pay with the next installment a late charge equal to five
percent (5%) of the unpaid Rent. In addition, all past-due payments required of
Subtenant hereunder shall bear interest from the date due until paid at the lesser of
eighteen percent (18%) per annum or the maximum lawful rate of interest. In no event,
however, shall the charges permitted under this section (to the extent such charges
are considered to be interest under applicable law) exceed the maximum lawful rate of
interest.



ARTICLE 5

UTILITIES AND SERVICES




     Section 5.1 Services. Subject to the terms of this Sublease,
Sublandlord shall use all reasonable efforts to furnish to Subtenant (1) water at
those points of supply provided for general use of subtenants of the Building; (2)
heated and refrigerated air conditioning (“HVAC”) as appropriate, (a) at such
temperatures and in such amounts as are standard, as reasonably determined by
Sublandlord, for comparable buildings in the vicinity of the Building and (b) as
specified in Section 5.2; (3) elevators for ingress and egress to the floor on which
the Premises is located, in common with other subtenants, provided that Sublandlord
may reasonably limit the number of operating elevators during non-business hours and
holidays; and (4) electrical current during normal business hours for equipment that
does not require more than one hundred ten (110) volts and whose electrical energy
consumption does not exceed normal office usage.



     Section 5.2
After-Hours HVAC. If Subtenant desires any HVAC service
at any time other than between 8:00 a.m. and 6:00 p.m. on weekdays (which term means
all days except Saturdays, Sundays or holidays), then such service shall be supplied
to Subtenant upon the written request of Subtenant delivered to Sublandlord before
3:00 p.m. on the business day preceding such extra usage, and Subtenant shall pay to
Sublandlord the cost of such service within thirty (30) days after Sublandlord has
delivered to Subtenant an invoice therefor. The costs charged for such service shall
be based upon Sublandlord’s reasonable estimate of the costs for such after-hours HVAC
and shall include any costs incurred by Sublandlord in providing after-hour HVAC
service to Subtenant (including without limitation costs for electricity, water,



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Sewage, water treatment, labor, metering, filtering, and maintenance
reasonably allocated by Sublandlord to providing such service).




     Section 5.3 Excess Utility and Water Use. Sublandlord shall not be
required to furnish electrical current for equipment that requires more than one
hundred ten (110) volts or other equipment whose electrical energy consumption exceeds
normal office usage. If Subtenant’s requirements for or consumption of electricity
exceed the electricity to be provided by Sublandlord as described above, then
Sublandlord shall, at Subtenant’s expense, make reasonable efforts to supply such
service through the then-existing feeders and risers serving the Building and the
Premises, and Subtenant shall pay to Sublandlord the cost of such service within
thirty (30) days after Sublandlord has delivered to Subtenant an invoice therefor,
Sublandlord may determine the amount of such additional consumption and potential
consumption by any verifiable method, including installation of a separate meter in
the Premises installed, maintained, and read by Sublandlord, at Subtenant’s expense.
Subtenant shall not install any electrical equipment requiring special wiring or
requiring voltage in excess of one hundred ten (110) volts unless approved in
advance by Sublandlord. Subtenant shall not install any electrical equipment requiring
voltage in excess of Building capacity unless approved in advance by Sublandlord,
which approval may be withheld in Sublandlord’s sole discretion. The use of
electricity in the Premises shall not exceed the capacity of existing feeders and
risers to or wiring in the Premises. Any risers or wiring required to meet Subtenant’s
excess electrical requirements shall, upon Subtenant’s written request, be installed
by Sublandlord, at Subtenant’s cost, if, in Sublandlord’s judgment, the same are
necessary and shall not cause permanent damage to the Building or the Premises, cause
or create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs, or expenses, or interfere with or disturb other subtenants of
the Building. If Subtenant uses machines or equipment in the Premises which affect the
temperature otherwise maintained by the air conditioning system or otherwise overload
any utility, Sublandlord may install supplemental air conditioning units or other
supplemental equipment (the “Supplemental Unit”) in the Premises, and the cost
thereof, including the cost of the Supplemental Unit, and the cost of the
installation, operation, use, and maintenance, shall be paid by Subtenant to
Sublandlord within thirty (30) days after Sublandlord has delivered to Subtenant an
invoice therefor. No Supplemental Unit may be installed without Sublandlord’s consent.
If any Supplemental Unit is installed in the Premises, then Subtenant shall pay to
Sublandlord an additional charge for excess and extra utility usage associated with
such Supplemental Unit (the “Utility Charge”). Sublandlord shall, in good faith,
determine the Utility Charge, and upon receipt of notice of the Utility Charge,
Subtenant shall pay the Utility Charge to Sublandlord as additional rent, together
with each monthly payment of Fixed Rent.



     If Subtenant requires, uses or consumes water for any purpose in addition to the
ordinary lavatory and drinking purposes, Sublandlord may install a water meter and
thereby measure Subtenant’s consumption of water for all purposes. Subtenant shall pay
to Sublandlord the cost of any such meter and its installation, and Subtenant, at its
expense, shall keep any such meter and any related equipment in good working order and
repair. Subtenant shall pay for water consumed as shown on said meter and sewer
charges thereon, as and when bills are rendered.



     Section 5.4 Cleaning; Trash. Subtenant shall, at its expense, keep
the Premises in a neat and clean condition at all times, utilizing a recognized
cleaning contractor approved by



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Sublandlord, which approval shall not be unreasonably withheld or delayed.
Sublandlord shall provide trash disposal from one or more central trash depositories
within the Common Areas.




     Section 5.5 Security. In no event shall Sublandlord be required to
provide any security services to the Premises. Subtenant shall supply such security
services to the Premises as Subtenant requires, subject to Sublandlord’s prior
approval of plans. If Sublandlord or Landlord shall, at their discretion, supply any
security services to the Building and/or the parking areas, same shall not guarantee
the safety of Subtenant or Subtenant’s Representatives, or its or their property.



     Section 5.6 Parking. Subtenant shall have the non-exclusive right,
together with the other tenants and occupants of the Building and other buildings
comprising Waterfront Village Center and their employees, agents, licensees and
invitees, to use the parking areas servicing the Building and any driveways
appurtenant thereto for the purposes of egress and ingress, parking of vehicles for
Subtenant’s Representatives and the loading and unloading of vehicles in connection
with and incidental to the business conducted by Subtenant in the Premises, all
without additional charge; provided however that Subtenant’s Representatives shall not
occupy more than an aggregate of ninety (90) parking spaces at any time. If for any
reason, Sublandlord is unable to provide all or any portion of the parking spaces to
which Subtenant is entitled hereunder, then Subtenant shall have no claims against
Sublandlord because of Sublandlord’s failure or inability to provide Subtenant with
such parking spaces. Sublandlord shall not be responsible for enforcing Subtenant’s
parking rights against any third parties. Subtenant shall cause Subtenant’s
Representatives to comply with all reasonable rules and regulations that Sublandlord
and/or Landlord may promulgate with respect to parking in the parking areas, including
without limitation, a system of stickers, access cards or other system intended to
regulate and control access to such parking areas.



     Section 5.7 Interruption of Services. Sublandlord does not warrant
that any of the services referred to in this Article, or any other services which
Sublandlord may supply, will be free from interruption, and Subtenant acknowledges
that any one or more such services may become unavailable or may be suspended by
reason of accident, repairs, inspections, alterations or improvements necessary to be
made, or by Unavoidable Delays. In the absence of gross negligence or willful
misconduct on the part of Sublandlord, any such unavailability, interruption, or
discontinuance of service shall not render Sublandlord liable for any damages caused
thereby, be deemed an eviction or constructive eviction, be deemed a disturbance of
Subtenant’s use and possession of the Premises, or any part thereof, constitute a
breach of implied warranty, nor relieve Subtenant from performance of Subtenant’s
obligations under this Sublease. Sublandlord shall, however, use reasonable efforts to
restore any service so interrupted.



ARTICLE 6

OPERATING EXPENSES




     Section 6.1 Definitions. As used herein:



          (a) The
term “Base Expenses” shall mean the Operating Expenses for the Base
Year. If less than 95% of the rentable area of the Building shall be occupied at any
time




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during the Base Year, then the Operating Expenses for the Base Year (and for each
Operational Year in which actual occupancy of the Building shall be below 95% for any
part thereof) shall be equitably adjusted by Sublandlord to the amount such expenses
would have been had the Building been 95% occupied at all times during the applicable
year.




          (b) The term “Base Impositions” shall mean the Impositions paid by
Sublandlord in the Base Year.




          (c) “Base Year” shall be calendar year 2006.




          (d) The term “Operating Expenses” shall mean all costs incurred by
Sublandlord with respect to the operation, maintenance, repair, lighting, and cleaning
of the Property, including, without limitation, the costs incurred for air
conditioning; cleaning the Common Areas; window washing; elevators; porter and matron
service; cost of electric current used throughout the Property; steam; all utilities;
protection and security services, if any; repairs or replacements; maintenance; all
insurance costs; supplies, wages, salaries, disability benefits, pensions,
hospitalization, retirement plans and group insurance respecting service and
maintenance employees; uniforms and working clothes for such employees and the
cleaning thereof, expenses imposed pursuant to any collective bargaining agreement
with respect to such employees; the current amortized portion of capital expenses
incurred with respect to the Property, together with interest at the lesser of 10% per
annum or the maximum rate of interest permitted by law; payroll, social security,
unemployment and other similar taxes with respect to such employees; compensation paid
to independent contractors performing any of the operation, maintenance or repair
functions; sales, use and other similar taxes; water rates and sewer rents; management
fees; legal and accounting fees; permit and license fees; the cost of changes to
comply with governmental requirements; maintenance of sprinkler, electrical, plumbing
and mechanical systems; removal of snow, ice, trash and debris; and repairs and
utility and other consultants’ fees.




     Notwithstanding anything herein to the contrary, the term “Operating Expenses”
shall not include: (i) brokerage fees, leasing commissions, advertising costs or other
expenses incurred by Sublandlord in connection with the subleasing of space in the
Building; (ii) damage and repairs attributable to fire or other casualty, or to
eminent domain; (iii) Sublandlord’s general overhead expenses unless directly related
to the Property; (iv) costs (including permits, licensing and inspection fees)
incurred in renovating or otherwise improving, decorating, painting, or altering space
for subtenants or other occupants, or of vacant space (excluding Common Areas) in the
Building; (v) rent payable by Sublandlord under the Lease; (iv) interest or penalties
resulting solely from late payment by Sublandlord; (vii) costs for any items that
Sublandlord is actually reimbursed by insurance, condemnation, governmental
authorities or otherwise; (viii) legal and other fees associated with collecting rents
or settling disputes with other subtenants; or (ix) any cost or charge for electric
current or other utilities that is separately metered and billed directly to other
subtenants. Notwithstanding anything contained herein to the contrary, all capital
expenses will be amortized over the useful life of the improvement or equipment, as
reasonably determined by Sublandlord.



          (e) The term “Impositions” shall have the same meaning as in Section 6,01(a)
of the Lease.




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          (f) “Operational Year” shall mean each twelve (12)-month period after the
Base Year.




          (g) The term “Sublandlord’s Statement” shall mean a writing containing a
computation of any Additional Rent due pursuant to this Article.




          (h) “Subtenant’s Estimated Share” shall mean Subtenant’s Share multiplied by
Sublandlord’s written estimate of increase of Operating Expenses for the applicable
Operational Year over the Base Expenses. Subtenant’s Estimated Share shall be divided
by twelve (12) and shall be payable by Subtenant to Sublandlord on the first of each
month of the applicable year, as Additional Rent.




     Section 6.2 Increase in Impositions.



          (a) If Impositions with respect to the Property are increased, during any
Operational Year, over Impositions paid by Sublandlord during the Base Year, then
Subtenant shall pay to Sublandlord, without setoff or deduction of any kind, as
Additional Rent, an amount equal to Subtenant’s Share of such increase. Payment of
such increase shall be made in the installments provided by the taxing or other
governmental authority within twenty (20) days after Subtenant receives from
Sublandlord notice of such increase and a bill for Subtenant’s Share thereof, together
with a copy of the applicable bill(s) received by Sublandlord from the taxing or other
governmental authority. If Sublandlord shall be required under a creditor arrangement
(or under the Lease) to make Imposition deposits monthly or otherwise, Subtenant shall
make the same installment payments to Sublandlord of its share of same. If Sublandlord
receives a refund of any portion of Impositions that were included in the Impositions
paid by Subtenant, then Sublandlord shall reimburse Subtenant its pro rata share of
the net refund, less any expenses that Sublandlord reasonably incurred to obtain the
refund.




          (b) Subtenant shall pay to Sublandlord as Additional Rent the Impositions
attributable to improvements made to the Premises by Subtenant from time to time.




          (c) There is currently in effect with respect to the Property a Payment In Lieu
of Taxes Agreement (“PILOT Agreement”) with the Erie County Industrial Development
Agency, as described in Section 24.01(d) of the Lease. Sublandlord makes no
representation that the PILOT Agreement shall remain in effect for any part of the
Term, but Subtenant shall cooperate with Sublandlord’s efforts to maintain such status
with respect to part or all of the Building, To the extent that the PILOT Agreement
shall not remain in effect, Impositions shall exceed the Impositions under the PILOT
Agreement.




     Section 6.3 Increase in Operating Expenses.



          (a) Within a reasonable period of time after the expiration of the Base
Year and each Operational Year, Sublandlord shall furnish to Subtenant a written
statement prepared by Sublandlord of the Operating Expenses incurred for such
year. Sublandlord shall use good faith efforts to deliver such statement to
Subtenant within one hundred twenty (120) days after the expiration of the Base
Year and each Operational Year. Within thirty (30) days after receipt of such
statement for any Operational Year setting forth Subtenant’s Share of any increase
of




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Operating Expenses during such Operational Year over the Operating Expenses in
the Base Year (said increase being referred to herein as the “Cost Increase”),
Subtenant shall pay same (less the amount of Subtenant’s Estimated Share paid by
Subtenant on account thereof) to Sublandlord as Additional Rent.




          (b) Commencing with the first Operational Year, Sublandlord may make a good faith
estimate of the Additional Rent to be due by Subtenant for any calendar year or part
thereof during the Term. During each calendar year or partial calendar year of the
Term after the Base Year, Subtenant shall pay to Sublandlord, in advance concurrently
with each monthly installment of Fixed Rent, an amount equal to the estimated
Additional Rent for such calendar year or part thereof divided by the number of months
therein. From time to time, Sublandlord may estimate and re-estimate the Additional
Rent to be due by Subtenant and deliver a copy of the estimate or re-estimate to
Subtenant. Thereafter, the monthly installments of Additional Rent payable by
Subtenant shall be appropriately adjusted in accordance with the estimations so that,
by the end of the calendar year in question, Subtenant shall have paid all of the
Additional Rent as estimated by Sublandlord, Any amounts paid based on such an
estimate shall be subject to adjustment as herein provided when actual Operating
Expenses are available for each calendar year.




          (c) If Sublandlord’s Statement at the end of the Operational Year just completed
shall indicate that Subtenant’s Estimated Share exceeded Subtenant’s Share of the Cost
Increase, Sublandlord shall issue a credit to Subtenant for the amount of such excess
against the subsequent payments of Additional Rent due hereunder. If Sublandlord’s
Statement shall indicate that Subtenant’s Share of the Cost Increase exceeded
Subtenant’s Estimated Share for the completed Operational Year, then Subtenant shall
pay the amount of such excess to Sublandlord within thirty (30) days after demand. If
Sublandlord’s Statement is furnished to Subtenant after the commencement of an
Operational Year, then there shall be promptly paid by Subtenant to Sublandlord or
vice versa, as the case may be, an amount equal to the portion of such payment or
credit allocable to the part of such Operational Year which shall have elapsed prior
to the first day of the calendar month following the calendar month in which said
Sublandlord’s Statement is furnished to Subtenant.




     Section 6.4 Sublandlord’s Statement. Sublandlord’s failure to render
Sublandlord’s Statement with respect to any Operational Year, or Sublandlord’s delay
in rendering said Statement beyond a date specified herein, shall not prejudice
Sublandlord’s right to render a Sublandlord’s Statement with respect to that or any
subsequent Operational Year. The obligations of Sublandlord and Subtenant under the
provisions of this Article with respect to any Additional Rent shall survive the
expiration or any sooner termination of the Term.



ARTICLE 7

ASSIGNMENT, MORTGAGING AND SUBLETTING




     Section 7.1
Incorporation By Reference. The terms of Article
14 of the Lease are incorporated by reference, as provided in Section 11.1 herein;
provided however that references therein to obtaining the consent of Landlord shall be
deemed references to obtaining the consent of both Landlord and of Sublandlord to a
proposed assignment, subleasing or other transaction governed by Article 14 of the
Lease.



Page 10 of 27









 





ARTICLE 8

REPAIRS




     Section 8.1 Repairs and Maintenance. Subtenant shall maintain the
Premises in a clean, safe, operable, and good condition, and shall not permit or allow
to remain any waste or damage to any portion of the Premises. At Subtenant’s expense,
Subtenant shall make all repairs and replacements, as and when needed to preserve the
Premises in good working order and condition, including without limitation the Base
Building Systems located within the Premises. Subtenant shall keep and maintain
Subtenant’s Property in good working order and condition. Subtenant shall not be
required to make any structural repairs or structural replacements to the Premises;
provided however that if any such structural repairs or replacements to the Premises,
or if any repairs or replacements to the Common Areas shall be necessitated or caused
by the acts, omissions or negligence of Subtenant or any of Subtenant’s
Representatives, or by the use or occupancy or manner of use or occupancy of the
Premises by Subtenant or Subtenant’s Representatives, then Sublandlord shall make such
repairs or replacements within a reasonable time after notice from Subtenant, and
Subtenant shall reimburse Sublandlord for the cost of same as Additional Rent.
Subtenant shall repair or replace, subject to Sublandlord’s direction and supervision,
any damage to the Building caused by a Subtenant’s Representative. If Subtenant fails
to make such repairs or replacements within fifteen (15) days after the occurrence of
such damage, then Sublandlord may make the same at Subtenant’s cost. If any such
damage occurs outside of the Premises, then Sublandlord may elect to repair such
damage at Subtenant’s expense, rather than having Subtenant repair such damage. The
cost of all maintenance, repair, or replacement work performed by Sublandlord under
this section shall be paid by Subtenant to Sublandlord within twenty (20) days after
Sublandlord has invoiced Subtenant therefor.



     When used in this Article, the term “repairs” shall include all reasonably
necessary and/or appropriate replacements, renewals, alterations, additions and
betterments. The necessity for, appropriateness of and adequacy of repairs to the
Premises and to the Common Areas pursuant to this Article shall be measured by the
standard which is appropriate for buildings of similar construction and location. All
materials and workmanship in connection with repairs shall be at least equal in
quality to the original materials and workmanship.



     Section 8.2 Performance of Work. All work described in this section
shall be performed only by Sublandlord or by contractors and subcontractors approved
in writing by Sublandlord. Subtenant shall cause all contractors and subcontractors to
procure and maintain insurance coverage naming Sublandlord as an additional insured
against such risks, in such amounts, and with such companies as Sublandlord may
reasonably require. Subtenant shall provide Sublandlord with the identities, mailing
addresses and telephone numbers of all persons performing work or supplying materials
prior to beginning such construction, and Sublandlord may post on and about the
Premises notices of non-responsibility pursuant to applicable laws. All such work
shall be performed in accordance with all laws and in a good and workmanlike manner so
as not to damage the Building (including the Premises, the Base Building’s Systems and
the Building’s structure).



     Section 8.3 Mechanic’s Liens. All work performed, materials
furnished, or obligations incurred by or at the request of a Subtenant’s
Representative shall be deemed authorized and ordered by Subtenant only, and Subtenant
shall not permit any mechanic’s liens



Page 11 of 27









 




to be filed against the Premises or the Land in connection therewith. Upon
completion of any such work, Subtenant shall deliver to Sublandlord final lien waivers
from all contractors, subcontractors and materialmen who performed such work. If such
a lien is filed, then Subtenant shall, within ten (10) days after such filing (or such
earlier time period as may be necessary to prevent the forfeiture of the Premises or
any interest of Landlord or Sublandlord therein or the imposition of a civil or
criminal fine with respect thereto), either (1) pay the amount of the lien and cause
the lien to be released of record, or (2) diligently contest such lien and deliver to
Sublandlord a bond or other security reasonably satisfactory to Sublandlord. If
Subtenant fails to timely take either such action, then Sublandlord may pay the lien
claim, and any amounts so paid, including expenses and interest, shall be paid by
Subtenant to Sublandlord within ten (10) days after Sublandlord has invoiced Subtenant
therefor. Subtenant shall defend, indemnify and hold harmless Sublandlord and
Sublandlord’s Representatives from and against all claims, demands, causes of action,
suits, judgments, damages and expenses (including attorneys’ fees) in any way arising
from or relating to the failure by any Subtenant’s Representative to pay for any work
performed, materials furnished, or obligations incurred by or at the request of a
Subtenant’s Representative. This indemnity provision shall survive termination or
expiration of this Lease.




ARTICLE 9

DAMAGE TO OR DESTRUCTION OF THE PREMISES




     Section 9.1 Termination. If the Building or Premises are damaged by
fire or other casualty and Sublandlord or Landlord shall, pursuant to the terms of the
Lease, elect to terminate the Lease, then this Sublease shall cease and terminate on
the date of termination of the Lease, and Rent shall be apportioned from the time of
the damage. Otherwise, this Sublease shall remain in full force and effect, subject to
the terms of the Lease. Sublandlord shall have no obligation hereunder to repair any
portion of the Building or Premises, whether or not this Sublease shall be terminated,
which obligation shall be Landlord’s to the extent required under the Lease.



ARTICLE 10

INSURANCE




     Section 10.1 Required Coverage. Subtenant shall maintain, at its
expense, for the Term, general public liability insurance (naming Sublandlord,
Landlord and designees of each as additional insureds) against claims for personal
injury, death, or property damage occurring upon, in, about, or adjacent to the
Premises, such insurance to afford protection with single limit coverage of at least
$4,000,000. Subtenant shall also maintain, at its sole expense, for the Term, any and
all insurance in the amounts and form required of Sublandlord by and pursuant to the
provisions of the Lease with respect to the Premises and Subtenant’s Property. All
such policies shall be issued by reputable insurance companies approved by Sublandlord
and Landlord and shall be endorsed to provide that they shall not be modified or
cancelled without at least thirty (30) days’ prior written notice to Sublandlord and
Landlord. On or prior to the Commencement Date, Subtenant shall furnish to Sublandlord
said policies or certificates thereof evidencing that the required coverage is being
maintained, together with such evidence as Sublandlord shall deem satisfactory of the
payment of premiums thereon.



Page 12 of 27









 





ARTICLE 11

MASTER LEASE




     Section 11.1 Incorporation of Master Lease. Subtenant hereby
acknowledges and agrees that it has received and reviewed a copy of the Lease. Except
as otherwise set forth below, and to the extent not inconsistent with the provisions
of this Sublease, the terms, provisions, covenants, and conditions of the Lease are
hereby incorporated by reference as if set forth at length herein on the following
basis: Subtenant hereby assumes and agrees to perform all of the obligations of
Sublandlord under the Lease with respect to the Premises, accruing or payable during
the Term in the manner and time required under the Lease. The term “Landlord” therein
shall refer to Sublandlord herein, its successors and assigns; and the term “Tenant”
therein shall refer to Subtenant herein, its permitted successors and assigns; and the
term “Premises” therein shall refer to the Premises. The obligations assumed by
Subtenant hereunder which accrue during the Term shall survive and extend beyond the
termination of this Sublease.



     Section 11.2 Landlord Right. In any case where under the Lease the
Landlord reserves or is granted any right, including, without limitation, the right to
enter the Premises, said right shall inure to the benefit of Landlord as well as
Sublandlord with respect to the Premises.



     Section 11.3 Consent. In any case where under the Lease the consent or
approval of Landlord is required, the consent or approval of both Landlord and
Sublandlord shall be required. In determining whether to grant or withhold any consent
or approval hereunder, Sublandlord may expressly condition the same upon the consent
or approval of Landlord, as applicable. If Subtenant requests the consent of
Sublandlord under any provisions of this Sublease, Subtenant shall, as a condition to
doing any such act and the receipt of such consent, reimburse Sublandlord for any and
all reasonable costs and expenses incurred by Sublandlord in connection therewith,
including, without limitation, reasonable attorneys’ fees.



     Section 11.4 Indemnification Under Lease. Any provisions in the Lease
requiring indemnification by the Sublandlord of Landlord (and its partners,
shareholders, officers, directors, affiliates, agents, employees and contractors) or
releasing Landlord from liability shall be deemed an indemnification or release, as
applicable, running from Subtenant to both Landlord and Sublandlord (and their
partners, shareholders, officers, directors, affiliates, agents, employees and
contractors). Each and every indemnification set forth in this Sublease, or
incorporated into this Sublease from the Lease, shall survive the expiration or
earlier termination of the Term of this Sublease.



     Section 11.5 Time Limits. Wherever there are time limits contained in
the Lease (i) calling or allowing for the service of notice by the Tenant thereunder,
(ii) pertaining to events of default by the Tenant thereunder, or (iii) within which
the Tenant thereunder must perform any act or observe any term, covenant or condition
thereunder, the same shall be deemed amended for the purposes of this Sublease to
provide for time limits of three business days less and deadlines that are three
business days earlier than those provided for in the Lease. To the extent the Lease
requires (x) the Landlord thereunder to serve notice upon Tenant or (y) perform any act
or observe any term, covenant or condition thereunder, the same shall be deemed amended
for the purposes of this Sublease to provide for time limits for Sublandlord of three



Page 13 of 27









 




business days more and deadlines that are three business days later
than those provided for Landlord in the Lease.




     Section 11.6 Landlord Covenants, Representations and Warranties, Any
covenant, representation or warranty made by Landlord in the Lease shall be deemed to
be made by Landlord only and shall in no way be imputed to Sublandlord.



     Section 11.7 Default. Any act or omission by Subtenant that would
constitute a breach or default by the Tenant under the Lease shall constitute a
default on the part of Subtenant hereunder. In addition, Sublandlord shall have the
right to declare a default under this Sublease in the event Subtenant fails to perform
or violates any covenant or condition set forth herein. In the event of any breach or
default by Subtenant hereunder or under the Lease, Sublandlord shall have each and all
of the rights and remedies afforded Landlord under the Lease. In addition to the
rights or remedies afforded Landlord under the Lease, Sublandlord shall have the
right, but not the obligation, (i) to cure any such breach or default by Subtenant
(and enter upon the Premises in connection therewith if necessary), without being
liable for damages, and Subtenant shall thereupon be obligated to reimburse
Sublandlord immediately upon demand for all costs (including costs of settlements,
defense, court costs and attorneys’ fees) that Sublandlord may incur in effecting the
cure of such breach or default, plus interest thereon at the rate of ten percent (10%)
per annum; (ii) terminate this Sublease and Subtenant’s interest in the Premises by
giving Subtenant written notice thereof, in which event Subtenant shall pay to
Sublandlord the sum of (a) all Rent accrued hereunder through the date of termination,
and (b) an amount equal to the total Rent that Subtenant would have been required to
pay for the remainder of the Term; (iii) terminate Subtenant’s right to possess the
Premises without terminating this Sublease by giving written notice thereof to
Subtenant, in which event Subtenant shall pay to Sublandlord (1) all Rent and other
amounts accrued hereunder to the date of termination of possession, (2) all amounts
due from time to time under this Sublease, and (3) all Rent and other net sums
required hereunder to be paid by Subtenant during the remainder of the Term,
diminished by any net sums thereafter received by Sublandlord through reletting the
Premises during such period, after deducting all costs incurred by Sublandlord in
reletting the Premises and (iv) to have any and all rights and remedies now or
hereafter afforded a landlord under applicable law.



     Section 11.8 Not Incorporated. Anything to the contrary
notwithstanding, the following provisions of the Original Lease are not
incorporated by reference:




	 	(a)	 	Sections 1.01, 2.01, 2.02, 5.01, 18.01, 20.12, 20.21 and 25.01;
	 
	 	(b)	 	Article 3             (Rent)

Article 4            (Utilities and Services)

Article 6            (Taxes)

Article 7            (Initial Construction by Sublandlord)

Article 8            (Repairs and Maintenance) 

Article 16          (Subordination to Mortgages)

Article 21          (Subtenants’ Extension Options)

Article 22          (Broker)

Article 24          (Contingencies)

Article 26           (Subtenant’s Right of First Offer); and




Page 14 of 27









 






	 	(c)	 	Exhibits A through E and H





          Anything to the contrary notwithstanding, no provisions of the Amendments are
incorporated by reference, unless (and only to the extent) a provision in one of the
Amendments specifically modifies an incorporated provision of the Original Lease (in
which case only that specific provision in the applicable Amendment is incorporated)




     Section 11.9 Subtenant Action. Subtenant shall not take any action or
fail to take any action in connection with the Premises as a result of which
Sublandlord would be in violation of any of the provisions of the Lease; and Subtenant
hereby agrees to defend, indemnify, and hold Sublandlord harmless from and against all
loss, cost, liability, damage, and expense (including, but not limited to, attorneys’
fees and court costs) caused by or arising out of Subtenant’s act or inaction as a
result of which Sublandlord is alleged and/or determined to be in violation of any of
the provisions of the Lease.



ARTICLE 12

BROKERAGE




     Section 12.1 Representation and Indemnification. Subtenant
represents that in the negotiation of this Sublease it dealt with no real estate
broker or salesman except Pyramid Brokerage, CB Richard Ellis, and Trammel Crow
Company. Sublandlord shall compensate such brokers pursuant to a separate agreement.
Subtenant shall indemnify Sublandlord and hold it harmless from any and all losses,
damages and expenses arising out of any inaccuracy or alleged inaccuracy of the above
representation, including court costs and attorneys’ fees. Sublandlord shall have no
liability for brokerage commissions arising out of a sublease or assignment by
Subtenant, and Subtenant shall and does hereby indemnify Sublandlord and hold
Sublandlord harmless from any and all liability for brokerage commissions arising out
of any such sublease or assignment.



ARTICLE 13

NOTICES




     Section 13.1 Notices. Any notice, demand, consent, approval,
direction, agreement or other communication required or permitted hereunder or under
any other documents in connection herewith shall be in writing and shall be directed
as follows:


If to Sublandlord:



Ludlow Technical Products Corporation

c/o Tyco Healthcare Group, LP

15 Hampshire Street

Mansfield, MA 02048

Attn: General Counsel

Facsimile: (508) 261-8544





Page 15 of 27









 







With a copy to:



Blackwell Sanders Peper Martin LLP

720 Olive Street, Suite 2400

St. Louis, MO 63101

Attn: Melissa Smith-Groff, Esq.

Facsimile: (314) 345-6060



If to Subtenant:



Synacor, Inc.

40 La Riviere Drive

Buffalo, NY 14202

Attn: Brian C. Neeson, Controller

Facsimile: (716) 332-0081



or to such changed address or facsimile number as a party hereto shall designate to
the other parties hereto from time to time in writing. Notices shall be (i) personally
delivered (including delivery by Federal Express, United Parcel Service or other
comparable nation-wide overnight courier service) to the offices set forth above, in
which case they shall be deemed delivered on the date of delivery (or first business
day thereafter if delivered other than on a business day or after 5:00 p.m. New York
City time to said offices); (ii) sent by certified mail, return receipt requested, in
which case they shall be deemed delivered on the date shown on the receipt unless
delivery is refused or delayed by the addressee in which event they shall be deemed
delivered on the third day after the date of deposit in the U.S. Mail; or (iii) sent
by means of a facsimile transmittal machine, in which case they shall be deemed
delivered at the time and on the date of receipt thereof confirmed by telephonic
acknowledgment or first business day thereafter if receipted other than on a business
day or after 5:00 p.m. New York City time.




ARTICLE 14

SECURITY DEPOSIT




     Section 14.1 Security Deposit. Subtenant shall deposit with
Sublandlord the sum of $23,364.84 (the “Security Deposit”) as security for the
performance by Subtenant of the provisions of this Sublease. If Subtenant defaults
with respect to any provision of this Sublease, including payment of the Rent,
Sublandlord may use, apply, draw upon or retain all or any part of the Security
Deposit to the extent necessary for the payment of any Rent, or to compensate
Sublandlord for any other loss, cost or damage which Sublandlord may suffer by reason
of Subtenant’s default. If any portion of the Security Deposit is so used, applied, or
drawn upon, Subtenant shall, within ten (10) days after notice thereof, deposit cash
with Sublandlord in an amount sufficient to restore the Security Deposit to its
original amount. Subtenant’s failure to do so shall be a breach of this Sublease.
Sublandlord shall not, unless otherwise required by law, be required to keep the
Security Deposit separate from its general funds, nor pay interest to Subtenant. If
Subtenant shall fully and faithfully perform every provision of this Sublease to be
performed by it, the Security Deposit or any balance thereof shall be returned to
Subtenant (or to the last transferee of Subtenant’s interest hereunder) within thirty
(30) days after the expiration of the Term (or sooner termination of this Sublease)
and upon Subtenant’s vacation of the Premises in accordance with this Sublease. If the
Lease is assigned, the Security Deposit shall be



Page 16 of 27









 




transferred to the assignee, and thereupon Sublandlord shall be discharged from
further liability with respect thereto.




ARTICLE 15

RIGHTS OF LANDLORD; LANDLORD’S APPROVAL




     Section 15.1 Rights of Landlord.



          (a) Subtenant acknowledges any rights specifically reserved by Landlord under the
Lease; and Subtenant further acknowledges that its possession and use of the Premises
shall at all times be subject to such rights. Subtenant hereby releases Sublandlord
from all liability in connection with Landlord’s exercise of such rights.




          (b) Sublandlord shall not be liable to Subtenant for Landlord’s failure to
perform any of Landlord’s obligations under the Lease or under law (including without
limitation provide any services; comply with any laws or requirements of governmental
authorities regarding the maintenance or operation of the Premises; provide any
reimbursements, credits, rebates allowance or other concession or pay any costs;
provide any information (including, without limitation, invoices, bills, statements or
other documentation); maintain, repair, restore, alter, service or insure all or any
part of the Premises (including, without limitation, any obligations to rebuild,
repair and restore the Premises after damage or destruction); or indemnify the Tenant
under the Lease), nor shall Sublandlord have any obligation to perform same or to
bring legal proceedings or take any other action against Landlord to assure
performance of Landlord’s obligations under the Lease. Subtenant shall not make any
claim against Sublandlord for any damage which may arise by reason of (x) the failure
of Landlord to keep observe or perform any of its obligations under the Lease; or (y)
the acts or omissions of Landlord or its agents, contractors, employees, invitees or
licensees. Except as otherwise provided herein, whenever Sublandlord shall have the
right to enforce any rights against Landlord or any other party under the Lease
because of the default or breach of Landlord or such other party with respect to the
Premises, and if, within a reasonable period after Subtenant’s request, Sublandlord
fails to enforce such rights, then Subtenant shall have the right, in the name of
Subtenant or, if necessary, in the name of Sublandlord, to enforce any such rights of
Sublandlord with respect to the Premises, Such enforcement shall be at the sole
expense of Subtenant, and Subtenant shall indemnify Sublandlord against all costs and
expenses, including but not limited to reasonable attorneys’ fees, which may be
incurred by Sublandlord in connection with any claim, action, or proceeding so
undertaken by Subtenant. Any amount of recovery obtained by Subtenant shall be the
property of Subtenant, except that Sublandlord shall be compensated therefrom for any
damages sustained by Sublandlord as a consequence of such default or breach on the
part of Landlord or such other party.




          (c) Whenever Subtenant must obtain the consent of Landlord with respect to the
Premises, Sublandlord shall cooperate with Subtenant (at Subtenant’s sole cost and
expense) in obtaining Landlord’s consent. Sublandlord shall forward to Subtenant true
copies of all notices, requests, demands and communications received by Sublandlord
from Landlord (or its agent) with respect to the Premises. If Subtenant shall not give
timely directions to Sublandlord, Sublandlord may give such notice to Landlord as
Sublandlord desires, or no notice or direction with respect to the matter in question.




Page 17 of 27









 





     Section 15.2 Lease Requirements. Without limiting Article 11 of
this Sublease, the following requirements of the Lease shall apply:



          (a) this Sublease is subject to, and does not modify any of, the terms,
covenants, agreements, provisions and conditions of the Lease; and a termination or
expiration of the Lease shall automatically cause a termination of this Sublease as
set forth in Section 2.3;




          (b) Subtenant shall not have the right to a further assignment hereof or
sublease or assignment hereunder, or to allow the Premises to be used by others,
without the prior written consent of Landlord in each instance;




          (c) a consent by Landlord thereto shall not be deemed or construed to modify,
amend or affect any of the terms and provisions of the Lease, or any of Sublandlord’s
obligations thereunder, which shall continue to apply to the premises involved, and
the occupants thereof, as if the Sublease had not been made;




          (d) if Sublandlord defaults in the payment of any fixed monthly rent, additional
rent or other charges due under the Lease, Landlord is authorized to collect any rents
due or accruing from any assignee, subtenant or other occupant of the Premises and to
apply the net amounts collected to the Fixed Rent, Additional Rent, and other charges
reserved under the Lease; and




          (e) the receipt by Landlord of any amounts from an assignee or subtenant, or
other occupant of any part of the Premises, shall not be deemed or construed as
releasing Sublandlord from Sublandlord’s obligations under the Lease or as Landlord’s
acceptance of any such subtenant or occupant as a direct tenant.




     Section 15.3 Landlord’s Approval. Upon execution of this Sublease,
Sublandlord shall submit this Sublease to Landlord for Landlord’s approval, together
with the additional information required by Section 14.04 of the Lease and submitted
by Subtenant. In the event that Landlord fails to approve this Sublease within fifteen
(15) days of the date of receipt of such submission, either party, upon notice to the
other within five (5) business days after the expiration of such fifteen (15) day
period, may elect to terminate this Sublease, whereupon Sublandlord shall promptly
refund any amounts deposited hereunder, and this Sublease shall be of no further force
and effect. The parties hereto shall not bring any claim against each other for any
loss, cost, expense, damage, or injury caused by or arising out of the failure of
Landlord to consent to this Sublease.



ARTICLE 16

RIGHT OF FIRST OFFER




     Section 16.1 Right of First Offer. Subject to then-existing renewal or
expansion options of other subtenants, and provided no default by Subtenant exists,
Sublandlord shall, before offering the same to any party (other than the then-current
subtenant therein), first offer to lease to Subtenant the five different spaces
designated by suite number or floor number, and by square footage on Exhibit D (each,
an “Offer Space”) in an “AS-IS” condition; such offer shall be in writing and specify
the lease terms for the Offer Space, including the rent to be paid for the Offer Space
and the date on which the Offer Space shall be included in the Premises (the “Offer



Page 18 of 27









 




Notice”). Sublandlord shall use good faith in determining the rent amount for the
Offer Space. The Offer Notice shall be substantially similar to the Offer Notice
attached to this Sublease as Exhibit E. Subtenant shall notify Sublandlord in
writing whether Subtenant elects to lease the entire Offer Space on the terms set
forth in the Offer Notice, within ten (10) days after Sublandlord delivers to
Subtenant the Offer Notice. If Subtenant timely elects to lease the Offer Space, then
Sublandlord and Subtenant shall execute an amendment to this Sublease, effective as of
the date the Offer Space is to be included in the Premises, on the terms set forth in
the Offer Notice and, to the extent not inconsistent with the Offer Notice terms, the
terms of this Sublease; however, Subtenant shall accept the Offer Space in an “AS-IS”
condition. Notwithstanding the foregoing, if before Sublandlord’s delivery to
Subtenant of the Offer Notice, Sublandlord has received an offer to lease all or part
of the Offer Space from a third party (a “Third Party Offer”) and such Third Party
Offer includes space in excess of the Offer Space, Subtenant must exercise its rights
hereunder, if at all, as to all of the space contained in the Third Party Offer.




     If Subtenant fails or is unable to timely exercise its right hereunder, then
such right shall lapse, time being of the essence with respect to the exercise
thereof (it being understood that each of Subtenant’s five rights of first offer
hereunder is a one-time right only with respect to each Offer Space), and
Sublandlord may lease all or a portion of the Offer Space to third parties on such
terms as Sublandlord may elect. Subtenant may not exercise its rights under this
Article 16 if a default exists or Subtenant is not then occupying the entire
Premises. For purposes hereof, if an Offer Notice is delivered for less than all of
the Offer Space but such notice provides for an expansion, right of first refusal,
or other preferential right to lease some of the remaining portion of the Offer
Space, then such remaining portion of the Offer Space shall thereafter be excluded
from the provisions of this Sublease. In no event shall Sublandlord be obligated to
pay a commission with respect to any space leased by Subtenant under this Article
16, and Subtenant and Sublandlord shall each indemnify the other against all costs,
expenses, attorneys’ fees, and other liability for commissions or other
compensation claimed by any broker or agent claiming the same by, through, or under
the indemnifying party.



     Subtenant’s rights under this Article 16 shall terminate if (a) this Sublease
or Subtenant’s right to possession of the Premises is terminated, (b) Subtenant
assigns any of its interest in this Sublease or sublets any portion of the
Premises, or (c) less than two full calendar years remain in the initial Term of
this Sublease.



ARTICLE 17

NO RECORDING




     Section 17.1 No Recording. Subtenant shall not record this Sublease or
any memorandum of this Sublease without the prior written consent of Sublandlord,
which consent may be withheld or denied in the sole and absolute discretion of
Sublandlord, and any recordation by Subtenant shall be a material breach of this
Sublease. Subtenant grants to Sublandlord a power of attorney to execute and record a
release releasing any such recorded instrument of record that was recorded without the
prior written consent of Sublandlord.



Page 19 of 27









 





     IN WITNESS WHEREOF Sublandlord has duly executed this Sublease as of the day and
year first above written.



	 	 	 	 	 	 	 
	 	 	SUBLANDLORD:	 	 
	 
	 	 	 	 	 	 
	 	 	LUDLOW TECHNICAL PRODUCTS CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chuck J. Dockendorff	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Chuck J. Dockendorff	 	 
	 

	 	Title:
	 	VPO Finance	 	 






	 	 	 
	Comm OF Massachusetts

	 	)     
	 

	 	)  ss.
	COUNTY OF Bristol

	 	)     






     On the 8th day of March, in the year 2006, before me,
the undersigned, a Notary Public in and for said Comm of Massachusetts, personally appeared
Chuck J. Dockendorff, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her capacity,
and that by his/her signature on the instrument, the individual, or the entity upon
behalf of whom the individual acted, executed the instrument, and that such individual
made such appearance before the undersigned in Bristol County, MA.



	 	 	 	 
	 

	 	/s/ Suzanne E. Gaddy	 
	 

	 	Notary Public	
	 

	 	My Commission Expires: 3-22-2007	
	[SEAL]
	 	 	
	
	 	 	






Page 20 of 27









 









     IN WITNESS WHEREOF Sublandlord has duly executed this Sublease as of the
day and year first above written.



	 	 	 	 	 	 	 
	 	 	SUBTENANT:
SYNACOR, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert S. Rusak	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	ROBERT S. RUSAK	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	CFO	 	 
	 

	 	 	 	 	 	 






	 	 	 
	State OF New York

	 	)     
	 

	 	) ss.
	COUNTY OF Erie

	 	)     






     On the 6th day of March, in the year 2006, before me, the undersigned, a Notary
Public in and for said State of New York, personally
appeared      , personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the individual,
or the entity upon behalf of whom the individual acted executed the instrument,
and that such individual made such appearance before the undersigned
in Erie County,
New York.



	 	 	 	 
	 

	 	/s/ Kimberly R. Borowski        	
	 

	 	Notary Public	
	[SEAL]

	 	My Commission Expires: 9/11/2006	
	 
	 	 	
	 

	 	KIMBERLY R. BOROWSKI	
	 

	 	Notary Public, State of New York	
	 

	 	Qualified in Erie County	
	 

	 	My Commission Expires Nov. 9, 2006	






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