EXHIBIT 10.17
SUBLEASE AGREEMENT
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
THIS SUBLEASE AGREEMENT, (the "Sublease") is entered into as of the
15th day of June, 2002, by and between THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation, ("Sublandlord") and The Ashton Technology
Group, Inc., a Delaware corporation ("Subtenant").
W I T N E S S E T H
WHEREAS, Sublandlord, as tenant, entered into that certain Office Lease
Agreement between 1114 Trizechahn-Swig, L.L.C. (the "Prime Landlord") and
Sublandlord dated December 22,1997, as amended, (the "Prime Lease") for certain
space (the "Premises") consisting of a total of approximately 54,842 rentable
square feet on the twenty-second (22nd) and twenty-third (23rd) floors of the
building located at 1114 Avenue of the Americas, New York, New York (the
"Building"), and
WHEREAS, Subtenant desires to sublease a portion of the Premises from
Sublandlord.
NOW, THEREFORE, for Ten ($10) Dollars and in consideration of the
foregoing and for other good and valuable consideration and of the mutual
agreements hereinafter set forth, Sublandlord and Subtenant stipulate, covenant
and agree as follows:
1. SUBLEASE PREMISES. Sublandlord does hereby sublease to Subtenant
a portion of the Premises consisting of approximately 6,000
square feet of rentable area on the 22nd floor (the "Sublease
Premises") as outlined with diagonal lines on the floor plan,
attached hereto and incorporated herein by reference as Exhibit
B.
2. TERM. The term of this Sublease (the "Term") shall be for a
period of three years commencing on or about June 15, 2002 or the
date that Prime Landlord provides written approval of this
Sublease, whichever occurs later, ("Commencement Date") and
expiring on approximately June 30, 2005, the third anniversary of
this date (the "Expiration") unless renewed, terminated or
cancelled earlier as permitted to this Sublease, the Prime lease
or by operation of law.
3. CANCELLATION RIGHT: Both parties have the right to cancel this
Sublease as of the second (2nd) year anniversary from the
Commencement Date and at anytime thereafter with 6 months prior
written notice to the other party. In the event Subtenant
exercises their option to cancel this Sublease, they shall pay
Sublandlord a penalty equal to the unamortized portion of the
brokerage commissions.
4. USE. The Sublease Premises shall be used for general office use
and no other use. Under no circumstances shall the Sublease
Premises be used for the sale of life, disability or long term
care insurance, annuities, and/or other products provided by The
Northwestern Mutual Life Insurance Company.
5. BASE RENT AND ADDITIONAL RENT.
(a) Subtenant shall pay Sublandlord rent based on the following
schedule (the "Base Rent"): Year one base rent will commence
two (2) months (Free Rent) following the Commencement Date.
Year 1 - $33.00 per Rentable Square Foot or $165,000* per year;
$16,500.00 monthly Year 2 - $34.00 per Rentable Square Foot or $204,000
per year; $17,000.00 monthly Year 3 - $37.00 per Rentable Square Foot
or $222,000 per year; $18,500.00 monthly * as a result of free rent
(b) Subtenant shall pay as additional rent (the "Additional
Rent") beginning on the one year anniversary of the
Commencement Date any Additional Expenses (as such term is
defined in Section 4.4.2 of the Prime Lease) in excess of
such items paid by Sublandlord to the Prime Landlord for
2001 which are due under Articles 4.2 and 4.4, respectively,
of the Prime Lease. ("Base Year").
Subtenant's prorata share is 10.9% which is the ratio that
6,000 square feet of rentable area of the Sublease Premises
bears to 54,842 rentable square feet in the Premises.
(c) During the Term, Subtenant shall pay a charge for
electricity furnished to the Sublease Premises in an amount
of Three dollars ($3.00) per rentable square foot annually.
(d) If the Commencement Date is not on the first (1st) day of a
calendar month or if the expiration is not on the last day
of a calendar month, the monthly installment of Base Rent
and Additional Rent payable for such month in which such
date occurs shall be prorated accordingly.
(e) Subtenant will also be responsible for costs for any
services requested through the Prime Landlord (the invoicing
of these services may flow through the Sublandlord).
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6. SECURITY DEPOSIT.
(a) Subtenant will deliver to Sublandlord $40,000 on the full
execution and delivery of this Sublease as security for the
full and faithful performance of the terms, covenants, and
conditions of this Sublease to be performed or observed by
Subtenant, including, but not limited, to payment of Base
Rent and Additional Rent or for any other reasonable sum
that Sublandlord may expend by reason of Subtenant's
default, including any damages or deficiency in reletting
the Sublease Premises, in whole or in part, whether such
damages accrue before or after summary proceedings or other
reentry by Sublandlord. If Subtenant fully and faithfully
complies with all the terms, covenants, and conditions of
this Sublease to be performed or observed by Subtenant
during the Term, cash deposit or any unapplied balance of it
will be released to Subtenant upon surrender of possession
of the Sublease Premises to Sublandlord. An interest rate of
(two) percent (2 %) per annum will be paid on the Security
Deposit that will be held by Sublandlord. Should a portion
of the Security Deposit be required to cure any default as
described above, then the interest will be calculated on the
lowest balance.
7. INCORPORATION OF PRIME LEASE.
(a) This Sublease is subject and subordinate to all of the terms
of the Prime Lease, and to all matters to which the Prime
Lease is or shall be subordinate, with the same force and
effect as if fully set forth herein at length, excepting
only as otherwise specifically provided herein. Except for
the obligation to pay Base Rent and Additional Rent all of
the terms with which Sublandlord is bound to comply under
the Prime Lease shall, to the extent only that they apply to
the Sublease Premises and except to the extent they are
inapplicable or inconsistent with the same or as otherwise
provided herein, be binding upon Subtenant, and all of the
obligations of Prime Landlord set forth in the Prime Lease
shall, to the extent that they apply to the Sublease
Premises, inure to Subtenant's benefit. It is the intention
of the parties that, except as otherwise provided in this
Sublease, the relationship between Sublandlord and Subtenant
shall be governed by the language of the various articles of
the Prime Lease as if they were typed out in this Sublease
in full, and the words "Landlord", "Tenant", "Premises" and
"Lease" as used in the Prime Lease, shall read,
respectively, "Sublandlord", "Subtenant", "Sublease
Premises" and "Sublease".
(b) For the purposes of this Sublease, only the following
provisions of the Prime Lease do not apply:(i) Delete in
their entirety items (d), (e), (g), (h), (i), (j), (k), (l),
(m), (n) and (s) of Section 1.1, titled "Basic Lease
Definitions"; items (a), (m) and (o) of Section 1.3, titled
"Additional Definitions"; Sections 3.1, 3.2 and 3.3 of
Article 3, titled "Term"; Sections 4.1, 4.4, and 4.5 of
Article 4, titled "Rent"; Section 16.10, titled" "Initial
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Subleasing"; and Article 28, titled "Renewal Option". With
respect to the Sublease Premises, Subtenant shall be
entitled to the same rights from the Prime Landlord as the
Sublandlord is entitled as the tenant under the Prime Lease.
(c) Subtenant is not and will not be entitled toward any Rent
Abatement or Tenant Improvement Allowance outlined in the
Prime Lease or anywhere else, except as otherwise provided
herein.
8. QUIET ENJOYMENT.
(a) Sublandlord covenants and agrees with Subtenant that upon
Subtenant paying Base Rent and Additional Rent reserved in
this Sublease and observing and performing all of the other
obligations, terms, covenants and conditions of this
Sublease on Subtenant's part to be observed and performed,
Sublandlord shall not disturb or terminate Subtenant's
leasehold estate hereunder and Subtenant may peaceably and
quietly enjoy the Sublease Premises during the Term;
provided, however, that this Sublease shall automatically
terminate upon termination of the Prime Lease and Subtenant
shall have no claim against Sublandlord unless such
termination was caused by the default of Sublandlord in the
performance of its obligations under the Prime Lease.
(b) Subtenant covenants and agrees that Subtenant shall not do
or suffer or permit anything to be done which would
constitute a default, beyond any applicable cure or notice
period, under the Prime Lease or would cause the Prime Lease
to be canceled, terminated or forfeited by virtue of any
rights of cancellation, termination, or forfeiture reserved
or vested in Prime Landlord under the Prime Lease, and that
Subtenant will indemnify and hold harmless Sublandlord from
and defend Sublandlord against all claims, liabilities,
losses and damages of any kind whatsoever (excepting special
and consequential damages) that Sublandlord may incur by
reason of, resulting from or arising out of any such
cancellation, termination or forfeiture.
(c) Sublandlord covenants that it shall not voluntarily
surrender or terminate the Prime Lease except as set forth
in Paragraph 3, hereof. The foregoing is not intended to
limit Sublandlord's ability to terminate the Prime Lease in
the event of a casualty or condemnation, Premises other than
the Sublease Premises, or Sublandlord's election not to
exercise its option to renew the Prime Lease as provided
therein.
(d) Sublandlord shall duly pay each installment of the Rent and
Additional Rent under the terms of the Prime Lease and will
duly observe and perform every term and condition of the
Prime Lease to the extent that such term
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and conditions not provided in this Sublease to be observed
or performed by Subtenant.
9. NOTICES.
(a) Any notice, demand or request under this Sublease shall be
in writing and shall be considered properly delivered when
addressed as hereinafter provided and delivered by overnight
courier (signature of receipt required), certified mail
(return receipt requested) which is deposited in the United
States general or branch post office, or delivered by
private express mail service (signature of receipt
required); or via facsimile. Any notice, demand or request
by Sublandlord to Subtenant shall be addressed to Subtenant
at:
The Ashton Technology Group Inc.
The Grace Building
1114 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇, Chief Financial Officer
With Copy to:
Cole, Schotz, Meisel, ▇▇▇▇▇▇▇ and Leonaerd, P.A.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
TrizecHahn Office Properties
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Until otherwise directed in writing by Subtenant. Any
notice, demand or request by Subtenant to Sublandlord
shall be addressed to Sublandlord at:
The Northwestern Mutual Life Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Field Financial Services Department - ▇▇▇▇▇▇▇
Rejection or other refusal to accept or the inability to
deliver because of a changed address of which no notice was
given shall be deemed to be receipt of the notice, demand or
request sent.
(b) Sublandlord shall promptly notify the Prime Landlord to add
Subtenant and its attorney (as set forth herein) as
additional parties who are entitled
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to receive copies of all notices under the Prime Lease.
Sublandlord shall cooperate with Subtenant in all respects
in connection with Subtenant's exercise of its rights
hereunder including, without limitation, using reasonable
efforts to obtain all necessary consents required of the
Prime Landlord pursuant to the Prime Lease.
10. ASSIGNMENT OR SUBLEASE BY SUBTENANT. Subject to the Prime
Landlord's approval, Subtenant acknowledges and agrees that
Subtenant may not assign or sublet the Sublease Premises without
Sublandlord's consent.
11. ASSIGNMENT BY SUBLANDLORD. Subtenant acknowledges and agrees that
Sublandlord may assign all of Sublandlord's rights, title and
interest in and to the Prime Lease and this Sublease to any
person or entity permitted pursuant to the Prime Lease provided
such assignee shall assume the rights and liabilities of
Sublandlord and perform all its obligations under the Prime Lease
and this Sublease. Upon such assignment, Subtenant agrees to
attorn to the such assignee as its Sublandlord and Subtenant
shall continue to be bound under all of the terms, covenants and
conditions of this Sublease for the balance of the Term hereof.
12. PRIME LANDLORD'S RESPONSIBILITIES. Subtenant recognizes that
Sublandlord is not in a position to furnish the services set
forth in the Prime Lease, obtain an agreement of non-disturbance,
or to perform certain other obligations which are not within the
control of Sublandlord, such as, without limitation, maintenance,
repairs and replacements to the Premises and Sublease Premises,
compliance with laws, and restoration of the Sublease Premises
and building after casualty or condemnation. Notwithstanding
anything to the contrary contained in this Sublease, Sublandlord
and Subtenant agree that Subtenant shall look solely to Prime
Landlord to furnish all such services and to perform all such
obligations which by Prime Landlord is obligated under the Prime
Lease to furnish and perform. Sublandlord shall not be liable to
Subtenant or be deemed in default hereunder for failure of Prime
Landlord to furnish or perform the same
13. CASUALTY AND CONDEMNATION. Subtenant's rights and obligations
under Article 13, titled "Damage or Destruction" and Article 15,
titled "Condemnation", of the Prime Lease shall be that if by
operation of either of these two Articles the Prime Lease is not
terminated and continues in full force and effect, this Sublease
shall not be terminated but shall also continue in full force and
effect, except that until the Sublease Premises are restored in
accordance with these two Articles as the case may be there shall
be a proportionate abatement of Base Rent and Additional Rent
payable hereunder either to the extent of damage to the Sublease
Premises as determined by Prime Landlord, Sublandlord and
Subtenant; provided, however, that such abatement shall in no
event exceed the abatement granted to Sublandlord under the Prime
Lease for the Sublease Premises and, provided further, that no
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compensation or claim or reduction will be allowed or paid by
Sublandlord by reason of inconvenience, annoyance or injury to
Subtenant's business arising from the necessity of effecting
repairs to the Sublease Premises or any portion of the Premises,
whether such repairs are required by operation of these two
Articles or any other provision of the Prime Lease, except to the
extent that Sublandlord receives compensation or claim from the
Prime Landlord, in which event Subtenant shall be entitled to a
pro-rata share of such compensation, claim and/or reduction to
the extent that the Sublease Premises are affected by any
casualty or condemnation. .
14. BINDING AND ENTIRE AGREEMENT. This Sublease shall be binding on
Subtenant and Sublandlord and their respective heirs and
executors, and on the respective legal representatives,
successors and permitted assigns of the parties. This Sublease
contains the entire agreement of the parties with respect to the
subject matter herein and may not be modified except by
instrument in writing which is signed by both parties.
15. CONSENT OF PRIME LANDLORD. Anything hereinabove to the contrary
notwithstanding, it is understood and agreed that this Sublease
shall not become effective unless and until Sublandlord has
obtained and delivered to Subtenant the written consent of Prime
Landlord to the subletting herein on or before June 15, 2002,
failing which either party may at its option, by giving the other
notice on or before June 30, 2002, elect to terminate this
Sublease. If this Sublease is terminated as aforesaid, neither
party hereto shall have any further claim against the other
hereunder and all monies paid by Subtenant to Sublandlord shall
be promptly returned.
16. SUBLANDLORD WORK CONTRIBUTION. It is understood that the
Subtenant accepts the Premises in an "as is" condition.
Sublandlord will paint the space where necessary. It is further
understood any and all other costs associated with occupying the
Sublease Premises will be the Subtenant's responsibility. Any
work must be completed according to the terms of the Prime Lease.
17. FURNITURE. For the Term , providing Subtenant is not in default,
after notice and the expiration of any applicable cure period,
Subtenant will have use of the workstations contained in the
Subleased Premises ("Furniture") at no charge. The title of the
Furniture shall remain with the Sublandlord or an affiliate
general agent. Subtenant will be responsible for all and any
repairs or maintenance of the Furniture and shall return the
Furniture in working order, normal wear and tear excepted, at the
end of the Term. In the event that any local property taxes are
assessed on the Furniture during the Term, Subtenant shall be
solely responsible for the payment of any such taxes assessed on
the Furniture.
17. HOLDING OVER. Subtenant shall have no right to remain in
possession of all or any part of the Sublease Premises after the
expiration of the Term. If Subtenant
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remains in possession of all or any part of the Sublease Premises
after the expiration of the Term, : (a) such tenancy shall be
deemed to be a periodic tenancy from month-to-month only; (b)
such tenancy shall not constitute a renewal or extension of this
Sublease for any further term; and (c) such tenancy may be
terminated by Sublandlord upon the earlier of 30 days' prior
written notice or the earliest date permitted by law. In the
event Subtenant remains in possession after the expiration of the
Term, monthly installments of Base Rent shall be increased to an
amount equal to two hundred percent (200%) of the monthly
installments of Base Rent as charged at that given time by the
Prime Landlord for the occupied space defined in the Prime Lease
or any amendments, and any other sums and Additional Rent due
under this Sublease shall be payable in the amount and at the
times specified in this Sublease. Such month-to-month tenancy
shall be subject to every other term, condition, and covenant
contained in this Sublease.
18. INSURANCE. During the Term, Subtenant shall provide Sublandlord
with satisfactory evidence of insurance for the Subleased
Premises in accordance with the terms of Section 12 of the Prime
Lease.
19. REPRESENTATIONS AND WARRANTIES. Sublandlord warrants and
represents the following subparagraphs
(a) it is holder of the entire interest of the tenant under the
Prime Lease
(b) the Prime Lease and any and all amendments and modifications
thereto have been delivered to Subtenant and the same have
not been further modified or amended;
(c) the Prime Lease is in full force and effect and there are no
defaults or events with the giving of notice or the passage
of time which would constitute defaults by the Prime
Landlord or Sublandlord under the Prime Lease;
(d) Sublandlord has not received notice from any governmental
authority regarding non-compliance with applicable laws
relating to the Sublease Premises;
(e) Sublandlord has received no notice of any violation, action,
suit, claim or proceeding threatened against or affecting
the Sublease Premises
(f) Sublandlord has not sold, assigned, transferred, mortgaged
or pledged its interest as tenant under the Prime Lease; and
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(g) The execution and delivery of this Sublease has been duly
authorized by Sublandlord and the persons(s) execution this
Sublease on behalf of the Sublandlord have been duly
authorized to do so.
20. BROKER. Sublandlord and Subtenant warrant and represent that
neither has had any dealings or communications with any broker or
agent in connection with the consummation of this Sublease other
than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("Brokers"). Sublandlord and
Subtenant agree to defend, hold harmless and indemnify each other
from and against any and all cost, expenses (including reasonable
attorney's fees) or liability for any compensation, commission or
charge claimed by any other broker or agent other than Brokers
with respect to this Sublease or the negotiation thereof.
Sublandlord agrees to pay the Brokers pursuant to a separate
agreement between Sublandlord and Brokers.
21. MODIFICATIONS TO PRIME LEASE. Sublandlord covenants and agrees
that it will not enter into any amendment, modification or other
agreement with respect to the Prime Lease which relates to the
Sublease Premises which would reduce the Subtenant's rights or
increases Subtenant's obligations under this Sublease.
22. SUBLANDLORD'S CERTIFICATE. At any time, and from time to time,
within ten (10) days after written request from Subtenant,
Sublandlord shall execute, acknowledge and deliver to Subtenant
(or to any other party designated by Subtenant) a written
statement certifying: (a) that this Sublease has not been
modified and is in full force and effect, as modified, and
stating such modification(s); (b) the dates to which the rent and
additional rent and other charges hereunder have been paid; (c)
whether any default or event with which the giving of notice or
the passage of time would constitute a default exists under this
Sublease, and if so, specifying such default; and (d) any other
reasonable information requested by Subtenant.
23. CONSENT. Whenever in this Sublease (or the Prime Lease) Subtenant
may be required to first obtain the consent or approval of the
Prime Landlord prior to obtaining Sublandlord's consent or
approval, Sublandlord agrees that it shall use reasonable efforts
to assist Subtenant in obtaining the same.
24. GOVERNING LAW. The Sublease shall be governed by and construed in
accordance with the laws of the State of New York.
25. SIGNAGE. Sublandlord will provide to Subtenant a pro rata share
(based upon the square footage) of the directory signage rights
given to Sublandlord under the Prime Lease. Subtenant will need
to arrange, at their cost, any building directory services
directly with Prime Landlord without limiting Sublandlord's
remaining building directory rights. With Sublandlord and Prime
Landlord's written approval, Subtenant shall be permitted to
install signage on approved areas of the
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hallway leading to the Sublease Premises and on entrance doors.
All signage must adhere to any local building codes.
26. COUNTERPARTS. This Sublease may be executed in one or more
counterparts, each of which shall be deemed as original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, duly authorized representatives of the parties
hereto have executed this Sublease as of the day and year first above written.
SUBLANDLORD: THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY,
a Wisconsin corporation
By:/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUBTENANT: The Ashton Technology Group Inc.
By:/s/▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Financial Officer
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SUBLEASE RIDER
A. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SUBLANDLORD:
---------------------------------------------------------
B.
Sublandlord represents and warrants to Subtenant, and covenants as follows:
(i) Sublandlord has not given or received any notice of any default under the
Prime Lease, which default remains uncured, and, to the best of its knowledge,
no event has occurred or failed to occur which with the passage of time and/or
the giving of notice would ripen into such a default;
(i) Sublandlord has not received written notice of any violation of any
applicable laws or insurance requirements (including, without limitation,
environmental laws), and, to the best of Sublandlord's actual knowledge, the
Sublease Premises and the Building comply with all such laws and requirements;
(i) Sublandlord shall pay all rent and perform all of the obligations required
to be performed by Sublandlord under the Prime Lease (and not assumed by
Subtenant under this Sublease), and not to do or suffer or permit anything to be
done which would result in a default under, or cause the Prime Lease to be
terminated or forfeited;
(i) Sublandlord shall not, without Subtenant's consent, which consent shall not
be unreasonably withheld or delayed, except as expressly provided hereunder, (1)
cancel, surrender or terminate the Prime Lease, or (2) amend or modify the Prime
Lease, the result of which would materially or adversely affect Subtenant's
rights or obligations hereunder or the Sublease Premises, and any such
cancellation, surrender, termination (except as expressly provided hereunder),
amendment or modification of the Prime Lease made without Subtenant's consent
shall not be binding on Subtenant to the extent the same materially decreases
the rights or materially increases the obligations of Subtenant with respect to
the Sublease Premises or this Sublease;
(i) there is no pending and, to the best of Sublandlord's actual knowledge,
threatened litigation affecting Sublandlord's interest in the Prime Lease or the
Sublease Premises;
(i) there is no litigation pending between Sublandlord and Prime Landlord;
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(i) Sublandlord has all of the requisite corporate power and authority to
execute, deliver and perform its obligations under this Sublease and the Prime
Lease, and the person executing and delivering this Sublease on behalf of
Sublandlord has the requisite authority to perform such acts on behalf of
Sublandlord;
(i) Sublandlord shall, promptly following receipt thereof, deliver to Subtenant
a copy of any notice received by it from Prime Landlord which would have any
adverse effect upon the Sublease Premises or this Sublease;
(i) Sublandlord agrees that, with respect to any non-disturbance agreement it
has or may hereafter enter into with respect to the Prime Lease, it will enforce
for the benefit of the Sublease Premises and Subtenant, the terms of any such
non-disturbance agreement that it has the right to enforce;
(i) there are no defaults under the Prime Lease by Prime Landlord of which
Sublandlord has actual notice or knowledge;
(i) except as expressly provided herein, Sublandlord has obtained all necessary
consents and approvals to enter into this Sublease;
(i) Sublandlord has no actual knowledge of any pending or threatened
condemnation against the Building or the Sublease Premises;
(i) in the event Subtenant is obligated (whether pursuant to this Sublease, by
law or otherwise) to pay or reimburse Sublandlord for counsel or attorneys'
fees, costs, disbursements, fees, expenditures, charges or expenses, it shall be
deemed that Subtenant shall only be obligated to pay or reimburse Sublandlord
for Sublandlord's reasonable counsel or attorneys' fees, and reasonable costs,
disbursements, fees, expenditures, charges or expenses;
(i) Sublandlord shall use reasonable efforts to minimize interference with
Subtenant's business in connection with any entry in and to the Sublease
Premises, or in connection with any inspection or showing thereof, by
Sublandlord, pursuant to the terms, covenants, conditions, provisions and
agreements of this Sublease;
(i) to the extent not prohibited in the Prime Lease, Subtenant shall be
permitted to have access to the Sublease Premises on a twenty-four (24) hour,
seven (7) day per week basis; provided, however, that Subtenant shall be solely
responsible for any additional charges associated with any such access to the
Sublease Premises outside of
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the Building's standard hours of operation as such hours of operation are set
forth in the Prime Lease;
(i) Sublandlord agrees to use reasonable efforts to re-let the Sublease Premises
and to mitigate its damages in the event of a default by Subtenant hereunder;
(i) in the event Sublandlord does not consent or give its approval, Sublandlord
shall specify the reason(s) therefor to Subtenant in writing;
(i) Subtenant may make cosmetic/decorative changes in and to the Sublease
Premises, without Sublandlord's prior written consent, provided the cost of any
such cosmetic/decorative changes does not exceed $1,000.00 and, with respect to
all other cosmetic/decorative changes, subject to the Prime Lease, Sublandlord
shall not unreasonably withhold, condition or delay its consent;
(i) all demands made by Sublandlord for payment of additional rent by Subtenant
hereunder, shall be accompanied by appropriate supporting documentation
including, but not limited to, invoices and/or other billing statements rendered
by Sublandlord;
(i) the Sublease Premises are free from all occupancies or tenancies whatsoever;
(i) to the best of Sublandlord's actual knowledge, the Sublease Premises and the
Building contain no asbestos, urea formaldehyde, chlorofluorocarbons or other
toxic or hazardous substances or wastes; and
A. ATTORNEYS' FEES:
----------------
B.
If either party institutes any action or proceeding against the other
for the violation of any of the terms, covenants, conditions, provisions or
agreements of this Sublease, and if either party shall be successful in such
action or proceeding, then the unsuccessful party shall be obligated to pay or
reimburse the successful party for reasonable attorneys' fees incurred in
connection with the institution and prosecution of such action or proceeding.
A. ASSIGNMENT/SUBLETTING:
----------------------
B.
Subject to Prime Landlord's consent, if applicable, and subject to any
actual out-of-pocket reasonable costs that may be incurred by Sublandlord in
connection with same, Subtenant may assign this Sublease or sublet all or any
part of the Sublease Premises, without the prior written consent of Sublandlord,
to:
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(i) any parent, subsidiary or affiliate of Subtenant; or
(ii) any entity resulting from a merger or consolidation with Subtenant; or
(iii) any entity succeeding to the business and assets or stock of Subtenant.
B. DELIVERY OF SUBLEASE PREMISES:
------------------------------
C.
Sublandlord agrees to deliver the Sublease Premises to Subtenant on the
commencement date of this Sublease, in vacant and "broom-clean" condition, free
of all tenancies and occupancies whatsoever. If for any reason Sublandlord is
unable to give Subtenant possession of the Sublease Premises by June 15, 2002,
and in the condition as aforesaid, Subtenant may terminate this Sublease upon
three (3) business days written notice to Sublandlord, and if Subtenant so
elects to terminate this Sublease as aforesaid, all sums paid by Subtenant
hereunder shall be returned to Subtenant forthwith.
A. ENFORCEMENT OF PRIME LEASE:
---------------------------
B.
If Prime Landlord shall default in any of its obligations to Sublandlord
with respect to the Sublease Premises, Sublandlord shall use its best efforts to
enforce its rights against Prime Landlord, and Subtenant shall be entitled to
participate with Sublandlord in the enforcement of Sublandlord's rights against
Prime Landlord. If, after written requests from Subtenant, Sublandlord shall
fail or refuse within ten (10) days thereafter to take appropriate action for
the enforcement of Sublandlord's rights against Prime Landlord with respect to
the Sublease Premises, Subtenant shall have the right to take such action in its
own name, and for that purpose and only to such extent, all of the rights of
Sublandlord under the Prime Lease with respect to the Sublease Premises are
hereby conferred upon and assigned to Subtenant. Sublandlord agrees to cooperate
with Subtenant in connection with the enforcement by Subtenant of such rights.
In the event that any such action against Prime Landlord can only be taken in
Sublandlord's name by reason of lack of privity, non-assignability or otherwise,
Sublandlord shall permit Subtenant to take such action against Prime Landlord in
Sublandlord's own name, at the sole cost and expense of Subtenant (including all
attorneys' fees and disbursements), and Sublandlord shall execute all documents
reasonably required in connection therewith.
A. MISCELLANEOUS:
--------------
B.
(i) Subtenant shall not be deemed to be making any representations and
warranties which were made by Sublandlord as tenant under the Prime Lease.
(ii)
(iii) Subtenant shall be permitted to directly contact Prime Landlord with
respect to the maintenance and repair of the Sublease Premises, and the
providing of services and utilities therein (e.g., "after-hours").
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