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EXHIBIT 10.10
Sublease
between
AT&T Corp.,
Sublandlord,
and
XxxxxxxXxxxx.xxx Inc.,
Subtenant
Entire Sixth Floor
Rentable Floor Area: 34,342 Square Feet
0000 X Xxxxxx
Xxxxxxxxxx, XX 00000
Dated: September , 1999
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* * * *
The mailing, delivery or negotiation of this Sublease shall not be
deemed an offer to enter into any transaction or to enter into any other
relationship, whether on the terms contained herein or on any other terms.
This Sublease shall not be binding nor shall either party have any obligations
or liabilities or any rights with respect thereto, or with respect to the
premises, unless and until both parties have executed and delivered this
Sublease and the Prime Landlord has consented in writing to this Sublease.
Until such execution and delivery of, and consent to this Sublease, either
party may terminate all negotiation and discussion of the subject matter
hereof, without cause and for any reason, without recourse or liability.
* * * *
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Table of Contents
Page
1. SUBLEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. PRIME LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. PRIME LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. REFUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10. SUBTENANT FIT-UP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. REPAIRS AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
13. UTILITIES AND SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14. ASSIGNMENT AND SUBLEASING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
16. NON-BINDING MEDIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18. LIMITATIONS ON SUBLANDLORD'S LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
19. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
20. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
21. CASUALTY AND CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
22. CONSENT OR APPROVAL OF PRIME LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
25. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
26. RIGHTS WITH RESPECT TO THE FURNITURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(i)
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Page
25. SUBTENANT'S DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
26. SECURITY SYSTEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
27. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
28. TABLE OF CONTENTS - CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
29. CONSENT TO SUBLEASE BY PRIME LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
29. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
EXHIBIT A Description of Subleased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
EXHIBIT B Copy of the Prime Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
EXHIBIT C Rent Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
EXHIBIT D The Furniture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(ii)
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SUBLEASE
This Sublease is entered into effective as of the day of
September, 1999 by and between AT&T CORP., a New York corporation, with offices
at 000 Xxxxx Xxxx Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx, 17920(hereinafter
"Sublandlord") and XXXXXXXXXXXX.XXX INC., a Delaware corporation, with offices
at Suite 525, 0000 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (hereinafter
"Subtenant").
INTRODUCTORY STATEMENT
By Lease dated July 28, 1995, subsequently amended by the First
Amendment to Lease dated December 11, 1995 (the "Prime Lease"), 2020 K Street,
L.P. (the "Prime Landlord") leased to Sublandlord the sixth floor, seventh
floor, eighth floor, and a portion of the fifth floor, with a total rentable
floor area of 121,042 square feet (the "Premises") in the building located at
0000 X Xxxxxx, Xxxxxxxxxx, XX 00000 (hereinafter called the "Building").
Sublandlord and Subtenant, in consideration of the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and each with intent
to be legally bound, for themselves and their respective successors and
assigns, agree as follows:
1. SUBLEASE
Sublandlord, for and in consideration of the Subtenant's payment of
the rent and performance of the covenants contained in this Sublease, does
hereby demise and lease to Subtenant (i) the entire sixth floor of the
Building, with a rentable floor area of 34,342 square feet, as shown on the
floor plan which
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is attached hereto as EXHIBIT A (the "Subleased Premises"); and (ii) those
items of furniture which are owned by Sublandlord and which are presently
located on the sixth floor of the Building and more particularly described in
EXHIBIT D (the "Furniture").
2. PARKING
This Sublease grants no rights to Subtenant with respect to any
automobile parking spaces, whether in the Building or elsewhere.
3. PRIME LEASE
A true copy of the Prime Lease (with certain financial provisions
deleted for reasons of confidentiality) is attached hereto as EXHIBIT B. Where
not expressly inconsistent with the terms hereof and except as otherwise stated
herein to the contrary, this Sublease shall be subject and subordinate to all
of the terms and conditions contained in the Prime Lease as said terms and
conditions affect the Subleased Premises. Except as otherwise set forth
herein, all of the obligations of Sublandlord in its capacity as tenant under
the Prime Lease with respect to the Subleased Premises are incorporated into
this Sublease as obligations of Subtenant under this Sublease and shall be
binding upon Subtenant to the same extent as if Subtenant were named as tenant
and Sublandlord as landlord under the Prime Lease. For purposes of this
incorporation from the Prime Lease of terms and conditions defining certain
obligations of Subtenant under this Sublease, (i) references in the Prime Lease
to the "Term" shall mean the Term of this Sublease and references to the
"Premises" in the Prime Lease shall mean the Subleased Premises; and (ii)
except as otherwise provided herein, when any fraction, factor or formula based
on the floor area of the Premises is expressed in the Prime Lease, it will be
adjusted by substituting the floor area of the Subleased Premises for the floor
area of the Premises. Subtenant will not do or omit to do anything
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which would result in a default by Sublandlord as tenant under the Prime Lease,
and Subtenant will indemnify and hold Sublandlord harmless from and against all
claims, demands or liabilities resulting from any breach, violation or
nonperformance of any of Subtenant's obligations which are incorporated from
the Prime Lease. Subject to the exceptions set forth herein, Subtenant shall
be entitled to quiet enjoyment of the Subleased Premises for the Term. Any
other provisions of this Sublease to the contrary notwithstanding, and without
limiting the effect of the foregoing, this Sublease shall not be construed to
grant or assign to Subtenant, or to give Subtenant any right to exercise, or
interest in, any of the following rights, options, or entitlements that
Sublandlord may have under the Prime Lease or under any other agreement: (i)
any renewal, extension, or termination the Term; and (ii) any expansion,
relocation, reduction or modification of the Premises; and (iii) any option,
right of first refusal, or right of first offer with respect to the purchase or
lease of any interest in the real estate of which the Premises are a part or
any other real estate; and (iv) receipt of payment of, or any other right to
receive or participate in, any increase in the equity value of the real estate
of which the Premises are a part or any other real estate; and (v) entry onto,
or use for any purpose of, the roof of the building in which the Premises are
located. If Subtenant holds over upon the expiration of the Term of this
Sublease, no month-to-month or other periodic tenancy or other right of
possession or occupancy shall be deemed to have been created, regardless of
whether Sublandlord accepts payment of any rent tendered by Subtenant, and
Subtenant shall be deemed to be in possession of the Subleased Premises as a
tenant at sufferance for rent at a rate, on a per diem basis, of two hundred
percent of the rate of rent during the last month of the Sublease Term.
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4. DEFINITIONS
All terms not expressly defined in this Sublease shall have the
meanings given to them in the Prime Lease.
5. PRIME LANDLORD
Subject to Section 18 of this Sublease, Subtenant will look solely to
the Prime Landlord, and not to Sublandlord, for the performance of all services
and obligations of the Prime Landlord under the Prime Lease with respect to the
Subleased Premises.
6. TERM
The term of this Sublease (the "Sublease Term") is three years and
five months and days, commencing on September , 1999 (the
"Commencement Date") and ending on February 28, 2003.
7. RENT
a. The basic rent during the Sublease Term is payable in monthly
installments in advance on the first day of each calendar month during the
Sublease Term beginning on October 1, 1999, in accordance with Exhibit C (the
"Rent Schedule").
b. "Subtenant's Proportionate Share" means 28.37 percent.
"Sublandlord's Base Year Expense Rent" means all amounts which Sublandlord is
obligated to pay to Prime Landlord for the year 2000 as Additional Rent for
Tenant's Expense Increase Share under Section 11 of the Prime Lease and for
Tenant's Tax Increase Share under Section 12 of the Prime Lease.
"Sublandlord's Annual Expense Rent" means all amounts which Sublandlord is
obligated to pay to Prime Landlord as Additional Rent for each year after the
year 2000 for Tenant's Expense Increase Share under Section 11 of the Prime
Lease and for Tenant's Tax Increase Share under Section 12 of the Prime Lease.
In addition to the basic rent set forth in section 7.a. above, Subtenant shall
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pay Sublandlord, as additional rent, Subtenant's Proportionate Share of the
amount by which the Sublandlord's Annual Expense Rent for each year after the
year 2000 exceeds the Sublandlord's Base Year Expense Rent. Subtenant will
make these payments of additional rent to Sublandlord as follows: Subtenant's
Proportionate Share of the amount by which each Landlord's Estimate Statement
for each year after the year 2000 exceeds the Landlord's Estimate Statement for
the year 2000, and Subtenant's Proportionate Share of the amount by which each
Landlord's Final Statement under paragraph (f) in Section 12 of the Prime Lease
for each year after the year 2000 exceeds the Landlord's Final Statement under
paragraph (f) in Section 12 of the Prime Lease for the year 2000, will be due
from Subtenant to Sublandlord on the same date that each payment from
Sublandlord is due Prime Landlord with respect to each Landlord's Estimate
Statement and each Landlord's Final Statement. In addition to the basic rent
set forth in section 7.a. above, Subtenant also shall pay Sublandlord, as
additional rent, Subtenant's Proportionate Share of all amounts other than
Tenant's Expense Increase Share and Tenant's Tax Increase Share which
Sublandlord is obligated to pay to Prime Landlord as other Additional Rent
under the Prime Lease. The foregoing notwithstanding, Subtenant will pay,
directly to the Prime Landlord or to Sublandlord as additional rent if so
directed by Sublandlord, all Additional Rent or other charges under the Prime
Lease that become due for utilities and services provided by the Prime Landlord
only to the Subleased Premises, including all charges under paragraph (a) in
Section 13 of the Prime Lease for heating, ventilating and air conditioning the
Subleased Premises during times other than Building Hours.
c. The terms "basic rent" and "additional rent" are sometimes
referred to herein as "Rent" or "rent" and shall include all sums due from
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Subtenant to Sublandlord under the terms of this Sublease. All Rent shall be
payable at the office of the Sublandlord at the following address:
AT&T Corp.
000 Xx. Xxxx Xxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx
Attention: Lease Administration
or at such other address as directed by notice from Sublandlord to Subtenant.
8. REFUNDS
Provided Subtenant is not in default under this Sublease, Sublandlord
shall pay or credit to Subtenant a pro rata share of any refund of any
overpayment which Sublandlord actually receives from Prime Landlord pursuant to
paragraph (f) or paragraph (g) in Section 12 of the Prime Lease. The payment
or credit (less any sums expended by Sublandlord for collection thereof) shall
be made by Sublandlord to Subtenant within thirty (30) days of Sublandlord's
receipt of any such sum. If Sublandlord exercises its right under the Prime
Lease to audit amounts charged by Prime Landlord, then to the extent permitted
under the Prime Lease Sublandlord will provide to Subtenant copies of all
information revealed during the audit.
9. SECURITY DEPOSIT
Subtenant has deposited with Sublandlord the sum of $93,333.34 as
security for the full and faithful performance of every portion of this
Sublease to be performed by Subtenant. If Subtenant defaults with respect to
any provision of this Sublease, Sublandlord may use, apply or retain all or any
portion of this security deposit to remedy such default. If any portion of
said deposit is so used or applied, Subtenant shall, within ten (10) days after
demand therefor, deposit cash with Sublandlord in an amount sufficient to
restore the security deposit to its original amount, and Subtenant's failure to
do so shall be a material breach of this Sublease. Sublandlord
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shall not be required to keep this security deposit separate from its general
funds, and Subtenant shall not be entitled to interest on such deposit. 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 within thirty (30) days of termination of the Term.
10. SUBTENANT FIT-UP
Subtenant acknowledges and agrees that Subtenant has had the
opportunity to inspect the Subleased Premises and the Furniture, and Subtenant
accepts the Subleased Premises and the Furniture in their current "AS IS"
condition, subject to all defects, latent or apparent.
11. ALTERATIONS
Subtenant shall not make any alterations, improvements or
installations in or to the Subleased Premises without the prior written consent
of Sublandlord. All alterations and improvements shall be subject to the terms
and conditions of the Prime Lease, and in those instances, if required, shall
be subject to the Prime Landlord's approval as provided in the Prime Lease.
Any alterations, improvements or installations consented to by Sublandlord
shall be made by Sublandlord or Sublandlord's contractors at the sole cost and
expense of Subtenant.
12. REPAIRS AND MAINTENANCE
Any repair and maintenance obligations with respect to the Subleased
Premises which are the responsibility of the Sublandlord, as tenant under the
Prime Lease, shall be performed by Subtenant at Subtenant's sole cost and
expense. Subtenant agrees that it will notify Sublandlord promptly of the need
for any repair to the Subleased Premises, even if Sublandlord is not
responsible for any such repair. Notwithstanding anything contained herein to
the contrary, in the event that a condition exists in the Subleased Premises
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that Prime Landlord is obligated to repair under the terms of the Prime Lease,
Subtenant shall so advise Sublandlord, and Sublandlord, in turn, shall promptly
advise Prime Landlord thereof. Sublandlord shall have no liability to
Subtenant for Prime Landlord's failure to make any such repair.
13. UTILITIES AND SERVICES
Subtenant shall be entitled to all those services and utilities which
Prime Landlord is required to provide to the Subleased Premises under the terms
of the Prime Lease. Subtenant shall look solely to the Prime Landlord for the
provision of such services and utilities, and Sublandlord shall not be
responsible for Prime Landlord's failure to provide the same nor shall any such
failure constitute an abrogation of any other terms or conditions of this
Sublease. To the extent that Sublandlord becomes obligated under the Prime
Lease to pay any extra charges to Prime Landlord for any services or utilities
and such charge or increase is due to Subtenant's use of the Subleased Premises
or extra utilities or services delivered only to Subleased Premises, then
Subtenant will pay the charges to Sublandlord as additional rent, within ten
days after receipt of Sublandlord's xxxx. Subtenant will arrange to have
installed, at Subtenant's sole expense, on or before September 30, 1999, in
each of the utility closets in the Subleased Premises, an electricity meter to
measure electricity consumption by all workstations and electrical outlets in
the Subleased Premises. To the extent that Sublandlord becomes obligated to
pay any additional rent or other charges to Prime Landlord by reason of (i) any
use by Subtenant of heating, ventilating, air conditioning other services in
the Subleased Premises on Holidays or at times other than Building Hours, or
(ii) any use by Subtenant of electricity in excess of standard electrical
energy requirements of five xxxxx per square foot of the Subleased Premises as
measured by the electricity meters, then Sublandlord will be entitled to
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reasonably estimate the amount of such additional rent or other charges and
Subtenant will pay such estimated amount to Sublandlord in monthly installments
on the first day of each month in advance, as additional rent under this
Sublease. Adjustments will be made by Sublandlord annually based on the actual
amount of such additional rent charged by Prime Landlord, compared to the
monthly installments of the estimated amount paid by Subtenant to Sublandlord,
and Sublandlord will refund or credit any overpayment within sixty days after
each anniversary of this Sublease, and Subtenant will pay to Sublandlord the
amount of any underpayment within thirty days after receipt of Sublandlord's
invoice.
14. ASSIGNMENT AND SUBLEASING
(a) Subtenant shall not assign this Sublease or sub-sublet or rent (or
permit occupancy or use of) the Subleased Premises, or any part thereof,
without the prior written consent of Sublandlord, which consent shall not be
unreasonably withheld, conditioned or delayed (as hereinafter provided).
(b) If at any time during the Sublease Term, Subtenant desires to
assign this Sublease (other than to a Subtenant Affiliate, as hereinafter
defined), or sub-sublet (or permit anyone to use) any part of the Subleased
Premises, Subtenant shall give Sublandlord written notice of Subtenant's desire
to do so ("Subtenant's Initial Notice"), which shall include, in the case of a
sub-subletting, the portion of the Subleased Premises to be sub-sublet, the
period of time that Subtenant desires to sub-sublet such space and the size,
location and configuration of the space to be sub-sublet. Except with respect
to assignments or sub-subleases to a Subtenant Affiliate pursuant to paragraph
14(j), Sublandlord may elect to recapture the Subleased Premises (or the
portion thereof proposed to be sub-subleased if less than the entire Subleased
Premises) by providing written notice thereof within forty (40) days
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after receipt from Subtenant of the Subtenant's Initial Notice.
Notwithstanding the foregoing, so long as Subtenant has not assigned this
Sublease, Sublandlord shall not have the foregoing right to retake possession
of the portion of the Subleased Premises proposed to be sub-sublet by Subtenant
if the sum of the gross rentable area of such space plus the gross rentable
area of all other space then being sub-sublet (excluding all space then being
sub-sublet to Subtenant Affiliates) is less than twenty percent (20%) of the
gross rentable area of the Subleased Premises (such space that is under the 20%
threshold shall be referred to as the Base Sub-Sublet Space). In the event
Sublandlord elects to recapture said space, (1) Sublandlord shall do so at the
basic rent then being paid by Subtenant for the term proposed by Subtenant in
Subtenant's Initial Notice; and (2) Subtenant shall be released from any and
all obligations under this Sublease relating to such space which accrue or
arise from and after the date that such retaking is effective and Subtenant has
vacated such space and returned the same to Sublandlord in accordance with the
terms of this Sublease.
(c) If Sublandlord does not exercise its right to recapture the
Subleased Premises (or part thereof proposed to be sub-subleased), Subtenant
may assign or sub-sublease such space to third parties provided Subtenant first
obtains Sublandlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed (as hereinafter provided). In
order to obtain such consent, Subtenant shall, within one hundred sixty (160)
days of Subtenant's Initial Notice (or simultaneously with Subtenant's Initial
Notice), submit to Sublandlord written notice of its intent to sub-sublease or
assign ("Subtenant's Second Notice") containing, in addition to the information
contained in the Subtenant's Initial Notice the following information: current
financial statements of the proposed assignee or sub-
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sublessee certified by an authorized officer of the assignee or sub-sublessee,
the effective date of the proposed assignment or sub-subleasing, and the
identity of the assignee or sub-sublessee, including the assignee's or
sub-sublessee's exact legal name, identity of shareholders (unless publicly
held), officers and directors, the proposed rent to be paid by the proposed
assignee or sub-sublessee. Sublandlord shall have fifteen (15) business days
from the receipt of Subtenant's Second Notice to review Subtenant's request and
to notify Subtenant whether it will consent to such proposed sub-sublessee or
assignee. Sublandlord's failure to respond within fifteen (15) business days
after Sublandlord's receipt of Subtenant's Second Notice shall be deemed
approval of the proposed assignment or sub-sublease, provided that Subtenant's
Second Notice so states and refers to this paragraph 14(c).
(d) It shall be deemed unreasonable for Sublandlord to withhold its
consent if such assignment or sub-sublease meets all of the following
conditions, and it shall be deemed reasonable for Sublandlord to withhold its
consent if such assignment or sublease fails to meet any of the following
conditions:
(i) Subtenant is not in default of its obligations under this
Sublease beyond any applicable cure period; and
(ii) the assignee assumes all of the obligations of this
Sublease, or the sub-sublessee agrees to be subject to all the terms
and conditions of this Sublease; and
(iii) such assignment or sub-sublease will not permit the use
of the Subleased Premises for any purpose forbidden by this Sublease;
and
(iv) the proposed assignee, sub-sublessee or occupant (a) is
of a type and quality consistent with the first-class nature of the
Building, (b) has the financial capacity to undertake and perform the
obligations
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of this Sublease or the sub-sublease (as the case may be), and (c) is
not a party by whom any suit or action could be defended on the ground
of sovereign immunity; and
(v) the Prime Landlord has given its written consent to the
proposed assignment or sub-sublease.
(e) If Sublandlord does not exercise its right to recapture as
provided above, and either (i) Subtenant fails to submit Subtenant's Second
Notice (in accordance with the foregoing requirements) to Sublandlord within
one hundred sixty (160) days after Subtenant sends Subtenant's Initial Notice,
or (ii) Subtenant fails to assign this Sublease or sub-sublet the portion of
the Subleased Premises to be sub-sublet to the sub-sublessee permitted by
Sublandlord within ninety (90) days after the date of Sublandlord's consent to
such assignment or sub-subletting (or Subtenant changes any of the proposed
provisions of such assignment or sub-subletting, as stated in the Subtenant's
Initial Notice), then, before Subtenant may assign this Sublease or sub-sublet
any portion of the Subleased Premises, Subtenant shall notify Sublandlord again
in writing of Subtenant's desire to assign the Sublease or sub-sublet the
Subleased Premises (in the manner set forth in paragraph 14(b), above) and
Sublandlord shall again have the right to elect to recapture such space in
accordance with paragraph 14(b).
(f) Subtenant shall pay to Sublandlord fifty percent (50%) of any
"Subtenant's Profit" (defined below) derived by Subtenant from any assignment
or sub-subletting (other than to a Subtenant Affiliate and other than from
subletting of the Base Sub-Sublet Space). "Subtenant's Profit" means the
excess of (i) all sums paid by the assignee or sub-subtenant or as rent or
other consideration for the assignment or sublease (other than a security
deposit), less "Subtenant's Transaction Costs" (defined below) over (ii) all
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sums paid to Sublandlord as basic rent and additional rent allocable to the
Subleased Premises or the portion thereof sub-sublet, including any amounts
paid by Subtenant to Prime Landlord in accordance with this Sublease as relates
to the Subleased Premises or the portion thereof sub-sublet. "Subtenant's
Transaction Costs" means all reasonable costs incurred by Subtenant in
connection with such assignment or sub-subletting, including, without
limitation, advertising costs, brokerage commissions, legal fees, and the cost
of improvements to the Subleased Premises made by Subtenant for such assignee
or sub-sublessee which costs shall be amortized over the remaining term of this
Sublease (in the case of an assignment) or the term of the sub-sublease. Any
allocation of rent paid by an assignee or a sub-subtenant to Subtenant between
compensation for the use of the portion of the Subleased Premises sub-sublet
and compensation for services provided to the assignee or sub-subtenant by or
on behalf of Subtenant, or for equipment which Subtenant furnishes to the
assignee or sub-subtenant, must be reasonable. In the case of a sub-sublease,
Subtenant shall pay to Sublandlord fifty percent (50%) of Subtenant's Profit on
a monthly basis in arrears commencing thirty (30) days after the effective date
of the sub-sublease. Within thirty (30) days after the effective date of any
sub-sublease, Subtenant shall submit to Sublandlord a statement containing a
reasonably detailed calculation of any Subtenant's Profit derived from a
sub-subletting, certified as correct by an officer of Subtenant. Within thirty
(30) days after Subtenant receives any amount from an assignee as consideration
for an assignment, Subtenant shall submit to Sublandlord a statement containing
a reasonably detailed calculation of any Subtenant's Profit derived from such
assignment, certified as correct by an officer of Subtenant, and simultaneously
with the delivery of such statement, Subtenant shall pay Sublandlord fifty
percent (50%) of any Subtenant's Profit
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18
shown by such statement. Upon Sublandlord's request, Subtenant shall provide
substantiation of Subtenant's calculation of Subtenant's Profit, reasonably
satisfactory to Sublandlord.
(g) Any assignment of this Sublease or any sub-sublease of the
Subleased Premises shall not relieve Subtenant of any of its obligations under
this Sublease.
(h) The term "assign" or "assignment" shall mean and refer to:
(i) any disposition or transfer by Subtenant of any or all of
its rights and obligations under this Sublease, whether voluntary, by
operation of law, or otherwise;
(ii) an imposition (whether or not consensual) of a lien,
mortgage or encumbrance upon Subtenant's interest in this Lease;
(iii) an arrangement (other than a sub-sublet) which allows
the use and occupancy of the Subleased Premises by any person or
entity other than Subtenant;
(iv) a transfer or pledge of voting control of Subtenant (if
Subtenant is a corporation) if in connection therewith either the net
worth or general creditworthiness of Subtenant after such transfer or
pledge is less than the net worth or general creditworthiness (as the
case may be) of Subtenant immediately prior to such transfer or
pledge; or
(v) a transfer of more than fifty percent (50%) of the
partnership interests of Subtenant (if Subtenant is a partnership).
(i) In the event of any sub-subletting or assignment, Subtenant shall
remain fully liable to perform the obligations of the subtenant under this
Sublease. The consent by Sublandlord to any sub-subletting or assignments
shall not be construed as a waiver or release of Subtenant from the terms of
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19
any covenant or obligation under this Lease, nor shall the collection or
acceptance of rent from any such assignee, sub-subtenant or occupant constitute
a waiver or release of Subtenant from any covenant or obligation contained in
this Sublease, nor shall any such assignment or sub-subletting be construed to
relieve Subtenant from obtaining the prior written consent of Sublandlord and
Prime Landlord to any further assignment or sub-subletting. In the event that
Subtenant defaults hereunder, Subtenant hereby assigns to Sublandlord the rent
due from any assignee or sub-subtenant and hereby authorizes any such assignee
or each such sub-subtenant to pay said rent directly to Sublandlord. Nothing
in this paragraph 14, however, shall result in any obligation of Sublandlord to
any sub-subtenant of Subtenant.
(j) Notwithstanding anything to the contrary contained in this
paragraph 14, Subtenant may upon prior written notice to Sublandlord, but
without Sublandlord's consent (but not without Prime Landlord's prior written
consent if and to the extent required under the Prime Lease), assign this
Sublease or sub-sublet the Subleased Premises to a corporation or other entity
which shall control, be controlled by or be under common control with
XxxxxxxXxxxx.xxx Inc. (a "Subtenant Affiliate"), but only for so long as such
entity remains a Subtenant Affiliate; and such assignment or subletting shall
be deemed void and of no force or effect if such entity at any time ceases to
be a Subtenant Affiliate (and in the case of any assignment, XxxxxxxXxxxx.xxx
Inc. shall again be subtenant under this Sublease. For the purposes of the
immediately preceding sentence, "control" shall be deemed to be ownership of
more than twenty-five percent (25%) of the legal or equitable interest of the
controlled corporation or other business entity.
(k) Sublandlord acknowledges that the Subleased Premises may be
occupied by one or more Subtenant Affiliates and their employees and that, if
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20
such use lasts less than thirty (30) days, such use of the Subleased Premises
shall not be considered an assignment or sub-sublease, unless Subtenant elects
to treat it as such. Any of Sublandlord's representations, warranties,
covenants, agreements, guarantees and indemnities made for the benefit of
Subtenant or any rights or privileges granted by Sublandlord to Subtenant shall
also inure to the benefit of such Subtenant Affiliate and its employees.
15. INSURANCE
Subtenant will comply with all of the insurance requirements and
obligations of Sublandlord with respect to the Subleased Premises as set forth
in the Prime Lease and will name both Sublandlord and Prime Landlord as
additional insureds on any required liability insurance policies. Paragraph
(h) in Section 18 of the Prime Lease is not applicable to the Subtenant.
16. NON-BINDING MEDIATION
a. If a dispute arises out of or relates to this Sublease, or its
breach, and the parties have not been successful in resolving such dispute
through negotiation, the parties agree to attempt to resolve the dispute
through non-binding mediation by submitting the dispute to a sole mediator
selected by the parties or, at the option of a party, to mediation by the
American Arbitration Association ("AAA"). If such dispute is not resolved by
such non-binding mediation, the parties shall have the right to resort to any
remedies permitted by law. All defenses based on passage of time shall be
tolled during the mediation.
b. The direct expenses of the mediation, including the
compensation and expenses of the mediator and the fees of the AAA, shall be
borne equally by the parties. All other costs incurred by the parties to this
Sublease, including the parties' legal expenses and their witnesses' expenses,
shall be borne by the party incurring the expense. The parties, their
representatives,
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21
other participants and the mediator shall hold the existence, content and
result of the mediation in confidence.
17. COMPLIANCE WITH LAWS
In addition to performing all obligations as tenant under the Prime
Lease which are incorporated into this Sublease, Subtenant shall promptly
comply with all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State and municipal Governments and of any and all
their Departments and Bureaus applicable to the use and occupancy of the
Subleased Premises by Subtenant or any subtenant or assignee of Subtenant, for
the correction, prevention and abatement of nuisances, violations or other
grievances, in, upon or connected with the Subleased Premises during the Term
or any renewal thereof, including without limitation all laws relating to
environmental matters and the Americans with Disabilities Act, and shall also
promptly comply with, and execute all rules, orders and regulations of the
Board of Fire Underwriters for the prevention of fires (collectively referred
to as "Legal Requirements") at its own cost and expense. Nothing in this
paragraph shall be deemed a consent to the alteration, subletting or assignment
of all or any portion of the Subleased Premises or of all or any of Subtenant's
interests in this Sublease.
If Subtenant shall fail or neglect to comply with the aforesaid Legal
Requirements, or if Subtenant shall fail or neglect to make any repairs
required by the terms of this Sublease, and if such breach continues for a
period of ten(10) days after notice from Prime Landlord or Sublandlord
regarding same, or, if the breach cannot be cured within ten(10) days, if
Subtenant has not begun to cure the breach within such period and does not
thereafter diligently prosecute the cure to completion, then Sublandlord or its
agents may (but shall not be obligated to) enter the Subleased Premises
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22
and take such actions as necessary to cure the breach and comply with any and
all of the said Legal Requirements, at the cost and expense of Subtenant; and,
in case of Subtenant's failure to pay therefor, the said cost and expense shall
be added to the next month's Rent and be due and payable as such.
18. LIMITATIONS ON SUBLANDLORD'S LIABILITY
a. Subtenant acknowledges that Sublandlord has made no
representations or warranties with respect to the Building or the Subleased
Premises except as provided in this Sublease and Subtenant accepts the
Subleased Premises in AS IS condition.
b. If Sublandlord assigns its leasehold estate in the Building,
Sublandlord shall have no obligation to Subtenant that arises after that
assignment. Subtenant shall then recognize Sublandlord's assignee as
Sublandlord of this Sublease.
c. Sublandlord shall not be required to perform any of the
covenants and obligations of the Prime Landlord under the Prime Lease, and
insofar as any of the obligations of the Sublandlord hereunder are required to
be performed under the Prime Lease by the Prime Landlord thereunder, Subtenant
shall rely on and look solely to the Prime Landlord for the performance
thereof. If the Prime Landlord shall default in the performance of any of its
obligations under the Prime Lease or breach any provision of the Prime Lease
pertaining to the Subleased Premises, Subtenant shall have the right, at
Subtenant's expense and upon prior notice to Sublandlord, and in the name of
Sublandlord to make any demand or institute any action or proceeding, in
accordance with and not contrary to any provision of the Prime Lease, against
the Prime Landlord under the Prime Lease for the enforcement of the Prime
Landlord's obligations thereunder. Sublandlord will reasonably cooperate with
Subtenant to allow Subtenant to make such demand or institute such action or
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23
proceeding for the enforcement of the Prime Landlord's obligations under the
Prime Lease with respect to the Subleased Premises, but Sublandlord will not be
required to incur any costs in performing this obligation. Subtenant shall
defend, indemnify and hold Sublandlord harmless from and against any suit,
action, cost, expense, damage or liability which arises out of or results from
or is alleged to arise out of or result from Subtenant's exercise of its rights
under this paragraph.
d. Sublandlord will not be liable to Subtenant for any punitive,
consequential, or indirect damages resulting from or arising out of any breach,
violation or nonperformance of any of Sublandlord's obligations under this
Sublease, and Subtenant expressly waives and releases Sublandlord from all such
liability.
19. ESTOPPEL CERTIFICATES
Either party hereto (the requested party) agrees that from time to
time upon not less than fifteen (15) days prior notice by the other party
(requesting party), the requested party or its duly authorized representative
having knowledge of the following facts will deliver to the requesting party,
or to such person or persons as the requesting party may designate, a statement
in writing certifying (a) that this Sublease is unmodified and in full force
and effect (or if there have been modifications, that the Sublease as modified
is in full force and effect); (b) the date to which the Rent and other charges
have been paid; (c) that to the best of the requested party's knowledge, the
requesting party is not in default under any provision of this Sublease or if
in default, the nature thereof in detail.
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24
20. SUBORDINATION
This Sublease shall be subject and subordinate to the Prime Lease, any
ground lease and to any mortgage or deed of trust thereon or on the fee simple
interest in the Building or the land on which the Building is located.
21. CASUALTY AND CONDEMNATION
If the Prime Lease is terminated with respect to the Subleased
Premises upon the occurrence of a casualty or condemnation pursuant to the
provisions of the Prime Lease, this Sublease shall automatically terminate at
the same time and Subtenant shall have no claim against Sublandlord or Prime
Landlord for the loss of its subleasehold interest or any of Subtenant's
property. If the Prime Lease is not terminated with respect to the Subleased
Premises upon the occurrence of a casualty or condemnation, the provisions of
the Prime Lease with respect to casualty or condemnation shall apply to this
Sublease and the Subleased Premises.
22. CONSENT OR APPROVAL OF PRIME LANDLORD
If the consent or approval of Prime Landlord is required under the
Prime Lease with respect to any matter relating to the Subleased Premises,
Subtenant shall be required first to obtain the consent or approval of
Sublandlord with respect thereto and, if Sublandlord grants such consent or
approval, Sublandlord or Subtenant may forward a request for consent or
approval to the Prime Landlord, but Sublandlord shall not be responsible for
obtaining such consent or approval. Sublandlord shall have no liability to
Subtenant for the failure of Prime Landlord to give its consent.
23. NOTICES
All notices given pursuant to the provisions of this Sublease shall be
in writing, addressed to the party to whom notice is given and sent registered
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25
or certified mail, return receipt requested, in a postpaid envelope or by
nationally recognized overnight delivery service as follows:
To Subtenant:
(Prior to August 31, 1999)
Attention: Xxxxx Xxxxx
XxxxxxxXxxxx.xxx Inc.
0000 Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(After September 1, 1999)
Attention: Xxxxx Xxxxx
XxxxxxxXxxxx.xxx Inc.
Xxxxx Xxxxx
0000 X Xxxxxx
Xxxxxxxxxx, XX 00000
To Sublandlord:
Attention: Lease Administration
AT&T Corp.
000 Xx. Xxxx Xxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Unless specifically modified by this Sublease, Sublandlord shall be entitled to
the length of notice required to be given Prime Landlord under the Prime Lease
plus three (3) days and shall be entitled to give Subtenant the amount of
notice required to be given tenant under the Prime Lease less three(3) days.
All notices shall be deemed given upon receipt or rejection. Either party by
notice to the other may change or add persons and places where notices are to
be sent or delivered. In no event shall notice have to be sent on behalf of
either party to more than three (3) persons.
24. OPTION TO RENEW; RIGHT OF FIRST OFFER
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26
(a) Sublandlord grants to Subtenant an option to renew the Sublease
Term of this Sublease from March 1, 2003 until December 30, 2007 (the "Sublease
Renewal Term"). The sole and exclusive manner in which Subtenant is authorized
to exercise this option is by giving to Sublandlord, on or before February 28,
2002, written notice of Subtenant's election to exercise the option. The
Sublease Renewal Term shall be on the same terms and conditions as initial
Sublease Term, except that the basic rent shall be in accordance with the
following schedule:
----------------------------------------------------------------------------------------------------------
START END MONTHLY RENT
----------------------------------------------------------------------------------------------------------
March 1, 2003 December 31, 2003 $85,036.01
----------------------------------------------------------------------------------------------------------
January 1, 2004 December 31, 2004 $86,736.73
----------------------------------------------------------------------------------------------------------
January 1, 2005 December 31, 2005 $89,598.56
----------------------------------------------------------------------------------------------------------
January 1, 2006 December 31, 2006 $91,390.53
----------------------------------------------------------------------------------------------------------
January 1, 2007 December 30, 2007 $93,218.34
----------------------------------------------------------------------------------------------------------
(b) During the Sublease Term, Subtenant shall have a right to
sublease space located in the Premises, subject to terms and conditions stated
in this paragraph (b) of this section 24 ("Right of First Offer"). The Right
of First Offer is not applicable to (i) any re-subleasing, renewal, extension,
or re-negotiation of any existing sublease agreement between Sublandlord and
any party, including any expansion of premises now subleased by any other
party; and (ii) any re-leasing by Sublandlord of all or part of the Premises by
renewal, extension, or re-negotiation of the Prime Lease; and (iii) any
surrender by Sublandlord to Prime Landlord of all or part of the Premises by
termination, expiration, re-negotiation, or amendment of the Prime Lease; and
(iv) any sublease or assignment to any subsidiary or affiliate of AT&T Corp. or
any corporation formed as a result of any merger or divestiture involving AT&T
Corp. The Right of First Offer will not be effective unless (i) the Sublease
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27
is in full force and effect; and (ii) Subtenant is not be in default under the
Sublease; and (iii) Subtenant's then-current financial condition, as revealed
by its then-most recent financial statements (quarterly and annual financial
statements including at least its income statements, balance sheets, and cash
flow statement), demonstrates that Subtenant meets either the financial
criteria that Sublandlord generally uses to lease space to Subtenants, or that
Subtenant's net worth is at least equal to its net worth as of the effective
date of this Sublease. Subject to the terms of this section 24, Sublandlord
will not, during the Sublease Term, offer on the market or sublease to any
third party any office space in the Premises without first offering Subtenant
the right to sublease the office space. Sublandlord will not offer any part of
the Premises for sublease on the open market unless and until Sublandlord has
first notified Subtenant in writing (the "First Offer Subleasing Notice") that
Sublandlord intends to offer the designated space to third parties and until a
period of fifteen (15) days has elapsed from the date that Sublandlord has
delivered to Subtenant the First Offer Subleasing Notice without Subtenant
having notified Sublandlord in writing of Subtenant's desire to sublease all of
the Available First Offer Space (defined below) and supplied current financial
statements. The First Offer Subleasing Notice shall: (i) Advise Subtenant
that Sublandlord intends to offer on the market the Available First Offer Space
(defined below), and (ii) describe the amount and location of the space that
has or will become available (the "Available First Offer Space"); and (iii)
state the date on which the Available First Offer Space will be available for
subleasing by Subtenant. If Subtenant delivers to Sublandlord written notice
of Subtenant's desire to sublease all of the Available First Offer Space within
fifteen days after Subtenant receives the First Offer Subleasing Notice,
accompanied by financial statements meeting the requirements of this section
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24, then the Available First Offer Space will be deemed to have been subleased
by Tenant on the terms and conditions specified in this Section 24. If
Subtenant declines or fails to effectively exercise the Right of First Offer as
provided in this section 24, or fails to meet the conditions set forth in this
section 24 that entitle Subtenant to exercise the Right of First Offer, then
Sublandlord will be free to offer the particular Available First Offer Space
previously identified in a First Offer Leasing Notice on the open market and to
sublease some or all of that Available First Offer Space at any time without
regard to the restrictions in this section 24 and on whatever terms Sublandlord
may decide in Sublandlord's sole discretion. If Subtenant subleases Available
First Offer Space from Sublandlord under this section 24, then the Available
First Offer Space will be deemed to be a part of the Subleased Premises, and
all of the terms and conditions of this Sublease will apply to the Available
First Offer Space except that: (i) the Base Rent under this Sublease shall be
increased, based on the same rate per square foot of the rentable floor area of
the Subleased Premises including the Available First Offer Space that is
applicable to the Subleased Premises as of the date immediately prior to the
Available First Offer Space becoming a part of the Subleased Premises; and (ii)
the commencement date of the Sublease for each particular Available First Offer
Space will be the day on which the Available First Offer Space is delivered to
the Subtenant broom clean, free of occupants, and otherwise in reasonably good
condition, and the expiration date shall be the same as the expiration of the
Sublease Term (or the Sublease Renewal Term, if the renewal option has been
exercised). The parties will, within thirty (30) days after each time
Subtenant exercises its right under this section 24 to add any Available First
Offer Space to the Subleased Premises, confirm in writing: (i) The
commencement date for the additional Available First Offer Space; (ii) identify
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in a scaled diagram the Available First Offer Space that was subleased and
added to the Subleased Premises; (iii) the additional amount of Base Rent to be
paid by reason of the addition of the Available First Offer Space to the
Subleased Premises; and (iv) any other terms related to the Available First
Offer Space or this sublease that either party reasonably requests to be
confirmed.
25. BROKERS
The parties warrant that they have had no dealings with any real
estate broker or agent in connection with this Sublease, except Xxxxxxx &
Xxxxxxxxx, Inc. (the "Broker"). Each party covenants to pay, hold harmless and
indemnify the other from and against any and all costs, expenses or liabilities
for any compensation, commissions and charges claimed by any other broker or
agent with respect to this Sublease or the negotiation thereof, based upon
alleged dealings with the indemnifying party. Sublandlord agrees to pay the
commissions of the Broker(s) in accordance with separate agreement(s).
26. RIGHTS WITH RESPECT TO THE FURNITURE
Sublandlord will not remove the Furniture from the Subleased Premises
during the Sublease Term (or during the Sublease Renewal Term, if Subtenant has
exercised the option to renew specified in paragraph (a) of section 24 of this
Sublease) except in accordance with this section 26 of this Sublease. Provided
that Subtenant has exercised the option to renew specified in paragraph (a) of
section 24 of this Sublease, and is not in default under this Sublease, at the
end of the Sublease Renewal Term, Sublandlord's rights, title, and interest in
the Furniture will be deemed to have been conveyed to the Subtenant. If
Subtenant desires to remove any items of the Furniture from the Subleased
Premises at any time during the Sublease Term, then Subtenant will notify
Sublandlord in writing of Subtenant's intention to remove the
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30
Furniture, identifying the specific items of Furniture to be removed. If
Sublandlord does not remove the identified items of Furniture from the
Subleased Premises, at Sublandlord's sole cost and expense, within fifteen (15)
days after the date on which Sublandlord receives the notice from Subtenant,
then all of Sublandlord's rights, title and interest in the items of Furniture
identified in Subtenant's notice will be deemed to be conveyed to Subtenant,
which conveyance will be come effective upon removal of such Furniture from the
Subleased Premises by Subtenant. If Sublandlord's rights, title and interest
in any such items of Furniture identified in Subtenant's notice are conveyed to
Subtenant, then Subtenant will be responsible for the cost and expense of
removal of such items of Furniture from the Subleased Premises prior to the
expiration of the Sublease Renewal Term.
25. SUBTENANT'S DEFAULT
(a) The occurrence of any one or more of the following matters
constitutes an event of default by Subtenant under this Sublease:
(i) failure by Subtenant to pay basic rent within ten (10)
business days after receipt of written notice of such failure to pay
on the due date; or
(ii) failure by Subtenant to pay additional rent or any other
amounts payable hereunder within ten (10) business days after receipt
of written notice of such failure to pay when due; or
(iii) Subtenant shall be liquidated or dissolved (if a
corporation or other entity); or
(iv) failure by Subtenant to observe or perform any other
covenant, agreement, condition or provision of this Sublease, if such
failure shall continue for twenty (20) days after receipt of written
notice from Sublandlord to Subtenant, except that if such default
cannot
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31
be cured within such twenty (20) day period, Subtenant shall have such
longer period (not to exceed an additional seventy (70) days) as may
be reasonably required to effectuate such cure if Subtenant commences
to cure such default within such twenty (20) day period and thereafter
diligently and continuously prosecutes such cure to completion.
26. SECURITY SYSTEMS
Subtenant will be entitled to use the existing electronic system that
controls access to the Building and the Subleased Premises by reading
programmable electronic cards. Subtenant will be obligated to pay all costs
for re-programming the system and issuing new access cards to Subtenant's
employees. Subtenant will be obligated, at Subtenant's own cost, to enter into
its own maintenance and service contract for the electronic access control
system.
27. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE
Sublandlord (subject to Prime Landlord's consent) and Subtenant
covenant, warrant and represent that they have full power and proper authority
to execute this Sublease.
28. TABLE OF CONTENTS - CAPTIONS
The Table of Contents and the captions appearing in this Sublease are
inserted only as a matter of convenience and do not define, limit, construe or
describe the scope or intent of the sections of this Sublease nor in any way
affect this Sublease.
29. CONSENT TO SUBLEASE BY PRIME LANDLORD
This Sublease shall not become operative until and unless the Prime
Landlord has given to Sublandlord its consent hereto. Sublandlord shall not be
responsible for Prime Landlord's failure to consent to this Sublease.
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32
Should Prime Landlord not consent to this Sublease, each party shall be
released from all obligations with respect hereto and neither party shall have
any further rights in law or in equity with respect to this Sublease.
29. ENTIRE AGREEMENT
This Sublease (which includes each of the Exhibits attached hereto)
contains the entire agreement between the parties and all prior negotiations
and agreements are merged into this Sublease. This Sublease may not be
changed, modified, terminated or discharged, in whole or in part, nor any of
its provisions waived except by a written instrument which (a) shall expressly
refer to this Sublease and (b) shall be executed by the party against whom
enforcement of the change, modification, termination, discharge or waiver shall
be sought.
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33
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
properly executed as of the day and year first above written.
SUBLANDLORD
AT&T Corp.
By: /s/ AT&T Corp.
--------------------------
--------------------------
Name and Title
SUBTENANT
Varsity Xxxxx.xxx Inc.
By: /s/ XxxxxxxXxxxx.xxx Inc.
--------------------------
--------------------------
Name and Title
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