EXHIBIT 10.16
SUBLEASE
THIS SUBLEASE AGREEMENT (the "Sublease") is made and entered into to be
effective as of ________________, 2000 (the "Effective Date"), by and between
_____________, a _________________ ("Sublessor"), and ________________, a
________________ ("Sublessee").
R E C I T A L S:
A. Certain capitalized terms used in this Sublease shall have the
meanings set forth in Article I below. Other capitalized terms shall have the
meanings set forth elsewhere in this Sublease. Capitalized terms not defined in
this Sublease shall have the meaning set forth in the Office Lease.
B. Landlord and Sublessor have heretofore entered into the Office Lease
for the Office Premises. Sublessor represents and warrants that a true and
correct copy of the Office Lease together with all modifications and amendments
thereto has heretofore been delivered to Sublessee.
C. Sublessee has requested, and Sublessor has agreed, to sublease to
Sublessee the Subleased Premises. The Subleased Premises are depicted on Exhibit
A attached hereto and incorporated herein by this reference.
NOW, THEREFORE, for good and valuable consideration of the
mutual covenants, promises and agreements contained in this Sublease, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, Sublessor and Sublessee covenant and
agree as follows:
A G R E E M E N T S:
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ARTICLE I: DEFINITIONS
"Additional Expenses" shall include (i) the costs of insurance
Sublessor is required to carry under the Office Lease; (ii) the costs of
utilities and other services (such as security or outside trash removal) not
otherwise included in Operating Expenses; and (iii) _______________.
"Base Rent" shall be _____________ Dollars ($______) per square foot of
the Subleased Premises.
"Building" shall have the meaning set forth in the definition of
"Office Lease" in this Article I.
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"Excluded Provisions" shall refer to the following provisions of the
Office Lease:
Section ___ (_________________________)
Section ___ (_________________________)
"Expiration Date" shall be _________ __, 2001.
"Landlord" shall mean ___________________, a ___________________.
"Office Lease" shall mean that certain _____________ dated as of
_______________, as amended by ________________ , for the premises described as
_____________________ (collectively, the "Office Premises"), containing
approximately _____ square feet of rentable space in the property known as
_________________ (the "Building"), located at __________________
"Office Premises" shall have the meaning set forth in the definition of
"Office Lease" in this Article I.
"Operating Expenses" shall have the meaning set forth in Section ___ of
the Office Lease.
"Subleased Premises" shall mean that certain portion of the Office
Premises consisting of approximately _____ (_____) rentable square feet of
space. The Subleased Premises are more particularly depicted on Exhibit A
attached hereto and incorporated herein.
"Sublessee's Notice Address" is as follows:
To Sublessee:
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With a copy to:
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"Sublessor's Notice Address" is as follows:
To Sublessor:
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With a copy to:
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"Taxes" shall have the meaning set forth in Section ____ of the Office
Lease.
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ARTICLE II: SUBLEASE OF PREMISES
2.1. Incorporation of Recitals: This Sublease is made subject and
subordinate to all of the terms and conditions of the Office Lease to the extent
that they relate to the Subleased Premises, except such terms as are expressly
excluded herein. Insofar as the same relate to the Subleased Premises, each and
every provision of the Office Lease except for the Excluded Provisions shall be
deemed incorporated herein and made a part of this Sublease as between Sublessor
and Sublessee, except to the extent that such provisions are inconsistent with
the provisions of this Sublease (in which event the provisions of this Sublease
shall control). Insofar as the same relate to the Subleased Premises, all
references in the Office Lease to "Landlord" (or words of similar import) shall
be deemed to refer to Sublessor and all references to "Tenant" (or words of
similar import) shall be deemed to refer to Sublessee. Provided, however, in the
event of a conflict between any provision contained in the Office Lease and a
provision contained in this Sublease, the provision contained in this Sublease
shall control as between Sublessor and Sublessee.
2.2. Landlord's Consent or Approval. This Sublease is conditioned upon
the approval or consent of Landlord to this Sublease, to the extent and in the
form that such approval or consent is required under the Office Lease, which
approval Sublessor shall use its reasonable efforts to obtain. Sublessee agrees
to execute such documents and to take such actions as Sublessor may reasonably
request in connection with obtaining the Landlord's consent or approval to this
Sublease.
2.3. Sublease of Subleased Premises. Sublessor hereby subleases to
Sublessee for the Sublease Term (as defined below) (a) the Subleased Premises;
(b) the right (in common with the rights of all others entitled thereto) to use
all common areas and facilities which tenants or occupants of the Office
Premises are entitled to use pursuant to the Office Lease, subject to clause (d)
below, (c) the common pipes, ducts, conduits, wires and appurtenant equipment
serving the Subleased Premises; and (d) the right to use, on a first-come,
first-serve basis, an undesignated, pro-rata portion of the parking spaces
available to the tenants or occupants of the Office Premises pursuant to the
Office Lease in accordance with and subject to all applicable terms and
conditions set forth in the Office Lease. Said pro-rata portion of parking
spaces shall be determined based on the ratio of the rentable square footage of
the Subleased Premises to the total rentable square footage of the Office
Premises, as such ratio may change from time to time. Sublessee shall have no
rights to or interests in any other portion of the Office Premises, except as
otherwise provided herein. Sublessee acknowledges that it has reviewed, and
hereby accepts and agrees to be bound by, the terms and conditions of Office
Lease as it applies to the Subleased Premises, except for these terms and
conditions excluded herein.
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2.4. Sublease Subject to Office Lease. Sublessee acknowledges that this
Sublease is subject and subordinate in all respects to the Office Lease.
Therefore:
A. Each of Sublessor and Sublessee agrees that it will not take
any action which would constitute a default under the Office
Lease, as applicable to this Sublease, and further agrees to
indemnify, defend, and hold the other party harmless from and
against any and all liability, loss, cost, damage or expense,
including reasonable attorneys fees, arising out of or in
connection with any act or failure on the part of such party
which constitutes a default under this Sublease or under the
Office Lease.
B. Wherever Sublessor's consent is required under this Sublease,
the consent of the Landlord shall also be required (to the
extent set forth in the Office Lease). It is understood and
agreed that Sublessor shall not be deemed to be unreasonable
in withholding its consent if the Landlord has not granted its
consent.
C. Except as may be expressly stated to the contrary elsewhere
herein, Sublessee acknowledges and agrees that Sublessor shall
have no obligation to provide any services to the Subleased
Premises, to perform any maintenance of or repairs to the
Subleased Premises, or to perform any other obligation
required to be performed by the Landlord under the Office
Lease. Provided, however, Sublessor agrees that it will take
all commercially reasonable steps to enforce its (and
therefore Sublessee's) rights as Tenant under the Office Lease
with respect to all terms and provisions of the Office Lease,
all as if Sublessor had remained in occupancy of the Subleased
Premises.
D. Sublessee acknowledges and agrees that Sublessor shall have no
liability or obligation to Sublessee based upon any
representation or warranty made by the Landlord to Sublessor
under the Office Lease or based upon any act or omission of
the Landlord or the agents, employees or contractors of the
Landlord.
2.5. Sublessor's Representations and Warranties. Sublessor represents
and warrants to Sublessee as follows:
A. The Office Lease is in full force and effect; Sublessor is the
Tenant under the Office Lease; no default by Sublessor under
the Office Lease now exists; Sublessor has full right and
power to execute this Sublease and to lease the Subleased
Premises to Sublessee, subject only to the consent of the
Landlord under the Office Lease (to the extent required
therein); no agreement or understanding exists between the
Sublessor and the Landlord except as disclosed in this
Sublease; and the Office Lease has not been amended, modified,
supplemented or superseded in any manner except as disclosed
in this Sublease;
B. To the best of Sublessor's knowledge, there is no existing
default under the Office Lease on the part of the Landlord;
and
C. Sublessor agrees that, so long as Sublessee shall pay the rent
due under this Sublease and shall perform all other
obligations of Sublessee herein contained: (a) Sublessee shall
be entitled to the peaceful and quiet enjoyment of the
Subleased Premises from and against the claims of all persons
claiming under Sublessor, and Sublessor shall comply with its
obligations under this Sublease; and (b) Sublessor will not
amend, modify or supplement any of the terms and conditions of
the Office Lease in a manner that would adversely affect
Sublessee's use and occupancy of the Subleased Premises or
rights under this Sublease, without, in each instance,
obtaining Sublessee's prior written consent.
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2.6. Access. Sublessee shall have access to the Subleased Premises
twenty-four (24) hours per day, seven (7) days per week, subject to Sublessee's
compliance with Landlord's access and security policies and procedures in place
for the Office Premises, if any.
Sublessor may enter the Subleased Premises at reasonable times to
examine the Subleased Premises or to make any repairs or replacements Sublessor
may deem necessary to avert an emergency. Sublessor's entry to the Subleased
Premises shall be upon reasonable prior notice to Sublessee (except in cases of
emergency) and any work done in the Subleased Premises shall be performed in a
manner which minimizes interference with Sublessee's use and occupancy of the
Subleased Premises.
2.7. Use. Sublessee shall use the Subleased Premises for the uses
permitted by the terms and conditions of the Office Lease.
ARTICLE III: SUBLEASE TERM
3.1. Sublease Term. The term of this Sublease (the "Sublease Term")
shall commence as of the Effective Date and continue thereafter through and
including the Expiration Date, unless extended or sooner terminated by the terms
of this Sublease.
3.2. Sublessee's Termination Option. Subject to the consent or approval
of Landlord (if and to the extent required under the terms of the Office Lease),
Sublessee may elect to terminate this Sublease at any time as to all or any
portion of the Subleased Premises by giving Sublessor written notice of such
election at least sixty (60) days before the effective date of such termination,
which termination date shall be specified in such notice. Such notice shall also
specify that portion of the Subleased Premises as to which Sublessee is
terminating this Sublease. Sublessee shall continue to be liable for all Base
Rent and Additional Rent payable under this Sublease up to the effective date of
termination. If Sublessee has exercised its right to terminate this Sublease
only with respect to a portion of the Subleased Premises, the Base Rent shall be
adjusted as of the termination date as provided in Section 4.1 below. This
Sublease shall terminate on the termination date specified in such notice with
respect to that portion of the Subleased Premises specified in such notice with
the same force and effect as if such date were the last day of the Sublease
Term. The term "Subleased Premises", as used hereunder, shall refer to the
Subleased Premises less any portion of the Subleased Premises as to which
Sublessee has effectively exercised a right of termination. In the event
Sublessee elects to terminate this Sublease with respect to a portion of the
Subleased Premises only, it is understood and agreed that the portion of the
Subleased Premises so terminated shall be separately demisable by Sublessor. In
the event that Sublessee exercises its termination option with respect to a
portion only of the Subleased Premises, Sublessor and Sublessee hereby agree
that they will cooperate in connection with any reconfiguration of the common
areas and elements of the Subleased Premises that such partial termination may
necessitate (subject to Section 5.1 hereof).
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3.3. Holdover. Sublessee covenants and agrees to vacate and surrender
the Subleased Premises (or any applicable portion thereof) to Sublessor, in
broom clean condition, free of personal property, furniture and fixtures, on or
before the expiration or the earlier termination of the term of this Sublease,
as the case may be. Any holdover by Sublessee following the expiration of the
term (or following the termination of this Sublease with respect to a portion of
the Subleased Premises as herein provided) shall, at Sublessor's option, be
treated as a tenancy at sufferance at a daily rate equal to one and one-half
times the Base Rent payable by Sublessee immediately preceding such holdover and
shall otherwise be on the terms and conditions of this Sublease so far as the
same may be applicable. Sublessee hereby agrees to indemnify and hold Sublessor
harmless from and against any loss, cost or expense incurred by Sublessor as the
result of any holdover by Sublessee.
ARTICLE IV: PAYMENT OF RENT
4.1. Rent. Commencing as of the Effective Date and continuing
thereafter through and including the Expiration Date (or the date this Sublease
is earlier terminated), Sublessee shall pay Sublessor, in advance on or before
the first (1st) day of each calendar month, without deduction, setoff or defense
except as otherwise provided herein or in the Office Lease, the Base Rent
payable for that month.
If Sublessee exercises its termination right with respect to a portion
of the Subleased Premises, the Base Rent as set forth above will be recalculated
as of the effective termination date based on (i) the rentable square footage of
the portion of the Subleased Premises as to which Sublessee is not terminating
this Sublease, and (ii) the total rentable square footage of the Subleased
Premises immediately prior to such termination.
4.2. Sublessee's Payment Increases Pro-Rata Share of Base Year
Expenses. Commencing as of (i) January 1, 2001, with respect to Operating
Expenses and Additional Expenses, and (ii) July 1, 2000, with respect to Taxes,
and continuing thereafter throughout the Sublease Term, Sublessee shall pay to
Sublessor Sublessee's Pro-Rata Share (as such term is hereinafter defined) of
all increases in the total amount of (a) Operating Expenses payable by Sublessor
to Landlord over the comparable charges payable by Sublessor for calendar year
2000, (b) Taxes payable by Sublessor to Landlord over the comparable charges
payable by Sublessor for fiscal year 2000 (i.e. July 1, 1999 to June 30, 2000),
and (c) Additional Expenses over the comparable costs payable by Sublessor with
respect to calendar year 2000. All payments made by Sublessee of Operating
Expenses, Taxes or Additional Expenses hereunder shall hereinafter sometimes be
referred to collectively as "Additional Rent".
Sublessee's Pro-Rata Share as set forth above shall equal the ratio of
the rentable square footage of the portion of the Subleased Premises that
Sublessee is occupying as of the Effective Date to the total rentable square
footage of the Office Premises. If Sublessee exercises its termination right
with respect to a portion of the Subleased Premises, Sublessee's Pro-Rata Share
shall be recalculated as of the effective termination date based upon (i) the
rentable square footage of the portion of the Subleased Premises as to which
Sublessee is not terminating this Sublease, and (ii) the total rentable square
footage of the Subleased Premises immediately prior to such termination.
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Such amounts shall be paid by Sublessee to Sublessor within fifteen
(15) days after notice from Sublessor that such amounts are due; provided,
however, Sublessee shall make monthly payments of such charges (as reasonably
estimated by Sublessor) if such monthly payments are required to be made by
Sublessor pursuant to the Office Lease.
Sublessee shall be entitled to Sublessee's Pro-Rata Share of any and
all refunds of overpayments of Operating Expenses, Additional Expenses and Taxes
paid or credited to Sublessor by Landlord to the extent that such refunded or
credited amounts relate to amounts paid by Sublessee to Sublessor hereunder.
Sublessor shall account to Sublessee at least annually as to Sublessor's actual
payments to Landlord for and with respect to Operating Expenses, Additional
Expenses and Taxes, and shall promptly reimburse or credit Sublessee for any
overpayment made by Sublessee of such amounts. Sublessor shall promptly pay such
amounts to Sublessee or credit such amounts against the next monthly installment
of Base Rent due from Sublessee to Sublessor under this Sublease. Sublessor
shall promptly supply to Sublessee copies of all notices, supporting
documentation and other materials received from Landlord which pertain to
Operating Expenses, Additional Expenses or Taxes, or to increases in such
charges.
4.3. Other Amounts. Sublessee shall be responsible for and shall
promptly and timely pay all separately metered and directly billed utility costs
and expenses pertaining to extraordinary utility requirements of Sublessee for
portions of the Subleased Premises (e.g., a data room). To the extent any such
extraordinary utility costs and expenses cannot be separately metered, Sublessee
shall pay its reasonable allocable share of such charges based upon the rentable
square footage of that portion of the Subleased Premises subject to such
extraordinary usage (taking into account any extraordinary usage by Sublessor).
Sublessee shall be responsible for and shall promptly and timely pay
all taxes and other assessments levied or assessed directly against it or its
personal property located at the Subleased Premises directly to the taxing
authority.
ARTICLE V: IMPROVEMENTS; REPAIR AND MAINTENANCE
5.1. Improvements to Office Premises. Sublessee hereby acknowledges and
warrants to Sublessor that it has had the opportunity to inspect and familiarize
itself with the Subleased Premises and has done so. Sublessee hereby accepts the
Subleased Premises in its current "AS IS, WHERE IS" condition, without any
obligation on the part of Sublessor to prepare or construct the Subleased
Premises for Sublessee's occupancy, except as otherwise provided herein.
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In the event that Sublessee exercises its termination option with
respect to a portion of the Subleased Premises, any demising walls, alterations
and improvements necessary to reconfigure the premises for occupancy by
Sublessor or by another occupant or tenant shall be constructed by Sublessor.
Sublessee shall cooperate with Sublessor as necessary in connection with the
construction of any such demising walls, alterations or improvements. Within
thirty (30) days of receipt by Sublessee of a xxxx therefor (accompanied by
reasonably detailed supporting documentation), Sublessee shall pay to Sublessor
the actual, out-of-pocket costs incurred by Sublessor in constructing demising
walls between that portion of the Subleased Premises surrendered by Sublessee
and the remainder of the Subleased Premises. Sublessee shall not be liable for
any incremental costs incurred by Sublessor in constructing any other
improvements, additions or alterations to such surrendered space. Sublessor
shall obtain the Landlord's consent or approval, to the extent that such consent
or approval is required under the Office Lease, to the construction of any such
demising walls, alterations or improvements.
Any work performed by either Sublessor or Sublessee pursuant to this
Sublease shall be done in a good and workmanlike manner and in compliance with
all applicable laws and all lawful ordinances, regulations and orders of
governmental authority and insurers of the Office Premises and the Building and
in accordance with all applicable requirements of the Office Lease.
Sublessee agrees to pay promptly when due the entire cost of any work
done at or on the Subleased Premises by Sublessee or its agents, employees or
contractors, and not to cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to the Office Premises
or the Building, and immediately to discharge any such liens which may so
attach.
5.2. Repair and Maintenance of the Subleased Premises. Sublessee shall
be responsible for the maintenance and repair of the interior, non-structural
elements of the Subleased Premises, including, without limitation, interior
doors, interior security and any subsystems installed by Sublessee for its use.
Sublessee shall submeter all data rooms.
It is understood that the Landlord has certain obligations to make
repairs to the Office Premises as set forth in the Office Lease. Sublessor shall
have no obligation or liability to Sublessee in the event that the Landlord does
not make such repairs except that Sublessor shall request that the Landlord make
any such repairs and shall use commercially reasonable efforts to enforce any
applicable provisions of the Office Lease with respect to such repairs.
Sublessee agrees that it will keep the Subleased Premises neat and clean and
maintain the Subleased Premises in good order, condition and repair excepting
only for ordinary wear and tear, those repairs for which the Landlord is
responsible under the terms of the Office Lease and damage by fire and other
casualty and as a consequence of the exercise of the power of eminent domain, or
where the need for the repairs is caused by any act or neglect of Sublessor or
any contractor of Sublessor; and Sublessee shall surrender the Subleased
Premises (or any applicable portion thereof) and all alterations, improvements,
and additions thereto at the end of the Sublease Term in such condition.
Sublessee shall not permit or commit any waste, and Sublessee shall be
responsible for the cost of repairs which may be necessary by reason of damages
to common areas in the Office Premises and the Building caused by Sublessee or
Sublessee's agents, employees and contractors.
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{THIS PARAGRAPH WILL BE REVISED TO ACCOUNT FOR PARTICULAR LEASES WHICH IMPOSE
SPECIFIC REPAIR AND MAINTENANCE OBLIGATIONS ON TENANT}
5.3. Signage. Subject to the written consent of Sublessor, which
consent shall not be unreasonably withheld, conditioned or delayed (and the
consent or approval of Landlord, if and to the extent required under the Office
Lease), Sublessee shall have the right to affix signs to the interior or
exterior of the Subleased Premises, provided that such signs comply with all
applicable requirements of the Office Lease.
ARTICLE VI: DEFAULT
6.1. Default. It is agreed that the relationship between, and the
rights of, Sublessor and Sublessee shall, with respect to enforcement of the
provisions of this Sublease and default hereunder and the termination hereof, be
governed by the applicable default and remedies provisions of the Office Lease
as if Sublessor and Sublessee were Landlord and Tenant, thereunder,
respectively, except as modified by the immediately succeeding sentence. The
parties acknowledge that an action required and not taken by Sublessee under
this Sublease may place Sublessor in default of its obligations under the Office
Lease. Therefore, the parties hereby agree that, as between Sublessor and
Sublessee, the period afforded Sublessor under the Office Lease to cure a
monetary default shall be reduced by three (3) days, and the cure period for
non-monetary defaults shall be reduced by five (5) days.
Furthermore, to the extent that the Office Lease requires notice to be
given by Landlord to Tenant, Sublessee agrees that Sublessor shall transmit such
notice to Sublessee as soon as such notice is received by Sublessor. Further,
whenever Tenant has an obligation to perform any act or to give any notice to
Landlord under the Office Lease and such obligation is assumed by Sublessee
under this Sublease, then Sublessee shall perform such act or give such notice
at least three (3) days before the due date.
6.2. Indemnity. Each of Sublessor and Sublessee agrees to indemnify,
defend and hold harmless the other party from and against any and all
liabilities, damages, losses, costs, assessments, penalties, fines, expenses and
fees, including reasonable attorney's fees, resulting from such party's breach
of any of its obligations under the Office Lease or under this Sublease.
6.3. Attorneys' Fees. In the event of any litigation between the
parties hereto with respect to the subject matter hereof, the unsuccessful party
or parties agree(s) to pay to the successful party or parties all reasonable
costs, expenses, expert witness fees and costs and reasonable attorneys' fees
incurred therein by the successful party or parties, which shall be included as
a part of any judgment or order rendered therein.
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ARTICLE VII: ASSIGNMENT AND SUBLETTING
7.1. Assignment and Subletting. Except as otherwise provided herein,
Sublessee may not assign this Sublease or sublease the Subleased Premises or any
part thereof without the prior written consent of Sublessor, which consent may
be granted or withheld in Sublessor's sole discretion (subject, in any event, to
any approval or consent of Landlord required under the Office Lease). No
permitted assignment or sublease shall release Sublessee of any liability under
this Sublease and the consent of Sublessor to any one assignment or subletting
shall not be deemed to be Sublessor's consent to any other or further assignment
or subletting.
Subject to any required consent or approval of the Landlord under the
Office Lease, the Sublessor agrees that the Sublessee shall have the right
(without the requirement of obtaining the Sublessor's consent or approval) to
assign its interest under this Sublease, sublease all or any portion of the
Subleased Premises, or permit the use of any portion of the Subleased Premises,
by any entity controlling, controlled by, or under common control with, the
Sublessee. Furthermore, Sublessee may, without the Sublessor's consent or
approval, transfer its interest in this Sublease to the surviving entity in the
event of merger, consolidation by or with Sublessee, or to the purchaser of all
or substantially all of the assets or stock of Sublessee (or its parent). In no
event shall the initial offering of stock to the public by Sublessee or its
parent (or the subsequent sale of such stock) be deemed an assignment or
transfer by Sublessee.
ARTICLE VIII: INSURANCE
8.1. Insurance. Sublessee shall obtain and maintain all insurance
required to be carried by Sublessor pursuant to the Office Lease to the extent
such requirements are applicable to the Subleased Premises. All liability
insurance policies so required to be carried by Sublessee shall name Landlord
and Sublessor as additional insureds thereunder. Sublessee shall provide
Sublessor with insurance certificates evidencing the required insurance coverage
upon the execution hereof and from time to time thereafter as reasonably
requested by Sublessor. Sublessor shall obtain and maintain all insurance it is
required to obtain and maintain under the Office Lease, and shall name Sublessee
as an additional insured on all liability policies so required to be carried by
it. Sublessor shall provide Sublessee with certificates evidencing such required
insurance coverage from time to time as reasonably requested by Sublessee.
Sublessee and Sublessor shall each also maintain workers' compensation insurance
as required by law.
{THIS PROVISION SHALL BE MODIFIED TO THE EXTENT THE OFFICE LEASE OBLIGATES
TENANT TO CARRY CASUALTY INSURANCE FOR THE BUILDING}
8.2. Waiver of Subrogation. Any insurance carried by either party with
respect to the Subleased Premises and property therein or occurrences thereon
shall include a clause or endorsement denying to the insurer rights of
subrogation against the other party to the extent rights have been waived by the
insured prior to occurrence of injury of loss. Each party, notwithstanding any
provisions of this Sublease to the contrary, hereby waives any rights of
recovery against the other for injury or loss to property due to hazards covered
by insurance or hazards required to be covered by insurance hereunder or under
the Office Lease.
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ARTICLE IX: MISCELLANEOUS
9.1. Termination of Office Lease. Except where Sublessee attorns to
Landlord, any termination of the Office Lease shall terminate this Sublease.
Sublessee acknowledges and agrees that: (i) Sublessee will, at Landlord's
election, in the event the Office Lease is terminated for any reason, attorn
directly to Landlord on the terms set forth in this Sublease, and (ii) Sublessee
shall, upon receipt of written notice from Landlord stating that an Event of
Default (as defined in the Office Lease) has occurred and requiring Sublessee to
pay the rent to Landlord, pay to Landlord the rent due and payable under this
Sublease so long as Sublessee's occupancy is not disturbed. If Landlord so
directs Sublessee, Sublessor hereby consents to the payment by Sublessee of the
rent due under this Sublease directly to Landlord, and Sublessor agrees that all
amounts so paid by Sublessee to Landlord shall be credited to amounts due under
this Sublease. Sublessor shall notify Sublessee of a default under the Office
Lease by Landlord (where a notice of default is given by Sublessor to Landlord)
or by Sublessor (where Landlord gives notice of such default to Sublessor).
9.2. Separation; Confidentiality. Each of the parties hereto
acknowledges that the employees and guests of the other party have the right to
use in common with the employees and guests of such party certain common areas
within the Office Premises and the Building, even though both parties expect to
maintain separate and private work places. Neither Sublessor nor Sublessee shall
have access to the other's private offices, secretarial work areas, file storage
areas or other areas where files or documents of each party are stored or
utilized, and each of Sublessor and Sublessee shall avoid viewing the files or
documents of the other party when using the common areas of the Subleased
Premises. Each party hereto agrees that in the event it obtains possession of or
becomes aware of any papers, documents, files or other information involving the
other party's business, employees, or clients, such party shall promptly return
any such papers, documents or files, shall keep all such information
confidential, and shall not disclose any of such information to any third
parties without the prior written consent of the other party.
9.3. Notice. Except as otherwise provided in this Sublease, notices
required or desired to be given hereunder shall be effective either upon
personal delivery or three (3) business days after deposit in the United States
mail, by certified mail, return receipt requested or one (1) business day after
deposit with a nationally recognized overnight courier service such as Federal
Express, addressed to the parties at their respective addresses set forth in
Article I of this Sublease as Sublessor's Notice Address and Sublessee's Notice
Address. Either party may change its address for notice by giving written notice
in the manner hereinabove provided.
9.4. Construction. This Sublease shall be construed in accordance with
the laws of the State in which the Building is located.
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9.5. General. This Sublease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
subject at all times, to all agreements and restrictions contained in the Office
Lease (except such agreements and restrictions as are expressly excluded
herein).
No failure or delay by either of Sublessor or Sublessee to exercise any
right or power given to it or to insist upon strict compliance by the other
party with any obligation imposed on it hereunder, and no custom or practice of
either party hereto at variance with the terms hereof shall constitute a waiver
or modification of the terms hereof by such party or any right it has herein to
demand strict compliance with the terms hereof by the other party.
The agreements contained herein constitute the entire understanding
between the parties with respect to the subject hereof, and supersede all prior
agreements, written or oral, inconsistent herewith.
If any provision of this Sublease or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the
remainder of the Sublease and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall be enforced to
the fullest extent permitted by law.
The captions and headings contained herein are merely labels to aid in
locating sections and are not a substantive part of this Sublease nor shall they
be interpreted as such.
This Sublease may be amended only in writing, signed by all parties
hereto and consented to by Landlord (to the extent that such consent is required
under the Office Lease).
This Sublease may be executed in one or more counterparts and each
executed counterpart shall be considered an original.
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IN WITNESS WHEREOF, the following parties have executed this under seal
Sublease as of the date first written above.
SUBLESSOR:
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By:
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Name Typed:
--------------------------------
Title:
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SUBLESSEE:
--------------------------------------------
By:
----------------------------------------
Name Typed:
--------------------------------
Title:
-------------------------------------
13
EXHIBIT A
PLAN FOR SUBLEASED PREMISES
14
