EXHIBIT 10.9
SUBLEASE
This Building Sublease ("Sublease") is made this 24th day of September,
1999, by and between XXXXXXX.XXX INC., a corporation organized under the laws of
the State of Minnesota ("Sublessee"), and WAMNET INC., a corporation organized
under the laws of the State of Minnesota ("Sublessor").
RECITALS:
X. Xxxxxxx Development L.L.P. ("Prime Landlord") is the fee owner
of the land and improvements, consisting of approximately 44,977 square feet of
office and warehouse, commonly known as 0000 000xx Xxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx ("Premises").
B. Prime Landlord, as landlord, and Technology Marketing Group,
Inc. (now known as Globelle, Inc.), as tenant, have heretofore entered into that
certain Standard Commercial Lease dated July 11, 1995, as amended (the "Prime
Lease")
C. Globelle, Inc. has assigned all of its right, title and
interest in, the Prime Lease to 1250895 Ontario Limited, an Ontario corporation
("Ontario").
D. Pursuant to that certain Sublease dated September 24, 1997
(the "Ontario Sublease"), Ontario has sublet the Premises to Sublessor.
E. Sublessee desires to lease the Premises and Sublessor desires
to sublease the Premises to Sublessee, all on the terms and conditions hereafter
set forth.
NOW, THEREFORE, in consideration of the foregoing recitals incorporated
herein by this reference, and the mutual covenants and agreements hereinafter
set forth, the receipt and adequacy of which are acknowledged, the parties agree
as follows:
1. BASIC SUBLEASE PROVISIONS AND IDENTIFICATIONS OF EXHIBITS
1.01 BASIC SUBLEASE PROVISIONS:
A. SUBLEASED PREMISES ADDRESS:
0000 000xx Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
B. SUBLESSOR'S ADDRESS:
000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
C. SUBLESSEE'S ADDRESS:
0000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx 00000
D. EXECUTION DATE: September 24, 0000
X. XXXX: The period beginning on the Commencement Date and ending on the
Expiration Date (hereafter defined), subject to earlier cancellation or
termination as herein provided.
F. COMMENCEMENT DATE: The last to occur of (x) October 1, 1999, (y) the
date Prime Landlord and Prime Landlord's mortgagee approve the
Sublease, and (z) the date Ontario approves the Sublease.
G. EXPIRATION DATE: November 30, 2005, subject to earlier cancellation or
termination as herein provided.
H. SECURITY DEPOSIT: $76,835.70, subject to the provisions of Section
4.01.
I. EXHIBITS: The following Exhibits are attached hereto and incorporated
herein:
EXHIBIT A - Description of Subleased Premises
EXHIBIT B - Prime Lease
EXHIBIT C - Ontario Sublease
EXHIBIT D - Furniture, Fixtures and Equipment included in Sublease
Premises.
EXHIBIT E - Sublessee, Ontario and Prime Landlord Non-Disturbance
Agreement
2. SUBLEASED PREMISES AND TERM: PRIME LEASE
2.01 SUBLEASED PREMISES AND FURNITURE, FIXTURES AND EQUIPMENT LOCATED
THEREON:
A. Sublessor hereby leases to Sublessee and Sublessee hereby
leases from Sublessor approximately 41,699 square feet of office space and 3,278
square feet of warehouse space in a two (2) story building (sometimes referred
to herein as the ("Subleased Premises"), which Subleased Premises are described
in Exhibit "A" attached hereto, subject to all of the terms, covenants and
conditions contained herein in the Ontario Sublease and in the Prime Lease. The
leasable area of the Subleased Premises includes an allocation of the Common
Areas (as defined in the Prime Lease).
B. Sublessee acknowledges that it has thoroughly inspected the
Subleased Premises. The Subleased Premises are accepted by the Sublessee in an
AS IS, WHERE IS condition without any representations or warranties, whatsoever,
express or implied, except as specifically set forth herein, more particularly,
Sublessee expressly acknowledges that Sublessor has not made and will not make
any warranties to the Sublessee with respect to the quality of construction of
any leasehold improvements or finishes or as to the condition of the Subleased
Premises, whether express, statutorily implied or otherwise, and that Sublessor
expressly disclaims any implied warranty that the Subleased Premises are or will
be suitable for Sublessee's use or intended commercial purposes. Sublessor shall
shampoo all carpets in the Subleased Premises prior to occupancy by Sublessee.
Sublessee shall have the right to take possession of the Subleased Premises upon
execution of this Sublease by all parties hereto. Any construction, alterations
or improvements made to the Subleased Premises by Sublessor shall be subject to
(i) the prior approval of Prime Landlord, Ontario and Sublessor including,
without
2
limitation, approval of the plan, specifications, contractors and subcontractors
therefor, (ii) all applicable terms and conditions of the Prime Lease relating
to construction, alterations or improvements of the Subleased Premises, and
(iii) such other reasonable requirements or conditions as Prime Landlord or
Ontario may impose.
C. The Subleased Premises shall include the furniture, fixtures
and equipment set forth in the schedule attached hereto as EXHIBIT "D" provided,
however, title to such furniture, fixtures and equipment shall remain in
Sublessor.
2.02 TERM:
A. The term of this Sublease ("Term") shall commence on the
Commencement Date as set forth in Section 1.01F.
B. The term shall end on the Expiration Date set forth in
Subsection 1.01G, unless sooner canceled or terminated as otherwise provided in
this Sublease.
C. Sublessee shall have the right to terminate the Term at
anytime after the end of the twenty-fourth (24th) full calendar month of the
Term by providing Sublessor at least six (6) months prior written notice of its
intent to so terminate this Sublease. In connection with such termination
Sublessee shall pay Sublessor a termination fee equivalent to the sum of one (1)
months gross rent, plus the aggregate of all unamortized transaction costs (not
to exceed $204,000.00), using straight-line amortization over the Term of this
Sublease, incurred by Sublessor in connection with this Sublease, including
without limitation reasonable attorney's fees and commissions paid to the real
estate brokers referred to in Section 17 below. Such fee shall be paid one-half
within five (5) days of giving notice to terminate and one-half on the
termination date.
2.03 RELATION TO PRIME LEASE.
Except to the extent hereinafter provided, this Sublease is subject
and, subordinate to all of the covenants, agreements, terms, provisions,
conditions and obligations of the Ontario Sublease and Prime Lease. Sublessee
agrees that all rights and privileges granted hereunder are subject to the
limitations imposed on the Sublessor by the Prime Lease, the Ontario Sublease,
and that, except as expressly provided herein, Sublessor is not granting any
rights or privileges to Sublessee that are not expressly granted to Sublessor
under the Prime Lease or Ontario Sublease. All of the covenants, agreements,
terms, provisions, conditions, obligations and rules and regulations of the
Prime Lease and Ontario Sublease are incorporated herein, with the same force
and effect as if they were fully set forth herein. Sublessee agrees to be bound
by and comply with the term of the Prime Lease and Ontario Sublease and to
perform Sublessor's obligations with respect to the Subleased Premises for the
benefit of Prime Landlord, Ontario and Sublessor, except that:
(x) Any reference in the Prime Lease to: (i) Landlord" shall mean
Prime Landlord; (ii) "Tenant" shall mean Sublessee; and (iii)
"Premises" shall mean Subleased Premises.
3
(y) Any reference in the Ontario Sublease to: (i) "Sublessor"
shall mean Ontario; (ii) "Sublessee" shall mean Sublessee
hereunder; and (iii) "Subleased Premises" shall mean the
Subleased Premises hereunder.
(z) In all, instances where consent or approval of the Prime
Landlord or Ontario is required pursuant to the Prime Lease or
Ontario Sublease, as applicable, the consent or approval of
each of Prime Landlord, Ontario and Sublessor shall be
required hereunder and Sublessor agrees to send to Prime
Landlord and Ontario, at Sublessee's expense, copies of
Sublessee's written request for any consents required. In the
event Sublessor does not notify Sublessee of any objections to
a request for Sublessor's consent within ten (10) business
days of Sublessor's receipt of such request, such request
shall be deemed approved by Sublessor.
Not withstanding any other provision of this Sublease to the contrary, Sublessee
shall not be responsible for compliance with the terms and conditions of the
Prime Lease or the Ontario Sublease in connection with matters or items of
non-compliance that occurred or came into existence prior to the Term hereof;
provided that Sublessor shall not be responsible for that portion of the cost of
curing such pre-existing non-compliance to the extent that the non-compliance is
aggravated and/or the cost of such cure is increased by the acts of Sublessee
during the Term, or Sublessee's failure to notify Sublessor of such pre-existing
non-compliance promptly upon Sublessee becoming aware of the same. The Prime
Lease is attached hereto as EXHIBIT "B". The Ontario Sublease is attached hereto
as EXHIBIT "C". Each party agrees that it will not, by its act or omission to
act cause a default under the Prime Lease or Ontario Sublease. In furtherance of
the foregoing, Sublessor and Sublessee hereby confirm, each to the other, that
it is not practical in this Sublease to enumerate all of the rights and
obligations of the various parties under the Prime Lease and Ontario Sublease
and specifically to allocate those rights and obligations in this Sublease.
Accordingly, in order to afford to Sublessee the benefits of this Sublease and
of those provisions of the Prime Lease and Ontario Sublease which by their
nature are intended to benefit the party in possession of the Subleased
Promises, and in order to protect Sublessor against a default by Sublessee which
might cause a default or event of default by Sublessor under the Prime Lease or
Ontario Sublease:
A. Subject to the provisions of Section 3.03 herein, without
limiting the obligations of Sublessor under the Prime Lease or Ontario Sublease,
as between Sublessor and Sublessee, Sublessor shall pay, when and as due, all
Base Rent Additional Rent and other charges payable to Prime Landlord or Ontario
under the Prime Lease or Ontario Sublease provided Sublessee shall timely pay
all rent when and as due under this Sublease.
B. Sublessee shall perform and observe all terms, affirmative
covenants and conditions and shall refrain from performing any art which is
prohibited by the negative covenants of the Prime Lease or Ontario Sublease,
where the obligation to perform, observe or refrain from performing is by its
nature imposed upon the party in possession of the Premises and all such
affirmative covenants and negative covenants shall be deemed incorporated herein
and shall be performed or observed for the benefit of Sublessor as though
Sublessor were the landlord thereunder. If practicable, Sublessee shall perform
affirmative covenants which are also covenants of Sublessor under the Prime
Lease or Ontario Sublease at least five (5) days prior to the date when
Sublessor's performance is required under the Prime Lease and Ontario Sublease
4
and shall indemnify Sublessor and Guarantor (as defined in the Prime Lease)
against all claims, liabilities, demands, losses, actions, causes of action,
damages, costs and expenses (including reasonable attorneys' fees) arising out
of Sublessee's failure to perform or observe any such terms, covenants or
conditions, subject however to all the express terms and conditions of this
Sublease. Sublessor shall have the right after notice and failure to cure by
Sublessee (except in events of emergency), but not the obligation to enter the
Subleased Premises to cure any defense by Sublessee under this Sublease.
C. Provided Sublessee is not in default hereunder, Sublessor
shall not agree or consent to an amendment to the Prime Lease or Ontario
Sublease, without prior written consent of Sublessee, such consent shall not be
unreasonably withheld, conditioned or delayed. However, if Sublessee has
defaulted tinder this Sublease, for as long as such default remains uncured,
Sublessor shall not agree or consent to an amendment to the Prime Lease or
Ontario Sublease, without first notifying Sublessee of the proposed amendment.
D. Sublessor shall not be required to make any improvements,
replacements or repairs of any kind or character to the Subleased Premises.
Sublessor hereby grants to Sublessee the right to receive all of the services
and benefits with respect to the Subleased Premises which are to be provided by
Prime Landlord and/or Ontario under the Prime Lease and Ontario Sublease,
respectively; provided, however, Sublessor shall have no duty to perform any
terms, covenants, conditions to be performed or observed by the Prime Landlord
and/or Ontario under the Prime Lease and Ontario Sublease, respectively. For
example, and without limitation, Sublessor shall not be required to provide the
services or repairs which the Prime Landlord and/or Ontario is required to
provide under the Prime Lease and Ontario Sublease, respectively, Sublessor
shall have no responsibility for or be liable to Sublessee for any default,
failure or delay on the part of Prime Landlord and/or Ontario in the performance
or observance by Prime Landlord and/or Ontario of any of the terms, covenants
and conditions under the Prime Lease or Ontario Sublease, respectively, nor
shall such default by Prime Landlord and/or Ontario affect this Sublease or
waive or defer the performance of any of Sublessee's obligations hereunder
except to -the extent that such default by Prime Landlord and/or Ontario excuses
performance by Sublessor under the Prime Lease or Ontario Sublease,
respectively. Notwithstanding the foregoing, the parties contemplate that Prime
Landlord and/or Ontario shall, in fact, perform and observe its obligations
under the Prime Lease or Ontario Sublease, respectively, and in The event of any
default or failure of such performance by Prime Landlord and/or Ontario,
Sublessor agrees that it will, upon notice from Sublessee, make demand upon
Prime Landlord and/or Ontario to perform its obligations under the Prime Lease
or Ontario Sublease, respectively, and, provided that Sublessee specifically
agrees to pay all reasonable costs and expenses of Sublessor and provides
Sublessor with security reasonably satisfactory to Sublessor to pay such costs
and expenses, Sublessor will take appropriate legal action to enforce the
Ontario Sublease and/or the Prime Lease. In addition to the foregoing rights,
Sublessee shall also have the right to enforce any other rights or remedies
which Sublessor, as tenant of the Premises, may have under the Prime Lease or
the Ontario Sublease.
E. Nothing contained in this Sublease shall be construed to
create a privity of estate of coat-act between Sublessee, Ontario or Prime
Landlord except as may be created pursuant to EXHIBIT E.
5
F. Notwithstanding anything contained herein to the contrary,
Sublessee and Sublessor hereby acknowledge that the terms and provisions of this
Sublease are specifically contingent upon the delivery to Sublessee and
Sublessor of a fully executed agreement by and between Sublessee, Ontario and
Prime Landlord in the same form attached hereto as EXHIBIT "E".
G. Without limiting its obligations hereunder, Sublessee hereby
acknowledges Prime Landlord's rights as set forth in Sections 10.1, 12.1, 13.3
and 14.10 of the Prime Lease, subject to the limitation placed upon such rights
pursuant to EXHIBIT E.
H. The provisions of Section3.3 of the Prime Lease
notwithstanding, as between Sublessor and Sublessee, Sublessee shall be required
to comply, at Sublessee's expense, with all laws, ordinances, orders rules and
regulations of state, federal, municipal or other agencies or bodies
(collectively, "Rules") only as the same are applicable to Sublessee's
activities at the Premises. However, the foregoing sentence shall not reduce or
restrict Sublessee's obligations to maintain the Subleased Premises.
3. RENT
3.01 BASE RENT. Sublessee shall pay Sublessor the Base Rent payable
in equal monthly installments, sot forth below on or before the first day of
each calendar-month during the Term, except that Base Rent for the first full
and any initial partial calendar month shall be paid when Sublessee executes
this Sublease.
LEASE YEAR ANNUAL RATE MONTHLY INSTALLMENT
Commencement Date Four Hundred Sixty-One $38,417.85
Expiration Date Thousand Fourteen and 25/100
Dollars ($461,014.25)
Any increase in base rent due under the Prime Lease or Ontario Sublease shall
not affect the Base Rent due under this Sublease.
Except as provided in Section 3.03 herein, Sublessee shall pay all Rent, and
forward all insurance certificates to Sublessor at the address set forth in
Section 1.01B, or such other address or to such other entity as Sublessor shall
designate from time to time in writing.
3.02 ADDITIONAL RENT. If and to the extent that Sublessor is
obligated to pay Additional, Rent under the Prime Lease or Ontario Sublease,
Sublessee shall, effective as of the Commencement Date, pay to Sublessor such
Additional Rent )to the extent such Additional Rent is attributable to events
occurring during the Term of this Sublease). Such payment shall be due from
Sublessee to Sublessor at least five (5) days prior to the date upon which
Sublessor's payment of such Additional Rent is due to the Prime Landlord or
Ontario, provided that Sublessee shall have been billed therefor at least ten
(10) days prior to such due date (which xxxx shall be accompanied by a copy of
Prime Landlord's or Ontario's xxxx and other material furnished to Sublessor in
connection wherewith). If any such payments are estimated and paid monthly by
Sublessor under the Prime Lease or Ontario Sublease, Sublessee shall pay its
share of the estimated monthly payments on the first (1st) day of every month in
which a payment is due by Sublessor under the Prime Lease or Ontario Sublease.
As of the date hereof, Sublessee's
6
share of such expenses is 100%, subject to adjustment as provided in Section 1.8
and 2.2 of the Prime Lease.
Section 2.2 of the Prime Lease provides for an adjustment of the
monthly operating Expenses actually paid by Prime Landlord during said yen with
Sublessor's pro rata share of operating expenses actually paid with respect to
such year. To the extent Prime Landlord or Ontario pays Sublessor any
overpayment of operating expenses, Sublessor shall remit to Sublessee,
Sublessee's pro rata share (based upon the portion of the applicable calendar
year that falls within the Term) of such overpayment. Likewise, to the extent
Sublessor is obligated to pay any deficiency in the payment of Sublessor's pro
rata share of operating expenses, Sublessee shall, within five (5) days after
written demand therefor by Sublessor, pay to Sublessor Sublessee's pro rata
share (based upon the portion of the applicable calendar year that falls within
the Term) of such deficiency.
3.03 SUBLESSEE'S PAYMENT OF RENT DIRECTLY TO PRIME LANDLORD. If
Sublessor fails to substantially perform Sublessor's obligations under this
sublease or the Ontario Sublease, and such failure remains uncured after the
expiration of (i) any applicable cure period specified in the applicable
sublease; or (ii) a reasonable period of time in which to cure the failure under
the circumstances if no specific period is set forth in the applicable sublease,
Sublessee at all times thereafter Shall make payments of Base Rent and
Additional Rent due under this Sublease directly to Prime Landlord at Prime
Landlord's address set forth in the Prime Lease. Such direct payments by
Sublessee shall be credited toward Base Rent and Additional Rent due hereunder.
4. SECURITY DEPOSIT
4.01 SECURITY DEPOSIT. The Sublessee has delivered to Sublessor a
security deposit in the, amount of $76,835.70 as a security deposit for the full
and faithful Performance Of each and every provision of this Sublease to be
performed by Sublessee, on the understanding that (a) the Security Deposit or
any portion thereof not previously applied or from time to time, such one or
more portions thereof, may be applied to cure any default that may then exist,
without prejudice to any other remedy or remedies which Sublessor may have on
account thereof and upon such application Sublessee Shall pay Sublessor on
demand the amount so applied which shall be added to the Security Deposit so the
same may be restored to its original amount; (b) should the Ontario Sublease be
assigned by Sublessor, the Security Deposit or any portion thereof not
previously applied may be paid to the Sublessor's assignee and if the same is
paid as aforesaid, Sublessee hereby releases Sublessor from any and all
liability with respect to the Security Deposit and/or its application or return;
(c) if permitted by law, Sublessor or its successor shall not be obligated to
hold the Security Deposit as a separate fund, but on the contrary may commingle
the same with its other funds; (d) if Sublessee shall faithfully perform and
observe all of the terms, covenants, and conditions in this Sublease, the
Ontario Sublease and in the Prime Lease to be fulfilled, kept, performed and
observed by Sublessee, the sum deposited or the portion thereof not previously
applied, shall be returned to Sublessee without interest no later than thirty
(30) days after the expiration of the Term of this Sublease or any renewal or
extension thereof, provided Sublessee has vacated the Subleased Premises and
surrendered possession thereof to Sublessor at the expiration of the Term or any
extension or renewal thereof as provided herein; (e) in the event that Sublessor
terminates this Sublease or Sublessee's right to
7
possession by reason of a Default by Sublessee, Sublessor may apply the Security
Deposit against damages suffered to the date of such termination and/or may
retain the Security Deposit to apply against such damages as may be suffered or
shall accrue thereafter by reason of Sublessee's default; (f) in the event any
bankruptcy, insolvency, reorganization or other creditor-debtor proceedings
shall be instituted by or against Sublessee, or its successors or assigns, the
Security Deposit shall be deemed to be applied first to the payment of any rent
due for all periods prior to the institution of such proceedings, and the
balance, if any, of the Security Deposit may be retained or paid to Sublessor in
partial liquidation of Sublessor's damages,
5. SUBLESSEE'S USE.
5.01 USE OF THE SUBLEASED PREMISES. Sublessee shall occupy and use
the Subleased Premises only for warehouse and office uses. Sublessee's use of
the Subleased Premises shall comply in all respects with Section 3.1 of the
Prime Lease.
5.02 PERMITS/CERTIFICATE OF OCCUPANCY. If any governmental license
or permit shall be required for the proper and lawful conduct of Sublessee's
business in or occupancy of the Subleased Premises, then Sublessee, at its sole
cost and expense, shall procure, and thereafter maintain such license(s) or
permit(s) and submit the same to Sublessor for inspection. Sublessee shall also
be responsible for obtaining the certificate of occupancy, if any, is required,
or desired by Sublessee, for the Subleased Premises. Sublessee shall comply with
the terms and conditions of each such license or permit
6. RIGHTS OF QUIET ENJOYMENT. If the Sublessee pays the rent and other sum
herein provided, and observes and performs all the terms, covenants and
conditions on the Sublessee's part to be observed and performed, Sublessee's
right of quiet enjoyment of the Subleased Premises, subject to the terms,
covenants and conditions of this Lease, shall not be disturbed by Sublessor or
those claiming through Sublessor.
7. LATE PAYMENT CHARGE. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment or any other payment due from the
Sublessee to Sublessor is not received by the Sublessor on or before the fifth
(5th) day of the month for which rent or such other payments are due, a late
payment charge of five percent (5%) of such past due amount shall become due and
payable in addition to such amounts owed under the Sublease.
8. ASSIGNMENT AND SUBLETTING.
8.01 TRANSFER BY SUBLESSEE. Sublessee shall not sublease, assign,
pledge, mortgage, hypothecate, grant licenses or concessions or otherwise
transfer or permit the transfer of Sublessee's interest in this Sublease or the
Subleased Premises, in whole or in part, by operation of law or otherwise
(including without limitation by transfer of a majority interest of stock,
merger, or dissolution, which transfer of majority interest of stock, merger or
dissolution shall be deemed an assignment) without the prior written consent of
Sublessor, Ontario and Prime Landlord, which consents may be withheld or granted
on the same conditions as are applicable under the Prime Lease or Ontario
Sublease with respect to assignments and other transfers. Sublessor shall not
unreasonably withhold such consent. Any assignee or Sublessee of
8
Sublessee, or any further assignment or sublease of the Subleased Premises shall
be subject to the same terms and provisions set forth in this Section 8.01
8.02 TRANSFER BY SUBLESSOR. Sublessor may, subject to the Prime
Lease and Ontario Sublease, assign, transfer, pledge, mortgage, hypothecate or
otherwise transfer its interest in this Sublease without consent of Sublessee,
provided, Sublessor shall not hereafter assign its interest under this Sublease
separate from its interest under the Ontario Sublease and any such assignee
shall assume Sublessor's obligations under this Sublease, including the return
of any security deposit Sublessor shall promptly notify Sublessee of (a) any
such transfer by Sublessor, and (b) the identity of the assignee.
9. INDEMNITY.
9.01 SUBLESSOR INDEMNITY. Sublessor agrees to indemnify, defend,
and hold harmless Sublessee and its agents and employees, against any and all
claims, liabilities', losses, actions, causes of action, judgments, awards,
demands, costs and expenses of every kind and nature (including reasonable
attorneys' fees and administrative costs), arising from (i) any injury or damage
to any person, property or business resulting from the negligence of Sublessor,
its employees, agents, contractors, subcontractors, servants, invitees,
licensees or Sublesees or (ii) the breach or violation by Sublessor of any
terra, covenant or condition of this sublease, the Ontario Sublease or the Prime
Lease (whether before, during or after the term of this Sublease) or (iii) any
other occurrence on the Premises prior to the Term; provided, however, that
Sublessor's obligations under this Section shall not apply to injury or damage
resulting from the negligence of Sublessee or its agents or employees, the
failure of Sublessee to perform its obligations hereunder or under the Ontario
Sublease or the Prime Lease, or for which Sublessee has insurance. If any such
proceeding is brought against Sublessee or its agents or employees, Sublessor
covenant to defend such proceeding at its sole cost by legal counsel reasonably
satisfactory to Sublessee. Sublessor may satisfy its obligations under this
Section from available insurance coverage.
9.02 SUBLESSEE INDEMNITY. Sublessee agrees to indemnify, defend,
and hold harmless Sublessor, Guarantor and their respective agents and
employees, against any and all claims, liabilities, losses, actions, causes of
action, judgments, awards, demands, costs and expenses of every kind and nature
(including attorneys' fees and administrative costs), including, without
limitation arising from (i) any injury or damage to any person or property
resulting from the negligence of Sublessee, its employees, agents, or
conditions; or (ii) the breach or violation by Sublessee of any term, covenant
or condition of this Sublease, the Ontario Sublease or the Prime Lease;
provided, Sublessee's obligations under this Section shall not apply to injury
or damage resulting from the negligence of Sublessor, its agents and employees,
or the failure of Sublessor to perform its obligations hereunder or under the
Prime Lease or the Ontario Sublease for which Sublessor has insurance coverage.
If any such proceeding is brought against Sublessor or its agents or employees,
Sublessee covenants to defend such proceeding at its sole cost by legal counsel
reasonably satisfactory to Sublessor. Sublessee may satisfy its obligations
under the Section from available insurance coverage.
9
10. DEFAULT.
10.01 EVENTS OF DEFAULT.
(1) If a party fails to make any payment required when due
hereunder, and such failure continues for five (5) business days after written
demand for payment of such payment or
(2) If a party fails in the prompt and full performance of any
other provisions of this Sublease (including, without limitation, the terms of
the Prime Lease or the Ontario Sublease which have been incorporated herein)
other than the nonpayment of rent or other payments due under this Sublease, and
does not xxxx such failure within ten (10) days after- written demand from the
other party that the failure be cured (unless the failure involves a hazardous
condition, which shall be cured forthwith or as quickly as reasonably possible);
or
(3) Sublessee shall, by its act or omission to act, cause a
default under the Prime Lease or Ontario Sublease and such default is not cured
within the time, if any, permitted for such cure under the Prime Lease or
Ontario Sublease, respectively,
(4) Sublessee shall file a petition or, if an involuntary petition
is filed against Sublessee, or becomes insolvent, under any applicable federal
or state bankruptcy or insolvency law or admits that it cannot meet its
financial obligations, or a receiver or trustee shall be appointed for the
benefit of creditors; or
(5) Sublessee shall do or permit to be done any act which results
in a lien being filed against the Subleased Premises.
In the event that an order for relief is entered in any case under
Title 11, U.S.C. (the "Bankruptcy Code") in which the Sublessee is the debtor
and: (A) Sublessee as debtor in possession, or any trustee who may be appointed
in the case (the "Trustee") seeks to assign the Sublease, then Sublessee, or
Trustee, if applicable, in addition to providing adequate assurance described in
applicable provisions of the Bankruptcy Code, shall provide adequate assurance
to Sublessor of Sublessee's future performance under the Sublease by depositing
with Sublessor a sum equal to the lesser of twenty-five percent (25%) of the
rental and other charges due for the balance of the Sublease term of six (6)
months' rent ("Security"), to be held (without an allowance for interest
thereon) to secure Sublessee's obligations under the Sublease, and (B)
Sublessor, or Trustee, if applicable seeks after assumption of the same, then
Sublessor, in addition to providing adequate assurance described in applicable
provisions of the Bankruptcy Code shall provide adequate assurance to Sublessor
of the proposed assignee's future performance under the Sublease by depositing
with Landlord a sum equal to the Security to be held (without any allowance or
interest thereon) to secure performance under the Lease by depositing with
Sublessor a sum equal to the Security to be held (without any allowance or
interest thereon) to secure performance under the Sublease. Nothing contained
herein expresses or implies, or shall be construed to express or imply, that
Sublessor is consenting to assumption and/or assignment of the Sublease. Neither
Sublessee nor any Trustee shall conduct or permit the conduct of any "lien,"
"bankruptcy," "going out of business" or auction sale in or from the Subleased
Premises.
10
Then, and in any such event (sometimes referred to as an "Event of
Default") such party ("Defaulting Party") shall be in default.
10.02 DEFAULT BY SUBLESSEE. Upon a default by Sublessee, Sublessor
may exercise any remedy against Sublessee which Prime Landlord or Ontario may
exercise in the event of a default by -Sublessor under the Prime Lease or
Ontario Sublease, respectively, including, without limitation, termination of
the Sublease and termination of Sublessee's right to possession of the Subleased
Premises.
10.03 DEFAULT OF SUBLESSOR. Upon a default by Sublessor, Sublessee
may exercise any remedy against Sublessor which Sublessor may exercise in the
event of a default by Prime Landlord or Ontario under the Prime Lease or Ontario
Sublease, respectively, provided however, so long as Sublessor is not in default
under the Prime Lease or Ontario, Sublease for a monetary amount in excess of
$5,000, Sublessee shall have no right to terminate this Sublease.
11. SURRENDER OF SUBLEASED PREMISES. Upon any expiration or termination of
this Sublease or termination of Sublessee's right of possession of the Subleased
Premises, or any part thereof, Sublessee shall surrender and vacate the
Subleased Premises immediately and surrender the Subleased Premises to
Sublessor, including the alterations, additions, improvements, equipment and
fixtures requested by Sublessor to remain on the Subleased Premises other than
Sublessee moveable trade fixtures, in as good condition and repair as exists on
the date hereof (reasonable wear and tear, casualty damage which is required to
be covered and/or Sublessors, Ontario's and/or Prime Landlord's casualty
insurance coverage, and casualty, condemnation excepted), shall remove all
alterations, additions, improvements and fixtures installed or made by Sublessee
and not requested by Sublessor to remain on the Subleased Premises and shall
repair all damage to the Subleased Premises caused such removal prior to the
Expiration Date. Any property not removed from the Subleased Premises upon
expiration or termination hereof shall, subject to the rights of Ontario or
Prime Landlord under the Ontario Sublease or Prime Lease, respectively, be
conclusively presumed to have been abandoned by Sublessee, and Sublessor,
Ontario or Prime Landlord may, at its option, retain, store and/or dispose of
such property at Sublessee's expense. All such property shall, at Sublessor's,
Ontario's or Prime Landlord's option, be conclusively deemed to have been
conveyed to Sublessor by Sublessee as if by xxxx of sale without payment by
Sublessor. Notwithstanding the forgoing, if Prime Landlord or Ontario require
the removal of any addition, or improvement installed or completed prior to the
date of this Sublease, Sublessor shall be solely responsible for such removal
and restoration.
12. UTILITIES. Sublessee shall obtain and pay for all utilities supplied to
the Subleased Premises. Sublessor warrants that electrical mechanical and
plumbing systems are in good working order.
13. INSURANCE. Sublessee shall procure and maintain., at its own cost and
expense, such insurance as is required to be carried by Sublessor under the
Ontario Sublease, naming Sublessor as an additional insured, as well as Ontario
and Prime Landlord, in the same manner required for naming Ontario and/or Prime
Landlord as required in the Ontario Sublease or Prime Lease. Sublessee shall
furnish Sublessor a certificate of Sublessee's insurance required hereunder not
later than Sublessee's taking possession of the Subleased Premises. Each party
hereby waives
11
claims against the other for property damage provided such waiver shall not
invalidate the waiving party's property insurance; each party shall attempt to
obtain from its insurance carrier a waiver of its right of subrogation.
Sublessee hereby waives claims against Prime Landlord, Ontario and Sublessor for
property damage to the Subleased Premises or its contents if and to the extent
that Sublessor waives such claims against Prime Landlord and/or Ontario under
the Prime Lease and/or Ontario Sublease. Sublessee agrees to obtain for the
benefit of Prime Landlord, Ontario and Sublessor, such waivers of subrogation
rights from its insurer as are required of Sublessor under the Prime Lease
and/or Ontario Sublease. Sublessor s to use reasonable efforts in good faith to
obtain from Prime Landlord and Ontario a waiver of subrogation rights in Prime
Landlord's and/or Ontario's property insurance if and to the extent that Prime
Landlord or Ontario waives such claims against Sublessor under the Prime Lease,
Ontario Sublease, or is required under the Prime Lease or Ontario Sublease to
obtain such waiver of subrogation rights.
14. HAZARDOUS MATERIALS.
14.01 REPRESENTATION BY SUBLESSOR. Sublessor represents that to the
best of Sublessor's knowledge there are no hazardous substances or hazardous, as
those terms are defined by the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. and the Resource
Conservation and Recovery Act, 42 U.S.C. Section 960, et seq., in, on, or about
the Subleased Premises in violation of federal, state or local environmental
laws. If subsequent to the date Sublessee accepts possession of the Subleased
Premises it is determined that there are any Hazardous Materials (as defined
below) in the Subleased Premises which were installed placed or located an the
Premises prior to the date of this Sublease and Sublessee is notified by
applicable federal state or local authority with jurisdiction over such matters
that such Hazardous Materials must be removed, encapsulated or otherwise treated
("Remediated") as between Sublessor and Sublessee, Sublessor, at Sublessor's
expense, shall as soon as practicable after notice thereof from Sublessee,
remediate, or cause such remediation of, said Hazardous Materials as Sublessor
deems necessary to comply with all applicable federal, state and local laws;
provided that Sublessor shall not be responsible for that portion of the cost of
such remediation to the extent that the contamination on the Premises is
aggravated and/or the cost of such remediation is increased by the acts of
Sublessee during the Term, or Sublessee's failure to: (a) notify Sublessor of
such contamination promptly upon Sublessee becoming aware to the same, or (b) in
an emergency take such immediate action as may be required by law. Such
Remediation shall be Sublessee's sole remedy on amount of such Hazardous
Materials.
14.02 REPRESENTATION BY SUBLESSEE. Sublessee shall not transport,
use, store, maintain, generate, manufacture, handle, dispose, release or
discharge any "Hazardous Material" (as defined below) upon or about the
Subleased Premises or permit Sublessee's employees, agents, contractors,
invitees and other occupants of the Subleased Premises to engage in such
activities upon or about the Subleased Premises. Sublessee shall promptly notify
Sublessor of (i) any enforcement, cleanup or other regulatory action taken or
threatened by any governmental or regulatory authority with respect to the
presence of any Hazardous Material on the Subleased Premises or the migration
thereof from or to other property, (ii) any demands or claims made or threatened
by any party relating to any loss or injury resulting from any Hazardous
Material on the Subleased Premises, (iii) any release, discharge or nonrouting,
improper or unlawful, disposal or transportation of any Hazardous Material on or
from the Subleased Premises or in violation of this Section, and (iv) any
matters where Sublessee is required by Law to give a notice to any
12
governmental or regulatory authority respecting any Hazardous Material on the
Subleased Premises. Sublessor and Prime Landlord shall have the right (but not
the obligation) to join and participate, as a party, in any legal proceedings or
actions affecting the Subleased Premises initiated in connection with any
environmental health or safety law. The term "Hazardous Material" for purposes
hereof shall mean any chemical, substance, material or waste or component
thereof which is now or hereafter listed, defined or regulated as a hazardous or
toxic chemical substance, material or waste or component thereof by any federal,
state or local governing or regulatory body having jurisdiction, or which would
trigger any employee or community "right-to-know" requirements adopted by any
such body, or for which any such body has adopted any requirements for the
preparation or distribution of a Material Safety Data Sheet.
14.03 USE OF HAZARDOUS MATERIAL. If any Hazardous Material is
released, discharged or disposed of by Sublessee or any other occupant of the
Subleased Premises, or their employees, agents or contractors, on or about the
Subleased Premises in violation of the foregoing provisions, Sublessee shall
immediately, properly and in compliance with applicable Laws clean up and remove
the Hazardous Material from the Subleased Premises and any other affected
property and clean or replace any affected personal property (whether or not
owned by Sublessor, Ontario or Prime Landlord), at Sublessee's expense (without
limiting Sublessor's other remedies therefor). Such clean up and removal work
shall be subject to Sublessor's, Ontario's and Prime Landlord's prior written
approval (except in emergencies), and shall include, without limitation, any
testing, investigation, and the preparation and implementation of any remedial
action plan, required by any court or governmental body having jurisdiction or
reasonably required by Sublessor, Ontario or Prime Landlord. If Sublessor,
Ontario, Prime Landlord or any Lender or governmental body arranges for any
tests or studies showing that this Section has been violated, Sublessee shall
pay for the costs of such tests. If any Hazardous Material is released,
discharged or disposed of on or about the Subleased Premises and such release,
discharge or disposal is not caused by Sublessee or other occupants of the
Subleased Premises, or their employees, agents or contractors, such release,
discharge or disposal shall be deemed casualty damages to the extent that the
Subleased Premises are affected thereby; in such case, Sublessee and Sublessor
shall have the obligations and rights respecting such casualty damage provided
under such Section 1.5 of this Sublease [TEXT ILLEGIBLE]
15. DAMAGE BY FIRE OR OTHER CASUALTY. If (i) all or any portion of the
Subleased Premises is damaged by fire or other casualty, (ii) such event gives
Sublessor the right to terminate the Prime Lease or the Ontario Sublease, or
Prime Landlord or Ontario the right to terminate the Prime Lease or the Ontario
Sublease, respectively, and (iii) either Sublessor (Sublessor shall not exercise
such right without the written consent of Sublessee), Prime Landlord or Ontario
exercises such right; then this Sublease shall terminate in accordance with the
provisions of the Prime Lease or Ontario Sublease and all Base Rent and
Additional Rent shall be apportioned in accordance with the provisions of the
Prime Lease or Ontario Sublease, as applicable. If Sublessor, Prime Landlord or
Ontario is not entitled to terminate or does not exercise their respective right
of termination with respect to a fire or other casualty, then (i) this Sublease
shall continue in fall force and the Subleased Premises shall be repaired or
restored in the same manner and under the same conditions for repair and
restoration as provided and required in the Prime Lease or Ontario Sublease and
(ii) Base Rent and Additional Rent shall xxxxx in the same manner and for such
period as rent abates under the Prime Lease or Ontario Sublease. Notwithstanding
the foregoing, Sublessor shall not exercise its right to terminate this
13
Sublease pursuant to this provision, nor consent to a termination by Prime
Landlord or Ontario (if Sublessor's consent thereto is required to effectuate
such third party termination), without the prior written consent of Sublessee.
16. EMINENT DOMAIN.
16.01 RESULTING IN TERMINATION. In the event (i) any part of the
Subleased Premises is taken or condemned by any competent authority for any
public use or purpose or conveyed under threat of such condemnation, (ii) such
event gives Prime Landlord or Ontario the right to terminate the Prime Lease or
Ontario Sublease, or Sublessor (Sublessor shall not exercise such right without
the prior written consent of Sublessee) the right to terminate the Prime Lease
or Ontario Sublease, and Oil) either Sublessor, Prime Landlord or Ontario, as
applicable, exercises such right; then this Sublease shall terminate in
accordance with the provisions of the Prime Lease or Ontario Sublease, as
applicable, and all Base Rent and Additional Rent shall be apportioned in
accordance with the provisions of Prime Lease or Ontario Sublease.
Notwithstanding the foregoing, Sublessor shall not exercise its -right to
terminate this Sublease pursuant to this provision, nor consent to a termination
by Prime Landlord or Ontario (if Sublessor's consent thereto is required to
effectuate such third party termination), without the prior written consent of
Sublessee.
16.02 RESTORATION. In the event any part of the Building or the
Subleased Premises is taken or condemned by any competent authority for any
public use or purpose, or is conveyed under threat of condemnation, and the
Prime Lease or Ontario Sublease is not terminated by Sublessor, Prime Landlord
or Ontario, as applicable, as a result thereof, then Base Rent and Additional
Rent shall be adjusted in the same manner as provided for the adjusted rent
under the Prime Lease or Ontario Sublease.
16.03 CONDEMNATION AWARD. All condemnation awards shall, subject to
the rights Of Prime Landlord, or Ontario under the Prime Lease or Ontario
Sublease, as applicable, be allocated to Sublessor in the manner set forth in
Article 8 of the Lease. Sublessee shall be entitled to seek a separate award in
accordance with the provisions of the Prime Lease.
17. BROKERAGE COMMISSIONS. Sublessee and Sublessor represent and wan-ant to
each other that no real estate brokers, consultants or finders have participated
in the negotiation or execution of this Sublease or the Prime Lease, except for
United Properties. Corporation and Xxxxx & Xxxxx. Sublessor shall pay United
Properties Corporation a commission of $4.50 per sq. foot, due upon full
execution of the Sublease and Sublessee's delivery of the Security Deposit to
Sublessor. United Properties Corporation shall pay Xxxxx & Xxxxx one-half of
such commission. Sublessee and Sublessor shall defend, indemnify and hold each
other, Ontario and Prime Landlord harmless from all damages, judgments,
liabilities and expenses (including attorneys' fees) arising from any claims or
demands of any broker, agent or finder with whom Sublessee or Sublessor his
dealt for any commission or fee alleged to be due in connection with its
participation in the procurement of Sublessee or the negotiation with Sublessee
of this Sublease, other than United Properties Corporation and Xxxxx & Xxxxx.
14
18. ESTOPPEL CERTIFICATE.
18.01 Each party shall from time to time, upon not less than ten (10)
days prior written request by the other, deliver a statement in writing
certifying, if such is the case, (1) this Sublease is unmodified and in full
force and effect or, if there have been modifications, that this Sublease, as
modified, is in full force and effect; (2) the Commencement Date and the
Expiration Date of the Term; (3) all work to be completed by Sublessee to the
Subleased Premises has been completed and if not, specifying what has not been
completed; (4) the amount of Base Rent then payable hereunder and the date to
which such rent has been paid; (5) the other party is not, to such party's
knowledge, in default under this Sublease or, if in default, a detailed
description of such default(s); and (6) such other information as Sublessee,
Sublessor or their respective mortgagee or third party may reasonably request.
Each party acknowledges that any statement delivered pursuant to this Section
may be relied upon by: (a) any purchaser or sublessee of the Subleased Premises
or arty part thereof or any improvement thereon; (b) any holder of a mortgage
(as defined hereafter); and (c) any assignee of any mortgagee under any such
mortgage.
19. SIGNAGE. Subject to Prime Landlord's, Ontario's and Sublessor's prior
written approval and provided said signage complies with the requirements set
forth in the Prime Lease and EXHIBIT E of the Prime Lease, Sublessee shall have
the right to place monument signage on the existing structure located on the
grounds of the Premises as well as signage above the entry door. If Sublessee
exercises its termination rights under Section 2.02(C), Sublessee shall remove
its signage from the monument sign, and restore the same to its condition prior
to Sublessee's installation thereon.
20. NOTICES. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed given and delivered: (1) if by personal or
courier service delivery, on the date of such delivery; (2) if by mail, whether
or not received, three (3) business days after being deposited in the United
States Mail, postage prepaid and properly addressed, certified or registered
mail., return receipt requested, (3) if, by recognized, overnight mail,
air-express or courier service (or by telecopy if the address is not in the
United States), on the date of such delivery, at the following address: (A) To
Sublessor at the address specified in Section 1.01B or such other address as
Sublessee shall designate by written notice to Sublessor and a copy to Larkin,
Hoffman, Xxxx & Xxxxxxxx, Ltd., Attention: Xxxxxx X. Xxxxxxxxx, 1500 Norwest
Financial Center, 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; and
(B) To Sublessor at the address specified in Subsection 1.01C, or at such other
address(es) as Sublessor shall hereafter designate by written notice to
Sublessee.
21. MISCELLANEOUS.
21.01 ENTIRE AGREEMENT. This Sublease and the Exhibits attached
hereto contain the entire agreement between Sublessee and Sublessor concerning
the Subleased Premises and supersedes all other prior agreements, either oral or
written, except the Prime Lease and Ontario Sublease. Sublessee acknowledges
that neither Sublessor nor its respective agents or employees have made any
representations, warranties or promises with respect to the Subleased Premises
or the making or entry into of this Sublease except as expressly set forth in
this Sublease.
15
21.02 EXECUTION. This Sublease shall be of no force or effect unless
and until executed and delivered by all parties hereto. No Provision of this
Sublease may be amended except in writing signed by all parties hereto or their
successors. By execution hereof, Sublessee acknowledges that it has received a
complete and correct copy of the Prime Lease and Ontario Sublease.
21.03 BINDING EFFECT. This Sublease shall be binding upon and inure
to the benefit of Sublessee and Sublessor and their respective permitted legal
representatives, successors and assigns.
21.04 FORCE MAJEURE. Except as otherwise provided in the Prime Lease
and Ontario Sublease, neither party shall be deemed to be it default with
respect to any of the terms, covenants and conditions of this Sublease on the
part of such duty to be performed if the party whose performance is delayed
fails to timely perform the same and such failure is due in whole or in part to
any strike, lockout, labor trouble (whether legal or illegal), civil disorder,
inability to procure required materials, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, fuel shortages,
accidents, casualties, acts of God, acts caused directly or indirectly by the
other party (or such other party's agents or employees) or any other cause
beyond the reasonable control of the party whose performance is so delayed,
provided, however, that the time for performance shall in no event be extended
due to financial or economic problems of either party, their architects,
contractors, agents or employees. It shall be a condition of either party's
right to claim an extension of time under this Section that such party notify
the other in writing within ten (10) days after the occurrence of such cause,
specifying the nature thereof and the period of time contemplated or necessary
for performance.
21.05 CAPTIONS. The Article and Section captions in this Sublease
are inserted only as a matter of convenience and in no any define, limit,
construe, or describe the scope or intent of such Articles and Sections.
21.06 DEFINITIONS. All capitalized terms not defined herein shall
have the meanings ascribed thereto in the Prime Lease.
21.07 APPLICABLE LAW. This Sublease shall be construed in accordance
with the laws of the State of Minnesota.
21.08 TIME. Time is of the essence of this Sublease with respect to
the performance of all monetary obligations hereunder.
21.09 PARTIAL INVALIDITY. Each term, covenant and condition of this
Sublease shall be valid and be enforced to the fullest extent permitted by law.
If any terra, covenant, or condition of this Sublease or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Sublease, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby.
21.10 TRIAL BY JURY. SUBLESSEE AND SUBLESSOR AGREE THAT THEY HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES TO THIS SUBLEASE
16
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS SUBLEASE, THE RELATIONSHIP OF SUBLESSEE AND SUBLESSOR, THE
USE OR OCCUPANCY OF THE SUBLEASED PREMISES, AND/OR ANY CLAIM OF INJURY OR
DAMAGE, OR FOR THE ENFORCEMENT OF ANY REMEDY UPON ANY STATUTE, EMERGENCY OR
OTHERWISE.
21.11 CUSTOM AND USAGE; CONSTRUCTION. Failure of either party to
enforce its rights under any provision of this Sublease or any other agreement
between Sublessee and Sublessor shall not be construed as having created a
custom in any way or course of dealing or manner contrary to the specific terms,
provisions and covenants of this Sublease or as having in any manner modified
the same. If any term, covenant, condition or agreement of this Sublease is
capable of two or more constructions, one or more of which would render the
provision void, and the other or others of which would render the provision
valid, then the provision shall have the meaning or meanings which would render
it valid. Both parties have participated in the negotiation and preparation of
this Sublease with the assistance of competent legal counsel. Accordingly, this
Sublease shall not be construed for or against Sublessee or Sublessor, but this
Sublease shall be interpreted in accordance with the general tenor of the
language in an effort to reach the intended result.
21.12 RECORDING. Upon written request of either party, the parties
shall execute and acknowledge a memorandum of this Sublease which may be
recorded at the expense of the party requesting such recording. Sublessor shall
record no other memorandum, affidavit or copy of this Sublease.
21.13 JURISDICTION. This Agreement shall be construed and governed
by the laws of the State of Minnesota.
21.14 ATTORNEYS' FEES. If any legal action, arbitration or other
proceeding brought for the enforcement of this Sublease, or because of an
alleged dispute, breach default or misrepresentation in connection with any of
the provisions of this Sublease, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other expenses and costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled. As used herein, the term "successfully or prevailing
party shall be the party which by law is entitled to recover its costs of suit
whether or not the action proceeds to final judgment. If the party which
instituted the suite shall dismiss as against the other party without the
concurrence of the other party, the nondismissing party shall be deemed the
successful or prevailing party.
21.15 CONSENT BY MORTGAGEE. This Sublease shall not become effective
and Sublessee shall not take possession of the Subleased Premises until such
time as Prime Landlord's mortgagee, if any, has consented, in writing, to the
Sublease and entered into an agreement with Sublessee providing for the
Sublessee's continued possession of the Subleased Premises if Sublessee's not in
default under the Sublease and Sublessee's agreement to attorn to such
mortgagee.
21.16 COUNTEPARTS. This Agreement may be executed in multiple
counterparts, both of which shall constitute one and the same instrument.
Additionally, this Agreement may
17
contain more than one counterpart of the signature page and this Agreement may
be executed by affixing counterpart signature page(s) containing the signatures
of both of the parties hereto. All of such counterpart signature pages shall be
read as though one and they shall have the same force and effect as though all
of the signers had signed a single signature page.
IN WITNESS WHEROF, this Sublease has been executed as of the dates set
forth above.
SUBLESSOR: SUBLESSEE:
Wam!Net Inc. xxxxxxx.xxx
By: By: /s/ Xxxxxx X. [ ]
------------------------------- -------------------------
Its: Its: VP of Operations
The undersigned have signed below solely for the purposes evidencing their
consent to tile foregoing Sublease.
ONTARIO:
[ILLEGIBLE] Ontario Limited,
an Ontario corporation
By:
-----------------------------
Its:
PRIME LANDLORD:
Xxxxxxx Development L.L.P.
By:
-----------------------------
Its:
MORTGAGEE:
IDS Life Insurance Company
By::
-----------------------------
Its:
18
PRIVILEGED AND CONFIDENTIAL
S&A Draft November 19, 1999
ASSET PURCHASE AGREEMENT
Dated as of April 24, 2001
Among
MUG AND CUP, INC.
THE XXXXXXXX, XXXXXX CO.,
XXXXXXXX XXXXXX
and
TEA AND COFFEE, LLP
19
