EXHIBIT 10.15
SUBLEASE
THIS SUBLEASE is made as of the ___ day of March, 2003, by and between
SONICNET LLC, a Delaware limited liability company, hereinafter referred to as
"Sublessor" and BIGFOOT INTERACTIVE, INC., a New York corporation, hereinafter
referred to as "Sublessee" with reference to the following facts:
A. TM Park Avenue Associates, hereinafter referred to as "Landlord", and
SonicNet, Inc., predecessor-in-interest to Sublessor, entered into a certain
Lease dated December 1, 1998 (together with any and all amendments thereto, the
"Lease"), with respect to the premises comprising the entire 18th floor of the
building, containing approximately 14,875 rentable square feet, located at 000
Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx (the "Subleased Premises"), being more
particularly described in the Lease, a copy of which is attached hereto and made
a part hereof.
B. Sublessor wishes to sublease to Sublessee and Sublessee wishes to sublease
from Sublessor the Subleased Premises.
Sublessor and Sublessee hereby agree to the following:
1. Sublessor hereby subleases to Sublessee the Subleased Premises
upon and subject to the terms and conditions hereinafter set forth.
2. The term of the Sublease shall commence on the date (the
"Commencement Date") which is the next business day after Sublessor shall have
notified Sublessee that Landlord has given its consent to this Sublease and
shall terminate on May 30, 2009 (the "Expiration Date"). Sublessee shall have no
right to extend this Sublease beyond the Expiration Date.
3. (a) Sublessee shall pay to Sublessor a base monthly rent of
Twenty Four Thousand Seven Hundred Ninety-one and 67/100 ($24,791.67) Dollars,
based on an
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annual rate of Twenty and 00/100 ($20.00) Dollars per rentable square foot.
Commencing as of September 1, 2006, the base monthly rent shall be increased to
Twenty Seven Thousand Two Hundred Seventy and 83/100 ($27,270.83) Dollars, based
on an annual rate of Twenty Two and 00/100 ($22.00) Dollars per rentable square
foot. Sublessee shall pay the sum of $24,791.67 to Sublessor upon its execution
of this Sublease, which sum shall be applied to the first month's rent payable
by Sublessee hereunder.
(b) In addition to the base monthly rent, effective as of the
Commencement Date, Sublessee shall pay to Sublessor, as additional rent, (i) the
amount by which Sublessor's share of "Operating Expenses" (as defined in the
Lease) payable under the Lease during 2004, 2005, 2006, 2007, 2008 or 2009
exceeds Sublessor's share of "Operating Expenses" payable under the Lease during
calendar year 2003; and (ii) the amount by which Sublessor's share of "Taxes"
(as defined in the Lease) payable under the Lease during 2004, 2005, 2006, 2007,
2008 or 2009 exceeds Sublessor's share of "Taxes" payable under the Lease during
the 2003 "Tax Year" (as defined in the Lease). With respect to additional rent
payable hereunder for 2009, Sublessee's obligations shall be limited to its
proportionate share (i.e., 5 out of 12 months) of any increases; it being
acknowledged that to the extent the amount of Operating Expenses and/or Taxes
for 2009 is not available at the Expiration Date, this provision shall survive
the expiration of this Sublease.
(c) Effective as of the Commencement Date, Sublessee shall pay
to Sublessor the sum of $3,738.05 per month as payment for electricity consumed
in the Subleased Premises, which sum is the amount currently charged to
Sublessor under the Lease. In the event that the amount charged Sublessor for
electricity is increased under the Lease, Sublessee's rate shall be similarly
increased.
(d) Sublessee shall pay any and all service charges required
to be paid by tenant under the Lease and relating to the Subleased Premises from
and after the Commencement Date.Except as otherwise set forth herein to the
contrary, any and all
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other costs incurred by Sublessee that would be payable by Sublessor as tenant
under the Lease shall be borne by Sublessee from and after the Commencement
Date.
(e) All rent and additional rent shall be payable on the first
day of each month without any set-off or deduction whatsoever to Sublessor at
the address set forth below, unless otherwise specified in a written notice to
Sublessee as hereinafter provided. Rent for any other period of less than one
month shall be apportioned based on the number of days in that month.
(f) Notwithstanding anything to the contrary contained in this
paragraph, no base monthly rent shall be due for the period commencing on the
Commencement Date and expiring on November 30, 2003 (the "Abatement Period");
provided, however, that Sublessee shall pay all additional rent for the
Abatement Period as required hereunder. The entire base rent otherwise due and
payable for the Abatement Period shall become immediately payable upon the
occurrence of an event of default by Sublessee under this Sublease.
4. In addition to such remedies as may be provided in the Lease or
this Sublease, Sublessor shall be entitled to a late charge of ten percent (10%)
of the amount of the monthly rent if not received by the tenth day of the month,
and a charge of five percent (5%) of the amount of any check given by Sublessee
not paid when first presented by Sublessor. The parties agree that damages to
Sublessor as a result of a late payment or an unpaid check by Sublessee are
difficult to ascertain and that these charges represent a fair and reasonable
estimate of said damages. Acceptance by Sublessor of a late charge shall not
constitute a waiver by Sublessor of any default of Sublessee nor prevent
Sublessor from exercising any right or remedy hereunder or otherwise available
by law.
5. Sublessee shall deliver to Sublessor simultaneously with the
execution of the Sublease an irrevocable letter of credit in a form and content
satisfactory to Sublessor for the sum of $81,812.49 as security for the faithful
performance and observance by
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Sublessee of the terms, provisions and conditions of this Sublease. Said
irrevocable letter of credit shall provide that (i) funds secured by the letter
of credit shall be available to Sublessor following presentation by Sublessor to
the issuing bank with a copy to Sublessee of (a) a duly executed draft and (b)
the original letter of credit, and (ii) that the letter of credit be
transferable one or more times by Sublessor without the consent of Sublessee. In
the event that an Event of Default occurs hereunder, Sublessor may draw upon
said letter of credit only to the extent required for the payment of any rent or
additional rent as to which Sublessee is in default and in such event, Sublessee
shall, upon written demand by Sublessor, restore the security to its original
amount. The letter of credit shall expire not earlier than 12 months after the
date of delivery to Sublessor and shall provide that same shall be automatically
renewed for successive 12-month periods through a date which is not earlier than
60 days after the Expiration Date of this Sublease, unless written notice of
non-renewal has been given by the issuing bank to Sublessor by registered or
certified mail, return receipt requested, not less than 30 days prior to the
expiration of the current period. If the issuing bank does not renew the letter
of credit, and if Sublessee does not deliver a substitute letter of credit at
least 30 days prior to the expiration of the current period, then in addition to
its rights granted hereunder, Sublessor shall have the right to draw on the
existing letter of credit and the amounts so drawn shall be held by Sublessor as
cash collateral, to be drawn upon by Sublessor to the same extent drawings under
the letter of credit are permitted hereunder. In the event that the actual
amount due from Sublessee as additional rent hereunder is not known to Sublessor
as of the Expiration Date, Sublessee shall continue to maintain the letter of
credit following the Expiration Date until said actual amount due has been
determined by Sublessor and paid by Sublessee. Sublessee acknowledges and agrees
that it shall pay upon Sublessor's demand, as Additional Rent, any and all costs
and fees charged in connection with the Letter of Credit that arise due to
Sublessor's transfer of its interest in the Lease or the Sublease.
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6. (a) Sublessee shall use the Subleased Premises solely for office
use and for no other purposes. Sublessee shall have access to the Subleased
Premises 24 hours per day, 7 days per week.
(b) Sublessee agrees to comply with all rules and regulations
that Landlord has made or may hereafter from time to time make for the Building.
Sublessor shall not be liable in any way for damage caused by the non-observance
by any of the other tenants of such similar covenants in their leases or of such
rules and regulations.
7. (a) Except as otherwise provided herein, Sublessee shall not
transfer, assign, sublet, enter into license agreements, mortgage or hypothecate
this Sublease or the Sublessee's interest in and to the Subleased Premises
without first procuring the prior written consent of Sublessor and Landlord.
Sublessor agrees not to unreasonably withhold, condition or delay its consent to
any proposed assignment or sublease. Any attempted transfer, assignment,
subletting, license agreement, mortgage or hypothecation without Sublessor's and
Landlord's prior written consent shall be void and confer no rights upon any
third person. In the event of any sublease or assignment by Sublessee consented
to by Sublessee and Landlord, Sublessee shall not be relieved from its covenants
and obligations for the Sublease term. The acceptance of rent by Sublessor from
any other person or entity shall not be deemed a waiver by Sublessor of any
provision hereof. Sublessee agrees to reimburse Sublessor for any reasonable
fees incurred in conjunction with the processing and documentation of any such
requested transfer, assignment, subletting, licensing agreement, mortgage or
hypothecation of this Sublease or Sublessee's interest in and to the Subleased
Premises. In addition, should Sublessee receive any consideration in connection
with such transfer, assignment, subletting, license agreement, change in
ownership, mortgage or hypothecation or a rental that exceeds all rentals to be
paid to Sublessor hereunder, attributable to the Subleased Premises or portion
thereof so assigned or sublet, then and in such event fifty
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(50) percent of any such consideration or excess shall be paid over to Sublessor
by Sublessee.
(b) The transfer of any stock of or ownership interest in
Sublessee shall not require the consent of Sublessor; provided, however that in
the event of a transfer of fifty percent (50%) or more, in the aggregate,
Sublessee shall provide Sublessor with at least 15 days' prior written notice of
such transfer.
(c) The consent of Sublessor and Landlord to any transfer,
assignment, sublease, license agreement, mortgage or hypothecation of this
Sublease is not and shall not operate as a consent to any future or further
transfer, assignment, sublease, license agreement, mortgage or hypothecation.
8. (a) Sublessee agrees to take the Subleased Premises in its "as
is" broom-clean condition. Sublessee is fully familiar with the physical
condition of the Subleased Premises and Sublessee's taking possession thereof
shall constitute Sublessee's acknowledgment that the Subleased Premises, and
every part thereof, are in good condition and without need of repair. Sublessor
makes no representations or warranties to Sublessee with regard to any
furniture, equipment or fixtures located at the Subleased Premises.
(b) Sublessee shall be responsible for all maintenance to the
Subleased Premises in order to keep the Subleased Premises in good order and
condition and as otherwise required by the Lease.
(c) All property of every kind placed or stored by Sublessee
at the Subleased Premises shall be so placed or stored at the sole risk of
Sublessee. Sublessor shall not be liable to Sublessee or any other person for
any injury, loss, damage or inconvenience occasioned by any cause whatsoever to
said property unless such injury, loss, damage or inconvenience is caused solely
by the willful or negligent acts or omissions of Sublessor.
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(d) Upon expiration or sooner termination of the Sublease,
Sublessee shall quit and surrender the Subleased Premises in substantially the
same condition as the Subleased Premises were in at the commencement of the
term, reasonable wear and tear excepted, broom-clean, free of all personal
effects and furniture, and as otherwise required by the terms of the Lease. Any
improvements or fixtures installed by Sublessee which are affixed to the
Subleased Premises by nails, screws or some other detachable means shall be
removed upon the expiration or sooner termination of this Sublease. Sublessee
shall repair all damage or defacement to the Subleased Premises and to the
fixtures, appurtenances and equipment of Sublessor therein, caused by the
Sublessee's removal of its furniture, fixtures, equipment, machinery and the
like and the removal of any improvements or alterations.
9. (a) Sublessee shall not, without the prior written consent of
Sublessor and Landlord, make any alterations, improvements or additions to or
upon the Subleased Premises. Sublessor agrees not to unreasonably withhold,
condition or delay its consent. Notwithstanding the foregoing, if Landlord's
consent to any alterations, improvements or additions is not required under the
Lease, Sublessor's consent shall not be required. Under all circumstances, any
alterations, improvements or additions made by Sublessee shall be (i)
constructed in accordance with all applicable laws and regulations, with a
proper permit and in a workmanlike manner, (ii) in compliance with the
applicable provisions of the Lease including, without limitation, the provisions
of Section 5.01(e); and (iii) conditioned on written acknowledgement by
Sublessee of its obligation to remove any such alterations, improvements and
additions upon the expiration or sooner termination of the Term, unless
otherwise agreed to in writing by the Landlord.
(b) Sublessee shall have the right to make the alterations set
forth on Exhibit "A" ("Tenant Work"), provided that (i) Sublessee shall submit
plans and specifications for the Tenant Work to Sublessor and Landlord for its
review and approval, (ii) to the extent required under the Lease, Landlord's
written consent to Tenant's Work
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has been obtained and delivered to Sublessor, and (iii) Sublessee otherwise
complies with the provisions of subparagraph (a) above.
(c) Sublessee agrees to immediately discharge (either by
payment or by filing of the necessary bond in the full amount of the lien, or
otherwise) any mechanics', materialmen's or other liens against the Subleased
Premises and/or the interests of Sublessor or Landlord therein, which liens may
arise out of any payment due for, or purported to be due for, any labor,
services, materials, supplies or equipment alleged to have been furnished to or
for Sublessee in, upon or about the Subleased Premises. Sublessee agrees to give
Sublessor and Landlord prompt notice of the filing of any such liens.
10. (a) Sublessee shall procure and maintain, at its own cost and
expense, such liability insurance as is required to be carried by Sublessor
under the Lease, naming Sublessor, as well as Landlord, in the manner required
therein, and such property insurance as is required to be carried by Sublessor
under the Lease to the extent such property insurance pertains to the Subleased
Premises. If the Lease requires Sublessor to insure leasehold improvements or
alterations, then Sublessee shall insure such leasehold improvements which are
located in the Subleased Premises, as well as alterations in the Subleased
Premises made by Sublessee. Each party hereby waives 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 Landlord and Sublessor for property damage to the Subleased
Premises or its contents if and to the extent that Sublessor waives such claims
against Landlord under the Lease.
(b) Sublessee will furnish proof of such insurance coverage to
Sublessor on or prior to the Commencement Date. Such policies shall contain a
waiver of the insurer's right of subrogation against the Sublessor and Landlord,
and shall require the
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insurer to give Sublessor thirty (30) days notice prior to the expiration or
cancellation of insurance coverage.
(c) Sublessee will not do anything on the said Subleased
Premises to make void or voidable any insurance upon the Subleased Premises or
render necessary any increased or extra premium for the said insurance. If, as a
result of improper maintenance, poor housekeeping, or any other conduct or other
activities on the part of Sublessee, the insurance premiums are increased,
Sublessee will pay the additional cost thereof, and in the event the conduct of
Sublessee's business results in an increase in insurance premiums to be paid by
Sublessor, Sublessee shall pay to Sublessor the amount of such increase.
11. In the event of a fire or other casualty affecting the Building
or the Subleased Premises, or of a taking of all or a part of the Building or
Premises under the power of eminent domain, Sublessor may exercise any right
which may have the effect of terminating the Lease without first obtaining the
prior written consent of Sublessee. In the event Sublessor is entitled, under
the Lease, to a rent abatement as a result of a fire or other casualty or as a
result of a taking under the power of eminent domain, then Sublessee shall be
entitled to its proportionate share of such rent abatement. If the Lease imposes
on Sublessor the obligation to repair or restore leasehold improvements or
alterations, at Sublessor's option such obligation shall pass to Sublessee.
12. Sublessor represents that it is the successor in interest to
SonicNet Inc. and that it has full power and authority to enter into this
Sublease, subject to the consent of the Landlord, if required under the Lease.
So long as Sublessee is not in default in the performance of its covenants and
agreements in this Sublease, Sublessee's quiet and peaceable enjoyment of the
Subleased Premises shall not be disturbed or interfered with by Sublessor, or by
any person claiming by, through, or under Sublessor.
13. Sublessor shall cooperate with Sublessee to cause Landlord to
provide services required by Sublessee in addition to those otherwise required
to be provided by
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Landlord under the Lease; provided, however, that nothing contained in this
Agreement shall require Sublessor to commence legal action or arbitration
proceedings against Landlord unless Sublessee agrees to assume and pay all
expenses associated with such action or proceeding in which case Sublessor shall
commence such action or proceeding under the direction and control of Sublessee
with counsel selected by Sublessee, who shall be reasonably satisfactory to
Sublessor. Sublessee shall pay Landlord's charge for such services promptly
after having been billed therefor by Landlord or by Sublessor. If at any time a
charge for such additional services is attributable to the use of such services
both by Sublessor and by Sublessee, the cost thereof shall be equitably divided
between Sublessor and Sublessee.
14. Upon expiration or sooner termination of this Sublease, if
Sublessee shall hold over and remain on the Subleased Premises, such holding
over shall not be deemed to be an extension of this Sublease, but shall, to the
extent permitted under the Lease, be deemed to create a tenancy-at-sufferance,
and in addition to any rights Sublessor may have under this Sublease or the
Lease in the event of a default, Sublessee shall be obligated to pay to
Sublessor an amount equal to two (2) times the base monthly rent and additional
rent payable by Sublessor under the Lease on the date before such hold over for
each day that Sublessee remains in occupancy of the Subleased Premises.
Notwithstanding the above, Sublessee shall indemnify and hold Sublessor harmless
from any liability, loss, costs and expenses, including, but not limited to,
reasonable attorneys' fees, arising out of such holding over by Sublessee.
15. Sublessee agrees to indemnify and hold Sublessor harmless
against all loss, damage, liability, or expense arising out of injury to third
parties or their property (i) caused by any breach or default by Sublessee of
any covenant or obligation it has hereunder (including but not limited to all
covenants or obligations of the tenant under the lease assumed by Sublessee
pursuant to the terms of this Sublease), or (ii) caused by or in connection with
anything owned or controlled by Sublessee, or (iii) resulting from any
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act, failure to act, or negligence of Sublessee or its employees, agents or
invitees, or (iv) resulting from any nuisance suffered on the Subleased
Premises, except for damage or injury to third parties or property resulting
from the proven negligence or misconduct of Sublessor. Sublessee further agrees
to indemnify Sublessor and hold Sublessor harmless from all losses, damages,
liabilities and expenses which Sublessor may incur, or for which Sublessor may
be liable to Landlord, arising from the acts or omissions of Sublessee which are
or are alleged to be defaults under the Lease or are the subject matter of any
indemnity or hold harmless of Sublessor to Landlord under the Lease.
16. Sublessee shall allow Sublessor or its agents during the term,
at reasonable times, to enter and view the Subleased Premises, to make repairs
and alterations if it should elect to do so and to show the Subleased Premises
to others at reasonable times.
17. (a) Sublessee represents that it has read and is familiar with
the Lease. It is specifically understood and agreed that this Sublease and each
and every provision hereof is and shall remain subject to the Lease and each and
every provision thereof, and that in the event that the Lease shall terminate
for any reason whatsoever, then, in that event this Sublease shall
simultaneously terminate and neither party hereto shall thereby acquire any
right or cause of action against the other party by reason of such termination.
(b) Except as otherwise specifically provided in this
Sublease, the terms, provisions, covenants, rules and regulations, rights,
obligations, remedies and agreements of the Lease are incorporated herein by
reference with the same force and effect as if they were fully set forth herein
except that any reference in the Lease to "Landlord", "Tenant" and "Premises"
shall mean Sublessor, Sublessee and Subleased Premises, respectively, as such
terms are used in this Sublease, and shall, as between Sublessor and Sublessee,
constitute the terms of this Sublease except to the extent they do not relate to
the Subleased Premises or are inapplicable, inappropriate, inconsistent with or
modified by the provisions of this Sublease, and except that the time limits
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contained in the Lease for the giving of notices, making of demands, or
performing of any act, condition or covenant on the part of Subtenant as tenant
under the Lease or for the exercise by Sublandlord as landlord under the Lease
of any right, remedy, option, are changed for the purposes of incorporation
herein by shortening the same in each instance by two (2) business days so that
in each instance Subtenant shall have two (2) business days less time to observe
or perform under this Sublease than Sublandlord has as tenant under the Lease.
Notwithstanding anything herein contained, the only services or rights to which
Sublessee is entitled hereunder are those to which Sublessor is entitled under
the Lease. In all instances where consent of the "Landlord" is required by the
Lease, for purposes of this Sublease consent of both Sublessor and Landlord
shall be required, and in such instances, if Landlord's consent is obtained,
Sublessor shall not unreasonably withhold, condition or delay its consent.
(c) Except to the extent that this Sublease provides for a
conflicting or alternative term, coventant, condition or obligation, Sublessee
covenants and agrees to comply with all of the terms, covenants, conditions and
obligations of the Lease to be kept and performed on the part of the tenant
thereunder insofar as they relate to the Subleased Premises. Sublessee shall not
commit or permit to be committed any act or omission or allow any condition to
exist which shall violate any term or condition of the Lease. Sublessee shall
neither do nor permit anything to be done which would cause the Lease to be
terminated or forfeited by reason of any right of termination or forfeiture
reserved or vested in the landlord under the Lease, and Sublessee shall
indemnify and hold Sublessor harmless from and against all claims, liabilities
and damages of any kind whatsoever by reason of any breach or default on the
part of Sublessee.
(d) To the extent that the Lease requires or obligates
Landlord to maintain, repair, restore, or otherwise expend any monies for
preserving and maintaining all or any portion of the Subleased Premises or to
furnish any services to the Subleased
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Premises, such obligation shall not pass to Sublessor by reason of this Sublease
and shall remain with the Landlord.
(e) Sublessor hereby represents and warrants to Sublessee that
it is not in default of any rental obligation under the Lease; and that to the
best of its knowledge, (i) it is not in default under any other provision under
the Lease, (ii) Landlord is not in default under any provision of the Lease and
(iii) the Lease is in full force and effect in accordance with its terms.
(f) Sublessor agrees, upon receipt from Sublessee of written
notice of any default, obligation or duty of Landlord under the Lease, to
promptly notify Landlord of Sublessee's notice and to use its prompt and
reasonable efforts to cause Landlord to rectify or fulfill any default,
obligation or duty as listed in Sublessee's notice; provided, however that
nothing contained in this Agreement shall require Sublessor to commence legal
action or arbitration proceedings against Landlord unless Sublessee agrees to
assume and pay all expenses associated with such action or proceeding in which
case Sublessor shall commence such action or proceeding under the direction and
control of Sublessee with counsel selected by Sublessee, who shall be reasonably
satisfactory to Sublessor.
(g) As between the parties hereto only, in the event of a
conflict between the terms of the Lease and the terms of this Sublease, the
terms of this Sublease shall control only to the extent they are inconsistent
with the terms of the Lease and their respective counterpart provisions in the
Lease shall be excluded only to such extent. Notwithstanding anything herein
contained, as between Sublessor and Sublessee, and for purposes of this
Sublease, the following provisions of the Lease are hereby deleted: Sections
1.02, 1.03, 1.08, 1.09, 1.10, Article 2, Section 6.02, Article 7, Sections
11.01, 18.02, 21.04, 21.06, Article 22, Article 23, Sections 27.06, 27.12,
27.25, 27.26 and 27.27. Sublessor agrees to indemnify and hold Sublessee
harmless against any liability, obligation, cost or expense asserted by Landlord
against Sublessee arising
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out of an obligation under the Lease that was not assumed or required to be
performed by Sublessee hereunder.
18. Sublessee shall be in default hereunder upon the happening of
any of the following events ("Events of Default"):
(i) if Sublessee shall fail to make payment of rent or any
installment thereof or any other sum required to be paid
by Sublessee under this Sublease and such failure shall
continue for ten (10) days after written notice to
Sublessee; or
(ii) if the leasehold interest of Sublessee shall be taken on
execution or by other process of law which would permit
a third party to have possession of the Subleased
Premises; or
(iii) if Sublessee shall be judicially declared bankrupt or
insolvent according to law; or
(iv) if any assignment shall be made of the property of
Sublessee for the benefit of creditors; or
(v) if a receiver, guardian, conservator, trustee in
involuntary bankruptcy or other similar officer shall be
appointed to take charge of all or any substantial part
of Sublessee's property by a court of competent
jurisdiction; or
(vi) if a petition shall be filed for the reorganization of
Sublessee under any provisions of the Bankruptcy Code
now or hereafter enacted and such proceeding is not
dismissed within sixty (60) days after it is begun; or
(vii) if Sublessee shall file a petition for such
reorganization, or for arrangements under any provisions
of the Bankruptcy Code now or hereafter enacted and
providing a plan for a debtor to settle, satisfy or
extend the time for the payments of debts; or
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(viii) if the Subleased Premises shall be abandoned, deserted
or vacated; or
(ix) if Sublessee shall default in any of the other covenants
and agreements herein contained to be kept, observed and
performed by Sublessee, and such default shall continue
for thirty (30) days after notice thereof in writing to
Sublessee.
19. (a) Upon the occurrence of any one or more Events of Default,
Sublessor may exercise any remedy against Sublessee which Landlord may exercise
for default by Sublessor under the Lease.
(b) Sublessee shall pay and discharge all costs of Sublessor,
including reasonable attorneys' fees, expenses and court costs, that shall arise
from enforcing any of the terms, covenants and agreements contained in this
Sublease.
20. Sublessee covenants with Sublessor that the failure of Sublessor
to insist in any one or more instances upon the strict and literal performance
of any of the covenants, terms or conditions of this Sublease, or to exercise
any option of Sublessor herein contained, shall not be construed as a waiver or
a relinquishment for the future of such covenant, term, condition or option, but
the same shall continue and remain in full force and effect. The receipt by
Sublessor of rent with knowledge of the breach of any covenant, term, condition
or provision hereunder shall not be deemed to be a waiver of such breach, and no
waiver by Sublessor of any such covenant, term, condition or provision, or of
the breach thereof, shall be deemed to have been made by Sublessor unless
expressly agreed to in writing by Sublessor. No acceptance of partial payment of
rent or any other payments required hereunder shall be deemed to be in full
satisfaction of the amount due unless agreed to in writing by Sublessor.
21. The parties agree that this Sublease shall not become effective
for any purpose unless and until it and the Tenant Work have been consented to
in writing by Landlord and by any other entities whose consent is required under
the Lease ("Third
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Parties"). Sublessor shall reasonably promptly after receipt of fully executed
copies of this Sublease submit the same to Landlord and any Third Parties for
its/their consent; provided, however, that Sublessor shall not be required to
make any payments or commence any action or proceeding in order to obtain any
such consent and shall not in any event be liable to Sublessee for any failure
to obtain same. Sublessor shall use its best efforts to facilitate the obtaining
of Landlord's consent to this Sublease and the Tenant Work as soon as possible.
Sublessee shall fully cooperate with Sublessor and Landlord and any Third
Parties in order to obtain the necessary consent(s) including, but not limited
to, promptly supplying such information and/or documentation as Landlord and/or
any Third Parties may request in connection therewith. If the consent of
Landlord and that of any Third Parties is not obtained within forty-five (45)
days after full execution and delivery of this Sublease (or if Sublessor
exercises its option to extend the period within which such consent(s) must be
obtained as noted below, within seventy-five (75) day after full execution and
delivery of this Sublease) then either party may, upon written notice to the
other, cancel this Sublease, provided the party wishing to cancel has fully
complied with its agreements and obligations under this Section. Upon such
cancellation Sublessor shall, so long as Sublessee has not occupied the
Subleased Premises for any purposes, refund to Sublessee any item of rent or
additional rent paid by Sublessee, and Sublessor and Sublessee shall be entirely
relieved of any further obligations under this Sublease other than the terms and
provisions of Paragraph 15 of this Sublease which shall survive such
cancellation. Notwithstanding anything to the contrary herein contained,
Sublessor shall have the unilateral right, at its option, to extend for an
additional thirty (30) days the period for obtaining the necessary consent(s).
22. The respective successors and assigns of Sublessor and
Sublessee, subject to the foregoing provisions as to transfers, assignments,
insolvency or by operation of law or legal process, shall bear the burdens and
enjoy the benefits of all of the covenants, terms, conditions, privileges and
agreements contained in or acquired by
17
the provisions of this Sublease, the same as if such successors and assigns had
been specifically mentioned in each and every case where Sublessor or Sublessee
is mentioned.
23. All notices provided for hereunder shall be in writing and sent
by express courier service or by registered or certified mail, return receipt
requested, to the Sublessor courier service or by registered or certified mail,
return receipt requested, to the Sublessor, c/o Viacom Realty Corporation, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, Attention: Xx. Xxxxx X. Xxxxxxxxxx,
with a copy thereof similarly sent to Viacom Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000-0000, Attention: General Counsel, and to the Sublessee at the
Subleased Premises, Attention: Chief Executive Officer. Either party may at any
time change the address for such notices by mailing to the other party as
aforesaid a notice setting forth the changed address.
24. Sublessor and Sublessee each represent to the other that there
was no real estate broker involved with respect to this transaction other than
Insignia/ESG, Inc. ("IESG") and Xxxxxxxx Real Estate Co., Inc. ("Xxxxxxxx").
Sublessor and Sublessee hereby indemnify and hold each other harmless from and
against any and all claims by any other broker or agent claiming by, through or
under the indemnifying party with respect to this Sublease. Sublessor shall be
responsible for payment of any commissions due IESG pursuant to a separate
agreement between Sublessor and IESG, and IESG shall be responsible for payment
of any commissions due Xxxxxxxx pursuant to a separate agreement between IESG
and Xxxxxxxx.
25. Time shall be of the essence for the performance of each and
every term, condition and covenant of this Sublease on the part of Sublessee or
Sublessor to be performed.
26. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE IN
WHICH THE SUBLEASED PREMISES ARE LOCATED EXCLUDING (TO THE
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GREATEST EXTENT PERMITTED BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN SUCH STATE.
27. If any term or other provision of this Sublease is invalid,
illegal or incapable of being enforced by any law or public policy, all other
terms and provisions of this Sublease shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Sublease so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
28. Each party represents and warrants to the other party that this
Sublease has been duly authorized and the party signing on its behalf is so
authorized to execute this Sublease.
29. This Sublease, together with any exhibits and schedules hereto,
constitute the entire agreement of the parties hereto with respect to the
subject matter thereof and supersede all prior agreements and undertakings, both
written and oral, between the parties hereto with respect to the subject matter
thereof. This Sublease may not be modified or amended except by a written
agreement signed by the parties hereto. Any party to this Sublease may (a) waive
any inaccuracies in the representations and warranties of another party
contained herein or in any document delivered by another party pursuant hereto
or (b) waive compliance with any of the agreements or conditions of another
party contained herein. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the party to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or
19
condition, of this Sublease. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
30. This Sublease may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
31. The parties hereto understand and agree that no contract or
agreement providing for the transactions contemplated hereby shall be deemed to
exist unless and until a definitive agreement has been executed and delivered.
Each party hereto also agrees that unless and until a definitive agreement has
been executed and delivered, neither party hereto will have any legal
obligations of any kind whatsoever with respect to the transactions contemplated
hereby.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the date and year first above written.
SUBLESSOR:
SONICNET LLC
BY:
---------------------------
Name:
---------------------------
Title:
---------------------------
SUBLESSEE:
BIGFOOT INTERACTIVE, INC.
BY:
---------------------------
Name:
---------------------------
Title:
---------------------------
EXHIBIT "A"
TENANT WORK
1. Creation of new entrance and reception.
2. Demolition of internal drywall partitions.
3. Paint and carpet of entire space.
4. Electrical modifications, as required.
5. Modifications to HVAC distribution system, as required.
