SUBLEASE AGREEMENT
1. PARTIES.
This Sublease, dated MARCH 1, 1999 is made between AST Research, Inc.
("Sublessor"), and Flashnet ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated January 21, 1982, wherein
Northbrook Business Center ("Lessor") leased to Sublessor the real property
located at 0000 X.X. Xxxx 820 in the City of Xxxx Xxxxx, Xxxxxx xx Xxxxxxx,
Xxxxx xx Xxxxx described as Buildings 4, 5, 5A and 6 ("Master Premises"). Said
lease has been amended by the following amendments: Assignment of Lease and
Assumption Agreement, said lease and amendment are herein collectively referred
to as the "Mater Lease" and are attached hereto as Exhibit "A".
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set forth in
this Sublease the following portion of the premises ("Premises"): 37,295 square
feet, including the 4,200 square foot breakroom/ cafeteria and the adjacent
rooms and pro-rata share of the restrooms, as is, as shown on plan exhibit B, in
Buildings 5 & 6.
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease has not
been amended or modified except as expressly set forth herein, that Sublessor is
not now, and as of the commencement of the Term hereof will not be, in default
or breach of any provisions of the Master Lease, and the Sublessor has no
knowledge of any claim by Lessor that Sublessor is in default or breach of any
of the provisions of the Master Lease.
5. TERM.
The Term of this Sublease shall commence on March 1, 1999 ("Commencement Date"),
or when Lessor consents to this Sublease, whichever shall last occur, and end on
July 31, 2002 ("Termination Date"), unless otherwise sooner terminated in
accordance with the provisions of this Sublease. Possession of the Premises
("Possession") shall be delivered to Sublessee on the commencement of the Term.
If for any reason Sublessor does not deliver Possession to Sublessee on the
commencement of the Term, Sublessor shall not be subject to any liability of
such failure, the Termination Date shall not be extended by the delay, and the
validity of this Sublease shall not be impaired, but rent shall xxxxx until
delivery of Possession. If Sublessor permits Sublessee to take Possession
prior to the commencement of the Term, such early Possession shall not advance
the Termination Date and shall be subject to the provisions of this Sublease.
6. RENT.
1.1 MINIMUM RENT. Sublessee shall pay to Sublessor as minimum rent,
without deduction, setoff, notice or demand at ACCOUNTS RECEIVABLE 00000
XXXXX XXXXXXX FLOOR 1 X.X. XXX 00000, XXXXXX, XX. 00000-0000 or at such
other place as Sublessor shall designate from time to time by notice to
Sublessee, the sum of Thirteen Thousand Nine Hundred Eighty Five Dollars
and Sixty-Three Cents ($13,985.63) as rent per month ($4.50 per annual sq.
ft. If the Term begins or ends on a day other than the first or last day
of a month, the rent for the partial months shall be prorated on a per diem
basis.
6.2 OPERATING COSTS. During the term hereof, Subtenant shall pay to
Sublandlord its pro rata portion of all of the following costs incurred
with respect to the Master Lease Premises (all of such costs shall
hereinafter be referred to as "Additional Rent") in accordance with the
terms set forth herein: (i) Utilities, (ii) Common area Maintenance,
Cleaning paid monthly. Insurance, Real and Personal Property Taxes, shall
be calculated on a base year of 1999. Additional Rent shall be estimated
(based upon past costs and apparent trends, if any) at the Commencement
Date and again on each February 15 during the term hereof and shall be
communicated to Subtenant in writing. Upon request, Sublandlord shall
provide supporting documentation regarding the estimated Additional Rent to
Subtenant. Upon receipt of such estimate and, if requested, supporting
documentation, Subtenant shall pay to Sublandlord such estimated Additional
Rent, in monthly installments along with the primary rent. On each
February 15 during the term hereof and within forty-five (45) days after
the expiration or sooner termination hereof, Sublandlord shall account for
all such Additional Rent for the previous calendar year or portion thereof
and promptly provide a reasonable itemization of such accounting to
Subtenant. Within thirty (30) days after Subtenant's receipt of such
itemization, a correcting payment shall be made between the parties to
reconcile the estimated Additional Rent paid during the previous period to
the actual Additional Rent incurred under the Master Lease with respect to
the Premises.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease a sum
equal to one months rent of, Thirteen Thousand Nine Hundred Eighty Five Dollars
and Sixty-Three Cents ($13,985.63) as security for Sublessee's faithful
performance of Sublessee's obligations hereunder ("Security Deposit"). If
Sublessee fails to pay rent or other charges when due under this Sublease, or
fails to perform any of its other obligations hereunder. Sublessor may use or
apply all or any portion of the Security Deposit for the payment of any rent or
other amount then due hereunder and unpaid, for the payment of any other sum for
which Sublessor may become obligated by reason of Sublessee's default or breach,
or for any loss or damage sustained by Sublessor as a result of Sublessee's
default or breach. If Sublessor so uses any portion of the Security Deposit,
Sublessee shall,
within ten (10) days after written demand by Sublessor restore the Security
Deposit to the full amount originally deposited, and Sublessee's failure to
do so shall constitute a default under this Sublease, Sublessor shall not be
required to keep the Security Deposit separate from its general accounts, and
shall have no obligation or liability for payment of interest on the Security
Deposit. In the event Sublessor assigns its interest in this Sublease,
Sublessor shall deliver to its assignee so much of the Security Deposit as is
then held by Sublessor. Within ten (10) days after the Term has expired, or
Sublessee has vacated the Premises, or any final adjustment pursuant to
Subsection 6.2 hereof has been made, whichever shall last occur, and provided
Sublessee is not then in default of any of its obligations hereunder, the
Security Deposit, or so much thereof as had not theretofore been applied by
Sublessor, shall be returned to Sublessee or to the last assignee, if any, of
Sublessee's interest hereunder.
8. USE OF PREMISES.
8.1 The Premises shall be used and occupied only for the purposes of the
Basic Lease Provisions, all in accordance with applicable laws and
restrictions and pursuant to approvals to be obtained by Subtenant from all
relevant and required governmental agencies and authorities. Subtenant
shall not do or permit anything to done in or about the Premises which will
in any way interfere with the rights of other occupants of the Building or
the Project, or use or allow the Premises to be used for any unlawful
purpose, nor shall Subtenant permit any nuisance or commit any waste in the
Premises or the Project. Subtenant shall comply at its expense with all
present and future laws, ordinances, restrictions, regulation, orders,
rules and requirements of all governmental authorities that pertain to
Subtenant or its use of the Premises.
8.2 Subtenant shall be entitled to 240 vehicle parking spaces. Spaces
shall be unreserved and unassigned, on those portions of the Common Areas
designated by Sublandlord for parking. Parking within the Common Areas
shall be limited to striped parking stalls. Sublandlord shall have the
right to establish, and from time to time amend, and regulate parking as
that Sublandlord may deem necessary for operation and maintenance of
parking in the Common Areas. Any person using the parking area shall
observe all directional signs and arrows and any posted speed limits.
8.3 Subtenant shall be entitled to the use of modular furniture currently
in places within the sublease area at the time of the sublease, and all
furniture inventories shown on exhibit "C". Uses and maintenance of said
furniture shall be at subtenants sole expense. Subtenant shall be
responsible for any damages above normal wear and tear. Subtenant shall
have the option to buy the furniture at any time at fair market value.
9. ALTERATIONS. Subtenant shall make no alterations, additions or
improvements to the Premises without the prior consent of Sublandlord and
Landlord, which consent may be given or withheld in each of Sublandlord's and
Landlord's sole discretion, provided, however, that Sublandlord hereby
approves Subtenant's installation at its sole expense of the alterations.
Notwithstanding the foregoing, Sublandlord shall not unreasonably withhold
its consent to any alterations, additions, or improvements to the Premises.
10. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part of
the Premises without the prior written consent of Sublessor and the consent of
Lessor, as required under the term of the Master Lease.
11. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are incorporated into
and made a part of this Sublease as if Sublessor were the lessor thereunder,
Sublessee the lessee thereunder, and the Premises the Master Premises.
Sublessee assumes and agrees to perform the lessee's obligations under the
Master Lease during the Term to the extent that such obligations are applicable
to the Premises, except that the obligation to pay rent to Lessor under the
Master Lease shall be considered performed by Sublessee to the extent and in the
amount rent is paid to Sublessor in accordance with Section 6 of this Sublease.
Sublessee shall not commit or suffer any act or omission that will violate any
of the provisions of the Master Lease. Sublessor shall exercise due diligence
in attempting to cause Lessor to perform its obligations under the Master Lease
for the benefit of Sublessee. If the Master Lease terminates, at Lessor option,
this Sublease shall terminate and the parties shall be relieved of any further
liability or obligation under this Sublease, provided however, that if the
Master Lease terminates as a result of a default or breach by Sublessor or
Sublessee under this Sublease and / or the Master Lease, then the defaulting
party shall be liable to the nondefaulting party for the damages suffered as a
result of such termination. If Sublessor should default on master leases,
Sublessee shall continue under the terms stated herewithin. Notwithstanding the
foregoing, if the Master Lease gives Sublessor any right to terminate the Master
Lease in the event of the partial or total damage, destruction, or condemnation
of the Master Premises or the building or project of which the Master Premises
are a part, the exercise of such right by Sublessor shall not constitute a
default or breach hereunder.
12. ATTORNEY'S FEES.
If Sublessor, or Sublessee, shall commence an action against the other arising
out of or in connection with this Sublease, the prevailing party shall be
entitle to recover its costs of suit and reasonable attorney's fees.
13. AGENCY DISCLOSURE:
Sublessor and Sublessee each warrant that they have dealt with no other real
estate broker in connection with this transaction except : CB XXXXXXX XXXXX,
INC. who represents AST Research and Stoneleigh, Huff, Brous, Xxxxxxxx, who
represents Flashnet.
14. COMMISSION.
Upon receipt of first months rent, Sublessor shall pay Broker a real estate
brokerage commission of 6% of gross rental proceeds of the primary term of
sublease, in accordance with Sublessor's contract, if any, with Broker for
services rendered in effecting this Sublease.
15. NOTICES.
All notices and demands, which may or are to be required or permitted to be
given by either party on the other hereunder, shall be in writing. All notices
and demands by the Sublessor to Sublessee shall be sent by United States Mail,
postage prepaid, addressed to the Sublessee at the Premises, and to the address
hereinbelow, or to such other place as Sublessee may from time to time designate
in a notice to the Sublessor. All notices and demands by the Sublessee to
Sublessee shall be sent by United States Mail, postage prepaid, addressed to the
Sublessor at the address set forth herein, and to such other person or place as
the Sublessor may from time to time designate in a notice to the Sublessee.
If to Sublandlord:
AST Research, Inc.
0000 Xxxxxxx Xxxxxx Xxxx.
XX Xxx 000000
Xxxx Xxxxx, XX 00000-0000
00000 Xxxxx Xxxxxxx
XX Xxx 00000
Xxxxxx, XX 00000-0000
Attn: General Counsel
If to Subtenant:
Flashnet Communications
0000 X.X. Xxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
If to Landlord:
Northbrook Business Center
000 X 0xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000-0000
With a copy to: X. Xxxxxx Xxxxxxx, Esq.
Xxxxx & Holland, L.L.P.
000 X 0xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000-0000
