EXHIBIT 10.2
SUBLEASE
AGREEMENT OF SUBLEASE ("SUBLEASE"), made as of the ___ day of August,
1998, by and between Cornerstone Internet Solutions Company formerly known as
Enteractive, Inc., d/b/a US Web Cornerstone, a Delaware corporation (hereinafter
referred to as "SUBLESSOR"), having an office at 000 Xxxxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000 and Xoom, Inc., a Delaware corporation (hereinafter
referred to as "SUBLESSEE"), having an address at 000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, pursuant to a certain lease dated as of April 1, 1996, by and
between Harrow Realty, Inc., as landlord ("LANDLORD"), and Utopia, Inc.
Sublessor's assignor pursuant to an assignment dated December 12, 1997, as
tenant, as amended on May 1, 1996 (collectively, the "LEASE") Landlord leased to
Sublessor certain space (the "DEMISED PREMISES") in the building ("BUILDING")
located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and
WHEREAS, Sublessor desires to sublease to Sublessee and Sublessee
desires to sublet from Sublessor a portion of the Demised Premises which is more
particularly set forth as the area cross-hatched on Exhibit A which is annexed
hereto (the "SUBLEASED PREMISES"), and Sublessee desires to take and hire the
Subleased Premises from Sublessor;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. LEASE. Sublessee hereby acknowledges receipt of a copy of the Lease
with certain portions not material to this Sublease intentionally excluded, a
copy of which is annexed hereto as Exhibit B. The terms and conditions of the
Lease are incorporated by reference into this Sublease and made a part hereof as
if herein set forth at length, Sublessor being substituted for "Landlord" under
the Lease, Sublessee being substituted for "Tenant" under the Lease and the
Subleased Premises being substituted for the "Premises" under the Lease.
Notwithstanding the foregoing, any inconsistencies between the terms of this
Sublease and the Lease which shall result from the foregoing incorporation shall
be resolved in favor of this Sublease; provided however, that if such
construction of terms would cause Sublessor to be in default under the terms of
the Lease, then such inconsistency shall be resolved in favor of the Lease. To
the extent that the definitions of the Lease incorporated by reference herein
differ from or are inconsistent with the definitions contained in this Sublease,
the definitions set forth in this Sublease shall prevail.
2. DEMISE AND TERM. (A) Sublessor hereby leases to Sublessee and
Sublessee hereby takes and hires from Sublessor the Subleased Premises for the
term and upon the terms and conditions set forth herein, subject to the
provisions of Section 41 of the Lease, and contingent upon the written consent
of the Landlord to this Sublease pursuant to Section 41 of the Lease including
the Landlord's consent to the use of the Subleased Premises set forth in
paragraph 7 hereof ("CONSENT TO SUBLEASE").
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(B) The term ("TERM") of this Sublease shall commence on August 15,
1998 ("COMMENCEMENT DATE"), except as otherwise provided herein, and end on May
30, 2001 ("EXPIRATION DATE"), unless sooner terminated pursuant to the
provisions of this Sublease or the Lease. Sublessor warrants and represents that
the term of the Lease extends beyond the Expiration Date. Promptly after
execution and delivery of this Sublease, Sublessor shall request the Consent to
Sublease. In the event that on or before August 10, 1998, Sublessor shall not
have obtained the Consent to Sublease, both Sublessor and Sublessee shall have
the right to cancel this Sublease upon two (2) days written notice to the other,
and thereupon this Sublease shall cease and terminate as if the date of such
cancellation was the Expiration Date as herein defined. Notwithstanding the
foregoing, Sublessee shall not have the right to possession of the Subleased
Premises until (i) Landlord has signed the Consent to Sublease, (ii) Sublessor
has received the Security in the full amount required under Section 25 of this
Sublease and (iii) Sublessor has received the sum of, $3,250.00 representing the
first one and one half installments of monthly Fixed Rent payable pursuant to
paragraph 3(A) of this Sublease.
3. RENT. The rents reserved under this Sublease for the Term, shall be
and consist of:
(A) "FIXED RENT" in the amount of (a) Twenty-Six Thousand Dollars
($26,000.00) per annum, for the period beginning on August 15, 1998, through and
including May 30, 2001 payable in equal monthly installments of Two Thousand One
Hundred Sixty-Six and 67/100 Dollars ($2,166.67) on the first day of each month
Fixed Rent payable for any partial month shall be prorated.
(B) "ADDITIONAL RENT" consisting of all such other sums of money as
shall become due from, and payable by, Sublessee to Sublessor hereunder
including but not limited to 25.83% of sums payable by Sublessor to Landlord
pursuant to the Xxxxxx'x Wage Escalation Rider and Section 43 ("Real Estate
Taxes") of the Lease utilizing a 1998 Calendar year for the base of Xxxxxx'x
Wage Escalation and a fiscal 1998/99 year for the base of Real Estate Tax
Escalations (for default in payment of which Sublessor shall have the same
remedies as for default in payment of Fixed Rent); all to be paid to Sublessor
at its address hereunder referred to, or such other place, or to such agent and
at such place, as Sublessor may designate by notice to Sublessee, in lawful
money of the United States of America. The terms "rent", "rents" and "rental,"
as used herein, shall include Fixed Rent and Additional Rent.
4. PAYMENT OF ADDITIONAL RENT.
Sublessee shall make all payments of Additional Rent required to be
made pursuant to this Sublease within ten (10) business days after Sublessor
furnishes Sublessee with a statement of the amount payable by Sublessee to
Sublessor. Sublessee shall have the right to reasonably request from Sublessor
copies of any applicable Landlord's statement received by Sublessor, and
Sublessor shall furnish same upon request, but same shall not affect Sublessee's
obligations to make the required payments hereunder. In the event that any items
payable by Sublessor under the Lease, in respect of which Sublessor shall have
received payments from Sublessee hereunder, are subject to adjustment by
Landlord at the end of a year or other period pursuant to the terms thereof,
then (a) if there has been a corresponding underpayment in the payments made by
Sublessee, Sublessee shall pay to Sublessor, no later than ten (10) days after
Sublessor furnishes
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to Sublessee a copy of the statement received by Sublessor from Landlord, an
amount equal to such underpayment; or (b) if there has been an overpayment in
such payments made by Sublessee, Sublessor shall credit against the next
payment of Additional Rent coming due hereunder an amount equal to such
overpayment, except that if no further payments of Additional Rent shall be
due hereunder, then Sublessor shall refund such amount to Sublessee within ten
(10) days. The obligation to pay any amount payable by Sublessee, or to
Sublessee as provided for in the immediately preceding sentence, shall survive
the end of the term of this Sublease and shall be payable by or to Sublessee,
as the case may be, in the same manner as if the Term of this Sublease had not
expired or terminated.
5. ACCEPTANCE OF SUBLEASED PREMISES. Sublessee has inspected the
Subleased Premises and Sublessee agrees to accept the Subleased Premises on the
Commencement Date in the condition in which the Subleased Premises exists on the
Commencement Date, "as is", and further agrees that neither Sublessor nor
Landlord shall have any obligation to perform any work, supply any materials,
incur any expenses or make any installations, in order to prepare the Subleased
Premises for Sublessee's occupancy.
6. PERFORMANCE OF COVENANTS IN THE LEASE. Except as expressly set forth
herein, during the Term of this Sublease, Sublessee shall observe and perform
all of the terms, covenants, conditions, and agreements contained in the Lease
to be performed and observed on the part of Sublessor, as the tenant thereunder,
insofar as same pertain to the Subleased Premises, and to the extent that the
same are not modified by the Sublease and all of such terms, covenants,
conditions and agreements are imposed upon Sublessee, whether or not
specifically set forth or referred to herein, Sublessor being substituted for
"Landlord" under the Lease, Sublessee being substituted for "Tenant" under the
Lease and the Subleased Premises being substituted for the "Premises" under the
Lease, provided, however, that Sublessor shall not be liable for any defaults by
the Landlord under the Lease and Sublessee shall not be bound by or subject to
the provisions of the Lease that are not incorporated by reference into this
Sublease. Sublessee hereby agrees (i) to refrain from doing or causing to be
done, or suffering or permitting any thing or act to be done (except for any act
or omission of Sublessor, its officers, directors, employees, agents, guests and
invitees), which constitutes a default under the Lease or causes the Lease, to
be canceled, terminated, forfeited or surrendered, or which makes Sublessor, as
tenant under the Lease, liable for any damages, claims or penalty, and (ii) to
indemnify and hold Sublessor harmless against any loss or expense suffered by
Sublessor by reason of Sublessee's failure to perform Sublessee's obligations
under this Sublease. Sublessor hereby agrees (i) that it will not take, or omit
to take, any action which will have the effect of causing a default under the
Lease, or of causing a substantial interruption in any of the services provided
by Landlord to the Subleased Premises under the Lease, and (ii) to indemnify and
hold Sublessee harmless against any loss or expense suffered by Sublessee by
reason of Sublessor's failure to perform its obligations under this Sublease and
under the Lease (except where such loss or expense is due to a default caused by
Sublessee under this Sublease). Provided Sublessee is not in default under this
Sublease beyond the giving of any required notice and the expiration of any
grace period, Sublessor agrees not to cancel or surrender voluntarily the Lease
as it affects the Subleased Premises, without the prior written consent of
Sublessee. If the Lease is terminated for any reason whatsoever, whether by
operation of law or otherwise, except where due to default of Sublessor (other
than a default of Sublessor under the Lease caused by Sublessee under this
Sublease), Sublessor shall not be liable in any manner whatsoever for such
termination.
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Sublessor shall promptly forward to Sublessee any default or termination
notice with respect to the Lease received by Sublessor from Landlord and this
Sublease shall terminate in the event of any such termination of the Lease. A
termination of the Lease to the default of Sublessor, other than Sublessor's
default under the Lease caused by Sublessee under this Sublease, shall be
considered a voluntary cancellation or surrender of the Lease hereunder. This
Sublease is subject and subordinate in all respects to the Lease and to the
matters to which the Lease is subject and subordinate. This Sublease shall
Also be subject to any amendments, modifications and supplements to the Lease
hereafter made between Landlord and Sublessor, provided that any such
amendments, modifications or supplements to the Lease hereafter made between
Landlord and Sublessor will not prevent, limit, restrict or adversely affect
the use by Sublessee of the Subleased Premises or increase any of the
Sublessee's monetary obligations or in any material respect its duties,
obligations, responsibilities and liabilities or decrease Sublessee's rights
under and in accordance with the terms of this Sublease.
7. USE. Sublessee hereby agrees that the Subleased Premises will be
occupied and used only for general and executive office use and for no other
purpose, and in a manner consistent in all respects with the provisions of the
Lease.
8. SERVICES UNDER THE LEASE. Except as otherwise provided either in
this Paragraph 8 or elsewhere in this Sublease, Sublessee shall be entitled,
during the Term hereof, to receive all services, utilities, repairs and
facilities to be provided by Landlord under the Lease insofar as such services,
utilities, repairs and facilities pertain to the Subleased Premises. Sublessor
shall use its reasonable efforts to secure the performance by Landlord of its
obligations under the Lease with respect to the Subleased Premises for the
delivery, provision and/or performance of such services, utilities, repairs and
facilities as are required to be provided by Landlord under the Lease, except
for such services, utilities, repairs and facilities for which Sublessor,
Sublessee or any other tenant is responsible; provided, however, Sublessor shall
in no event be required to commence or maintain litigation to enforce such
obligations of Landlord under the Lease, or to incur any cost or expense
whatsoever to secure such performance. In the event that Sublessor fails or
refuses to commence or maintain any such litigation to enforce obligations of
Landlord under the Lease, then and in that event, Sublessee shall have the right
to do so, at Sublessee's sole cost and expense, as Sublessor's attorney-in-fact
and/or assignee pursuant hereto. Sublessee agrees that Sublessor shall have no
liability of any nature whatsoever to Sublessee as a consequence of Landlord's
failure or delay in performing its obligations under the Lease, including,
without limitation, Landlord's breach of the covenant of quiet enjoyment,
provided that such failure, delay or breach is not the result of any default by
the Sublessor under the Lease, and provided further, that Sublessor shall have
had an opportunity to cure such default. Sublessee's obligations hereunder shall
not be impaired nor shall the performance thereof be excused because of any
failure or delay on Landlord's part in performing it obligations under the Lease
unless such failure or delay results from Sublessor's being in default under the
Lease and Sublessor's default thereunder is not due to a default of Sublessee
hereunder.
9. ALTERATIONS. Except as otherwise herein provided, Sublessee shall
make no alterations, installations, additions or improvements (collectively,
"ALTERATIONS") into or about the Subleased Premises except in accordance with
the applicable provisions of the Lease, including but not limited to Section 3
thereof.
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10. INSURANCE. (A) Sublessee, at Sublessee's own cost and expense,
shall maintain all policies of insurance with respect to the Subleased Premises,
in favor of Sublessor and Sublessee, which Sublessor is required to maintain in
favor of Landlord under the Lease, including but not limited to Sections 44
thereof, and shall comply with all requirements of the Lease with respect to
such insurance policies, including but not limited to types and amounts of
insurance.
(B) In the event that Sublessee shall fail to take out or continuously
maintain in force the insurance policies required hereunder, Sublessor may, at
its option, effect such insurance and charge the cost actually incurred by
Sublessor to Sublessee, who shall pay, as Additional Rent, such sums to
Sublessor.
(C) Each of the above described policies shall contain the following
endorsement, to the extent available, "It is understood and agreed that the
premiums for these policies are due and payable from Sublessee only."
11. FULL FORCE AND EFFECT OF THE LEASE. Sublessor represents that the
copy of the Lease delivered to Sublessee is a true and correct copy thereof,
except for the portions intentionally excluded as set forth above, none of which
excluded portions are relevant in any material respect to Sublessee's
obligations under this Sublease. Sublessor represents further that (a) there
have been no further amendments to nor modifications of the Lease, (b) to the
best of Sublessor's knowledge, neither Landlord nor Sublessor are in default
under the Lease, (c) Sublessor has not received any default notices from
Landlord, and (d) Sublessor has not sent any default notices to Landlord.
12. NO REPRESENTATIONS. Sublessor has made no representations,
agreements or promises with respect to the Building or the Subleased Premises or
the use thereof other than those expressly set forth in this Sublease and no
rights are to be deemed acquired by Sublessee, by implication or otherwise,
except those expressly granted herein. This Sublease contains the entire
agreement between Sublessor and Sublessee with respect to the Subleased Premises
and all prior negotiations and agreements are merged in this Sublease. Any
executory agreement hereafter made between Sublessor and Sublessee shall be
ineffective to change, modify, waive, release, discharge, terminate or effect an
abandonment or surrender of this Sublease, in whole or in part, unless such
agreement is in writing and signed by the party against whom enforcement thereof
is sought.
13. DEFAULT. (A) This Sublease and the term and estate herein granted
are subject to the limitations that:
(i) if, Sublessee shall default in the observance or performance
of any term, covenant or condition of the Lease on Sublessee's part to be
observed or performed, which default results in a notice of default by
Landlord to Sublessor and such default shall continue for a period of five (5)
days after delivery to Sublessee of a true and complete copy of Landlord's
notice of default, or if such default is of a nature that it cannot be
completely remedied within said five (5) day period if Sublessee fails to
commence to cure such default within said five (5) day period and thereafter
diligently prosecute to completion all steps necessary to remedy such default;
or
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(ii) if, Sublessee shall default in the payment when due of
any installment of Fixed Rent or in the payment when due of any Additional Rent,
and such default shall continue for a period of three (3) days after notice by
Sublessor to Sublessee of such default; or
(iii) if, Sublessee shall default in the observance or
performance of any term, covenant or condition of this Sublease on Sublessee's
part to be observed or performed (other than the covenants for the payment of
Fixed Rent and Additional Rent) and Sublessee shall fail to remedy such
default within ten (10) days after notice by Sublessor to Sublessee of such
default, or if such default is of a nature that it cannot be completely
remedied within said ten (10) day period, if Sublessee shall not commence
within said ten (10) day period and thereafter diligently prosecute to
completion all steps necessary to remedy such default; or
(iv) if, the Subleased Premises shall become deserted or
abandoned; or
(v) if, Sublessee's interest in this Sublease shall devolve
upon or pass to any person, whether by operation of law or otherwise, except as
may be expressly permitted under Paragraph 19 hereof; or
(vi) if, Sublessee shall file a voluntary petition in
bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or
shall file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the present or any future federal bankruptcy act or any other statute or law,
or shall make an assignment for the benefit of creditors or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Sublessee or of all or any part of Sublessee's property; or
(vii) if, within sixty (60) days after the commencement of any
proceeding against Sublessee, whether by the filing of a petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or future applicable federal,
state or other statute or law, such proceeding shall not have been dismissed, or
if, within sixty (60) days after the appointment of any trustee, receiver or
liquidator of Sublessee, or of all or any part of Sublessee's property, without
the consent or acquiescence of Sublessee, such appointment shall not have been
vacated or otherwise discharged, or if any lien, execution or attachment shall
be filed or issued against Sublessee or all or any part of Sublessee's property
pursuant to which the Subleased Premises shall be taken or occupied or attempted
to be taken or occupied by someone other than Sublessee (except as provided in
Paragraph 19 hereof);
then, upon the occurrence, at any time prior to or during the
Term, of any one or more of such events, Sublessor may, at any time thereafter,
at Sublessor's sole option, give to Sublessee a five (5) days' notice of
cancellation of this Sublease and, in such event, this Sublease and the Term
shall come to an end and expire (whether or not the Term shall have commenced)
upon the expiration of said five (5) day period with the same force and effect
as if the date were the Expiration Date stated herein and Sublessee shall then
quit and surrender the Subleased Premises to Sublessor, but Sublessee shall
remain liable for damages as provided in Paragraph 27 hereof. Sublessor shall
have with respect to any such default any and all of such rights and remedies as
are given to Landlord under the Lease with respect to defaults by the
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tenant thereunder, all with the same force and effect as though the provisions
of the Lease with respect to defaults and the rights and remedies of Landlord
were set forth at length herein. If Sublessee shall default in the performance
of any of Sublessee's obligations hereunder or under the provisions of the
Lease, after the giving of notice and opportunity to cure as provided above,
Sublessor, without thereby waiving such default, may, at Sublessor's option,
perform the same for the account and at the expense of Sublessee. If Sublessor
makes any expenditures or incurs any obligations for the payment of money,
including without limitation, reasonable attorneys' fees and expenses in
instituting, prosecuting or defending any action or proceeding, by reason of
any default of Sublessee hereunder after giving of notice and opportunity to
cure as provided above, such sums paid or obligations incurred, with interest
at the rate of 4% per annum above the then current prime rate charged by
Citibank, N.A. or its successor, shall be deemed to be Additional Rent and
shall be paid by Sublessee to Sublessor on demand.
(B) If Sublessor shall default in the observance or performance of any
term, covenant or condition of this Sublease on Sublessor's part, to be observed
or performed, and Sublessor shall fail to remedy such default within ten (10)
days after notice by Sublessee to Sublessor of such default, or if such default
is of a nature that it cannot be completely remedied within said ten (10) day
period, if Sublessor shall not commence within said ten (10) day period and
thereafter diligently prosecute to completion all steps necessary to remedy such
default, then if Sublessee makes any expenditures or incurs any obligations for
the payment of money, including without limitation, reasonable attorney's fees
and expenses instituting, prosecuting or defending any action or proceeding, by
reason of such default of Sublessor hereunder, after the giving of notice and an
opportunity to cure as provided above, Sublessor shall reimburse to Sublessee on
demand all such sums paid by Sublessee, with interest at the rate of 4% per
annum above the then current prime rate charged by Citibank, N.A. or its
successor.
14. INDEMNITY AND HOLD HARMLESS. (A) Neither Sublessor, nor its agents,
shall be liable to Sublessee, its employees, agents, contractors, licensees,
servants, invitees or visitors and Sublessee shall save Sublessor and its agents
harmless from and against any and all liabilities, obligations, penalties,
fines, suits, claims, demands, actions, costs and expenses of any kind or nature
(including, without limitation, reasonable attorneys' fees and expenses),
incurred in connection with or arising from any injury to Sublessee, its
employees, agents, contractors, licensees, servants, invitees or visitors or to
any other person on the Subleased Premises in or about the Subleased Premises,
or from any injury or damage to or loss (by theft or otherwise) of, any of
Sublessee's property and/or of the property of any other person irrespective of
the cause of such injury, damage or loss, other than injury, damage or loss
caused by Sublessor's willful acts or omissions or negligence. Sublessee agrees
to indemnify and save Sublessor and its agents harmless from and against any and
all liabilities obligations, suits, claims, demands, actions, costs and expenses
of any kind or nature by anyone whomsoever (including, without limitation,
reasonable attorneys' fees and expenses), incurred in connection with or arising
from (i) any default by Sublessee in the observance or performance of any of the
terms, covenants, conditions or agreements of this Sublease on Sublessee's part
to be observed or performed, beyond the expiration of any applicable grace
period, or (ii) the use or occupancy or manner of use or occupancy of the
Subleased Premises by Sublessee or any person claiming through or under
Sublessee, other than as permitted under this Sublease, or (iii) the condition
of the Subleased premises (ordinary wear and tear excepted), except if created
by Sublessor, or (iv) any improper acts, omissions or negligence of Sublessee,
or the employees, agents, contractors, licensees,
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servants, invitees or visitors of Sublessee, in or about the Subleased
Premises or the Building, during the Term. If any action or proceeding shall
be brought against Sublessor by reason of any such claim, Sublessee, upon
notice from Sublessor, agrees to resist or defend such action or proceeding
and to employ counsel therefor reasonably satisfactory to Sublessor. Sublessee
shall pay to Sublessor on demand, as Additional Rent, all sums which may be
owing to Sublessor by reason of the provisions of this Paragraph 14.
Sublessee's obligations under this Paragraph 14 shall survive the Expiration
Date or sooner termination of the Term.
(B) Sublessor agrees to indemnify and save Sublessee and its agents
harmless from and against any and all liabilities, obligations, penalties,
fines, suits, claims, demands, actions, costs and expenses of any kind or nature
by anyone whomsoever (including, without limitation, reasonable attorneys' fees
and expenses), incurred in connection with or arising from (i) any default by
Sublessor in the observance or performance of any of the terms, covenants,
conditions or agreements of this Sublease on Sublessor's part to be observed or
performed, beyond the expiration of any applicable grace period, or (ii) the use
or occupancy or manner of use or occupancy of the portion of the Demised
Premises occupied only by Sublessor other than as permitted in the Lease, or
(iii) any acts, omissions or negligence of Sublessor, or the employees, agents,
contractors, licensees, servants, invitees, or visitors of Sublessor in or about
the Demised Premises or the Building, during the Term.
15. NOTICES. Any notice, demand, request or other document which, under
the terms of this Sublease or under any statute, must of may be given or made by
the parties hereto, must be in writing, and shall be either personally delivered
(provided a written receipt therefor is obtained), or sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
party for whom intended at its address as set forth on page 1 hereof, and, if to
Sublessor, with a copy to Alter Xxxxxxxx & Mantel LLP, 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esquire or if to Sublessee, with
a copy to: Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 Attention: Xxxxx Xxxxx, Esq. (provided, however, the failure to forward a
copy of any notice to counsel shall not be deemed to make such notice
defective). Either party, however, may designate a new or other address by
written notice given in accordance with this Paragraph 15. Any notice personally
delivered shall be deemed given upon the signing of a receipt therefor, and any
notice so addressed and mailed shall be deemed to be given either when
delivered, or, if delivery is refused, five (5) business days after the date
mailed, as the case may be. Any notice, demand or request given or made by
counsel for a party shall be deemed given or made by such party.
16. COUNTERCLAIM. Sublessee hereby waives the right to interpose a
counterclaim (other than mandatory counterclaims) in any summary proceeding
initiated by Sublessor to remove Sublessee from the Subleased Premises.
17. END OF TERM. On the Expiration Date, or upon any earlier
termination of this Sublease, Sublessee shall quit and surrender the Subleased
Premises to Sublessor broom-clean and in as good order, condition and repair as
the Subleased Premises existed upon the Commencement Date except for ordinary
wear and tear, any restoration of the Subleased Premises not required pursuant
hereto, damage or destruction by fire and other casualty and such other damage
the repair of which is not Sublessee's obligation hereunder (provided no such
damage shall be due to Sublessee's negligence or misconduct), and otherwise in
accordance with
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the applicable provisions of the Lease. Sublessee recognizes that Sublessor
may suffer substantial damage if Sublessee fails to surrender and vacate the
Subleased Premises on the Expiration Date. Sublessee, therefore, agrees that
if Sublessee shall hold-over or remain in possession beyond the Expiration
Date of this Sublease, Sublessee shall in addition to the provisions of
Xxxxxxxxx 00 xxxxx, xx liable for all compensatory damages directly related
thereto and arising therefrom, including any damages arising out of any lost
opportunities ( and/or new leases) in connection with such holding over. All
damages to Sublessor by reason of such holding-over by Sublessee may be the
subject of a separate action and need not be asserted by Sublessor in any
summary proceeding against Sublessee. Sublessee further agrees to indemnify
Sublessor against and from any and all losses, liabilities, damages, costs and
expenses (including reasonable attorneys' fees) Sublessor incurs to dispossess
Sublessee, or otherwise, resulting from Sublessee's failure to vacate the
Subleased Premises on the Expiration Date. Sublessee's obligations under this
Paragraph 17 shall survive the termination of this Sublease.
18. QUIET ENJOYMENT. Sublessor covenants with Sublessee that as long as
Sublessee shall pay the Fixed Rent and Additional Rent and shall duly perform
all of the terms, covenants, conditions and agreements of this Sublease on its
part to be performed, Sublessee shall, subject to the terms hereof and of the
Lease, peaceably have, hold and enjoy the Subleased Premises during the Term
provided herein without hindrance or molestation by Sublessor or any party
claiming by, through or under Sublessor.
19. ASSIGNMENT AND SUBLETTING. Sublessee, for itself, and its
successors and assigns, expressly covenants that it shall not assign this
Sublease, nor underlet, nor suffer, nor permit the Subleased Premises or any
part thereof to be used or occupied by others, except upon the prior written
consent of both (i) Sublessor, which consent shall not be unreasonably withheld
or delayed, and (ii) Landlord; and provided further that any such attempted
assignment, subletting, use or occupancy shall be subject to compliance with all
of the terms and conditions contained in Section 41 of the Lease and to the
rights of Landlord thereunder.
20. EFFECT OF TERMINATION OF THE LEASE. Notwithstanding the provisions
of Paragraph 2 hereof, the Term of this Sublease shall end one day prior to the
Term of the Lease if Landlord shall terminate the Lease in accordance with its
terms. Upon receipt of written notice from Landlord terminating the Lease,
Sublessor shall notify Sublessee of Landlord's intention to terminate the Lease
and the date such termination shall be effective. In the event of such early
termination by Landlord ("EARLY TERMINATION"), Sublessor shall return to
Sublessee any prepaid Fixed Rent, any prepaid Additional Rent or Additional Rent
covering any period following Early Termination and the Security provided in
Paragraph 25 hereof, or balance of the Security as the case may be, and
thereafter this Sublease shall terminate as finally and completely as if the
date set forth in the Early Termination notice shall be the Expiration Date set
forth herein for the termination of the Sublease Term.
21. EFFECT OF TERMINATION OF THIS SUBLEASE. References in this Sublease
to "termination" of this Sublease include expiration or earlier termination of
the Term hereof or cancellation of this Sublease pursuant to any of the
provisions of this Sublease, the Lease or pursuant to law. Upon the termination
of this Sublease, the term and estate granted by this Sublease shall end at noon
on the date of termination as if such date were the Expiration Date hereof, and
neither party shall have any further obligation or liability to the other after
such
9
termination except as shall be expressly provided in this Sublease, any
liability for a payment which shall have accrued with respect to any period
ending prior to or at the time of termination shall survive the termination of
this Sublease.
22. REMEDIES CUMULATIVE. Each right and remedy of Sublessor and
Sublessee provided for in this Sublease shall be cumulative and shall be in
addition to every other right and remedy provided for in this Sublease now or
hereafter existing at law or in equity or by statute or otherwise.
23. BINDING EFFECT. The terms, covenants, conditions and agreements
contained in this Sublease shall bind and inure to the benefit of Sublessor and
Sublessee and their respective successors and assigns, except that no violation
of the provisions of Paragraph 19 hereof shall operate to vest any rights in any
successor or assignee of Sublessee. It is understood and agreed that the
obligations of Sublessor under this Sublease shall not be binding upon Sublessor
with respect to any period subsequent to the transfer of its interest in the
Lease, and that in the event of such transfer said obligations shall thereafter
be binding upon the transferee of the Sublessor's interest as tenant under the
Lease.
24. [INTENTIONALLY DELETED]
25. SECURITY. A. On or before the date that is three days after
Sublessor notifies Sublessee that Sublessor has received the Consent to
Sublease, Sublessee shall deposit and shall thereafter maintain at all times
with Sublessor until the date that is thirty (30) days after the expiration of
the Term, as a security deposit (the "Security") for the faithful performance
and observance by Sublessee of the covenants, agreements, terms, provisions and
conditions of this Sublease, the sum of Three Thousand Eight Hundred Thirty
Three and 34/100 Dollars ($3,833.34).
B. It is agreed that in the event Sublessee defaults in respect of any
of the covenants, agreements, terms, provisions and conditions of this Sublease
(after notice and the expiration of any applicable grace period), Sublessor may
use, apply or retain such part of the Security as shall be equal to the sum as
to which Sublessee is in default or for any sum which Sublessor may expend or
may be required to expend by reason of Sublessee's default in respect of any of
the covenants, agreements, terms, provisions and conditions of this Sublease,
including, but not limited to, any damages or deficiency in the re-letting of
the Subleased Premises, whether such damages or deficiency occurred before or
after summary proceedings or other re-entry by Sublessor. Sublessor shall not be
required to so use, apply or retain any part of the Security, but if any part
thereof is so used, applied or retained in accordance with the provisions of
this Section, Sublessee shall, upon demand, immediately deposit with Sublessor
an amount equal to the amount so used, applied or retained.
C. In the event that Sublessee shall fully and faithfully comply with
all of the terms, provisions, covenants, agreements and conditions of this
Sublease, any unapplied Security shall be returned to Sublessee within ten (10)
days after the date fixed as the end of this Sublease and after delivery of the
entire possession of the Subleased Premises to Sublessor.
26. Intentionally deleted.
10
27. RE-ENTRY BY SUBLESSOR; REMEDIES. (A)(I) If this Sublease and the
Term shall expire and come to an end as provided in Paragraph 13 hereof:
(a) Sublessor and its agents may immediately, or at any time
thereafter, reenter the Subleased Premises or any part thereof, either by
summary proceedings, or by any other applicable court action or judicial
proceeding (without being liable to indictment, prosecution or damages
therefor), and may repossess the Subleased Premises and the Furniture and remove
any and all of their property and effects from the Subleased Premises; and
(b) Sublessor, at its option, may relet the whole or any part or parts
of the Subleased Premises, at any time or from time to time, either in the name
of Sublessor or otherwise, to such subtenant or subtenants, for such term or
terms ending before, on or after the Expiration Date, at such rental or rentals
and upon such other conditions, which may include concessions and free rent
periods, as Sublessor, in its sole discretion, may determine. Sublessor shall
have no obligation to relet the Subleased Premises or any part thereof and shall
in no event be liable for refusal or failure to relet the Subleased Premises or
any part thereof, or, in the event of any such reletting, for refusal or failure
to collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Sublessee of any liability under this Sublease or
otherwise to affect any such liability. Sublessor, at its option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Subleased Premises as Sublessor, in its
sole discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Sublessee of any liability
under this Sublease or otherwise affecting any such liability.
(ii) Sublessee, on its own behalf and on behalf of all persons
claiming through or under Sublessee, including all creditors, does further
hereby waive any and all rights which Sublessee and all such persons might
otherwise have under any present or future law to (a) redeem the Subleased
Premises, or re-enter or repossess the Subleased Premises, or (b) restore the
operation of this Sublease, after (1) Sublessee shall have been dispossessed by
a judgment or by warrant of any court or judge, (2) any re-entry by Sublessor,
or (3) any expiration or termination of this Sublease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Sublease. The words "re-enter", "re-entry"
and "re-entered" as used herein shall not be deemed to be restricted to their
technical legal meanings. The right to invoke the remedies hereinbefore set
forth are cumulative and shall not preclude Sublessor from invoking any other
remedy allowed at law or in equity.
(B) In the event of any breach or threatened breach by Sublessee or any
person claiming through or under Sublessee, of any of the terms of this Sublease
(whether or not the Term shall have commenced), Sublessor shall be entitled to
enjoin such breach or threatened breach and shall have the right to invoke any
other remedy allowed at law or in equity, by statute or otherwise, as if
re-entry, summary proceedings or other specific remedies were not provided for
in this Sublease.
(C) (i) If this Sublease and the Term shall expire and come to an end
as provided in Paragraph 13 hereof, or by or under any summary proceeding or any
other action or proceeding, or if Sublessor shall re-enter the Subleased
Premises as provided in this Paragraph 27 and
11
elsewhere in this Sublease, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:
(a) Sublessee shall Pay to Sublessor all Fixed Rent, Additional Rent
and other charges payable under this Sublease by Sublessee to Sublessor to the
date upon this Sublease and the Term shall have expired and come to an end or to
the date of re-entry upon the Subleased Premises by Sublessor, as the case may
be;
(b) All monies, if any, theretofore paid by Sublessee to Sublessor,
whether as advanced Fixed Rent, Additional Rent, Security, or otherwise, shall
be credited by Sublessor against any damages payable by Sublessee to Sublessor,
and any surplus, if any, shall be refunded to Sublessee;
(c) Sublessee also shall be liable for and shall pay to Sublessor, as
damages, any deficiency (hereafter referred to as "DEFICIENCY") between the
Fixed Rent and Additional Rent reserved in this Sublease for the period which
otherwise would have constituted the unexpired portion of the Term (conclusively
presuming the Additional Rent to be the same as was payable for the year
immediately preceding such termination or re-entry) and the net amount, if any,
of rents collected under any reletting for any part of such period (first
deducting from the rents collected under any such reletting all of Sublessor's
expenses in connection with the termination of this Sublease, and Sublessor's
re-entry upon the Subleased Premises and with such reletting, including, but not
limited to, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees and disbursements, alteration costs and other expenses of
preparing the Subleased Premises for such reletting). Any such Deficiency shall
be paid in monthly installments by Sublessee on the days specified in this
Sublease for payment of installments of Fixed Rent. Sublessor shall be entitled
to recover from Sublessee each monthly Deficiency as the same shall arise, and
no suit to collect the amount of the Deficiency for any month shall prejudice
Sublessor's right to collect the Deficiency for any subsequent month by a
similar proceeding;
(ii) If the Subleased Premises, or any part thereof, shall be
relet together with other space in the Demised Premises, rents collected or
reserved under any such reletting and the expenses of any such reletting shall
be equitably apportioned for the purposes of Section C.(i) hereof. In no event
whatsoever shall Sublessee be entitled to any rents collected or payable under
any reletting, whether or not such rents shall exceed the Fixed Rent and
Additional Rent reserved in this Sublease. Nothing contained in Paragraph 13
hereof or this Paragraph 27 shall be deemed to limit or preclude the recovery by
Sublessor from Sublessee of the maximum amount allowed to be obtained as damages
by any statute or rule of law, or of any sums or damages to which Sublessor may
be entitled in addition to the damages set forth in Section C.(i) hereof.
28. CERTIFICATES. Sublessor and Sublessee shall, without charge, at
reasonable intervals, and from time to time, within ten (10) business days after
requests by the other, deliver a written instrument to any person, firm or
corporation specified by them, duly executed and acknowledged, certifying:
(a) that this Sublease is unmodified and in full force and effect, if
there have been any modifications, that the same are in full force and effect as
modified and stating any such
12
modifications and if the Sublease is not then in full force and effect, so
stating and setting forth in reasonable detail the nature of any default,
deficiency or changed circumstance;
(b) whether or not there are then existing set-offs or defenses against
the enforcement of any of the agreements, terms, covenants or conditions of this
Sublease and any modifications thereof on the part of Sublessee to be performed
or complied with, and, if so, specifying the same;
(c) the dates to which the Fixed Rent and Additional Rent, and other
charges hereunder, have been paid; and
(d) whether the term of this Sublease has commenced and rent is payable
thereunder and whether Sublessee has accepted possession of the Subleased
Premises.
29. EXECUTION OF SUBLEASE. Submission by Sublessor of the within
Sublease for execution by Sublessee shall confer no rights nor impose any
obligations on either party unless and until both Sublessor and Sublessee shall
have executed this Sublease, duplicate originals thereof shall have been
delivered to the respective parties and Landlord shall have delivered to
Sublessor the Consent to Sublease and Sublessor shall have promptly notified
Sublessee of its receipt of Landlord's Consent to Sublease.
30. ELECTRICITY. The cost of electric current provided to the Subleased
Premises is included in the Fixed Rent.
31. HOLDING OVER. If Sublessee holds over in possession after the
expiration or sooner termination of the original Term or of any extended term of
this Sublease, such holding over shall not be deemed to extend the Term or renew
the Sublease, but such holding over thereafter shall continue upon the covenants
and conditions herein set forth, except that the charge for use and occupancy of
such holding over for each calendar month or part thereof (even if such part
shall be a small fraction of a calendar month) shall be the sum of:
(a) 1/12 of the annual Fixed Rent set forth in this Sublease, times
2.0, plus
(b) 1/12 of all other items of annual Additional Rent which would have
been payable pursuant to this Sublease had this Sublease not expired, plus
(c) those other items of Additional Rent (not annual Additional Rent)
which would have been payable pursuant to this Sublease, had this Sublease not
expired, which total sum Sublessee agrees to pay to Sublessor promptly upon
demand, in full, without set-off or deduction. Neither the billing nor the
collection of use and occupancy in the above amount shall be deemed a waiver of
any right of Sublessor to collect damages for Sublessee's failure to vacate the
Subleased Premises after the expiration or sooner termination of this Sublease.
The aforesaid provisions of this Section shall survive the expiration or sooner
termination of this Sublease.
32. LATE CHARGES. If Sublessor does not receive payment of any Fixed
Rent or Additional Rent within five (5) days after any such Fixed Rent or
Additional Rent is due, then Sublessee shall pay to Sublessor, as a "late
charge", interest at the lesser of (i) two percent (2%) per annum above the then
current prime rate charged by Citibank, N.A. or its successor, or
13
(ii) the maximum rate permitted by applicable law on the amount of Fixed Rent
and/or Additional Rents overdue until such rental payment is made and such
"late charge" shall be collectible as Additional Rent by Sublessor.
33. ATTORNEYS' FEES. In case it shall be necessary for Sublessor to
institute any action or proceeding against Sublessee for the nonpayment of rent
or for the violation of any of the covenants or provisions of this Sublease or
for the recovery of possession of the Subleased Premises or should Sublessor be
compelled to intervene in any action or proceeding wherein Sublessee is a party
in order to enforce Sublessor's interest or rights hereunder, then and in any of
such events, if Sublessor shall obtain a judgment or order in its favor on the
merits, sustained on appeal if one is taken, in such action or proceeding,
Sublessee shall be obligated to pay to Sublessor reasonable attorneys' fees,
costs and disbursements incurred for the institution and prosecution of any such
action, proceeding or intervention.
34. See Rider attached hereto and made a part hereof.
35. See Rider attached hereto and made a part hereof.
36. See Rider attached hereto and made a part hereof.
37. NO BROKER. Sublessor and Sublessee represent and warrant that they
have dealt with no broker or finder in connection with this Sublease other than
Xxxxxxx Property Advisors, Inc. Sublessor shall pay a commission to Xxxxxxx
Property Advisors, Inc. pursuant to a separate written agreement. Sublessor and
Sublessee each shall indemnify, defend and save harmless the other from and
against all claims arising from any breach by such party of the foregoing
representation, warranty or covenant. The indemnity set forth herein shall
survive the expiration or earlier termination of this Sublease.
14
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
CORNERSTONE INTERNET SOLUTIONS COMPANY
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
SUBLESSEE:
XOOM, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: CEO
15
RIDER TO SUBLEASE DATED AS OF AUGUST __, 1998, BETWEEN
CORNERSTONE INTERNET SOLUTIONS COMPANY, AS SUBLESSOR, AND
XOOM, INC., AS SUBLESSEE, FOR A PORTION OF THE
THIRD FLOOR AT 00 XXXX 00XX XXXXXX
34. If any conflict shall arise between any of the provisions of this Rider and
any of the terms, printed or typewritten, of the printed portion of the Sublease
to which this Rider is attached, all such conflicts shall be resolved in favor
of the provisions of this Rider.
35. Except as otherwise expressly set forth herein, all of the terms, covenants,
conditions and agreements contained in the Lease are incorporated and made a
part of this Sublease as though fully set forth herein and shall apply to the
Subleased Premises to the extent that the same are applicable. Notwithstanding
the foregoing:
(i) the following provisions of the Lease are not incorporated into this
Sublease;
(A) all of the lead-in on page 1 prior to Article 1.
(B) Articles 30, 32, 47, 50, the Work Letter attached to the Lease, and
the Electricity Rider attached to the Lease.
(ii) Article 43 of the Lease, as incorporated into this Sublease is modified by
inserting the phrase "which the demised premises are a part thereof in the (A)
13th line after the word "building", (B) 32nd line after the word "building" and
(C) 34th line after the word "building", respectively.
(iii) The amendment to the Lease dated May 1, 1996, as incorporated into this
Sublease, is modified by deleting the sentence "For and in consideration of such
additional service exclusively, Tenant agrees that its annual (base) rent
payable shall be increased during the term of this lease by an addition amount
of $_______________ per annum or $__________ per month, pro rata, always subject
to future increase or decrease as provided by said lease."
(iv) The Additional Clauses attached to the Lease dated December 12, 1997, as
incorporated into this Sublease, are modified by deleting the provisions therein
captioned "Term", Rental", Electricity", "Work" and "Miscellaneous".
36. Notwithstanding anything contrary contained herein, Sublessor's consent
shaft not be required for assignments, subleases, or other transfer transactions
(i) with a corporation into or with which Sublessee is merged or consolidated or
with a person or entity to which substantially all of Sublessee's assets are
transferred or to which a majority of the issued and outstanding capital stocks
of a corporate tenant or subtenant, or of the total interests in a partnership
tenant or subtenant, or of control in a limited partnership tenant or subtenant
is transferred (provided such merger or transfer is for a legitimate business
purpose and not principally for the purpose of transferring the subleasehold
estate created by this Sublease), and (ii) with an entity that is an affiliate
of Sublessee or is controlled by, under common control with or controls
Sublessee. The reorganization of Sublessee named in this Sublease to a publicly
traded corporation (whether or not a change in control of such Sublessee is
thereby effected) and the transfer of all of the
16
partnership interests in, or outstanding stock of, Sublessee named in this
Sublease to a publicly traded corporation shall not require Sublessor's
consent Sublessor, upon Sublessee's request, shall use best efforts to cause
Landlord to promptly deliver Landlord's consent to the foregoing
transaction(s).
17
EXHIBITS TO SUBLEASE
--------------------
Subleased Premises Exhibit A
Lease Exhibit B
18
EXHIBIT A
---------
SUBLEASED PREMISES
19
(diagram of subleased premises)
Suite 301 - 1000 rsf
00 Xxxx 00xx Xxxxxx
20
EXHIBIT B
---------
LEASE
(This exhibit has not been filed as it has been deemed immaterial to an
investment decision pursuant to the provisions of Item 601(b)(2) of Regulation
S-K. The Registrant agrees to furnish a copy of this exhibit to the Commission
upon request.)
21
