Illinois-Westchester-Two Westbrook Corporate Center Sub-Sublease - Millennium Rail Inc. and Online Data Corp.
SUB-SUBLEASE
This. Sub-Sublease (this. "Sub-Sublease") is dated as of the 19th day of
June, 2001 between MILLENNIUM RAIL, INC., a Delaware corporation having an
office at Two Westbrook Corporate Center, Suite 200, Westchester, Illinois 60154
("Sub-Sublandlord") and ONLINE DATA CORP., a Delaware corporation having an
office at One Westbrook Center, Suite 840, Westchester, Illinois 60154
("Sub-Subtenant").
RECITALS:
A. By Office Lease Agreement, dated as of June 18, 1998, Hyperion
Solutions Corporation (formerly known as Arbor Software Corporation)
("Sublandlord"), as tenant, leased from EOP-Westbrook Corporate Center, L.L.C.,
as landlord ("Landlord"), premises consisting of approximately 8,092 rentable
square feet and known as Suite 200 on the 2nd floor of a building known as Two
Westbrook Corporate Center, Westchester, Illinois 60154 (the "Premises") (as
modified by the Consent (as hereinafter defined), the "Prime Lease").
B. By Sublease, dated as of March 22, 1999, Sub-Sublandlord, as subtenant,
subleased from Sublandlord, as sublandlord, the Premises, which was modified by
Amendment to Sublease, dated as of March 31, 1999, and Amendment to Sublease,
dated as of January, 2000 (collectively, the "Amendment"), each between
Sub-Sublandlord and Sublandlord (as modified by the Amendment and the Consent,
the "Sublease").
C. By Landlord Consent to Sublease, dated as of May 28, 1999, among
Landlord, Sublandlord and Sub-Sublandlord, Landlord consented to the Sublease
upon the terms and conditions set forth therein and by Landlord Consent to
Amendment of Sublease, undated, among Landlord, Sublandlord and Sub-Sublandlord,
Landlord consented to the Amendment upon the terms and conditions set forth
therein (collectively, the "Consent").
D. Sub-Subtenant desires to sub-sublease the Premises from
Sub-Sublandlord, and Sub-Sublandlord desires to sub-sublease the Premises to
Sub-Subtenant on the terms and subject to the conditions hereinafter set forth.
E. All defined terms used but not defined in this Sub-Sublease shall have
the same meanings given in the Prime Lease.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter contained, the parties hereby agree as follows:
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1. Demise.
Sub-Sublandlord hereby sub-subleases the Premises to Sub-Subtenant subject
to and upon the terms and conditions set forth herein. A copy of the Sublease is
attached hereto as Exhibit A. A copy of the Prime Lease is attached hereto as
Exhibit B. Sub-Sublandlord represents to Sub-Subtenant that it has no actual
knowledge that the Prime Lease and Sublease are not in full force and effect.
Sub-Sublandlord represents to Sub-Subtenant that it has not given or received
any written notice of, and has no actual knowledge regarding, the existence of a
default under the Prime Lease or under the Sublease which remains uncured. Each
party hereto represents to the other that it has all requisite authority to
enter into this Sub-Sublease without the consent or approval of any other party
except for the consent of Landlord and Sublandlord which is required under the
terms of the Sublease and Prime Lease.
2. Term; As-Is Condition.
(a) The term (the "Term") of this Sub-Sublease shall commence on July 1,
2001 or such later date as shall be 5 days after Landlord's and Sublandlord's
written consent is received by Sub-Subtenant pursuant to Section 19 below (the
"Commencement Date") and shall terminate on July 31, 2003, unless sooner
terminated pursuant to the provisions of this Sub-Sublease.
(b) Sub-Sublandlord shall deliver the Premises in broom-clean condition
and free of all occupants, but furnished with the Furniture and the Telephone
System (each as defined in Section 17 below). Sub-Subtenant shall take
possession of the Premises in its present "as is" condition. Except as herein
specified, no representations have been made to Sub-Subtenant concerning the
condition of the Premises, nor have any promises to alter or improve the
Premises (or to give any form of work allowance) been made by Sub-Sublandlord or
any party on behalf of Sub-Sublandlord.
3. Incorporation By Reference.
To the extent not inconsistent with the provisions of this Sub-Sublease,
the terms, provisions, covenants, and conditions of the Prime Lease are hereby
incorporated by reference on the following basis: The term "Landlord" therein
shall refer to Sub-Sublandlord hereunder, its successors and assigns; and the
term "Tenant" therein shall refer to Sub-Subtenant hereunder, its permitted
successors and assigns and in this Sub-Sublease Sub-Subtenant hereby assumes all
of the obligations and is granted and assigned on the terms set forth in this
Sub-Sublease all of the rights and interests of Sublandlord under the Prime
Lease with respect to the Premises accruing during the
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Term and in this Sub-Sublease Sub-Sublandlord is granted and assigned all of the
rights (but does not assume the obligations) of Landlord under the Prime Lease
with respect to the Premises accruing during the Term. Anything to the contrary
herein notwithstanding, Sub-Subtenant is not assuming any obligation to pay Base
Rent or Additional Rent directly to Landlord. The rights and obligations assumed
by Sub-Subtenant and rights granted and assigned to Sub-Sublandlord hereunder
which accrue during the Term shall survive and extend beyond the termination of
this Sub-Sublease.
4. Rent.
(a) Sub-Subtenant shall, pay to Sub-Sublandlord, at its office referred to
above, as annual base rent (the "Base Rent") TWO HUNDRED TWO THOUSAND THREE
HUNDRED AND 00/100 DOLLARS ($202,300.00), which amount shall be due from and
after the Commencement Date and payable in advance in equal monthly installments
of $16,858.33 on the first (1st) day of each month, commencing on the
Commencement Date (except to the extent Base Rent has been prepaid pursuant to
Section 4(b) below).
(b) An amount equal to one monthly installment of Base Rent has been paid
upon Sub-Subtenant's execution hereof, which sum shall be applied to the first
installment(s) of Base Rent due hereunder. If the Commencement Date is not the
first day of a month, the sum due for the calendar month in which the
Commencement Date occurs shall be prorated based on the number of days remaining
in said month after the Commencement Date. The balance of the sum remitted on
execution hereof, after application to the above-mentioned prorated sum, shall
be applied against the first full month's Base Rent due hereunder. All other
payments owed by Sub-Subtenant hereunder shall be paid as Additional Rent. Base
Rent and Additional Rent are herein collectively called "Rent".
(c) Rent shall be paid without deduction or setoff, and Base Rent shall be
paid without notice or demand. If any Rent shall not be paid on or before the
due date thereof, Sub-Subtenant shall, in addition thereto, pay a late charge of
5% of the overdue installment.
5. Escalations and Electrical Charges.
(a) Pursuant to Section IV(A) of the Prime Lease, Sublandlord is obligated
to pay its Pro Rata Share of the amount, if any, by which Taxes for the
applicable calendar year exceed Taxes for the Base Year. Sub-Subtenant shall pay
to Sub-Sublandlord Sub-Subtenant's Pro Rata Share of the amount, if any, by
which Taxes for the applicable calendar year exceed Taxes for the Sub-Subtenant
Base Year. Notwithstanding the definition of Base Year in the Prime Lease, as
used in this Sub-Sublease, "Sub-Subtenant Base Year" shall be deemed to be the
calendar year ending December 31, 2001.
(b) Pursuant to Section IV(A) of the Prime Lease, Sublandlord is obligated
to pay its Pro Rata Share of the amount, if any, by which Expenses for the
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applicable calendar year exceed Expenses for the Base Year. Sub-Subtenant shall
pay to Sub-Sublandlord Sub-Subtenant's Pro Rata Share of the amount, if any, by
which Expenses for the applicable calendar year exceed Expenses for the
Sub-Subtenant Base Year.
(c) Sub-Subtenant shall pay for all electrical services used at the
Premises in accordance with Section XI of the Prime Lease.
(d) The amounts required to be paid by Sub-Subtenant to Sub-Sublandlord
under this Section shall be paid within ten (10) days after Sub-Sublandlord
shall render a statement therefor. Sub-Sublandlord's statement shall be
accompanied by copies of any relevant statements or bills received from Landlord
or Sublandlord. Sub-Subtenant shall make estimated payments to Sub-Sublandlord
of Sub-Subtenant's Pro Rata Share of Taxes and Expenses to the extent they
exceed the taxes and expenses during the Sub-Subtenant Base Year on the same
terms and conditions as Sub-Sublandlord is required to make similar estimated
payments under the terms of the Sublease or Sublandlord is required to make
similar estimated payments under the terms of the Prime Lease. If
Sub-Sublandlord receives any information regarding any audit by Sublandlord of
Landlord's actual Basic Costs pursuant to Section IV(c) of the Prime Lease,
Sub-Sublandlord will share such information with Sub-Subtenant.
6. Subletting and Assignment.
(a) Except as expressly set forth in Section 6(b) below, and
notwithstanding anything in the Prime Lease to the contrary, Sub-Subtenant shall
not, without the prior written consent of Sub-Sublandlord (which shall not be
unreasonably withheld for an assignment or sublease of this Sub-Sublease if the
net worth of the assignee or sublessee at the time of such transaction exceeds
the net worth of Sub-Subtenant on the date hereof), Sublandlord or Landlord; (a)
further sublet all or any part of the Premises; (b) transfer, hypothecate,
assign, convey, or mortgage this Sub-Sublease or any interest under it or allow
any lien upon Sub-Subtenant's interest hereunder by operation of law; or (c)
suffer, tolerate, permit, or allow the use or occupancy of the Premises by
anyone other than Sub-Subtenant; its agents and employees. No such transaction
shall release Sub-Subtenant from liability hereunder.
(b) Anything herein to the contrary notwithstanding, but subject to any
contrary provisions in the Prime Lease and any requirement in the Prime Lease
that Landlord's consent be obtained and subject to any contrary provision in the
Sublease and any requirement in the Sublease that Sublandlord's consent be
obtained, Sub-Subtenant may, without Sub-Sublandlord's consent but following 30
days prior written notice to Sub-Sublandlord, assign this Sub-Sublease to (i)
any person or entity controlled by Sub-Subtenant, in control of Sub-Subtenant or
under common control with Sub-Subtenant, (ii) any surviving entity incident to a
merger,
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consolidation or reorganization of Sub-Subtenant, or (iii) the purchaser of all
or substantially all of the assets of Sub-Subtenant, provided that in each case
the assignee has a net worth equal to or greater than Sub-Subtenant as of the
date of this Sub-Sublease. Additionally, an initial public offering of the stock
of Sub-Subtenant or any affiliate of Sub-Subtenant shall not be deemed an
assignment under this Sub-Sublease and the prior consent of the Sub-Sublandlord
thereto shall not be required. No such transaction shall release Sub-Subtenant
from liability hereunder.
7. Insurance Compliance.
(a) Sub-Subtenant shall maintain, at its sole cost and expense, for the
Term, general public liability insurance (naming Sub-Sublandlord, Sublandlord,
Landlord and designees of Landlord as additional insureds) against claims for
personal injury, death, or property damage occurring upon, in, about, or
adjacent to the Premises, such insurance to afford protection with combined
coverage of at least $2,000,000.00 with respect to personal injury, death and
property damage. Sub-Subtenant shall also maintain, at its sole expense, for the
Term, any and all insurance in the amounts and form required of Sub-Sublandlord
by and pursuant to the provisions of the Sublease with respect to the Premises
and Sublandlord by and pursuant to the provisions of the Prime Lease with
respect to the Premises. All such policies shall be issued by reputable
insurance companies approved by Landlord, Sublandlord and Sub-Sublandlord and
shall be endorsed to provide that they shall not be modified or canceled without
30 days' prior written notice to Sub-Sublandlord, Sublandlord and Landlord. On
or prior to the Commencement Date, Sub-Subtenant shall furnish to
Sub-Sublandlord Certificates of Insurance evidencing that the required coverage
is being maintained, together with such evidence as Sub-Sublandlord shall deem
satisfactory of the payment of premiums thereon.
8. Indemnification.
(a) Sub-Sublandlord, Sublandlord and Landlord, their officers, agents, and
employees, shall not be liable for, and Sub-Subtenant shall indemnify and save
Sub-Sublandlord, Sublandlord and Landlord harmless from and against all claims,
liability, loss, or damage during the Term to persons or property sustained by
Sub-Subtenant or by any other person, due to the Premises or any part thereof or
any appurtenances thereof becoming out of repair, or due to the happening of any
accident in, on, or about the Premises, or any damage caused by fire, or other
casualty or leakage, or due to the act or neglect of any person, excluding,
however, the gross negligence or willful misconduct of the employees, agents, or
contractors of the named indemnified parties and then only to the extent of such
gross negligence or willful misconduct of such party. This provision shall apply
(but not exclusively) to damage caused by sprinkling devices or air conditioning
or heating equipment and to damage caused by water, wind, frost, steam,
excessive heat or cold, broken
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glass, gas, odors, or noise or by the bursting or leaking of pipes or plumbing
fixtures or the failure of any appurtenances or equipment. Sub-Sublandlord and
Sub-Subtenant waive all rights against each other for damages caused by fire or
other perils covered by insurance in connection with the Premises, to the extent
of insurance received.
(b) Sub-Subtenant shall not take any action or fail to take any action in
connection with the Premises as a result of which Sub-Sublandlord would be in
violation of any of the provisions of the Sublease or Prime Lease or as a result
of which Sublandlord would be in violation of any of the provisions of the Prime
Lease; and Sub-Subtenant hereby agrees to defend, indemnify, and hold
Sub-Sublandlord and Sublandlord harmless from and against all loss, cost,
liability, damage, and expense (including, but not limited to, attorneys' fees
and court costs) caused by or arising out of Subtenant's breach of this
provision.
9. Casualty.
(a) If the Premises are damaged by fire or other casualty, and Landlord or
Sublandlord shall, pursuant to the terms of the Prime Lease, elect to terminate
the Prime Lease and if as a result the Sublease is terminated, this Sub-Sublease
shall cease and terminate on the date of termination of the Prime Lease and
Sublease, and Rent shall be apportioned from the time of the damage. Otherwise,
this Sub-Sublease shall remain in full force and effect, subject to the terms of
the Prime Lease and the Sublease. Sub-Sublandlord shall have no obligation
hereunder to repair any portion of the Premises, whether or not this
Sub-Sublease shall be terminated, which obligation shall be Landlord's to the
extent required under the Prime Lease. No provision of this Section 9 shall be
deemed to modify, amend or eliminate any right which Sub-Sublandlord has under
the Sublease.
10. Rights of Landlord.
(a) Sub-Subtenant acknowledges any rights specifically reserved by
Landlord under the Prime Lease or Sublandlord under the Sublease, and
Sub-Subtenant further acknowledges that its possession and use of the Premises
shall at all times be subject to such rights. Sub-Subtenant hereby releases
Sub-Sublandlord from all liability in connection with Landlord's and/or
Sublandlord's exercise of such rights provided that Landlord's and/or
Sublandlord's rights are not a result of a default by Sub-Sublandlord under the
terms of the Sublease or the Prime Lease.
(b) If Sub-Subtenant fails to do any act required of it hereunder or under
the Prime Lease for five (5) days following written notice, Sub-Sublandlord may
(but shall not be obligated to) do so, and Sub-Subtenant shall pay the cost
thereof as Additional Rent within ten (10) days after receiving
Sub-Sublandlord's statement therefor. If Sub-Sublandlord fails to do any act
required of it hereunder,
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Sub-Subtenant may provide written notice to Sub-Sublandlord of such failure and
if Sub-Sublandlord fails to do such act within ten (10) days following such
written notice, Subtenant may (but shall not be obligated to) do or perform such
act ten (10) days following such written notice to Sublandlord.
11. Default by Landlord.
Sub-Sublandlord shall not be liable to Sub-Subtenant for Landlord's
failure to perform any of Landlord's obligations under the Prime Lease or for
Sublandlord's failure to perform any of Sublandlord's obligations under the
Sublease, nor shall Sub-Sublandlord have any obligation to perform same or to
bring legal proceedings or take any other action against Landlord to assure
performance of Landlord's obligations under the Prime Lease or against
Sublandlord to assure performance of Sublandlord's obligations under the
Sublease nor shall the Landlord's failure to perform any of Landlord's
obligations under the Prime Lease or Sublandlord's failure to perform any of
Sublandlord's obligations under the Sublease affect Sub-Subtenant's duty to
fulfill its obligations under this Sub-Sublease, including without limitation,
the duty to pay Rent to Sub-Sublandlord hereunder. Except as otherwise provided
herein, whenever Sub-Sublandlord shall have the right to enforce any rights
against Landlord, Sublandlord or any other party under the Prime Lease or
Sublease because of the default or breach of Landlord, Sublandlord or such other
party with respect to the Premises, Sub-Sublandlord shall, at Sub-Subtenant's
expense paid in advance, give notice to Sublandlord requesting Sublandlord
enforce such right on behalf of itself, Sub-Sublandlord and Subtenant and if,
within a reasonable period after Sub-Subtenant's request, Sublandlord fails to
enforce such rights, then, provided Sub-Subtenant is not in default under this
Sub-Sublease, Sub-Subtenant shall have the right, in the name of Sub-Subtenant
or, if necessary, in the name of Sub-Sublandlord, to enforce any such rights of
Sub-Sublandlord with respect to the Premises. Such enforcement shall be at the
sole expense of Sub-Subtenant, and Sub-Subtenant shall indemnify Sub-Sublandlord
(and shall indemnify Sublandlord if such enforcement involves a proceeding
against Landlord by Sub-Subtenant) against all costs and expenses, including but
not limited to reasonable attorneys' fees, which may be incurred by
Sub-Sublandlord (and Sublandlord if proceedings against Landlord) in connection
with any claim, action, or proceeding so undertaken by Sub-Subtenant. Any amount
of recovery obtained by Sub-Subtenant shall be the property of Sub-Subtenant,
except that Sub-Sublandlord shall be compensated therefrom for any damages
sustained by Sub-Sublandlord as a consequence of such default or breach on the
part of Sublandlord, Landlord or such other party.
12. Broker.
(a) The parties acknowledge that this Sub-Sublease was procured through
the efforts of Ash Realty Brokerage, Inc. and Insignia/ESG Inc., and
Sub-Sublandlord shall compensate such brokers pursuant to separate agreement.
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Sub-Subtenant represents and warrants that it dealt with no other broker in
connection with this Sub-Sublease and shall hold Sub-Sublandlord harmless from
any liability or loss, including reasonable attorneys' fees, arising from any
broker or salesman (other than as aforesaid) claiming a commission as a result
of having interested Sub-Subtenant in the Premises.
13. Taxes.
(a) Sub-Subtenant shall pay any taxes or fees imposed by any governmental
authority upon or as the result of this Sub-Sublease or the transfer of any
property or interests in property hereunder, except that Sub-Subtenant shall not
be liable for any federal, state, or municipal income tax imposed upon
Sub-Sublandlord as a result of this Sub-Sublease or any profits derived
hereunder.
14. Remedies: Security Deposit.
(a) The taking of any action by Sub-Subtenant, the occurrence of any event
in regard to Sub-Subtenant, or any failure to act by Sub-Subtenant which would
be a default under the Prime Lease if taken by Sublandlord or if occurring or
failing to occur in regard to Sublandlord, or which would be a default under the
Sublease if taken by Sub-Sublandlord or if occurring or failing to occur in
regard to Sub-Sublandlord, shall entitle Sub-Sublandlord to take all action with
regard to Sub-Subtenant under this Sub-Sublease which Landlord is permitted to
take against Sublandlord under the terms of the Prime Lease. To the extent that
Sublandlord is entitled to written notice and/or an opportunity to cure a
default under the Prime Lease prior to Landlord exercising any of its rights or
remedies under the Prime Lease, Sub-Subtenant shall be entitled to receive from
Sub-Sublandlord the same written notice and/or opportunity to cure said default
prior to the exercising by Sub-Sublandlord of any of its rights or remedies
under this Sub-Sublease except that the period after notice to cure non-monetary
defaults specified in Article XXII.B. shall be fifteen (15) days without
extension for any reason. The immediately preceding sentence shall not modify or
amend Landlord's rights or remedies under the Prime Lease. Sub-Subtenant hereby
indemnifies and holds Sub-Sublandlord harmless from and against all loss, cost,
injury, liability, or expense (including reasonable attorneys' fees and court
costs) caused by or arising out of Sub-Subtenant's default, breach, or violation
of the terms of this Sub-Sublease. So long as no event of default (or condition
which with the giving of notice or passage of time would constitute an event of
default) exists under this Sub-Sublease, Sub-Sublandlord shall indemnify and
hold Sub-Subtenant harmless from and against all actual loss, cost, injury,
liability or expense (specifically excluding, however, all consequential damages
and punitive damages) caused by or arising solely out of Sub-Sublandlord's
failure to pay Base Rent or Additional Rent in accordance with the Sublease.
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(b) Sub-Subtenant herewith deposits the sum of $33,716.66 (the "Deposit")
with Sub-Sublandlord as a security deposit to assure the faithful performance by
Sub-Subtenant of all of the obligations assumed by it hereunder, to be held and
applied pursuant to Section VI of the Prime Lease. Should part or all of the
Deposit be applied by Sub-Sublandlord for the payment of overdue Rent or other
obligations of Sub-Subtenant hereunder, then Sub-Subtenant shall, within 15 days
after the written demand of Sub-Sublandlord, remit to Sub-Sublandlord a
sufficient amount in cash to restore the Deposit to the original sum, and
Sub-Subtenant's failure to do so shall constitute a default hereunder. The
Deposit, to the extent not applied in accordance herewith, shall be returned to
Sub-Subtenant within thirty (30) days of the expiration of the Term. The Deposit
will be held by Sub-Sublandlord in a separate interest bearing account with
interest accruing for the benefit of Sub-Subtenant.
(c) Sub-Subtenant acknowledges that the security deposit paid by
Sublandlord to Landlord pursuant to the terms of the Prime Lease is the property
of Sublandlord and that Sub-Subtenant has no claim or right to any portion of
such security deposit and that the security deposit paid by Sub-Sublandlord to
Sublandlord pursuant to the terms of the Sublease is the property of
Sub-Sublandlord and that Subtenant has no claim or right toy any portion of such
security deposit.
15. Options.
Anything in the Prime Lease or Sublease to the contrary notwithstanding,
Sub-Subtenant shall have no option to extend or renew the Term of this
Sub-Sublease or to expand the Premises.
16. Surrender and Holdover.
(a) Upon any termination of this Sub-Sublease, by expiration of the
Term or otherwise:
(i) Sub-Subtenant shall immediately vacate the Premises and
surrender possession thereof to Sub-Sublandlord in the condition required under
the Prime Lease as of the expiration date of the Prime Lease, provided, however,
Sub-Subtenant shall have no obligation to remove any Leasehold Improvements made
to the Premises prior to the date hereof;
(ii) Sub-Subtenant shall surrender the Premises free and clear
of all liens and encumbrances: and
(iii) Sub-Sublandlord shall have full authority and license to enter
the Premises and take possession of same.
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(b) Sub-Subtenant shall pay to Sub-Sublandlord 200% of the monthly Rent
hereunder plus all other costs for each month or portion thereof that
Sub-Subtenant shall retain possession of the Premises or any part thereof after
the termination of this Sub-Sublease, whether by lapse of time or otherwise, and
shall also pay all damages sustained by Sub-Sublandlord to Sublandlord and by
Sublandlord to Landlord or otherwise on account thereof. Furthermore,
Sub-Subtenant shall be subject to eviction proceedings and any other remedy or
right accorded to Sub-Sublandlord in law or at equity. Any holding over by
Sub-Subtenant upon termination of this Sub-Sublease shall not be evidence of an
extension or renewal of the Term hereof, nor shall acceptance of Rent or other
payments by Sub-Sublandlord from Sub-Subtenant be evidence of the same, but
shall be on a month to month basis, terminable by either party on 30 days'
notice.
17. Existing Furniture and Telephone System.
Throughout the term of this Sub-Sublease, Sub-Subtenant shall have an
exclusive license to use all furniture and telephone systems currently located
in the Premises including, without limitation, all desks, partitioning, file
cabinets, chairs and all other furniture currently located in the Premises
(collectively, the "Furniture") and the telephone switch and telephone handsets
currently located in the Premises (collectively, the "Telephone System").
Sub-Subtenant shall be responsible for maintaining the Furniture in good
order and repair, including all necessary repairs and replacements of same.
Sub-Subtenant shall also be responsible for maintaining the Telephone System in
good working order and repair, including all necessary repairs and replacements
of same and all necessary upgrades or changes required by Sub-Subtenant's use
thereof. Sub-Subtenant shall also be required to maintain a maintenance contract
on the Telephone System with Lucent Technologies or such other vendor as
Sub-Sublandlord and Sublandlord may approve in writing. In the event that
Sub-Subtenant fails to maintain the Furniture or the Telephone System in good
working order and repair or if Sub-Subtenant fails to maintain the required
maintenance contract for the Telephone System and such default continues more
than 10 days after notice from Sub-Sublandlord, Sub-Sublandlord or Sublandlord
shall be entitled to cause all such maintenance to the Furniture and/or the
Telephone System to be performed and Sub-Sublandlord or Sublandlord may maintain
such maintenance contract on the Telephone System and Sub-Subtenant shall
reimburse Sub-Sublandlord or Sublandlord for the reasonable cost thereof as
Additional Rent. Sub-Subtenant's failure to reimburse Sub-Sublandlord or
Sublandlord within 15 days after receipt of written demand by Sub-Sublandlord
shall constitute a default thereunder.
Provided no event of default (or condition which with the giving of notice
or passage of time would constitute an event of default) exists hereunder, under
the Sublease or under the Prime Lease at the expiration of the Term,
Sub-Subtenant
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shall have the option to purchase the Furniture and the Telephone System for the
sum of one dollar ($1.00) upon the expiration of the Term and, upon request of
Sub-Subtenant, Sub-Sublandlord shall execute and deliver an appropriate bill of
sale within twenty days of Sub-Subtenants request. Should an event of default
(or a condition which with the giving of notice or passage of time would
constitute an event of default) exist hereunder or under the Prime Lease at the
expiration of the Term of this Sub-Sublease, Sub-Sublandlord shall provide
Sub-Subtenant with written notice of such default and a period of 5 days (with
respect to a monetary default) and 10 days (with respect to a non-monetary
default) from the date of the notice to cure such default. In such event,
Sub-Sublandlord or Sublandlord, at Sub-Subtenant's sole cost and expense, may
remove the Furniture and Telephone System from the Premises and store it for the
benefit of Sub-Subtenant, in no event shall Sub-Sublandlord or Sublandlord be
liable for any damage to or destruction of said Furniture and/or Telephone
System. In the event that Sub-Subtenant cures such default within the applicable
cure period, Sub-Subtenant may then exercise its option to purchase the
Furniture and Telephone System for $1.00, plus reimbursement to Sub-Sublandlord
and Sublandlord all costs and expenses incurred in connection with the removal
and storage of said Furniture and Telephone System. In the event that
Sub-Subtenant fails to cure said default within the applicable cure period,
Sub-Sublandlord shall be free to dispose of the Furniture and Telephone System
in any manner that it sees fit and thereafter Sub-Subtenant shall have no claim
whatsoever to the Furniture and Telephone System. Sub-Subtenant shall, however,
remain liable to Sub-Sublandlord for all costs and expenses incurred by
Sublandlord and Sub-Sublandlord in connection with the removal and storage of
the Furniture and Telephone System.
In the event that Sublandlord has failed to observe the provisions of
Section 17 of the Sublease and this renders Sub-Sublandlord unable to observe
the provisions of this Section 17 of this Sub-Sublease, Sub-Sublandlord shall
have no liability hereunder and no obligation to take action hereunder and
Sub-Subtenant's rights shall be as set forth in Section 11 hereof.
18. Miscellaneous.
(a) Each provision of this Sub-Sublease shall extend to and shall bind and
inure to the benefit of Sub-Sublandlord and Sub-Subtenant and their respective
permitted successors and assigns.
(b) Sub-Subtenant acknowledges that this Sub-Sublease is subordinate to
the Prime Lease and the Sublease. In the event of any conflict between the terms
and conditions of this Sub-Sublease and the terms and conditions of the Prime
Lease and the Sublease, the terms and conditions of this Sub-Sublease shall
control, except that nothing herein provided shall be deemed to confer any
greater rights upon Sub-Subtenant herein than are in this Sub-Sublease otherwise
provided for.
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(c) In the event that any provision of this Sub-Sublease is deemed to be
invalid or unenforceable for any reason, this Sub-Sublease shall be construed as
not containing such provision, and the invalidity or unenforceability thereof
shall not render any other provision of this Sub-Sublease invalid or
unenforceable.
(d) Any provision of this Sub-Sublease or the Prime Lease which requires
Sub-Sublandlord not to unreasonably withhold its consent shall never be the
basis for an award of damages or give rise to a right of setoff to
Sub-Subtenant, but may be the basis for a declaratory judgment or specific
injunction with respect to the matter in question.
(e) Whenever Sub-Subtenant must obtain the consent of Landlord or
Sublandlord with respect to the Premises, Sub-Sublandlord shall cooperate fully
and promptly with Sub-Subtenant (at Sub-Subtenant's sole cost and expense) in
obtaining Landlord's or Sublandlord's consent. Sub-Sublandlord shall promptly
forward to Sub-Subtenant true copies of all notices, requests, demands and
communications received by Sub-Sublandlord from Landlord (or its agent) or
Sublandlord with respect to the Premises. If Sub-Subtenant shall not give timely
directions to Sub-Sublandlord, Sub-Sublandlord may give such notice to Landlord
or Sublandlord as Sub-Sublandlord desires, or no notice or direction with
respect to the matter in question.
(f) Sub-Subtenant shall indemnify and hold Sub-Sublandlord harmless from
the costs of any special services (including without limitation overtime HVAC
and special cleaning services) which Sub-Subtenant may order through
Sub-Sublandlord, Sublandlord or directly from Landlord with respect to the
Premises.
(g) All notices shall be in writing, mailed certified mail, return receipt
requested, postage prepaid, or sent by recognized overnight courier such as
Federal Express addressed to the parties at the addresses first above written,
except that after the Commencement Date, Sub-Subtenant's address shall be the
Premises. A copy of any notice to Sub-Sublandlord shall be simultaneously sent
by like manner to Jenkens & Gilchrist Parker Chapin LLP, The Chrysler Building,
405 Lexington Avenue, New York, New York 10174, Att: Edward R. Mandell, Esq.
Either party may, by notice, change the address to which notices are to be sent.
A copy of any notice to Sub-Subtenant shall be simultaneously sent by like
manner to Kelly & Karras Ltd., Suite 205, 619 Enterprise Drive, Oak Brook,
Illinois 60523, Attn. James J. Karras, Esq.
(h) Each provision of this Sub-Sublease has been mutually negotiated,
prepared and drafted; each party has been represented by legal counsel; and, in
connection with the construction of any provision hereof or deletion herefrom,
no consideration shall be given to the issue of which party actually prepared,
drafted, requested or negotiated any such provision or deletion.
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19. Landlord's and Sublandlord's Approval.
Immediately following execution of this Sub-Sublease, Sub-Sublandlord
shall submit this Sub-Sublease to Sublandlord for Sublandlord's approval and
request that Sublandlord submit same to Landlord for Landlord's approval.
Thereafter both parties shall promptly comply with any request of Landlord or
Sublandlord for additional information or documentation and shall refrain from
taking action which could reasonably be expected to cause Sublandlord or
Landlord to refuse its approval. In the event that Sublandlord or Landlord fails
to approve this Sub-Sublease within thirty (30) days of the date hereof, either
party, upon notice to the other within seven (7) days after the expiration of
such thirty (30) day period may elect to terminate this Sub-Sublease, whereupon
Sub-Sublandlord shall promptly refund any amounts deposited hereunder, and this
Sub-Sublease shall be of no further force and effect. The parties hereto shall
not bring any claim against each other for any loss, cost, expense, damage, or
injury caused by or arising out of the failure of Landlord or Sublandlord to
consent to this Sub-Sublease except where a party acts in bad faith to in
intentionally cause Landlord or Sublandlord to refuse its consent. Concurrently
with entering into this Sub-Sublease, Sub-Sublandlord is entering into a
Sublease (the "Plaut Sublease"), dated on or about the date hereof, between
Plaut Consulting, Inc., as sublessor, and Sub-Sublandlord, as sublessee, for
premises known as Suite 640, Three Westbrook Corporate Center, Westchester,
Illinois 60154. The effectiveness of the Plaut Sublease is conditioned upon
obtaining the consent of Landlord. Consequently, in the event the Landlord fails
to approve the Plaut Sublease within thirty (30) days of the date hereof.
Sub-Sublandlord upon notice to Sub-Subtenant within seven (7) days after the
expiration of such thirty (30) day period may elect to terminate this
Sub-Sublease, whereupon Sub-Sublandlord shall promptly refund any amounts
deposited hereunder, and this Sub-Sublease shall be of no further force and
effect. The parties hereto shall not bring any claim against each other for any
loss, cost, expense, damage, or injury caused by or arising out of the failure
of Landlord to consent to the Plaut Sublease.
20. Sub-Subtenant's Financial Information.
Sub-Subtenant represents and warrants to Sub-Sublandlord that the
following information previously delivered by Sub-Subtenant to Sub-Sublandlord
is true, correct and complete: (i) audited financial statements for
Sub-Subtenant prepared by an independent certified public accounting firm as of
and for the fiscal year which ended on December 31, 2000; and (ii) an officer's
certificate inform acceptable to Sub-Sublandlord executed by Sub-Subtenant's
chief financial officer stating that Sub-Subtenant is not in default under (and
no situation exists which with the giving of notice and the passage of time
would constitute a default under) any primary or secondary indebtedness, any
loan obligation, any guaranty obligation or any other contract obligation to
which Sub-Subtenant is a party or
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under which Sub-Subtenant is obligated and which is material to its overall
business. Sub-Sublandlord may provide copies of the items set forth in (i) and
(ii) above to Sublandlord and Landlord.
21. Prohibited Activities.
Except with the prior written consent of Sub-Subtenant, Sub-Sublandlord
shall not (i) terminate, cancel or surrender the Sublease, either in accordance
with the terms of the Sublease or otherwise, except to the extent that
Sub-Sublandlord has the right to terminate the Sublease following a casualty or
condemnation in accordance with the terms and conditions of Section 9 of this
Sub-Sublease; (ii) modify, amend, or revise any term or provisions of the
Sublease, in any way which would materially and adversely affect Sub-Subtenant's
rights and obligations under this Sub-Sublease, or (iii) take or omit to take
any action which would constitute an event of default beyond any applicable
grace, notice and cure periods under the Sublease or Prime Lease or otherwise
entitle Sublandlord to terminate the Sublease or Landlord to terminate the Prime
Lease.
IN WITNESS WHEREOF, the parties have executed this Sublease the day and
year first above written.
SUB-SUBLANDLORD:
MILLENNIUM RAIL, INC.
By: /s/ Len Farrell
-----------------------------------
Name: Len Farrell
Title: VP & CFO
SUB-SUBTENANT:
ONLINE DATA CORP.
By: /s/ Kristen Gramigna
-----------------------------------
Name: Kristen Gramigna
Title: VP of Sales
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