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EXHIBIT 10.10(b)
AGREEMENT OF SUBLEASE
between
i3 Mobile, Inc.
Sublandlord
and
O'DONNELL & ASSOCIATES,
Subtenant
Premises:
Portion of Suite 501
One Dock Street
Stamford, Connecticut
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AGREEMENT OF SUBLEASE (this "Sublease"), made as of the 1st day of
August, 2000, between i3 MOBILE, INC., a Delaware corporation, having an office
address at 181 Harbor Drive, Stamford, CT 06902 ("Sublandlord"), and O'DONNELL &
ASSOCIATES, a Connecticut partnership, having an office address at 832 Bedford
Street, Stamford, Connecticut 06901 ("Subtenant").
RECITALS:
A. Seaboard Property Management, Inc, a Delaware Corporation, as
landlord ("Overlandlord") and Sublandlord (formerly known as Intelligent
Information Incorporated), as tenant, entered into a Lease Agreement, dated as
of April 27, 1995 (the "Master Lease"), pursuant to which Sublandlord leased
from Overlandlord 3,217 square feet of space located on the fifth floor of the
building known by the street address One Dock Street, Stamford, Connecticut (the
"Building").
B. Overlandlord and Sublandlord have entered into a Lease
Modification Agreement effective as of April 15, 1997 (the Master Lease together
with said Lease Modification Agreement are hereinafter collectively referred to
as the "Overlease") where Sublandlord leased 1,830 square feet of additional
space on the fifth floor of the Building (together with the space taken per the
terms of the Master Lease referred to as the "Overlease Premises").
C. Sublandlord desires to sublease to Subtenant, and Subtenant
desires to sublease from Sublandlord, a portion of the Overlease Premises on the
terms and conditions contained herein.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is mutually agreed as follows:
1. Subleasing of Premises.
1.1. Sublandlord hereby subleases to Subtenant, and Subtenant hereby
hires from Sublandlord, the Premises, as hereinafter defined, consisting of a
portion of the Overlease Premises, as shown on "Exhibit A" annexed hereto and
made a part hereof.
1.2. For all purposes of this Sublease, the parties agree that the
Overlease Premises includes 5,047 square feet of rentable area, regardless of
actual measurements or anything else to the contrary.
1.3. The "Premises" for purposes of this Sublease means that portion
of the Overlease Premises as shown on Exhibit A and agreed by the parties to
consist of 3,217 rentable square feet.
1.4. As used herein the term "Subtenant's Proportionate Share" refers
to a fraction the numerator of which is the number of square feet of rentable
area included in the Premises and the denominator of which is the number of
square feet of rentable area included in the Overlease Premises.
2. Term.
2.1. The term of this Sublease for the Premises commences on the date
(the "Commencement Date") which is the first calendar date of the month
following the later of (i) the date on which the
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Overlandlord consents to the Sublease, and (ii) the date on which Subtenant and
Sublandlord have both executed and delivered this Sublease. The term of this
Sublease ends for the Premises on March 30, 2002 (the "Expiration Date") or on
such earlier date upon which such term expires or is terminated pursuant to any
of the conditions or covenants of this Sublease or pursuant to law.
2.2. Subtenant, on the date on which the term of this Sublease
expires or is terminated, is required to vacate and surrender possession of all
portions of the Premises in the same condition as taken reasonable wear and tear
excepted. The provisions of this Section 2.2 survive the expiration of the term,
and any termination, of this Sublease.
3. Rents.
3.1. Subtenant is required to pay to Sublandlord fixed rent (the
"Fixed Rent") as follows:
(a) for the Premises, commencing on the Commencement Date
and ending on March 31 2001, monthly installments of $4,172.19; and
(b) for the Premises, commencing on April 1, 2001 and ending
on the Expiration Date, payable in monthly installments of $4,441.36.
Each monthly installment of Fixed Rent is payable on the first day of each
calendar month during the term of this Sublease, except that $4,172.19,
constituting, and to be applied in payment of, the first monthly installment of
Fixed Rent for the Premises, is payable at the time of execution and delivery of
this Sublease by Subtenant.
3.2. In addition to the Fixed Rent, commencing on the Commencement
Date and continuing for the entire term of this Sublease, Subtenant is required
to reimburse Sublandlord for all Additional Rent, as defined in the Overlease,
payable by Sublandlord with respect to Subtenant's Proportionate Share of all
Additional Rent, as defined in the Overlease, payable by Sublandlord under the
Overlease. Subtenant's payments to Sublandlord under this Section 3.2 are due on
the dates on which Sublandlord's payments under the Overlease are due to
Overlandlord. If Sublandlord receives any refund (or credit) from Overlandlord
in respect of any amount paid by Subtenant under this Section 3.2, Sublandlord
is required to provide Subtenant with a corresponding refund (or credit), less
any costs and expenses incurred by Sublandlord in connection with obtaining the
same.
3.3. In addition to the foregoing, Subtenant is required to bear and,
on demand, pay (or reimburse Sublandlord for) all other costs and expenses
(including all amounts payable under the Overlease) relating to the Premises or
the use and occupancy of any thereof, or any act or omission therein or with
respect thereto, or any utility or service furnished thereto. All of the
foregoing constitutes additional rent. Without limiting the generality of the
foregoing, Subtenant must pay for any supplemental, overtime or above building
standard HVAC, maintenance, repair, electric or other service for which a
separate charge is made by Overlandlord or any third party including the Initial
Electrical Charge under the Overlease (which equates to an additional minimum
monthly payment of $455.71 per month).
3.4. As used herein the term "additional rent" refers to all sums of
money which are payable by Subtenant to Sublandlord or Overlandlord or otherwise
hereunder, other than Fixed Rent, and the term "rents" refers to Fixed Rent and
additional rent. All rents are payable in lawful money of the United States at
such place and to such person as Sublandlord from time to time designates.
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3.5. Subtenant must pay promptly all rents as and when the same
become due without set-off, offset or deduction of any kind whatsoever except as
otherwise provided for herein and, in the event of Subtenant's failure to pay
any additional rent when due, Sublandlord will have all of the rights and
remedies provided for herein or at law or in equity in the case of non-payment
of Fixed Rent.
3.6. Sublandlord's failure during the term of this Sublease to
prepare and deliver any statement or bill required or permitted to be delivered
to Subtenant hereunder, or Sublandlord's failure to make a demand under this
Sublease, is not in any way a waiver of, and will not cause Sublandlord to
forfeit or surrender, its rights to collect any rents which may have become due
from Subtenant pursuant to this Sublease. Subtenant's liability for rents
accruing during the term of this Sublease survives the expiration or sooner
termination of this Sublease.
3.7. During the term of this Sublease, Subtenant shall provide
Sublandlord with unrestricted access to a portion of the Premises formerly used
by Sublandlord as its operations center together with reasonable ingress and
egress thereto, as shown on "Exhibit A" annexed hereto and made a part hereof
("Ops Center Access"). In consideration for this right of unrestricted Ops
Center Access, Sublandlord agrees to pay Subtenant a monthly fee of $388.42
through March 31, 2001 and $411.01 commencing on April 1, 2001 through the end
of the term.
4. Condition of the Premises.
4.1. Subtenant represents that it has examined (or waived examination
of) the Premises. Sublandlord has not made and does not make any representations
or warranties as to the physical condition of the Premises (including any latent
defects in or to the Premises), the uses to which the Premises may be put, or
any other matter or thing affecting or relating to the Premises, except as
specifically set forth in this Sublease. Subtenant agrees to accept the Premises
in their "as is" condition as of the date hereof as the same may be affected by
reasonable wear and tear after the date hereof, and, Sublandlord has no
obligation whatsoever to alter, improve, decorate or otherwise prepare the
Premises for Subtenant's occupancy or use.
5. Subordination to and Incorporation of the Lease.
5.1. This Sublease is subordinate to the Overlease, and to all
leases, and mortgages and other rights or encumbrances to which the Overlease is
subordinate. This provision is self-operative, but Subtenant, within ten (10)
days of Sublandlord's request, must execute any instrument reasonably requested
by Sublandlord or Overlandlord to evidence or confirm the same. Sublandlord will
request that Overlandlord enter into a non-disturbance, recognition and
attornment agreement in a form reasonably acceptable to Subtenant and
Overlandlord and otherwise as provided in the Overlease, and will request that
Overlandlord obtain a similar agreement from any lessor or mortgagee of
Overlandlord, but neither Sublandlord nor Overlandlord (a) is obligated to make
any payment or incur any liability to obtain any such agreement, unless
Subtenant pays in advance to Sublandlord or Overlandlord, as the case may be, an
amount that is no less than such payment or liability, or (b) is obligated to
commence any litigation or otherwise undertake unusual or inordinate measures to
obtain any such agreement. Subtenant must reimburse all reasonable costs,
including reasonable attorneys' fees, incurred by Sublandlord or Overlandlord in
preparing or obtaining the documentation required by this Section, except to the
extent that any lessor or mortgagee is an affiliate of Overlandlord.
5.2. Sublandlord represents that a true and complete copy of the
Overlease (with certain information redacted therefrom) is annexed hereto as
"Exhibit B". If Sublandlord complies with its obligations under this Sublease
and if the Overlease nevertheless terminates for any reason, then this Sublease
will also terminate, without any liability of Sublandlord to Subtenant on
account thereof.
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5.3. Sublandlord will not, as long as Subtenant is not in default
under this Sublease:
(a) do or approve anything that would cause the Overlease to
be canceled, terminated or forfeited, unless Overlandlord has agreed in the case
of any such cancellation, termination or forfeiture to provide non-disturbance
protection in favor of Subtenant on terms no less favorable to Subtenant than
the terms provided for in the Overlease; provided, however, that nothing in this
Section 5.3 will prevent Sublandlord from exercising any option to cancel or
terminate the Overlease pursuant thereto;
(b) enter into any amendment to the Overlease which prevents
or adversely affects the use of the Premises by Subtenant in accordance with the
terms of this Sublease or increases the obligations of Subtenant or decreases
Subtenant's rights under this Sublease; or
(c) permit a default under the Overlease to continue after
notice and an opportunity to cure so as to entitle the Overlandlord under the
Overlease to withhold any approval or consent which Subtenant has requested
pursuant to this Sublease.
5.4. Except as otherwise expressly provided in, or otherwise
inconsistent with, this Sublease, and except to the extent not applicable to the
Premises, all of the provisions of the Overlease (the "Incorporated Provisions")
are hereby incorporated in this Sublease by reference with the same force and
effect as if set forth at length herein and provided further that unless the
context requires otherwise:
(a) references in such provisions to Landlord are deemed to
refer to Sublandlord,
(b) references in such provisions to Tenant are deemed to
refer to Subtenant,
(c) references in such provisions to the Premises or the
Leased Premises are deemed to refer to the Premises hereunder,
(d) references in such provisions to fixed rent are deemed
to refer to the Fixed Rent hereunder,
(e) references in such provisions to other Incorporated
Provisions are deemed to refer to such Incorporated Provisions as incorporated
herein,
(f) references in such provisions to the Overlease are
deemed to refer to this Sublease, references in such provisions to superior
leases are deemed to refer to leases to which the Overlease is subordinate and
references in such provisions to mortgages or superior mortgages are deemed to
refer to mortgages to which the Overlease is subordinate,
(g) references in such provisions to subleases, sublettings
or subtenants are deemed to refer to undersubleases, undersublettings or
undersubtenants,
(h) whenever, pursuant to any of the Incorporated Provisions
as incorporated herein, Subtenant is required to furnish insurance,
indemnification or other similar protection to or for Sublandlord, or to take
some act as designated or directed by Sublandlord or to the satisfaction of
Sublandlord, Subtenant is required to furnish the same to or for Overlandlord
and Sublandlord, or to take the same as designated or directed by Overlandlord
or Sublandlord or to the satisfaction of Overlandlord and Sublandlord,
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(i) whenever, pursuant to any of the Incorporated Provisions
as incorporated herein, Subtenant is required to obtain the consent or approval
of Sublandlord to or with respect to any act, omission or thing (e.g. to any
undersublease or assignment or to the making of any alterations, installations,
additions or improvements), Subtenant is required to obtain the consent or
approval of Overlandlord and Sublandlord to or with respect to such act,
omission or thing,
(j) whenever, pursuant to any of the Incorporated Provisions
as incorporated herein, Subtenant grants any release, waiver or similar thing to
Sublandlord, Subtenant is deemed to have granted the same to Overlandlord and
Sublandlord,
(k) whenever, pursuant to any of the Incorporated Provisions
as incorporated herein, Subtenant grants Sublandlord any right of entry, access
or use of the Premises, Subtenant is deemed to have granted such right to
Overlandlord and Sublandlord,
(l) any time period provided for in the Incorporated
Provisions is shortened or lengthened, as the case may be, as necessary so that
actions or omissions relating thereto may be coordinated with the corresponding
actions or omissions under the Overlease or performed within the time required
by the Overlease,
(m) if the Overlease provides that any Incorporated
Provisions survive the expiration or any termination of the Overlease, then such
Incorporated Provisions survive the expiration of the term, and any termination,
of this Sublease, and
(n) without limiting the generality of any of the foregoing
provisions of this Section 5.4, (A) Minimum Required Casualty Insurance Coverage
shall be deemed $1,000,000 (B) Exhibit 2 shall be deleted and (C) Exhibit 6
shall be deleted.
5.5. Notwithstanding anything to the contrary contained in this
Sublease (including any of the Incorporated Provisions as herein incorporated),
Sublandlord is not obligated:
(a) to provide any of the services that Overlandlord has
agreed in the Overlease to provide or is required by law to provide, or
(b) to make any of the repairs or restorations that
Overlandlord has agreed in the Overlease to make or is required by law to make,
or
(c) to comply with any laws or requirements of public
authorities with which Overlandlord has agreed in the Overlease to comply, or
(d) to take or to refrain from taking any other action that
Overlandlord has agreed in the Overlease to take or to refrain from taking or is
required by law to take or to refrain from taking (including, in either case,
any obligations with respect to giving consents, approvals, etc.), or
(e) to perform any obligation that Overlandlord has agreed
in the Overlease to perform,
and Sublandlord has no liability to Subtenant on account of any failure of
Overlandlord (or Sublandlord) to provide, make, comply with, take, refrain from
taking, or perform any of the foregoing. With respect to Overlandlord's
performance of obligations and exercise of rights and powers in accordance with
the Overlease, to which reference is made in this Section:
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(i) upon Subtenant's request and at Subtenant's
expense, Sublandlord must make continuing, good faith and
commercially reasonable efforts, without being obligated to
commence any arbitration or litigation against Overlandlord, to
(y) cause Overlandlord to perform, provide, make, comply with,
take, and exercise the same, and (z) recover compensation on
account of Overlandlord's failure to do so; provided, that prior
to Sublandlord commencing or continuing any such efforts at
Subtenant's specific request, Sublandlord may require that
Subtenant specifically agree to reimburse or that Subtenant
prepay Sublandlord's expenses by reason of such efforts, and
(ii) if any right or remedy of Sublandlord against
Overlandlord or any duty or obligation of Overlandlord in either
case under any of the Incorporated Provisions is subject to or
conditioned upon Sublandlord's making any demand upon
Overlandlord or giving any notice, request or statement to
Overlandlord or taking any other similar action then, if
Subtenant so requests, Sublandlord, at Subtenant's expense (such
expense to be prepaid by Subtenant prior to Sublandlord
commencing or continuing to act under this clause (ii)), must
make such demand or request, give such notice or statement or
take such other action.
Subtenant is required to defend, indemnify and hold harmless Sublandlord from
and against any and all loss, cost, damage and expense incurred by Sublandlord,
including reasonable attorney fees, under or in connection with (1) any such
efforts, pursuant to clause (i) above, or (2) any such demand, notice, request,
statement or similar action, pursuant to clause (ii) above. The provisions of
the preceding sentence and of Section 5.8 survive the expiration of the term,
and any termination, of this Sublease. Prior to taking or continuing to take any
action at Subtenant's request under this Section 5.5, Sublandlord, from time to
time, may require Subtenant to increase the amount of the security deposit under
Section 8 by such amount as Sublandlord reasonably determines in order to secure
the faithful performance by Subtenant of its obligations under this Section 5.5.
5.6. Whenever Subtenant desires to do any act or thing which requires
the consent or approval of Sublandlord under any of the Incorporated Provisions
as incorporated herein:
(a) Subtenant must not do such act or thing without first
having obtained the consent or approval of Overlandlord and Sublandlord;
(b) Sublandlord is permitted to exercise its right to
withhold consent or approval independently of Overlandlord's exercise of its
right; provided, however, that if, in any instance, Overlandlord (i) is required
by the Overlease not to unreasonably withhold consent or approval, and (ii) has
granted such consent or approval, then Sublandlord may not unreasonably withhold
such consent or approval; and
(c) without limiting Sublandlord's right to withhold consent
or approval in any instance and notwithstanding any Incorporated Provision or
provision of law requiring Sublandlord to act reasonably, Sublandlord is
entitled, without liability to Subtenant on account thereof, to withhold consent
or approval whenever and for so long as Overlandlord withholds its consent or
approval, regardless of whether or not Overlandlord is entitled to withhold such
consent or approval and regardless of whether Overlandlord may have liability to
Sublandlord or Subtenant on account thereof; and
(d) Subtenant may not request Overlandlord's consent or
approval directly and neither Sublandlord's forwarding Subtenant's request to
Overlandlord nor Sublandlord's other efforts to obtain Overlandlord's consent or
approval constitutes Sublandlord's consent or approval, and the same will not
prejudice Sublandlord's right to withhold consent or approval.
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5.7. Notwithstanding any other provision of this Sublease, Subtenant
must perform all of its obligations hereunder at such times, by such dates or
within such periods, and otherwise as required to avoid any default under the
Overlease or any breach or violation under the Overlease with respect to the
Premises. The obligation of Sublandlord to perform in accordance with any and
all of the provisions of this Section 5 is conditioned on Subtenant not being in
default under this Sublease.
5.8. Subtenant is required to indemnify Sublandlord from any loss,
cost, damage or expense (including reasonable attorneys fees) arising out of any
failure by Subtenant to perform any of its obligations under this Sublease,
including any loss, cost, damage or expense which may result from any default
under or termination of the Overlease arising by reason of any such failure.
5.9. Subtenant understands and agrees that Sublandlord will continue
to occupy the portion of the Overlease Premises not demised to Subtenant
hereunder. As such, Subtenant grants Sublandlord, throughout the Term of this
Sublease and at no cost to Sublandlord (i) unrestricted access for its
employees, agents, guests and representatives through the entry points to the
Overlease Premises and (ii) requires reasonable access to the main telephone and
computer system control panels that are housed within the Premises.
6. Covenant of Quiet Enjoyment. Upon Subtenant paying any and all
rents (including additional rent) and observing and performing all the terms,
covenants and conditions on Subtenant's part to be observed and performed
hereunder, Subtenant may peaceably and quietly enjoy the Premises, subject
nevertheless to the terms and conditions of this Sublease, including but not
limited to Section 5.1 and the Incorporated Provisions, and to the Overlease and
the other leases, mortgages and other rights and encumbrances referred to in the
Overlease.
7. Alterations.
7.1. The restrictions on, and other terms and conditions applicable
to, the making of any alterations, additions, installations, substitutions,
improvements or decorations in or about the Premises by or at the request of
Subtenant (referred to herein as "Subtenant's Alterations") as provided in the
Overlease are incorporated herein by reference, and the consent or approval of
Overlandlord and Sublandlord is required for any Subtenant's Alterations.
7.2. Subtenant must not commence or prosecute any alteration,
installation, addition or improvement in or to the Premises, unless, in addition
to having complied with all other provisions of this Sublease and the
Incorporated Provisions as incorporated herein, Subtenant has furnished to
Sublandlord (a) a fixed price general contract covering the same, and (b)
payment and performance bonds in favor of Sublandlord guaranteeing lien free
completion of the work in form, amount and issued by a surety satisfactory to
Sublandlord in its reasonable judgement. Additionally, if Overlandlord has the
right under the Overlease to require that any Subtenant's Alterations be removed
at the end of the term of the Overlease, then Subtenant, prior to commencing the
same, must increase the amount of the security deposit by such amount as
Sublandlord reasonably determines in order to secure the faithful performance by
Subtenant of its obligations to remove such Subtenant's Alterations.
Security Deposit
8.1 At the same time as or before Subtenant executes and delivers
this Sublease, Subtenant is required to deliver to Sublandlord, in cash, or by a
cashier's check or Subtenant's certified check, in either case drawn by or on a
bank that is a member of the New York Clearing House Association, and payable to
the order of Sublandlord, an amount no less than the Required Security Amount,
as hereinafter defined, as security for the faithful performance and observance
by Subtenant of the terms, covenants and conditions of this Sublease on
Subtenant's part to be observed and performed. If Subtenant defaults in the
observance or performance of any term, covenant or condition of this Sublease
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on Subtenant's part to be observed or performed, including payment of Fixed Rent
and additional rent, beyond any applicable notice and cure period provided under
this Sublease, Sublandlord may use, apply or retain the whole or any part of any
Cash Security to the extent required for the payment of any rents with respect
to which Subtenant is in default, or for the payment of any sum that Sublandlord
may expend or incur because of Subtenant's default, including the payment of any
damages or deficiency in the reletting of the Premises, without thereby waiving
any other right or remedy of Sublandlord with respect to such default, and
Sublandlord shall hold the remainder of any Cash Security as security for the
faithful performance and observance by Subtenant of the terms, covenants and
conditions of this Sublease on Subtenant's part to be observed and performed
with the same rights as set forth above to use, apply or retain all or any part
of such remainder of such Cash Security. If Sublandlord uses, applies or retains
the whole or any part of any Cash Security under the foregoing provisions of
this Section 8.1, Subtenant, promptly after notice thereof, shall pay to
Sublandlord in cash, or by a cashier's check or Subtenant's certified check, in
either case drawn by or on a bank that is a member of the New York Clearing
House Association, and payable to the order of Sublandlord, the sum necessary to
restore the Cash Security to an amount equal to the Required Security Amount. A
failure by Subtenant to so restore the Cash Security to an amount equal to the
Required Security Amount will constitute a material default by Subtenant under
the terms, covenants and conditions of this Sublease.
8.2 As of the date on which Subtenant first delivers Cash Security
to Sublandlord as described in Section 8.1 and until there is a reduction in the
Required Security Amount in accordance with this Section 8.2, the Required
Security Amount is $ 4,441.36 and continuing thereafter for the remainder of the
Term, and for an additional period of ninety (90) days after the Expiration
Date.
8. Notices. Any notice, statement, demand, consent, approval,
advice or other communication required or permitted to be given, rendered or
made by either party to the other, pursuant to this Sublease or pursuant to any
applicable law or requirement of public authority concerning the Premises
(collectively, "Notice") must be in writing and will have been properly given,
rendered or made for purposes of this Sublease only if sent by personal
delivery, receipted by the party to whom addressed, or by a recognized overnight
courier, with receipt requested, or by pre-paid registered or certified mail,
return receipt requested, posted in a United States post office station or
depositary in the continental United States, and deemed given on the date
received, addressed:
(a) to Subtenant (i) prior to the Commencement Date,
at the address shown in the preamble to this Sublease,
Attention: President, or (ii) on or after the Commencement Date,
at the Premises, Attention: President,
(b) to Sublandlord, at its address first above
written, Attention: General Counsel.
Either party may, by Notice actually received by the other party, designate (y)
a different address in the United States for Notices intended for it, and (z)
require the other party to provide a copy of any Notices to any other person at
any other address in the United States.
9. Parking. Subtenant is allocated on a non-exclusive, unreserved
basis, without payment of any additional rent or charge, seven (7) parking
spaces are included in the Premises. Subtenant's use of such parking spaces is
in all other respects subject to the terms, provisions and conditions of the
Overlease.
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10. Signage. Subtenant may, at Subtenant's cost and expense and with
the prior written approval of Sublandlord and Overlandlord, install a listing
with Subtenant's name on the building directory in the lobby of the Building.
11. Miscellaneous.
11.1. The obligations of Sublandlord hereunder accruing at any time
are binding only upon the owner, at that time, of the leasehold estate under the
Overlease, and each purchaser or transferee of such leasehold estate is deemed
to have assumed the obligations of Sublandlord hereunder accruing during the
period of its ownership.
11.2. Sublandlord has no liability to Subtenant on account of any
failure or refusal by Overlandlord to grant any approval or consent. Sublandlord
has no liability to Subtenant on account of any failure or refusal by
Sublandlord to grant any approval or consent. In any instance in which
Sublandlord is required by any provision of this Sublease (including any of the
Incorporated Provisions as incorporated herein) or applicable law to not
unreasonably withhold consent or approval, Subtenant's sole remedy is an action
for specific performance or injunction requiring Sublandlord to grant such
consent or approval, all other remedies which would otherwise be available being
hereby waived by Subtenant. In any such action, the prevailing party is entitled
to reimbursement of its legal fees from the other party. The provisions of this
Section 12.2 survive the expiration of the term, and any termination, of this
Sublease.
11.3. Subtenant represents and warrants to Sublandlord that Subtenant
has not dealt with any broker, agent or finder in connection with this Sublease
and Subtenant hereby agrees to indemnify Sublandlord against any claim for
commission or other compensation in connection with this Sublease made against
Sublandlord by any broker, agent or finder with whom Subtenant has dealt
including attorneys fees incurred by Sublandlord in the defense of any such
claim. The provisions of this Section 12.3 shall survive the expiration of the
term, and any termination, of this Sublease.
11.4. This Sublease contains the entire agreement between the parties
and all prior negotiations and agreements are merged in this Sublease. Any
agreement hereafter made is ineffective to change, modify or discharge this
Sublease in whole or in part unless such agreement is in writing and signed by
the parties hereto. No provision of this Sublease is deemed to have been waived
by Sublandlord or Subtenant unless such waiver be in writing and signed by
Sublandlord or Subtenant, as the case may be. The covenants and agreement
contained in this Sublease bind and inure to the benefit of Sublandlord and
Subtenant and their respective permitted successors and assigns.
11.5. If any provision of this Sublease is held to be invalid or
unenforceable in any respect, it is intended that the validity, legality and
enforceability of the remaining provisions of this Sublease will not be affected
thereby.
11.6. The headings or captions in this Sublease are included only as a
matter of convenience and for reference, and in no way define, limit or describe
the scope of this Sublease nor the intent of any provisions thereof. Capitalized
terms used herein have the same meanings as are ascribed to them in the
Overlease, unless otherwise expressly defined herein. Unless otherwise stated,
all references in this Sublease to Sections are understood to refer to Sections
of this Sublease. The words "include" and "including", as used in this Sublease,
mean, in each case, "without limitation".
11.7. The parties acknowledge and agree (a) that each has substantial
business experience and is fully acquainted with the provisions of this
Sublease, (b) that the provisions and language of this
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Sublease have been fully negotiated, and (c) that no provision of this Sublease
shall be construed in favor of any party or against any party by reason of such
provision or this Sublease having been drafted on behalf of one party rather
than the other.
11.8. The submission of this document by Sublandlord to Subtenant does
not constitute an offer by Sublandlord, and Sublandlord is not bound in any way
unless and until this Sublease is executed and delivered by both parties.
12. This Sublease is subject to Overlandlord's consent. Sublandlord
must request the same, but is not obligated to make any payment or incur any
obligation to obtain the same. Sublandlord and Subtenant agree to join in the
execution of the instrument of consent provided for in the Overlease.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
of Sublease as of the day and year first above written.
SUBLANDLORD:
i3 MOBILE, INC.
By: /s/ Stephen G. Maloney
-----------------------------------
Name: Stephen G. Maloney
Title: President and CEO
SUBTENANT:
O'DONNELL & ASSOCIATES
By: /s/ Keri O'Donnell
-----------------------------------
Name: Keri O'Donnell
Title: President
12
Exhibit A
FLOOR PLAN OF THE PREMISES
13
Exhibit B
COPY OF OVERLEASE