EXHIBIT 10.9
SUBLEASE
between
SUNTORY INTERNATIONAL CORP.,
Sublandlord,
and
XXXXXXX XXXXXXX, INC. D/B/A
AMERICAN HOME MORTGAGE
Subtenant
Premises: Portion of 29th Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
TABLE OF CONTENTS
CAPTIONS PAGE
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1. Subleasing and Use..................................................... 1
2. Term................................................................... 2
3. Base Rent.............................................................. 2
4. Additional Rent........................................................ 3
5. Electricity............................................................ 5
6. Assignment and Subletting.............................................. 6
7. Condition of the Premises.............................................. 9
8. Incorporation of Xxxxxxxxx............................................. 9
9. Subtenant's Covenants and Liability Insurance.......................... 10
10. Articles of Xxxxxxxxx.................................................. 11
11. Overlandlord's Obligations............................................. 12
12. Sublandlord's Covenants................................................ 13
13. Consent of Sublandlord................................................. 13
14. Liability of Sublandlord............................................... 14
15. Notices................................................................ 14
16. Entire Agreement, Modifications, Successors............................ 15
17. Broker................................................................. 15
18. Listings............................................................... 15
19. Security............................................................... 16
20. Xxxxxxxxx Provision.................................................... 17
21. Subordination.......................................................... 17
22. Overlandlord's Consent................................................. 17
SUBLEASE
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SUBLEASE, made the 17th day of December, 1997 by and between SUNTORY
INTERNATIONAL CORP., a California corporation having an office at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Sublandlord"), and XXXXXXX XXXXXXX, INC.,
d/b/a AMERICAN HOME MORTGAGE, a New York corporation having an office at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Subtenant").
W I T N E S S E T H:
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WHEREAS, by lease dated February 15, 1997 (the "Xxxxxxxxx"), Kato Real
Estate Corporation ("Overlandlord") leased to Sublandlord, as tenant, the entire
29th floor (the "Xxxxxxxxx Premises") of the building known as Tower 49 located
at 00 Xxxx 00xx Xxxxxx in the Borough of Manhattan, City and State of New York
(the "Building") and consisting of 15,250 rentable square feet; and
WHEREAS, a copy of the Xxxxxxxxx has been delivered to Subtenant; and
WHEREAS, Subtenant desires to lease from Sublandlord a portion of the
Xxxxxxxxx Premises consisting of 4,180 rentable square feet as shown unhatched
on Exhibit A annexed hereto (the "Sublet Premises");
NOW, THEREFORE, the parties hereto, for themselves, their successors and
assigns, hereby covenant and agree as follows:
1. Subleasing and Use: (a) Sublandlord hereby leases to Subtenant,
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and Subtenant hereby hires from Sublandlord, the Sublet Premises for the term
hereinafter stated, for the rent
hereafter reserved and upon and subject to the covenants, agreements, terms and
conditions herein set forth.
(a) Subtenant shall use and occupy the Sublet Premises for general and
executive office suites, and for no other purpose.
2. Term. The term of this Sublease shall commence on the date that is
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three business days after the Overlandlord's written consent has been delivered
to Subtenant as hereinafter provided (the "Commencement Date") and shall end on
the day preceding the tenth (10th) anniversary of the Commencement Date (the
"Expiration Date"), or until said term shall sooner cease and terminate as
provided herein.
3. Base Rent. The annual base rent hereunder shall be at the rate of
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(i) $175,560 per annum (or $42.00 per sq. ft) from the Commencement Date to the
day preceding the fifth anniversary of the Commencement Date, payable in advance
in equal monthly installments of $14,630 on the first day of each calendar month
during said period, and (ii) $183,920 per annum (or $44.00 per sq. ft) for the
balance of the term of this Sublease, payable in advance in equal monthly
installments of $15,326.67 on the first day of each calendar month during said
period. The base rent, additional rent and other charges herein reserved and
payable shall be paid to Sublandlord at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as Sublandlord may designate, in lawful money of
the United States of America, as and when the same becomes due and payable,
without demand therefor and without any deduction, set-off or abatement
whatsoever except as otherwise provided in this Sublease. Notwithstanding the
foregoing, Sublandlord hereby grants to
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Subtenant a six (6) month base rent concession to be applied to the following
installments of base rent becoming due hereunder: first (1st), second (2nd),
third (3rd), thirteenth (13th), fourteenth(14th) and fifteenth (15th) (amounting
to $87,780 in the aggregate). Base rent for the fourth installment of base rent
shall be payable upon the execution hereof.
4. Additional Rent. (a) In addition to the annual base rent reserved
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in Section 3 hereof, Subtenant covenants and agrees to pay to Sublandlord as
additional rent 27.4% of all sums which Sublandlord is required to pay to
Overlandlord pursuant to (i) Article 5 of the Xxxxxxxxx (Taxes and Operating
Expenses) except that in Section 1.1 of the Xxxxxxxxx (x) Taxes Base Period
shall be the period commencing on July 1, 1997 and ending on June 30, 1998, and
(y) Operating Expenses Base Period shall be the period commencing on January 1,
1998 and ending on December 31, 1998; (ii) Section 5.3 of the Xxxxxxxxx
(cleaning) except that the Base Labor Rate shall be the Labor Rate for calendar
year 1998; (iii) Section 5.4 of the Xxxxxxxxx (Building electricity); and (iv)
Section 6.9 of the Xxxxxxxxx (Skylobby). The parties hereto agree that
Sublandlord shall have all of the rights and remedies with respect to the
nonpayment by Subtenant of the additional rent provided for in this Section 4
and all other costs, charges and expenses provided for in this Sublease
(collectively, "additional rent") as are provided for in this Sublease or by law
in case of the nonpayment of base rent provided for herein.
(b) Subtenant shall pay Sublandlord the additional rent set forth in
paragraph (a) of this Section 4 within fifteen
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(15) days after the presentation of a statement therefor by Sublandlord to
Subtenant from time to time; provided, however, that if the additional rent is
payable by Sublandlord to Overlandlord upon demand, Subtenant shall pay the
additional rent to Sublandlord upon demand. Subtenant covenants to pay the
additional rent when due, and in lawful money of the United States. Any delay
by Sublandlord in billing additional rent shall not constitute a waiver of or in
any way impair Subtenant's obligation to pay the same in accordance with the
terms of this Sublease.
(c) Subtenant's obligation to pay the additional rent for the term of
this Sublease shall survive the expiration or earlier termination of this
Sublease for a period of two years.
(d) The statement or statements referred to in clause (b) of this
Section 4 shall be accompanied by copies of all statements received by
Sublandlord from Overlandlord on which such statement or statements are
based (provided Sublandlord has received such copies from Overlandlord on which
such statement or statements are based (provided Sublandlord has received such
copies from Overlandlord) (and, during the first year, shall send Subtenant
copies of sufficient documentation establishing the respective base amounts) and
shall constitute a final determination as between Sublandlord and Subtenant
unless Subtenant, within ninety (90) days after they are furnished to Subtenant
(but in no event, beyond the time, if any, prior to which Sublandlord could
contest same pursuant to the Xxxxxxxxx), shall in writing challenge the accuracy
or appropriateness of any such statement, in which case, pending the resolution
of such dispute, Subtenant shall pay the additional rent provided for in this
Section 4 to Sublandlord in accordance with the statement(s) furnished by
Sublandlord.
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(e) In no event shall Subtenant be obligated to make a payment of
additional rent under this Article 4 for a year or for a category of additional
rent for which Sublandlord is not obligated to make such a payment to
Overlandlord, nor shall Subtenant be obligated to make any such payment in
excess of the payment required to be made by Sublandlord for the applicable year
or the applicable category of additional rent.
(f) If Sublandlord has received a refund or credit for overpayments of
additional rent under the Xxxxxxxxx attributable to a year or category of
expense paid by Subtenant to Sublandlord, Subtenant shall be entitled to
receive its proportionate share of such refund or credit.
5. Electricity. (a) Subtenant shall pay as additional rent 27.4% of
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the amount payable by Sublandlord for electricity pursuant to Section 6.1 of the
Xxxxxxxxx, and the provisions of Section 4(b), (c), and (d) above shall be
applicable with respect thereto.
(b) Sublandlord shall not in any way be liable or responsible to
Subtenant for any loss or damage or expense which Subtenant may sustain or incur
by reason of any change, failure or defect in the supply or character of the
electric energy furnished to the Sublet Premises or if the quantity or character
of the electrical energy is no longer available or suitable for Subtenant's
requirements, except that Subtenant shall be entitled to 27.4% of any abatement
received by Sublandlord to the extent the Sublet Premises was affected
applicable, however, only to any period during which Subtenant was occupying the
Sublet Premises pursuant to the terms of this Sublease. Subtenant covenants and
agrees that at all times its use of electric current shall never
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exceed the capacity of existing feeders to the Building or the risers or wiring
installation.
6. Assignment and Subletting. (a) Subtenant shall not assign this
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Sublease, sub-sublet the Sublet Premises, or any part thereof, suffer or permit
the occupancy of the Sublet Premises, or any part thereof, by any party other
than Subtenant, or in any other manner encumber this Sublease without the prior
written consent of Sublandlord and Overlandlord in each instance. Provided it
has obtained Overlandlord's consent, Sublandlord's consent shall not be
unreasonably withheld. The consent by Sublandlord to any assignment of this
Sublease or to any sub-sublease or occupancy of the Sublet Premises, or any part
thereof, shall not be deemed to be a consent to any other assignment, sub-
subletting or occupancy, and shall not be deemed (i) to relieve or release
Subtenant from the full performance and observance by Subtenant of all of its
obligations pursuant to this Sublease, or (ii) to relieve or release Subtenant
or any assignee or sub-sublessee of Subtenant from the obligation of obtaining
the consent in writing of Sublandlord and Overlandlord to any further
assignment, sub-sublease or occupancy.
(b) If this Sublease shall be assigned without the consent of
Sublandlord and Overlandlord, or if the Sublet Premises, or any part thereof,
shall be sublet or occupied by any person or persons other than Subtenant,
Sublandlord may, after default by Subtenant, collect rent from assignee, sub-
subtenant or occupant and apply the net amount collected to the rent herein
reserved, but no such assignment, sub-subletting, occupancy or collection of
rent shall be deemed a waiver of any of the covenants, terms or provisions
contained in this Section.
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6, nor shall it be deemed an acceptance of the assignee, sub-subtenant or
occupant as Subtenant hereunder, or a release of Subtenant from the full
performance and observance by Subtenant of all the covenants and obligations
contained in this Sublease on the part of Subtenant to be performed or observed.
(c) A transfer of a majority of the voting stock of Subtenant shall be
deemed an assignment of this Sublease and shall require the consent of
Sublandlord and Overlandlord. The provisions of Section 19.2 of the Xxxxxxxxx
shall apply to this Sublease, except that the successor to Subtenant must have a
net worth equal to or greater than the net worth of Subtenant immediately prior
to such merger, consolidation or transfer. The provisions of Section 19.12 also
shall apply to this Sublease.
(d) If Sublandlord should consent to a subletting or assignment,
Subtenant agrees that Sublandlord shall be entitled to receive an amount equal
to fifty percent (50%) of the Net Profit (as hereinafter defined) received by
Subtenant in connection with any subletting of the Sublet Premises or any
assignment of this Sublease during the term of this Sublease. Such amounts shall
be determined and shall be payable to Sublandlord as follows:
(i) "Net Profit" shall mean the excess, if any, of Income over
Expenses (as such terms are hereinafter defined) as of a given date.
With respect to each sublease or assignment, "Income" shall mean the sum
of all rents, additional rents and other considerations paid by any
subtenant or assignee under any such sublease or assignment, as the case
may be, as of a given date. "Expenses", with respect to each sublease or
assignment, shall mean the sum
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as of a given date of (1) that portion of the rents, additional rents and other
considerations paid by Subtenant under this Sublease that are allocable, on a
rentable square foot basis, to the space covered by any such sublease or
assignment, and (2) reasonable advertising costs, brokerage commissions, legal
fees, the cost of improvements or work allowances made in connection with such
transactions paid by Subtenant and reasonable rental concessions granted in
connection with any such sublease or assignment.
(ii) Net Profit, Income and Expenses with respect to each sublease or
assignment shall be cumulative and shall be determined on a cash basis as of
each Determination Date (hereinafter defined). "Determination Date" shall mean
(A) the first day of each calendar month occurring during the term of any
sublease or assignment, and (B) the expiration date of any such sublease or
assignment.
(iii) Within fifteen (15) days after each Determination Date, Subtenant
shall pay to Sublandlord with respect to each sublease or assignment an amount
equal to fifty percent (50%) of Net Profit, if any, as of such Determination
Date. Such Payment shall be accompanied by a reasonably detailed statement
showing the calculation of Net Profit and the amount payable to Sublandlord
pursuant hereto. It is understood and agreed that Subtenant shall not be
required to make any payments hereunder until Subtenant has been reimbursed for
all Expenses of Subtenant in connection with any such sublease or assignment.
Thereafter, all Net Profit shall be shared equally by
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Sublandlord and Subtenant with respect to each such sublease or
assignment.
(iv) Amounts payable under this Paragraph 6(d) shall be deemed
to be additional rent payable under this Sublease.
7. Condition of the Premises. Subtenant represents that it has made
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or caused to be made an examination and inspection of the Sublet Premises and is
familiar with the condition thereof. Subtenant agrees that it enters into this
Sublease without any representations or warranties by Sublandlord, Overlandlord,
their agents, representatives, employees or servants or any other person as to
the condition of the Sublet Premises, and Subtenant agrees to accept the Sublet
Premises "As Is" and in the condition existing at the date of this Sublease,
except that Sublandlord, at its expense, shall provide one (1) ladies restroom
at the location shown in the attached plan and in accordance with the
specifications annexed to this Sublease. Sublandlord shall construct the ladies
restroom in accordance with the laws and shall complete such work no later than
June 30, 1998. Subtenant may have access to Sublandlord's ladies restroom until
the construction of the ladies restroom has been completed.
8. Incorporation of Xxxxxxxxx. To the extent applicable to the Sublet
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Premises this Sublease is subject to all of the terms, covenants, conditions and
agreements contained in the Xxxxxxxxx and the matters to which the Xxxxxxxxx is
subject and subordinate, subject to the provisions of Section 10 hereof. Except
as otherwise provided in this Sublease, all of the terms, covenants, conditions
and agreements of the Xxxxxxxxx including,
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among other things, definitions and constructions therein contained, except such
as by their nature or purpose are inapplicable or inappropriate to the
subleasing of the Sublet Premises pursuant to this Sublease or are inconsistent
with any of the provisions of this Sublease or are inconsistent with any of the
provisions of this Sublease, are hereby incorporated in and made part of this
Sublease with the same force and effect as though set forth at length herein, it
being understood that references in the Xxxxxxxxx to (i) the "Premises" shall be
deemed to refer to the "Sublet Premises" hereunder, (ii) "Landlord" and "Tenant"
shall be deemed to refer to "Sublandlord" and "Subtenant" hereunder,
respectively, (iii) the "term of this Lease" or words of similar import shall be
deemed to refer to the "term of this Sublease", and (iv) "this Lease" shall be
deemed to refer to "this Sublease". Sublandlord represents that a true and
complete copy of the Xxxxxxxxx is annexed to this Lease as Exhibit B.
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9. Subtenant's Covenants and Liability Insurance.
---------------------------------------------
(a) Subtenant covenants and agrees (i) not to do or suffer or permit any act or
thing to be done or suffered which would or might cause the Xxxxxxxxx of the
rights of Sublandlord as tenant thereunder to be cancelled, terminated or
forfeited or cause Sublandlord to become liable for any damages, claims or
penalties; and (ii) to indemnify and hold harmless Sublandlord and Overlandlord
from and against any and all liability, loss, damage, suits, penalties, claims
and demands of every kind or nature (including, without being limited thereto,
reasonable attorneys fees and expenses by reason thereof) arising from the use,
occupancy or management of the Sublet Premises or of any business conducted
therein, or from any work or thing whatsoever
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done or any condition created by or any other act or omission of Subtenant, its
assignees or sub-subtenants, or their respective employees, agents, contractors,
visitors or licensees, in or about the Sublet Premises or any other part of the
Building or from a failure of Subtenant to observe the provisions of this
Sublease.
(b) Subtenant shall pay, satisfy and discharge any judgments, orders
and decrees which may be recovered against Sublandlord or Overlandlord in
connection with the foregoing.
(c) Subtenant shall provide on or before it enters the Sublet Premises
for any reason and shall keep in force during the term of this Sublease for the
benefit of Sublandlord, Overlandlord and Subtenant, the insurance required to be
maintained by Sublandlord under Article 7 of the Xxxxxxxxx with respect to the
Sublet Premises, except that the limits of Subtenant's liability coverage shall
be $3,000,000.
10. Articles of Xxxxxxxxx. For the purposes of this Sublease, the
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provisions of the Articles of the Xxxxxxxxx, as incorporated herein, are subject
to the following modifications or deletions:
(a) In all provisions requiring the approval or consent of Sublandlord,
Subtenant first shall be required to obtain the approval or consent of
Overlandlord and then to obtain like approval or consent of Sublandlord.
Sublandlord shall forward to Overlandlord such requests as Subtenant may submit
for approval or consent from Overlandlord. Sublandlord shall not unreasonably
withhold its approval or consent so long as Overlandlord's approval or consent
shall have been obtained.
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(b) The time limits provided in the Articles of the Xxxxxxxxx for the
giving of notice, making demands, performance of any act, conditions or
covenant, or the exercise of any right, remedy or option, are amended for the
purposes of this Sublease by lengthening or shortening the same in each instance
by five (5) days, as appropriate, so that notices may be given, demands made, or
any act, condition or covenant performed, or any right, remedy or option
hereunder exercised, by Sublandlord or Subtenant, as the case may be, within the
same limit relating thereto contained in the Xxxxxxxxx, except that Subtenant's
time for performance shall not be reduced below two days.
(c) The following provisions of the Xxxxxxxxx shall not be incorporated
here by reference: Articles 1 and 2, Sections 4.1 through 4.5, Article 5,
Section 8.11 (except to the extent of any payment actually required to be paid
to Overlandlord), Section 6.1.1, Articles 19 (except as provided above), 22, 25
and 127 Exhibit A.
11. Overlandlord's Obligations. Notwithstanding anything contained in
this Sublease to the contrary, Subtenant agrees and understands that
Sublandlord shall have no obligation or responsibility whatsoever to provide or
perform any service, repair, alteration or other similar obligation which is the
obligation of Overlandlord to provide or perform pursuant to the provisions and
terms of the Xxxxxxxxx incorporated herein including, but not limited to, the
obligation of Overlandlord to (i) make restorations or repairs after damage to
the Building or the Sublet Premises by fire or other casualty or after
condemnation, (ii) provide the services specified in Article 6 of the
Xxxxxxxxx, or (iii) make the repairs pursuant to Section 10.1
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of the Xxxxxxxxx. Subtenant further agrees and understands that each such
obligation shall be provided or performed by Overlandlord and not by
Sublandlord; provided, however, that where Subtenant shall notify Sublandlord
that Overlandlord is not supplying services to the Sublet Premises as required
under the Xxxxxxxxx, Sublandlord will request Overlandlord to perform such
services. Sublandlord shall in no event be liable to Subtenant nor shall
Subtenant's obligations under this Sublease be impaired or reduced or the
performance thereof excused because of any failure or delay on Overlandlord's
part in providing any such services or in making any such repairs, or in
performing or observing any similar obligation of Overlandlord pursuant to the
Xxxxxxxxx. If Overlandlord shall default in any of its obligations to
Sublandlord with respect to the Sublet Premises, Sublandlord shall permit
Subtenant, at Subtenant's sole cost and expense and without cost to Sublandlord,
to enforce Sublandlord's rights against Overlandlord with respect to the Sublet
Premises in Sublandlord's name, provided, however, that Subtenant shall
indemnify and hold Sublandlord harmless from and against all liability, loss,
claims, demands, penalties or damage which Sublandlord may incur or suffer by
reason of such action (including, but not limited to, reasonable attorney's
fees). Sublandlord agrees to cooperate with Subtenant in such action and shall
execute any and all documents reasonably required in furtherance of such action.
12. Sublandlord's Covenants. Sublandlord represents that the Xxxxxxxxx
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is in full force and effect and that neither Sublandlord nor Overlandlord is in
default thereunder. Sublandlord agrees that it will not cause any default
thereunder.
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13. Consent of Sublandlord. Whenever Sublandlord's consent is
----------------------
required pursuant to this Sublease, it is agreed that Sublandlord may withhold
or delay its consent if Overlandlord shall have delayed or refused to give any
consent which may be required of it relating to the same or related matter.
14. Liability of Sublandlord. All property (whether real, personal
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or mixed) at any time located in or upon the Sublet Premises shall be at the
risk of the Subtenant only, and Sublandlord shall not become liable for any
damage to said property or to Subtenant, or to any other person or property,
caused by water leakage, steam, sewerage, gas or odors or for any damage done or
occasioned by or from any boiler, plumbing, gas, water, steam or other piping,
or any fixtures or equipment or appurtenances, or for any damage arising from
any act or neglect or arising by reason of the use of, or any defect in, the
Sublet Premises or any of the fixtures, equipment or appurtenances therein
contained, or by the act or neglect of any other person or caused in any other
manner.
15. Notices. All notices, demands, consents, approvals, requests or
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other communication which Sublandlord or Subtenant may desire or be required to
give hereunder (collectively, "Notices") shall be in writing and shall be given
by registered or certified mail, return receipt requested, with postage prepaid,
as follows:
If to Subtenant, to: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxxxx Xxxxxxx
With a copy to: Xxxxxx Xxxxxxxxx & Xxxxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Sold, Esq.
If to Sublandlord, to: 00 Xxxx 00xx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
With a copy to: Noumair & Riad, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
A Notice given hereunder by counsel to either party shall be deemed to have been
given by such party. Sublandlord or Subtenant may change its address for
Notices hereunder by a Notice given pursuant to this Section. A Notice mailed in
compliance with the provisions or this Section shall be deemed given on the
third (3rd) business day next succeeding the day on which it is mailed.
16. Entire Agreement, Modifications, Successors. This Sublease
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contains the entire agreement between the parties and any agreement hereafter
made shall be ineffective to change, modify or discharge it in whole or in part
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification or discharge is sought. Subject to
the provisions hereof, this Sublease shall bind, and inure to the benefit or,
the parties and their respective successors, representatives, heirs and assigns.
17. Broker. Subtenant represents that it did not deal with any broker
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in relation to this Sublease other than CB Commercial and Colliers ABR, Inc.
(collectively, the "Broker"). Subtenant agrees to indemnify and hold the
Sublandlord harmless from and against any and all liabilities, claims, suits,
demands, judgments, costs, interest and expense (including reasonable attorney's
fees) to which Sublandlord may be subject or suffer by reason of any claim made
by any person, firm or corporation other than the Broker for any commission,
expense or other compensation as a result of the execution and delivery of this
Sublease and
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based on alleged conversations or negotiations by Subtenant with said person,
firm or corporation. Sublandlord shall pay Broker their commissions pursuant to
one or more separate agreements.
18. Listings. Subtenant shall have the right to the use of its
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proportionate share (27.4%) of the listings on the directory board granted to
Sublandlord under Section 24.13 of the Xxxxxxxxx.
19. Security. Subtenant has deposited with Sublandlord the sum of
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$29,260.00 as security for the faithful performance and observance by Subtenant
of the terms, provisions and conditions of this Sublease. In the event
Subtenant defaults in respect of any of the terms, provisions and conditions of
this Sublease, including, but not limited to, the payment of base rent and
additional rent, which default continues after the expiration of any applicable
grace period, Sublandlord may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any base rent
and additional rent or any other sum as to which Subtenant is in default or for
any sum which Sublandlord may expend or may be required to expend by reason of
Subtenant's default in respect of any of the terms, covenants and conditions of
this Sublease, including, but not limited to, any demages or deficiency in the
reletting of the Sublet Premises, whether such damage or deficiency accrued
before or after summary proceedings or other re-entry by Sublandlord. In the
event that Subtenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Sublease, the security shall be
returned to Subtenant within thirty (30) days after the date fixed as the end of
this Sublease and after delivery of entire possession of the Sublet Premises to
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Sublandlord. Subtenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and that
neither Sublandlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
Sublandlord shall hold the security deposit in an interest-bearing account and
shall pay the interest to Subtenant annually, so long as Subtenant is not in
default under this Sublease.
20. Xxxxxxxxx Provision. Pursuant to Section 19.7.5 of the Xxxxxxxxx,
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(i) this Sublease is subject and subordinate to the Xxxxxxxxx and all interests
to which the Xxxxxxxxx is subordinate; (ii) on termination of the Xxxxxxxxx or
re-entry or repossession of the Xxxxxxxxx Premises by Overlandlord, Overlandlord
may, at it option, take over all of the right, title and interest of Sublandlord
under this Sublease, and Subtenant shall, at Overlandlord's option, attorn to
Overlandlord but that nevertheless Overlandlord shall not be: (x) liable for
any previous act or omission of Sublandlord under this Sublease; (y) subject to
any defense or offset previously accrued in favor of Subtenant against
Sublandlord; or (z) bound by any previous modification of this Sublease made
without Overlandlord's written consent or by any previous prepayment of more
than one (1) month's rent.
21. Subordination. Subtenant acknowledges that this Sublease is
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subject and subordinate to the Xxxxxxxxx and to all the terms, covenants and
conditions contained therein. This Sublease is also subject and subordinate to
all underlying leases which may now or thereafter affect the real property of
which the Xxxxxxxxx Premises forms a part and to all mortgages which might
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now or hereafter affect such leases or such real property, and to any and all
renewals, modifications, consolidations, replacements and extensions thereof.
22. Overlandlord's Consent. This sublease is subject to and conditional
----------------------
upon the written consent of the Overlandlord, and if the Overlandlord shall not
have so consented to this Xxxxxxxxx within sixty (60) days after the date of
this Sublease, this Sublease shall thereupon become null and void. In such
event, Sublandlord shall return to Subtenant all monies paid by Subtenant to
Sublandlord on account of this Sublease. Sublandlord shall diligently and in
good faith seek Overlandlord's consent to this Sublease.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this
Sublease the date first mentioned above.
Sublandlord: SUNTORY INTERNATIONAL CORP.
By: /s/ Taniyama
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Name: Taniyama
Title: President
Subtenant: XXXXXXX XXXXXXX, INC. D/B/A
AMERICAN HOME MORTGAGE
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
-18-
Exhibit A
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[FLOOR PLAN APPEARS HERE]
