1
Exhibit 10.4
SUBLEASE
AGREEMENT OF SUBLEASE ("SUBLEASE"), made as of the 20th day of June,
2001, by and between CENDANT OPERATIONS, INC., (by assignment from NetMarket
Group, Inc., successor to the NetMarket Company), having its principal office at
0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Landlord") and BIOPURE
CORPORATION having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000 ("Tenant").
W I T N E S S E T H:
WHEREAS, a lease dated January 16, 1998 (the "Prime Lease"), by and
between Xxxxxx X. Xxxxx, Xx., as Trustee of the 00 Xxxxxxx Xxxxxx Realty Trust
("Prime Landlord") as landlord and the Landlord herein, as tenant, was entered
into for premises situated in Cambridge, MA such premises being commonly known
as entire second floor, 00 Xxxxxxx Xxxxxx and more particularly described in the
Prime Lease (the "Premises"), a copy of which (with financial terms deleted) is
attached hereto as EXHIBIT A; and
WHEREAS, the parties hereto have agreed to enter into a sublease of all
the Premises.
NOW, THEREFORE, in consideration of the mutual promises and other good
and valuable consideration hereinafter contained, the parties hereto agree as
follows:
1. (a) THE PREMISES. Landlord does hereby sublease to Tenant and
Tenant does hereby sublease from Landlord the remises for the term, at the
rental and upon all of the terms and conditions set forth in this Sublease.
(b) PARKING. Tenant shall, provided it is not in default under
this Sublease, have the right to use twenty-one (21) Parking Spaces at a cost of
One Hundred Twenty-Five and 00/100 ($125.00) Dollars per space per month.
2. TERM. The term of this Sublease shall commence on June 20,
2001 (the "Commencement Date") and end on February 29, 2008, unless sooner
terminated as provided herein or in the Prime Lease. The date upon which Tenant
shall commence paying rent hereunder shall be July 21, 2001. If Landlord, for
any reason whatsoever, cannot deliver possession of the Premises to Tenant on
the Commencement Date, this Sublease shall not be void or voidable, nor shall
Landlord or its agents be liable to Tenant for any loss or damage resulting
therefrom; provided, however, that Tenant shall not be liable for any rent until
one month after Landlord delivers possession of the Premises to Tenant and
provided further that if Landlord does not deliver the Premises to Tenant on or
before July 1, 2001, this Sublease shall be voidable by Tenant by written notice
delivered to Landlord by no later than July 5, 2001. If Landlord tenders
possession of the Premises to Tenant prior to the Commencement Date and Tenant
accepts such possession, then the term of this Sublease and Tenant's obligations
hereunder shall commence on the date that it accepts such possession. Except as
otherwise expressly set forth in this Section, any failure to deliver possession
on the Commencement Date, or delivery of possession prior thereto, shall not in
any way affect the obligations of Tenant hereunder or the commencement or
expiration date of the term hereof.
3. RENT. (a) Tenant shall pay to Landlord as rent for the use and
occupancy of the Premises, without deduction, offset, prior notice or demand,
minimum annual rental equal to the following: Three Hundred Twenty-Eight
Thousand Eight Hundred ($328,800.00) Dollars.
(b) Rent shall be paid in lawful money of the United States of
America to Landlord, in equal monthly installments of Twenty-Seven Thousand Four
Hundred and 00/100 ($27,400.00) Dollars in advance, on the first day of each
calendar month ("Rent Payment Date") during the term of this Sublease,
1
2
to Cendant Operations, Inc., 0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: Xxxxxxxxx Xxxxxxx, Manager Construction Services, or at such other
address as Landlord may designate in writing. Should the term of this Sublease
begin or end on a day other than the first or last day of a calendar month, all
base rent and additional rent, payable hereunder shall be adjusted and prorated
on a per diem basis for any such months. Tenant's obligation to pay rent and
additional rent shall survive such expiration or termination of this Sublease.
4. ADDITIONAL RENT. Contemporaneously with each monthly payment
of fixed rent pursuant to Article 3, Tenant shall pay to Landlord one-twelfth
(1/12th) of all additional rent, charges and fees of any nature payable by
Landlord to Prime Landlord under the Prime Lease (including, without limitation,
the annual Parking Fee, Operating Expenses and Real Estate Taxes) payable by
Landlord pursuant to the Prime Lease, as the same may be extended, modified or
amended.
5. NET LEASE. (a) This Sublease shall be deemed and construed to
be a net lease and Tenant shall accordingly pay to Landlord, absolutely net, the
rent free of any deductions or set-offs of any kind. Without limiting the
foregoing, Landlord has no obligation to Tenant, whether before or during, the
term of this Sublease (a) to make any repairs, alterations, additions, or
changes to the Premises, including structural portions thereof, (b) to comply
with legal requirements or insurance requirements, (c) to insure or protect the
Premises or persons therein or about, (d) to furnish any utilities, heat, water,
air conditioning, power of any kind, or any other services, or (e) to pay the
real estate taxes, general or special assessments or other taxes related to the
use and operation of the Premises or related to any accessory uses of the
Premises. If there is any conflict between this Article 5 and any other
provision of this Sublease or the Prime Lease, then, as between Landlord and
Tenant (without in any way modifying the obligations of the Tenant under the
Prime Lease to Prime Landlord) this Article 5 shall control.
(b) Tenant understands and acknowledges that (i) Landlord shall
not actually provide any of the services, make any of the repairs, restoration
or maintenance or take any of the actions that Prime Landlord has agreed to
provide, to make, to take or to cause to be provided or made or taken under the
provisions of the Prime Lease and Tenant shall rely upon, and shall look solely
to, the Prime Landlord for the provision or making thereof and (ii) Landlord is
not making and shall not be responsible for any representations whatsoever which
Prime Landlord may have made to Landlord, as tenant, in the Prime Lease.
Landlord shall cooperate with Tenant in obtaining services, repairs, restoration
or maintenance from Prime Landlord. Prime Landlord shall have repaired all
existing roof leaks prior to the Commencement Date.
6. REPAIRS AND MAINTENANCE. Tenant shall at its sole cost and
expense, maintain and repair the Premises and the mechanical systems located in
the Premises in good order and condition.
7. ALTERATIONS. Tenant shall not make or permit to be made any
alterations, additions or improvements (the "Alterations") to the Premises
without the prior written consent of Landlord and Prime Landlord which may be
granted or withheld in their sole discretion. If Tenant shall desire to make any
such Alteration, Tenant shall apply for the consent of Landlord and Prime
Landlord and furnish complete plans and specifications for the desired
Alterations and the names of the construction contractor(s) to be engaged by
Tenant. If Landlord and Prime Landlord shall have granted their consent, Tenant
may proceed with any such approved Alterations SUBJECT TO TENANT FULFILLING THE
FOLLOWING CONDITIONS:
(i) Subsequent to obtaining the consent of Landlord and
Prime Landlord and prior to commencement of construction of the Alterations,
Tenant shall deliver to Landlord and Prime Landlord (a) the building permit and
a copy of the executed construction contract covering the Alterations and (b)
certificates evidencing the existence of workers' compensation insurance
covering all persons employed for such work and comprehensive general liability
and property damage insurance naming Landlord, Prime Landlord, and Tenant as
insureds, with coverage of at least $5,000,000 single limit.
2
3
(ii) All Alterations shall be performed at Tenant's sole
cost and expense. Tenant shall keep the Premises free and clear of all liens for
any work or material claimed to have been furnished to Tenant or to the Premises
on Tenant's behalf. Tenant shall discharge any mechanics lien filed against the
Premises or the Building of which the Premises forms a part within thirty (30)
days of such filing. Tenant shall indemnify Landlord and Prime Landlord for any
and all claims, costs and expenses incurred by Landlord and/or Prime Landlord in
connection with any liens. If Tenant fails to discharge such lien, Landlord may,
but shall not be obligated to, discharge such lien on Tenant's behalf without
determining the validity of the same.
(iii) At Landlord's option, Tenant shall provide, at
Tenant's expense, such completion, performance and/or payment bonds.
(iv) Any construction, alteration, maintenance, repair,
replacement, installation, removal or decoration undertaken by Tenant in
connection with the Premises shall be completed in accordance with the plans and
specifications approved by Landlord and Prime Landlord, shall be carried out in
a good, workmanlike and prompt manner, shall comply with all applicable
statutes, laws, ordinances, regulations, rules, orders and requirements of the
authorities having jurisdiction thereof, and shall be subject to supervision by
Landlord or its employees, agents or contractors.
(v) If the Alterations which Tenant causes to be
constructed result in Landlord or Prime Landlord being required to make any
alterations and/or improvements to other portions of the Building in order to
comply with any applicable statutes, laws, ordinances, regulations, rules,
orders or requirements (e.g., ordinances intended to provide full access to
handicapped persons), then Tenant shall reimburse Landlord and/or Prime
Landlord, as the case may be, upon demand for all costs and expenses incurred by
Landlord and/or Prime Landlord, as the case may be, in making such alterations
and/or improvements.
(vi) Any Alterations made by Tenant shall remain on and be
surrendered with the Premises upon the expiration or sooner termination of the
Term, except Tenant shall upon demand by Landlord, at Tenant's sole cost and
expense, forthwith and with all due diligence remove all or any portion of any
Alterations made by Tenant which are designated by Landlord to be removed, and
Tenant shall forthwith and with all due diligence, and at its sole cost and
expense, repair and restore the Premises to their original condition, reasonable
wear and tear excepted. Prior to any installation of Alterations, and upon
written request therefor by Tenant, Landlord shall notify Tenant if removal of
Alterations will be required.
(vii) During the progress of any Alterations, Landlord and
Prime Landlord shall have the right to inspect the Premises and Tenant shall
afford Landlord access and the opportunity to respect, at all reasonable times.
8. UTILITIES. By the Commencement Date, Tenant shall notify the
local utility servicing the Premises that all utilities, electric and water
charges should be billed by such utility directly to Tenant. Tenant shall,
during the term of this Sublease and at its expense, pay all utility bills
payable by Landlord as tenant pursuant to the Prime Lease. If Landlord shall
receive a utility xxxx directly from the local utility company after the
Commencement Date and prior to the time the utility meters shall be billed
directly to Tenant, then, upon rendition by Landlord of such xxxx to Tenant,
Tenant shall promptly pay to Landlord such charges. If Tenant shall fail timely
to pay all or any portion of its utility bills when due and owing, Landlord may
render payment to the utility for the account of Tenant and any such sums paid
by Landlord, together with Landlord's Costs (defined in Article 23) shall be
additional rent and added to the monthly base rent for the following month. The
provisions of this Article 8 shall survive the expiration or earlier termination
of this Sublease.
9. BROKERAGE. Landlord and Tenant warrant and represent to each
other that neither party has dealt with any broker for the procurement of this
Sublease, other than Xxxxxxxx Xxxx ("Landlord's
3
4
Broker") and Xxxxxxx & Xxxxxxxxx ("Tenant's Broker"). Each party shall defend,
indemnify and hold harmless the other party from any loss, cost or expense
suffered or incurred and arising out of a breach of the foregoing
representation. Landlord agrees to pay a commission to Landlord's Broker
pursuant to separate agreement. Landlord shall have no obligation to pay any
commission to Tenant's Broker, whose fee, if any, shall be paid by Landlord's
Broker.
10. ASSIGNMENT AND SUBLETTING. (a) Tenant may not assign this
Sublease or further sublet all or any portion of the Premises without the prior
written consent of Landlord and Prime Landlord (in accordance with the
provisions of the Prime Lease). Said consent shall not be unreasonably withheld
or delayed. In the event of any such assignment or subletting, Tenant shall
remain liable for all liabilities of tenant and obligations required on its part
to be performed under this Sublease. If this Sublease is assigned, or if the
Premises or any part thereof are sublet or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent from the assignee,
subtenant or occupant, and apply the net amount collected to the rental herein
reserved or otherwise required to be paid, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of the covenants on the part of
Tenant herein contained.
(b) If Tenant is a corporation or a partnership, an assignment
within the meaning of this Article shall include any one or more sales or
transfers, direct or indirect, by operation of law or otherwise, or the creation
of a new stock or partnership interest, by which a majority interest of capital
stock or partnership interest, as the case may be, shall be vested in a party or
parties who are non-stockholders or non-partners as of the date of execution of
this Sublease. This Article shall not apply if Tenant's capital stock or
partnership interest, as the case may be, is listed on a recognized security
exchange.
11. INSURANCE/SUBROGATION WAIVER. (a) At all times while this
Sublease is in effect, Tenant agrees to maintain at its expense, with an
insurance carrier satisfactory to Landlord the insurance required to be
maintained by Tenant under the Prime Lease AND the following:
(i) WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY.
Workers' Compensation insurance for statutory limits or a State certificate.
Employer's Liability coverage should have limits of not less than $500,000.
(ii) LIABILITY INSURANCE.
1) Occurrence basis commercial general
liability insurance, including blanket contractual coverage, for personal injury
and property damage of not less than $1 million combined single limit per
occurrence.
2) Automobile liability insurance covering all
owned, non-owned and hired vehicles, with limits of not less than $1 million
combined single limit per occurrence.
3) Excess insurance coverage with a combined
single limit of not less than $4 million per occurrence in excess of the
underlying liability insurance requirements set forth above.
4) Such other liability insurance as may be
required by Landlord.
(iii) PROPERTY INSURANCE.
1) Insurance covering the Tenant's property,
equipment, and/or material against loss or damage by fire and the perils
commonly referred to as extended coverage, vandalism and malicious mischief, in
an amount not less than 90% of replacement cost of the property, equipment
and/or material.
4
5
2) Such other property insurance as may be
required by Landlord.
(iv) ADDITIONAL INSURANCE REQUIREMENTS.
1) Each insurance policy listed above (except
workers' compensation) must name Cendant Operations, Inc. and Prime Landlord as
insureds under the policy (Additional Named Insureds). All insurance policies
shall be primary to any self-insurance or insurance policies carried by Landlord
or Prime Landlord.
2) Tenant agrees to furnish Landlord and Prime
Landlord, (i) contemporaneously with Tenant's execution of this Lease AND (ii)
on each anniversary of the Commencement Date, with a certificate of insurance
evidencing the insurance required by this Section. Such certificate will provide
that said insurance may not be canceled or materially modified for any reason,
including without limitation, non-payment of premium, except upon at least
thirty (30) days prior written notice to Landlord at 0 Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000, Attention: Legal or to Landlord at such other address as
Landlord may designate from time to time, in writing. Certificates evidencing
the renewal of such policy shall be delivered to Landlord and Prime Landlord no
later than thirty (30) days prior to the expiration of such policy. Tenant shall
be in material breach of this Sublease if Tenant fails to provide said
certificate or if any insurance required hereunder is not procured or is
canceled or materially modified. If at any time Tenant fails or neglects to
maintain the insurance required pursuant to this Sublease or fails or neglects
to deliver evidence of insurance as required pursuant hereto, Landlord may, at
its option, but without any obligation to do so, a) terminate this Sublease or
b) upon five (5) days prior written notice thereof, effect such insurance as the
agent of and at the expense of Tenant, by taking out policies in companies
satisfactory to Landlord for a period not exceeding one (1) year in any one
policy. Such insurance shall be kept in force as long as necessary to protect
Landlord's interest. Landlord shall not be limited in the proof of any damages
which it may claim against Tenant, arising out of or by reason of Tenant's
failure to provide and keep in force insurance as provided herein, to the amount
of the insurance premium or premiums not paid or incurred by Tenant which would
have been payable upon such insurance. Landlord shall be entitled to recover as
damages for such breach the uninsured amount of any loss or damages and the
costs and expense of suit suffered or incurred during any period when Tenant
shall have failed or neglected to provide such insurance. The cost of any such
insurance procured by Landlord shall be added to the monthly Rent for the
following month, and same shall be considered as part of the Rent, and Landlord
shall have the same rights and privileges for the collection thereof as if same
were Rent.
3) In the event of any loss or damage to the
Premises or any property, equipment, fixtures of Tenant, Tenant waives all
claims against the Landlord and Prime Landlord for any such loss or damage and
Tenant shall look only to any insurance which it has obtained to protect against
such loss and Tenant shall obtain, for each policy of such insurance, provisions
waiving any claim against Landlord and Prime Landlord for loss or damage.
(v) All policies required herein shall be purchased from
insurers licensed in the state in which the Premises are located and shall be
rated in the most recent BEST'S INSURANCE REPORTS as having a minimum
policyholder's rating of "A-" and a financial category no lower than "VI" ($25
million to $50 million of adjusted policyholder's surplus).
(b) Comprehensive General Liability Insurance, including
contractual liability insurance coverage insuring all of Tenant's indemnity
obligations under this Sublease except for the indemnity contained in Section
19(h), personal injury, completed operations and Fire Legal Liability Insurance,
which covers the Premises and Tenant's operations. The policy shall name
Landlord and Prime Landlord as additional insureds for liability, for bodily
injury, including death, and property damage, personal injury and other covered
loss. The insurance will be primary and not excess, with a combined single limit
of not less than One Million ($1,000,000.00) Dollars for bodily injury,
including death, and property damage for any one occurrence.
5
6
(c) Noncontributory, "All-Risk" casualty insurance covering all
buildings and improvements located on the Premises and trade fixtures,
merchandise and other personal property of Tenant from time to time in, on or
about the Premises, in an amount not less than one hundred (100%) percent of
their actual replacement cost from time to time. Such insurance shall be primary
and not excess and shall protect Tenant from damage or other loss caused by fire
or other casualty or cause including sprinkler damage, vandalism and malicious
mischief.
(d) Tenant hereby waives any and all rights of recovery against
Landlord and Prime Landlord and their respective subsidiaries and affiliates,
and their respective officers, directors, stockholders, agents and employees
relating to Premises or property damage and any resulting business interruption
losses, occurring on or arising out of the use, maintenance or occupancy of the
Premises, the Prime Lease Premises or the Building whether or not such loss or
damage is insured.
(e) This property damage subrogation waiver will preclude the
assignment of any insurance claim by way of subrogation to any insurer. Tenant
agrees to give immediately to each appropriate insurer written notice, if
required, of the terms of this waiver and, if necessary, have said insurance
policies properly endorsed to prevent the invalidation of the insurance
coverages by reason of this waiver, if required by the insurance policies.
(f) Tenant shall indemnify Landlord and Prime Landlord against any
loss or expense, including but not limited to reasonable attorneys' fees,
resulting from the failure to obtain such insurance subrogation waiver. This
subrogation waiver shall be in addition to, and not in limitation or derogation
of, any other waiver or release contained in this Sublease.
(g) The provisions of this Section will survive the termination or
earlier expiration of this Sublease.
12. SUBORDINATION TO PRIME LEASE. (a) This Sublease is subject and
subordinate to the Prime Lease. If the Prime Lease is terminated for any cause
whatsoever (other than by reason of the willful default of Landlord with respect
to Landlord's obligations as tenant under the Prime Lease during the term of
this Sublease), Tenant shall promptly vacate and surrender the Premises to
Landlord and this Sublease shall terminate as of the date of termination of the
Prime Lease, and Landlord shall have no liability and/or obligation to Tenant
for the termination of this Sublease. This Section shall be self-operative and
no further instrument of subordination shall be required. To confirm such
subordination, Tenant shall execute promptly any certificate that Landlord may
request.
(b) With respect to repairs, replacements, restoration, services,
and the performance of any other obligations required to be performed by the
Prime Landlord under the Prime Lease, and with respect to any consent or
approval required to be obtained of the Prime Landlord under the Prime Lease,
and provided Tenant is not in default hereunder, Landlord's sole obligation with
respect thereto, upon being requested in writing by Tenant, shall be to assign
to Tenant such rights as Landlord may have, whether under the Prime Lease or
otherwise, to require compliance by the Prime Landlord with all of the
provisions of the Prime Lease insofar as they affect the Premises or any part
thereof or the use or occupancy thereof and to seek the approval or consent of
the Prime Landlord as well as such rights and remedies as Landlord may have as a
result of the Prime Landlord's failure or refusal to comply with such
provisions. Tenant acknowledges and agrees that Landlord shall not be liable to
Tenant with respect to any delay, default or failure of the Prime Landlord in
the performance by the latter of its obligations and covenants under the Prime
Lease unless such be due to acts or misconduct of Landlord and neither shall the
Rent, Additional Rent, and other charges hereunder xxxxx nor shall any of the
obligations of Tenant hereunder be affected by reason thereof and Tenant agrees
to look solely to the Prime Landlord for the performance of same.
6
7
13. CONSENT OF PRIME LANDLORD. This Sublease shall not be an
effective, binding and enforceable agreement as between the parties hereto until
Prime Landlord executes the consent form attached to this Sublease and made a
part hereof. Following Tenant's execution of this Sublease, Landlord shall
request the written consent by Prime Landlord to this Sublease. The signature of
the Prime Landlord on the consent form at the end of this document shall
constitute its consent to the terms of this Sublease. Landlord makes no
representation with respect to obtaining the required consents, and, in the
event that Prime Landlord notifies Landlord that it will not give such consent,
Landlord will notify Tenant and, upon receipt of such notification by Landlord
of the disapproval by Prime Landlord, this Sublease shall be deemed null and
void and without force or effect, and Landlord and Tenant shall have no further
obligations or liabilities to the other with respect to this Sublease. Whenever
in this Sublease Tenant is required to obtain Landlord's consent or approval,
Tenant understands that Landlord may be required to first obtain the consent or
approval of Prime Landlord. If Prime Landlord shall refuse such consent or
approval, Landlord shall be released of any obligation to grant its consent or
approval whether or not Prime Landlord's refusal, in Tenant's opinion, is
arbitrary or unreasonable.
14. USE. Tenant shall use the Premises solely for the uses
permitted by the Prime Lease, and for no other uses or purposes.
15. CONDITION OF PREMISES. Tenant, immediately prior to the
Commencement Date of this Sublease, has inspected and examined the Premises and
knows of the condition of the Premises. Tenant accepts the Premises in its "as
is" condition on the Commencement Date herein. All furniture and equipment
located in the Premises as of the Commencement Date (the "Existing Furniture")
shall be deemed to belong to Tenant, on an as-is basis, without any
representation or warranty whatsoever from Landlord. Tenant acknowledges that
Landlord has no obligation to incur any expense whatsoever in connection with
the preparation of the Premises for Tenant's occupancy thereof and that Landlord
has not made any representation or warranty as to the suitability of the
Premises for the conduct or proper zoning of Tenant's business, or otherwise.
16. END OF TERM; SURRENDER; HOLDOVER. (a) On the expiration or
termination of this Sublease, Tenant shall (1) surrender the Premises to
Landlord broom clean, in good order and condition, ordinary wear and tear
excepted, (2) remove all of its signs, all furniture (including the Existing
Furniture) and trade fixtures from the Premises, repair all damages caused
thereby and restore the Premises to the condition it was in prior to such
installation and (3) surrender all keys for the Premises. The provisions of this
Article shall survive the expiration or earlier termination of this Sublease.
(b) Tenant shall remove from the Premises on or prior to such
expiration or earlier termination such property situated thereon which is not
owned by Landlord or Prime Landlord, and, at its sole cost and expense, shall,
on or prior to such expiration or earlier termination, repair any damage caused
by such removal. Such property not so removed shall become the property of
Landlord, which may thereafter cause such property to be removed from the
Premises and disposed of, but the cost of any such removal and disposition as
well as the cost of repairing any damage caused by such removal shall be borne
by Tenant. Tenant's obligation to observe or perform the covenants of this
Section shall survive the expiration or early termination of this Sublease.
(c) Tenant acknowledges that possession of the Premises must be
surrendered to Landlord at the expiration or sooner termination of the term of
this Sublease. Tenant agrees it shall indemnify and save Landlord harmless
against all costs, claims, loss or liability resulting from delay by Tenant in
so surrendering the Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. The parties recognize and agree
that the damage to Landlord resulting from any failure by Tenant to surrender
possession of the Premises on a timely basis as aforesaid will be extremely
substantial, will exceed the amount of Rent theretofore payable hereunder and
will be impossible of accurate measurement. Tenant, therefore, agrees that if
possession of the Premises is not surrendered to Landlord on the date of
expiration or sooner termination of the Term of this Sublease, then Tenant
agrees to pay to Landlord as liquidated damages for each month and for each
portion of any month
7
8
during which Tenant holds over in the Premises after expiration or termination
of the Term of this Sublease, a sum equal to three (3) times the Rent which was
payable per month under this Sublease during the last month of the Term of this
Sublease. Nothing contained herein shall be deemed to authorize Tenant to remain
in occupancy of the Premises after the expiration or termination of the Term of
this Sublease. The indemnity contained in this subparagraph shall survive
expiration or termination of this Sublease.
17. SECURITY DEPOSIT. (a) Tenant shall post with Landlord prior to
the Commencement Date of this Sublease, and maintain throughout the term hereof,
a security deposit in the amount equal to Eighty-Two Thousand Two Hundred
Dollars ($82,200.00) (the "Security Deposit") to insure the full and faithful
performance by Tenant of all the terms, covenants and conditions of this
Sublease upon Tenant's part to be performed. No interest shall be paid on the
Security Deposit and Landlord may co-mingle the Security Deposit with other
security deposits held by Landlord. If, at any time during the term hereof, or
the term as it may be extended, Tenant shall fail to perform any of its
obligations under this Sublease, Landlord may use, apply or retain the whole or
any part of the Security Deposit for the payment of (i) any rent or other sums
of money which Tenant may not have paid when due, (ii) any sum expended by
Landlord on Tenant's behalf in accordance with the provisions of the Sublease,
and/or (iii) any sum which Landlord may expend or be required to expend by
reason of Tenant's default, including, without limitation, any damage or
deficiency in or from the reletting of the Premises. The use, application or
retention of the Security Deposit, or any portion thereof, by Landlord shall not
prevent Landlord from exercising any other right or remedy provided by this
Sublease or by law (it being intended that Landlord shall not first be required
to proceed against the Security Deposit) and shall not operate as either
liquidated damages or as a limitation on any recovery to which Landlord may
otherwise be entitled. If any portion of the Security Deposit is used, applied
or retained by Landlord for the purposes set forth above, Tenant agrees, upon
written demand therefor made by Landlord, to deposit cash with the Landlord in
an amount sufficient to restore the Security Deposit to its original amount. If
Tenant shall fully and faithfully comply with all of the provisions of this
Sublease, the Security Deposit or any balance thereof, shall be returned to
Tenant without interest after the expiration of the term or upon any later date
after which Tenant has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Security Deposit, Landlord shall return same to the original Tenant, regardless
of one or more assignments of Tenant's interest in this Sublease. Upon the
return of the Security Deposit, or the remaining balance thereof, to the
original Tenant or any successor to the original Tenant, Landlord shall be
completely relieved of liability with respect to the Security Deposit.
(b) In lieu of a cash security deposit, Tenant may deliver to
Landlord a clean, irrevocable, unconditional, transferable, evergreen Letter of
Credit issued by and drawn upon any commercial bank which is a member of the
Federal Reserve and the Federal Deposit Insurance Corporation acceptable to
Landlord (hereinafter referred to as the "Issuing Bank") with offices for
banking purposes in the City of New York and State of New Jersey, which Letter
of Credit shall have a term of not less than one year, be in form and content
satisfactory to Landlord, be for the account of Landlord and be in the amount of
$86,200.00. The Letter of Credit shall provide that:
(1) The Issuing Bank shall pay to Landlord or its duly
authorized representative an amount up to the face amount of the Letter of
Credit upon presentation of only the Letter of Credit and a sight draft in the
amount to be drawn;
(2) The Letter of Credit shall be deemed to be
automatically renewed, without amendment, for consecutive periods of one year
each during the Term of this Sublease, unless the Issuing Bank sends written
notice (hereinafter called the "Non-Renewal Notice") to Landlord by certified or
registered mail, return receipt requested, not less than sixty (60) days next
preceding the then expiration date of the Letter of Credit, that it elects not
to have such Letter of Credit renewed;
(3) Landlord, after receipt of the Non-Renewal Notice,
shall have the right, exercisable by a sight draft, only, to receive the moneys
represented by the Letter of Credit unless Tenant
8
9
delivers to Landlord a replacement Letter of Credit in the form and content set
forth above, prior to Landlord receiving said moneys (which moneys shall be held
by Landlord as a cash deposit pursuant to the terms of this Section 17 pending
the replacement of such Letter of Credit); and
(4) Upon an assignment of Landlord's leasehold interest,
the Letter of Credit shall be transferable by Landlord as provided below.
(c) In the event of an assignment of Landlord's leasehold
interest, Landlord shall have the right to transfer the cash security or Letter
of Credit, as the case may be, deposited hereunder to the vendee or lessee, and
Landlord shall thereupon be released by Tenant from all liability for the return
of such cash security or Letter of Credit. In such event, Tenant agrees to look
solely to the new Landlord for the return of said cash security or Letter of
Credit. It is agreed that the provisions hereof shall apply to every transfer or
assignment made of said cash security or Letter of Credit to a new Landlord.
Tenant shall execute such documents as may be necessary to accomplish such
transfer or assignment of the Letter of Credit.
(d) Tenant covenants that it will not assign or encumber, or
attempt to assign or encumber, the monies or Letter of Credit deposited
hereunder as security, and that neither Landlord not its successors or assigns
shall be bound by any such assignment, encumbrance, attempted assignment, or
attempted encumbrance.
18. COMPLIANCE WITH LAW. Tenant shall, at Tenant's sole cost and
expense, comply with all laws, ordinances, statutes, rules and regulations
affecting the Premises, including, without limitation, those referenced in
Article 19, below. Tenant shall, at Tenant's sole cost and expense, cure any
violations levied against the Premises by duly constituted public authorities
having jurisdiction thereof.
19. ENVIRONMENTAL. (a) Tenant acknowledges that Landlord has made
no representations or warranties as to the environmental conditions of the
Premises. Tenant shall be deemed to have accepted the Premises on an "as is"
basis.
(b) Tenant shall not commence operations at the Premises until
obtaining all required federal, state or municipal permits from governmental or
public authorities having jurisdiction over Tenant's operations at the Premises
and Tenant shall promptly furnish to the Landlord copies of notices, reports
correspondence, submissions, made by Tenant to federal, state or municipal
environmental or health authorities. Tenant covenants it will operate the
Premises in full compliance with Environmental Laws throughout the term of the
Sublease and shall not allow any Hazardous Materials to be used, stored,
generated or otherwise handled on the Premises without the prior written consent
of the Landlord.
(c) The Tenant further agrees to keep real or personal property
free and clear of any Environmental Liens.
(d) Tenant shall immediately orally notify Landlord and Prime
Landlord of any Release of Hazardous Materials and forward a written notice
within twenty-four (24) hours. Tenant shall also promptly provide Landlord with
written notice within ten (10) days of the receipt of any (i) notice of
violation of Environmental Laws; (ii) notice that an Environmental Lien has been
filed against the Premises; or (iii) commencement of an Environmental Action or
notice that an Environmental Action will be filed in connection with the
Premises.
(e) Tenant shall, at its own cost and expense, maintain the
Premises in good repair and shall have the responsibility for performing all
Remedial Actions which are necessary for addressing any Releases of Hazardous
Materials on the Premises occurring from and after the Commencement Date. All
Remedial Actions conducted by the Tenant shall be performed in accordance with
the requirements of applicable Environmental Laws.
9
10
(f) If Tenant fails to immediately undertake such Remedial Action,
Landlord shall have the right but not the obligation to enter onto the Premises
and to take such Remedial Action as it deems necessary to eliminate or minimize
said Release. All costs and expenses incurred by Landlord in the exercise of
such rights shall be deemed to be additional rent hereunder and shall be payable
by Tenant to Landlord upon demand.
(g) Tenant shall permit Landlord and Landlord's agents employees
and contractors, access to the Premises to conduct environmental testing and to
collect samplings from time-to-time during regular business hours, or during
other hours, if necessary, to xxxxx a Release. Landlord agrees to use its
reasonable efforts to avoid materially and unreasonably interfering with
Tenant's use of the Premises during the conduct of inspection and shall restore
the affected areas of the Premises to its approximate pre-inspection condition
upon completion of environmental investigation.
(h) Tenant hereby agrees to defend, indemnify, and hold harmless
the Landlord from and against any Environmental Liabilities arising out of any
of the following which occur from and after the Commencement Date: (i) any
Release or threatened Release of Hazardous Materials at or from the Premises
(ii) any violations of Environmental Laws; (iii) any Environmental Actions; (iv)
any personal injury (including wrongful death) or property damage (real or
personal) arising out of exposure to Hazardous Materials used, handled,
generated, transported or disposed at the Premises and (v) any breach of any
warranty or representation or covenant regarding environmental matters made by
the Tenant. This environmental indemnity shall survive the termination of the
Sublease.
(i) For the purposes of this section, the following definitions
will apply:
"ENVIRONMENTAL ACTIONS" refers to any complaint, summons,
citation, notice, directive order, claim, litigation, investigation, judicial or
administrative proceeding, judgment, letter or other communication from any
Governmental Authority or any third party involving violations of Environmental
Laws or Releases of Hazardous Materials from the Premises.
"ENVIRONMENTAL LAWS" includes the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601 et. seq., as
amended; the Resource Conservation and Recovery Act of ("RCRA"), 42 U.S.C. 6901
et. seq., as amended; the Clean Air Act ("CAA"), 42 U.S.C. 7401 et. seq., as
amended; the Clean Water Act ("CWA"), 33 U.S.C. 1251 et. seq., as amended; the
Occupational Safety and Health Act ("OSHA"), 29 U.S.C. 655 et. seq., and any
other federal, state, local or municipal laws, statutes, regulations, rules or
ordinances imposing liability or establishing standards of conduct for
protection of the environment.
"ENVIRONMENTAL LIEN" means any lien, security interest, charge
or other encumbrance for Environmental Liabilities and Costs incurred by a
Government Authority.
"ENVIRONMENTAL LIABILITIES" means any monetary obligations,
losses, liabilities (including strict liability), damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable out-of-pocket fees, disbursements and expenses of counsel,
out-of-pocket expert and consulting fees and out-of-pocket costs for
environmental site assessments, remedial investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any
Environmental Action filed by any governmental authority or any third party
which relate to any violations of Environmental Laws, Environmental Actions,
Remedial Actions, Releases or threatened Releases of Hazardous Materials from or
onto the Premises.
"HAZARDOUS MATERIALS" shall include any element, compound, or
chemical that is defined, listed or otherwise classified as a contaminant,
pollutant, toxic pollutant, toxic or hazardous substances, extremely hazardous
substance or chemical, hazardous waste, special waste, or solid waste under
Environmental Laws; petroleum and its refined products; polychlorinated
biphenyls; any substance
10
11
exhibiting a hazardous water characteristic, including but not limited to,
corrosivity, ignitability, toxicity or reactivity as well as any radioactive or
explosive materials; and any raw materials, building components, including but
not limited to, asbestos-containing materials and manufactured products
containing hazardous substances.
"RELEASE" means any spilling, leaking, pumping, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing
(including the abandonment or discarding of barrels, containers or other closed
receptacles containing Hazardous Materials) of Hazardous Materials into the
environment.
"REMEDIAL ACTION" means all actions taken to clean up, remove,
remediate, contain, treat, monitor, assess, evaluate or in any other way address
Hazardous Materials in the indoor or outdoor environment; prevent or minimize a
Release or threatened Release of Hazardous Materials so they do not migrate,
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment;
perform pre-remedial studies and investigations and post-remedial operation and
maintenance activities; or any other actions authorized by 42. U.S.C. 9601.
20. INDEMNIFICATION. Tenant shall protect, indemnify, defend (with
counsel acceptable to Landlord) and save harmless Landlord and Prime Landlord
and their respective officers, directors, employees, agents, licensees, invitees
and assigns (each an "Indemnified Party") from and against all liabilities,
obligations, losses, claims, damages, penalties, actions, suits, costs, charges,
subrogation and expenses (including, without limitation, fees and expenses of
legal counsel and expert witnesses and court costs) (collectively, "Damages")
imposed upon or incurred by or asserted against any Indemnified Party or against
the Premises arising out of, or in any manner connected with the actual or
alleged (a) use of the Premises by Tenant, its agents, employees, invitees,
licensees or contractors (collectively, Tenant's Agents"); (b) any failure on
the part of Tenant to perform or comply with any of the terms of this Sublease;
(c) performance of any labor or services or the furnishing of any materials or
other property in respect of the Premises or any part thereof; (d) any act or
failure to act on the part of Tenant or Tenant's Agents in or about the
Premises; and (e) the exercise by Tenant or any person claiming through or under
Tenant of any rights against Prime Landlord granted to Tenant under this
Sublease. In case any action, suit or proceeding is brought against any
Indemnified Party by reason of any occurrence referred to above, Tenant, upon
the request of such Indemnified Party, will at Tenant's expense, resist and
defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel designated by Tenant and acceptable to the Indemnified
Party. The foregoing agreement to indemnify and hold each Indemnified Party
harmless shall not be applicable to the extent that such Damages are caused by
the willful misconduct or sole negligence of an Indemnified Party. This
indemnity shall survive the expiration or earlier termination of this Sublease.
21. DEFAULT BY TENANT. Any of the following events shall be deemed
to be events of default under this Sublease:
(a) Failure of Tenant to pay any installment of the Base Rent,
Additional Rent or other sum payable to Landlord hereunder on the date that same
is due and the same continues for three (3) days after written notice from
Landlord thereof.
(b) Failure of Tenant to comply with any term, condition or
covenant of this Sublease or the Prime Lease, other than the payment of Base
Rent, Additional Rent or other sum of money and Tenant shall fail to remedy the
same within twenty (20) days after prior written notice to Tenant specifying
such failure, or if such failure is of such a nature that Tenant cannot
reasonably remedy the same within such twenty (20) day period, Tenant shall fail
to commence promptly to remedy the same and to prosecute such remedy to
completion with diligence and continuity, provided that such cure is effected
within forty-five (45) days after such prior written notice.
11
12
(c) The making by Tenant of an assignment for the benefit of
creditors, or its admitting in writing its inability to pay its debts as they
mature, or its adjudication as a bankrupt, or its filing of a petition in
voluntary bankruptcy of a petition or answer seeking reorganization or an
arrangement with creditors under the federal bankruptcy laws or any other
similar law or statute of the United States or any state, or its filing of a
petition to take advantage of any debtor's or insolvency act.
(d) Filing of a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof by Tenant or any guarantor of Tenant's
obligations or adjudication as a bankrupt or insolvent in proceedings filed
against Tenant or such guarantor.
(e) Appointment of a receiver or trustee for all or substantially
all of the assets of Tenant or any guarantor of Tenant's obligation hereunder.
22. REMEDIES OF LANDLORD. (a) Upon the occurrence of any of the
events of default listed in Article 21, Landlord shall have the option to pursue
any remedy available to Prime Landlord as landlord under the Prime Lease or any
one or more of the following remedies, without any notice or demand whatsoever:
(i) Terminate this Sublease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to so surrender
the Premises, Landlord may, without prejudice to any other remedy which it may
have for possession of the Premises or arrearages in rent, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying such Premises or any part thereof, by force if necessary,
without being liable for prosecution or any claim for damages therefor.
(ii) Enter upon and take possession of Premises, by force if
necessary, without terminating this Sublease and without being liable for
prosecution or for any claim for damages therefor, and expel or remove Tenant
and any other person who may be occupying such Premises or any part thereof.
Landlord may relet the Premises and receive the rent therefor. Tenant agrees to
pay to Landlord monthly or on demand from time to time any deficiency that may
arise by reason of any such reletting. In determining the amount of such
deficiency, the brokerage commission, attorneys' fees, remodeling expenses and
other costs incurred by Landlord in connection with such reletting shall be
subtracted from the amount of rent received under such reletting.
(iii) Enter upon the Premises, by force, if necessary, without
terminating this Sublease and without being liable for any prosecution or for
any claim for damages therefor, and do whatever Tenant is obligated to do under
the terms of this Sublease. Tenant agrees to pay Landlord on demand for
Landlord's Costs (defined in Article 23) in effecting compliance with Tenant's
obligations under this Sublease. Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by negligence of
Landlord or otherwise.
(b) If Landlord elects to terminate this Sublease by reason of an
event of default, Landlord may accelerate all Base Rent, Additional Rent and
other charges required to be paid by Tenant under this Sublease.
(c) In case of any event of default or breach by Tenant, or
threatened or anticipatory breach or default, Tenant shall also be liable for
and shall pay on demand to Landlord (in addition to any sum required to be paid
by Tenant under this Sublease): the amount of all loss and damage which Landlord
may suffer by reason of such default, breach or threatened default or breach;
brokers' fees incurred by Landlord in connection with reletting the whole or any
part of the Premises; the costs of removing and storing Tenant's or any other
occupant's property; the reasonable costs of repairing, altering, remodeling or
otherwise putting the Premises into condition reasonably acceptable to a new
tenant or tenants; any
12
13
rent concessions given to a new tenant; all expenses incurred by Landlord in
enforcing or defending Landlord's rights and/or remedies, including attorneys'
fees; and the amount of any rent concession, free rent or leasehold improvement
allowance given to Tenant in this Sublease and any brokerage fee or concession
paid by Landlord under this Sublease.
(d) All Base Rent and Additional Rent shall bear interest from the
date due until the date paid at the rate of fifteen (15%) percent per annum, not
to exceed the maximum rate allowable by law.
(e) All rights and remedies of Landlord herein enumerated shall be
cumulative and none shall exclude any other right or remedy allowed by law or
equity. For the purposes of any suit brought or based hereon, this Sublease
shall be construed to be a divisible contract, to the end that successive
actions may be maintained on this Sublease on successive periodic sums which
mature hereunder. Tenant shall pay, upon demand, all of Landlord's costs,
charges and expenses, including, without limitation, the fees of counsel, agents
and others retained by Landlord and incurred in enforcing Tenant's obligations
hereunder or under a hold over tenancy or incurred by Landlord in any
litigation, negotiations or transactions in which Tenant causes Landlord,
without Landlord's fault, to become involved or concerned.
23. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS; INSPECTIONS.
If Tenant shall fail to make any payment or perform any act required to be made
or performed by it hereunder, without being under any obligation to do so and
without thereby waiving such default, Landlord may at any time thereafter make
such payment or perform such act for the account and at the expense of Tenant,
and may enter upon the Premises or any part thereof for such purpose and take
all such action thereon as may be necessary or appropriate therefor. No such
entry shall constitute an eviction of Tenant. All payments so made by Landlord,
together with all other costs, expenses, legal fees and disbursements incurred
by Landlord in taking such remedial action (collectively, "Landlord's Costs"),
shall constitute additional rent due hereunder payable by Tenant upon demand.
The provisions of this Article 23 shall survive the termination or early
expiration of this Sublease.
24. LATE CHARGE. If Tenant fails to pay any Base Rent or
Additional Rent when due, to help defray the additional cost to Landlord for
processing such late payments, Tenant shall pay to Landlord on demand a late
charge equal to two (2%) percent of such installment. Such amount if not
received within five (5) days shall also bear interest as provided in Section
22(d). Tenant's failure to pay such amount shall be a material breach of this
Sublease. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder, at law or equity and shall not
be construed as liquidated damages.
At no time shall Tenant be obligated or required to make any interest
payment with respect to late fees or defaulted Rent payments at a rate which
could subject Landlord to either civil or criminal liability as a result of
being in excess of the maximum rate which Tenant is permitted by law to contract
or agree to pay. If by the terms of this Sublease, Tenant is at any time
required or obligated to pay interest arising out of late payment fees or
defaulted rent payments at a rate in excess of such maximum rate, the rate of
interest under this Sublease shall be deemed to be immediately reduced to such
maximum rate and interest payable hereunder shall be computed at such maximum
rate and the portion of all prior interest payments in excess of such maximum
rate shall be applied and shall be deemed to have been payments in reduction of
rent due hereunder.
25. COMPLIANCE WITH TERMS OF PRIME LEASE; INCORPORATION BY
REFERENCE. (a) The terms, conditions and respective obligations of Landlord and
Tenant to each other under this Sublease shall be the terms and conditions of
the Prime Lease, except for (i) those provisions of the Prime Lease which are
directly contradicted by this Sublease and (ii) the Excluded Provisions (defined
below), in which event, as between Landlord and Tenant only, the terms of this
Sublease shall control over the Prime Lease. Therefore, for the purposes of this
Sublease, wherever in the Prime Lease the word "Tenant" is used it
13
14
shall be deemed to mean the Tenant herein and wherever the word "Landlord" is
used it shall be deemed to mean the Landlord herein.
(b) The parties agree that for purposes of incorporating the terms
of the Prime Lease into this Sublease, the portions of the Prime Lease listed on
EXHIBIT B attached shall only apply to the landlord-tenant relationship between
Prime Landlord and Landlord and shall not apply to the landlord-tenant
relationship between Landlord and Tenant and shall not be part of this Sublease.
The foregoing shall not release or impair any obligation of Prime Landlord under
the Prime Lease. Landlord shall cooperate with Tenant and use commercially
reasonable efforts to cause Prime Landlord to perform its obligations under the
Prime Lease.
(c) During the term of this Sublease and for all periods
subsequent for obligations which have arisen prior to the termination of this
Sublease, Tenant does hereby expressly assume and agree to perform and comply
with, for the benefit of Landlord and Prime Landlord, each and every obligation
of Landlord under the Prime Lease, except for the obligation to pay rent to
Prime Landlord under the Prime Lease. Tenant shall not commit or suffer any act
or omission that will violate any of the provisions of the Prime Lease.
(d) Except as provided herein, in all provisions of the Prime
Lease requiring the approval or consent of Prime Landlord, Tenant shall be
required to obtain the approval or consent of both Prime Landlord and Landlord.
Wherever in this Sublease Landlord's consent or approval is required, if
Landlord shall delay or refuse such consent or approval, Tenant in no event
shall be entitled to make, nor shall Tenant make, any claim, and Tenant hereby
waives any claim for money damages (nor shall Tenant claim any money damages by
way of set-off, counterclaim or defense) based upon any claim or assertion by
Tenant that Landlord unreasonably withheld or unreasonably delayed its consent
or approval. Tenant's sole remedy shall be an action or proceeding to enforce
any such provision, for specific performance, injunction or declaratory
judgment.
(e) Wherever notices are required in the Prime Lease to be given
to Prime Landlord, Tenant shall be required to give notice to Landlord at least
an additional five (5) days in advance of the time required under the Prime
Lease. Whenever in the Prime Lease defaults by Tenant are required to be cured
or acted upon by Tenant within a specified period of time, Tenant shall perform
such act and cure such default at least five (5) days prior to the time required
for such performance or cure under the Prime Lease.
(f) Tenant shall give to Landlord a copy of all notices given to
Prime Landlord in the same manner and simultaneous with such notices given to
Prime Landlord. Tenant shall promptly give to Landlord a copy of all notices
received from Prime Landlord.
(g) Each of Landlord and Tenant agrees that it shall not cause any
default on the part of Landlord under the Prime Lease. Tenant does hereby
indemnify and agree to hold Landlord harmless from any claims, loss, damages, or
liability (including attorneys' fees) arising out of or in connection with the
failure of Tenant to perform any of the terms or provisions contained in the
Prime Lease which, by the terms of this Sublease, Tenant is obligated to
perform. Landlord hereby indemnifies and agrees to hold Tenant harmless for any
claims, loss, damages or liability including attorneys' fees arising out of or
in connection with the failure of Landlord to perform any of the terms or
provisions in the Prime Lease which (a) by the terms of this Sublease Tenant is
not obligated to perform or (b) Tenant has timely performed pursuant to this
Sublease. This Section shall survive termination or expiration of the term of
this Sublease.
26. NOTICES. Any notice, approval, consent or other communications
permitted or required under this Sublease shall be effective, if hand delivered,
upon receipt, and otherwise as provided for herein, only if in writing and given
by hand delivery or by mailing by certified or registered mail, postage prepaid,
return receipt requested, or by nationally recognized overnight air courier, to
the address of the
14
15
party set forth below or to such other addresses as the party to be notified may
from time to time designate by notice given in the manner provided in this
Article. Notices shall be deemed effective upon receipt, if hand delivered, or
upon deposit with nationally recognized overnight air courier, or deposit in the
United States mail. Notices from Landlord may be given by Landlord's attorney.
If to Landlord: CENDANT OPERATIONS, INC.
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Legal
If to Tenant: BIOPURE CORPORATION
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
If to Prime Landlord: 00 Xxxxxxx Xxxxxx Realty Trust
c/o The Cambridge Co.
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
27. SUCCESSORS AND ASSIGNS. The covenants, conditions and
agreements contained in this Sublease shall bind and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns, except as expressly hereinbefore
otherwise provided. If "Tenant" consists of more than one person or party, the
obligations and liabilities of each such person or party shall be joint and
several.
28. SIGNAGE. Tenant shall have no right to use, display or exhibit
any signage which has any "Cendant or NetMarket" insignia, logo, facsimile or
trademark thereon. Landlord shall have the right, either before or during the
term of this Sublease to enter upon the Premises and remove same.
29. INSPECTIONS. Landlord and its representatives may enter the
Premises or any part thereof upon advance notice, except in the event of an
emergency for which no advance notice is necessary, for the purpose of (i)
inspecting the same or for the purpose of doing any work Landlord shall be
required or permitted to do under this Sublease, and taking all such action
thereon as may be reasonably necessary or appropriate for any such purpose and
(ii) displaying thereon advertisements for sale or letting at any time after
Tenant shall have vacated or abandoned the Property. Landlord shall not have any
duty to make any such inspection and shall not incur any liability or obligation
for not making any such inspection. No such entry in accordance with the
foregoing shall constitute an eviction of Tenant. Landlord and its
representatives shall also have the right, during the last three (3) months of
the term, to enter the Premises to show same to other(s) and shall have the
right to erect a "For Rent" sign on the Property.
30. CAPTIONS. The captions inserted herein are inserted only as a
matter of convenience for reference and in no way define the scope of this
Sublease or the intent of any provision hereof.
31. NO OFFER. This Sublease shall not be deemed to be an offer and
shall in no event be binding upon Landlord until duly executed by an authorized
officer thereof and delivered to Tenant by an authorized representative of the
Landlord.
32. RENT TAX. Tenant shall pay any tax assessed by the State in
which the Premises are located that are applicable to rentals or charges
specified in this Sublease.
33. WAIVER BY LANDLORD. Provided that Tenant is not in default
under this Sublease and provided, further, that there has been no prior default
(whether cured or uncured), Landlord shall not exercise its rights to terminate
the Prime Lease pursuant to the Early Termination Option contained in
15
16
Sections 1.1 and 8.27 of the Prime Lease, but shall grant to Tenant the same
early termination right, subject to Tenant exercising its right by written
notice to Landlord at least sixty (60) days prior to the one (1) year notice
required of Landlord (as tenant in the Prime Lease), time being of the essence
with respect to the date by which Tenant must send its notice to Landlord under
this section..
34. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord hereby
represents and warrants that (a) the Prime Lease attached hereto as EXHIBIT A
has not been amended and is the entire agreement between Landlord and Prime
Landlord; (b) the Prime Lease documents are in full force and effect; (c) no
outstanding uncured notices of default or termination exist and no notices of
default have issued under the Prime Lease; (d) Landlord will not amend the Prime
Lease voluntarily if such amendment would adversely affect the Tenant's rights
under the Sublease, increase the Tenant's obligations under the Sublease,
decrease the size of the Premises, or shorten the term of the Sublease; and (e)
Landlord shall request a recognition agreement from the Prime Landlord stating
that if the Prime Lease terminates, the Prime Landlord will recognize Tenant as
a direct tenant.
35. ACCESS. Tenant shall have twenty-four (24) hour per day, seven
(7) day per week access to the Premises and parking.
36. SIGNAGE. Tenant shall have signage in the lobby of the
building.
IN WITNESS WHEREOF, the parties hereto have duly signed, sealed and
delivered this instrument, as of the day and year first above set forth.
LANDLORD:
--------
CENDANT OPERATIONS, INC.
By: /s/Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
TENANT:
------
BIOPURE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
16
17
EXHIBIT "A"
PRIME LEASE
17
18
EXHIBIT "B"
EXCLUDED PROVISIONS OF PRIME LEASE
- 1.1
- 3.1
- 3.2
- 3.3 (fourth sentence)
- 3.5
- All obligations of Landlord in Article 4 are obligations of Prime Landlord
only under Prime Lease)
- 5.6.1
- All restoration obligations of Landlord in Article 6 are obligations of
Prime Landlord only under Prime Lease. Landlord shall have no restoration
obligations)
- 7.2
- 8.8
- 8.12
- 8.20
- 8.21
18
19
PRIME LANDLORD'S CONSENT
Xxxxxx X. Xxxxx, Xx., as Trustee of the 00 Xxxxxxx Xxxxxx Realty Trust
hereby consents to the Sublease by Cendant Operations, Inc. to BIOPURE
Corporation of the Premises described in the foregoing Sublease dated
___________, 2001 and to the terms and conditions contained in such Sublease.
PRIME LANDLORD:
--------------
Xxxxxx X. Xxxxx, Xx., as Trustee of the
00 Xxxxxxx Xxxxxx Realty
By: _______________________________
Name: _______________________________
Title:_______________________________
Date:_______________________
19
