EXHIBIT 10.15
AMENDED AND RESTATED
S U B L E A S E
between
KALODOP PARK CORP.
As Sublandlord
and
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
As Subtenant
Dated: as of October 9, 1996
Demised Premises: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Amended and Restated Sublease
AMENDED AND RESTATED AGREEMENT OF SUBLEASE (the "Sublease"), dated as of
the 9th day of October, 1996, between KALODOP PARK CORP., a New York corporation
having an office at c/o ▇▇▇▇▇▇▇ Garage, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes called "Sublandlord"), and ▇▇▇▇▇▇▇▇▇▇
▇▇▇., a New York corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Subtenant").
W I T N E S S E T H :
WHEREAS, Sublandlord is the tenant under that certain lease dated as of
September 23, 1992 (the "Existing ▇▇▇▇▇▇▇▇▇") by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
as Executrix under the Will of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Noma ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (d/b/a ▇▇▇▇▇▇▇▇ Brothers; collectively "Existing
Overlandlord"), as landlord, and Sublandlord, as tenant;
WHEREAS, Sublandlord and Subtenant are parties to a certain sublease of
even date herewith (the "Existing Sublease"), pursuant to which Sublandlord has
subleased to Subtenant the premises covered by the Existing ▇▇▇▇▇▇▇▇▇;
WHEREAS, Sublandlord is the tenant under that certain Amended and Restated
Agreement of Lease dated as of October 9, 1996 (the "▇▇▇▇▇▇▇▇▇") by and between
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Noma ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively
"Overlandlord"), as landlord , and Sublandlord, as tenant;
WHEREAS, pursuant to the terms of that certain agreement dated as of April
11, 1996 (the "Agreement"), by and between Sublandlord and Subtenant,
Sublandlord and Subtenant agreed to enter into a sublease of the premises
covered by the ▇▇▇▇▇▇▇▇▇ upon satisfaction of certain conditions set forth in
the Agreement;
WHEREAS, all of such conditions have been satisfied and/or the same have
been waived;
WHEREAS, the parties hereto desire hereby to enter into an amended and
restated sublease of the premises covered by the ▇▇▇▇▇▇▇▇▇; and
WHEREAS, the terms of the ▇▇▇▇▇▇▇▇▇ and this Sublease shall not become
effective until the Vacate Date (as hereinafter defined).
ARTICLE 1
PREMISES--TERM OF SUBLEASE; CERTAIN DEFINITIONS
Section 1.01. Sublandlord hereby subleases to Subtenant, and Subtenant
hereby hires, the Premises, including the Land, as more particularly described
in Exhibit "A" annexed hereto and made a part hereof, and the Building (as
defined in the ▇▇▇▇▇▇▇▇▇).
SUBJECT, however, to the following (collectively, the "Permitted
Encumbrances"):
(a) The state of facts shown on a survey made by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ dated
September 27, 1954 and redated by visual examination made by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ on
September 24, 1992 and any other state of facts that an accurate survey of the
Premises may show;
(b) Real estate taxes affecting the Premises not yet due and payable or a
lien on the Premises;
(c) All utility company rights, easements and franchises to maintain and
operate lines, poles, wires, cables, pipes, distribution boxes and other
fixtures and facilities in, over, under and upon the Premises;
(d) Covenants, restrictions, easements, reservations and agreements of
record;
(e) Zoning ordinances and restrictions and amendments now or hereafter in
force or effect;
(f) The rights, if any, of any governmental authority having or asserting
jurisdiction thereof, with respect to any vaults under the sidewalks beyond the
building line and to consents by Sublandlord or any present or former owner of
the Premises for the erection of any structure or structures on, under or above
any streets or roads in front of or adjoining the Land;
(g) All notes or notices of any violation of law or municipal ordinances,
orders or requirements noted in or issued prior to the date hereof or hereafter
noted in or issued by the Department of Buildings, Fire, Labor, Health, Air
Resources or any other federal, state or municipal departments having or
asserting jurisdiction against the Premises;
(h) Any other matter or thing affecting the Premises which Subtenant
agrees to take subject to or waives pursuant to the terms of this Sublease; and
(i) All of the terms, covenants, conditions and
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limitations of the ▇▇▇▇▇▇▇▇▇.
Notwithstanding anything to the contrary contained herein, any right,
easement or franchise described in clause (c) above or any covenant,
restriction, easement, reservation or agreement of record described in clause
(d) above, in each case which have been created, consented to or incurred by
Sublandlord after the date of this Sublease shall not be deemed to be a
Permitted Encumbrance and the provisions of this Sublease shall control as to
the disposition thereof.
TO HAVE AND TO HOLD the Premises unto Subtenant, its successors and
assigns, for a term (the "Term") commencing on the Vacate Date, and expiring at
12:00 p.m. on March 31, 2013, (the "Expiration Date") unless this Sublease shall
sooner terminate as hereinafter provided. If the Vacate Date shall not have
occurred on or before the second (2nd) anniversary of the date hereof,
Overlandlord shall have the right to terminate the ▇▇▇▇▇▇▇▇▇ upon ten (10) days
prior notice to Sublandlord; provided, however, that if the Vacate Date shall
occur within such ten (10) days period, Overlandlord's termination notice to
Sublandlord shall be deemed to be withdrawn and the ▇▇▇▇▇▇▇▇▇ shall continue in
full force and effect. If the Vacate Date shall occur prior to the date that the
▇▇▇▇▇▇▇▇▇ shall be terminated, in such case, the terms of the Existing ▇▇▇▇▇▇▇▇▇
shall be superseded in their entirety and replaced by the ▇▇▇▇▇▇▇▇▇, which fully
restates and supersedes, as of the Vacate Date, all of the terms, covenants and
conditions of the Existing ▇▇▇▇▇▇▇▇▇. If the ▇▇▇▇▇▇▇▇▇ shall have been
terminated by Overlandlord because the Vacate Date shall not have occurred on or
before the second (2nd) anniversary of the date hereof, in such case, this
Sublease and the Existing Sublease shall be terminated as of the termination of
the ▇▇▇▇▇▇▇▇▇. In addition, if the Vacate Date shall not have occurred on or
before February 1, 1998, Subtenant shall have the right to terminate this
Sublease and the Existing Sublease upon ten (10) days prior notice to
Sublandlord; provided, however, that if the Vacate Date shall occur within such
ten (10) days period, Subtenant's termination notice to Sublandlord shall be
deemed to be withdrawn and this Sublease shall continue in full force and
effect. If the Vacate Date shall occur prior to the date that this Sublease
shall be terminated, in such case, the terms of the Existing Sublease shall be
superseded in their entirety and replaced by this Sublease, which fully restates
and supersedes, as of the Vacate Date, all of the terms, covenants and
conditions of the Existing Sublease.
Section 1.02. For purposes of this Sublease, the following capitalized
terms set forth below shall have the following meanings: (i) "Discount Rate"
shall mean the rate of seven and three-fourths (7.75%) percent per annum,
compounded monthly, (ii) "Effective Date" shall mean December 1, 1996, (iii)
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"Sublease Rent" shall mean the Basic Rent and Monthly Deferred Rent that shall
be payable hereunder, and (iv) "Vacate Date" shall mean the later of (1) the
Effective Date and (2) the date that Sublandlord shall tender delivery to
Subtenant of vacant possession of the Premises, free of all vehicles and all
other tenants or occupants.
ARTICLE 2
BASIC RENT
Section 2.01. (a) Subtenant shall pay to Sublandlord as basic rent (the
"Basic Rent"), a rental as follows:
(i) From and after the Vacate Date through and including the date
immediately preceding the first (1st) anniversary of the Vacate Date, the amount
of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) per annum,
payable in equal monthly installments of Twelve Thousand Five Hundred and 00/100
Dollars ($12,500.00); provided, that, in light of the fact that Subtenant
delivered to Sublandlord the First Additional New Lease Payment (as defined in
the Agreement) in the amount of Fifty Thousand and 00/100 Dollars ($50,000.00)
and the Second Additional New Lease Payment (as defined in the Agreement) in the
amount of Thirty-Five Thousand and 00/100 Dollars ($35,000.00) in accordance
with the terms of Subsection 13(a)(ii) of the Agreement, Subtenant shall be
entitled to a credit in the amount of Eighty-Five Thousand and 00/100 Dollars
($85,000.00) against the first installment(s) of Sublease Rent that shall be
payable by Subtenant to Sublandlord under this Subsection 2.01(a)(i);
(ii) From and after the first (1st) anniversary of the Vacate Date through
and including the date immediately preceding the third (3rd) anniversary of the
Vacate Date, the amount of Four Hundred Thousand and 00/100 Dollars
($400,000.00) per annum, payable in equal monthly installments of Thirty-Three
Thousand Three Hundred Thirty-Three and 33/100 Dollars ($33,333.33);
(iii) From and after the third (3rd) anniversary of the Vacate Date
through and including the date immediately preceding the sixth (6th) anniversary
of the Vacate Date, the amount of Four Hundred Thirty-Two Thousand and 00/100
Dollars ($432,000.00) per annum, payable in equal monthly installments of
Thirty-Six Thousand and 00/100 Dollars ($36,000.00);
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(iv) From and after the sixth (6th) anniversary of the Vacate Date through
and including the date immediately preceding the ninth (9th) anniversary of the
Vacate Date, the amount of Four Hundred Sixty-Six Thousand Five Hundred Sixty
and 00/100 Dollars ($466,560.00) per annum, payable in equal monthly
installments of Thirty-Eight Thousand Eight Hundred Eighty and 00/100 Dollars
($38,880.00);
(v) From and after the ninth (9th) anniversary of the Vacate Date through
and including the date immediately preceding the twelfth (12th) anniversary of
the Vacate Date, the amount of Five Hundred Three Thousand Eight Hundred
Eighty-Four and 80/100 Dollars ($503,884.80) per annum, payable in equal monthly
installments of Forty-One Thousand Nine Hundred Ninety and 40/100 Dollars
($41,990.40);
(vi) From and after the twelfth (12th) anniversary of the Vacate Date
through and including the earlier to occur of (1) the date immediately preceding
the fifteenth (15th) anniversary of the Vacate Date and (2) the Expiration Date,
the amount of Five Hundred Forty-Four Thousand One Hundred Ninety-Five and
58/100 Dollars ($544,195.58) per annum, payable in equal monthly installments of
Forty-Five Thousand Three Hundred Forty-Nine and 63/100 Dollars ($45,349.63);
and
(vii) If the Expiration Date of this Sublease shall occur after the
fifteenth (15th) anniversary of the Vacate Date, from and after the fifteenth
(15th) anniversary of the Vacate Date through and including the Expiration Date,
the amount of Five Hundred Eighty-Seven Thousand Seven Hundred Thirty-One and
23/100 Dollars ($587,731.23) per annum, payable in equal monthly installments of
Forty-Eight Thousand Nine Hundred Seventy-Seven and 60/100 Dollars ($48,977.60).
(b) Payments of the Basic Rent due under this Section 2.01 shall be made
at Sublandlord's address set forth in Article 12 hereof, or such other address
as Sublandlord may pursuant to Article 12 advise Subtenant, and such payments
shall be payable in advance commencing on the Vacate Date and on the first day
of each calendar month thereafter during the Term; provided, however, if
Subtenant's obligation to pay Basic Rent shall commence on a date which shall be
other than the first day of a calendar month, the same shall be appropriately
prorated at the rental rate applicable during the first year of the Term, if the
Expiration Date shall be other than the last day of a calendar month, the Basic
Rent for such last calendar month shall be appropriately prorated at the rental
rate applicable during the last year of the Term, if any payment hereunder
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shall be payable on a date that shall not be a business day, such payment shall
be payable on the next succeeding business day and with respect to any month in
which the Basic Rent that is payable hereunder shall increase, the Basic Rent
payable on first (1st) day of such calendar month shall be appropriately
calculated to reflect the portion of the calendar month occurring prior to the
increase in the Basic Rent and the portion of the calendar month occurring from
and after the increase in the Basic Rent.
Section 2.02. (a) Notwithstanding the fact that the Term of this Sublease
is less than twenty (20) years, it is the intention of Sublandlord and Subtenant
that Sublandlord shall receive the same economic benefit during the Term of this
Sublease as Sublandlord would otherwise have received if the Term of this
Sublease were for twenty (20) years commencing on the Effective Date.
Accordingly, at such time that the Vacate Date shall be determined, Sublandlord
and Subtenant shall determine the net present value (calculated as of the Vacate
Date) of the amount of Basic Rent that Sublandlord would have received under
this Sublease after the Expiration Date (i) if the Expiration Date of this
Sublease were instead the date immediately preceding the twentieth (20th)
anniversary of the Effective Date and (ii) assuming that the Basic Rent that
would otherwise be payable following the Expiration Date was an amount set forth
in Schedule 1 attached hereto. In calculating the net present value of the
additional Basic Rent payments, such payments shall be discounted at the
Discount Rate. For purposes of this Sublease, the net present value of such
additional Basic Rent payments shall be referred to as the "Deferred Rent."
Schedule 2 attached hereto sets forth an example of the calculation of the
Deferred Rent. After the amount of the Deferred Rent shall be calculated,
Sublandlord and Subtenant shall determine the amount of the fixed monthly
payment that shall be required to be paid by Subtenant from and after the Vacate
Date such that the net present value (calculated as of the Vacate Date) of such
additional rent payments over the balance of the Term (calculated at the
Discount Rate) shall be equal to the amount of the Deferred Rent. For purposes
of this Sublease, the monthly payment of additional rent required under this
Subsection 2.02(a) shall be referred to as the "Monthly Deferred Rent." Schedule
3 attached hereto sets forth an example of the calculation of the Monthly
Deferred Rent. Subtenant shall pay to Sublandlord the Monthly Deferred Rent as
and when the monthly installments of Basic Rent shall be payable commencing on
the first day of the month next succeeding the date that the amount of the
Monthly Deferred Rent is determined. On such date, Subtenant shall also pay to
Sublandlord an amount equal to the amount of all installments of Monthly
Deferred Rent that shall have accrued since the Vacate Date.
(b) Payments of the Monthly Deferred Rent due under this Section
2.02 shall be made at Sublandlord's address set forth in Article 12 hereof, or
such other address as Sublandlord may pursuant to Article 12 advise Subtenant,
and such payments shall be payable in advance commencing on the Vacate Date and
on
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the first day of each calendar month thereafter during the Term; provided,
however, if Subtenant's obligation to pay the Monthly Deferred Rent shall
commence on a date which shall be other than the first day of a calendar month,
the same shall be appropriately prorated and if any payment hereunder shall be
payable on a date that shall not be a business day, such payment shall be
payable on the next succeeding business day.
Section 2.03. In addition to the Basic Rent that shall be payable to
Sublandlord pursuant to Section 2.01 hereof, from and after the Vacate Date,
Subtenant shall pay to Sublandlord each installment of Net Annual Rent (as
defined in Section 3.01 of the ▇▇▇▇▇▇▇▇▇) that Sublandlord shall be required to
pay to Overlandlord from and after the Vacate Date under the ▇▇▇▇▇▇▇▇▇. Payments
of Net Annual Rent shall be payable by Subtenant to Sublandlord on the fifth
(5th) day prior to the first day of each calendar month that shall occur from
and after the Vacate Date; provided, however, the first such payment of the Net
Annual Rent shall occur on the Vacate Date if the Vacate Date shall occur after
the fifth (5th) day prior to the first day of the next succeeding calendar
month. Provided that Subtenant shall have paid the monthly installment of Net
Annual Rent that shall be required to be paid hereunder, Sublandlord shall
deliver to Subtenant written evidence that Sublandlord shall have made the
corresponding payment of the Net Annual Rent to Overlandlord within five (5)
days after the date that such payment shall be required to be paid to
Overlandlord, which evidence shall include a copy of the check delivered to
Overlandlord and Sublandlord's transmittal letter to Overlandlord (if any). If
Sublandlord shall fail to deliver such evidence to Subtenant prior to the date
that the next installment of Net Annual Rent shall be payable by Subtenant to
Sublandlord hereunder, in such case, Subtenant shall thereafter be deemed to be
authorized and directed by Sublandlord to make such payments of Net Annual Rent
directly to Overlandlord as and when required pursuant to the terms of the
▇▇▇▇▇▇▇▇▇ and Subtenant shall be entitled to a credit against the installment(s)
of Basic Rent and Monthly Deferred Rent next becoming due hereunder in an
aggregate amount equal to the amount of the monthly installment of Net Annual
Rent for which Sublandlord shall have failed to deliver to Subtenant evidence
that such payment shall have been made to Overlandlord.
Section 2.04. This Sublease shall be deemed and construed to be a "net
lease" and Subtenant shall pay to Sublandlord the Basic Rent, the Monthly
Deferred Rent, the Net Annual Rent, additional rent and other payments hereunder
free of any charges, assessments, impositions or deductions of any kind and
without abatement, deduction or set-off, except as otherwise expressly provided
herein and in the License Agreement (as defined in the Agreement), and under no
circumstances or conditions shall Sublandlord be expected or required to make
any
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payment of any kind or be under any other obligation or liability hereunder
except as otherwise expressly provided herein.
ARTICLE 3
USE OF THE PREMISES
Section 3.01. Subtenant may use and occupy the Premises for any and all of
the purposes set forth in the ▇▇▇▇▇▇▇▇▇, and for no other purpose, and further
covenants not to do any act which will result in a violation of the ▇▇▇▇▇▇▇▇▇.
ARTICLE 4
INCORPORATION OF THE ▇▇▇▇▇▇▇▇▇ TERMS
Section 4.01. (a) All capitalized and other terms not otherwise defined
herein shall have the meanings ascribed to them in the ▇▇▇▇▇▇▇▇▇, unless the
context clearly requires otherwise.
(b) Except as herein otherwise expressly provided, all of the terms,
provisions, covenants and conditions contained in the ▇▇▇▇▇▇▇▇▇, are hereby made
a part hereof. The rights and obligations contained in the ▇▇▇▇▇▇▇▇▇, are,
during the Term, hereby imposed upon the respective parties hereto,
"Sublandlord" being substituted for "Landlord," "Subtenant" being substituted
for "Tenant", "Sublease" being inserted for "lease" or "Lease", "sub-subtenant"
being inserted for "Subtenant", "Subtenant" being inserted for "Scholastic",
"Basic Rent" being inserted for "Net Annual Rent" and "Vacate Date" being
inserted for "Effective Date"; provided, however, that Sublandlord shall not be
liable to Subtenant for any failure in performance resulting from the failure in
performance by the Overlandlord under the ▇▇▇▇▇▇▇▇▇, of the corresponding
covenant of the ▇▇▇▇▇▇▇▇▇, and Sublandlord's obligations hereunder are
accordingly conditional where such obligations require such parallel performance
by Overlandlord. It is expressly agreed that Sublandlord shall not be obligated
to perform any obligation which is the obligation of Overlandlord under the
▇▇▇▇▇▇▇▇▇. In the event of a conflict between the performance required by
Subtenant or Sublandlord under this Sublease or the performance required by
Subtenant or Sublandlord under the ▇▇▇▇▇▇▇▇▇, the provisions of this Sublease
shall control. Sublandlord agrees that Subtenant shall be permitted to deal
directly with Overlandlord in connection with obtaining any consent or approval
that shall be required to be obtained from Overlandlord pursuant to the terms of
the ▇▇▇▇▇▇▇▇▇ and, in connection therewith, Sublandlord shall
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cooperate with Subtenant in connection with Subtenant obtaining any such consent
or approval and Sublandlord shall not take any action which will interfere with
Subtenant obtaining any such consent or approval from Overlandlord. Subtenant
shall deliver to Sublandlord a copy of each consent or approval in connection
with the ▇▇▇▇▇▇▇▇▇ that Overlandlord shall deliver to Subtenant, such delivery
to be made within five (5) business days of posting or receipt, as the case may
be. If Overlandlord shall grant any consent or approval that shall be required
to be obtained from Overlandlord under the terms of the ▇▇▇▇▇▇▇▇▇, in such case,
Sublandlord shall be deemed to have consented to such action by Subtenant;
provided, however, if any such consent or approval shall constitute an amendment
to the ▇▇▇▇▇▇▇▇▇, such consent or approval shall only be binding upon
Sublandlord if the amendment to the ▇▇▇▇▇▇▇▇▇ that shall result from such
consent or approval would be permitted pursuant to Subsection 5.01(c) hereof. To
the extent that Sublandlord shall have any right pursuant to the terms of the
▇▇▇▇▇▇▇▇▇, or otherwise, to consent or approve any action which Overlandlord
shall propose to take, Sublandlord agrees that Subtenant shall have the full
right and authority on behalf of Sublandlord to approve or consent to any such
proposed action of Overlandlord. In addition, in the event that Overlandlord
shall fail to perform any of its obligations under the ▇▇▇▇▇▇▇▇▇, Subtenant on
behalf of Sublandlord shall have the right to require that Overlandlord perform
its obligations under the ▇▇▇▇▇▇▇▇▇ and in the event that Overlandlord shall
fail to perform its obligations, Subtenant shall be permitted to institute an
action or proceeding against Overlandlord, at Subtenant's sole cost and expense,
in the name of Sublandlord to enforce Sublandlord's rights under the ▇▇▇▇▇▇▇▇▇
which are applicable to Subtenant. Subtenant shall deliver to Sublandlord a copy
of any litigation documents in connection with any such action or proceeding
against Overlandlord. Subtenant shall also deliver to Sublandlord a copy of each
letter or other correspondence in connection with this Sublease that Subtenant
shall deliver to Overlandlord or that Overlandlord shall deliver to Subtenant,
such delivery to be made within five (5) business days of posting or receipt, as
the case may be.
(c) Sublandlord and Subtenant agree that the ▇▇▇▇▇▇▇▇▇ annexed hereto as
Exhibit "B" and made a part hereof is a true and complete copy of the ▇▇▇▇▇▇▇▇▇.
(d) Subtenant agrees to indemnify, protect, defend and save harmless
Sublandlord from and against any and all liability (statutory or otherwise),
claims, suits, demands, damages, judgments, costs, fines, penalties, interest
and expenses (including, without limitation, reasonable counsel and other
professional fees and disbursements incurred in connection therewith, but
excluding consequential damages) to which Sublandlord may be subject or suffer
arising from, or in
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connection with, any default by Subtenant in the performance of any provisions
of the ▇▇▇▇▇▇▇▇▇ (except as specifically provided to the contrary in this
Sublease) that accrue from and after the Vacate Date, except if the same shall
have been caused by any act, omission, negligence or willful misconduct of
Sublandlord. Subtenant agrees that the provisions of Section 5.03 of the
▇▇▇▇▇▇▇▇▇ are incorporated herein and that Sublandlord is an intended
beneficiary of such provision. Sublandlord agrees to indemnify, protect, defend
and save harmless Subtenant from and against any and all liability (statutory or
otherwise), claims, suits, demands, damages, judgments, costs, fines, penalties,
interest and expenses (including, without limitation, reasonable counsel and
other professional fees and disbursements incurred in connection therewith, but
excluding consequential damages) to which Subtenant may be subject or suffer
arising from, or in connection with, any default by Sublandlord in the
performance of any provisions of the ▇▇▇▇▇▇▇▇▇ that accrue prior to the
occurrence of the Vacate Date, except if the same shall have been caused by any
act, omission, negligence or willful misconduct of Subtenant.
Section 4.02. Notwithstanding anything in this Sublease to the contrary,
Subtenant shall be able to deal directly with Overlandlord in connection with
any and all matters arising under the terms of the ▇▇▇▇▇▇▇▇▇ and in connection
therewith Subtenant shall have the sole right to negotiate with and settle or
compromise any claims against Overlandlord; provided, however, if any such
settlement or compromise shall constitute an amendment to the ▇▇▇▇▇▇▇▇▇, such
settlement or compromise shall only be binding upon Sublandlord if the amendment
to the ▇▇▇▇▇▇▇▇▇ that shall result from such settlement or compromise would be
permitted pursuant to Subsection 5.01(c) hereof. In addition, as to any matter
which is to be determined by arbitration pursuant to Article 28 of the
▇▇▇▇▇▇▇▇▇, Subtenant shall have the sole right, on behalf of Sublandlord, to
participate in such arbitration. Subtenant shall deliver to Sublandlord a copy
of any documents in connection with any such settlement or compromise of any
claims against Overlandlord or any such arbitration, which documents Sublandlord
agrees shall be binding upon Sublandlord.
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ARTICLE 5
SUBLEASE SUBJECT TO ▇▇▇▇▇▇▇▇▇
Section 5.01. (a) This Sublease is expressly made subject and subordinate
to all of the terms and conditions of the ▇▇▇▇▇▇▇▇▇ and to all matters which the
foregoing is subject, except as specifically provided to the contrary in this
Sublease. Subtenant hereby assumes and covenants that Subtenant shall observe
and perform all of the provisions of the ▇▇▇▇▇▇▇▇▇ (except as specifically
provided to the contrary in this Sublease) that shall accrue during the portion
of the Term accruing from and after the Vacate Date which are to be observed and
performed by Sublandlord thereunder. Subtenant covenants that Subtenant shall
not do any act, matter or thing which will be, result in, or constitute a
default under the ▇▇▇▇▇▇▇▇▇; it being expressly agreed to by Subtenant that any
such violation, breach or default shall constitute a breach by Subtenant of a
substantial obligation under this Sublease. Sublandlord covenants that
Sublandlord shall not do any act, matter or thing which will be, result in, or
constitute a default under the ▇▇▇▇▇▇▇▇▇; it being expressly agreed to by
Sublandlord that any such default shall constitute a default by Sublandlord of a
substantial obligation under this Sublease. Notwithstanding the immediate prior
sentence, after the Sublandlord has tendered delivery of vacant possession of
the Premises to Subtenant, then any default of the Sublandlord in performance of
the ▇▇▇▇▇▇▇▇▇ shall not affect the payments of Basic Rent and Monthly Deferred
Rent to be paid hereunder. Subtenant's sole remedy for any such default shall be
to offset the costs and expenses of curing said defaults against the first
installments of the Sublease Rent. Notwithstanding anything in this Sublease to
the contrary, in any case where the consent or approval of Overlandlord shall be
required pursuant to the ▇▇▇▇▇▇▇▇▇, Sublandlord's consent shall not be required
hereunder if the Overlandlord shall have granted its consent or approval.
(b) Subtenant covenants and agrees that if, by reason of a default on the
part of Sublandlord, as the tenant under the ▇▇▇▇▇▇▇▇▇, in the performance of
any of the terms or provisions of the ▇▇▇▇▇▇▇▇▇, or for any other reason of any
nature whatsoever, such lease or the leasehold estate of the tenant thereunder
is terminated by summary dispossess proceeding or otherwise, then Subtenant will
attorn to Overlandlord and will recognize Overlandlord as Subtenant's landlord
under this Sublease. Subtenant covenants and agrees to execute and deliver, at
any time and from time to time, within five (5) business days following a
request therefor by Sublandlord or Overlandlord, any instrument which may be
reasonably necessary or appropriate to evidence such attornment. Subtenant
further covenants and agrees that the obligation of Subtenant to pay the
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Sublease Rent that shall be payable to Sublandlord by Subtenant under this
Sublease shall survive the expiration or sooner termination of the ▇▇▇▇▇▇▇▇▇ or
this Sublease (including without limitation, a termination of the ▇▇▇▇▇▇▇▇▇ by
reason of a casualty occurring under the provisions of Section 6.02 of the
▇▇▇▇▇▇▇▇▇). The obligation of the Subtenant to make payment of the Sublease Rent
to Sublandlord shall be considered an independent covenant of Subtenant to
Sublandlord without any conditions or privity of estate between Subtenant and
Sublandlord and shall survive the termination of the ▇▇▇▇▇▇▇▇▇ or this Sublease
and shall continue as a direct obligation of Subtenant to Sublandlord. The sole
right of the Subtenant in the event of such termination that does not result in
the loss of possession of the Premises by Subtenant or of the ▇▇▇▇▇▇▇▇▇
resulting from a default of Sublandlord (which is not assumed to be performed by
Subtenant under the terms hereof) shall be to offset the costs and reasonable
expenses that Subtenant shall incur in obtaining the attornment or a direct
lease with Overlandlord or any other arrangement to maintain occupancy of the
Premises (but excluding any rentals to be paid to Overlandlord which are not the
obligation of the Sublandlord or the purchase price of the Premises.)
(c) Sublandlord agrees not to amend or modify the ▇▇▇▇▇▇▇▇▇ in any way,
except as provided below, without Subtenant's prior written approval, which
approval may be granted or withheld for any or no reason, and any such amendment
or modification that shall be made without Subtenant's prior written approval
shall not be binding upon Subtenant. Upon request of Subtenant, Sublandlord
shall promptly execute and deliver (i) any amendments or modifications to the
▇▇▇▇▇▇▇▇▇, provided that such amendments or modifications to the ▇▇▇▇▇▇▇▇▇ shall
not change the provisions of Section 27.01 of the ▇▇▇▇▇▇▇▇▇, and (ii) any
amendments or modifications of this Sublease required in order to conform this
Sublease with the terms and conditions of the ▇▇▇▇▇▇▇▇▇, as so amended or
modified, provided that such amendments or modifications (1) shall not change
the rental terms as set forth in Article 2 of this Sublease prior to such
amendments or modifications, (2) shall not materially increase Sublandlord's
obligations or materially reduce Sublandlord's rights from those set forth in
this Sublease prior to such amendments or modifications, and (3) shall, by their
terms, become effective on the date that the amendments or modifications to the
▇▇▇▇▇▇▇▇▇ shall become effective. If Sublandlord shall not execute and deliver
any such amendment or modification of the ▇▇▇▇▇▇▇▇▇ or this Sublease within ten
(10) days after request of Subtenant, then Sublandlord shall be deemed to
constitute and appoint Subtenant as Sublandlord's attorney-in-fact, coupled with
an interest, to execute and deliver such amendment or modification for and on
behalf of Sublandlord. Any amendment or modification of the ▇▇▇▇▇▇▇▇▇ of this
Sublease in accordance with the provisions of
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this Subsection 5.01(c) shall be binding upon the holder of any mortgage
encumbering Sublandlord's interest in the ▇▇▇▇▇▇▇▇▇ and this Sublease, and no
such amendment or modification shall require the prior approval of the holder of
any such mortgage.
(d) Sublandlord covenants and agrees with Subtenant that upon Subtenant
paying the Sublease Rent and the Net Annual Rent reserved in this Sublease and
observing and performing all of the terms, covenants and conditions of this
Sublease on Subtenant's part to be observed and performed, Subtenant may
peaceably and quietly enjoy the Premises during the Term, subject, however, to
the terms, covenants and conditions of this Sublease.
ARTICLE 6
OCCUPANCY TAX
Section 6.01. If any commercial rent or occupancy tax shall be levied with
regard to the Premises, Subtenant shall pay the same to the taxing authority,
when due.
ARTICLE 7
NON-APPLICABILITY OF CERTAIN PROVISIONS OF THE ▇▇▇▇▇▇▇▇▇
Section 7.01. (a) All of the terms, provisions, covenants and conditions
contained in the ▇▇▇▇▇▇▇▇▇ are hereby incorporated by reference and made a part
hereof and Subtenant hereby assumes and covenants that Subtenant shall observe
and perform all of the provisions of the ▇▇▇▇▇▇▇▇▇ that shall accrue during the
portion of the Term accruing from and after the Vacate Date which are to be
observed and performed by Sublandlord thereunder with the following exceptions
and those contained herein, which shall not be incorporated by reference in this
Sublease: Section 2.01, Section 3.01, Section 3.02, Section 3.05, Section 3.06,
Section 3.08, Section 8.02, clauses (i) and (iv) of Section 13.01, Section
13.02, Section 14.02, Section 16.01(a) shall be amended by deleting the phrase
"Tenant shall fail to pay the Net Annual Rent due for the first Lease Year in
accordance with Subsection 3.02(a) hereof as and when required by Subsection
3.02(a); or", Subsection 16.01(c), Article 17 and Section 18.05. In addition,
any reference in the ▇▇▇▇▇▇▇▇▇ to "Designated Person" shall be deemed deleted.
(b) Notwithstanding the incorporation by reference of the ▇▇▇▇▇▇▇▇▇,
Sublandlord shall not have the right to enforce such provisions unless
Overlandlord shall be enforcing the same provisions under the ▇▇▇▇▇▇▇▇▇ against
the Sublandlord and in such case Subtenant may deliver directly to Overlandlord
any
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money or security that Subtenant shall be required to provide pursuant to any
such provisions.
(c) Notwithstanding the incorporation by reference of the ▇▇▇▇▇▇▇▇▇,
Sublandlord shall not have any right under Section 6.02, Section 16.02 and
Section 20.01 of the ▇▇▇▇▇▇▇▇▇ to require Subtenant to demolish the Building, it
being agreed that any election of Overlandlord under such provisions of the
▇▇▇▇▇▇▇▇▇ shall be binding upon Sublandlord and Subtenant, with the obligation
of performance on Subtenant.
(d) If Subtenant pursuant to Section 6.02 of the ▇▇▇▇▇▇▇▇▇ shall elect to
terminate this Sublease, in such case, Subtenant shall have the right to deliver
a Termination Notice to Overlandlord, in which case the term of the ▇▇▇▇▇▇▇▇▇
shall be terminated as well. Notwithstanding anything to the contrary set forth
in this Sublease, the obligation of Subtenant to make payment of the Sublease
Rent to Sublandlord shall survive the termination of this Sublease and the
▇▇▇▇▇▇▇▇▇ by reason of a casualty occurring under the provisions of Section 6.02
of the ▇▇▇▇▇▇▇▇▇, and shall continue as a direct obligation of Subtenant to
Sublandlord as if the balance of the term of this Sublease had continued.
ARTICLE 8
INSURANCE
Section 8.01. (a) From and after the Vacate Date, Subtenant shall maintain
during the remainder of the Term all insurance that Sublandlord shall be
required to maintain pursuant to Section 5.01 of the ▇▇▇▇▇▇▇▇▇ and in connection
therewith Subtenant shall cause Sublandlord and Overlandlord to be named as
additional insureds in accordance with the requirements of the ▇▇▇▇▇▇▇▇▇ and
this Sublease.
(b) Notwithstanding anything in Section 5.02 of the ▇▇▇▇▇▇▇▇▇ to the
contrary, Sublandlord shall have no right to request that Subtenant increase the
limits of insurance required by Subsections 5.01(d) and/or (e) of the ▇▇▇▇▇▇▇▇▇,
it being agreed that such rights shall be reserved expressly to the
Overlandlord.
(c) Notwithstanding the provisions of Article 5 of the ▇▇▇▇▇▇▇▇▇,
certificates of, copies or the original insurance policies procured by
Subtenant, at Subtenant's option, shall be delivered to Overlandlord.
(d) Any insurance that Subtenant shall deliver to Overlandlord which shall
satisfy Overlandlord's requirements under the ▇▇▇▇▇▇▇▇▇, shall be deemed to
satisfy Sublandlord's
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requirements under this Sublease.
Section 8.02. Notwithstanding anything in the ▇▇▇▇▇▇▇▇▇ to the contrary,
Sublandlord shall not be entitled to receive any portion of the casualty or
condemnation proceeds that shall be payable in connection with any such casualty
or condemnation.
ARTICLE 9
REAL ESTATE TAXES
Section 9.01. Supplementing the provisions of Article 4 of the ▇▇▇▇▇▇▇▇▇,
Subtenant shall have the right to contest the amount or validity, in whole or in
part, of any imposition by appropriate proceedings, and, notwithstanding Section
4.01 of the ▇▇▇▇▇▇▇▇▇, Subtenant may defer payment of such imposition in
accordance with Section 4.02 of the ▇▇▇▇▇▇▇▇▇. Upon the termination of such
proceedings, Subtenant shall pay the amount of such imposition or part thereof
as finally determined in such proceedings, the payment of which may have been
deferred during the prosecution of such proceedings, together with any costs,
fees, interest, penalties or other liabilities in connection therewith.
Sublandlord shall not unreasonably withhold its consent to joining in any such
proceedings or permitting the same to be brought in its name if required by law.
Sublandlord shall not be subjected to any liability for the payment of any costs
or expenses in connection with any such proceedings unless Sublandlord
intervenes and takes an affirmative part therein and Subtenant shall indemnify
and save harmless Sublandlord from any such costs or expenses, except in the
case of such intervention. Subtenant shall be entitled to receive any refund of
any such imposition and penalties or interest thereon which have been paid by
Subtenant, or which have been paid by Overlandlord or Sublandlord and for which
Sublandlord or Overlandlord has been fully reimbursed.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
Section 10.01. Subtenant shall have the right to assign its interest in
this Sublease or sublet all or any portion of the Premises without obtaining
Sublandlord's prior consent thereto; provided, however, Subtenant shall be
required to obtain the consent of Overlandlord if such consent shall be required
pursuant to the terms of the ▇▇▇▇▇▇▇▇▇. Upon any assignment, or subletting,
Subtenant shall continue to remain liable for its obligations under this
Sublease. Simultaneously with the execution of any sublease or assignment a
fully executed copy (with all business and other confidential terms redacted) of
such sublease or assignment shall be delivered to
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Sublandlord. In the event of any such assignment or subletting, Subtenant shall
notify Sublandlord, in writing, of the name of the assignee or subtenant, as the
case may be, and the business address of such subtenant or assignee for purposes
of service of notice of process. In addition, Sublandlord agrees to provide to
the subtenant, and, if applicable, to obtain from the holder of any mortgage
encumbering Sublandlord's interest in this Sublease for the benefit of such
subtenant, a non-disturbance and attornment agreement, which shall provide in
substance that, so long as such subtenant is not in default with respect to any
of its obligations under its sublease after notice and the expiration of any
applicable cure period, the subtenant shall not be joined as a party defendant
(unless required by applicable law) (i) in any action or proceeding which may be
instituted or taken by Sublandlord or the holder of any mortgage encumbering
Sublandlord's interest in this Sublease for the purposes of terminating this
Sublease by reason of any default thereunder beyond the expiration of an
applicable notice and cure period, or (ii) in any foreclosure action or
proceeding which may be instituted by any such mortgage holder. Any
non-disturbance agreement shall also provide that the subtenant shall, at the
option of Sublandlord or the holder of any mortgage encumbering Sublandlord's
interest in this Sublease, either (x) attorn to Sublandlord or the holder of
such mortgage and perform for the benefit of Sublandlord or the holder of such
mortgage all of the terms, covenants and conditions to be performed by such
subtenant under its sublease, or (y) enter into a new sublease with Sublandlord
or the holder of such mortgage or their respective successors or assigns for the
balance of the term of its sublease on the same terms and conditions as are
contained in its sublease. In the event that this Sublease shall be terminated
and Sublandlord shall collect from the subtenant any rent under its sublease,
then any rent so collected shall be credited against the first installment(s) of
the Sublease Rent that shall be payable by Subtenant to Sublandlord under this
Sublease.
ARTICLE 11
DEFAULT PROVISIONS
Section 11.01. (a) The provisions of Article 16 of the ▇▇▇▇▇▇▇▇▇ are an
integral part of this Sublease for the purposes of providing a default provision
for the benefit of Sublandlord in the event of a default in the performance by
Subtenant of its obligations under this Sublease. For the purposes of enforcing
any default by Subtenant hereunder, the rights and obligations contained in
Article 16 of the ▇▇▇▇▇▇▇▇▇ (other than the provisions of Subsection 16.01(c) of
the ▇▇▇▇▇▇▇▇▇), are, during the Term, hereby imposed upon the respective parties
hereto, "Sublandlord" being substituted for "Landlord" and
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"Subtenant" being substituted for "Tenant". Notwithstanding the provisions of
Section 16.01 of the ▇▇▇▇▇▇▇▇▇, other than an Event of Default that shall arise
under Subsection 16.01(a) of the ▇▇▇▇▇▇▇▇▇ (which shall include the failure to
pay the Sublease Rent), no event of default under this Sublease shall be deemed
to have occurred unless and until Overlandlord shall have elected to exercise
any of its rights under the ▇▇▇▇▇▇▇▇▇ as a result of a corresponding default by
Sublandlord in the performance of its obligations under the ▇▇▇▇▇▇▇▇▇.
Sublandlord agrees to promptly give Subtenant copies of any notices of default
received by Sublandlord from Overlandlord. In connection with curing any default
under this Sublease, Subtenant shall have five (5) fewer days to cure such
default than are otherwise provided in the ▇▇▇▇▇▇▇▇▇ for the curing of such
default.
(b) In the event that Sublandlord shall encumber its interest under
the ▇▇▇▇▇▇▇▇▇, and provided that Sublandlord shall have notified Subtenant in
writing of the name and post office address of the holder of such mortgage
encumbering the Sublandlord's interest under this Sublease, then Subtenant shall
deliver to the holder of such mortgage copies of each notice in connection with
this Sublease that Subtenant shall deliver to Sublandlord hereunder and that
Subtenant shall deliver to Overlandlord under the ▇▇▇▇▇▇▇▇▇ simultaneously with
the delivery thereof to Sublandlord or Overlandlord, as the case may be. In the
event of a default by Sublandlord in the performance of the terms and provisions
of this Sublease, the holder of such mortgage encumbering the Sublandlord's
interest under the ▇▇▇▇▇▇▇▇▇ shall have the right, during the pendency of any
grace or cure period provided in this Sublease, to remedy or cause to be
remedied any default by Sublandlord hereunder which is the basis of a default
notice, and in the case of a default by Sublandlord not susceptible of being
cured by reason of an insolvency of Sublandlord or any other similar events, the
holder of such mortgage shall have a reasonable additional period of time needed
by such mortgage holder in the exercise of reasonable diligence to foreclose its
mortgage and succeed to the interest of Sublandlord hereunder, so long as such
mortgage holder has cured all monetary defaults under this Sublease.
ARTICLE 12
NOTICES
Section 12.01. (a) All notices hereunder to Sublandlord or Subtenant shall
be given in writing and delivered by hand or by national overnight courier
service or mailed by certified or registered mail, postage prepaid, return
receipt requested, to the addresses set forth below:
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If to Sublandlord:
Kalodop Park Corp.
c/o ▇▇▇▇▇▇▇ Garage, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to Subtenant:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
with a copy to:
Stroock & Stroock & ▇▇▇▇▇
Seven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(b) By notice given in the aforesaid manner, either party hereto may
notify the other as to any change as to where and to whom such party's notices
are thereafter to be addressed.
(c) Any notice so sent by certified or registered mail shall be
deemed given on the date of receipt or refusal as indicated on the return
receipt. The effective date of any other notice shall be the date such notice is
delivered or the date that delivery thereof shall be rejected.
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ARTICLE 13
MISCELLANEOUS
Section 13.01. This Sublease is made in the State of New York and shall be
governed by and construed under the laws thereof. During the term of this
Sublease, this Sublease supersedes any and all other or prior understandings,
agreements, covenants, promises, representations or warranties of or between the
parties with respect to the subject matter hereof (which are fully merged
herein). The headings in this Sublease are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. Whenever necessary or
appropriate, the neuter gender as used herein shall be deemed to include the
masculine and feminine; the masculine to include the feminine and neuter; the
feminine to include the masculine and neuter; the singular to include the
plural; and the plural to include the singular. If Subtenant or Sublandlord
shall at any time acquire the interest of the other party in this Sublease, this
Sublease shall remain in full force and effect and the estate created hereby
shall not be merged unless the party acquiring the interest of the other party
shall agree in writing to the contrary. This Sublease is binding upon, and shall
inure to the benefit of, the parties and each of their respective successors and
permitted assigns, if any.
ARTICLE 14
INVALIDITY OF PARTICULAR PROVISIONS
SECTION 14.01. If any provision of this Sublease or the application
thereof to any person or situation shall, to any extent, be held invalid or
unenforceable, the remainder of this Sublease, and the application of such
provision to persons or situations other than those as to which it shall have
been held invalid or unenforceable, shall not be affected thereby, and shall
continue to be valid and be enforced to the fullest extent permitted by law.
ARTICLE 15
LEASEHOLD MORTGAGES
SECTION 15.01. Sublandlord represents that, as of the date hereof, there
is no Leasehold Mortgage encumbering Sublandlord's interest in the ▇▇▇▇▇▇▇▇▇.
This Sublease (as the same may be amended or modified from time to time) is and
shall be superior to all Leasehold Mortgages. Sublandlord shall cause each
Leasehold Mortgagee to execute and deliver to Subtenant any documents that
Subtenant may reasonably require to confirm the
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provisions of this Article 15. Any such Leasehold Mortgage shall be made subject
to the terms of this Sublease, including, without limitation, the provisions of
the last sentence of Subsection 5.01(c) hereof.
ARTICLE 16
SUBLANDLORD'S EXCULPATION
SECTION 16.01. Subtenant agrees that there shall be no personal liability
on the part of Sublandlord or any of its officers, directors, shareholders or
employees arising out of any default by Sublandlord under this Sublease, and
that Subtenant shall look solely to the interest of Sublandlord in the Premises
for the enforcement and satisfaction of any default by Sublandlord hereunder,
and that Subtenant shall not enforce any judgment (or other monetary decree)
against Sublandlord or any of its officers, directors, shareholders or employees
from or against any other assets of Sublandlord or any of the personal assets of
Sublandlord or any of its officers, directors, shareholders or employees.
ARTICLE 17
EMINENT DOMAIN
Section 17.01. (a) Regardless of any termination of this Sublease
pursuant to Article 18 of the ▇▇▇▇▇▇▇▇▇, the Award shall be distributed in the
following order of priority:
(i) If Subtenant shall be obligated to repair, alter and restore the
remaining parts of the Building and the Premises pursuant to Section 18.04 of
the ▇▇▇▇▇▇▇▇▇, the amount expended by Subtenant for the repair, alteration and
restoration shall be paid to Subtenant out of the Award;
(ii) If payment out of the Award is made to Subtenant under clause (i) of
this Section 17.01, next, or if no such payment is made to Subtenant under
clause (i) of this Section 17.01, there shall be paid to Sublandlord (from the
proceeds that Sublandlord shall be entitled to receive pursuant to Section
18.05(c) of the ▇▇▇▇▇▇▇▇▇), (1) in the case of a taking of all of the Premises,
an amount equal to the net present value (calculated as of the Date of the
Taking) of the amount of Basic Rent and Monthly Deferred Rent that Sublandlord
would otherwise be entitled to receive pursuant to the terms of this Sublease
from and after the Date of Taking to the end of the Term (such amount, the
"Sublandlord's Amount") or (2) in the case of a taking of part of the Premises,
an amount equal to the product obtained by multiplying (A) the Sublandlord's
Amount (as
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calculated above), by (B) the fraction obtained by dividing the square footage
of the portion of the Premises so taken by the total square footage of the
Premises. In calculating the net present value of the Basic Rent and the Monthly
Deferred Rent, such payments shall be discounted at the Discount Rate; and
(iii) The balance of the Award shall then be paid to Subtenant.
(b) Notwithstanding the foregoing, Sublandlord shall not be entitled to
any portion of the Award that shall be attributable to a temporary taking of the
Premises and shall not affect the rental received by the Sublandlord under this
Lease.
ARTICLE 18
ESTOPPEL CERTIFICATES BY SUBLANDLORD AND SUBTENANT
Section 18.01. Sublandlord and Subtenant each hereby agree, at any time
and from time to time upon not less than twenty (20) days prior written notice
by the requesting party, to execute, acknowledge and deliver to the requesting
party, or any other party specified by the requesting party, a statement in
writing certifying that this Sublease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as unmodified and stating the modifications) and the dates to which the Sublease
Rent have been paid, and stating whether or not, to the best knowledge of the
party executing such statement, Sublandlord or Subtenant is in default in the
performance of any covenant, agreement or condition contained in this Sublease
and, if so, specifying each such default, it being intended that any such
statement delivered pursuant to this Section 18.01 may be relied upon by such
parties that the party requesting such certificate shall designate, including,
without limitation, any prospective assignee or subtenant of Subtenant's
interest in this Sublease or the holder of, or prospective holder of, a
Subleasehold Mortgage, if requested by Subtenant, or the holder of, or
prospective holder of, a Leasehold Mortgage, if requested by Sublandlord.
ARTICLE 19
Like-Kind Exchange
Section 19.01. Each of the parties hereto, without cost or expense to it,
shall use its reasonable efforts to cooperate with the other party to enable the
other party to effectuate a "like-kind" exchange of its interest in the Premises
in accordance with Section 1031 of the Internal Revenue code of 1986, as
amended, if the other party so elects, provided the
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effectuation of such exchange does not prejudice or otherwise impair the rights
possessed by such party under this Sublease.
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the day
and year first above written.
KALODOP PARK CORP.
By: /s/ [Illegible signature]
------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
EXHIBIT A
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:-
BEGINNING at a point on the westerly side of Broadway distant one hundred and
one feet southerly from the corner formed by the intersection of the said
westerly side of Broadway with the southerly side of Prince Street;
RUNNING THENCE Westerly parallel with Prince Street, 200 feet to the easterly
side of ▇▇▇▇▇▇ Street;
THENCE Southerly along the said easterly side of ▇▇▇▇▇▇ Street, 50 feet;
THENCE Easterly again parallel with Prince Street, 200 feet to the Westerly side
of Broadway; and
THENCE Northerly along the said westerly side of Broadway, 50 feet to the point
or place of BEGINNING.
EXHIBIT B
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[NOT REPRODUCED HEREIN]
B-1
SCHEDULE 1
BASIC RENT ASSUMPTIONS
PERIOD BASIC RENT AMOUNT
------ -----------------
1. Twelfth (12th) anniversary of the Vacate Date $544,195.58/annum
through the date immediately preceding the
fifteenth (15th) anniversary of the Vacate Date
2. Fifteenth (15th) anniversary of the Vacate Date $587,731.23/annum
through the date immediately preceding the
eighteenth (18th) anniversary of the Vacate
Date
3. Eighteenth (18th) anniversary of the Vacate $634,749.73/annum
Date through the date immediately preceding the
twentieth (20th) anniversary of the Effective
Date
S-1
SCHEDULE 2
DEFERRED RENT
Assumptions:
1. Term of Sublease - December 1, 1996 - March 31, 2013 (the
"Expiration Date")
2. Effective Date - December 1, 1996
Vacate Date - December 1, 1996
3. Expiration Date for
a 20 Year Sublease - November 30, 2016
4. Rent Shortfall - (i) April 1, 2013 - November 30, 2014
$48,977.60/mo. x 20 months = $ 979,552.00
(ii) December 1, 2014 - November 30, 2016
$52,895.81/mo. x 24 months = $1,269,499.44
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Total $2,249,051.44
5. Net Present Value of the
Rent Shortfall (calculated
as of the
Expiration Date) (i) The net present value of the amount set
forth in Paragraph 4(i)above equals
$922,075.69(1)
(ii) The net present value of the amount set
forth in Paragraph 4(ii) above equals
$1,037,518.69(2)
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(1) The net present value as of the Expiration Date for this calculation was
determined by discounting, at the Discount Rate (compounded monthly),
twenty (20) equal monthly installments of rent in the amount of $48,977.60
paid in advance at the beginning of each month.
(2) This amount was calculated as follows:
(i) the net present value (as of December 1, 2014) of the twenty-four (24)
monthly payments of $52,895.81 paid in advance was determined by
discounting, at the Discount Rate (compounded monthly), such payments.
This calculation equals $1,180,081.31.
(ii) The amount of $1,180,081.31 was then divided by 1.137403. The number
1.137403 was determined utilizing the following formula - x = ( 1+ (.0775
/ 12)) n, where n equals the number of months between March 31, 2013 and
November 30, 2014. N in this example equals 20.
S-2-1
SCHEDULE 2 (Cont'd.)
DEFERRED RENT
Assumptions:
Total Net Present Value (equal to the sum of
the amounts set forth in 5(i) and 5(ii) above)
$1,959,594.38.
6. Deferred Rent (Net Present
Value of the amount set
forth in #5 calculated
as of the Vacate Date) -
$ 554,867.60(3)
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(3) The amount of $554,867.60 was determined by dividing $1,959,594.38 by
3.5316432. The number 3.5316432 was determined utilizing the following
formula - x = (1 + (.0775 / 12)) n where n equals the number of months
from the Vacate Date through the Expiration Date. N in this example equals
196.
S-2-2
SCHEDULE 3
MONTHLY DEFERRED RENT
1. Amount of Deferred Rent $ 554,867.60
2. Monthly Deferred Rent
(Amount required to pay
the Deferred Rent over
the Term of the Sublease
occurring from and after
the Vacate Date) $ 4,966.93/month
S-3
