SUBLEASE
AGREEMENT OF SUBLEASE ("Sublease"), made as of the 6th day of
October, 1999, by and between QueryObject Systems Corporation, formerly known as
CrossZ Software Corporation, a Delaware corporation (hereinafter referred to as
"Sublessor"), having an office at 00 Xxxxxxx Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000
and Progressive Casualty Insurance Company, an Ohio corporation (hereinafter
referred to as "Sublessee"), having an address at 000 Xxxxx Xxxxxxx Xxxx.,
Xxxxxxxx Xxxxxxx, Xxxx, 00000.
W I T N E S S E T H:
WHEREAS, pursuant to a certain lease dated as of October 27,
1994 ("Lease"), by and between Reckson Associates, as landlord ("Landlord"), and
Cross/Z International, Inc., as tenant, Landlord leased to Sublessor certain
space (the "Demised Premises") in the building ("Building") located at 00
Xxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, XX; and
WHEREAS, Sublessor desires to sublease to Sublessee and
Sublessee desires to sublet from Sublessor the Demised Premises which is more
particularly set forth on Exhibit A which is annexed hereto (the "Subleased
Premises"), and Sublessee desires to take and hire the Subleased Premises from
Sublessor;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Lease. Sublessee hereby acknowledges receipt of a copy of
the Lease, a copy of which is annexed hereto as Exhibit B. The terms and
conditions of the Lease are incorporated by reference into this Sublease and
made a part hereof (except for sections 2, 3, 5, 10, 16, 17, 28, 29, 30, 31, 34,
40, Schedule A and Exhibit 2) as if herein set forth at length. Sublessor being
substituted for "Landlord" under the Lease, Sublessee being substituted for
"Tenant" under the Lease and Subleased Premises being substituted for the
"Demised Premises" or "Premises" under the Lease except that where the context
so requires references to Landlord shall be deemed to refer to Reckson
Associates, its successors and assigns. Notwithstanding the foregoing, any
inconsistencies between the terms of this Sublease and the Lease which shall
result from the foregoing incorporation shall be resolved in favor of this
Sublease; provided, however, that if such construction of terms would cause
Sublessor to be in default under the terms of the Lease, then such inconsistency
shall be resolved in favor of the Lease. To the extent that the definitions of
the Lease incorporated by reference herein differ from or are inconsistent with
the definitions contained in this Sublease, the definitions set forth in this
Sublease shall prevail.
2. Demise and Term. (A) Sublessor hereby leases to Sublessee
and Sublessee hereby takes and hires from Sublessor the Subleased Premises
containing a total of 16,385 rentable square feet, for the term and upon the
terms and conditions set forth herein, subject to the provisions of Article 20
of the Lease, including the written consent of the Landlord to this Sublease and
to the use of the Subleased Premises pursuant to the terms thereof hereof
("Consent to Sublease"), and subject to Sublessor's compliance with Article
20(B) of the Lease. (B) The term ("Term") of this Sublease shall commence on
October 15, 1999 or sooner upon
the mutual agreement of the parties ("Commencement Date"), except as otherwise
provided herein, and end on December 30, 2004 ("Expiration Date"), unless sooner
terminated pursuant to the provisions of this Sublease or the Lease. Sublessor
warrants and represents that the term of the Lease extends beyond the Expiration
Date. Notwithstanding the foregoing, Sublessee shall not have the right to
possession of the Subleased Premises until (i) Landlord has signed the Consent
to Sublease, (ii) Sublessor has received the Security in the full amount
required under Section 24 of this Sublease and (iii) Sublessor has received the
first installment of monthly Fixed Rent payable pursuant to Article 3(A) of this
sublease.
3. Rent. The rents reserved under this Sublease for the Term,
shall be and consist of:
(A) "Fixed Rent" in the amount of
(i) three hundred fifteen thousand four hundred eight
($315,408) per annum, for the period beginning on November 1, 1999 through and
including October 31, 2000, payable in equal monthly installments of twenty-six
thousand two hundred eighty-four dollars ($26,284). Notwithstanding the
foregoing, provided that Sublessee is in compliance with the terms hereof,
Sublessor shall waive, and Sublessee shall not be required to pay, the first
three and one-half (3 1/2) installments of the Fixed Rent due as per the above.
(ii) three hundred twenty-eight thousand twenty dollars
($328,020) per annum, for the period beginning on November 1, 2000 through and
including October 31, 2001, payable in equal monthly installments of
twenty-seven thousand three hundred thirty-five dollars ($27,335).
(iii) three hundred forty-one thousand one hundred
thirty-six dollars ($341,136) per annum, for the period beginning on November 1,
2001 through and including October 31, 2002, payable in equal monthly
installments of twenty-eight thousand four hundred twenty-eight dollars
($28,428).
(iv) three hundred fifty-four thousand seven hundred
thirty-five dollars and 24/100 cents ($354,735.24) per annum, for the period
beginning on November 1, 2002 through and including October 31, 2003, payable in
equal monthly installments of twenty-nine thousand five hundred sixty-one
dollars and 27/100 cents ($29,561.27).
(v) three hundred sixty-eight thousand nine hundred
eighty-eight dollars ($368,988) per annum, for the period beginning on November
1, 2003 through and including October 31, 2004, payable in equal monthly
installments of thirty thousand seven hundred forty-nine dollars ($30,749).
(vi) Sixty-three thousand nine hundred fifty-six
dollars ($63,956), for the period beginning on November 1, 2004 through and
including December 30, 2004, payable in equal monthly installments of thirty-one
thousand nine hundred seventy-eight dollars ($31,978).
(B) "Additional Rent" consisting of all such other sums of
money as shall become due from, and payable by, Sublessee to Sublessor hereunder
including but not limited to
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sums payable by Sublessor to Landlord pursuant to Article 11 ("Taxes and Other
Charges"), of the Lease (for default in payment of which Sublessor shall have
the same remedies as for default in payment of Fixed Rent); all to be paid to
Sublessor at its address hereunder referred to, or such other place, or to such
agent and at such place, as Sublessor may designate by notice to Sublessee, in
lawful money of the United States of America. The term "rent", "rents" and
"rental," as used herein, shall include Fixed Rent and Additional Rent. For
purposes of this Sublease Sublessee's Base Year Taxes shall be 2000 for General
Taxes and 1999/2000 for School Taxes.
4. Payment of Additional Rent. Sublessee shall make all
payments of Additional Rent required to be made pursuant to this Sublease within
thirty (30) business days after Sublessor furnishes Sublessee with a statement
of the amount payable by Sublessee to Sublessor. Sublessee shall have the right
to reasonably request from Sublessor copies of any applicable Landlord's
statement received by Sublessor, and Sublessor shall furnish same upon request,
but same shall not affect Sublessee's obligations to make the required payments
hereunder. In the event that any items payable by Sublessor under the Lease, in
respect of which Sublessor shall have received payments from Sublessee
hereunder, are subject to adjustment by Landlord at the end of a year or other
period pursuant to the terms thereof, then (a) if there has been a corresponding
underpayment in the payments made by Sublessee, Sublessee shall pay to
Sublessor, no later than ten (10) days after Sublessor furnishes to Sublessee a
copy of the statement received by Sublessor from Landlord, an amount equal to
such underpayment; or (b) if there has been an overpayment in such payments made
by Sublessee, Sublessor shall credit against the next payment of Additional Rent
coming due hereunder an amount equal to such overpayment, except that if no
further payments of Additional Rent shall be due hereunder, then Sublessor shall
refund such amount to Sublessee within ten (10) days. The obligation to pay any
amount payable by Sublessee, or to Sublessee as provided for in the immediately
preceding sentence, shall survive the end of the term of this Sublease and shall
be payable by Sublessee, or to Sublessee, as the case may be, in the same manner
as if the Term of this Sublease had not expired or terminated.
5. Acceptance of Subleased Premises. Sublessee has inspected
the Subleased Premises and Sublessee agrees to accept the Subleased Premises on
the Commencement Date in the condition in which the Subleased Premises exists on
the Commencement Date, "as is", and further agrees that neither Sublessor nor
Landlord shall have any obligation to perform any work, supply any materials,
incur any expenses or make any installations, in order to prepare the Subleased
Premises for Sublessee's occupancy.
6. Performance of Covenants in the Lease. Except as expressly
set forth herein, during the Term of this Sublease, Sublessee shall observe and
perform all of the terms, covenants, conditions, and agreements contained in the
Lease to be performed and observed on the part of Sublessor, as the tenant
thereunder, insofar as same pertain to the Subleased Premises, and all of such
terms, covenants, conditions and agreements are imposed upon Sublessee, whether
or not specifically set forth or referred to herein, Sublessor being substituted
for "Landlord" under the Lease, Sublessee being substituted for "Tenant" under
the Lease and the Subleased Premises being substituted for the "Demised
Premises" or "Premises" under the Lease, provided, however, that Sublessor shall
not be liable for any defaults by the Landlord under the Lease nor shall
Sublessee be liable for any defaults of Sublessor as Tenant under the Lease.
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Sublessee hereby agrees (i) to refrain from doing or causing to be done, or
suffering or permitting any thing or act to be done (except for any act or
omission of Sublessor, its officers, directors, employees, agents, guests and
invitees), which constitutes a default under the Lease or causes the Lease, to
be canceled, terminated, forfeited or surrendered, or which makes Sublessor, as
tenant under the Lease, liable for any damages, claims or penalty, and (ii)
except as to those due to the negligence or willful act or omission of
Sublessor, to indemnify and hold Sublessor harmless against any loss or expense
suffered by Sublessor by reason of Sublessee's failure to perform Sublessee's
obligation xxxxxx this Sublease. Sublessor hereby agrees (i) that it will not
take, or omit to take, any action which will have the effect of causing a
default under the Lease, or of causing a substantial interruption in any of the
services provided by Landlord to the Subleased Premises under the Lease, and
(ii) to indemnify and hold Sublessee harmless against any loss or expense
suffered by Sublessee by reason of Sublessor's failure to perform its
obligations under this Sublease and under the Lease (except where such loss or
expense is due to a default caused by Sublessee under this Sublease). Provided
Sublessee is not in default under this Sublease beyond the giving of any
required notice and the expiration of any grace period, Sublessor agrees not to
cancel or surrender voluntarily the Lease as it affects the Subleased Premises,
without the prior written consent of Sublessee. If the Lease is terminated for
any reason whatsoever, whether by operation of law or otherwise, except where
due to default of Sublessor (other than a default of Sublessor under the Lease
caused by Sublessee under this Sublease), Sublessor shall not be liable in any
manner whatsoever for such termination. Sublessor shall promptly forward to
Sublessee any default or termination notice with respect to the Lease received
by Sublessor from Landlord and this Sublease shall terminate in the event of any
such termination of the Lease. This Sublease is subject and subordinate in all
respect to the Lease and to the matters to which the Lease is subject and
subordinate. This Sublease shall also be subject to any amendments,
modifications and supplements to the Lease hereafter made between Landlord and
Sublessor, provided that any such amendments, modifications or supplements to
the Lease hereafter made between Landlord and Sublessor will not prevent, limit,
restrict or adversely affect the use by Sublessee of the Subleased Premises or
increase in any material respect its duties, obligations, responsibilities and
liabilities under and in accordance with the terms of this Sublease; and further
provided that any such amendments, modifications or supplements are provided to
Sublessee prior to execution and that a copy of such executed documents is
provided to Sublessee.
7. Use. Sublessee hereby agrees that the Subleased Premises
will be occupied and used only for general office use and for no other purpose,
and in a manner consistent in all respects with the provisions of the Lease.
8. Services Under the Lease. Except as otherwise provided
either in this Paragraph 8 or elsewhere in this Sublease, Sublessee shall be
entitled, during the Term hereof, to receive all services, utilities, repairs
and facilities to be provided by Landlord under the Lease insofar as such
services, utilities, repairs and facilities pertain to the Subleased Premises.
Sublessee shall contract directly with LIPA for energy services to the Subleased
Premises and Sublessee shall pay the cost of such services to LIPA in a timely
fashion. Sublessor shall use its reasonable efforts to secure the performance by
Landlord of its obligations under the Lease with respect to the Subleased
Premises for the delivery, provision and/or performance of such services,
utilities, repairs and facilities as are required to be provided by Landlord
under the Lease, except for such services, utilities, repairs and facilities for
which Sublessor, Sublessee or any other tenant is
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responsible; provided, however, Sublessor shall in no event be required to
commence or maintain litigation to enforce such obligations of Landlord under
the Lease, or to incur any cost or expense whatsoever to secure such
performance. In the event that Sublessor fails or refuses to commence or
maintain any such litigation to enforce obligations of Landlord under the Lease,
then and in that event, Sublessee shall have the right to do so, at Sublessee's
sole cost and expense, as Sublessor's attorney-in-fact and/or assignee pursuant
hereto. Sublessee agrees that Sublessor shall have no liability of any nature
whatsoever to Sublessee as a consequence of Landlord's failure to delay in
performing its obligations under the Lease, including, without limitation,
Landlord's breach of the covenant of quiet enjoyment, provided that such
failure, delay or breach is not the result of any default by the Sublessor under
the Lease, and provided further, that Sublessor shall have had an opportunity to
cure such default. Sublessee's obligations hereunder shall not be impaired nor
shall the performance thereof be excused because of any failure or delay on
Landlord's part in performing its obligations under the Lease unless such
failure or delay results from Sublessor's being in default under the Lease and
Sublessor's default thereunder is not due to a default of Sublessee hereunder.
9. Alterations. Except as otherwise herein provided, Sublessee
shall make no alterations, installations, additions or improvements
(collectively, "Alterations") into or about the Sublease Premises except in
accordance with the applicable provisions of the Lease, including but not
limited to Article 14 thereof.
(B)
In the event that Sublessee shall fail to take out or continuously maintain in
force the insurance policies required hereunder, Sublessor may, at its option,
effect such insurance and charge the cost thereof to Sublessee, who shall pay,
as Additional Rent, such sums to Sublessor. (C) Each of the above described
policies shall contain the following endorsement, to the extent available, "It
is understood and agreed that the premiums for these policies are due and
payable from Sublessee only."
11. Full Force and Effect of the Lease. Sublessor represents
that the copy of the Lease delivered to Sublessee is a true and correct copy
thereof. Sublessor represents further that (a) there have been no further
amendments to nor modifications of the Lease, (b) to the best of Sublessor's
knowledge, neither Landlord nor Sublessor are in default under the Lease, (c)
Sublessor has not received any default notices from Landlord, and (d) Sublessor
has not sent any default notices to Landlord.
12. No Representations. Sublessor has made no representations,
agreements or promises with respect to the Building or the Subleased Premises or
the use thereof other than those expressly set forth in this Sublease and no
rights are to be deemed acquired by Sublessee, by implication or otherwise,
except those expressly granted herein. This Sublease contains the entire
agreement between Sublessor and Sublessee with respect to the Subleased Premises
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and all prior negotiations and agreements are merged in this Sublease. Any
executory agreement hereafter made between Sublessor and Sublessee shall be
ineffective to change, modify, waive, release, discharge, terminate or effect an
abandonment or surrender of this Sublease, in whole or in part, unless such
agreement is in writing and signed by the party against whom enforcement thereof
is sought.
13. Default. (A) This Sublease and the term and estate herein
granted are subject to the limitations that:
(i) if, Sublessee shall default in the observance
or performance of any term, covenant or condition of the Lease on Sublessee's
part to be observed or performed, which default results in a notice of default
by Landlord to Sublessor and such default shall continue for a period of five
(5) days after delivery to Sublessee of a true and complete copy of Landlord's
notice of default, or if such default is of a nature that it cannot be
completely remedied within said five (5) day period if Sublessee fails to
commence to cures such default within said five (5) day period and thereafter
diligently prosecute to completion all steps necessary to remedy such default;
or
(ii) if, Sublessee shall default in the payment
when due of any installment of Fixed Rent or in the payment when due of any
Additional Rent, and such default shall continue for a period of three (3) days
after notice by Sublessor to Sublessee of such default; or
(iii) if, Sublessee shall default in the observance
or performance of any term, covenant or condition of this Sublease on
Sublessee's part to be observed or performed (other than the covenants for the
payment of Fixed Rent and Additional Rent) and Sublessee shall fail to remedy
such default within ten (10) days after notice by Sublessor to Sublessee of such
default, or if such default is of a nature that it cannot be completely remedied
within said ten (10) day period, if Sublessee shall not commence within said ten
(10) day period and thereafter diligently prosecute to completion all steps
necessary to remedy such default; or
(iv) if, the Subleased Premises shall become
vacant, deserted or abandoned without payment of Rent; or
(v) if, Sublessee's interest in this Sublease shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as may be expressly permitted under Paragraph 19 hereof; or
(vi) if, Sublessee shall file a voluntary petition
in bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or
shall file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy act or any other statute or law, or
shall make an assignment for the benefit of creditors or shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or liquidator of
Sublessee or of all or any part of Sublessee's property; or
(vii) if, within sixty (60) days after the
commencement of any proceeding against Sublessee, whether by the filing of a
petition or otherwise, seeking any
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reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or future applicable federal, state or other
statute or law, such proceeding shall not have been dismissed, or if, within
sixty (60) days after the appointment of any trustee, receiver or liquidator of
Sublessee, or of all or any part of Sublessee's property, without the consent or
acquiescence of Sublessee, such appointment shall not have been vacated or
otherwise discharged, or if any lien, execution or attachment shall be filed or
issued against Sublessee or all or any part of Sublessee's property pursuant to
which the Subleased Premises shall be taken or occupied or attempted to be taken
or occupied by someone other than Sublessee (except as provided in Paragraph
then, upon the occurrence, at any time prior to or during
the Term, of any one or more or such events, Sublessor may, at any time
thereafter, at Sublessor's sole option, give to Sublessee a five (5) days"
notice of cancellation of this Sublease and, in such event, this Sublease and
the Term shall come to an end and expire (whether or not the Term shall have
commenced) upon the expiration of said five (5) day period with the same force
and effect as if the date were the Expiration Date stated herein and Sublessee
shall then quit and surrender the Subleased Premises to Sublessor, but Sublessee
shall remain liable for damages as provided in Paragraph 25 hereof. Sublessor
shall have with respect to any such default any and all of such rights and
remedies as are given to Landlord under the Lease with respect to defaults by
the tenant thereunder, all with the same force and effect as though the
provisions of the Lease with respect to defaults and the rights and remedies of
Landlord were set forth as length herein. If Sublessee shall default in the
performance of any of Sublessee's obligations hereunder or under the provisions
of the Lease, after the giving of notice and opportunity to cure as provided
above, Sublessor, without thereby waiving such default, may, at Sublessor's
option, perform the same for the account and at the expense of Sublessee. If
Sublessor makes any expenditures or incurs any obligations for the payment of
money, including, without limitation, reasonable attorneys' fees and expenses in
instituting, prosecuting or defending any action or proceeding, by reason of any
default of Sublessee hereunder after giving of notice and opportunity to cure as
provided above, such sums paid or obligations incurred, with interest at the
rate of 12% per annum, shall be deemed to be Additional Rent and shall be paid
by Sublessee to Sublessor on demand.
(B) If Sublessor shall default in the observance or
performance of any term, covenant or condition of this Sublease on Sublessor's
part, to be observed or performed, and Sublessor shall fail to remedy such
default with ten (10) days after notice by Sublessee to Sublessor of such
default, or if such default is of a nature that it cannot be completely remedied
within said ten (10) day period and thereafter diligently prosecute to
completion all steps necessary to remedy such default, then if Sublessee makes
any expenditures or incurs any obligations for the payment of money, including
without limitation, reasonable attorneys" fees and expenses instituting,
prosecuting or defending any action or proceeding, by reason of any default of
Sublessor hereunder, after giving of notice and opportunity to cure as provided
above, Sublessee shall reimburse to Sublessee on demand all such sums paid by
Sublessee, with interest at the rate of 12% per annum.
14. Indemnity and Hold Harmless. (A) Neither Sublessor nor its
agents shall be liable to Sublessee, its employees, agents, contractors,
licensees, servants, invitees or visitors and Sublessee shall save Sublessor and
its agents harmless from and against any and all liabilities, obligations,
penalties, fines, suits, claims, demands, actions, costs and expenses of any
kind or
7
nature (including, without limitation, reasonable attorneys' fees and expenses),
incurred in connection with or arising from any injury to Sublessee, its
employees, agents, contractors, licensees, servants, invitees or visitors or to
any other person in or about the Subleased Premises, or from any injury or
damage to or loss (by theft or otherwise) or, any of Sublessee's property and/or
of the property of any other person irrespective of the cause of such injury,
damage or loss, other than injury, damage or loss caused by Sublessor's willful
acts or omissions or negligence. Sublessee agrees to indemnify and save
Sublessor and its agents harmless from and against any and all liabilities,
obligations, penalties, fines, suits, claims, demands, actions, costs and
expenses of any kind or nature by anyone whomsoever (including, without
limitation, reasonable attorneys' fees and expenses), incurred in connection
with or arising from (i) any default by Sublessee in the observance or
performance of any of the terms, covenants, conditions or agreements of this
Sublease on Sublessee's part to be observed or performed, beyond the expiration
of any applicable grace period, or (ii) the use or occupancy or manner of use or
occupancy of the Subleased Premises by Sublessee or any person claiming through
or under Sublessee, other than as permitted under the is Sublease, unless such
is due to the negligence of Sublessor, its agents or employees, (iii) the
condition of the Subleased Premises (ordinary wear and tear excepted), except if
created by Sublessor, or (iv) any acts, omissions or negligence of Sublessee, or
the employees, agents, contractors, licensees, servants invitees or visitors of
Sublessee, in or about the Subleased Premises or the Building, during the Term.
If any action or proceeding shall be brought against Sublessor by reason of any
such claim, Sublessee, upon notice from Sublessor, agrees to resist or defend
such action or proceeding and to employ counsel therefor reasonably satisfactory
to Sublessor. Sublessee shall pay to Sublessor on demand, as Additional Rent,
all sums which may be owing to Sublessor by reason of the provisions of this
Paragraph 14. Sublessee's obligations under this Paragraph 14 shall survive the
Expiration Date or sooner termination of the Term.
(B) Sublessor agrees to indemnify and save Sublessee and its agents
harmless from and against any and all liabilities, obligations, penalties fines,
suits, claims, demands, actions, costs and expenses of any kind or nature by
anyone whomsoever (including, without limitation, reasonable attorneys' fees and
expenses), incurred in connection with or arising from any default by Sublessor
in the observance or performance of any of the terms, covenants, conditions or
agreements of this Sublease on Sublessor's part to be observed or performed,
beyond the expiration of any applicable grace period, or (ii) any acts,
omissions or negligence of Sublessor, or the employees, agents, contractors,
licensees, servants, invitees or visitors of Sublessor in or about the Demised
Premises or the Building during the Term.
15. Notices. Any notice, demand, request or other document which,
under the terms of this Sublease or under any statute, must or may be given or
made by the parties hereto, must be in writing, and shall be either personally
delivered (provided a written receipt therefor is obtained), or sent by
registered or certified mail, postage prepaid, return receipt requested, or
overnight carrier, addressed to the party for whom intended at its address as
set forth on page 1 hereof, and, if to Sublessor, with a copy to Attention: Xxx
Xxxxxxxxxxx, Esq., Olshan Xxxxxxxx, 000 Xxxx Xxx., XX, XX 00000 or if to
Sublessee, with a copy to 000 Xxxxx Xxxxxxx Xxxx., Xxxxxxxx Xxxxxxx, Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, Esq. (provided, however, the failure to forward a
copy of any notice to counsel shall not be deemed to make such notice
defective). Either party, however, may designate a new or other address by
written notice given in accordance with this Paragraph 15. Any notice personally
delivered shall be deemed given upon the signing of a receipt therefor, and any
notice so addressed and mailed shall be deemed to be given either when
delivered, or, if delivery is refused, five (5) business days after the date
mailed, as the case may be. Any notice, demand or request given or made by
counsel for a party shall be deemed given or made by such party.
16. Counterclaim. Sublessee hereby waives the right to interpose
a counterclaim (other than mandatory counterclaims) in any summary proceeding
initiated by Sublessor to remove Sublessee from the Subleased Premises.
17. End of Term. On the Expiration Date, or upon any earlier
termination of this Sublease, Sublessee shall quit and surrender the Subleased
Premises to Sublessor broom-clean and in as good order, condition and repair as
the Subleased Premises existed upon the Commitment Date except for ordinary wear
and tear, any restoration of the Subleased Premises not required pursuant
hereto, damage or destruction by fire and other casualty and such other damage
the repair of which is not Sublessee's obligation hereunder (provided no such
damage shall be due to Sublessee's or misconduct), and otherwise in accordance
with the applicable provisions of the Lease. Sublessee recognizes that Sublessor
may suffer substantial damage if Sublessee fails to surrender and vacate the
Subleased Premises on the Expiration Date. Sublessee, therefore, agrees that if
Sublessee shall hold-over or remain in possession beyond the Expiration Date of
this Sublease, Sublessee shall in addition to the provision of Xxxxxxxxx 00
xxxxx, xx liable for all compensatory damages directly related thereto and
arising therefrom, including any damages arising out of any lost opportunities
(and/or new lease) in connection with such holding over. All damages to
Sublessor by reason of such holding-over by Sublessee may be the subject of a
separate action and need not be asserted by Sublessor in any summary proceeding
against Sublessee. Sublessee further agrees to indemnify Sublessor against and
from any and all losses, liabilities, damages, costs and expenses (including
reasonable attorney's fees) Sublessor incurs to dispossess Sublease, or
otherwise, resulting from Sublessee's failure to vacate the Subleased Premises
on the Expiration Date. Sublessee's obligations under this Paragraph 17 shall
survive the termination of this Sublease.
18. Quiet Enjoyment. Sublessor covenants with Sublessee that as
long as Sublessee shall pay the Fixed Rent and Additional Rent and shall duly
perform all of the terms, covenants, conditions and agreements of this Sublease
on its part to be performed, Sublessee shall, subject to the terms hereof and of
the Lease, peaceably have, hold and enjoy the Subleased Premises during the Term
provided herein without hindrance or molestation by Sublessor or any party
claiming by, through or under Sublessor.
19. Assignment and Subletting. Sublessee, for itself, and its
successors and assigns, expressly covenants that it shall not assign this
Sublease, nor underlet, nor suffer, nor permit the Subleased Premises or any
part thereof to be used or occupied by others, except upon the prior written
consent of both (i) Sublessor, which consent shall not be unreasonably withheld
or delayed, and (ii) Landlord; as provided further that any such attempted
assignment, subletting, use or occupancy shall be subject to compliance with all
of the terms and conditions contained in Article 20 of the Lease and to the
rights of Landlord thereunder.
20. Effect of Termination of the Lease. Notwithstanding the
provisions of Paragraph 2 hereof, the Term of this Sublease shall end one day
prior to the Term of the Lease if
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Landlord shall terminate the Lease in accordance with its terms. Upon receipt of
written notice from Landlord terminating the Lease, Sublessor shall notify
Sublessee of Landlord's intention to terminate the Lease and the date such
termination shall be effective. In the event of such early termination by
Landlord ("Early Termination"), Sublessor shall return to Sublessee any prepaid
Fixed Rent, any prepaid Additional Rent or Additional Rent covering any period
following Early Termination, and thereafter this Sublease shall terminate as
finally and completely as if the date set forth in the Early Termination notice
shall be the Expiration Date set forth herein for the termination of the
Sublease Term.
21. Effect of Termination of this Sublease. Reference in this
Sublease to "termination" of this Sublease include expiration or earlier
termination of the Term hereof or cancellation of this Sublease pursuant to any
of the provisions of this Sublease, the Lease or pursuant to law. Upon the
termination of this Sublease, the term and estate granted by this Sublease shall
end at noon on the date of termination as if such date were the Expiration Date
hereof, and neither party shall have any further obligation or liability to the
other after such termination except as shall be expressly provided in this
Sublease, any liability for a payment which shall have accrued with respect to
any period ending prior to or at the time of termination shall survive the
termination of this Sublease.
22. Remedies Cumulative. Each right and remedy of Sublessor
and Sublessee provided for in this Sublease shall be cumulative and shall be in
addition to every other right and remedy provided for in this Sublease now or
hereafter existing at law or in equity or by statute or otherwise.
23. Binding Effect. The terms, covenants, conditions and
agreements contained in this Sublease shall bind and inure to the benefit of
Sublessor and Sublessee and their respective successors and assigns, except that
no violation of the provisions of Paragraph 19 hereof shall operate to vest any
rights in any successor or assignee of Sublessee. It is understood and agreed
that the obligations of Sublessor under this Sublease shall not be binding upon
Sublessor with respect t any period subsequent to the transfer of its interest
in the Lease, and that in the event of such transfer said obligations shall
thereafter be binding upon the transferee of the Sublessor's interest as tenant
under the Lease.
24. Intentionally Omitted.
25. Re-entry by Sublessor; Remedies. (A)(i) If this Sublease
and the Term shall expire and come to an end as provided in Paragraph 13 hereof:
(a) Sublessor and its agents may immediately, or at any
time thereafter, re-enter the Subleased Premises or any part thereof, either by
summary proceedings, or by any other applicable court action or judicial
proceeding (without being liable to indictment, prosecution or damages
therefor), and any repossess the Subleased Premises and the Furniture and remove
any and all of their property and effects from the Subleased Premises; and
(b) Sublessor, at its option, may relet the whole or any
part or parts of the Subleased Premises, at any time or from time to time,
either in the name of Sublessor or otherwise, to such subtenant or subtenants,
for such term or terms ending before, on or after the Expiration Date, at such
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rental or rentals and upon such conditions, which may include concessions and
free rent periods, as Sublessor, in its reasonable discretion, may determine.
Sublessor shall have no obligation to relet the Subleased Premises or any part
thereof and shall in no event be liable for refusal or failure to relet the
Subleased Premises or any part thereof, or, in the event of any such reletting,
for refusal or failure to collect any rent due upon any such reletting, and no
such refusal or failure shall operate to relieve Sublessee of any liability
under this Sublease or otherwise to affect any such liability. Sublessor, at its
option, may take such repairs, replacements, alterations, additions,
improvements, decorations and other physical changes in and to the Subleased
Premises as Sublessor, in its reasonable discretion, considers advisable or
necessary in connection with any such reletting or proposed reletting, without
relieving Sublessee of any liability under this Sublease or otherwise affecting
any such liability.
(ii) Sublessee, on its own behalf and on behalf of all
persons claiming through or under Sublessee, including all creditors, does
further hereby waive any and all rights which Sublessee and all such persons
might otherwise have under any present or future law to (a) redeem the Subleased
Premises, or re-enter or repossess the Subleased Premises, or (b) restore the
operation of this Sublease, after (1) Sublessee shall have been dispossessed by
a judgment or by warrant of any court or judge, (2) any re-entry by Sublessor,
or (3) any expiration or termination of this Sublease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Sublease. The words "re-enter", "re-entry"
and "re-entered" as used herein shall not be deemed to be restricted to their
technical legal meanings. The right to invoke the remedies hereinbefore set
forth are cumulative and shall not preclude Sublessor from invoking any other
remedy allowed at law or in equity.
(B) In the event of any breach or threatened breach by
Sublessee or any person claiming through or under Sublessee, of any of the terms
of this Sublease (whether or not the Term shall have commenced), Sublessor shall
be entitled to enjoin such breach or threatened breach and shall have the right
to invoke any other remedy allowed at law or in equity, by statute or otherwise,
as if re-entry, summary proceedings or other specific remedies were not provided
for in this Sublease.
(C) (i) If this Sublease and the Term shall expire and come to
an end as provided in Paragraph 13 hereof, or by or under any summary proceeding
or any other action or proceeding, or if Sublessor shall re-enter the Subleased
Premises as provided in this Paragraph 25 and elsewhere in this Sublease, or by
or under any summary proceeding or any other action or proceeding, then, in any
of said events:
(a) Sublessee shall pay to Sublessor all Fixed Rent,
Additional Rent and other charges payable under this Sublease by Sublessee to
Sublessor to the date upon which this Sublease and the Term shall have expired
and come to an end or to the date of re-entry upon the Subleased Premises by
Sublessor, as the case may be.
(b) All monies, if any, therefore paid by Sublessee to
Sublessor, whether as advanced Fixed Rent, Additional Rent, Security, or
otherwise, shall be credited by Sublessor against any damages payable by
Sublessee to Sublessor, and any surplus, if any, shall be refunded to Sublessee;
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(c) Sublessee also shall be liable for and shall pay to
Sublessor as damages, any deficiency (hereafter referred to as "Deficiency")
between the Fixed Rent and Additional Rent served in this Sublease for the
period which otherwise would have constituted the unexpired portion of the Term
(conclusively presuming the Additional Rent to be the same as was payable for
the year immediately preceding such termination or re-entry) and the net amount,
if any, of rents and collected under any reletting for any part of such period
(first deducting from the rents collected under any such reletting all of
Sublessor's reasonable expenses in connection with the termination of this
Sublease, and Sublessor's re-entry upon the Subleased Premises and with such
reletting, including, but not limited to, all repossession costs, brokerage
commissions, legal expenses, attorney's fees and disbursements, alteration costs
and other expenses of preparing the Subleased Premises for such reletting). Any
such Deficiency shall be paid in monthly installments by Sublessee on the days
specified in this Sublease for payment of installments of Fixed Rent. Sublessor
shall be entitled to recover from Sublessee each monthly Deficiency as the same
shall arise, an no suite to collect the amount of the Deficiency for any month
shall prejudice Sublessor's right to collect the Deficiency for any subsequent
month by a similar proceeding;
(ii) If the Subleased Premises, or any part thereof, shall be
relet together with other space in the Demised Premises, rents collected or
reserved under any such reletting and the expenses of any such reletting shall
be equitably apportioned for the purposes of Section C.(i) hereof. In no event
whatsoever shall Sublessee be entitled to any rents collected or payable under
any reletting, whether or not such rents shall exceed the Fixed Rent and
Additional Rent reserved in this Sublease. Nothing contained in Paragraph 13
hereof or this Paragraph 25 shall be deemed to limit or preclude the recovery by
Sublessor from Sublessee of the maximum amount allowed to be obtained as damages
by any statute or rule of law, or of any sums or damages to which Sublessor may
be entitled in addition to the damages set forth in Section C.(i) hereof.
26. Certificates. Sublessor and Sublessee shall, without charge,
at reasonable intervals, and from time to time, within ten (10) business days
after requests by the other, deliver a written instrument to any person, firm or
corporation specified by them, duly executed and acknowledged, certifying:
(a) that this Sublease is unmodified and in full force and
effect, if there have been any modifications, that the same are in full force
and effect as modified and stating any such modifications and if the Sublease is
not then in full force and effect, so stating and setting forth in reasonable
detail the nature of any default, deficiency or changed circumstances;
(b) whether or not there are then existing set-offs or
defenses against the enforcement of any of the agreements, terms, covenants or
conditions of this Sublease and any modifications thereof on the part of
Sublessee to be performed or complied with, and, if so, specifying the same;
(c) whether the term of this Sublease has commenced and
rent is payable thereunder and whether Sublessee has accepted possession of the
Subleased Premises;
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27. Execution of Sublease. Submission by Sublessor of the within
Sublease for execution by Sublessee shall confer no rights nor impose any
obligations on either party unless and until both Sublessor and Sublessee shall
have executed this Sublease, duplicate originals thereof shall have been
delivered to the respective parties and Landlord shall have delivered to
Sublessor the Consent to Sublease and Sublessor shall have promptly notified
Sublessee of its receipt of Landlord's Consent to Sublease.
28. Holding Over. If Sublessee holds over in possession after the
expiration or sooner termination of the original Term or of any extended term of
this Sublease, such holding over shall not be deemed to extend the Term or renew
the Sublease, but such holding over thereafter shall continue upon the covenants
and conditions herein set forth, except that the charge for use and occupancy of
such holding over for each calendar month or part thereof (even if such part
shall be a small fraction of a calendar month) shall be the sum of
(a) 1/12 of the annual Fixed Rent set forth in this
sublease, times 1.5, plus
(b) 1/12 of all other items of annual Additional Rent
which would have been payable pursuant to this Sublease had this Sublease not
expired, plus
(c) those other items of Additional Rent (not annual
Additional Rent) which would have been payable pursuant to this Sublease, had
this Sublease not expired, which total sum Sublessee agrees to pay to Sublessor
promptly upon demand, in full, without set-off or deduction. Neither the billing
nor the collection of use and occupancy in the above amount shall be deemed a
waiver of any right of Sublessor to collect damages for Sublessee's failure to
vacate the Subleased Premises after the expiration or sooner termination of this
Sublease. The aforesaid provisions of this Section shall survive the expiration
or sooner termination of this Sublease.
29. Late Charges. If Sublessor does not receive payment of any
Fixed Rent or Additional Rent within five (5) days after any such Fixed Rent or
Additional Rent is due, then Sublessee shall pay to Sublessor, as a "late
charge", interest at the lesser of (i) two percent (2%) per annum above the then
current prime rate charged by Citibank, N.A. or its successor, or (ii) the
maximum rate permitted by applicable law on the amount of Fixed Rent and/or
Additional Rent so overdue and such "late charge" shall be collectible as
Additional Rent by Sublessor.
30. Attorneys' Fees. (a) In case it shall be necessary for
Sublessor to institute any action or proceeding against Sublessee for the
nonpayment of rent or for the violation of any of the covenants or provisions of
this Sublease or for the recovery of possession of the Subleased Premises or
should Sublessor be compelled to intervene in any action or proceeding wherein
Sublessee is a party in order to enforce Sublessor's interest or rights
hereunder, then and in any of such events, if Sublessor shall obtain a judgment
or order in its favor on the merits, sustained on appeal if one is taken, in
such action or proceeding, Sublessee shall be obligated to pay to Sublessor
reasonable attorneys" fees, costs and disbursements incurred for the institution
and prosecution of any such action, proceeding or intervention.
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(b) In case it shall be necessary for Sublessee to institute
any action or proceeding against Sublessor for the violation of any of the
covenants or provisions of this Sublease or should Sublessee be compelled to
intervene in any action or proceeding wherein Sublessor is a party in order to
enforce Sublessee's interest or rights hereunder, then and in any of such
events, if Sublessee shall obtain a judgment or order in its favor on the
merits, sustained on appeal if one is taken, in such action or proceeding,
Sublessor shall be obligated to pay to Sublessee reasonable attorneys' fees,
costs and disbursements incurred for the institution and prosecution of any such
action, proceeding or intervention.
31. No Broker. Sublessor and Sublessee represent and warrant that
they have dealt with no broker or finder in connection with this Sublease other
than Xxxxxx & Xxxxxxx. Sublessor shall pay a commission to Xxxxxx & Xxxxxxx
pursuant to a separate written agreement. Sublessor and Sublessee each shall
indemnify, defend and save harmless the other from and against all claims
arising from any breach by such party of the foregoing representation, warranty
or covenant. The indemnity set forth herein shall survive the expiration or
earlier termination of this Sublease.
32. Parking. In addition to the parking rights set forth in the
Lease, Sublessor acknowledges to Sublessee that Sublessee shall on occasion, for
duration's that do not extend beyond business work hours park vehicles known as
"SUV's" in Sublessee reserved parking as set forth in the Lease.
(b) In the event that Sublessee leases, uses or licenses from
Nassau County in the adjoining property known as the "Rifle Range" , additional
parking in an amount equal to or in excess of ten vehicles, Sublessor will
credit Sublessee in an amount of $3.00 per day, for each of the ten (10)
vehicles only ($90.00 per month for each vehicle; $900.00 per month for ten (10)
vehicles). The amount of credit shall not exceed $900.00 per month. The parking
charge shall be a credit against the rent on a monthly basis starting with the
first month Sublessee actually leases such parking spaces (Sublessee shall
provide Sublessor with a copy of said Parking Agreement) provided, however,
Sublessee shall be entitled to a double credit for months 4, 5, and 6 of this
Sublease.
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IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed
this Sublease as of the day and year first above written.
SUBLESSOR:
QueryObject Systems Corporation
By:
-------------------------------------
Name:_______________________________
Title: ____________________________
SUBLESSEE:
Progressive Insurance, Inc.
By:
--------------------------------------
Name:_______________________________
Title:______________________________
By and through its signature contained
below, Landlord hereby consents to
this Sublease and agrees to be bound
by the terms, conditions and covenants
contained herein as such relate to the
Landlord
LANDLORD:
Reckson Associates
By:_________________________________
Name:_______________________________
Title:______________________________
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EXHIBITS TO SUBLEASE
Subleased Premises Exhibit A
Lease Exhibit B
EXHIBIT A
SUBLEASED PREMISES
EXHIBIT B
LEASE
