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EXHIBIT 10.18
SUBLEASE AGREEMENT
BETWEEN
YAHOO! INC.
AND
VITAMIN SHOPPE INDUSTRIES, INC.
JULY 14, 1999
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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (hereinafter referred to as "Sublease"), entered
into as of July 14, 1999, is made by and between Yahoo! Inc. (herein called
"Sublandlord") and Vitamin Shoppe Industries, Inc., a ___________ corporation
(herein called "Subtenant"), with reference to the following facts:
A. Pursuant to that certain Lease dated June 30, 1997 (the "Master
Lease"), 444 Madison, LLC ("Landlord"), as Landlord, leased to Sublandlord, as
tenant, certain space (the "Master Lease Premises") in the Building located at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building").
B. Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes
to sublease to Subtenant, the Master Lease Premises, which is comprised of two
suites on the eighth floor of the Building of 6,854 rentable square feet and
3,418 rentable square feet, respectively, for a total of 10,272 rentable square
feet (hereinafter called the "Subleased Premises").
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, Sublandlord and Subtenant hereby agree as follows:
1. Sublease. Sublandlord hereby subleases to Subtenant and Subtenant
hereby subleases from Sublandlord for the term, at the rental, and upon all of
the conditions set forth herein, the Subleased Premises.
2. Term.
2.1 Term. The term of this Sublease ("Term") shall commence on August
15, 1999 (the "Commencement Date") and end on November 29, 2003 (the "Expiration
Date"), unless sooner terminated pursuant to any provision hereof.
3. Rent.
3.1 Rent Payments. From and after the Commencement Date Subtenant
shall pay to Sublandlord as Base Rent for the Subleased Premises during the Term
the following sums:
Period Base Rent
------ ---------
August 15, 1999 -- August 14, 2000: $34,913.33 per month
August 15, 2000 -- August 14, 2001: $35,786.16 per month
August 15, 2001 -- August 14, 2002: $36,680.81 per month
August 15, 2002 -- August 14, 2003: $37,597.83 per month
August 14, 2003 -- November 29, 2003: $38,537.78 per month
If the Term does not end on the last day of a month, the Base Rent and
Additional Rent (hereinafter defined) for that partial month shall be prorated
by multiplying the monthly Base Rent and Additional Rent by a fraction, the
numerator of which is the number of days of the
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partial month included in the Term and the denominator of which is the total
number of days in the full calendar month. All Rent (hereinafter defined as Base
Rent and Additional Rent) shall be payable in lawful money of the United States,
by regular bank check of Subtenant, to Sublandlord at the address stated herein
or to such other persons or at such other places as Sublandlord may designate in
writing. Upon execution of this Sublease, Subtenant shall pay the rent for the
first month of the term in the amount of $34,913.33.
3.2 Electrical. Commencing as of the Commencement Date, in addition
to the Base Rent payable hereunder, Subtenant, as Additional Rent, shall pay
$3.00 per rentable square foot of the Subleased Premises per annum (i.e.,
$2,618.50 per month) for electrical charges, which shall be payable monthly.
3.3 Taxes. Commencing as of the Commencement Date, in addition to
the Base Rent payable pursuant to Section 3.1 above, Subtenant, as Additional
Rent, shall pay the Taxes owed by Sublandlord under the Master Lease (except
that the Base Tax shall be modified to be the Taxes paid during the 1999/2000
fiscal tax year), which shall be payable by Subtenant as and when owed by
Sublandlord under the Master Lease.
4. Use and Occupancy.
4.1 Use. The Subleased Premises shall be used for general office
use, and for no other purpose.
4.2 Compliance with Master Lease.
(a) Subtenant agrees that it will occupy the Subleased Premises
in accordance with the terms of the Master Lease and will not suffer to be done
or omit to do any act which will result in a violation of or a default under any
of the terms and conditions of the Master Lease, including, without limitation,
surrendering possession of the Subleased Premises to Sublandlord no later than
the expiration or termination date of the Master Lease, or render Sublandlord
liable for any damage, charge or expense thereunder. Subtenant further covenants
and agrees to indemnify Sublandlord against and hold Sublandlord harmless from
any claim, demand, action, proceeding, suit, liability, loss, judgment, expense
(including attorneys fees) and damages of any kind or nature whatsoever arising
out of, by reason of, or resulting from, Subtenant's failure to perform or
observe any of the terms and conditions of the Master Lease (to the extent that
Subtenant is obligated hereby to perform such matters) or this Sublease. Any
other provision in this Sublease to the contrary notwithstanding, Subtenant
shall pay to Sublandlord as Rent hereunder any and all sums which Sublandlord
may be required to pay the Landlord arising out of a request by Subtenant for
additional Building services from Landlord (e.g. charges associated with
after-hour HVAC usage and overstandard electrical charges).
(b) Subtenant agrees that Sublandlord shall not be required to
perform any of the covenants, agreements and/or obligations of Landlord under
the Master Lease and, insofar as any of the covenants, agreements and
obligations of Sublandlord hereunder are required to be performed under the
Master Lease by Landlord thereunder, Subtenant acknowledges and agrees that
Sublandlord shall be entitled to look to Landlord for such performance.
Sublandlord shall not be responsible for any failure or interruption, for any
reason
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whatsoever, of the services or facilities that may be appurtenant to or supplied
at the Building by Landlord or otherwise, including, without limitation, heat,
air conditioning, ventilation, life-safety, water, electricity, elevator service
and cleaning service, if any; and no failure to furnish, or interruption of, any
such services or facilities shall give rise to any (i) abatement, diminution or
reduction of Subtenant's obligations under this Sublease, or (ii) liability on
the part of Sublandlord. Notwithstanding the foregoing, Sublandlord shall
promptly take such action as may reasonably be indicated, under the
circumstances, to secure such performance upon Subtenant's request to
Sublandlord to do so and shall thereafter diligently prosecute such performance
on the part of Landlord.
5. Master Lease and Sublease Terms.
5.1 Subtenant acknowledges that Subtenant has reviewed and is familiar
with all of the terms, agreements, covenants and conditions of the Master Lease.
5.2 This Sublease is and shall be at all times subject and subordinate to
the Master Lease.
5.3 The terms, conditions and respective obligations of Sublandlord and
Subtenant to each other under this Sublease shall be the terms and conditions of
the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event the terms of the Sublease
document shall control over the Master Lease. Therefore, for the purposes of
this Sublease, wherever in the Master Lease the word "Landlord" is used it
shall be deemed to mean the Sublandlord herein and wherever in the Master Lease
the word "Tenant" is used it shall be deemed to mean the Subtenant herein. The
time limits contained in the Master Lease for the giving of notices, making of
demands or performing of any act, condition or covenant on the part of the
tenant thereunder, or for the exercise by the tenant thereunder of any right,
remedy or option, are changed for the purposes of incorporation herein by
reference by shortening the same in each instance by three days, so that in each
instance Subtenant shall have three days less time to observe or perform
hereunder than Sublandlord has as the tenant under the Master Lease. The time
limits contained in the Master Lease for the giving of notices, making of
demands or performing of any act, condition or covenant on the part of Landlord,
or for the exercise by Landlord of any right, remedy or option, are changed for
the purposes of incorporation herein by reference by doubling the same in each
instance, so that in each instance Sublandlord shall have twice as much time to
observe or perform hereunder than Landlord has under the Master Lease. Any
non-liability, release, indemnity or hold harmless provision in the Master Lease
for the benefit of Landlord that is incorporated herein by reference, shall be
deemed to inure to the benefit of Sublandlord, Landlord, and any other person
intended to be benefitted by said provision, for the purpose of incorporation by
reference in this Sublease. Any right of Landlord under the Master Lease of
access or inspection and any right of Landlord under the Master Lease to do work
in the Master Lease Premises or in the Building and any right of Landlord under
the Master Lease in respect of rules and regulations, which is incorporated
herein by reference, shall be deemed to inure to the benefit of Sublandlord,
Landlord, and any other person intended to be benefitted by said provision, for
the purpose of incorporation by reference in this Sublease.
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5.4 For the purposes of incorporation herein, the terms of the Master
Lease are subject to the following additional modifications:
(a) In all provisions of the Master Lease (under the terms
thereof and without regard to modifications thereof for purposes of
incorporation into this Sublease) requiring the approval or consent of Landlord,
Subtenant shall be required to obtain the approval or consent of both
Sublandlord and Landlord (subject to the duties assumed hereunder on the part of
Sublandlord to obtain or participate in obtaining consent form Landlord).
(b) In all provisions of the Master Lease requiring Tenant to
submit, exhibit to, supply or provide Landlord with evidence, certificates, or
any other matter or thing, Subtenant shall be required to submit, exhibit to,
supply or provide, as the case may be, the same to both Landlord and
Sublandlord. In any such instance, Sublandlord shall determine if such evidence,
certificate or other matter or thing shall be satisfactory.
(c) Sublandlord shall have no obligation to restore or rebuild
any portion of the Sublease Premises after any destruction or taking by eminent
domain.
(d) In all provisions of the Master Lease requiring Tenant to
designate Landlord as an additional or named insured on its insurance policy,
Subtenant shall be required to so designate Landlord and Sublandlord on its
insurance policy.
5.5 Notwithstanding the terms of Section 5.3 above, Subtenant shall
have no rights nor obligations under the following parts, Sections and Exhibits
of the Master Lease: 1.01, 2, 24, 31, 40 and Schedule B.
5.6 During the Term and for all periods subsequent thereto with
respect to obligations which have arisen prior to the termination of this
Sublease, Subtenant agrees to perform and comply with, for the benefit of
Sublandlord and Landlord, the obligations of Sublandlord under the Master Lease
which pertains to the Subleased Premises and/or this Sublease, except for those
provisions of the Master Lease which are directly contradicted by or in
contravention of this Sublease, in which event the terms of this Sublease
document shall control over the Master Lease. Notwithstanding the foregoing,
Subtenant's financial responsibilities hereunder shall be determined wholly by
the terms and conditions of this Sublease, and Subtenant shall not under any
circumstances become liable or responsible for meeting Sublandlord's financial
or other obligations under the Master Lease.
6. Termination of Master Lease. If for any reason the term of the Master
Lease shall terminate prior to the scheduled Expiration Date, this Sublease
shall thereupon be terminated and Sublandlord shall not be liable to Subtenant
by reason thereof unless (i) Subtenant shall not then be in default hereunder
beyond any applicable notice and cure period and (ii) such termination shall
have been effected because of the breach or default of Sublandlord under the
Master Lease or by reason of the voluntary termination or surrender of the
Master Lease by Sublandlord.
7. Indemnity.
7.1 Subtenant shall indemnify, defend and hold harmless Sublandlord
from and against all losses, costs, damages, expenses and liabilities,
including, without limitation,
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reasonable attorneys' fees and disbursements, which Sublandlord may incur or pay
out (including, without limitation, to the landlord under the Master Lease) by
reason of (i) any accidents, damages or injuries to persons or property
occurring in the Subleased Premises (unless the same shall have been caused by
Sublandlord's negligence or wrongful act or the negligence or wrongful act of
the landlord under the Master Lease), (ii) any breach or default hereunder on
Subtenant's part (provided, that any applicable notice has been given, and any
applicable cure period has expired without cure by Subtenant), (iii) any work
done after the date hereof in or to the Subleased Premises except if done by
Sublandlord or the landlord under the Master Lease, or (iv) any act, omission or
negligence on the part of Subtenant and/or its officers, partners, employees,
agents, Clients, invitees, or any person claiming through or under Subtenant.
7.2 Sublandlord shall not be liable for personal injury or property
damage to Subtenant, its officers, agents, employees, invitees, guests, Clients,
licensees or any other person which takes place in the Sublease Premises, unless
such injury or damage is caused by or results from Sublandlord's negligence,
willful wrongdoing, or breach of the provisions of this Sublease. Any property
of Subtenant kept or stored in the Sublease Premises shall be kept or stored at
the sole risk of Subtenant.
8. Consents.
8.1 Under the Master Lease, Sublandlord must obtain the consent of
Landlord to any subletting. This Sublease shall not be effective unless, on or
before July 30, 1999, Landlord signs and delivers to Sublandlord and Subtenant a
consent to this Sublease thereby giving Landlord's consent to this subletting.
Sublandlord shall use its best efforts to obtain such consent as soon as
possible.
8.2 In the event that Sublandlord defaults under its obligations to be
performed under the Master Lease, Sublandlord agrees to deliver to Subtenant a
copy of any such notice of default. Subtenant shall have the right to cure any
monetary default of Sublandlord described in any notice of default within ten
(10) days after service of such notice of default on Subtenant. If such default
is cured by Subtenant then Sublandlord shall reimburse Subtenant for such
amounts, within ten (10) days after notice and demand therefor from Subtenant to
Sublandlord, together with interest and a late fee at the interest rate and late
fee percentage specified in the Master Lease.
8.3 In any instance when Sublandlord's consent or approval is required
under this Sublease, Sublandlord's refusal to consent to or approve any matter
or thing shall be deemed reasonable if, among other matters, such consent or
approval is required under the provisions of the Master Lease incorporated
herein by reference but has not been obtained from Landlord. Except as otherwise
provided herein, Sublandlord shall not unreasonably withhold, or delay its
consent to or approval of a matter if such consent or approval is required under
the provisions of the Master Lease and Landlord has consented to or approved of
such matter.
9. Attorney's Fees. If Sublandlord or Subtenant brings an action to enforce
the terms hereof or to declare rights hereunder, the prevailing party shall be
entitled to its reasonable attorney's fees to be paid by the losing party as
fixed by the Court.
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10. Subtenant's Work.
10.1 Generally. Sublandlord shall deliver, and Subtenant shall
accept, possession of the Subleased Premises in their "AS IS" condition as the
Subleased Premises exists on the date hereof. Subtenant shall have the right to
use the existing furniture and telecommunications equipment that are in the
Subleased Premises at no additional cost, and shall at the end of the term of
the Sublease, shall return such furniture and equipment to Sublandlord in the
same condition as received.
10.2 As-Is. In making and executing this Sublease, Subtenant has
relied solely on such investigations, examinations and inspections as Subtenant
has chosen to make or has made and has not relied on any representation or
warranty concerning the Subleased Premises or the Building, except as expressly
set forth in this Sublease. Subtenant acknowledges that Sublandlord has afforded
Subtenant the opportunity for full and complete investigations, examinations and
inspections of the Subleased Premises and the common areas of the Building.
Subtenant acknowledges that it is not authorized to make or do any alterations
or improvements in or to the Subleased Premises except as permitted by the
provisions of this Sublease and the Master Lease and that upon termination of
this Sublease, Subtenant shall deliver the Subleased Premises to Sublandlord in
the same condition as the Subleased Premises were at the commencement of the
Term hereof, reasonable wear and tear excepted, with the exception that any
improvements constructed by Subtenant pursuant to the requisite approvals may
remain and need not be removed or restored, unless required under the Master
Lease.
10.3 Code-Required Work. If the performance of the Subtenant
Improvements within the Subleased Premises "triggers" a requirement for
code-related upgrades to or improvements of the Master Lease Premises or any
common areas, Sublandlord and Subtenant agree that Subtenant shall be
responsible for the additional cost of such code-required upgrade or
improvements.
11. Security Deposit.
11.1 Cash Deposit. Concurrently with the execution of this Sublease
by Subtenant, Subtenant shall deliver to Sublandlord as security for the
faithful performance of all of its obligations under this Sublease, a deposit in
the amount of $34,913.33 ("Deposit"). If Subtenant fails to pay rent or other
charges due under the Sublease, or otherwise defaults with respect to any
provision of the Sublease, Sublandlord may at its sole option apply or retain
all or any portion of the Deposit for the payment of any rent or other charges
in default or the payment of any other sum to which Sublandlord may become
entitled by Subtenant's default, or to compensate Sublandlord for any loss or
damage which Sublandlord may suffer thereby. If Sublandlord so uses or applies
all or any portion of the Deposit, then within ten (10) days after demand
therefor Subtenant shall deposit cash with Sublandlord in an amount sufficient
to restore the amount thereof, and Subtenant's failure to do so shall be a
material breach of the Sublease. Sublandlord's application or retention of the
Deposit shall not constitute a waiver of Subtenant's default to the extent that
the Deposit does not fully compensate Sublandlord for all losses or damages
incurred by Sublandlord in connection with such default and shall not prejudice
any other rights or remedies available to Sublandlord under the Sublease or by
law. Sublandlord shall not be required to keep the Deposit separate from its
general accounts. If Subtenant
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performs all of Subtenant's obligations under the Sublease, the Deposit, or so
much thereof as has not theretofore been applied by Sublandlord, shall be
returned, without payment of interest or other increment for its use, to
Subtenant (or, at Sublandlord's option, to the last assignee, if any, of
Subtenant's interest under the Sublease) within sixty (60) days after the later
of (i) expiration of the term of Sublease, or (ii) vacation of the Premises by
Subtenant. No trust relationship is created herein between Sublandlord and
Subtenant with respect to the deposit.
12. Notices: Any notice by either party to the other required, permitted
or provided for herein shall be valid only if in writing and shall be deemed to
be duly given only if (a) delivered personally, or (b) sent by means of Federal
Express, UPS Next Day Air or another reputable express mail delivery service
guaranteeing next day delivery, or (c) sent by United States Certified or
registered mail, return receipt requested, addressed (i) if to Sublandlord, at
the following addresses:
Yahoo! Inc.
0000 Xxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxx
and (ii) if the Subtenant, at the following addresses:
Vitamin Shoppe Industries, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
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or at such other address for either party as that party may designate by notice
to the other. A notice shall be deemed given and effective, if delivered
personally, upon hand delivery thereof (unless such delivery takes place after
hours or on a holiday or weekend, in which event the notice shall be deemed
given on the next succeeding business day), if sent via overnight courier, on
the business day next succeeding delivery to the courier, and if mailed by
United States certified or registered mail, three (3) business days following
such mailing in accordance with this Section.
13. Complete Agreement. There are no representations, warranties,
agreements, arrangements or understandings, oral or written, between the
parties or their representatives relating to the subject matter of this
Sublease which are not fully expressed in this Sublease. This Sublease cannot
be changed or terminated nor may any of its provisions be waived orally or in
any manner other than by a written agreement executed by both parties.
14. Interpretation. Irrespective of the place of execution or
performance, this Sublease shall be governed by and construed in accordance
with the laws of the State of California. If any provision of this Sublease or
the application thereof to any person or circumstance shall, for any reason and
to any extent, be invalid or unenforceable, the remainder of this Sublease and
the application of that provision to other persons or circumstances shall not
be affected but rather shall be enforced to the extent permitted by law. The
table of contents, captions, headings and titles, if any, in this Sublease are
solely for convenience of reference and
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shall not affect its interpretation. This Sublease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Sublease or any part thereof to be drafted. If any words or phrases
in this Sublease shall have been stricken out or otherwise eliminated, whether
or not any other words or phrases have been added, this Sublease shall be
construed as if the words or phrases so stricken out or otherwise eliminated
were never included in this Sublease and no implication or inference shall be
drawn from the fact that said words or phrases were so stricken out or otherwise
eliminated. Each covenant, agreement, obligation or other provision of this
Sublease shall be deemed and construed as a separate and independent covenant of
the party bound by, undertaking or making same, not dependent on any other
provision of this Sublease unless otherwise expressly provided. All terms and
words used in this Sublease, regardless of the number or gender in which they
are used, shall be deemed to include any other number and any other gender as
the context may require. The word "person" as used in this Sublease shall mean a
natural person or persons, a partnership, a corporation or any other form of
business or legal association or entity.
15. Counterparts. This Sublease may be executed in separate counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same instrument. This Sublease shall be fully executed
when each party whose signature is required has signed and delivered to each of
the parties at least one counterpart, even though no single counterpart contains
the signatures of all parties hereto.
IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease as of
the day and year first above written.
SUBLANDLORD: SUBTENANT:
YAHOO!INC. VITAMIN SHOPPE INDUSTRIES, INC.
By: ________________________________ By: __________________________________
Print Name: ________________________ Print Name: __________________________
Title: _____________________________ Title: _______________________________
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