Exhibit 10.35
AGREEMENT OF SUBLEASE
Between
XXXXXX XXXXXXX & COMPANY, INC., Sublessor
And
GP STRATEGIES CORPORATION, Sublessee
Sublet Premises: Portion of 4th Floor at 000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx
Dated December __, 2002
SUBLEASE
THIS SUBLEASE (this "Sublease") is made as of the _____ day of
_______________, 2002, by and between XXXXXX XXXXXXX & COMPANY, INC., a New York
corporation, having an address at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx,
00000 ("Sublessor") and GP STRATEGIES CORPORATION, a Delaware corporation,
having an address at 0 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx, 00000
("Sublessee").
Background Facts
A. By Lease Agreement dated as of September 21, 2001 (the "Original
Lease"), as modified by that certain First Amended Agreement dated as of
February, 2002 (the "First Amendment"), both by and between Xxxxxxxxx Properties
I Corporation, a New York corporation ("Overlandlord") and Sublessor (with the
Original Lease, including all exhibits and schedules thereto, as modified by
that certain First Amendment, and as may also hereafter be amended and
supplemented from time to time in accordance with the terms hereof, being
referred to hereinafter as the "Xxxxxxxxx"), Overlandlord leased to Sublessor
certain space (the "Original Premises"), as more accurately described in the
Xxxxxxxxx, within the building located at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxx Xxxx (the "Building").
B. Sublessor has delivered to Sublessee, and Sublessee hereby
acknowledges receipt of, a copy of the Xxxxxxxxx.
C. Sublessee desires to now sublease from Sublessor a portion of the
Original Premises within the Building consisting of a portion of the fourth
(4th) floor containing approximately 10,312 rentable square feet (the "Sublet
Premises"), as more accurately described and set forth on Exhibit "A" attached
to this Sublease, and to enter into this Sublease upon the terms, covenants and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, it is agreed as follows:
Terms and Conditions
1. Background Facts. The parties acknowledge that the above Background
Facts are true and correct and are hereby made a part of this Sublease.
2. Sublease Term. (a) Sublessor hereby subleases to Sublessee, and
Sublessee hereby hires from Sublessor, during the "Sublease Term" (as defined
below), the Sublet Premises upon the terms, covenants and conditions hereinafter
contained, and subject and subordinate in all respects to the Xxxxxxxxx.
Unless otherwise authorized by Sublessor, Sublessee may not occupy all
or any part of the Sublet Premises prior to the date upon which the
"Overlandlord Consent" (as defined below) is delivered.
(b) The term of this Sublease (the "Sublease Term") shall commence on
the earlier to occur of (i) the date Sublessee, or any party claiming by or
through Sublessee, occupies all, or any part, of the Sublet Premises, or (ii)
the date the Overlandlord Consent is obtained (with such earlier date being
referred to as the "Sublease Commencement Date") and shall end on the date (the
"Sublease Expiration Date") which shall be the earlier of (a) the end of the
forty-eighth (48th) month following the date upon which the Sublease
Commencement Date occurs, or (b) the earlier expiration or earlier termination
or cancellation of the Xxxxxxxxx, or (c) the date upon which the Sublease Term
may sooner expire or be cancelled or terminated pursuant to any of the terms,
covenants or conditions of this Sublease or pursuant to law. Notwithstanding
anything to the contrary which may be contained elsewhere in this Sublease,
under no circumstances shall Sublessee have the right to renew or extend the
Sublease Term or have any right or option to lease or sublease any additional
space.
3. Basic Rent/Additional Rent.
(a) Sublessee covenants to pay an annual fixed rent (the "Basic Rent")
equal to Two Hundred Sixteen Thousand Five Hundred Fifty-Two Dollars And No/100
($216,552.00) ($18,046.00 per month) for and during the period commencing on the
Sublease Commencement Date and continuing thereafter throughout the Sublease
Term, which annual Basic Rent shall be payable by Sublessee to Sublessor in
equal monthly installments, in advance, on the first day of each and every
calendar month during the Sublease Term without notice, demand, offset,
reduction or abatement (other than as expressly provided in Subsection (e)
below), except that the first monthly installment of Basic Rent due shall be
paid on the date that Sublessee executes this Sublease.
(b) Sublessee also covenants to pay to Sublessor 31.0% of the "Taxes"
payable under the Xxxxxxxxx during the Sublease Term and 31.0% of the "Cost of
Operation" payments payable under the Xxxxxxxxx during the Sublease Term, all
within the time period(s) set forth in this Sublease, except that for the
purpose of calculating Sublessee's share of the payment for Taxes, Sublessee's
"Tax Base Year" shall be deemed to be the fiscal tax year commencing July 1,
2002 and ending June 30, 2003. Sublessee's obligations with respect to these
payments shall expressly survive the termination or expiration of this Sublease
and, in no event, shall Sublessor's failure to timely insist or demand any such
payment(s) in one or more instances ever act as a waiver of any such payment(s)
obligation. Anything to the contrary notwithstanding, in the event the space
demised under the Xxxxxxxxx shall be enlarged or reduced during the Sublease
Term, there shall be an equitable recalculation of the Sublessee's percentage
set forth in this Subsection 3(b) to reflect such change in the ratio between
the area of the Sublet Premises and the area of the space demised under the
Xxxxxxxxx from time to time.
Sublessee shall pay the payments discussed in subsection (b) above
within ten (10) days after the presentation of statements therefor by Sublessor
to Sublessee (together with, if applicable, a copy of the corresponding
statement from Overlandlord to Sublessor). Any failure or delay by Sublessor in
billing any sum set forth in this Paragraph 3 shall not constitute a waiver of
Sublessee's obligation to pay the same in accordance with the terms of this
Sublease. In the event that Sublessor receives a refund (or credit against
future payments) of any Taxes or Cost of Operations Payments made already by
Sublessee pursuant to this Sublease which relate to the Sublease Term, Sublessor
will promptly pay to Sublessee 31.0% of such portion of such applicable refund
(or credit), which obligation shall expressly survive the termination or
expiration of this Sublease.
(c) All sums of money (except for Basic Rent) which shall become due
from and payable by Sublessee hereunder shall be deemed "Additional Rent." All
Basic Rent and Additional Rent shall be paid to Sublessor at its main office at
000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, Attn: Accounting Dept., 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, without
notice, demand, offset, reduction or abatement whatsoever (other than as
expressly provided in Subsection (e) below).
(d) If the Sublease Commencement Date is not the first (lst) day of a
calendar month, the monthly installment of Basic Rent payable for the month in
which the Sublease Commencement Date occurs shall be prorated.
(e) In the event that Sublessor receives a reduction or abatement in
"Fixed Minimum Rent" or Additional Rent under the Xxxxxxxxx which relates to the
Sublet Premises during the Sublease Term, Sublessee shall be entitled to a
corresponding reduction or abatement in Basic Rent or Additional Rent hereunder.
4. Xxxxxxxxx. (a) Sublessee hereby acknowledges that it has reviewed a
copy of the Xxxxxxxxx, a copy of which is attached hereto as Exhibit "B" (which
by this reference is made a part hereof), and is fully familiar with the
provisions thereof. During the Sublease Term, Sublessee shall perform, observe,
comply with and be subject to, all of the terms, covenants, and conditions of
the Xxxxxxxxx on the part of the "Tenant" therein named to be performed with
respect to the Sublet Premises, and all of the terms, covenants and conditions
of the Xxxxxxxxx, except to the extent that the same are inconsistent with, or
modified by the terms of this Sublease, are hereby incorporated herein by
reference with the same force and effect as if herein set forth in full, and
neither Sublessor nor Sublessee shall do or permit anything to be done which
would result in a default under or cause the Xxxxxxxxx to be terminated or
forfeited (and wherever the terms "Tenant", "Landlord", "this Lease" and
"Demised Premises" occur in the Xxxxxxxxx, the same shall be deemed to refer to
Sublessee, Sublessor, this Sublease and the Sublet Premises, respectively,
herein). Nothing set forth above, however, shall preclude Sublessor from
exercising any of its express rights set forth in the Xxxxxxxxx. Notwithstanding
the foregoing, and without limiting subsection (b) below, the following numbered
Articles and Sections of the Xxxxxxxxx are expressly deleted for the purposes of
incorporation by reference in this Sublease: 4; 5; 11; 14; 21.01; 22; 25.02; 27;
28; 32; 33; and all of the provisions of the First Amendment.
(b) With respect to the Sublet Premises, Sublessee shall be entitled to
receive from Overlandlord the same rights as Sublessor is entitled, as such
tenant, under the Xxxxxxxxx; provided, however, in no event shall Sublessee ever
be entitled to (i) modify or terminate the Xxxxxxxxx, or otherwise, or any part
thereof, (ii) exercise any rights under the Xxxxxxxxx which would or could in
any way increase Sublessor's obligations or liability, or decrease Sublessor's
rights, under the Xxxxxxxxx, without first obtaining Sublessor's written consent
(which may be given or withheld in Sublessor's sole discretion), (iii) exercise,
or be entitled to any of, "Tenant's" rights (all of which rights are hereby
reserved by Sublessor) (a) pursuant to the Xxxxxxxxx to terminate the Xxxxxxxxx,
and/or to extend the term, and/or with respect to the expansion, as applicable
(including, without limitation, pursuant to Article 32 and/or Article 33 of the
Xxxxxxxxx), or (b) to increase the current electric requirements at the Sublet
Premises, or exercise any other "Tenant" rights, pursuant to Article 21 of the
Xxxxxxxxx, or otherwise (other than as expressly provided in Article 3(e)
above), or (c) to install, maintain and operate a supplementary air conditioning
system or to tap into any condenser water line (if any), or otherwise, or (d)
with respect to any signage or listing rights pursuant to the Xxxxxxxxx
(including without limitation, Section 18.04 of the Xxxxxxxxx) provided,
however, to the extent permitted by the Overlandlord, Sublessee shall be
entitled to ten (10) lines on the Building's directory and wall signage (whose
style and content is approved in advance by Sublessor and Overlandlord) at the
entrance to the Sublet Premises, or (e) pursuant to Section 26.02 of the
Xxxxxxxxx with respect to parking (except that Sublessee shall be permitted to
use twenty (20) parking spaces in the common parking lot in accordance with
Section 26.02 to the extent permitted by the Overlandlord under the Xxxxxxxxx),
(iv) receive any abatement, free rent, or allowance (other than as expressly
provided in Article 3(e) above), and/or (v) receive any reimbursements, credits
or payments by Overlandlord under the Xxxxxxxxx which are not exclusively
attributable to actual payments made by Sublessee during Sublessee's period of
occupancy during the Sublease Term. To the extent Overlandlord fails or refuses
to perform its obligations under the Xxxxxxxxx, or Overlandlord breaches or has
breached any of its representations, warranties or covenants under the
Xxxxxxxxx, Sublessor shall not be obligated to perform such obligations and
shall not be liable or responsible for such breaches.
(c) Notwithstanding anything contained in this Sublease to the
contrary, if there exists a breach by Sublessor of any of its obligations under
this Sublease, and concurrently a corresponding breach by Overlandlord under the
Xxxxxxxxx of its obligations under the Xxxxxxxxx, then, and in any such event,
Sublessee's sole remedy against Sublessor in the event of any breach of
Sublessor's obligations under this Sublease shall be the right to pursue a claim
in the name of Sublessor against Overlandlord (provided Sublessee has first
obtained Sublessor's written consent (not to be unreasonably withheld) and has
also provided Sublessor with written notice and 30-days to cure such Sublessor
default under this Sublease), and Sublessor agrees that it will cooperate with
Sublessee in the pursuit of such claim provided, however, that (i) such claim
shall be prosecuted at Sublessee's sole cost and expense (and without cost or
expense to Sublessor), (ii) Sublessee shall indemnify and hold harmless
Sublessor from any and all costs, expenses, claims, and liabilities (including,
without limitation, reasonable attorney's fees) which may arise out of or relate
to such claim, (iii) Sublessee shall not have any claim against Sublessor by
reason of the Overlandlord's failure or refusal to comply with any of the
provisions of the Xxxxxxxxx, (iv) this Sublease shall remain in full force and
effect during the Sublease Term (subject to the provisions hereof) as long as
the Xxxxxxxxx is in full force and effect, notwithstanding the Overlandlord's
failure or refusal to comply with any such provisions of the Xxxxxxxxx, and (v)
Sublessee shall pay all Basic Rent and Additional Rent provided for herein
without notice, demand, abatement, reduction or setoff whatsoever (other than as
expressly provided in Article 3(e) above).
(d) In all provisions of the Xxxxxxxxx requiring the approval or
consent of the "Landlord", Sublessee shall be required to obtain the approval or
consent of the Overlandlord and Sublessor (and, after proper receipt of written
request for approval by Sublessee, Sublessor shall request the approval of the
Overlandlord to the extent Sublessor's consent would otherwise be forthcoming);
in all provisions of the Xxxxxxxxx requiring that notice be given to the
"Landlord", Sublessee shall be required to give notice to the Overlandlord and
to Sublessor; and in all provisions of the Xxxxxxxxx requiring "Tenant" to pay
the costs and expenses of the "Landlord" (other than any costs related to
obtaining the "Overlandlord Consent," as defined below), Sublessee shall be
required to pay the costs and expenses of the Overlandlord and Sublessor. The
time limits provided in the Xxxxxxxxx for the giving of notice, making demands,
performance of any act, condition or covenants, or the exercise of any right,
remedy or option, are changed for the purpose of this Sublease, by lengthening
or shortening the same in each instance by five (5) days, as appropriate, so
that notices may be given, demands made, or any act, condition or covenants
performed, or any right, remedy or option exercised, by Sublessor or Sublessee,
as the case may be (and each party covenants that it will do so) within the time
limit relating thereto contained in the Xxxxxxxxx.
(e) Sublessor shall not enter into any modification or amendment with
respect to the Sublet Premises to the Xxxxxxxxx, or take any other affirmative
action with respect to the Sublet Premises which results in the modification,
surrender or cancellation of the Xxxxxxxxx, if such modification, surrender or
cancellation decreases any of Sublessee's rights under this Sublease, or
increases any of Sublessee's obligations or remedies under this Sublease, to a
material degree, without the prior written consent of the Sublessee, which
consent shall not be unreasonably withheld, conditioned or delayed. Without
limiting the above, Sublessee expressly acknowledges, however, that its consent
shall never be required in connection with an amendment to the Xxxxxxxxx which
modifies the size of the Original Premises (and the terms related thereto). Any
modification, amendment, agreement, surrender or cancellation made without such
consent shall have no effect on the rights or obligations of the Sublessee under
this Sublease.
(f) Sublessor shall provide copies of all correspondence or statements
delivered to or received from Overlandlord in connection with the Xxxxxxxxx
which are applicable to the Sublet Premises, if any, hereafter occurring under
the Xxxxxxxxx or this Sublease (except with respect to payment of Basic Rent).
(g) Sublessor hereby represents to Sublessee that (i) the copy of the
Xxxxxxxxx attached hereto as Exhibit "B" is true, correct and complete in all
respects and has not been modified or amended in any way, (ii) the Xxxxxxxxx is
in full force and effect, and (iii) Sublessor has received no written notice of
default from the Overlandlord which default remains uncured on the date hereof.
(h) Sublessor covenants throughout the term of this Sublease to (i)
timely pay when due all rent payable by Sublessor under the Xxxxxxxxx, and (ii)
perform its covenants and obligations under the Xxxxxxxxx which are not
otherwise to be performed by Sublessee under this Sublease.
5. Inspection. Sublessee acknowledges that it has made a full and
complete inspection of the Sublet Premises and is thoroughly familiar with the
condition thereof. Sublessee shall accept possession and take occupancy of the
Sublet Premises on the Sublease Commencement Date, in its then "As Is" condition
and the taking of occupancy or possession of the whole or any part of the Sublet
Premises, by or on behalf of Sublessee shall be conclusive evidence, as against
Sublessee, that at the time such possession or occupancy was so taken, Sublessee
accepted possession thereof and that the Sublet Premises were in good and
satisfactory condition.
6. As Is. Sublessee hereby acknowledges and agrees that Sublessor is
not responsible for any construction or alterations to the Sublet Premises
or otherwise and, in this regard, Sublessee is taking the Sublet Premises in "AS
IS" condition.
Once the Commencement Date is established, each party shall promptly
execute an instrument upon demand by the other party confirming such date.
7. Electricity Amount/ Additional HVAC.
(a) Commencing on the Sublease Commencement Date and continuing until
the Sublease Expiration Date, Sublessee shall also pay to Sublessor, as
Additional Rent, an amount ("Electricity Amount") equal to Twenty Five Thousand
Seven Hundred Eighty Dollars And No/100 Dollars ($25,780.00) per annum (as such
sum may from time to time be increased, as provided below), which payments shall
be made to Sublessor, as Additional Rent, in equal monthly installments on the
first day of every month, or as may otherwise be directed by Sublessor, without
notice, demand, offset, reduction or abatement, as indicated below, which the
parties have agreed is the reasonable value to Sublessee of normal electric
service for lighting and normal use of ordinary electric fixtures, appliances
and normal office equipment during "Regular Business Hours" (as defined in the
Xxxxxxxxx) ("Operating Hours") (excluding all periods in which electric service
is not provided pursuant to the Xxxxxxxxx and excluding all local, state and
federal holidays).
Sublessor shall not be liable in any way to Sublessee for any
interruption, failure or defect in supply or character of electric current
furnished to the Sublet Premises, or for any other reason. Sublessee shall use
said electric current only for lighting and in accordance with the terms of the
Xxxxxxxxx, all of which are hereby incorporated, and insofar as the facilities
are not burdened thereby and applicable laws and insurance regulations permit
and the same are permitted under the Xxxxxxxxx, for operation of ordinary
electric fixtures, appliances and office equipment as is normally used in
connection with the operation of a business office during such Operating Hours.
Sublessee's use of electric current in the Sublet Premises shall not at
any time exceed the capacity of any of the electrical conductors and equipment
in or otherwise serving the Sublet Premises or be in violation of the provisions
set forth in the Xxxxxxxxx. Sublessee shall not make or perform, or permit the
making or performing of, any alterations to wiring installations or other
electrical facilities in or serving the Sublet Premises or any additions to the
business machines, office equipment or other appliances in the Sublet Premises
which utilize electrical energy.
If any tax is imposed upon Sublessor or Overlandlord in connection with
the furnishing of electric current to Sublessee by any federal, state or local
government subdivision or authority, or as provided in the Xxxxxxxxx, Sublessee
shall also pay such party an amount equal to such tax, where permitted by law,
upon demand.
If, subsequent to the Sublease Commencement Date, the public utility
rate schedule or any portion of the charge for the supply of electric current to
the Building is increased, or such rate schedule is superseded by another rate
schedule, or if a survey is conducted or a consultant obtained pursuant to the
terms of the Xxxxxxxxx which results, in any such event, and regardless of the
reason (other than as a result of increased consumption or demand caused solely
by Sublessor at the Original Premises), in an increase payable by "Tenant"
pursuant to the terms of the Xxxxxxxxx, or otherwise, then, in any such event,
the Electricity Amount shall be increased by the percentage of increase in the
cost for purchasing electricity for the Building (or by the percentage increase
attributable to the survey or consultant, as applicable), provided, however,
that in no event shall the Electricity Amount ever be less than $2.50 per
rentable square foot per annum. Whenever the amount of any such adjustment is so
determined, the parties shall execute and exchange an agreement supplementary
hereto to reflect such adjustment in the amount of the Electricity Amount
payable hereunder, effective from the effective date of such increase in such
rate schedule or charge, but such adjustment shall be effective from such date
whether or not a supplementary agreement is executed.
In addition, the Electricity Amount is based upon Sublessor's
assumption that Sublessee will use electrical energy only during Operating Hours
in connection with lighting and normal use of ordinary electric fixtures,
appliances and office equipment at the Sublet Premises. Accordingly, if
Sublessee makes material use of electricity during hours other than Operating
Hours, or in connection with other than ordinary electric fixtures, appliances
and normal office equipment at the Sublet Premises, the Electricity Amount shall
from time to time be equitably adjusted to reflect the resulting increase in
such use. Sublessor shall furnish a statement of Sublessor's determination as to
the amount of the adjustment, and the same shall become binding upon the parties
unless, within twenty-five (25) days, Sublessee notifies Sublessor that it
disputes the amount of such adjustment, in which event the parties shall in good
faith make reasonable attempts to come to agreement, and, if Sublessor and
Sublessee cannot agree thereon, the amount of such adjustment shall be
determined, based on standard practices, by an independent electrical consultant
selected by Sublessor (acting reasonably). Sublessee shall permit such
consultant to have access to the Sublet Premises and Sublessee's electrical
facilities for the foregoing purpose at all reasonable times. The fee of such
consultant shall be paid by Sublessee unless such consultant finds that
Sublessee's use does not justify an increase in the Electricity Amount, in which
case the fee shall be paid by Sublessor. When the amount of such adjustment is
so determined, Sublessor and Sublessee shall execute a supplementary agreement
to reflect such adjustment, which shall be effective from the date of the
increase of such usage as determined by such electrical consultant and be made
retroactively, if necessary. Any adjustment shall be effective even if such
supplementary agreement is not executed and delivered. Pending the determination
of the adjustment, Sublessee shall pay to Sublessor the amount of such
adjustment as specified in Sublessor's statement.
Finally, Sublessor, in its sole discretion, shall have the option,
subject in all respects to any approval rights under the Xxxxxxxxx which
Overlandlord has, of installing submeters at Sublessor's expense to measure
Sublessee's consumption of electrical energy. If Sublessor exercises such
option, the Electricity Amount payment shall be discontinued effective as of the
commencement of the operation of such submeters and, commencing at such time,
Sublessee shall pay to Sublessor, as Additional Rent, on demand made from time
to time but no more frequently than monthly, for its use of electrical energy in
the Sublet Premises, based upon both consumption and demand factors, at the
seasonally adjusted rate then payable by Sublessor to the utility company, plus
an amount equal to five (5%) percent thereof to reimburse Sublessor for its
overhead, administration and supervision in connection therewith. For the
purpose of this Section, the rate to be paid by Sublessee in the event of
submetering shall include any taxes, energy charges, demand charges, fuel
adjustment charges, rate adjustment, charges, or other charges actually imposed
in connection therewith. If any tax is imposed upon Sublessor's receipts from
the sale or resale of electrical energy to Sublessee by any federal, state, city
or local authority, the share of such tax allocable to the electrical energy
service received by Sublessee shall be passed on to, and paid by, Sublessee, as
Additional Rent, if and to the extent permitted by law.
(b) In addition, if Sublessee wishes for HVAC to be provided to the
Sublet Premises (which shall be at temperatures and in such amounts as provided
in the Xxxxxxxxx and, also, subject in all respects to the terms of the
Xxxxxxxxx, as well as Section 12 of this Sublease below) during hours other than
"Regular Business Hours" (as such term is defined in the Xxxxxxxxx), Sublessee
shall comply with such advance notice and other requirements as may be set forth
in the Xxxxxxxxx and/or which Sublessor (acting reasonably) and/or Overlandlord
may from time to time impose. In addition to all other sums payable by Sublessee
under this Sublease, Sublessee shall also pay to Sublessor, as Additional Rent,
an amount ("Additional HVAC Amount") equal to the amount payable by "Tenant"
under the Xxxxxxxxx (including, without limitation, Article 18 of the Xxxxxxxxx)
(plus all applicable taxes and charges) to the utility company, Overlandlord, or
any other party in connection with HVAC being provided to the Sublet Premises
outside of Regular Business Hours. Such rate may be adjusted upward by Sublessor
from time to time to account for increases in rates passed through to Sublessor
pursuant to the Xxxxxxxxx. Sublessor shall furnish a statement of Sublessor's
determination as to the amount of the payment or the adjustment. Sublessee's
obligations with respect to these payments shall expressly survive the
termination or expiration of this Sublease and, in no event, shall Sublessor's
failure to timely insist or demand any such payment(s) in one or more instances
ever act as a waiver of any such payment(s) obligation.
Sublessee shall pay Sublessor the Additional HVAC Amount payments
discussed above within five (5) days after such service was provided to
Sublessee or as may otherwise be directed by Sublessor, without notice, demand,
offset, reduction or abatement. Any failure or delay by Sublessor in billing any
sum set forth in this Section shall not constitute a waiver of Sublessee's
obligation to pay the same in accordance with the terms of this Sublease. If any
tax is imposed upon Sublessor or Overlandlord in connection with the furnishing
of HVAC to Sublessee by any federal, state or local government subdivision or
authority, or as provided in the Xxxxxxxxx, Sublessee shall also pay such party
an amount equal to such tax, where permitted by law, upon demand.
Sublessee shall not make or perform, or permit the making or performing
of, any alterations to wiring installations or other HVAC facilities in or
serving the Sublet Premises. Sublessee further agrees that neither Sublessee,
nor its agents, employees, contractors or invitees shall at any time tamper
with, adjust or touch or otherwise in any manner affect such mechanical
installations or thermostat(s), if any.
8. Notices. Any notice, statement, demand or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Sublease or pursuant to any applicable law or
requirement of public authority, shall be in writing (whether or not so stated
elsewhere in this Sublease) and shall be delivered by (i) reputable overnight
courier, or (ii) by registered or certified mail, return receipt requested
addressed to the other party at the addresses (or fax numbers) set forth below:
If to Sublessor: Xxxxxx Xxxxxxx & Company, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx., General Counsel
Facsimile: (000) 000-0000
If to Sublessee: GP Strategies Corporation
0 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
With a copy to: Xxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
All notices, statements, demands or other communication shall be deemed
to have been given, rendered or made upon the first (1st) business day after
delivery to a reputable overnight courier service or upon the third (3rd) day
after so mailed. Either party may, by notice as aforesaid, designate a different
address or addresses for notices, statements, demand or other communications
intended for it.
9. Broker. Sublessor and Sublessee covenant, warrant and represent to
the other that there were no brokers or finders instrumental in consummating
this Sublease, except for Newmark & Company Real Estate, Inc. (the "Broker") and
that no conversations or negotiations were had by Sublessor or Sublessee with
any broker, other than the Broker, concerning the renting of the Sublet Premises
to the Sublessee. Sublessor will pay the Broker its commission pursuant to the
currently existing separate written agreement with Broker. Sublessee agrees to
indemnify and hold Sublessor harmless from and against (a) any and all claims
for brokerage commissions or fees by any person or company (other than the
Broker) which is based in whole or part on any dealings or communications by
Sublessee with such person or company, and (b) all expenses, including
reasonable attorneys' fees and court costs, arising out of any such claims.
Sublessor agrees to indemnify and hold Sublessee harmless from and against (x)
any and all claims for brokerage commissions or fees by any person or company
(including the Broker) which is based in whole or part on any dealings or
communications by Sublessor with such person or company, and (y) all expenses,
including reasonable attorneys' fees and court costs, arising out of any such
claims. The provisions of this Paragraph 9 shall survive the expiration or
termination of this Sublease.
10. Sublessee Default. In the event that Sublessee shall be in default
of any covenant of, or shall fail to honor or perform any obligation under, this
Sublease after the lapse of any applicable notice and grace periods, Sublessor
shall have available to it all of the remedies available under this Sublease, at
law and/or in equity, as well as all rights and remedies available to
Overlandlord under the Xxxxxxxxx in the event of a like default or failure on
the part of the "Tenant." In addition, Sublessor shall be entitled to receive
and/or to exercise any and all rights and remedies available to Overlandlord
under Paragraph 13 of the Xxxxxxxxx (i.e., concerning Bankruptcy), in connection
with a like or similar situation involving Sublessee.
11. No Recourse. No property or assets of any partner (general, limited
or otherwise), member, shareholder, officer, or director of Sublessor, disclosed
or undisclosed, shall be subject to levy, execution, or other enforcement
procedure for the satisfaction of Sublessee's remedies, and said parties shall
have no personal liability, under or with respect to this Sublease, the
relationship of Sublessor and Sublessee hereunder, or Sublessee's use or
occupancy of the Sublet Premises. Notwithstanding anything contained in this
Sublease or the Xxxxxxxxx to the contrary, Sublessee shall look solely to the
estate and interest of Sublessor in the Xxxxxxxxx (subject, however, to the
rights of the Overlandlord and the holder of any mortgage or the lessor under
any ground lease, now or hereafter affecting the Sublet Premises) for the
satisfaction of any right of Sublessee, for the collection of any judgment or
other judicial process or arbitration award requiring the payment of money by
Sublessor in the event of any default or breach by Sublessor under this Sublease
(provided, however, Sublessee shall be entitled to pursue collection against
Sublessor with respect to a final judgment which it may obtain against Sublessor
in connection with a default by Sublessor of Sublessor's obligations under this
Sublease, up to a maximum amount not to exceed, collectively, $100,000.00).
12. Services. Notwithstanding anything contained in this Sublease or in
the Xxxxxxxxx to the contrary, Sublessor shall have no obligation to maintain,
repair or restore, or make any alterations or improvements to, the Sublet
Premises under any circumstances. In addition, Sublessor shall not be required
to provide any services or do any act or thing or make any payment with respect
to the Sublet Premises, except as may be expressly provided in this Sublease.
Also, in addition to those limitations provided elsewhere in this Sublease,
Sublessor shall have no obligation whatsoever to provide utilities or services
to the Sublet Premises and shall have no liability whatsoever if utilities or
services are interrupted or not so provided.
13. Assignment, Subletting and Transfer.
(a) Sublessee, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Sublease, nor
underlet, nor suffer, nor permit the Sublet Premises or any part thereof to be
used or occupied by others, without the prior written consent of Sublessor in
each instance (which consent may be given or withheld in Sublessor's sole
discretion) and without also fully complying with the terms of and consents of
Overlandlord required by the Xxxxxxxxx. In addition, any proposed sublease shall
contain the condition and restriction that the sublease shall not be assigned,
encumbered or otherwise transferred or the subleased premises further sublet by
the sublessee in whole or in part, or any part thereof suffered or permitted by
the sublessee to be used or occupied by others, without the prior written
consent of Sublessor and Overlandlord in each instance. If this Sublease be
assigned, or if the Sublet Premises or any part thereof be underlet or occupied
by anybody other than Sublessee, Sublessor may, after default by Sublessee after
the lapse of any applicable notice and grace periods, and without limiting any
of Sublessor's rights under this Sublease, at law and/or in equity, collect rent
from the assignee, undertenant or occupant, and apply the net amount collected
to the rent herein reserved, but no assignment, underletting, occupancy or
collection shall be deemed a waiver of the provisions hereof, the acceptance of
the assignee, undertenant or occupant as tenant, or a release of Sublessee from
the further performance by Sublessee of covenants on the part of Sublessee
herein contained. The consent by Sublessor or Overlandlord to an assignment or
underletting shall not in any way be construed to relieve Sublessee from
obtaining the express consent in writing of Sublessor and Overlandlord (as
required by the Xxxxxxxxx) to any further assignment or underletting. In no
event shall any permitted sublessee assign or encumber its sublease or further
sublet all or any portion of its sublet space, or otherwise suffer or permit the
sublet space or any part thereof to be used or occupied by others, without
Sublessors and Overlandlord's (as required by the Xxxxxxxxx) prior written
consent in each instance, which consent may be given or withheld in such
parties' sole discretion.
Subject to any of Overlandlord's rights under the Xxxxxxxxx (whose
rights shall remain superior to the following), Sublessee acknowledges and
agrees that one hundred percent (100%) of any sums or any other economic
consideration received by Sublessee, or payable to Sublessee, as a result of any
assignment, subletting or transfer of this Sublease and/or the Sublessee's
interest in or occupancy to the Sublet Premises, or any party thereof, whether
denominated rent or otherwise (net of Sublessee's reasonable legal and brokerage
costs and expenses in connection with such assignment, sublease or transfer),
which exceed, in the aggregate, the total monthly sums which Sublessee is
obligated to pay Sublessor under this Sublease (pro rated as to any Sublease to
reflect obligations allocable to that portion of Sublet Premises subject to such
Sublease) shall be payable monthly to Sublessor, as Additional Rent, under this
Sublease without affecting or reducing any other obligation of Sublessee
hereunder and without offset, abatement, reduction or demand. Sublessor's
failure or delay in timely collecting or being paid any such sums shall never be
deemed a waiver of Sublessor's ongoing right to receive the same.
(b) Notwithstanding anything contained in this Article to the contrary,
but provided this Sublease is in full force and effect, without material or
monetary default by Sublessee after the lapse of time for notice and cure, and
subject to all of the applicable provisions of this Sublease and the Xxxxxxxxx
(which Xxxxxxxxx shall remain superior to this provision), Sublessee may,
without Sublessor's prior written consent, assign its entire interest in this
Sublease to an Affiliate, provided that (i) at least thirty (30) days prior to
the effective date of such assignment, Sublessee furnishes Sublessor with the
name of such proposed assignee, together with the certification of Sublessee,
and such other proof as Sublessor may reasonably request, that such proposed
assignee is an Affiliate, (ii) the proposed assignee has a financial worth of at
least Five Million And No/100 Dollars ($5,000,000.00), (iii) the purposes for
which such proposed assignee intends to use the Sublet Premises are uses
expressly permitted by this Sublease, (iv) Sublessee shall and will
automatically be and remain fully liable for the payment of all of the Basic
Rent and Additional Rent due and to become due under this Sublease both before
and after the date of the assignment, as well as for the performance of all
obligations under this Sublease both before and after the date of the
assignment, and Sublessee shall not be released from any of its obligations or
liabilities under this Sublease, and Sublessee (along with such assignee) shall
be fully responsible and liable for all acts or omissions of such proposed
assignee, or anyone claiming under or through Sublessee, or such proposed
assignee, (v) such transfer is not principally for the purpose of transferring
the leasehold estate created hereby, and (vi) such proposed assignee, as of the
effective date of such assignment, is an Affiliate of the named Sublessee. For
purposes of this subparagraph, the term "Affiliate" shall mean any entity
controlling, controlled by or under common control with the named Sublessee
hereunder which, for purposes hereof, shall mean (x) ownership by the named
Sublessee of more than 51% of the outstanding voting capital stock of a
corporation or more than 51% of the beneficial interests of any other entity and
(y) the ability to effectively control or direct the business decisions of such
corporation or entity.
(c) Notwithstanding anything contained in this Article to the contrary,
but provided this Sublease is in full force and effect, without material or
monetary default by Sublessee after the lapse of time for notice and cure, and
subject to all of the applicable provisions of this Sublease and the Xxxxxxxxx
(which shall remain superior to this provision), Sublessee may, without
Sublessor's prior written consent (but must still obtain Overlandlord's written
consent in advance), enter into an occupancy agreement for up to forty percent
(40%) of the Sublet Premises to the "Spin-Off" (as defined below), provided that
(i) at least fifteen (15) days prior to the effective date of such occupancy
agreement, Sublessee notifies Sublessor in writing, together with the
certification of Sublessee, and such other proof as Sublessor may reasonably
request, that such proposed occupant is the actual Spin-Off and meets the
requirements below, (ii) the purposes for which such Spin-Off intends to use the
Sublet Premises are uses expressly permitted by this Sublease, (iii) Sublessee
shall and will automatically be and remain fully liable for the payment of all
of the Basic Rent and Additional Rent due and to become due under this Sublease
both before and after the date of the occupancy agreement, as well as for the
performance of all obligations under this Sublease both before and after the
date of the occupancy agreement, and Sublessee shall not be released from any of
its obligations or liabilities under this Sublease, and Sublessee (along with
the Spin-Off) shall be fully responsible and liable for all acts or omissions of
such Spin-Off, or anyone claiming under or through Sublessee, or such Spin-Off,
(iv) such transfer is not principally for the purpose of transferring the
leasehold estate created hereby, (v) neither Sublessor or Overlandlord shall
ever have any liability to, nor obligations to, the Spin-Off, (vi) the Spin-Off
does not ever engage in, or take, any action which would cause either Sublessee
to be in default under this Sublease, or Sublessor to be in default under the
Xxxxxxxxx, (vii) such Spin-Off shall never have the right to transfer to any
other party any rights in, or to, that portion of the Sublet Premises which it
occupies, and (viii) such proposed occupancy agreement is with the named
Spin-Off. For purposes of this subparagraph, the term "Spin-Off" shall mean
National Patent Development Corporation, a Delaware corporation, which company
must at all times be a publicly traded company.
(d) Notwithstanding anything contained in this Article to the contrary,
but provided this Sublease is in full force and effect, without material or
monetary default by Sublessee after the lapse of time for notice and cure, and
subject to all of the applicable provisions of this Sublease and the Xxxxxxxxx
(which shall remain superior to this provision), Sublessee may, without
Sublessor's prior written consent (but must still obtain Overlandlord's written
consent in advance), enter into an occupancy agreement for up to ten percent
(10%) of the Sublet Premises to "Five Star" (as defined below), provided that
(i) at least fifteen (15) days prior to the effective date of such occupancy
agreement, Sublessee notifies Sublessor in writing, together with the
certification of Sublessee, and such other proof as Sublessor may reasonably
request, that such proposed occupant is Five Star and meets the requirements
below, (ii) the purposes for which Five Star intends to use the Sublet Premises
are uses expressly permitted by this Sublease, (iii) Sublessee shall and will
automatically be and remain fully liable for the payment of all of the Basic
Rent and Additional Rent due and to become due under this Sublease both before
and after the date of the occupancy agreement, as well as for the performance of
all obligations under this Sublease both before and after the date of the
occupancy agreement, and Sublessee shall not be released from any of its
obligations or liabilities under this Sublease, and Sublessee (along with Five
Star) shall be fully responsible and liable for all acts or omissions of Five
Star, or anyone claiming under or through Sublessee, or Five Star, (iv) such
transfer is not principally for the purpose of transferring the leasehold estate
created hereby, (v) neither Sublessor or Overlandlord shall ever have any
liability to, nor obligations to, Five Star, (vi) Five Star does not ever engage
in, or take, any action which would cause either Sublessee to be in default
under this Sublease, or Sublessor to be in default under the Xxxxxxxxx, (vii)
Five Star shall never have the right to transfer to any other party any rights
in, or to, that portion of the Sublet Premises which it occupies, and (viii)
such proposed occupancy agreement is with Five Star. For purposes of this
subparagraph, the term "Five Star" shall mean Five Star Properties, Inc., a
Delaware corporation, which company must at all times be a publicly traded
company in which Sublessee owns not less than ten percent (10%) of all of the
outstanding stock.
(e) For the purpose of this paragraph, a sale, assignment, transfer,
exchange, new issuance or other disposition of (i) any of the capital stock of
Sublessee if Sublessee is a corporation, or of any corporation which directly or
indirectly controls Sublessee or of any corporate partner in Sublessee, if
Sublessee is a partnership; or (ii) any general partnership interest in
Sublessee if Sublessee is a partnership; or (iii) any undivided interest in this
Sublease if Sublessee is a co-tenancy, shall be deemed to be an assignment of
this Sublease. However, if a sale, assignment, transfer, exchange or new
issuance of any capital stock of Sublessee is made over a recognized stock
exchange in connection with the fact that Tenant is then a publicly traded
company (as defined by Federal Securities Laws), such transfer shall not require
Sublessor's consent.
(f) Without otherwise limiting those additional restrictions set forth
elsewhere in this Sublease and, as required by Section 11.01(c) of the
Xxxxxxxxx, Sublessee expressly acknowledges the following provision is set forth
thereon:
"This sublease/assignment shall, at the option of Landlord or
any successor Landlord or lessor under any Superior Lease as
hereinafter defined, remain in full force and effect and the
subtenant/assignee hereunder shall attorn to and recognize
Landlord or successor Landlord as owner and landlord hereunder
and shall promptly upon such party's request, execute and
deliver all instruments necessary or appropriate to confirm
such attornment and recognition. The subtenant/assignee
hereunder hereby waives all rights under any present or future
laws or otherwise to elect, by reason of the termination of
this Lease, any Underlying Lease or any Superior Lease, to
terminate this sublease/assignment or surrender possession of
the premises demised hereby."
14. Consent To Sublease by Overlandlord. This Sublease, and Sublessor's
obligations hereunder, are subject to, and conditioned upon, Sublessor obtaining
Overlandlord's written consent (the "Overlandlord Consent") to this Sublease on
or before December 20, 2002 (and, in this regard, Sublessee shall fully
cooperate with Sublessor, at Sublessor's expense, in obtaining such consent,
which cooperation shall include, without limitation, providing reasonable
financial information and records which may be requested and/or modifications to
this Sublease which do not materially increase Sublessee's obligations or
materially decrease its rights hereunder). If, on or before December 20, 2002,
Sublessor fails or is unable to obtain such written consent for any reason
whatsoever, either party shall have the right to automatically declare this
Sublease null and void and of no further force or effect (provided, however,
Sublessee shall have this right only if Sublessee has fully cooperated in
obtaining such consent, as discussed above).
15. Delivery. Notwithstanding anything contained in this Sublease to
the contrary, Sublessor does not warrant or represent that the Sublease
Commencement Date will occur (and possession given) by a date certain and, in
this regard, Sublessor shall not be subject to any liability for failure to give
possession on a particular date and the validity of this Sublease shall not be
impaired under such circumstances, nor shall the same be construed in any way to
extend the Sublease Term.
16. Taxes and Charges. Sublessee shall pay, on or before the date same
is due, any occupancy, sales, use or similar tax, charge or fee that is at any
time due or payable with respect to the occupancy or use of the Sublet Premises
or the payment of Basic Rent or Additional Rent, and which is attributable to
this Sublease and/or the Sublease Term.
17. Use; Compliance. Sublessee shall use and occupy the Sublet Premises
for office purposes and related incidental uses, and for no other use or
purpose, provided that such uses shall only be maintained as long as the same
are permitted under the Xxxxxxxxx and all applicable laws and ordinances.
Sublessee also agrees to comply with all reasonable rules nd regulations
Sublessor may adopt for the operation of the Sublet Premises. Sublessor has made
no representation or warranty that Sublessee may in fact lawfully use and/or
occupy the Sublet Premises for any of such uses, nor as to the portion or
portions of the Sublet Premises which may lawfully be used for any particular
use. Sublessee covenants that, during the Sublease Term, no part of the Sublet
Premises shall be used in any manner whatsoever for any purposes in violation of
this Sublease or the Xxxxxxxxx or in violation of laws, ordinances, regulations,
or orders of the United States, or of the State, County, and/or City or other
applicable governmental subdivisions where the Sublet Premises are located.
Sublessee shall comply with all such laws, ordinances, regulations and orders
now in effect or hereafter enacted or passed during the Sublet Term with respect
to the Sublet Premises (including, without limitation, The Americans With
Disabilities Act); provided that (a) Sublessee shall not be required to perform
any alterations in the Sublet Premises in order to comply with such laws,
ordinances, regulations or orders unless the requirement to perform such
alterations arises as a result of Tenant's use of the Sublet Premises, (b)
Sublessee's obligation to comply with such laws, ordinances, regulations or
orders with respect to the Sublet Premises shall not be greater than Sublessor's
obligation to comply with such laws, ordinances, regulations or orders with
respect to the balance of the Original Premises pursuant to the Xxxxxxxxx, and
(c) Sublessee shall not be responsible to cure any violations of any such laws,
ordinances, regulations or orders which exist as of the Sublease Commencement
Date.
18. Repair. Sublessee shall, at all times during the Sublease Term of
this Sublease, at Sublessee's own cost and expense, keep the Sublet Premises and
all improvements and facilities located therein, in good operating condition and
repair, and in such condition as may be required by the Xxxxxxxxx, by law, or by
the terms of the insurance policies furnished pursuant to this Sublease;
provided that the foregoing shall not obligate Sublessee to perform any repairs
which are not the obligation of Sublessor pursuant to the Xxxxxxxxx.
19. Alterations. Sublessee shall not construct, remove, demolish or
alter the Sublet Premises or any improvement located now or hereafter on or in
the Sublet Premises without the prior written consent of Sublessor and
Overlandlord, which such parties may grant or withhold in its sole discretion;
provided, however, to the extent approved in writing by Overlandlord in advance,
Sublessee, at Sublessee's sole cost and expense, shall be entitled to erect one
partition (the "Partition") in the Sublet Premises provided (i) the same is
erected in accordance with plans and specifications (and using a contractor)
acceptable in all respects to Sublessor and Overlandlord, and (ii) Sublessee, at
Sublessor's option, removes the Partition prior to the expiration or early
termination of this Sublease and repairs any damage, all at Sublessee's sole
cost and expense.
20. Mechanics' Liens. If, in connection with any work being performed
by Sublessee or any subtenant of Sublessee or in connection with any materials
being furnished to Sublessee or any subtenant, any mechanic's lien or other lien
or charge shall be filed or made against the Sublet Premises or any improvement
therein or any part thereof, or if any such lien or charge shall be filed or
made against Overlandlord or Sublessor, then Sublessee, at its own cost and
expense, within fifteen (15) days after such lien or charge shall have been
filed or made, shall cause the same to be cancelled and discharged of record by
payment or filing of a bond or otherwise, and shall also defend any action, suit
or proceeding which may be brought for the enforcement of such lien or charge,
and shall pay any damages, costs and expenses, including reasonable attorneys'
fees, suffered or incurred by Sublessor, and shall satisfy and discharge any
judgment entered within fifteen (15) days from the entering of such judgment by
payment or filing of a bond, or otherwise. If Sublessee fails to timely
discharge any lien, charge or judgment required to be paid or discharged by
Sublessee, Sublessor may pay such items or discharge such liability by payment
or bond or both, and Sublessee will repay to Sublessor, upon demand and as
Additional Rent, any and all reasonable amounts paid by Sublessor, or by reason
of any liability on any such bond, and also any and all incidental expenses,
including reasonable attorneys' fees, incurred by Sublessor.
21. Indemnity. Sublessee will indemnify and save harmless Sublessor and
Overlandlord from and against any and all liabilities, losses, damages,
expenses, causes of action, suits, interests, fines, penalties, claims and
judgments arising from injury, or claim of injury, to person or property of any
and every nature, and from any matter or thing, growing out of the occupation,
possession, use, construction, alteration, repair, maintenance or control of the
Sublet Premises (unless directly resulting from the negligence, misconduct or
default of Sublessor), and/or arising out of Sublessee's failure to perform each
and every term, covenant, condition and agreement herein provided to be
performed by Sublessee. Sublessee, at its own cost and expense, will defend by
counsel selected or approved by Sublessor, any and all suits that may be
brought, and claims which may be made, against Sublessor, or in which Sublessor
may be impleaded with others, whether Sublessor shall be liable or not, upon any
such above-mentioned liabilities, losses, damages, expenses, causes of action,
suits, interest, fines, penalties, claims and judgments, and shall satisfy, pay
and discharge any and all judgments that may be recovered against Sublessor in
any such action or actions in which Sublessor may be a party defendant, or that
may be filed against the Sublet Premises, the improvements thereon, or any
interest therein, and in the event of the failure of Sublessee to pay the sum or
sums for which Sublessee shall become liable, then Sublessor may pay such sum or
sums, with all interest at the highest rate allowed by law and charges which may
have accrued thereon, and the amount paid by Sublessor shall be payable by
Sublessee to Sublessor upon demand, as Additional Rent.
In addition, all indemnities and insurance coverage running in favor of
the Overlandlord in the Xxxxxxxxx shall run from Sublessee in favor of such
party plus, also, in favor of Sublessor.
22. Sublessor's Expenses. Sublessee shall reimburse Sublessor upon
demand for all reasonable expenses, including, without limitation, reasonable
attorneys' fees through the trial and appellate levels, incurred by Sublessor in
connection with the collection of any Basic Rent, Additional Rent or other sums
due pursuant to this Sublease or the enforcement of any other agreement or
obligation of Sublessee pursuant to this Sublease.
23. Hazardous Substances and Environmental Laws. Sublessee shall not
cause or permit the Sublet Premises to be used for the generation, handling,
storage, transportation, disposal or release of any "Hazardous Substances" (as
defined below), except for small quantities which may be used as cleaning
supplies in connection with normal office purposes and which are exempted or
permitted under applicable federal, state or local laws, ordinances, rules or
regulations pertaining to Hazardous Substances or industrial hygiene or
environmental conditions ("Environmental Laws"), and Sublessee shall not cause
or permit the Sublet Premises, or any activities conducted thereon, to be in
violation of any applicable Environmental Laws. Sublessee agrees to indemnify
Sublessor and hold Sublessor and its directors, officers, employees, successors
and assigns harmless from and against any and all claims, losses, damages
(including all foreseeable and unforeseeable consequential damages),
liabilities, fines, penalties, charges, interest, administrative or judicial
proceedings and orders, judgments, remedial action, requirements, enforcement
actions of any kind, and all reasonable costs and expenses incurred in
connection therewith (including without limitation reasonable attorneys' fees
and expenses), directly or indirectly resulting in whole or in part from the
violation of any Environmental Laws applicable to the Sublet Premises or any
activity conducted thereon, or from any use, generation, handling, storage,
transportation, disposal or release of Hazardous Substances at or in connection
with the Sublet Premises, or any contamination, detoxification, closure, cleanup
or other remedial measure required under any Environmental Laws. All sums paid
and costs incurred by Sublessor with respect to the foregoing matters shall be
payable by Sublessee as Additional Rent hereunder. This indemnity shall survive
the full payment and performance of all Basic Rent and the expiration or earlier
termination of this Agreement. "Hazardous Substances" shall mean, at any time,
(i) asbestos and any asbestos containing Material and any substance that is then
defined or listed in, or otherwise classified pursuant to, any Environmental
Laws or any applicable laws or regulations as a "hazardous substance,"
"hazardous Material", "hazardous waste", "infectious waste", "toxic substance",
"toxic pollutant" or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or
"EP toxicity", (ii) any petroleum and drilling fluids, produced waters, and
other wastes associated with the exploration, development or production of crude
oil, natural gas, or geothermal resources and (iii) petroleum products,
polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive matter, and
medical waste. Notwithstanding the foregoing, Sublessee shall not be responsible
in any way for (and shall not be required to indemnify Sublessor with respect
to) any Hazardous Substances which are present in the Sublet Premises as of the
Sublease Commencement Date to the extent such Hazardous Substances are not
disturbed, in whole or in part, by Sublessee or by any of Sublessee's assignees,
sublessees, employees, invitees, licensees, guests, contractors, subcontractors
and/or any other party under any such parties' reasonable control or direction.
24. Insurance. At all times during the Sublease Term, Sublessee shall,
at Sublessee's own cost and expense, provide and keep in force for the benefit
of Sublessor and Overlandlord (i) general liability policies protecting
Sublessor against any and all liability occasioned by negligence, occurrence,
accident or disaster in or about the Sublet Premises, which policy must be for
limits of not less than Three Million Dollars per incident or occurrence, (ii)
any and all improvements within the Sublet Premises, insured against loss or
damage by fire, lightning, windstorm, hail, explosion, riot, damage from
aircraft, smoke damage, war damage (when available) and such other insurable
risks, casualties and hazards as Sublessor may from time to time reasonably
specify in an amount at least equal to their full insurable value without
deduction for depreciation and (iii) all insurance required under the Xxxxxxxxx
(including, without limitation, Article 9 of the Xxxxxxxxx, which shall also
name Sublessor as an additional insured). Copies of such policies of insurance,
together with receipts showing payment of the premiums thereon, shall be
delivered to, and left in the possession of, Sublessor and shall be in form
reasonably satisfactory to Sublessor. In addition, all insurance to be furnished
by Sublessee under this Sublease shall be written by a company or companies
reasonably approved by Sublessor, shall name as insured Overlandlord and
Sublessor and any fee mortgagee(s), as their interests may appear, shall include
a mortgagee clause in standard form if there be a mortgage or mortgagees, shall
provide that the proceeds, if any, shall be payable in accordance with the terms
of the Xxxxxxxxx and must contain a clause that the insurer will not cancel or
change the insurance coverage without first giving Sublessor thirty (30) days
advance written notice.
25. Intentionally Deleted.
26. Condition of Sublet Premises/Building. Sublessee represents that
Sublessor has made no representations or warranties of any kind (except as
expressly set forth herein) and Sublessee further represents that the Sublet
Premises, the improvements thereon, sub-surface conditions, title encumbrances
and all other matters, and the present tenancies, uses and non-uses thereof,
have been examined by Sublessee and that Sublessee accepts the same, without
recourse to Sublessor, in the condition or state in which they are now in.
In addition, Sublessor and its agents shall not be liable for any
injury (including death) or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain, or snow or
leaks from any part of the Building, or from the pipes, appliances or plumbing
or electrical works, or from the roof, street or subsurface or from any other
place, or by dampness, or in connection with the condition of the Building or
surrounding areas or by any other cause of whatsoever nature, and Sublessee
hereby expressly waives any consequential, punitive or incidental damages.
Sublessee also hereby expressly waives any compensation or claims for
inconvenience or loss of business, rents or profits as a result of such injury
or damage, or for any other reason, in connection with this Sublease.
27. Sublessor's Right of Entry. Sublessor and Sublessor's authorized
agents, employees and designees (as well as Overlandlord) shall have the right
from time to time, at Sublessor's sole option, to enter and pass through the
Sublet Premises and all improvements now or hereafter located thereon at any
reasonable time to examine the same, to show them to prospective purchasers, fee
mortgagees and others, or to do any acts allowed or required by Sublessor under
this Sublease.
28. Surrender. Sublessee shall, on the Sublease Expiration Date,
surrender and deliver the Sublet Premises, with the improvements then located
thereon and the appurtenances thereto, into the possession and use of Sublessor,
without fraud or delay and in good order, condition and repair (ordinary wear
and tear and damage by casualty not caused by Sublessee excepted), free and
clear of all letting and occupancies, and free and clear of all liens and
encumbrances other than those existing on the date of this Sublease or resulting
from the actions of Sublessor or Overlandlord without any payment or allowance
by Sublessor on account of or for any improvements erected or maintained on the
Sublet Premises at the time of the surrender, or for the contents thereof or
appurtenances thereto and, also, as may otherwise be required by the Xxxxxxxxx.
In the event Sublessee does not timely and fully comply with the terms of this
paragraph, and in addition to all other rights and remedies to which Sublessor
is entitled as provided in this Sublease, at law and/or in equity, Sublessee
will indemnify and hold Sublessor harmless from and against any and all
liabilities, losses, damages, expenses, causes of action, claims, fines and
judgments made by Overlandlord and/or arising (in whole or in part) under the
Xxxxxxxxx (including, without limitation, all sums due or claimed to be due
under the Xxxxxxxxx). Also, Sublessee shall remove, at Sublessee's cost, by such
date all such fixtures and improvements installed by Sublessee at the Sublet
Premises if so required by the Xxxxxxxxx or by Sublessor.
29. Estoppel Certificates. Sublessee agrees to provide Sublessor and/or
Overlandlord, promptly upon request, an estoppel certificate evidencing such
matters, as the Sublessor (acting reasonably) and/or Overlandlord requests.
30. Rights Cumulative. All the rights and remedies of Sublessor under
this Sublease or pursuant to present or future law shall be deemed to be
separate, distinct and cumulative and no one or more of them, whether exercised
or not, shall be deemed to be in exclusion of, or a waiver of, any of the
others, or of any of the rights or remedies which Sublessor may have, and
Sublessor shall have, to the fullest extent permitted by law, the right to
enforce any rights or remedies separately and to take any lawful action or
proceedings to exercise or enforce any right or remedy without thereby waiving
or being barred or estopped from exercising and enforcing any other rights and
remedies by appropriate action or proceedings.
31. Payments of Money; Interest. All amounts which Sublessee shall be
obligated to pay pursuant to this Sublease shall be deemed Basic Rent or
Additional Rent, and in the event of the nonpayment by Sublessee of any sum of
money which Sublessee shall be obligated to pay to Sublessor under any provision
of this Sublease, Sublessor shall have the same rights and remedies by reason of
such nonpayment as if Sublessee had failed to pay an installment of Basic Rent.
In each instance when Sublessee shall be obligated to make any payment of any
sum of money, interest shall accrue thereon and be payable at the highest rate
permitted by law, computed from the date which is five (5) days after such
payment first became due; provided that Sublessor hereby agrees to waive the
payment of interest attributable to one late payment in each calendar year.
32. Sublessor's Self-Help. In addition to Sublessor's rights of
self-help set forth elsewhere in this Sublease , if Sublessee at any time fails
to perform any of its obligations under this Sublease after the lapse of any
applicable notice and grace periods, Sublessor shall have the right but not the
obligation, upon giving Sublessee at least three (3) days prior notice of its
election to do so (in the event of any emergency no prior notice shall be
required) to perform such obligations on behalf of and for the account of
Sublessee and to take all such action to perform such obligations. In such
event, Sublessor's costs and expenses incurred therein shall be paid for by
Sublessee forthwith, with interest (at the highest rate allowed by law). The
performance by Sublessor of any obligation shall not constitute a release or
waiver of Sublessee therefrom. Sublessee hereby waives any claim and releases
Sublessor and Sublessor's agents, contractors and employees from all liability
for damage occasioned by any action taken pursuant to this Paragraph.
33. Non-Waiver. No waiver by Sublessor of any breach by Sublessee of
any term, covenant, condition or agreement herein, and no failure by Sublessor
to exercise any right or remedy in respect of any breach hereunder, shall
constitute a waiver or relinquishment for the future of any such term, covenant,
condition or agreement or of any subsequent breach of any such term, covenants,
condition or agreement, nor bar any right or remedy of Sublessor in respect of
any such subsequent breach, nor shall the receipt of any rent, or any portion
thereof, by Sublessor, operate as a waiver of the rights of Sublessor to enforce
the payment of any other rent then or thereafter in default, or to terminate
this Sublease, or to recover the Sublet Premises or to invoke any other
appropriate remedy which Sublessor may select as set forth in this Sublease or
provided by law.
34. Survival. All rights and obligations of Sublessee which are or may
be intended by their nature to be performed and/or complied with after the
expiration or earlier termination of this Sublease shall survive such expiration
or termination.
35. No Partnership. Sublessor shall not be deemed, in any way or for
any purpose, to have become, by the execution of this Sublease or any action
taken under this Sublease, a partner of Sublessee, in Sublessee's business or
otherwise, or a member of any joint enterprise with Sublessee.
36. Bind and Inure. The terms, covenants, conditions and agreements of
this Sublease shall bind and inure to the benefit of the parties to this
Sublease and their respective permitted successors and assigns. Any waiver of
rights by either party shall be deemed to be a waiver of such rights not only by
such party but shall be deemed to be a waiver of such rights for and on behalf
of each and every successor and assignee of such party. If any of the provisions
of this Sublease, or its application to any situation, shall be invalid or
unenforceable to any extent, the remainder of this Sublease, or the application
thereof to situations other than that as to which it is invalid or
unenforceable, shall not be affected thereby, and every provision of this
Sublease shall be valid and enforceable to the fullest extent permitted by law.
37. Waiver. Sublessee expressly waives any right to rescind this
Sublease under Section 223-a of the New York Real Property Law or any other
present or future law of similar import then in effect and further expressly
waives any right to recover any damages which may result from Sublandlord's
inability to deliver possession of the Sublet Premises on the Sublease
Commencement Date; provided that if Sublessor has not delivered possession of
the Sublet Premises on or before December 20, 2002, Sublessee shall have the
right to terminate this Sublease at any time thereafter (but prior to the
delivery of possession by Sublessor) (provided Sublessee has otherwise fully
cooperated with Sublessor in obtaining the Overlandlord Consent, as required
above). Sublessee agrees that the provisions of this Article are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223-a.
38. Recording. Sublessee shall not record this Sublease or any
memorandum hereof.
39. Entire Agreement. This Sublease sets forth the entire agreement
between the parties, superceding all prior agreements and understandings,
written and oral, and may not be altered or modified except by a writing signed
by both parties.
40. Law. This Agreement has been executed in the State of New York and
shall be governed by and construed in accordance with the laws of the State of
New York.
41. Execution. Submission by Sublessor of this Sublease for execution
by Sublessee shall confer no rights nor impose any obligation on Sublessor
unless and until (and subject to all other rights and conditions contained
elsewhere) both Sublessor and Sublessee shall have executed this Sublease and
duplicate originals thereof shall have been delivered by Sublessor and Sublessee
to each other.
42. Intentionally Deleted.
---------------------
43. Sublessee's Early Termination Options. As long as the
named Sublessee (i.e., GP Strategies Corporation or one of its Affiliate's or
one of its permitted occupants) is then in possession of all the Sublet Premises
under this Sublease and provided there is no default which remains uncured
beyond the applicable notice and cure period at the time Sublessor receives the
"First Termination Notice" (as defined below) or at anytime thereafter through
the "First Termination Date" (as defined below) (except to the extent Sublessor,
in, Sublessor's sole discretion, waives such condition), Sublessee shall have
the option (the "First Termination Option"), at Sublessee's discretion, to
terminate this Sublease at the end of the twelfth (12th) month following the
Sublease Commencement Date of this Sublease (the "First Termination Date"),
provided, Sublessor receives written notice (the "First Termination Notice")
from Sublessee no later than the end of the tenth (10th) month following the
Sublease Commencement Date of this Sublease, time being of the essence, stating
that Sublessee is exercising the First Termination Option. In the event
Sublessee timely and properly exercises the First Termination Option then, in
such event, and in addition to those other Sublessee obligations provided for in
this Sublease, (i) Sublessee shall vacate and deliver the Sublet Premises to
Sublessor free of all occupants and in the condition required by this Sublease
no later than 5:00 P.M. on the First Termination Date, time being of the
essence, failing which and in addition to any and all rights and remedies to
which Sublessor is entitled under the Sublease, at law and/or in equity,
Sublessee shall also be liable to Sublessor for damages (including, without
limitation, all consequential damages, as well as all damages and/or costs
and/or fines and/or payments Sublessor may incur to a third party as a result of
such failure), and (ii) Sublessee shall continue to be responsible for any and
all indemnity obligations with respect to the Sublet Premises as provided for
under the Sublease, as well as with respect to the acts or omissions of
Sublessee and/or Sublessee's employees, guests, invitees, licensees, agents
and/or any other party or parties under any such party's or parties' reasonable
control prior to the last to occur of the date upon which the First Termination
Date occurs or Sublessee properly complies with the requirements set forth in
subparagraph (i) directly above. The terms of this Section shall survive the
expiration or termination of this Sublease.
As long as the named Sublessee (i.e., GP Strategies
Corporation or one of its Affiliates or one of its permitted occupants) is then
in possession of all the Sublet Premises under this Sublease and provided there
is no default which remains uncured beyond the applicable notice and cure period
at the time Sublessor receives the "Second Termination Notice" (as defined
below) or at anytime thereafter through the "Second Termination Date" (as
defined below) (except to the extent Sublessor, in, Sublessor's sole discretion,
waives such condition), Sublessee shall have the option (the "Second Termination
Option"), at Sublessee's discretion, to terminate this Sublease at the end of
the thirty-sixth (36th) month following the Sublease Commencement Date of this
Sublease (the "Second Termination Date"), provided, Sublessor receives written
notice (the "Second Termination Notice") from Sublessee no later than the end of
the thirty-fourth (34th) month following the Sublease Commencement Date of this
Sublease, time being of the essence, stating that Sublessee is exercising the
Second Termination Option. In the event Sublessee timely and properly exercises
the Second Termination Option then, in such event, and in addition to those
other Sublessee obligations provided for in this Sublease, (i) Sublessee shall
vacate and deliver the Sublet Premises to Sublessor free of all occupants and in
the condition required by this Sublease no later than 5:00 P.M. on the Second
Termination Date, time being of the essence, failing which and in addition to
any and all rights and remedies to which Sublessor is entitled under the
Sublease, at law and/or in equity, Sublessee shall also be liable to Sublessor
for damages (including, without limitation, all consequential damages, as well
as all damages and/or costs and/or fines and/or payments Sublessor may incur to
a third party as a result of such failure), and (ii) Sublessee shall continue to
be responsible for any and all indemnity obligations with respect to the Sublet
Premises as provided for under the Sublease, as well as with respect to the acts
or omissions of Sublessee and/or Sublessee's employees, guests, invitees,
licensees, agents and/or any other party or parties under any such party's or
parties' reasonable control prior to the last to occur of the date upon which
the Second Termination Date occurs or Sublessee properly complies with the
requirements set forth in subparagraph (i) directly above. The terms of this
Section shall survive the expiration or termination of this Sublease.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as
of the date and year first above written.
SUBLESSOR:
XXXXXX XXXXXXX & COMPANY, INC.
a New York corporation
By:_______________________________
Name:_____________________________
Title:______________________________
SUBLESSEE:
GP STRATEGIES CORPORATION,
a Delaware corporation
By:__________________________________________________
Name:_____________________________________________
Title:____________________________________________
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