Exhibit 10.11
SUBLEASE
THIS SUBLEASE, made as of October 6, 1994 between NIKON INC., a New York
corporation having an address at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000-0000 ("Sublessor"), and PROUDFOOT REPORTS, INC., a New York corporation,
having an office at 00 Xxxxxx, Xxxx Xxxx, Xxx Xxxx 00000 ("Subtenant"),
W I T N E S S E T H:
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Sublessor and Subtenant hereby agree as follows:
SECTION 1. DEFINITIONS
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For the purposes of this Sublease, unless the context requires otherwise,
the following terms shall have the meanings herein specified:
1.01 "Lease" shall mean the Agreement of Lease dated as of June 1, 1990
between Omni 110 Associates, a New York limited partnership, as landlord, and
Sublessor, as tenant, (a copy of which heretofore has been delivered to
Subtenant) and any and all future amendments or other modifications thereof.
1.02 "Landlord" shall mean the person or entity at any relevant time
entitled to enforce the rights of the landlord under the Lease.
1.03 "Building" shall mean the building located at 1300 Xxxx Xxxxxxx
Road, Melville, New York, and of which the Subleased Premises are a part.
1.04 "Permitted Uses" shall mean general office purposes in connection
with Subtenant's business involving employment related investigations and
verifications. Specifically, but without limitation, any use prohibited under
Section 2 of this Sublease or under the Lease shall not be a Permitted Use.
1.05 "Subleased Premises" shall mean the space substantially as shown on
the floor plan annexed as Exhibit A, which space is on the first floor of the
Building and which consists of approximately 13,342 rentable square feet.
1.06 "Land" shall mean the parcel of land described in Exhibit B.
SECTION 2. SUBLEASE, TERM, PERMITTED USES
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2.01 Subject to the provisions hereof, Sublessor subleases to Subtenant
and Subtenant subleases from Sublessor the Subleased Premises for a term (the
"Original Term") commencing on the date Sublessor's Work (as herein defined)
shall be completed (as such term is defined in Section 8.02 hereof) (the
"Commencement Date") and expiring at midnight on the last day of the calendar
month which is eighty-four (84) full months after the Commencement Date (the
"Expiration Date"). The Subleased Premises shall be occupied and used
exclusively for Permitted Uses and in accordance with the provisions of this
Sublease. The Original Term together with any renewal or extension thereof shall
be referred to as the "Term". In the event Sublessor's Work shall not be
completed by April 1, 1995 through no fault of
Subtenant, Subtenant shall have the right to terminate this Sublease upon notice
to Sublessor no later than April 5, 1995.
2.02 The parties have targeted on or about December 1, 1994 as the
Commencement Date, and the Subtenant fully understands that such time period is
only a target and that there is no assurance as to the actual Commencement Date.
Furthermore, nothwithstanding the foregoing, if Subtenant shall be delayed in
obtaining possession of the Subleased Premises because of delays in construction
or for any other reason, Sublessor shall not be subject to any liability, and
the effectiveness of this Sublease shall not be affected but the Fixed Rent
(herein defined) shall be abated (provided Subtenant is not responsible for the
delay in obtaining possession, or in construction of Sublessor's Work or any
other work permitted to be performed by Subtenant) until possession shall have
been made available to Subtenant. The provisions hereof are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
2.03 (i) Subtenant shall not use or permit all or any part of the
Subleased Premises to be used in any manner which in Sublessor's sole judgement
does or is likely to impair the character or dignity of the Building or
Sublessor's business or any other subtenant's business.
(ii) If any governmental license or permit shall be required for
the proper and lawful conduct of Subtenant's business in the Subleased Premises,
Subtenant shall duly procure and maintain such permit or license and comply with
its terms and conditions throughout the Term.
(iii) Any business machine or mechanical equipment which causes
vibration, noise, cold or heat shall be placed and maintained, at Subtenant's
sole cost and expense, in setting of cork, rubber or spring-type vibration
eliminators sufficient in Sublessor's sole judgement to absorb such vibration
and noise or prevent transmissions of cold and heat.
SECTION 3. LEASE
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This Sublease and the covenants, provisions, terms and conditions hereof
are subject and subordinate to the covenants, provisions, terms and conditions
of the Lease and to all other matters set forth in Section 18 hereof.
SECTION 4. OBLIGATIONS UNDER LEASE
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Subtenant agrees (i) to be bound by and to perform and comply with all the
covenants, provisions, terms and conditions of the Lease during the Term of this
Sublease to the extent applicable to the Subleased Premises or Sublessor with
respect to the Subleased Premises other than those set forth in Sections 3(A),
(B), (C), (D) and (E); 5(A), (B), (C), (D), (E), (F), and (G); 6; 7(A), (B),
(C), and (E); 8; 9(A), (B), (C) and (D); 10(A), (B), (C), (D) and (E); 15(A),
(B), (C), (D), (E), (F), (G), and (H); 23(D); and 39, and (ii) not to commit or
permit to be committed any act, or to create or permit to be created any
condition, that would constitute a default under the Lease. In the event any
provision of this Sublease is inconsistent with a provision of the Lease, such
inconsistency shall be resolved in favor of the provision of this Sublease,
unless use of the Subleased
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Premises or any action or inaction in accordance with said provision may become
the basis of a default under the Lease, in which situation the inconsistency
shall be resolved in favor of the provision of the Lease. Sublessor represents
to Subtenant that the Lease is in full force and effect and has not been amended
or modified as of the date hereof, that the Subleased Premises may be used for
all Permitted Uses, and that Subtenant's rights and obligations as set forth in
this Sublease do not constitute a default under the Lease, and that as of the
date hereof Sublessor is in compliance with Article 19 of the Lease and is not
in default under the Lease. Nothwithstanding anything to the contrary contained
herein, if Landlord, in writing, shall claim or otherwise allege that a use of,
action or inaction involving, or other circumstance concerning the Subleased
Premises (or any use, whether permitted hereby, pursuant to law or prohibited
hereby or thereby, of the Building by Subtenant, its employees, agents, and
contractors) is in violation of any provision of or may become a default under
the Lease, Subtenant, immediately upon notice from Sublessor and without
limiting the rights of Sublessor hereunder, shall cease such use or action and
take such action or cause such circumstance to be changed so that the basis or
alleged basis for such claim or allegation shall no longer exist.
SECTION 5. FIXED RENT, OPERATING EXPENSES, TAXES AND ADDITIONAL RENT
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5.01 During the Original Term, Subtenant shall pay a total base fixed
rent of $1,805,617.31 (the "Fixed Rent") which shall be payable in equal monthly
installments as follows: (i) $22,236.67 per month from the eight month through
the twenty-fourth month of the Original Term; (ii) $23,348.50 per month from the
twenty-fifth month through the sixtieth month of the Original Term, and (iii)
$24,460.33 per month from the sixty-first month through the Expiration Date
Subtenant agrees to pay the Fixed Rent as specified in the preceding sentence in
advance on the first day of each calendar month during the Original Term, except
that the Fixed Rent for the eight full calendar month of the Original Term shall
be paid at the time of the execution hereof. The Fixed Rent shall be prorated
for any portion of a month during the Term and, if the first month of the Term
is not a full calendar month, Subtenant shall pay the prorated Fixed Rent due
therefor on the Commencement Date.
5.02 For purposes of this Section 5, unless the context requires
otherwise, the following terms shall have the meanings herein specified:
(i) "Base Operating Amount" shall mean the Base Operating
Expenses for the Base Operating Year.
(ii) "Base Operating Year" shall mean the calendar year
commencing January 1, 1995.
(iii) "Operating Expenses" shall mean the sum of all costs and
expenses paid or incurred by Sublessor in respect of the repair, replacement,
cleaning, maintenance, management, insurance, operation, restoration, safety
(including, without limitation, fire safety) and/or security of the Building and
the Land.
(iv) "Building Operating Expense Statement" shall mean a writing
setting forth the Operating Expense Payment (as herein defined payable by
Subtenant for a
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specified Operating Year pursuant to this Section 5.02.
(v) "Operating Year" shall mean each calendar year in which
occurs any part of the Term.
(vi) "Subtenant's Share" shall mean the quotient, expressed as a
percentage, obtained by dividing the rentable square feet of the Subleased
Premises, which is deemed to be 13,342 square feet for purposes of this
Sublease, by the rentable square feet for purposes of this Sublease, by the
rentable square feet of the portion of the Building which is available for
occupancy, which is deemed to be 132,360 square feet for purposes of this
Sublease. On the date hereof, Subtenant's Share shall mean 10.08% In no event
shall such deemed square footages constitute or imply any representation or
warranty by Sublessor whatsoever as to the actual size of the Subleased Premises
or the Building, but same shall constitute an express agreement between
Sublessor and Subtenant with respect to such actual sizes thereof.
(vii) "Taxes" shall mean all real estate taxes, sewer charges or
rents, water frontage charges, and assessments, special or otherwise, rates and
charges, county taxes, transit taxes levied, assessed or imposed including any
abatements or exemptions by the County of Suffolk or any other taxing authority
upon or with respect to the Building and the Land, all taxes assessed or imposed
with respect to the rentals payable hereunder other than general income and
gross receipts taxes (except that general income and gross receipts taxes shall
be included if covered by the provisions of the following sentence). Taxes shall
also include any taxes, charges or assessments levied, assessed or imposed by
any taxing authority in addition to or in lieu of the present method of real
estate taxation, provided such substitute taxes, charges and assessments are
computed as if the property were the sole property of the Sublessor subject to
said substitute tax, charge or assessment. With respect to any Tax Year (as
herein defined), all expenses, including, without limitation, legal fees,
experts' and other witnesses' fees, incurred in contesting the validity or
amount of any Taxes or in obtaining a refund of Taxes, shall be considered as
part of the taxes for such Tax Year. In addition, the term Taxes shall mean any
tax, charge assessment, or sum included within the definition of the term
"Taxes" in the Lease.
(viii) "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of December 1 of each such period, in which occurs
any part of the Term, or such other period of twelve (12) months occurring
during the Term as hereafter may be duly adopted as the fiscal year for real
estate tax purposes of the County of Suffolk.
(ix) "Base Tax Amount" shall mean the Taxes due for the Tax Year
commencing on December 1, 1994 and ending November 30, 1995 based at full
assessment and including any tax abatements.
5.03 (i) For each Operating Year, including the Operating Year in
which the Commencement Date occurs, any part of which shall occur during the
Term of this Sublease, Subtenant shall pay an amount (herein called an
"Operating Expense Payment") equal to Subtenant's Share of the amount by which
the Operating Expenses for such Operating Year exceed the Base Operating Amount.
Sublessor and Subtenant agree that the Operating Expense Payment for any
Operating Year in
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which the term of this Sublease commences or expires shall be prorated.
(ii) Sublessor may furnish to Subtenant, prior to the commencement
of each Operating Year, a written statement setting forth Sublessor's reasonable
estimate of the Operating Expense Payment for such Operating Year. Subtenant
shall pay to Sublessor on the first day of each month during the Operating Year
in which the Operating Expense Payment will be due, an amount equal to one-
twelfth (1/12th) of Sublessor's estimate of the Operating Expense Payment for
such Operating Year. If, however, Sublessor shall not furnish any such estimate
for an Operating Year or if Sublessor shall furnish any such estimate for an
Operating Year subsequent to the commencement thereof, then (A) until the first
day of the month following the month in which such estimate is furnished to
Subtenant, Subtenant shall pay to Sublessor on the first day of each month an
amount equal to the monthly sum payable by Subtenant to Sublessor under this
Section 5.03 in respect of the last month of the preceding Operating Year; (B)
after such estimate is furnished to Subtenant, Sublessor shall give notice to
Subtenant stating whether the installments of the Operating Expense Payment
previously made for such Operating Year were greater or less than the
installments of the Operating Expense in which the Operating Expense Payment
will be due in accordance with such estimate, and (x) if there shall be a
deficiency, Subtenant shall pay the amount thereof within twenty (20) days after
demand therefor, or (y) if there shall have been an overpayment, Sublessor
shall refund to Subtenant the amount thereof (or at Sublessor's option, credit
same against the Additional Rent next due); and (C) on the first day of the
month following the month in which such estimate is furnished to Subtenant and
monthly thereafter throughout the remainder of such Operating Year, Subtenant
shall pay to Sublessor an amount equal to one-twelfth (1/12th) of the Operating
Expense Payment shown on such estimate. Sublessor may, at any time and from time
to time during each Operating Year, furnish to Subtenant a revised statement of
Sublessor's reasonable estimate of the Operating Expense Payment for such
Operating Year, and in each such case the Operating Expense Payment for such
Operating Year shall be adjusted and paid or refunded or credited as the case
may be, in the same manner as provided in the preceding sentence.
5.04 (i) If Taxes payable for any Tax Year, including the Tax Year in
which the Commencement Date occurs, shall exceed the Base Tax Amount, Subtenant
shall pay to Sublessor as Additional Rent for such Tax Year an amount (herein
called the "Tax Payment") equal to Subtenant's Share of the amount by which the
Taxes for such Tax Year are greater than the Base Tax Amount. The Tax Payment
for each Tax Year shall be due and payable in installments in the same manner
that Taxes for such Tax Year are due and payable by Sublessor to the County of
Suffolk. Subtenant shall pay Subtenant's Share of each such installment within
twenty (20) days after the receipt of a writing rendering of a statement
therefor by Sublessor to Subtenant, which statement may be rendered by Sublessor
so as to require Subtenant's Share of Taxes to be paid by Subtenant not more
than thirty (30) days prior to the date such Taxes (or any installment thereof)
first become due. The statement to be rendered by Sublessor shall set forth, in
reasonable detail, the computation of the Tax Payment with respect to the
particular installment(s) being billed. If there shall be any increase or
decrease in the Taxes for any Tax Year, whether during or after such Tax
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Year, the Tax Payment for such Tax Year shall be appropriately adjusted and paid
or refunded, as the case may be, in accordance herewith; in no event, however,
shall Taxes be reduced below the Base Tax Amount. If during the Term, Sublessor
shall be required to pay Taxes (either to the appropriate taxing authorities or
as tax escrow payments to a superior mortgagee or superior lessor (including,
without limitation, Landlord) in full or in monthly, quarterly, or other
installments, on any other date or dates than as presently required, then at
Sublessor's option, Subtenant's Tax Payments shall be correspondingly
accelerated or revised so that said Subtenant's Tax Payments are due no more
than thirty (30) days prior to the date payments are due to the taxing
authorities or such superior mortgagee or superior lessor.
(ii) If the Taxes comprising the Base Tax Amount are reduced as
a result of an appropriate proceeding or otherwise, the Taxes as so reduced
shall, for all purposes, be deemed to be the Taxes for purposes of determining
the Base Tax Amount and Sublessor shall give notice to Subtenant of the amount
by which the Tax Payment previously made were less than the Tax Payment required
to be made and Subtenant shall pay the amount of the deficiency within twenty
(20) days after receipt of written demand therefor.
5.05 The expiration or termination of this Sublease during any Tax Year
or Operating Year (for any part or all of which there is due a Tax Payment or
Operating Expense Payment under this Sublease) shall not affect the rights or
obligations of the parties hereto respecting such payments and any Sublessor's
Statement or tax xxxx, as the case may be, relating to such payment may be sent
to Subtenant subsequent to, and all such rights and obligations shall survive,
any such expiration or termination. Any payments due under such Operating
Expense Statement or Tax Payment, as the case may be, shall be payable within
twenty (20) days after such statement or xxxx is sent to Subtenant.
5.06 Sublessor's failure to render or delay in rendering an Operating
Expense Statement with respect to any Operating Year shall not prejudice
Sublessor's right to thereafter render an Operating Expense Statement with
respect to any such Operating Year, nor shall the rendering of an Operating
Expense Statement for any Operating Year prejudice Sublessor's right to
thereafter render a corrected Operating Expense Statement for such Operating
Year. Sublessor's failure to render or delay in rendering a xxxx with respect to
any installment of Taxes shall not prejudice Sublessor's right to thereafter
render such a xxxx for such installment, nor shall the rendering of a xxxx for
any installment prejudice Sublessor's right to thereafter render a corrected
xxxx for such installment.
5.07 No payment by Subtenant or receipt or acceptance by Sublessor of a
lesser sum than the correct Fixed Rent or Additional Rent shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or letter accompanying any check or payment be deemed an accord and
satisfaction, and Sublessor may accept such check or payment without prejudice
to Sublessor's right to recover the balance or pursue any remedy in this
Sublease or as provided at law.
5.08 Sublessor shall have the same rights and remedies
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in the event Subtenant fails to pay any Additional Rent as in the situation in
which Subtenant fails to pay Fixed Rent.
5.09 All payments due pursuant to this Section 5 and all other sums or
charges that may become due pursuant to this Sublease (other than Fixed Rent)
shall be additional rent ("Additional Rent") and shall be due and payable as
specified herein or determined in accordance herewith or, if no time is so
specified or determined, within ten (10) days of receipt of written demand.
5.10 All payments due Sublessor hereunder shall, unless expressly set
forth herein to the contrary, be paid without notice or demand and without
set-off, deduction or abatement whatsoever and shall be delivered to Sublessor
at its address set forth in Section 46 of this Sublease or at such other address
as sublessor shall specify in writing, by good, unendorsed checks.
SECTION 6. ELECTRICITY
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6.01 (i) All electric current to be furnished to the Subleased
Premises shall be measured by a separate submeter which shall be installed and
maintained by Sublessor. Subtenant shall purchase from and promptly pay to
Sublessor the cost for all electric current that is consumed in the Subleased
Premises at charges not to exceed those being charged by the public utility
company or agency supplying electric current to the Building together with any
taxes or other charges levied on such electric current. Any such charges for
electric current shall be Additional Rent and shall be due and payable to
Sublessor within ten (10) days after the receipt of a written rendering of a
statement therefor.
(ii) Sublessor shall not be liable in any way to Subtenant for
any failure or defect in the supply or character of the electric energy or other
utility being furnished to the Subleased Premises.
6.02 Subtenant's use of electric energy in the Subleased Premises shall be
solely for the purpose of conducting its business therein and shall not at any
time exceed the capacity of any of the electrical conductors, machinery and
equipment in or otherwise servicing the Subleased Premises or the Building. In
order to insure that such capacity is not exceeded and to avert possible adverse
effect upon the Building's electric service, Subtenant shall not, without
Sublessor's prior written consent in each instance (i) connect any additional
fixtures, machinery, appliances or equipment to the Building's electric
distribution system other than lamps, typewriters, personal-type computer and
related computer terminals, desk-top copying machines, desk-top communications
equipment (such as telephones and telecopies), and other small office machines
that consume comparable or less amounts of electric energy, or (ii) make any
alteration or addition to Subtenant's machinery, appliances or equipment.
6.03 Sublessor shall not be liable or responsible to Subtenant for any
loss, damage or expense which Subtenant may sustain or incur if (1) the supply
or electric energy to the Subleased Premises is interrupted, or (ii) the
quantity or character of electric service is changed or is no longer available
or suitable to Subtenant's requirements unless
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directly resulting from Sublessor's willful misconduct. A change in the
availability, supply, quality or character of electric energy shall not be
deemed a constructive eviction of Subtenant unless caused by Sublessor's willful
misconduct.
SECTION 7. SERVICES
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7.01 Sublessor shall provide to the Subleased Premises (i) Monday through
Saturday (except Federal, State and local municipal holidays) from 7:00 a.m to
7:00 p.m. heat and air conditioning as and when seasonably required but never
with respect to air conditioning between October 15 and May 15 except at
Sublessor's sole election; (ii) water for ordinary drinking and lavatory
purposes, but if Subtenant uses or consumes water for any other purposes or in
unusually large quantities (of which fact Sublessor shall be the sole judge),
Sublessor may install a water meter at Subtenant's sole cost and expense, which
meter Subtenant shall thereafter maintain at its sole cost and expense, in good
working order and Subtenant shall pay for water consumed as registered by such
meter; and (iii) Monday through Friday (except Federal, State and local
municipal holidays), cleaning services, in the evenings or early morning,
provided Subtenant keeps the Subleased Premises in reasonable order and provided
further that Sublessor does not require extra or additional cleaning because of
the existence of large quantities of glass, computer, or special installations
or equipment. If the Subleased Premises are not kept in reasonable order by
Subtenant all cleaning shall be done at Subtenant's expense and any extra
cleaning required as set forth above shall be done at Subtenant's expense, all
to Sublessor's satisfaction, by Sublessor's cleaning contractor.
7.02 Any use or occupancy of the Subleased Premises during the hours or
days on or during which Sublessor is not required to furnish heat or
air-conditioning to the Subleased Premises shall be at the sole risk,
responsibility and hazard of Subtenant. Subtenant shall comply with and observe
all Building-wide regulations and requirements prescribed by Sublessor for the
proper functioning of the heating, ventilating and air-conditioning systems.
7.03 In the event that Subtenant shall require air-conditioning, heating
or ventilation at such times as same are not required to be furnished by
Sublessor, Subtenant shall give Sublessor at least forty-eight (48) hours
advance written notice of such requirement and, provided that no Event of
Default shall be continuing and such service shall not overload or overtax the
Building's systems, same shall be furnished by Sublessor, and Subtenant agrees
to pay one hundred percent (100%) of Sublessor's cost therefor as Additional
Rent (Subtenant acknowledges that Sublessor's cost may include the cost of labor
and electric energy for minimum time periods even if the air conditioning,
heating or ventilating is not utilized for the entire minimum time period).
7.04 Sublessor reserves the right to interrupt, curtail or suspend the
services which it is required to furnish under this Section 7 when the need
therefor arises or is reasonably desirable by reason of accident, emergency,
mechanical breakdown or strike, or to accomplish the replacement, repair or
modification of any machinery, or when required or recommended under any law,
order, regulation or pronouncement of any federal, state, county or municipal
authority, or when required to modify, repair, improve or alter the Building or
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for any cause beyond the reasonable control of Sublessor (including, without
limitation, a default by Landlord under the Lease). Sublessor shall use
reasonable efforts to complete all required repairs (or to cause Landlord to
perform and complete same to the extent of Landlord's obligations under the
Lease) or other necessary work expeditiously so that Subtenant's inconvenience
resulting from the curtailment of services may be for as short a period of time
as circumstances will permit (but Sublessor shall not be obligated to utilize
overtime labor or incur extraordinary expenses in connection therewith). No
diminution or abatement of rent or other compensation shall or will be claimed
by Subtenant as a result of such interruption, curtailment, or suspension, nor
shall this Sublease or any of the obligations of Subtenant be affected or
reduced by reason of such interruption, curtailment or suspension.
7.05 Subtenant shall reimburse Sublessor for the cost to Sublessor of
removal from the Subleased Premises and the Building of so much of any refuse
and rubbish of Subtenant as shall exceed that ordinarily accumulated daily in
the routine of business office occupancy (as reasonably determined by Sublessor
or its contractor).
7.06 Sublessor, its cleaning contractor and their respective employees
shall have access to the Subleased Premises after 5:00 p.m. and before 7:00 a.m.
and shall have the right to use, without charge, all light, power and water
required to clean the Subleased Premises as required by this Sublease.
7.07 Sublessor will not be required to furnish any additional services,
except as expressly provided in this Sublease, and to the extent Sublessor shall
agree to furnish additional services to Subtenant, Subtenant shall pay Sublessor
therefor at Sublessor's then current charges.
7.08 (i) In addition to the services Subtenant shall be entitled to
receive pursuant to the provisions of this Sublease, Subtenant shall be entitled
to receive from landlord with respect to the Subleased Premises, all of the
services which Sublessor is entitled to receive with respect to the Subleased
Premises pursuant to the Lease. Subtenant agrees to look solely to Landlord for
such services and promptly pay to either landlord or Sublessor, as the case may
be, all charges by Landlord for any such services which Landlord is not required
to furnish without additional charge.
(iii) If Landlord fails to provide any services or otherwise perform
any obligations under the Lease (including, without limitation, its obligation,
if any, to repair and maintain the Building or any part thereof) and said
failure has a material adverse effect on the Subleased Premises, Subtenant or
the conduct of its business, Sublessor, promptly after receipt of notice from
Subtenant, shall notify Landlord and use reasonable efforts to have Landlord
perform its duties, and Sublessor shall have no further obligation in connection
therewith. If Landlord shall thereafter not perform, Subtenant shall not be
entitled to any set-off or deduction from the Fixed Rent or Additional Rent due
hereunder.
SECTION 8. CONDITION OF SUBLEASED PREMISES
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8.01 Subtenant has fully inspected the Subleased Premises and agrees to
accept same "as is" in its condition on the Commencement Date hereof. Sublessor
shall have no obligation to perform any improvements in or about the Subleased
Premises, except Sublessor's Work (as herein defined), which Landlord has
approved.
8.02 Sublessor shall perform, finish, install and provide, or shall cause
to be performed, finished, installed and provided in a good and workmanlike
manner those items of work set forth in the Plans and Specifications which have
been approved by Subtenant and are attached hereto as EXHIBIT "A" (the
Sublessor's Work"). Sublessor represents that Sublessor's Work will be free from
defects in material and workmanship for a period of one (1) year from the
Commencement Date. Sublessor's Work will be completed such that it will be
substantially in accordance with the Plans and Specifications. For purposes of
this Section 8, the term "substantially in accordance" shall mean work
conforming to detailed measurements contained in the Plans and Specifications
coordinated to take into account the fact that all of the Plans and
Specifications should be complementary, and in the joining and coordinating of
such documents, ambiguities or implications may occur, and the Sublessor's Work
should be deemed to fairly reflect the intended result. It is acknowledged by
Subtenant (and same shall not be an objection) that (a) contractors must join,
cut, correlate or complete and combine work existing either outside the scope of
the Plans and Specifications or by other trades to accommodate field conditions
or ambiguity in the correlation of Plans and Specifications; (b) contractors
must patch, cut or join work as a result of subsequent change orders so that
such Sublessor's Work shall be harmonious with the existing completed work, or
so that the existing work may receive such changes; (c) changes may occur in
existing work to receive equipment or materials, the specifications for which
were incorrect in the original contract documents; (d) minor or desirable
deviations may be necessary to cause the specific function or working parts to
connect or provide the utility intended; (e) modifications, patching, blending
or joining of Sublessor's Work may occur in order to accommodate field
conditions not reflected in the Plans and Specifications; and (f) there may
exist and be performed other work, which in accordance with good trade
practices, would be required in order to accommodate Subtenant's intended
requirements as reasonably implied from the correlation of all requirements
under the Plans and Specifications.
8.03 Notwithstanding anything to the contrary set forth in this Lease
Agreement, if for any reason the Commencement Date is delayed by any action or
inaction of Subtenant, then, at Sublessor's option, Subtenant shall (i) pay
Fixed Rent and Additional Rent in the amounts set forth in this Sublease from
the date on which the Commencement Date would have occurred through the day
immediately preceding the Commencement Date, and (ii) Subtenant shall comply
with all of the other terms and conditions of this Sublease as if the Term had
commenced.
8.04 Sublessor's Work shall be deemed completed notwithstanding the fact
that portions of such work remain to be performed, furnished, installed and/or
provided, so long as the same does not, and completion thereof will not, prevent
Subtenant from occupying the Subleased Premises for the conduct of its business
or materially interfere with Subtenant's use and occupancy of the Subleased
Premises for
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normal office purposes. Provided Subtenant shall deliver to Sublessor, within
thirty (30) days of the Commencement Date, a list of all unperformed items of
Sublessor's Work, Sublessor shall complete same to the extent required by 8.02
of this Sublease.
8.05 Sublessor shall cause to be obtained any permits, certificates
and municipal authorizations required to be obtained such that Sublessor's Work
complies with, and can be performed in compliance with all applicable laws,
legal requirements, orders, ordinances, codes and regulations.
8.06 In connection with the performance of Sublessor's Work, Sublessor
shall have the right, without having to obtain Subtenant's consent, to (i) make
changes and modifications to the Plans and Specifications to comply with any
governmental or inspecting authorities, laws, codes, rules, regulations or
permits, and (ii) make changes and substitutions of materials from those set
forth on the Plans and Specifications, provided such changed or substituted
materials are at least equivalent in quality and design to those set forth in
the Plans and Specifications. Notwithstanding anything to the contrary contained
in this Lease Agreement any changes or modifications to the Plans and
Specifications attached hereto as Exhibit A which are either requested by the
Subtenant or are required to comply with any governmental or inspecting
authorities, laws, codes, rules, regulations or permits, shall be the sole
responsibility of Subtenant and shall be paid by Subtenant, as additional Rent
within ten (10) days of the date on which Sublessor shall sent a statement to
Subtenant requesting payment thereof.
SECTION 9. ALTERATIONS
-----------------------
9.01 Subtenant shall not make any improvements, installations, additions,
alterations or other changes (herein sometimes collectively called
"Alterations") in or to the Subleased Premises without the prior written consent
of Sublessor in each instance which consent shall not be unreasonably withheld
or delayed, and, if required by the Lease, Landlord. Subtenant acknowledges that
in no event shall Subtenant make nor will Sublessor grant consent to Alterations
which are in the form of entrances to or exists from the Subleased Premises or
the Building or which as a result thereof require the construction of any
additional entrances to or exits from the Subleased Premises or the Building.
9.02 If Subtenant shall obtain all required consents, any Alterations to
the Subleased Premises (and the performance of all work required in connection
therewith) shall in all respects comply with the provisions of this Sublease,
the Lease and the consents given with respect thereto.
SECTION 10. REPAIRS AND MAINTENANCE
------------------------------------
10.01 Subtenant shall, at its sole cost and expense, throughout the Term,
(i) take good care of the Subleased Premises and the equipment, fixtures and
improvements located therein (including, without limitation, the property which
is deemed the Sublessor's at the end of the Term pursuant to the provisions of
this Sublease), (ii) be responsible for all non-structural repairs, in and to
the Subleased Premises excluding the heating, ventilating, air conditioning,
plumbing and electrical systems. Notwithstanding the
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preceding sentence, Subtenant shall be responsible for the cost of all repairs,
interior and exterior, structural and non-structural, in and to the Building,
the Land, the Subleased Premises and the facilities and systems thereof, but
only to the extent the need for such repairs to the Building, the Land, the
Subleased Premises and the facilities and systems thereof arises out of (a) the
performance or existence of Alterations performed by or on behalf of Subtenant,
(b) the installation, use or operation of any equipment, fixtures or property by
Subtenant, its employees, agents, contractors or invitees, (c) the moving of any
equipment, fixtures or property into or out of the Subleased Premises or the
Building by any person or entity other than Landlord, Sublessor, its employees
or agents, or (d) the act, omission, misuse or neglect of Subtenant or any of
its subtenants or its or their employees, agents, contractors or invitees. Any
repairs in or to the Land, the Building and the Subleased Premises and the
facilities and systems thereof for which Subtenant is responsible shall be
performed by or on behalf of Sublessor at Subtenant's sole cost and expense;
but Sublessor may, at its option, before commencing any such work or at any time
thereafter, require Subtenant to (1) perform same, and/or (2) furnish to
Sublessor such security, in form and amount as Sublessor shall deem necessary,
to assure the payment for such work by Subtenant.
10.02 (i) Subject to Section 7.08 (ii), Sublessor, at its sole cost
and expense, shall repair and maintain (or shall cause to be repaired and
maintained), in good working order and repair (a) the structural and the public
portions of the Building, and (b) the systems and facilities of the Building
serving the Subleased Premises, including the Building heating, ventilating or
air-conditioning, plumbing and electrical systems, except Subtenant and not
Sublessor shall be responsible for all the foregoing repairs and maintenance as
and to the extent provided for in Section 10.01 hereof.
(ii) Subtenant shall give Sublessor prompt notice of any
defective condition known to Subtenant in any plumbing, heating,
air-conditioning or ventilation system or electrical lines located in, servicing
or passing through the Subleased Premises. Sublessor will endeavor to minimize
interference with Subtenant's use of the Subleased Premises in making any
repairs or changes which Sublessor is required or permitted by this Sublease, or
required by law, to make in or to the fixtures, equipment or appurtenances of
the Building or the Subleased Premises.
10.03 Notwithstanding the foregoing, Sublessor shall have no liability to
Subtenant, nor shall Subtenant's covenants and obligations under this Sublease
be reduced or abated in any manner whatsoever, by reason of any inconvenience,
annoyance, interruption or injury arising from Sublessor or any party acting on
Sublessor's behalf making any repairs or changes which Sublessor is required or
permitted by this Sublease, or required by law, to make in or to the fixtures,
equipment or appurtenances of the Building or the Subleased Premises.
SECTION 11. INSURANCE
---------------------
11.01 Subtenant, at its sole cost and expense, shall maintain in effect
throughout the Term, for the mutual benefit of Sublessor and Subtenant,
insurance covering all of the property of Subtenant, against loss or damage by
fire and
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such risks as are customarily included in "all-risk" and extended coverage
endorsements attached to fire insurance policies, including "agreed amount"
coverage with no co-insurance penalties, on an "occurrence basis" in an amount
not less than the full replacement value thereof.
11.02 Subtenant, at its sole cost and expense, shall maintain in effect
for the entire Term, for the mutual benefit of Sublessor and Subtenant (and for
the benefit of the additional insureds described by the provisions of 11.05)
comprehensive general liability insurance in the broadest form generally
obtained on a commercially reasonable basis for first class commercial buildings
of approximately the same age as the Subleased Premises and located in the area
in which the Subleased Premises are located, on an occurrence basis in the
minimum amount of Three Million Dollars ($3,000,000.00) for each occurrence,
(with a combined maximum amount of Five Million Dollars ($5,000,000.00) for all
occurrences per policy year) combined single limit for bodily injury, including
death, property damage and contractual liability (covering all contractual
obligations of Subtenant including those obligations under this Sublease). Such
policies shall cover the Subleased Premises, inclusive of sidewalk and parking
areas.
11.03 The insurance required under Section 11 shall be effected by valid
and enforceable policies issued by insurance companies approved by Sublessor,
which approval shall not be unreasonably withheld or delayed, and licensed to do
business in the State of New York.
11.04 Upon the Term Commencement Date and thereafter, not less than ten
(10) days prior to the expiration date of any expiring policies theretofore
furnished pursuant to this Section 11, copies of such policies or certificates
of insurance therefor, or renewal policies or certificates of insurance
therefor, as the case may be, shall be delivered by Subtenant to Sublessor. If
the Subleased Premises are covered by a Superior Instrument, certificates of the
policies for the insurance required under this Section 11 shall, at Sublessor's
request, also be delivered to the holder of such Superior Instrument(s) whose
name and address shall have been delivered to Subtenant.
11.05 Except as otherwise stated, all policies of insurance required under
this Section 11 shall name Sublessor and Subtenant as the insureds as their
interest may appear; and such holders of Superior Instruments as Sublessor shall
request as additional insureds. Each policy of insurance required under this
Section 11 shall contain an agreement by the insurer that it will not be
cancelled or terminated, or the amount of insurance or type of coverage reduced
without at least thirty (30) days prior notice to Sublessor, Landlord and the
holder of any other Superior Instrument(s) named therein, and that no act or
omission of any insured party (including, without limitation, Sublessor and any
such holder named therein) shall serve to invalidate, cancel, release or relieve
the insurer thereunder from any liability which it may have to any other named
insured party.
11.06 Subtenant shall have included in all of its insurance policies a
waiver of the insurer's right of subrogation against Landlord, Sublessor and
others required by the Lease, if any. Subtenant hereby waives any and all right
of recovery it might otherwise have against Landlord, Sublessor and others, if
any, required by the Lease, their
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respective officers, directors, employees, agents and contractors, for loss or
damage to Subtenant's property by fire or other casualty notwithstanding that
such loss or damage may result from the negligence or fault of Landlord,
Sublessor or such others as aforementioned, their respective officers,
directors, employees, agents or contractors. Sublessor hereby waives any and all
right of recovery it might otherwise have against Subtenant, its officers,
directors, employees, agents and contractors, for loss or damage to Sublessor's
property covered under its insurance policies for fire or other casualties to
the Building, notwithstanding that such loss or damage may result from the
negligence or fault of Subtenant, its officers, directors employees, agents or
contractors. If the foregoing waivers of subrogation are only obtainable with
additional cost, the party responsible to obtain such insurance shall notify
the other party, and, in such event, such other party may at its option pay such
additional cost, in which event such waiver shall be obtained.
11.07 Notwithstanding any provisions in this Sublease to the Contrary,
if, in order to avoid a default under the Lease or any Superior Instrument,
Sublessor or Subtenant is required to maintain broader type coverage or more
insurance coverage with respect to the Subleased Premises than required by this
Sublease (or name other parties as additional insured thereunder), Subtenant
shall comply with all provisions of the Lease and any Superior Instrument
respecting such insurance and shall maintain all insurance required thereby.
SECTION 12. DAMAGE OR DESTRUCTION
----------------------------------
12.01 If the Subleased Premises shall be damaged or destroyed by fire
or other casualty (and if this Sublease shall not be terminated as hereinafter
provided), Sublessor shall make reasonable, diligent and good faith efforts to
cause Landlord to repair the damage to and restore and rebuild the Building to
the extent of Landlord's obligations under the Lease. Sublessor shall repair the
damage to and restore and rebuild the Subleased Premises with and to the extent
of the insurance proceeds provided by the insurance required under Section 11.01
excluding Subtenant's property as soon as possible, but in no event more than
six (6) months, subject to force majeure, after the damage or destruction
(provided Landlord has performed its restoration obligations).
12.02 Subject to the provisions of 12.05, if all or part of the
Subleased Premises shall be damaged, destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Fixed Rent and
the Additional Rent under Section 5 of this Sublease shall be abated in the
proportion that the untenantable area of the Subleased Premises bears to the
total area of the Subleases Premises. Such abatement shall be effective from
the period commencing upon the date of the damage or destruction and ending on
the date the damage to the Subleased Premises shall be substantially restored,
provided, however, should Subtenant or any of its subtenants reoccupy a portion
of the Subleased Premises during the period the restoration is taking place and
prior to the date that the Subleased Premises are substantially repaired or made
tenantable, the Fixed Rent and the Additional Rent allocable to such reoccupied
portion, based upon the proportion which the area of the reoccupied portion of
the Subleased Premises bears to the total area of the Subleased Premises, shall
be payable by Subtenant from
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the date of such reoccupancy.
12.03 (i) If the Sublease Premises shall be substantially damaged or
destroyed by fire or other casualty, Sublessor shall obtain for and deliver to
Subtenant an estimate from an independent contractor, architect or professional
engineer, as to the time required for Landlord to restore and repair the
Sublease Premises, as appropriate (the "Estimate"). The date set forth in the
Estimate shall hereinafter be referred to as the "Outside Date".
(ii) If the Sublease Premises shall be damaged or destroyed by
fire or other casualty, such that the Outside Date is more than one hundred
eighty (180) days after the date of the casualty, either Subtenant or Sublessor
may terminate this Sublease by giving the other party notice to such effect.
Such termination shall be effective on the date specified in such termination
notice, but not earlier than thirty (30) days nor later than ninety (90) days
after the date of such notice. Upon such termination, the Term shall expire as
if it were the Expiration Date.
12.04 Except as expressly set forth in 12.03, Subtenant shall not be
entitled to terminate this Sublease on account of a fire or other casualty and
in the event of a fire or other casualty, Sublessor shall have no liability to
Subtenant for inconvenience, loss of business or annoyance arising on account of
the fire or other casualty or from any repair or restoration of any portion of
the Subleased Premises or of the Building.
12.05 Notwithstanding any of the foregoing provisions of this Section
12, if by reason of some act or omission on the part of Subtenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, Sublessor or Landlord shall be unable to collect all of
the insurance proceeds (including without limitation, rent insurance proceeds)
applicable to the damage or destruction of the Subleased Premises or the
Building (by fire or other casualty), there shall be no abatement or reduction
of Fixed Rent or Additional Rent to the extent of such uncollected insurance
proceeds.
12.06 Sublessor has no obligation to carry insurance of any kind on
Subtenant's property, furnishings, equipment, or trade fixtures and,
notwithstanding anything to the contrary set forth herein, Sublessor shall not
be obligated to repair any damage thereto, and Subtenant agrees to look solely
to its insurance for recovery of any damage to or loss thereto.
12.07 The provisions of this Section 12 shall be deemed an express
agreement governing any case of damage or destruction of the Subleased Premises
by fire or other casualty, and Section 227 of the Real Property Law of the
State of New York, providing for such a contingency in the absence of an
express agreement, and any other law of like import, now or hereinafter in
force, shall have no application in such case.
SECTION 13. EMINENT DOMAIN
--------------------------
13.01 If the Lease is terminated (whether by Sublessor or Landlord) by
reason of a condemnation (or other taking for a quasi-public or public purpose),
or if the whole or any part of the Subleased Premises or access to shall be
taken by
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condemnation or in any other manner for any public or quasi-public use or
purpose, this Sublease and the term and estate hereby granted shall terminate as
of the date of vesting of title on such taking (herein called "Date of the
Taking") as if such date were the Expiration Date.
13.02 Except as expressly provided in this 13.02, Sublessor shall be
entitled to receive the entire award or payment in connection with any taking
without reduction therefrom for any estate vested in Subtenant by this Sublease
or any value attributable to the unexpired portion of the Term, and Subtenant
shall receive no part of such award except as hereinafter expressly provided.
Subtenant hereby expressly assigns to Sublessor all of its right, title and
interest in and to every such award or payment and waives any right to the value
of the unexpired portion of the Term. Nothing contained herein shall be deemed
to prevent Subtenant from making a separate claim in any condemnation proceeding
for the then value of Subtenant's personal property which has been taken, and
moving expenses incurred as a result thereof, provided such claim does not
reduce the amount of the award payable to Sublessor.
SECTION 14. SUBLESSOR'S AND SUBTENANT'S PROPERTY; END OF TERM
--------------------------------------------------------------
14.01 (i) All fixtures, equipment, materials, additions,
improvements, appurtenances and other property attached to, or built into the
Subleased Premises, whether Sublessor's Work pursuant to Section 8 of this
Sublease or during the Term and whether at the expense of Sublessor or
Subtenant, shall be and remain a part of the Subleased Premises and at the
expiration of the Term shall be deemed the property of the Sublessor and same
shall not be removed by Subtenant, except as expressly provided in 14.01(ii).
Notwithstanding the foregoing, but subject nevertheless to the provisions of
Section 8 of this Sublease, neither Sublessor nor Landlord shall be liable in
any manner for payment or otherwise to any contractor, subcontractor, laborer or
supplier in connection with the purchase or furnishing after the date hereof of
any such materials or equipment or the installation thereof. Neither Sublessor
nor Landlord shall have any obligation to pay any compensation to Subtenant by
reason of the acquisition of title to such materials and equipment by the
Sublessor pursuant to the provisions of this Section 14.
(ii) Upon written notice to Subtenant given prior to the
Expiration Date or within 10 days after any earlier expiration of the Term,
Sublessor may require Subtenant to remove (and thereupon Subtenant shall remove)
all or part of the fixtures, equipment, materials, improvements, appurtenances
and other property described in the first sentence of 14.01(i) other than
Sublessor's Work pursuant to Section 8 hereof which Sublessor did not note had
to be removed at the time of Sublessor's approval thereof. In connection with
any such removal, Subtenant shall immediately and at its expense, repair and
restore the Subleased Premises to the condition existing prior to installation
and repair any damage to the Subleased Premises or the Building due to such
removal.
14.02 Notwithstanding anything to the contrary set forth in 14.01 above,
all movable partitions, business and trade fixtures, and office equipment, to
the extent installed in the Subleased Premises by or for the account of
Subtenant
-16-
without expense to Sublessor and removable without structural damage to the
Building or the Subleased Premises, and all furniture, furnishing and other
articles of movable personal property owned by Subtenant and located in the
Subleased Premises (herein sometimes collectively called "Subtenant's property"
or "property of Subtenant") shall be and shall remain the property of Subtenant
and may be removed by Subtenant at any time during the Term; provided that if
any of Subtenant's property is removed, Subtenant shall repair or pay the cost
of repairing any damage to the Subleased Premises or to the Building resulting
from the installation and/or removal thereof.
14.03 At or before the Expiration Date (or within 10 days after any earlier
termination of this Sublease) Subtenant, at its expense, shall remove from the
Subleased Premises all of Subtenant's property, and Subtenant shall repair any
damage to the Subleased Premises or the Building resulting from any installation
and/or removal thereof.
14.04 After Subtenant vacates the Subleased premises, any items of
Subtenant's property which shall remain in the Subleased Premises may at the
option of Sublessor, be deemed to have been abandoned, and in such case such
items may be retained by Sublessor as its property or disposed of by Sublessor,
without accountability, in such manner as Sublessor shall determine, at
Subtenant's sole cost and expense.
14.05 The provisions of this Section 14 shall survive the Expiration Date
or earlier termination of the Term.
SECTION 15. ACCESS, NAME OF BUILDING, AND SIGNS
------------------------------------------------
15.01 Except for the space within the inside surfaces of all exterior
walls bounding the Subleased Premises, hung ceilings, floors, exterior windows
and doors bounding the Subleased Premises, all of the remaining portions of the
Building, including, without limitation, exterior walls, core corridor walls and
doors and any corridor entrance, any space located within or adjacent to the
Subleased Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other Building facilities, and the use
thereof, as well as access thereto through the Subleased Premises for the
purposes of operation, maintenance and repair, are reserved to Sublessor and
Landlord and persons authorized by Sublessor or Landlord. Sublessor reserves the
right, and Subtenant shall permit Sublessor and persons authorized by Sublessor,
to install, erect, use and maintain pipes, shafts, ducts and conduits in and
through the Subleased Premises.
15.02 Sublessor and persons authorized by Sublessor shall have the right
to enter and/or pass through the Subleased Premises at any time or times upon
such notice as is reasonable under the circumstances (it being agreed that one
(1) Business Day's notice shall always be deemed to be reasonable notice and
that no notice need be given in an emergency) (i) to examine the Subleased
Premises and to show them to Landlord and to actual and prospective purchasers,
mortgagees or lessees of the Building (ii) to make such repairs, alterations,
additions and improvements in or to the Subleased Premises and/or to the
Building or to its facilities and equipment as Sublessor is or persons
authorized by Sublessor are required or reasonably desire to make, and (iii) to
read any utility meter or submeter located
-17-
therein. Sublessor and any authorized persons shall be allowed to take all
materials into and upon the Subleased Premises that may be required in
connection therewith, without any liability to Subtenant (except to the extent
of Sublessor's gross negligence or willful misconduct) and without any reduction
of Subtenant's covenants and obligations hereunder.
15.03 During the time period of six (6) months prior to the Expiration
Date, Sublessor and persons authorized by Sublessor may exhibit the Subleased
Premises to prospective tenants in accordance with 15.02 above.
15.04 To the extent Sublessor shall deem necessary or desirable, Sublessor
reserves the right, at any time, without it being deemed a constructive eviction
and without incurring any liability to Subtenant therefor, or affecting or
reducing any of Subtenant's covenants and obligations hereunder, to make or
permit to be made such changes, alterations, additions and improvements in or to
the Land, the Building, and the fixtures and equipment thereof, as well as in or
to the street entrances, doors, halls, passages, lavatories, facilities, parking
lots, walkways, landscaped areas and other public part thereof provided that
Subtenant's access to the Subleased Premises is not materially adversely
affected or impeded by such changes, alterations, additions or improvements.
15.05 Sublessor reserves the right to change the address of the Building
and/or to place signs above the entrances to the Building at any time and from
time to time. Neither this Sublease nor any use by Subtenant shall give
Subtenant any easement or other right in or to the use of any door, parking lot
or any passage or any plaza connecting the Building with any other building or
to any public or private conveniences, and the use of such doors, parking lots,
passages, plazas and conveniences may without notice to Subtenant, be regulated
or discontinued at any time by Sublessor (except if expressly set forth to the
contrary herein).
15.06 If Subtenant shall not be personally present to open and permit an
entry into the Subleased Premises at any time when for any reason an entry
therein shall be necessary by reason of fire or other emergency, Sublessor or
Landlord or its or their agents may forcibly enter the same without rendering
Sublessor or Landlord or its or their agents liable therefor and without in any
manner affecting the obligations and covenants of this Sublease.
15.07 (i) In no event shall Subtenant, without Sublessor's prior written
consent in each instance (and Landlord's prior written consent, if required),
place or affix any signs or devices of any kind on the exterior of the Building,
or within or upon the Subleased Premises or the Building such that same are
visible from the outside of the Building or the Subleased Premises. Any such
consents to signs and/or devices shall be of the size, color, design and
location designated and approved by Sublessor (and Landlord if required) in
writing.
(ii) Any such consented to signs and devices shall be placed or
affixed at Subtenant's sole cost and expense and shall be in conformity with all
applicable laws, codes, permits, ordinances and regulations. Subtenant, at its
sole cost and expense, shall remove such signs and/or
-18-
devices at the expiration of the Term (or earlier termination of this Sublease)
and shall repair any damage resulting from the installation, maintenance or
removal thereof. Subtenant shall hold Sublessor and Landlord harmless from any
claims or liability that may arise by virtue of the installation, maintenance or
removal of any such signs and/or devices
SECTION 16. ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
----------------------------------------------------
16.01 Subtenant shall not voluntarily or involuntarily (a) assign or
otherwise transfer this Sublease or the estate hereby granted, (b) sublet the
Subleased Premises (c) allow the Subleased Premises to be used or occupied by
others, or (d) mortgage, pledge or encumber this Sublease or the Subleased
Premises or any part thereof, without, in each instance, obtaining the prior
written consent of Sublessor, (and if required by the Lease, Landlord) except as
otherwise expressly provided in this Section 16.
The sale, assignment, transfer, pledge or issuance of shares of any
corporation which is the Subtenant hereunder or other occupant of the Subleased
Premises (whether by sub-sublease or assignment of this Sublease) which at one
time or in the aggregate results in a reduction of the holdings of the
shareholders of such corporation (on the date hereof or the date such
corporation first became the Subtenant or occupant of the Subleased Premises, as
appropriate) to less than 51% of the shares in such corporation shall be deemed
an assignment of this Sublease. The transfer, sale, pledge, issuance or
assignment of partnership interests in any partnership which is the Subtenant
hereunder or other occupant of the Subleased Premises (whether by sub-sublease
or assignment of the Sublease) which at one time or in the aggregate results in
a reduction of the holdings of the partners of such partnership (on the date
hereof or the date such partnership first became the Subtenant or occupant of
the Subleased Premises, as appropriate) to less than 51% of the ownership
interests in such partnership shall be deemed an assignment of this Sublease.
16.02 The provisions of Section 16.01 hereof shall not apply to (a) an
assignment to a corporation into or with which Subtenant is merged or
consolidated or to an entity to which substantially all of Subtenant's assets
are transferred (provided such merger, or consolidation or transfer of assets is
for a good business purpose and not principally for the purpose of transferring
this Sublease or the leasehold estate created hereby, and provided further, that
the resultant corporation or the assignee, as the case may be, has a net worth
at least equal to or in excess of the net worth of Subtenant immediately prior
to such merger, or consolidation or transfer) or (b) an assignment to an
Affiliated Entity, provided such assignment is for a good business purpose and
not principally for the purpose of avoiding the application of Section 16.01 of
this Sublease. As used in this Section 16.02, an "Affiliated Entity" means a
corporation controlled by, controlling or under common control with the
Subtenant. A corporation, for this purpose, shall not be deemed controlled by
another unless at least fifty-one (51%) percent of its voting stock is owned
both beneficially and of record by such other.
16.03 Any assignment, subletting or transfer, whether made with
Sublessor's consent as required by Section 16.01 or without Landlord's or
Sublessor's consent pursuant to Section
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16.02, shall be made only if, and shall not be effective unless and until all of
the following shall have been fulfilled at least thirty (30) days prior to the
effective date of the contemplated assignment or subletting:
(a) Subtenant shall furnish Sublessor with the name and business
address of the proposed subtenant or assignee, information with respect to the
nature and character of the proposed Subtenant's or assignee's business or
activities, and current financial information with respect to net worth, credit
and financial responsibility of the proposed subtenant or assignee;
(b) In the case of an assignment, Subtenant shall deliver to
Sublessor an executed counterpart thereof, and all ancillary agreements with the
proposed assignee (including all documents from which the considerations to be
received by Subtenant referred to in Section 16.07 hereof can be ascertained);
(c) In the case of a contemplated subletting, Subtenant shall
deliver to Sublessor, an executed counterpart of the proposed sublease and all
ancillary agreements with the proposed sublessee (including all documents from
which the considerations to be received by Subtenant referred to in Section
16.07 hereof can be ascertained);
(d) In the case of an assignment, the assignee shall execute,
acknowledge and deliver to Sublessor a recordable agreement, in form and
substance reasonably satisfactory to Sublessor, whereby the assignee shall
assume and agree to fulfill the obligations and performance of this Sublease and
the assignment and agree to be personally bound by and upon the covenants,
agreements, terms, provisions and conditions hereof on the part of Subtenant to
be performed or observed and whereby the assignee shall agree that the
provisions of Section 16.01 hereof shall, notwithstanding such an assignment or
transfer, continue to be binding upon it in the future;
(e) Each sublease or assignment referred to in clauses (b) and
(c) of this Section 16.03 shall specifically state that (i) it is subject to all
of the terms, covenants, agreements, provisions, and conditions of this
Sublease, (ii) the Subtenant or Assignee, as the case may be, will not have the
right to a further assignment thereof or sublease thereunder, or to allow the
Subleased Premises to be used by others, without the consent of Sublessor (and
if required by the Lease, the Landlord) in each instance, (iii) a consent by
Sublessor thereto shall not be deemed or construed to modify, amend or affect
the terms and provisions of this Sublease, or Subtenants's obligations
hereunder, which shall continue to apply to the Subleased Premises, and the
occupants thereof, as if the sublease or assignment had not been made, (iv) if
Subtenant defaults in the payment of any Fixed or Additional Rent, Sublessor is
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authorized to collect any rent due or accruing from any assignee, subtenant or
other occupant of the Subleased Premises and to apply the net amounts collected
to the Fixed Rent or Additional Rent, (v) the receipt by Sublessor of any
amounts from an assignee or subtenant, or other occupant of any part of the
Subleased Premises shall not be deemed or construed as releasing Subtenant from
Subtenant's obligations hereunder or the acceptance of that party as a direct
tenant.
16.04 The liability of Subtenant, and the due performance by Subtenant of
the obligations on its part to be performed under this Sublease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Sublessor or any grantee or assignee of Sublessor, by way of mortgage or
otherwise, extending the time of or modifying any of the obligations contained
in this Sublease, or by any waiver or failure of Sublessor to enforce any of the
obligations on Subtenant's part to be performed under this Sublease, and
Subtenant shall continue to be liable hereunder.
16.05 Sublessor shall not unreasonably withhold or delay its consent to a
subletting of the Subleased Premises for substantially the remainder of the
Term, provided:
(a) The proposed Subtenant is a party whose reputation, financial net
worth, credit and financial responsibility is, considering the responsibilities
involved, reasonably satisfactory to Sublessor.
(b) The nature and character of the proposed Subtenant, its business
or activities and intended use of the Subleased Premises is, in Sublessee's
judgment, in keeping with the standards of the Building and the area in which
the Building is located and does not conflict with the provisions of Section
2.01 of this Sublease;
(c) No such subletting shall constitute or cause (with or without
notice or lapse of time or otherwise) a default under any mortgage; and
(d) Subtenant shall have complied with all of the provisions of
Section 16.03 and Sublessor shall not have made any of the elections provided
for in Section 16.07.
16.06 Subtenant shall pay to Sublessor, as Additional Rent:
(a) in the case of an assignment, an amount equal to all sums and
other considerations paid to Subtenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less, in the case of a sale thereof, the then net unamortized
or undepreciated cost thereof determined on the basis of Subtenant's federal
income tax returns); and
(b) in the case of a sublease, any rents, additional charges or other
consideration payable under the sublease to Subtenant (including, but not
limited to, sums paid for the sale or rental of Subtenant's fixtures, leasehold
improvements, equipment, furniture or other personal property, less, in the case
of the sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Subtenant's federal income tax returns, which
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are in excess of the Fixed Rent for the Subleased Space that Subtenant is then
paying Sublessor in accordance with this Sublease.
The sums payable under Subdivisions (a) and (b) preceding shall be paid to
Sublessor as and when paid by the subtenant to Subtenant.
Subtenant shall furnish Sublessor with a written statement, semi-annually,
certified by Subtenant, from which the additional rent to which Sublessor may be
entitled by reason of the application of Subdivisions (a) and (b) preceding can
be determined. Subtenant shall keep books of account in accordance with
generally accepted accounting principles consistently applied and supporting
material relating to the matters reflected in Subdivisions (a) and (b)
preceding, and shall make the same available to Sublessor at all reasonable
times for inspection at the Subleased Premises for the purpose of verifying any
statement furnished or to be furnished by Subtenant. Sublessor shall have the
right to delegate this inspection to a duly authorized representative and, in
addition, may make such copies thereof as it reasonably requires, but only for
the purposes enumerated in this Section.
16.07 Notwithstanding anything to the contrary contained in this Sublease,
in the event Subtenant desires to assign or otherwise transfer this Sublease or
sublet the Subleased Premises, Sublessor shall have the right (a) in the case of
an assignment other than to an "Affiliated Entity", to cancel this Sublease and
(b) in the case of a subletting other than to an "Affiliated Entity", to
recapture the Subleased Premises by giving Subtenant written notice thereof
within 30 days after Subtenant has fulfilled all its obligations pursuant to
this Section 16 hereof. Such cancellation or recapture as the case may be shall
become effective as of the effective date of the contemplated assignment or
subletting.
SECTION 17 COMPLIANCE WITH LAWS
-------------------------------
17.01 Subtenant, at Subtenant's sole cost and expense, shall in a prompt
and diligent manner and on a timely basis, comply with all present and future
laws, ordinances, orders, codes, permits and regulations of Federal, State,
County, and Municipal authorities, and with all directions, pursuant to law, of
all public officers which shall impose any compulsory and enforceable duty upon
Landlord, Sublessor or Subtenant with respect to the Subleased Premises or the
use or occupancy thereof. If a structural change, addition or repair is required
for such compliance, and if such change, addition or repair is not required
because of Landlord's or Sublessor's failure to comply with then applicable laws
at time of construction, Subtenant shall promptly modify its use to obviate the
requirement of such change or inform Sublessor thereof (in which event Sublessor
may, on Subtenant's behalf make such change, addition or repair). In such later
event, Subtenant shall pay to Sublessor, as Additional Rent, in equal monthly
installments from the date of the completion of such structural change, addition
or repair and until the expiration of the Term, a sum equal to either: (i) that
fraction of the cost of such change, addition or repair of which the numerator
is the number of months from the date of completion of such change, addition or
repair until the expiration of the Term, and the denominator is the number of
months of the "useful life" based on the applicable guideline
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issued by U.S. Internal Revenue Service for straight-line (unaccelerated)
depreciation of such change, addition or repair for tax purposes (if the "useful
life" is not less than the time then remaining in the Term); or (ii) the full
cost of such change, addition or repair if the "useful life" is less than the
time then remaining in the Term.
17.02 Except as otherwise provided in this Sublease, Subtenant agrees to
fully comply with, and not to take action or fail to take any action which shall
or may result in a violation of the Comprehensive Environmental Response
Compensation Liability Act or the Resource Conservation and Recovery Act or any
other Federal, State or local statute, regulation, law or ordinance generally
considered as having environmental implication or significance, or any statute
which shall be a successor to, or in lieu of, any of the foregoing. In the event
any lien shall be asserted against Landlord, Sublessor, any property of Landlord
or Sublessor or the Subleased Premises in connection with any such statute and
as a result of any such act or omission by Subtenant, Subtenant covenants and
agrees to immediately discharge such lien, or cause the same to be discharged,
so that such lien shall no longer be asserted against Landlord or Sublessor or
the Subleased Premises or against any other property of Landlord or Sublessor,
as the case may be. Sublessor represents that there shall be no condition
existing on the Subleased Premises upon the Commencement Date nor shall
Sublessor cause any condition thereafter which may result in a violation of the
Comprehensive Environmental Response Compensation Liability Act or the Resource
Conservation and Recovery Act or any other Federal, State or local statute,
regulation, law or ordinance generally considered as having environmental
implication or significance, or any statute which shall be a successor to, or in
lieu of any of the foregoing.
17.03 Subtenant shall give prompt written notice to Sublessor of any notice
it receives of the violation of any law with respect to the Subleased Premises.
SECTION 18 SUBORDINATION
------------------------
18.01 (i) This Sublease is and shall remain subject and subordinate to (a)
the Lease and the terms and provisions thereof, (b) all matters to which the
Lease is now or hereafter subordinate or subject to and (c) all mortgages which
may now or hereafter affect all or any portion of the Building and to all
renewals, extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitutions therefor, and advances made
thereunder [(a), (b) and (c) are collectively referred to herein as "Superior
Instruments"]. This Section 18.01 shall be self-operative, and no further
instrument of subordination shall be required. In confirmation of such
subordination, Subtenant shall, upon Sublessor's request, promptly execute,
acknowledge and deliver any instrument that any holder of a Superior Instrument
may request to confirm such subordination. Sublessor, however, shall endeavor to
obtain from any current or future mortgagees its standard non-disturbance and
attornment agreement.
18.02 Without limiting any of the provisions of this Sublease, in the event
that the holder of a Superior Instrument or its assigns shall succeed to the
interest of Sublessor, then, at such holder's (or its assigns') option, this
Sublease shall nevertheless continue in full force and
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effect and Subtenant shall and does hereby agree to attorn to such holder or its
assigns, and to recognize such holder, or its assigns as Sublessor, except that
such holder as successor Sublessor shall not be (i) bound by any payments of
rent, for more than one (1) month in advance, (ii) required to perform any
portion of the Sublessor's Work, (iii) responsible for any monies owed to
Subtenant by Sublessor, or (iv) subject to any credits, offsets, claims or
counterclaims which Subtenant may have against Sublessor.
18.03 Subtenant shall, at any time upon not less than ten (10) days prior
notice by Sublessor, execute, acknowledge and deliver to Sublessor a statement
in writing certifying that this Sublease is in full force and effect and
unmodified (or, if modified, stating the modifications), and the dates to which
Fixed Rent, Additional Rent and other charges have been paid in advance, if
any, and stating whether or not, to the best knowledge of Subtenant, Sublessor
is in default under this Sublease and, if so, specifying each such default, and
any other statements reasonably requested by Sublessor or the holder of any
Superior Instrument, it being intended that any such statement delivered
pursuant hereto may be relied upon by any prospective purchaser of the Land
and/or the Building or any interest or estate therein, any mortgagee or
prospective mortgagee thereof or any prospective assignee of any such mortgage.
Subtenant agrees at any time to enter into reasonable modifications of this
Sublease requested by the holder of any Superior Instrument; provided, however,
that no such modifications shall (i) increase the rent reserved herein, (ii)
shorten the Term, (iii) adversely affect Subtenant's ability to use or occupy
all of the Subleased Premises or (iv) diminish Subtenant's rights hereunder.
18.04 Subtenant shall promptly furnish to Sublessor all financial
information and other information concerning Subtenant (if available) reasonably
required by any institutional mortgagee to whom Sublessor or Landlord applies
for mortgage financing on the Building, and Subtenant shall execute any
documents reasonably required by such mortgagee. Subtenant shall be under no
obligation to furnish such information unless Sublessor and any such
institutional mortgagee shall agree in advance in writing to treat all such
information received from Subtenant as confidential, and not to disclose or use
the same except for the sole purpose of mortgage financing on the Building.
18.05 If required by the provisions of any Superior Instrument of all or
any portion of the Building, and provided the name and address of any holder of
each such mortgage have been provided to Subtenant, Sublessor and Subtenant,
without first obtaining the written consent of the holder of any such mortgage,
shall not enter into any agreement, the effect of which would be to: (i) modify,
cancel, terminate or surrender this Sublease except as provided in this
Sublease; (ii) grant any concessions in respect thereof; (iii) reduce the Fixed
Rent or Additional Rent or require the prepayment of any Fixed Rent or
Additional Rent in advance of the due date thereof; (iv) create any offsets or
claims against Fixed Rent or Additional Rent; or (v) assign in whole or in part
any of the Fixed Rents or Additional Rents therefrom or Subtenant's interest in
this Sublease or sublet the whole in any portion of the Subleased Premises,
except as provided in this Sublease.
18.06 Subtenant shall not be entitled to assert against
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the holder of any Superior Instrument (in its capacity as successor Sublessor on
account of foreclosure or acceptance of a deed in lieu of foreclosure, should
such holder, ever assume such capacity) any claim or liability based on events
which have occurred or shall occur before such holder becomes the Sublessor
hereunder, if ever.
18.07 In the event of any act or omission by Sublessor which would give
Subtenant the right to terminate this Sublease or to claim a partial or total
eviction, Subtenant shall not exercise such right until (i) it shall have given
written notice, by certified or registered mail, of such act or omission to the
holder of any Superior Instrument whose name and address shall have been
furnished to Subtenant in writing, at the last address so furnished, and (ii)
fifteen (15) days shall have elapsed following the giving of such notice, and
then only if following the giving of such notice, Sublessor or said holder shall
not, with reasonable diligence, have commenced and continued to remedy such act
or omission or to cause the same to be remedied.
SECTION 19 PROPERTY LOSS, DAMAGE, REIMBURSEMENT
-----------------------------------------------
Except as otherwise provided in this Sublease, neither Sublessor nor its
employees, officers, directors, contractors, invitees, licensees or agents shall
be liable for any loss of or damage to any property belonging to Subtenant or
any other occupant of the Subleased Premises, whether such loss or damage is
occasioned by fire, casualty, theft or otherwise. Neither Sublessor nor its
employees, officers, directors, contractors, invitees, licensees or agents shall
be liable for any injury or damage to persons, property, or business resulting
from fire, explosion, falling plaster, steam, gas, electricity, electrical
disturbance, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature, unless caused by or due to the gross negligence or willful misconduct of
Sublessor, its employees, officers, directors, contractors, invitees, licensees
or agents, nor shall Sublessor be liable for any such damage caused by other
tenants, subtenants or persons in the Building or caused by operations in
construction of any private, public or quasi-public work. Subtenant shall
reimburse and compensate Sublessor, as Additional Rent, for all damages or fines
sustained or incurred by Sublessor due to non-performance or non-compliance with
or breach or failure to observe any term, covenant or condition of this Sublease
upon Subtenant's part to be kept, observed, performed and complied with.
SECTION 20 CERTIFICATE OF OCCUPANCY
-----------------------------------
Subtenant will not at any time use or occupy (or allow the use or occupancy
of) the Subleased Premises in a manner which is or is likely to be in violation
of the certificate of occupancy issued for the Subleased Premises.
SECTION 21 DEFAULT
------------------
21.01 Upon the occurrence at any time prior to or during the Term, of any
one or more of the following events ("Events of Default"):
(i) if Subtenant shall default in the payment when due of any
installment of the Fixed Rent or Additional
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Rent and such default shall continue for a period of ten (10) days after notice
thereof; or (ii) if Subtenant shall default in the observance or performance of
any term, covenant or condition of this Sublease on Subtenant's part to be
observed or performed (other than the covenants for the payment of Fixed Rent
and Additional Rent) and Subtenant shall fail to remedy such default within
thirty (30) days after notice thereof by Sublessor, provided, that if such
default is of such a nature that it cannot be completely remedied within said
period of thirty (30) days, if Subtenant shall not commence within said period
of thirty (30) days, or shall not thereafter diligently prosecute to completion,
all steps necessary to remedy such default prior to (a) a reasonable period of
time, (b) the imposition of any penalty or other liability by any governmental
authority, or (c) said event constituting a default under a Superior Instrument;
or (iii) if Subtenant shall file a voluntary petition in a bankruptcy or
insolvency, or shall be adjudicated a bankrupt or become insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future Federal bankruptcy act or any other present or future
applicable Federal, State or other statute or law, or shall make an assignment
for the benefit of creditors or shall seek or consent to or acquiescence in the
appointment of any trustee, receiver or liquidator of Subtenant or of all or a
portion of the assets of Subtenant; or (iv) if Subtenant's interest in this
Sublease shall devolve upon or pass to any person, whether by operation of law
or otherwise, in violation of the provisions of this Sublease; then, Sublessor,
at any time thereafter, at Sublessor's option, may give Subtenant a three (3)
day notice of termination of this Sublease and, in the event such notice is
given, this Sublease and the Term shall come to an end and expire (whether or
not the Term shall have commenced) upon the expiration of said three (3) days
with the same effect as if the date of expiration of said three (3) days were
the Expiration Date, but Subtenant shall remain liable for damages as provided
in Section 23 of this Sublease.
SECTION 22 REMEDIES
--------------------
22.01 In addition to all of the remedies available to Sublessor under
Section 21, during the continuance of an Event of Default, Sublessor may, with
or without terminating this Sublease pursuant to Section 21, exercise one or
more of the following remedies:
(i) Sublessor and its agents and servants may immediately, or at
any time after such default or after the date upon which this Sublease and the
Term shall expire and come to an end, re-enter the Subleased Premises or any
part thereof, without notice, either by summary proceedings or by any other
applicable action or proceedings or otherwise as permitted by law, and may
repossess the Subleased Premises and dispossess Subtenant and any other
occupants from the Subleased Premises and remove any and all of their property
and effects from the Subleased Premises; and
(ii) Sublessor, at Sublessor's option, may relet the whole or any
part or parts of the Subleased Premises from time to time, either in the name of
Sublessor or otherwise, to such party or parties, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free periods, as Sublessor,
in its
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discretion, may determine. Sublessor shall have no obligation to relet the
Subleased premises or any part thereof and shall in no event be liable for
refusal or failure to relet the Subleased Premises or any part thereof, or, in
the event of any such reletting, for refusal or failure to collect any rent due
upon any such reletting, and no such refusal or failure shall operate to relieve
Subtenant of any liability under this Sublease or otherwise to affect any such
liability. Sublessor, at Sublessor's option, may make such repairs,
replacements, alterations, additions, improvments, decorations and other
physical changes in and to the Subleased Premises as Sublessor, in its
discretion, deems advisable or necessary in connection with any such reletting
or proposed reletting, without relieving Subtenant of any liability under this
Sublease or otherwise affecting any such liability.
22.02 In the event a breach or threatened breach by Subtenant, or by any
persons claiming through or under Subtenant, of any term, covenant or condition
of this Sublease on such party's part to be observed or performed, Sublessor
shall have the right to enjoin such breach and the right to invoke any other
remedy allowed by law or in equity as if re-entry, summary proceedings and other
special remedies were not provided in this Sublease for such breach.
The right to invoke the remedies hereinbefore set forth are cumulative and
shall not preclude Sublessor from invoking any other remedy allowed at law or in
equity.
22.03 If Subtenant shall default in the payment when due of any
installment of Fixed Rent or Additional Rent for more than five (5) days after
the same becomes due and payable, then Subtenant shall pay Sublessor a later
charge of five ($.05) cents for each dollar ($1.00) of such Fixed Rent or
Additional Rent not paid when due. Such late charge shall be without prejudice
to any of Sublessor's rights and remedies hereunder or at law for non-payment of
rent and shall be in addition thereto.
22.04 If Subtenant shall fail to pay (i) any installment of Fixed Rent or
Additional Rent within five (5) days after the same becomes due and payable,
Subtenant shall pay interest thereon at the Rate calculated on the basis of the
actual days elapsed and based on a 360-day year, from the date on which such
installment or payment is due to the date of payment thereof, and such interest
shall be deemed to be Additional Rent.
SECTION 23 DAMAGES
------------------
23.01 If this Sublease and the Term shall expire and come to an end as
provided in Section 21 or by or under any summary proceedings or any other
action or proceedings, or if Sublessor shall re-enter the Subleased Premises as
provided in Section 22 or by or under summary proceeding or any other action or
proceedings, then, in any of said events:
(i) Subtenant shall pay to Sublessor all Fixed Rent, Additional
Rent and other charges payable under this Sublease by Subtenant to Sublessor to
the date upon which this Sublease and the Term shall have expired and come to
an end or to the date of re-entry upon the Subleased Premises by Sublessor, as
the case may be; and
(ii) Subtenant shall also be liable for and
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shall pay to Sublessor, as damages, any deficiency (referred to as "Deficiency")
between the Fixed Rent and Additional Rent reserved in this Sublease for the
period which otherwise would have constituted the unexpired portion of the
Term, and the net amount, if any, of rents collected under any reletting
effected pursuant to the provisions of Section 23.01 for any part of such period
(first deducting from the rents collected under any such reletting all of
Sublessor's expenses in connection with the termination of this Sublease or
Sublessor's re-entry upon the Subleased Premises and such reletting including,
but not limited to, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, alteration costs and other expenses of preparing the
Subleased Premises for such reletting). Any such Deficiency shall be paid in
monthly installments by Subtenant on the days specified in this Sublease for
payment of installments of Fixed Rent. Sublessor shall be entitled to recover
from Subtenant each monthly Deficiency as the same shall arise, and no suit to
collect the amount of the Deficiency for any month shall prejudice Sublessor's
right to collect the Deficiency for any subsequent month by a similar
proceeding; or
(iii) At any time after the Term shall have expired and come to
an end or Sublessor shall have re-entered upon the Subleased Premises, as the
case may be, whether or not Sublessor shall have collected any Deficiency as
aforesaid, Sublessor shall be entitled to recover from Subtenant, and Subtenant
shall pay to Sublessor, on demand, as and for liquidated and agreed final
damages, a sum equal to the amount by which the Fixed Rent and Additional Rent
reserved in this Sublease for the period which otherwise would have constituted
the unexpired portion of the Term exceeds the fair and reasonable rental value
of the Subleased Premises for the same period. If, before presentation of
proof of such, the Subleased Premises, or any part thereof, shall have been
relet by Sublessor in an "at arms length" transaction, for the period which
otherwise would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be deemed, prima
facie, to be the fair and reasonable rental value for the part of the whole of
the Subleased Premises to relet during the term of the reletting. Subtenant's
payment of liquidated and agreed final damages as hereinabove provided shall be
reduced by the rent actually received by Sublessor upon such reletting.
23.02 Subtenant shall in no event be entitled to any rents collected or
payable under any reletting, whether or not such rents shall exceed the rent
reserved in this Sublease. Solely for the purposes of the Section 23, the terms
Fixed Rent as used in Section 23 shall mean the Fixed Rent in effect immediately
prior to the date upon which this Sublease and the Term shall have expired and
come to an end, or the date of re-entry upon the subleased Premises by
Sublessor, as the case may be, plus any additional Rent, pursuant to the
provisions of Section 5 payable for the Lease Year immediately preceding such
event (or if less than twelve (12) months have elapsed since the Commencement
Date, all of the calendar months immediately preceding such termination, as
annualized to reflect a full calendar year). Nothing contained in Sections 21 or
22 or this Section 23 shall be deemed to limit or preclude the recovery by
Sublessor from Subtenant of the maximum amount allowed to be obtained as damages
by any statute or rule of law, or of any sums or damages to which Sublessor may
be entitled in addition to the
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damages set forth in this Section 23.
SECTION 24 RELEASE; INDEMNITY
-----------------------------
24.01 Neither Sublessor nor Sublessor's officers, directors, employees,
agents or contractors (disclosed or undisclosed) shall be liable to Subtenant or
Subtenant's officers, directors, employees, agents, contractors, invitees or
licensees or any other occupant of the Subleased Premises except for their gross
negligence or willful misconduct. Subtenant shall, subject to the waiver and
release described in 11.06, save Sublessor, Sublessor's officers, directors,
employees, agents and contractors and the holder of any Superior Instrument, and
their respective officers, directors, employees, agents and contractors harmless
from any loss, cost, liability, claim, damage, expense (including, without
limitation, reimburseable attorneys' fees and disbursements), penalty or fine
incurred in connection with or arising during the Term or during any period
while Subtenant is in occupancy of any part of the Subleased Premises and
resulting from an injury to Subtenant or to any other person or for any damage
to, or loss (by theft or otherwise) of, any of Subtenant's property or of the
property of any other person, irrespective of the cause of such injury, damage
or loss (including the acts or negligence of any tenant, subtenant or other
occupant of the Building, or of any owners or occupants of adjacent or
neighboring property or caused by operations in construction of any private,
public or quasi-public work) unless due to the gross negligence or willful
misconduct of Sublessor, its officers, directors, employees, agents and
contractors, invitees or licensees, provided that even if due to such parties'
gross negligence or willful misconduct, Subtenant waives, to the full extent
permitted by law, any claim for damages resulting from loss of business or
profit.
24.02 Subtenant hereby indemnifies and agrees to hold harmless Sublessor,
its officers, directors, employees, agents and contractors and the holder(s) of
any Superior Instruments(s) from and against any loss, cost, liability, claim,
damage, expense (including, without limitation, attorney's fees and
disbursements), penalty or fine suffered or incurred in connection with or
arising from (i) a default by Subtenant in the performance of any of the terms
of this Sublease on Subtenant's part to be performed, (ii) the use or occupancy
or manner of use or occupancy or maintenance of the Subleased Premises, to the
extent such maintenance is Subtenant's obligation hereunder, and (iii) any acts,
omissions or negligence of Subtenant, or the officers, directors, employees,
agents, invitees, subtenants, assignees or licensees of Subtenant or of any such
person, in or about the Subleased Premises either prior to, during or after the
expiration of the Term.
24.03 In case any action or proceeding be brought against Sublessor or an
employee or agent of Sublessor by reason of any of the foregoing, Subtenant,
upon notice from Sublessor, shall defend such action or proceeding by counsel
chosen by Subtenant who shall be satisfactory to Sublessor. Subtenant or its
counsel shall keep Sublessor fully apprised at all times of the status of such
defense and shall not settle same without the written consent of Sublessor.
SECTION 25 NO WAIVER
--------------------
No act or thing done by Sublessor or Sublessor's
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employees, directors, officers, agents, guests or invitees during the Term shall
be deemed an acceptance of a surrender of the Sublease Premises, and no
agreement to accept such surrender shall be valid unless in writing signed by
Sublessor. No employee of Sublessor or of Sublessor's agents shall have any
power to accept the keys to the Subleased Premises prior to the termination of
this Sublease. The delivery of keys to any agent or employee of Sublessor shall
not operate as a termination of this Sublease or a surrender of the Subleased
Premises. In the event of Subtenant at any time desiring to have Sublessor
underlet the Subleased Premises for Subtenant's account, Sublessor or
Sublessor's agents are authorized to receive said keys for such purposes without
releasing Subtenant from any of the obligations under this Sublease, and
Subtenant hereby relieves Sublessor of any liability for loss of or damage to
any of Subtenant's effects in connection with such subletting. The failure of
either party to seek redress for violation of, or to insist upon the strict
performance of, any covenant or condition of this Sublease, shall not prevent a
subsequent act, which would have originally constituted a violation, from having
all the force and effect of an original violation. The receipt by Sublessor of
any Fixed Rent or Additional Rent with knowledge of the breach of any covenant,
term or provision of this Sublease shall not be deemed a waiver of such breach.
No covenant, term or provision of this Sublease shall be deemed to have been
waived by either party unless such waiver be in writing signed by such party. No
payment by Subtenant or receipt by Sublessor of a lesser amount than the Fixed
Rent or Additional Rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated amount then owing, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Sublessor may accept such check or
payment without prejudice to Sublessor's right to recover the balance of Fixed
Rent or Additional Rent or to pursue any other remedy in this Sublease or as
provided at law. No payment by Subtenant shall prejudice Subtenant's right to
assert any rights thereafter.
SECTION 26 WAIVER OF TRIAL BY JURY; COUNTERCLAIMS
--------------------------------------------------
To the fullest extent such waiver is permitted by law, Sublessor and
Subtenant herby waive trial by jury in any action, proceeding or counterclaim
brought by Sublessor or Subtenant against the other on any matter whatsoever
arising out of or in any way connected with this Sublease, the relationship of
Sublessor and Subtenant, the use or occupancy of the Subleased Premises by
Subtenant or any person claiming through or under Subtenant, any claim of injury
or damage, and any emergency or other statutory remedy. The provisions of the
foregoing sentence shall survive the expiration or any sooner termination of the
Term. If Sublessor commences any summary proceeding for nonpayment of rent or
otherwise to recover possession of the Subleased Premises, Subtenant agrees not
to interpose any counterclaim of any nature or description in any such
proceeding, unless the right to assert such counterclaim would thereby be
waived, diminished or prejudiced.
SECTION 27 INABILITY TO PERFORM
--------------------------------
If, by reason of strike or other labor dispute, fire or other casualty (or
reasonable delays in adjustment of insurance), accident, order or regulation of
any Federal,State, County or municipal authority, or any other cause
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beyond Sublessor's reasonable control, whether or not such other cause shall be
similar in nature to those hereinbefore enumerated, Sublessor is unable to
fulfill or is delayed in fulfilling any of Sublessor's obligations under this
Sublease or any collateral instrument, then for a period of time equal to the
time period of such inability or delay, no such inability or delay shall
constitute an actual or constructive eviction, in whole or in part, or impose
any liability upon Sublessor or its officers, directors, employees, agents,
contractors or invitees by reason of inconvenience or annoyance, or injury to or
interruption of the business or otherwise, nor shall any such delay or inability
to perform on the part of Sublessor in anyway affect this Sublease and the
obligation of Subtenant to pay Fixed Rent and Additional Rent hereunder, and the
obligation of Subtenant to perform all of the other covenants and agreements to
be performed by it pursuant to the Terms hereof.
SECTION 28 SUCCESSORS, ASSIGNS, ETC.
------------------------------------
The covenants, conditions and agreements contained in this Sublease shall
bind and inure to the benefit of Sublessor and Subtenant and their respective
and permitted heirs, distributees, executors, administrators, successors and
assigns.
SECTION 29 RULES AND REGULATIONS
--------------------------------
Subtenant shall comply with all rules and regulations promulgated by
Sublessor for the orderly operation of the Building and the Land including,
without limitation, those set forth on Schedule A hereof and all replacements,
modifications and additions thereto, so long as such replacements, additions or
modifications were furnished to Subtenant and do not contradict with the express
terms of this Sublease. Nothing contained in this Sublease shall be construed
or impose upon Sublessor any duty or obligation to Subtenant to enforce the
Rules and Regulations or the terms, covenants and conditions in any other lease
or sublease, as against any other tenant, and Sublessor shall not be liable to
Subtenant for violation of the same by any other tenant or its employees, agents
or visitors to Subtenant for violation of the same by any other tenant or its
employees, agents or visitors.
SECTION 30 BROKER
-----------------
Subtenant acknowledges and represents to Sublessor that no broker except
Xxxxxxx & Xxxxxxxxx, Inc. and Xxxxxx & Xxxxxxx, Inc. ("Broker") is entitled to a
commission or fee in connection with this Sublease transaction, and that
Subtenant and its employees of management level have not viewed or have been
shown Subleased Premises with any broker who is or may be entitled to a
commission or fee in connection with this Sublease transaction other that
Broker. Subtenant acknowledges that Sublessor is entering into this Sublease in
reliance upon the foregoing acknowledgement and representation. Subtenant hereby
indemnifies and agrees to hold Sublessor, its officers, directors, employees,
agents and contractors harmless from and against any and all loss, cost,
liability, damage, expense (including, without limitation, attorneys' fees and
disbursements), penalty or fine suffered as a result of a breach of the
foregoing representations. Subtenant agrees to cooperate with Sublessor and to
provide testimony in any action or proceeding brought against Sublessor based
upon a claim by a
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broker for a commission or fee in connection with this Sublease transaction.
Sublessor agrees to pay the commission earned by Broker pursuant to a separate
agreement.
SECTION 31 CAPTIONS
-------------------
The captions throughout and the index at the beginning of this Sublease are
included only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this Sublease nor the intent of any
provisions thereof.
SECTION 32 RECOVERY FROM SUBLESSOR, SUBLESSOR'S CONSENT
-------------------------------------------------------
32.01 Anything contained in this Sublease to the contrary notwithstanding,
Subtenant agrees to look solely to the estate and property of Sublessor in the
Building for the satisfaction of Subtenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Sublessor
in the event of any default or breach by Sublessor with respect to any of the
terms, covenants and/or conditions of this Sublease to be observed
and/or performed by Sublessor, subject, however, to the prior rights of the
holder of any Superior Instrument; and except as provided above no other
property or assets of Sublessor or its shareholders, officers, directors, or
employees, shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Subtenant's remedies.
32.02 With respect to any provision of this Sublease which provides for
Sublessor's approval and/or consent, Subtenant, in no event, shall be entitled
to make, nor shall Subtenant make any claim, and Subtenant hereby waives any
claim, for money damages, nor shall Subtenant claim any money damages by way of
set-off, counterclaim or defense, based upon any claim or assertion by
Subtenant that Sublessor has unreasonably withheld or unreasonably delayed any
such consent or approval; Subtenant's only remedy in such event being an action
for injunction or specific performance.
SECTION 33 ENTIRE AGREEMENT
---------------------------
This Sublease contains the entire agreement between the parties with
respect to the subleasing of the Subleased Premises and all prior negotiations
and agreements are merged herein. Neither Sublessor nor Sublessor's agent or
representative has made any representation, statement, or promise upon which
Subtenant has relied regarding any matter or thing relating to the Subleased
Premises or any other matter whatsoever, except as is expressly set forth in
this Sublease (including, without limitation, any statement, representation or
promise as to the fitness of the Subleased Premises for any particular use, the
services to be rendered to the Subleased Premises or the prospective amount of
any item of Additional Rent). No oral or written statement, representation or
promise whatsoever with respect to the foregoing or any other matter made by
Sublessor, its agents or any broker, whether contained in an affidavit,
information circular, or otherwise, shall be binding the Sublessor unless
expressly set forth in this Sublease or in a separate writing delivered in
connection with this Sublease or subsequent thereto. This Sublease may not be
orally changed, modified or discharged, in whole or in part, and no executory
agreement shall be effective to change, modify or discharge, in whole or in
part, this Sublease or any obligations under this Sublease, unless such
agreement is set forth in a
-32-
written instrument executed by the party against whom enforcement of the change,
modification or discharge is sought.
SECTION 34 FEES AND EXPENSES
----------------------------
If Subtenant shall default in the performance of any covenant on
Subtenant's part to be performed, Sublessor may at any time during the
continuance of an Event of Default, perform the same for the account of
Subtenant and Subtenant shall pay the cost thereof as Additional Rent. If
Sublessor at any time is compelled to pay or elects to pay any sum of money or
do any act which will require the payment of any sum of money, by reason of the
failure of Subtenant to comply with any provision of this Sublease, or, if
Sublessor is compelled to or does incur any expense (including, without
limitation, attorneys' fees and disbursements, and the cost of instituting
prosecuting and/or defending any action or proceedings instituted by reason of
any continuing Event of Default of Subtenant hereunder), the sum or sums so paid
by Sublessor with all interest, costs and damages, shall be deemed to be
Additional Rent hereunder.
SECTION 35 SURVIVAL
-------------------
The terms, covenants and conditions of this Sublease applicable to
Subtenant or Sublessor shall survive the expiration or earlier termination of
the Sublease, and if any credit or setoff shall not have been fully utilized,
Sublessor shall pay such amount immediately following such expiration or
termination.
SECTION 36 APPLICABLE LAW
-------------------------
This Sublease shall be construed and enforced in accordance with the laws
of the State of New York and any action or court proceeding by Subtenant
hereunder shall be brought and maintained only within the County of Suffolk,
State of New York.
SECTION 37 HOLDOVER
-------------------
In the event Subtenant remains in possession of the Subleased Premises
after the expiration of the Term or earlier termination of this Sublease,
Subtenant, at the option of Sublessor, shall be deemed to be occupying the
Subleased Premises as a tenant from month to month (subject to Sublessor's right
to terminate such tenancy without notice), at a monthly rental equal to two
times the Fixed Rent and Additional Rent payable during the preceding twelve
(12) month period of the Term for the first three month following the expiration
of the Term or earlier termination of this Sublease, and at a monthly rental
equal to two and one-half (2 1/2) times the Fixed Rent and Additional Rent
payable during the preceding twelve (12) month period for the fourth month
following the expiration of the Term or earlier termination of this Sublease and
thereafter, subject to all of the other terms of this Sublease.
SECTION 38 CONSENT TO JURISDICTION
----------------------------------
Subtenant hereby (a) irrevocably consents and submits to the jurisdiction
of any Federal, State, County or Municipal Court sitting in the State of New
York in respect to any action or proceeding brought therein by Sublessor against
Subtenant concerning any matters arising out of or in any way
-33-
relating to this Sublease; (b) irrevocably waives personal service of any
summons and complaint and consents to the service upon it of process in any such
action or proceeding by the mailing of such process by registered mail, return
receipt requested, to Subtenant at the Subleased Premises and hereby agrees that
such service shall be deemed sufficient; (c) irrevocably waives all objections
as to venue and any and all rights it may have to seek a change of venue with
respect to any such act or proceeding; (d) agrees that the laws of the State of
New York shall govern in any such action or proceeding and waives any defense to
any action or proceeding granted by the laws of any other country or
jurisdiction unless such defense is also allowed by the laws of the State of New
York; and (f) agrees that any final judgment rendered against it in any such
action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any manner provided by law and
expressly consent to the affirmation of the validity of any such judgment by the
court of such other jurisdiction so as to permit execution thereon. Subtenant
further agrees that any action or proceeding by Subtenant against Sublessor in
respect to any matters arising out of or in any way relating to this Sublease
shall be brought only in the State of New York, County of Suffolk. In
furtherance of the foregoing, Subtenant hereby agrees that its address for
notices given by Sublessor and service of process under this Sublease shall be
the Subleased Premises.
SECTION 39 SURRENDER
--------------------
On the expiration or other termination of this Sublease, Subtenant shall
quit and surrender the Subleased Premises to Sublessor vacant and in good and
broom clean condition (ordinary wear and tear excepted) in accordance with all
the applicable terms and provisions of this Sublease, and Subtenant shall, at
its sole costs and expense, cause all property permitted or required to be
removed by Subtenant to be removed.
SECTION 40 NOTICE OF ACCIDENTS
------------------------------
Subtenant shall give Sublessor notice of any fire, casualty or accident in
or about the Subleased Premises or of defects therein or in any fixtures or
equipment, promptly after Subtenant becomes aware thereof.
SECTION 41 EXTENSION OPTION
---------------------------
41.01 Subject to 41.05 Subtenant shall have the option to extend the
Original Term of this Sublease for one (1) period of three (3) years upon the
terms and conditions in this Section 41. Subtenant may only exercise its option
to extend if:
(i) at the time of the exercise of such option and the commencement
of any extension term, an uncured Event of Default shall not exist; and
(ii) at the time of the exercise of such option and the commencement
of any such extension term, the Subtenant named herein shall be in actual
occupancy of all of the Subleased Premises.
41.02 (i) All of the terms, provisions, covenants and conditions of this
Sublease shall apply during the extension term except that (1) there will be no
further privilege of extension beyond the period referred to above, (2) the word
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"Expiration Date" shall mean (in addition to the meaning set forth herein) the
last day of such extension term, (3) during the extension term the Fixed Rent
payable by Subtenant to Sublessor shall be the fair market rental value of such
leasehold as mutually agreed by the Sublessor and Subtenant, or if Sublessor and
Subtenant shall fail to reach agreement within ninety (90) days after Sublessor
receives written notice from Subtenant of Subtenant's election to exercise its
option as provided in this Section 41, the Fixed Rent shall be the fair market
rental value of the Subleased Premises determined in accordance with Section
41.03, and (4) during the extension term there will be refurbishing allowance
and Section 8 of the Sublease shall be deleted.
(ii) The fair market rental value of the Subleased Premises shall be
based upon the fair and reasonable annual market rental value of the Subleased
Premises as of the first day of the new term, taking into account the then
current rentals of comparable space in comparable buildings in the general area
of the Building, except that consideration shall also be given to any special
features of the Building and its operation such as floor sizes, hours of
operation, and other Building services. In addition, there shall be taken into
account, on an "as is" basis, all the improvements and installations in the
Subleased Premises either installed by Sublessor or installed by Subtenant and
paid for in whole or in part by Sublessor (or any replacements of such
improvements by Subtenant regardless of who pays for them), but not any other
improvements and installations paid for by subtenant.
41.03 Any dispute with respect to the fair market value of Subleased
Premises shall be arbitrated in Suffolk County, New York, as follows: Sublessor
and Subtenant shall each appoint a member of the American Institute of Real
Estate Appraisers of the American Society of Appraisers or the Association of
Independent Fee Appraisers having at least ten (10) years appraisal experience
in Suffolk County, New York, and vicinity, to determine the fair market rental
value of the Subleased Premises, and the unanimous decision of such appraisers
shall be final and binding upon Sublessor and Subtenant. If the two appraisers
shall be unable to reach unanimous agreement within fifteen (15) days after both
appraisers have been appointed, then the two shall appoint a third appraiser who
shall have like qualifications, and the three appraisers shall determine the
matter submitted to them; provided, however, that if the two appraisers are
unable to agree upon the appointment of a third appraiser within seven (7) days
after they become obligated so to do, the parties shall apply to the President
of the American Institute of Real Estate Appraisers for such appointment or in
the case of failure to act for any reason, to the American Arbitration
Association. A decision of a majority of said appraisers shall be final and
binding upon Sublessor and Subtenant. Sublessor and Subtenant shall each pay the
fees and expenses of the appraiser appointed by and for such party, and all
other necessary expenses and costs to satisfy the procedure outlined in this
Section 41, including, without limitation, the fees and expenses of the third
appraiser, shall be borne equally by Sublessor and Subtenant. If either party
shall fail to appoint the second appraiser within fifteen (15) days after the
other party shall have appointed the first appraiser and given notice of such
appointment to the first party, the first appraiser shall alone determine such
fair market rental value.
-35-
41.04 Subtenant shall, if at all, exercise its right to any such extension
by notifying Sublessor in writing of Subtenant's election to exercise such
option not later than 270 days prior to the Expiration Date. Time shall be of
the essence in connection with said election and notice thereof and in the event
Subtenant fails to so do as provided above, Subtenant's option shall
conclusively be deemed abandoned. Upon the giving of such notice, this Sublease
shall be deemed extended for the specified period, subject to the provisions of
this Section 41, without execution of any further instrument, except that
Sublessor and Subtenant shall execute an Amendment to this Sublease setting
forth the Fixed Rent and length of such extension term.
41.05 Notwithstanding anything to the contrary contained in this Sublease,
in the event Subtenant exercises its option in accordance with this Section 41,
Sublessor shall have the right to recapture this Subleased Premises by notifying
the Subtenant in writing ninety (90) days after Sublessor receives written
notice from Subtenant of its election to exercise its option hereunder. Said
recapture shall become effective as of the Expiration Date, wherupon this
Sublease will come to an end.
SECTION 42 QUIET ENJOYMENT
---------------------------
Sublessor covenants and agrees with Subtenant that, upon Subtenant paying
the Fixed Rent, Additional rent and all other sums required to be paid
hereunder, and observing and performing all the terms, covenants and conditions
on Subtenant's part to be observed and performed hereunder, Subtenant may
peaceably and quietly enjoy the Subleased Premises, subject, nevertheless, to
the terms and conditions of this Sublease, the Lease and any Superior
Instruments.
SECTION 43 NOTICES
-------------------
All notices and other communications required hereunder or given in
connection herewith, shall be in writing and sent by certified or registered
mail, return receipt requested, or by delivery against receipt, as follows:
If to Sublessor:
Nikon Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Legal Department
If to Subsequent:
Proudfoot Reports, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000 Attention: President
Each party hereto may specify a new address for notices and copies of
notices by notice to the other party hereto. Except for notice specifying a new
address which shall be deemed given only upon actual receipt, notices shall be
deemed given when mailed.
SECTION 44 SECURITY
--------------------
Subtenant has deposited with Sublessor a check in the sum of $44,500.00,
the proceeds of which shall be held as security in an interest bearing account
for the faithful
-36-
performance and observance by Subtenant of the terms, provisions and conditions
of this Sublease. It is agreed that during a continuing Event of Default
Sublessor may use, apply or retain the whole or any part of the security
including interest so deposited to the extent required for the payment of any
Fixed Rent or Additional Rent or any other sum as to which Subtenant is in
default or for any sum which Sublessor may expend or may be required to expend
by reason of Subtenant's default in respect of any of the terms, covenants and
conditions of this Sublease, (including, without limitation, any damages or
deficiency incurred in the reletting of the Subleased Premises whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Sublessor). In the event of any such use, application or retention,
Subtenant, on demand by Sublessor, shall deposit with Sublessor any amounts so
used, applied or retained, to be held as security in accordance with all the
terms hereof. In the event that Subtenant shall fully and faithfully comply with
all of the terms, provisions, covenants and conditions of this Sublease, the
security including interest (to the extent not used, applied or retained in
accordance herewith) shall be returned to Subtenant after the Expiration Date
and after delivery of entire possession of the Subleased Premises to Sublessor
(in the condition required hereby). Notwithstanding anything to the contrary
contained herein, one (1%) percent of the security shall be retained per annum
by Sublessor as and for administrative purposes.
SECTION 45 PARKING
------------------
Subtenant and its employees, customers, guests, and invitees shall have the
non-exclusive right, in common with Sublessor and all others to whom Sublessor
and Landlord have granted or may hereafter grant rights (collectively Permitted
Users), to use those areas on the Land which are stripped and designated as
parking spaces for parking of their passenger vehicles. Notwithstanding anything
in this Sublease to the contrary, Subtenant agrees that it will not use or
permit or suffer the use by its employees, customers, guests and invitees of (i)
areas within the Land not designated or striped as parking spaces for parking;
(ii) parking spaces for other than passenger vehicles; and (iii) parking spaces
reserved for Sublessor, its employees, customers, guests and invitees or other
tenants of the Building.
IN WITNESS WHEREOF, this Sublease has been duly executed by the parties
hereto as of the day and year set forth above.
NIKON INC.
BY: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Chief Operating Officer
Executing Vice-President
PROUDFOOT REPORTS, INC.
BY: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
-37-
EXHIBIT B
---------
All that certain plot, piece or parcel of land, with the building and
improvements thereon erected, situate, lying and being at Melville, Town of
Huntington, County of Suffolk, State of New York, known and designated as and by
Lot 2 on a certain map entitled, "Map of Omni 110 Corporate Center Park" filed
on June 4, 1986 in the Office of the Clerk of the County of Suffolk under Map #
8125; which said lot is more particularly bounded and described as follows:
BEGINNING at a point on the easterly side of Xxxx Xxxxxxx Road as widened, said
point being located 1553.65 feet northerly as measured along the easterly side
of Xxxx Xxxxxxx Road as widened, from the intersection thereof with the
northerly side of Long Island Expressway (North Service Road).
RUNNING THENCE along the easterly side of Xxxx Xxxxxxx Road as widened, the
following four (4) courses and distances:
(1) North 42 degrees 13 minutes 30 seconds east, 20.35 feet;
(2) North 44 degrees 34 minutes 30 seconds east, 199.93 feet;
(3) North 46 degrees 09 minutes 30 seconds east, 200.44 feet;
(4) Northeast 48 degrees 03 minutes 50 seconds east, 659.24 feet to land
now or formerly of Reckson Associates.
THENCE along said land the following two (2) courses and distances:
(1) South 06 degrees 07 minutes 00 seconds east, 87.16 feet;
(2) South 04 degrees 59 minutes 10 seconds east, 495.83 feet to Lot 1 as
shown on Map of Omni 110 Corporate Center Park, situated at Melville,
Town of Huntington, County of Suffolk, State of New York, filed in the
Office of the Clerk of the County of Suffolk on June 4, 1986 under
file no. 8125 (the "Map").
1
SCHEDULE A
----------
RULES AND REGULATIONS
---------------------
Capitalized words and phrases appearing herein shall have the meaning
ascribed to them in the Sublease to which these rules and regulations are
attached as an exhibit.
The term "Subtenant" regardless of whether used in the singular or plural
or capitalized or not capitalized shall include its employees, agents,
contractors and invitees. The term "Common Areas of the Building" regardless of
whether used in the singular or plural or capitalized or not capitalized shall
mean the lavatories on the first floor of the building and the hallway leading
to the lavatories. The term "Common Areas of the Land" regardless of whether
used in the singular or plural or capitalized or not capitalized shall mean the
plazas, sidewalks, curbs, streets, parking areas located adjacent to the
Building and located on the Land.
1. Common Areas of the Building and Land shall not be utilized by
Subtenant in such numbers or conditions as to unreasonably limit the use of such
common areas by other tenants. Such Common Areas shall be used only for their
intended purposes.
2. Subtenant shall not obstruct or permit the obstruction of any part of
the common areas of the Building and Land including by way of illustration and
not in limitation, the parking of motor vehicles in a portion of such common
areas not designated for such purposes or by the placing of any rubbish,
equipment, merchandise or other objects or materials within such common areas.
3. Any person whose presence in the Building or on the Land including but
not limited to the Subleased Premises at any time, in the judgment of Sublessor
or Landlord, reasonably exercised, shall be prejudicial to the safety, character
or reputation of the Building or its tenants, may be denied access to the
Building or the Land or may be ejected therefrom. In the case of invasion, riot,
public excitement or other commotion, Sublessor or Landlord may prevent all
access to the Building and the Land during the continuance of the same for the
safety of the tenants and protection of property. Sublessor and Landlord shall
not be liable to Subtenant for damages or loss arising from the
admission, exclusion or ejection of any persons to or from the Building or Land
including the Subleased Premises, under the provisions of this rule.
4. No awnings or other projections over or beyond the windows or doorways
to the Subleased Premises or the Building shall be installed by Subtenant.
5. No hand trucks, except those equipped with rubber tires and side
guards, shall be used in the Building by Subtenant in the delivery or receipt of
merchandise or mail.
6. All entrance doors to the Subleased Premises shall be locked when such
premises are not in use.
7. The cost of repairing any damage to the Building caused by Subtenant
shall be paid by Subtenant.
8. No loudspeakers, radios, television receivers or other devices or
equipment shall be utilized within the Building or on the Land by Subtenant
which in the reasonable judgment of Sublessor or Landlord might disturb other
tenants of the Building.
9. No cooking shall be permitted in the Subleased Premises.
10. No act shall be taken or permitted in the Subleased Premises and
nothing shall be brought into or kept in the Subleased Premises which would
impair or interfere with Building services or the use and occupancy of the
Building by other tenants.
11. No dangerous or flammable, combustible or explosive object shall be
brought into the Building including the Subleased Premises or on to the Land by
Subtenant or with the permission of Subtenant.
12. No acids, vapors or noxious materials shall be discharged on the Land
or in the Building including any Building systems, or, systems serving the
Building or Land.
13. No smoking shall be permitted in the Building.
14. Water and wash closets and other plumbing fixtures shall not be used
by Subtenant for any purpose other than the purpose for which they were designed
or constructed and no rubbish, rags or other foreign substances shall be
deposited
therein. Any damage resulting from Subtenant's misuse of any fixtures or systems
within the Building or on the Land shall be borne by Subtenant.
15. No additional locks or bolts of any kind shall be placed upon any of
the exterior doors or windows in the Subleased Premises and no lock on any such
door or window shall be altered in any respect unless not less than five
Business Days notice shall have been given to Sublessor. Duplicate keys for any
such locks or bolts shall be furnished to Sublessor promptly after request for
the same shall be made.
16. Subtenant shall, at its own cost and expense, provide artificial light
in the Subleased Premises for Sublessor's or Landlord's agents, contractors and
employees while performing services or making repairs or alterations in such
Subleased Premises.
17. Subtenant shall not loiter around the Building.
AMENDMENT TO SUBLEASE
---------------------
THIS AMENDMENT is entered into as of the 2nd day of July, 1996, by and
between NIKON INC., a New York corporation, having an office at 1300 Xxxx
Xxxxxxx Road, Melville, New York 11747-3064 ("Sublessor"), and PROUDFOOT
REPORTS, INC., a New York corporation, having its office at 1300 Xxxx Xxxxxxx
Road, Melville, New York 11747-3064 ("Subtenant").
WITNESSETH:
-----------
WHEREAS, Sublessor and Subtenant entered into a sublease agreement dated as
of October 6, 1994 (the "Sublease Agreement") for approximately 13,342 rentable
square feet of space on the first floor of the building located at 1300 Xxxx
Xxxxxxx Road, Melville, New York (the "Building"); and
WHEREAS, Sublessor and Subtenant agree to amend the Sublease Agreement upon
the terms and conditions hereinafter set forth provided Subtenant's affiliate
company, ASSESSMENT SYSTEMS INC. ("ASI"), enters into a sublease agreement with
Sublessor for approximately 7,288 rentable square feet of space on the first
floor of the Building and takes actual possession of said space in the Building
and commences business in accordance with the terms and conditions of its
sublease agreement with Sublessor.
NOW, THEREFORE, in consideration of the premises and the terms and
condition hereinafter set forth, Sublessor and Subtenant agree as follows:
1. 2.01 of Section 2 of the Sublease Agreement shall be deleted in its
entirety and the following substituted in its place:
"2.01 Subject to the provisions hereof, Sublessor subleases to
Subtenant and Subtenant subleases from Sublessor the Subleased Premises for a
term (the "Original Term") commencing on December 8, 1994 (the "Commencement
Date") and expiring at midnight on December 31, 2003 (the "Expiration"). The
Subleased Premises shall be occupied and used exclusively for Permitted Uses and
in accordance with the provisions of this Sublease. The Original Term, together
with any renewal or extension thereof shall be referred to as the "Term"."
2. 5.01 of Section 5 of the Sublease Agreement shall be deleted in its
entirety and the following substituted in its place:
"5.01 During the Original Term, Subtenant shall pay a total base
fixed rent of $2,435,847.52 (the "Fixed Rent") which sum shall be payable in
equal monthly installments as follows:
(i) $22,236.67 per month from July 8, 1995 through December
31, 1996; (ii) $23,348.50 per month from January 1, 1997 through December 31,
1999; (iii) $24,460.33 per month from January 1, 2000 through December 31, 2001;
and (iv) $25,572.17 per month from January 1, 2002 through the Expiration Date.
Subtenant agrees to pay the Fixed Rent as specified in the preceding sentence in
advance on the first day of each calendar month during the Original Term, except
that the Fixed Rent for the eighth full calendar month of the Original Term
shall be paid at the time of execution hereof. The Fixed Rent shall be prorated
for any portion of a month during the Term and, if the first month of the Term
is not a full calendar month, Subtenant shall pay the prorated Fixed Rent due
therefor on the Commencement Date."
3. 41.01 of Section 41 of the Sublease Agreement shall be deleted in its
entirety and the following substituted in its place:
"41.01 Subtenant shall have the option to extend the Original Term
of this Sublease for one (1) period of two (2) years upon the terms and
conditions in this Section 41. Subtenant may only exercise its option to extend
if:
(i) at the time of the exercise of such option and the
commencement of any extension term, and uncured Event of Default shall not
exist; and
(ii) at the time of the exercise of such option and the
commencement of any such extension term, the Subtenant named herein shall be in
actual occupancy of all of the Subleased Premises."
4. 41.05 of Section 41 of the Sublease Agreement shall be deleted in its
entirety.
5. Except as amended, modified, changed or supplemented by this Amendment
to Sublease Agreement, the Sublease Agreement between Sublessor and Subtenant
remains in full force and effect, and both Sublessor and Subtenant hereby ratify
and confirm all of the terms, covenants, conditions and obligations of the
Sublease Agreement.
6. Notwithstanding anything to the contrary contained in this Amendment to
Sublease Agreement, Subtenant hereby acknowledges and agrees that this Amendment
to Sublease Agreement shall only be effective, if, as and when (i) a sublease
agreement for approximately 7,288 rentable square feet of space on the first
floor of the Building is unconditionally executed between Sublessor and ASI, and
(ii) ASI takes actual possession of said space in the Building and commences
business in accordance with the terms and conditions of its sublease agreement
with Sublessor. In the event the conditions set forth in (i) and (ii) in the
immediately preceding sentence of this Paragraph 5 are not satisfied
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for any reason whatsoever, this Agreement shall be deemed null and void, ab
initio, and of no force and effect.
IN WITNESS WHEREOF, this Amendment to Sublease has been duly executed by
the parties hereto as of the day and year first set forth above.
NIKON INC. PROUDFOOT REPORTS, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
--------------------------- ---------------------------
Xxxx Xxxxxx Xxxxxxx Xxxxxxxx
Chief Operating Officer President
Executive Vice President
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