745 ASSOCIATES
c/o LaSalle Partners (New York) Limited Partnership
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
May 9, 0000
Xxxxxxxx Xxxxxxx Xx.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Lease, dated as of February 14, 1989 (the
"Lease"), between 745 Associates ("Landlord") and
Xxxxxxxx Xxxxxxx Co. ("Tenant"), covering the
entire ninth (9th) floor (the "Premises") in the
building known as 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Building").
Ladies and Gentlemen:
In accordance with your request with respect to that certain
Sublease between Tenant and TurboChef; Inc. ("Subtenant"), dated April 15, 1997
(the "Sublease"), Landlord hereby grants permission to Tenant to enter into the
Sublease at the Premises between Tenant and Subtenant, a copy of which Sublease
is annexed hereto and made a part hereof as Exhibit A, provided, however, that
such subletting and Landlord's grant of permission with respect thereto shall be
subject to the following terms and conditions:
1. Neither this letter agreement, nor the Sublease, nor any
acceptance of rent by Landlord from Subtenant, shall operate to waive, modify,
release or in any manner affect Tenant's liability under the Lease. No other
sublease of all of or any part of the Premises affected by the Lease or the
Sublease shall be made by Tenant or Subtenant, as the case may be, without the
prior written approval of Landlord, except as provided in the Lease.
2. If, at any time prior to the expiration of the term of
the Sublease, the term of the Lease shall terminate or be terminated as a result
of any default under the Lease or by operation of law or for any other reason,
the Sublease and the term granted thereby shall terminate and, on or prior to
the date of such termination of the Sublease, Subtenant, at Subtenant's sole
cost and expense, shall quit and surrender the sublet space to Landlord, in the
manner and condition required pursuant to the Lease.
3. Notwithstanding anything to the contrary contained in
Paragraph 2, if, at any time prior to the expiration of the term of the
Sublease, the term of the Lease shall terminate
or be terminated for any reason, Subtenant agrees, at the election and upon
demand of Landlord or any other owner of the real property, or of the holder of
any mortgage in possession of the real property or the Building, or of any
lessee under the lease to which the Sublease shall be subject and subordinate,
to attorn, from time to time to Landlord or any such owner, holder or lessee,
upon the then executory terms and conditions set forth in the Sublease for the
remainder of the term demised in the Sublease. The foregoing provisions of this
paragraph shall enure to the benefit of any such owner, holder or lessee, shall
apply notwithstanding that, as a matter of law, the Sublease may terminate upon
the termination of the Lease, shall be self-operative upon any such demand, and
no further instrument shall be required to give effect to said provisions. Upon
demand of Landlord or any such owner, holder or lessee, Subtenant agrees,
however, to execute, from time to time, instruments in confirmation of the
foregoing provisions of this paragraph, in which Subtenant shall acknowledge
such attornment and shall set forth the terms and conditions of its tenancy.
Nothing contained in this paragraph shall be construed to impair any right
otherwise exercisable by Landlord or any such owner, holder or lessee.
4. Except as expressly set forth in the Sublease, the
Sublease is subject and subordinate in all respects to the Lease and to all of
the terms, covenants and conditions thereof. Nothing contained herein shall
limit the rights of Landlord under the Lease, or create any direct right of
Subtenant against Landlord or with respect to the portion of the Building
covered by the Sublease. In the event that there shall be any conflict between
the terms, covenants and conditions of this letter agreement and the terms,
covenants and conditions of the Sublease, then the terms, covenants and
conditions of this letter agreement shall prevail in each instance.
5. Tenant shall be responsible for the legal fees incurred
by Landlord in connection with Landlord's review of the Sublease, as well as the
preparation, execution and delivery of this letter agreement, which fees shall
be paid by Tenant directly to Landlord's counsel, Xxxxxxx Xxxx & Xxxxx LLP,
simultaneously with the execution and delivery hereof.
6. Landlord, Tenant and Subtenant do hereby mutually
acknowledge and agree that (i) the term "cooking", as used in Paragraph 7 of the
Sublease, shall mean the utilization of Subtenant's cooking technologies and any
new related technologies to fast xxxx raw and uncooked foods (generally in two
minutes or less) for sales demonstration purposes, (ii) in agreeing to grant
permission to the Sublease, Landlord has relied upon Tenant's representation
that the use of the Premises for the demonstration of Subtenant's products, and
the cooking of food utilizing those products, will not emit outside of
Subtenant's Premises any noise, vibration, fumes or odor, (iii) if such food
odors, fumes, noises, or vibrations are emitted outside Subtenant's Premises,
Tenant and Subtenant will take all steps, as reasonably prescribed by Landlord,
to prevent any such odors, noises and vibration from being emitted from the
Subtenant's Premises or entering into other portions of the Building, and (iv)
failure by Tenant or Subtenant to observe or perform any terms and conditions of
this Paragraph 6 shall be deemed to be a default under the Lease and Landlord
shall have the right to exercise any and all rights, privileges and remedies
given to Landlord by and pursuant to the provisions of Articles 18 and 19 of the
Lease. Nothing contained herein shall modify~ or diminish Subtenant's
obligations to Tenant pursuant to Article 6 of the Sublease.
2
7. Except as herein expressly modified, the Lease is hereby
ratified in all respects.
If this letter agreement accurately reflects your
understanding and agreement as to the matters hereinabove set forth, please sign
this letter agreement and have Subtenant sign this letter agreement where
indicated below and return four (4) executed copies to the undersigned.
Very truly yours,
LANDLORD: 745 ASSOCIATES
a New York General Partnership
By: Hexalon Real Estate, Inc., Its
Managing General Partner
By: /s/ Xxxxx X. Xxxxx,III
------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President
ACCEPTED AND AGREED TO
THIS DAY OF MAY, 1997
XXXXXXXX XXXXXXX CO., Tenant
By: /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Title: Co-President
ACCEPTED AND AGREED TO
THIS DAY OF MAY, 1997
TURBOCHEF, INC., Subtenant
By: /s/ Xxxxxxx X Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
3
SUBLEASE
========
AGREEMENT OF SUBLEASE ("Sublease"), made as of the 15th day of April,
1997, by and between Xxxxxxxx Xxxxxxx Co., a Delaware Corporation (hereinafter
referred to as "Sublessor"), having an office at 000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and TurboChef, Inc., a Delaware corporation
(hereinafter referred to as "Sublessee"), having an address at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a certain lease dated February 14, 1989 ("Lease"),
by and between 745 Associates, a New York general partnership, as landlord
("Landlord"), and Sublessor, as tenant, Landlord leased to Sublessor certain
space (the "Demised Premises") in the building ("Building") located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx; and
WHEREAS, Sublessor desires to sublease to Sublessee and Sublessee
desires to sublet from Sublessor a portion of the Demised Premises which is more
particularly set forth as the area cross-hatched in red on Exhibit A which is
attached hereto and made a part hereof (the "Subleased Premises"), and Sublessee
desires to take and hire the Subleased Premises from Sublessor;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. Lease. Sublessee hereby acknowledges receipt of a copy of the Lease
with certain portions not material to this Sublease intentionally excluded, a
copy of which is annexed hereto as Exhibit B. The terms and conditions of the
Lease are incorporated by reference into this Sublease and made a part hereof as
if herein set forth at length, Sublessor being substituted for "Landlord" under
the Lease, Sublessee being substituted for "Tenant" under the Lease and the
Subleased Premises being substituted for the "Premises" under the Lease; except
the parties agree that the following provisions of the Lease are not so
incorporated herein by reference: Sections 2.01, 2.02, 2.04, 15.18, 18.01,
23.01, 29.10H., Articles 27, 32, 36, 37, 41 and 42. Notwithstanding the
foregoing, any inconsistencies between the terms of this Sublease and the Lease
which shall result from the foregoing incorporation shall be resolved in favor
of this Sublease; provided however, that if such construction of terms would
cause Sublessor to be in default under the terms of the Lease, then such
inconsistency shall be resolved in favor of the Lease. To the extent that the
definitions of the Lease incorporated by reference herein differ from or are
inconsistent with the definitions contained in this Sublease, the definitions
set forth in this Sublease shall prevail.
2. Demise and Term. (A) Sublessor hereby leases to Sublessee and
Sublessee hereby takes and hires from Sublessor the Subleased Premises for the
term and upon the terms and conditions set forth herein, subject to the
provisions of Article 15 of the Lease, and contingent upon the written consent
of the Landlord to (i) this Sublease pursuant to Section 15.18 of the Lease
including the Landlord's consent to the use of the Subleased Premises set forth
in paragraph 7 hereof ("Consent to Sublease") and (ii) Sublessee's Initial
Plans and Specifications (as hereinafter defined; Landlord's consent to same
being hereinafter referred to as the "Consent to Sublessee's Initial Plans and
Specifications").
(B) The term ("Term") of this Sublease shall commence on April 15,
1997 ("Commencement Date"), except as otherwise provided herein, and end on
December 20, 2000 ("Expiration Date"), unless sooner terminated pursuant to the
provisions of this Sublease or the Lease. Sublessor warrants and represents that
the term of the Lease extends beyond the Expiration Date. Promptly after
execution and delivery of this Sublease, Sublessor shall request the Consent to
Sublease and the Consent to Sublessee's Initial Plans and Specifications
(provided Sublessee has submitted Sublessee's Initial Plans and Specifications
to Sublessor in full compliance with Section 9 hereof and Article 5 of the Lease
upon the execution hereof). In the event that on or before April 15, 1997
Sublessor shall not have obtained the Consent to Sublease and the Consent to
Sublessee's Initial Plans and Specifications, Sublessor shall extend the
Commencement Date of this Sublease until such time as the two Consents have been
obtained. In the event that on or before May 15, 1997 Sublessor shall not have
obtained the Consent to Sublease and the Consent to Sublessee's Initial Plans
and Specifications, both Sublessor and Sublessee shall have the right to cancel
this Sublease upon five (5) days written notice to the other, and thereupon this
Sublease shall cease and terminate as if the date of such cancellation was the
Expiration Date as herein defined. Notwithstanding the foregoing, Sublessee
shall not have the right to possession of the Subleased Premises until Landlord
has signed the Consent to Sublease and the Consent to Sublessee's Initial Plans
and Specifications and Sublessor has received the Security in the full amount
required under Section 25 of this Sublease.
3. Rent. The rents reserved under this Sublease for the Term, shall be
and consist of:
(A) "Fixed Rent" in the amount of (a) One Hundred Ninety-One
Thousand Six Hundred Ninety-Seven Dollars ($191,697.00) per annum, for the
period beginning on August 1, 1997, payable in equal monthly installments of
Fifteen Thousand Nine Hundred Seventy-Four Dollars and Seventy-Five Cents
($15,974.75); which monthly sums shall be payable in advance on the first day of
each month without demand, set-off or deduction.
(B) "Additional Rent" consisting of all such other sums of money as
shall become due from, and payable by, Sublessee to Sublessor hereunder (for
default in payment of which Sublessor shall have the same remedies as for
default in payment of Fixed Rent);
2
all to be paid to Sublessor at its address hereunder referred to, or such other
place, or to such agent and at such place, as Sublessor may designate by notice
to Sublessee, in lawful money of the United States of America. The terms "rent",
"rents" and "rental," as used herein, shall include Fixed Rent and Additional
Rent.
4. Proportionate Share: Escalations.
As used herein, "Sublessee's Proportionate Share" shall mean 27.01%.
Sublessee covenants and agrees to pay to Sublessor, as Additional Rent,
Sublessee's Proportionate Share of (i) one-twelfth (1/12) of an amount equal to
Landlord's estimate of the amount of increase in Tenant's Tax Payment (as
defined in the Lease) for the then current Comparison Year (as defined in the
Lease), plus one-twelfth (1/12) of the excess, if any, of Tenant's Tax Payment
for the prior Comparison Year over Tenant's Tax Payment for the Base Tax Year
(as hereinafter defined), which amounts shall be payable monthly by Sublessee to
Sublessor, (ii) the excess, if any, of Tenant's Tax Payment for each Comparison
Year over Tenant's Tax Payment for the Base Tax Year (the Base Tax Year shall
mean for purposes of this Sublease the average of the New York City fiscal year
July 1, 1996 - June 30, 1997 and the New York City fiscal year July 1, 1997 -
June 30, 1998); it being agreed that any amounts payable on account of the
applicable Comparison Year pursuant to clause (i) shall be applied to amounts
payable pursuant to this clause (ii), (iii) one-twelfth (1/12) of an amount
equal to Landlord's estimate of Tenant's Operating Payment (as defined in the
Lease) for the then current Comparison Year in excess of Tenant's Operating
Payment for the 1997 calendar year, which shall be payable monthly by Sublessee
to Sublessor and (iv) the excess, if any, of Tenant's Operating Payment for each
Comparison Year over Tenant's Operating Payment for the 1997 calendar year; it
being agreed that any amounts payable on account of the applicable Comparison
Year pursuant to clause (iii) shall be applied to amounts payable pursuant to
this clause (iv); and all of the foregoing provisions of clauses (i)-(iv) herein
shall be calculated subject to and in accordance with the applicable provisions
of Article 28 of the Lease (except that Tenant's covenant to pay Landlord under
the applicable provisions of Article 28 shall remain Tenant's (Sublessor's)
thereunder, Sublessee to pay Sublessor in accordance with the terms herein;
provided, however, in the event of any ambiguity in calculating Sublessee's
payments hereunder, the provisions of Article 28 shall control as to such
calculations). Sublessee shall make all payments required to be made pursuant to
this Paragraph 4 within ten (10) business days after Sublessor furnishes
Sublessee with a statement of the amount payable by Sublessee to Sublessor.
Sublessee shall have the right to reasonably request from Sublessor copies of
any applicable Landlord's Statement (as defined in the Lease) received by
Sublessor, and Sublessor shall furnish same upon request, but same shall not
affect Sublessee's obligations to make the required payments hereunder. In the
event that any items payable by Sublessor under Article 28 of the Lease, in
respect of which Sublessor shall have received payments from Sublessee
hereunder, are subject to adjustment by Landlord at the end of a year or other
period pursuant to the terms thereof, then (a) if there has been a corresponding
underpayment in the payments made by Sublessee, Sublessee shall pay to
Sublessor, no later than ten (10) business days after Sublessor furnishes to
3
Sublessee a copy of the statement received by Sublessor from Landlord, an amount
equal to such underpayment; or (b) if there has been an overpayment in such
payments made by Sublessee, Sublessor shall credit against the next payment of
Additional Rent coming due hereunder an amount equal to such overpayment, except
that if no further payments of Additional Rent shall be due hereunder, then
Sublessor shall refund such amount to Sublessee within ten (10) business days.
The obligation to pay any amount payable by Sublessee, or to Sublessee as
provided for in the immediately preceding sentence, shall survive the end of the
term of this Sublease and shall be payable by Sublessee, or to Sublessee, as the
case may be, in the same manner as if the Term of this Sublease had not expired
or terminated.
5. Acceptance of Subleased Premises. Sublessee has inspected the
Subleased Premises and Sublessee agrees to accept the Subleased Premises on the
Commencement Date in the condition in which the Subleased Premises exists on the
Commencement Date, "as is", and further agrees that neither Sublessor nor
Landlord shall have any obligation to perform any work, supply any materials,
incur any expenses or make any installations, in order to prepare the Subleased
Premises for Sublessee's occupancy. Notwithstanding the foregoing, Sublessor,
prior to the Commencement Date, shall cause the work described on Exhibit C
hereto to have been completed. Acceptance of the Subleased Premises on the
Commencement Date shall be deemed an acknowledgement by Sublessee that such work
was performed to the satisfaction of Sublessee.
6. Performance of Covenants in the Lease. Except as expressly set forth
herein, during the Term of this Sublease, Sublessee shall observe and perform
all of the terms, covenants, conditions, and agreements contained in the Lease
to be performed and observed on the part of Sublessor, as the tenant thereunder,
insofar as same pertain to the Subleased Premises, and all of such terms,
covenants, conditions and agreements are imposed upon Sublessee, whether or not
specifically set forth or referred to herein, Sublessor being substituted for
"Landlord" under the Lease, Sublessee being substituted for "Tenant" under the
Lease and the Subleased Premises being substituted for the "Premises" under the
Lease, provided, however, that Sublessor shall not be liable for any defaults by
the Landlord under the Lease and Sublessee shall not be bound by or subject to
the provisions of the Lease that are not incorporated by reference into this
Sublease. Sublessee hereby agrees (i) to refrain from doing or causing to be
done, or suffering or permitting any thing or act to be done (except for any act
or omission of Sublessor, its officers, directors, employees, agents, guests and
invitees), which constitutes a default under the Lease or causes the Lease to
be canceled, terminated, forfeited or surrendered, or which makes Sublessor, as
tenant under the Lease, liable for any damages, claims or penalty, and (ii) to
indemnify and hold Sublessor harmless against any loss or expense suffered by
Sublessor by reason of Sublessee's failure to perform Sublessee's obligations
under this Sublease. Sublessor hereby agrees (i) that it will not take, or omit
to take, any action which will have the effect of causing a default under the
Lease, or of causing a substantial interruption in any of the services provided
by Landlord to the Subleased Premises under the Lease, and (ii) to indemnify and
hold
4
Sublessee harmless against any loss or expense suffered by Sublessee by reason
of Sublessor's failure to perform its obligations under this Sublease and under
the Lease (except where such loss or expense is due to a default caused by
Sublessee under this Sublease) Provided Sublessee is not in default under this
Sublease beyond the giving of any required notice and the expiration of any
grace period, Sublessor agrees not to cancel or surrender voluntarily the Lease
as it affects the Subleased Premises, without the prior written consent of
Sublessee. If the Lease is terminated for any reason whatsoever, whether by
operation of law or otherwise, except where due to default of Sublessor (other
than a default of Sublessor under the Lease caused by Sublessee under this
Sublease), Sublessor shall not be liable in any manner whatsoever for such
termination. Sublessor shall promptly forward to Sublessee any default or
termination notice with respect to the Lease received by Sublessor from Landlord
and this Sublease shall terminate in the event of any such termination of the
Lease. Notwithstanding the incorporation by reference into this Sublease of
Section 13.03 of the Lease, Sublessor shall not terminate this Sublease pursuant
to Section 13.03 as incorporated herein unless Landlord shall have terminated
the Lease pursuant to said Section 13.03. A termination of the Lease due to the
default of Sublessor, other than Sublessor's default under the Lease caused by
Sublessee under this Sublease, shall be considered a voluntary cancellation or
surrender of the Lease hereunder. This Sublease is subject and subordinate in
all respects to the Lease and to the matters to which the Lease is subject and
subordinate. This Sublease shall also be subject to any amendments,
modifications and supplements to the Lease hereafter made between Landlord and
Sublessor, provided that any such amendments, modifications or supplements to
the Lease hereafter made between Landlord and Sublessor will not prevent, limit,
restrict or adversely affect the use by Sublessee of the Subleased Premises or
increase in any material respect its duties, obligations, responsibilities and
liabilities under and in accordance with the terms of this Sublease.
7. Use. Sublessee hereby agrees that the Subleased Premises will be
occupied and used only for the operation of general and executive offices and as
a showroom and for the display and demonstration of Sublessee's products, and
for no other purpose, and in a manner consistent in all respects with the
provisions of the Lease. It is expressly understood and agreed that the
Subleased Premises shall be used as a "Showcase" for the Sublessee's high
technology ovens and other products, and that such use shall include the
demonstration of those products and the cooking of food utilizing those
products.
8. Services Under the Lease. (A) Except as otherwise provided either in
this Paragraph 8 or elsewhere in this Sublease, Sublessee shall be entitled,
during the Term hereof, to receive all services, utilities, repairs and
facilities to be provided by Landlord under the Lease insofar as such services,
utilities, repairs and facilities pertain to the Subleased Premises. Sublessor
shall use its reasonable efforts to secure the performance by Landlord of its
obligations under the Lease with respect to the Subleased Premises for the
delivery, provision and/or performance of such services, utilities, repairs and
facilities as
5
are required to be provided by Landlord under the Lease, except for such
services, utilities, repairs and facilities for which Sublessor, Sublessee or
any other tenant is responsible; provided, however, Sublessor shall in no event
be required to commence or maintain litigation to enforce such obligations of
Landlord under the Lease, or to incur any cost or expense whatsoever to secure
such performance. In the event that Sublessor fails or refuses to commence or
maintain any such litigation to enforce obligations of Landlord under the Lease,
then and in that event, Sublessee shall have the right to do so, at Sublessee's
sole cost and expense, as Sublessor's attorney-in-fact and/or assignee pursuant
hereto. Sublessee agrees that Sublessor shall have no liability of any nature
whatsoever to Sublessee as a consequence of Landlord's failure or delay in
performing its obligations under the Lease, including, without limitation,
Landlord's breach of the covenant of quiet enjoyment, provided that such
failure, delay or breach is not the result of any default by the Sublessor under
the Lease, and provided further, that Sublessor shall have had an opportunity
to cure such default. Sublessee's obligations hereunder shall not be impaired
nor shall the performance thereof be excused because of any failure or delay on
Landlord's part in performing it obligations under the Lease unless such
failure or delay results from Sublessor's being in default under the Lease and
Sublessor's default thereunder is not due to a default of Sublessee hereunder.
With respect to any request for services during any Overtime Periods (as defined
in the Lease), Sublessee may make such request in Sublessor's name directly to
Landlord provided such request is made in accordance with the provisions of
Section 29.04 of the Lease and Sublessee pays for all such services promptly
upon demand in accordance with the terms thereof; and provided further that
Sublessee provides Sublessor with duplicate copies of all such requests, if in
writing, simultaneously therewith.
(B) During the term of this Sublease, Sublessor agrees to
permit Sublessee to utilize without additional charge the furnishings and file
cabinets (the "Furniture") described on Exhibit D annexed hereto. Sublessee
shall care for and maintain the Furniture and shall return the Furniture to the
Sublessor upon the termination of this Sublease in its current condition,
reasonable wear and tear excepted.
9. Alterations. Except as otherwise herein provided, Sublessee shall
make no alterations, installations, additions or improvements (collectively,
"Alterations") into or about the Subleased Premises except in accordance with
the applicable provisions of the Lease, including but not limited to Article 5
thereof. The parties hereto acknowledge that Sublessee desires to make certain
Alterations (the "Initial Alterations") to the Subleased Premises to prepare the
same for its occupancy in accordance with certain detailed plans and
specifications ("Sublessee's Initial Plans and Specifications"), which
Sublessee's Initial Plans and Specifications are annexed hereto as Exhibit E and
are being submitted to Sublessor upon execution hereof for submission to
Landlord for Landlord's consent in compliance with Article 5 of the Lease, and
Sublessee shall diligently comply, at its sole cost and expense, with all of the
terms and conditions set forth in said Article 5 with respect to obtaining
Landlord's consent to said Initial Alterations and performing said Initial
6
Alterations. Sublessor hereby consents to the Initial Alterations. It is
expressly understood and agreed that the Initial Alterations shall include the
installation of three (3) electrical outlets and the electrical circuits
necessary to handle and accommodate 3 Phase 208 volt electric current.
10. Insurance. (A) Sublessee, at Sublessee's own cost and expense,
shall maintain all policies of insurance with respect to the Subleased Premises,
in favor of Sublessor and Sublessee, which Sublessor is required to maintain in
favor of Landlord under the Lease, including but not limited to Articles 5 and
12 thereof, and shall comply with all requirements of the Lease with respect to
such insurance policies, including but not limited to types and amounts of
insurance; provided however that the business interruption insurance required of
Sublessor as tenant under the Lease shall be deemed to require Sublessee to
maintain business interruption insurance with respect to Sublessee's business.
(B) In the event that Sublessee shall fail to take out or
continuously maintain in force the insurance policies required hereunder,
Sublessor may, at its option, effect such insurance and charge the cost thereof
to Sublessee, who shall pay, as Additional Rent, such sums to Sublessor.
(C) Each of the above described policies shall contain the
following endorsement, to the extent available, "It is understood and agreed
that the premiums for these policies are due and payable from Sublessee only."
11. Full Force and Effect of the Lease. Sublessor represents that the
copy of the Lease delivered to Sublessee is a true and correct copy thereof,
except for the portions intentionally excluded as set forth above, none of which
excluded portions are relevant in any material respect to Sublessee's
obligations under this Sublease. Sublessor represents further-, that (a) there
have been no further amendments to nor modifications of the Lease, (1))to the
best of Sublessor's knowledge, neither Landlord nor Sublessor are in default
under the Lease, (c) Sublessor has not received any default notices from
Landlord, and (d) Sublessor has not sent any default notices to Landlord.
12. No Representations. Sublessor has made no representations,
agreements or promises with respect to the Building or the Subleased Premises or
the use thereof other than those expressly set forth in this Sublease and no
rights are to be deemed acquired by Sublessee, by implication or otherwise,
except those expressly granted herein. This Sublease contains the entire
agreement between Sublessor and Sublessee with respect to the Subleased Premises
and all prior negotiations and agreements are merged in this Sublease. Any
executory agreement hereafter made between Sublessor and Sublessee shall be
ineffective to change, modify, waive, release, discharge, terminate or effect an
abandonment or surrender of this Sublease, in whole or in part, unless such
agreement is in writing and signed by the party against whom enforcement thereof
is sought.
7
13. Default. (A) This Sublease and the term and estate herein
granted are subject to the limitations that:
(i) if, Sublessee shall default in the observance or
performance of any term, covenant or condition of the Lease on Sublessee's part
to be observed or performed, which default results in a notice of default by
Landlord to Sublessor and such default shall continue for a period of ten
business (10) days after delivery to Sublessee of a true and complete copy of
Landlord's notice of default, or if such default is of a nature that it cannot
be completely remedied within said ten (10) business day period if Sublessee
fails to commence to cure such default within said ten (10) business day period
and thereafter diligently prosecute to completion all steps necessary to remedy
such default; or
(ii) if, Sublessee shall default in the payment when due of
any installment of Fixed Rent or in the payment when due of any Additional Rent,
and such default shall continue for a period of five (5) business days after
notice by Sublessor to Sublessee of such default; or
(iii) if, Sublessee shall default in the observance or
performance of any term, covenant or condition of this Sublease on Sublessee's
part to be observed or performed (other than the covenants for the payment of
Fixed Rent and Additional Rent) and Sublessee shall fail to remedy such default
within ten (10) business days after notice by Sublessor to Sublessee of such
default, or if such default is of a nature that it cannot be completely remedied
within said ten (10) business day period, if Sublessee shall not commence within
said ten (10) business day period and thereafter diligently prosecute to
completion all steps necessary to remedy such default; or
(iv) if, the Subleased Premises shall become vacant, deserted
or abandoned; or
(v) if, Sublessee's interest in this Sublease shall devolve
upon or pass to any person, whether by operation of law or otherwise, except as
may be expressly permitted under Paragraph 19 hereof; or
(vi) if, Sublessee shall file a voluntary petition in
bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or
shall file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy act or any other statute or law, or
shall make an assignment for the benefit of creditors or shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or liquidator of
Sublessee or of all or any part of Sublessee's property; or
8
(vii) if, within sixty (60) days after the commencement of
any proceeding against Sublessee, whether by the filing of a petition or
otherwise, seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or future
applicable federal, state or other statute or law, such proceeding shall not
have been dismissed, or if, within sixty (60) days after the appointment of any
trustee, receiver or liquidator of Sublessee, or of all or any part of
Sublessee's property, without the consent or acquiescence of Sublessee, such
appointment shall not have been vacated or otherwise discharged, or if any lien,
execution or attachment shall be filed or issued against Sublessee or all or any
part of Sublessee's property pursuant to which the Subleased Premises shall be
taken or occupied or attempted to be taken or occupied by someone other than
Sublessee (except as provided in Paragraph 19 hereof);
then, upon the occurrence, at any time prior to or during the
Term, of any one or more of such events, Sublessor may, at any time thereafter,
at Sublessor's sole option, give to Sublessee a five (5) business days' notice
of cancellation of this Sublease and, in such event, this Sublease and the Term
shall come to an end and expire (whether or not the Term shall have commenced)
upon the expiration of said five (5) business day period with the same force and
effect as if the date were the Expiration Date stated herein and Sublessee shall
then quit and surrender the Subleased Premises to Sublessor, but Sublessee shall
remain liable for damages as provided in Paragraph 27 hereof. Sublessor shall
have with respect to any such default any and all of such rights and remedies as
are given to Landlord under the Lease with respect to defaults by the tenant
thereunder, all with the same force and effect as though the provisions of the
Lease with respect to defaults and the rights and remedies of Landlord were set
forth at length herein. If Sublessee shall default in the performance of any of
Sublessee's obligations hereunder or under the provisions of the Lease, after
the giving of notice and opportunity to cure as provided above, Sublessor,
without thereby waiving such default, may, at Sublessor's option, perform the
same for the account and at the expense of Sublessee. If Sublessor makes any
expenditures or incurs any obligations for the payment of money, including
without limitation, reasonable attorneys' fees and expenses in instituting,
prosecuting or defending any action or proceeding, by reason of any default of
Sublessee hereunder after giving of notice and opportunity to cure as provided
above, such sums paid or obligations incurred, with interest at the rate of 4%
per annum above the then current prime rate charged by Citibank, N.A. or its
successor, shall be deemed to be Additional Rent and shall be paid by Sublessee
to Sublessor on demand.
(B) If Sublessor shall default in the observance or
performance of any term, covenant or condition of this Sublease on Sublessor's
part, to be observed or performed, and Sublessor shall fail to remedy such
default with ten (10) business days after notice by Sublessee to Sublessor of
such default, or if such default is of a nature that it cannot be completely
remedied within said ten (10) business day period, if Sublessor shall not
commence within said ten (10) business day period and thereafter diligently
prosecute to completion all steps necessary to remedy such default, then if
Sublessee makes any
9
expenditures or incurs any obligations for the payment of money, including
without limitation, reasonable attorney's fees and expenses instituting,
prosecuting or defending any action or proceeding, by reason of such default of
Sublessor hereunder, after the giving of notice and an opportunity to cure as
provided above, Sublessor shall reimburse to Sublessee on demand all such sums
paid by Sublessee, with interest at the rate of 4% per annum above the then
current prime rate charged by Citibank, N.A. or its successor.
14. Indemnity and Hold Harmless. (A) Neither Sublessor nor its agents
shall be liable to Sublessee, its employees, agents, contractors, licensees,
servants, invitees or visitors and Sublessee shall save Sublessor and its agents
harmless from and against any and all liabilities, obligations, penalties,
fumes, suits, claims, demands, actions, costs and expenses of any kind or nature
(including, without limitation, reasonable attorneys' fees and expenses),
incurred in connection with or arising from any injury to Sublessee, its
employees, agents, contractors, licensees, servants, invitees or visitors or to
any other person in or about the Subleased Premises, or from any injury or
damage to or loss (by theft or otherwise) of any of Sublessee's property and/or
of the property of any other person irrespective of the cause of such injury,
damage or loss, other than injury, damage or loss caused by Sublessor's willful
acts or omissions or negligence. Sublessee agrees to indemnify and save
Sublessor and its agents harmless from and against any and all liabilities,
obligations, penalties, fines, suits, claims, demands, actions, costs and
expenses of any kind or nature by anyone whomsoever (including, without
limitation, reasonable attorneys' fees and expenses), incurred in connection
with or arising from (i) any default by Sublessee in the observance or
performance of any of the terms, covenants, conditions or agreements of this
Sublease on Sublessee's part to be observed or performed, beyond the expiration
of any applicable grace period, or (ii) the use or occupancy or manner of use or
occupancy of the Subleased Premises by Sublessee or any person claiming through
or under Sublessee, other than as permitted under this Sublease, or (iii) the
condition of the Subleased Premises (ordinary wear and tear excepted), except if
created by Sublessor, or (iv) any acts, omissions or negligence of Sublessee, or
the employees, agents, contractors, licensees, servants, invitees or visitors of
Sublessee, in or about the Subleased Premises or the Building, during the Term.
If any action or proceeding shall be brought against Sublessor by reason of any
such claim, Sublessee, upon notice from Sublessor, agrees to resist or defend
such action or proceeding and to employ counsel therefor reasonably satisfactory
to Sublessor. Sublessee shall pay to Sublessor on demand, as Additional Rent,
all sums which may be owing to Sublessor by reason of the provisions of this
Paragraph 14. Sublessee's obligations under this Paragraph 14 shall survive the
Expiration Date or sooner termination of the Term.
(B) Sublessor agrees to indemnify and save Sublessee and its agents
harmless from and against any and all liabilities, obligations, penalties,
fines, suits, claims, demands, actions, costs and expenses of any kind or nature
by anyone whomsoever (including, without limitation, reasonable attorneys'
fees-, and expenses), incurred in connection with or arising from (i) any
default by Sublessor in the observance or
10
performance of any of the terms, covenants, conditions or agreements of this
Sublease on Sublessor's part to be observed or performed, beyond the expiration
of any applicable grace period, or (ii) the use or occupancy or manner of
use or occupancy of the portion of the Demised Premises occupied only by
Sublessor-, other than as permitted in the Lease, or (iii) any acts, omissions
or negligence of Sublessor, or the employees, agents, contractors, licensees,
servants, invitees, or visitors of Sublessor in or about the Demised Premises or
the Building, during the Term.
15. Notices. Any notice, demand, request or other document which, under
the terms of this Sublease or under any statute, must or may be given or made by
the parties hereto, must be in writing, and shall be either personally delivered
(provided a written receipt therefor is obtained), or sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
party for whom intended at its address as set forth on page 1 hereof, and, if to
Sublessor, with a copy to Alter Xxxxxxxx & Mantel LLP, 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Esquire or if to Sublessee, with a
copy to: Xxxxxxx, Citren & Xxxxxxx, P.C., 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxxx, Esq. (provided, however, the
failure to forward a copy of any notice to counsel shall not be deemed to make
such notice defective). Either party, however, may designate a new or other
address by written notice given in accordance with this Paragraph 15. Any notice
personally delivered shall be deemed given upon the signing of a receipt
therefor, and any notice so addressed and mailed shall be deemed to be given
either when delivered, or, if delivery is refused, five (5) business days after
the date mailed, as the case may be. Any notice, demand or request given or made
by counsel for a party shall be deemed given or made by such party.
16. Counterclaim. Sublessee hereby waives the right to interpose a
counterclaim (other than mandatory counterclaims) in any summary proceeding
initiated by Sublessor to remove Sublessee from the Subleased Premises.
17. End of Term. On the Expiration Date, or upon any earlier
termination of this Sublease, Sublessee shall quit and surrender the Subleased
Premises to Sublessor broom-clean and in as good order, condition and repair as
the Subleased Premises existed upon the Commencement Date except for ordinary
wear and tear, any restoration of the Subleased Premises not required pursuant
hereto, damage or destruction by fife and other casualty and such other damage
the repair of which is not Sublessee's obligation hereunder (provided no such
damage shall be due to Sublessee's negligence or misconduct), and otherwise in
accordance with the applicable provisions of the Lease. Anything to the contrary
contained in the Lease or this Sublease notwithstanding, it is understood and
agreed that upon the expiration or termination of this Sublease, Sublessee shall
not be required to tear down or undo the Initial Alterations or any other
alterations approved pursuant hereto, including but not limited to the three (3)
electrical outlets and the electrical circuits installed for the 3 Phase 208
volt electric current needed by Sublessee. Sublessee recognizes that
11
Sublessor may suffer substantial damage if Sublessee fails to surrender and
vacate the Subleased Premises on the Expiration Date. Sublessee, therefore,
agrees that if Sublessee shall hold-over or remain in possession beyond the
Expiration Date of this Sublease, Sublessee shall in addition to the provisions
of Xxxxxxxxx 00 xxxxx, xx liable for all compensatory damages directly related
thereto and arising therefrom, including any damages arising out of any lost
opportunities ( and/or new leases) in connection with such holding over. All
damages to Sublessor by reason of such holding-over by Sublessee may be the
subject of a separate action and need not be asserted by Sublessor in any
summary proceeding against Sublessee. Sublessee further agrees to indemnify
Sublessor against and from any and all losses, liabilities, damages, costs and
expenses (including reasonable attorneys' fees) Sublessor incurs to dispossess
Sublessee, or otherwise, resulting from Sublessee's failure to vacate the
Subleased Premises on the Expiration Date. Sublessee's obligations under this
Paragraph 17 shall survive the termination of this Sublease.
18. Quiet Enjoyment. Sublessor covenants with Sublessee that as long as
Sublessee shall pay the Fixed Rent and Additional Rent and shall duly perform
all of the terms, covenants, conditions and agreements of this Sublease on its
part to be performed, Sublessee shall, subject to the terms hereof and of the
Lease, peaceably have, hold and enjoy the Subleased Premises during the Term
provided herein without hindrance or molestation by Sublessor or any party
claiming by, through or under Sublessor.
19. Assignment and Subletting. Sublessee, for itself, and its
successors and assigns, expressly covenants that it shall not assign this
Sublease, nor underlet, nor suffer, nor permit the Subleased Premises or any
part thereof to be used or occupied by others, except upon the prior written
consent of both (i) Sublessor, which consent shall not be unreasonably withheld
or delayed, and (ii) Landlord; and provided further that any such attempted
assignment, subletting, use or occupancy shall be subject to compliance with all
of the terms and conditions contained in Article 15 of the Lease and to the
rights of Landlord thereunder. Sublessor agrees that it shall not have the
rights granted to Landlord under Sections 15.02-15.06 and 15.08 of the Lease for
purposes of this Sublease; but Landlord shall continue to have all of said
rights in addition to all of the other rights granted to Landlord under said
Article 15, and Sublessee shall have all of the obligations imposed on Tenant
thereunder with respect to the Subleased Premises.
20. Effect of Termination of the Lease. Notwithstanding the provisions
of Paragraph 2 hereof, the Term of this Sublease shall end one day prior to the
Term of the Lease if Landlord shall terminate the Lease in accordance with its
terms. Upon receipt of written notice from Landlord terminating the Lease,
Sublessor shall notify Sublessee of Landlord's intention to terminate the Lease
and the date such termination shall be effective. In the event of such early
termination by Landlord ("Early Termination"), Sublessor shall return to
Sublessee any prepaid Fixed Rent, any prepaid Additional Rent or Additional Rent
covering any period following Early Termination and the Security provided in
Paragraph 25
12
hereof, or balance of the Security as the case may be, and thereafter this
Sublease shall terminate as finally and completely as if the date set forth in
the Early Termination notice shall be the Expiration Date set forth herein for
the termination of the Sublease Term.
21. Effect of Termination of this Sublease. References in this Sublease
to "termination" of this Sublease include expiration or earlier termination of
the Term hereof or cancellation of this Sublease pursuant to any of the
provisions of this Sublease, the Lease or pursuant to law. Upon the termination
of this Sublease, the term and estate granted by this Sublease shall end at noon
on the date of termination as if such date were the Expiration Date hereof, and
neither party shall have any further obligation or liability to the other after
such termination except as shall be expressly provided in this Sublease, any
liability for a payment which shall have accrued ~with respect to any period
ending prior to or at the time of termination shall survive the termination of
this Sublease.
22. Remedies Cumulative. Each right and remedy of Sublessor and
Sublessee provided for in this Sublease shall be cumulative and shall be in
addition to every other right and remedy provided for in this Sublease now or
hereafter existing at law or in equity or by statute or otherwise.
23. Binding Effect. The terms, covenants, conditions and agreements
contained in this Sublease shall bind and inure to the benefit of Sublessor and
Sublessee and their respective successors and assigns, except that no violation
of the provisions of Paragraph 19 hereof shall operate to vest any rights in any
successor or assignee of Sublessee. It is understood and agreed that the
obligations of Sublessor under this Sublease shall not be binding upon Sublessor
with respect to any period subsequent to the transfer of its interest in the
Lease, and that in the event of such transfer said obligations shall thereafter
be binding upon the transferee of the Sublessor's interest as tenant under the
Lease.
24. [Intentionally Deleted]
25. Security. A. On or before the date that is three business days
after Sublessor notifies Sublessee that Sublessor has received the Consent to
Sublease and the Consent to Sublessee's Initial Plans and Specifications,
Sublessee shall deposit and shall thereafter maintain at all times with
Sublessor until the date that is days after the expiration of the Term, as a
security deposit (the "Security") for the faithful performance and observance by
Sublessee of the covenants, agreements, terms, provisions and conditions of this
Sublease, an unconditional irrevocable commercial letter of credit in the
aggregate amount of Sixty Three Thousand Eight Hundred Ninety Nine Dollars
($63,899.00), in form and substance satisfactory to Sublessor and issued by a
commercial bank that is reasonably acceptable to Sublessor, payable upon
presentation by Sublessor to such issuer at its counters in New York City of a
sight draft, which letter of credit shall provide for the continuance of such
credit for the period of at least one (1) year after the date of issue. From
time to time
13
during the Term, on or before the date that is thirty (30) days prior to the
expiry date of any letter of credit, Sublessee shall deliver to Sublessor a
replacement letter of credit, or an extension or renewal of the existing letter
of credit, that complies with the requirements of this Section. If Sublessee
shall fail properly and timely to replace, renew or extend the letter of credit
as aforesaid, then Sublessor shall have the right to draw on such letter of
credit for the balance remaining under such letter of credit and hold and apply
the proceeds thereof in accordance with this Section. Sublessor shall endeavor
in good faith (but shall not be required) to notify Sublessee prior to any draw
pursuant to the foregoing sentence. Notwithstanding the foregoing, in lieu of
the foregoing letter of credit in the amount of $63,899.00. Sublessee at its
option, may deposit with Sublessor the sum of Thirty One Thousand Nine Hundred
Forty-Nine Dollars and Fifty Cents ($31,949.50) in cash and a letter of credit
in the amount of Thirty-One Thousand Nine Hundred Forty-Nine Dollars and Fifty
Cents ($31,949.50) in the form of the letter of credit described herein to
constitute the Security. If Sublessee exercises such option, then in such event,
to the extent the cash portion of the Security has not been otherwise utilized
or applied in accordance with the provisions hereof, it shall be applied by
Sublessor to the payment of the Fixed Rent payable for the last sixty (60) days
of the Term.
B. Each letter of credit to be deposited and maintained with
Sublessor (or the proceeds thereof) shall be held by Sublessor as security for
the faithful performance and observance by Sublessee of the terms, provisions
and conditions of this Sublease, and in the event that (x) any default occurs
under this Sublease and is not cured by Sublessee within any applicable grace
period, or) Sublessor is entitled to draw on the letter of credit pursuant to
the provisions of subsection (A), then, in any such event, Sublessor may draw on
such letter of credit, and the proceeds of such letter of credit (or any cash
security deposited by the Sublessee with Sublessor in substitution for such
letter of credit) (collectively the "Security Proceeds"; all such Security
Proceeds shall be deemed to constitute the Security hereunder) shall then be
held and applied as security (and be Sublessor agrees to deposit the of
replenished, if necessary), in accordance with this Section. Sublessor agrees to
deposit the Security Proceeds in a separate interest bearing escrow account and,
with respect to Security Proceeds only, after deducting any administrative fees
permitted by law (currently 1 % per annum), to pay the interest to Sublessee
annually. Sublessee's tax identification number is 00-0000000.
C. It is agreed that in the event Sublessee defaults in respect
of any of the covenants, agreements, terms, provisions and conditions of this
Sublease (after notice and the expiration of any applicable grace period),
Sublessor may use, apply or retain such part of the Security Proceeds as shall
be equal to the sum as to which Sublessee is in default or for any sum which
Sublessor may expend or may be required to expend by reason of Sublessee's
default in respect of any of the covenants, agreements, terms, provisions and
conditions of this Sublease, including, but not limited to, any damages or
deficiency in the re-letting of the Subleased Premises, whether such damages or
deficiency occurred before or after summary proceedings or other re-entry by
Sublessor. Sublessor shall not be required to
14
so use, apply or retain any part of the Security Proceeds, but if any part
thereof is so used, applied or retained in accordance with the provisions of
this Section, Sublessee shall, upon demand, immediately deposit with Sublessor
an amount equal to the amount so used, applied or retained.
D. In the event that Sublessee shall fully and faithfully comply
with all of the terms, provisions, covenants, agreements and conditions of this
Sublease, any unapplied Security Proceeds shall be returned to Sublessee within
ten (10) business days after the date fixed as the end of this Sublease and
after delivery of the entire possession of the Subleased Premises to Sublessor.
26. Arbitration. Either party may request arbitration of any matter in
dispute between Sublessor and Sublessee, except those matters which may be the
subject of a summary proceeding under Article 7 of the New York Real Property
Actions and Proceedings Law. The party requesting arbitration shall do so by
giving notice to that effect in accordance with the procedures of the American
Arbitration Association (or any organization successor thereto) in the City and
County of New York. The arbitration shall be conducted by a single arbitrator in
accordance with the then prevailing rules of the American Arbitration
Association (or any organization successor thereto) in the City and County of
New York. In rendering the decision and award, the arbitrator shall not add to,
subtract from or otherwise modify the provisions of this Sublease. if for any
reason whatsoever a written decision and award of the arbitrator shall not be
rendered within thirty (30) days after the arbitration hearing, then at any time
thereafter before such decision and award shall have been rendered either party
may apply to the Supreme Court of the State of New York or to any other court
having jurisdiction and exercising the functions similar to those now exercised
by such court, by action, proceeding or otherwise (1) (but not by a new
arbitration proceeding) as may be proper to determine the question in dispute
consistenfly with the provisions of this Sublease. All the expenses of the
arbitration, including attorneys' fees, shall be borne by the losing party to
the arbitration.
27. Re-entry bv Sublessor: Remedies. (A) (i) If this Sublease and the
Term shall expire and come to an end as provided in Paragraph 13 hereof:
(a) Sublessor and its agents may immediately, or at any time
thereafter, reenter the Subleased Premises or any part thereof, either by
summary proceedings, or by any other applicable court action or judicial
proceeding (without being liable to indictment, prosecution or damages
therefor), and may repossess the Subleased Premises and the Furniture and remove
any and all of their property and effects from the Subleased Premises; and
(b) Sublessor, at its option, may relet the whole or any
part or parts of the Subleased Premises, at any time or from time to time,
either in the name of Sublessor or
15
otherwise, to such subtenant or subtenants, 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 rent periods, as
Sublessor, in its sole 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 such reletting, for refusal or failure to
collect any rent due upon such reletting, and no such refusal or failure shall
operate to relieve Sublessee of any liability under this Sublease or otherwise
to affect any such liability. Sublessor, at its option, may make such repairs,
replacements, alternations, additions, improvements, decorations and other
physical changes in and to the Subleased Premises as Sublessor, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Sublessee of any liability
under this Sublease or otherwise affecting any such liability.
(ii) Sublessee, on its own behalf and on behalf of all persons
claiming through or under Sublessee, including all creditors, does further
hereby waive any and all rights which Sublessee and all such persons might
otherwise have under any present or future law to (a) redeem the Subleased
Premises, or re-enter or repossess the Subleased Premises, or (b) restore the
operation of this Sublease, after (1) Sublessee shall have been dispossessed by
a judgment or by warrant of any court or judge, (2) any re-entry by Sublessor,
or (3) any expiration or termination of this Sublease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Sublease. The words "re-enter", "re-entered"
as used herein shall not be deemed to be restricted to their technical legal
meanings. The right to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Sublessor from invoking any other remedy allowed at law
or in equity.
(B) In the event of any breach or threatened breach by Sublessee or any
person claiming through or under Sublessee, or any of the terms of this Sublease
(whether or not the Term shall have commenced), Sublessor shall be entitled to
enjoin such breach or threatened breach and shall have the right to invoke any
other remedy allowed at law or in equity, by statute or otherwise, as if
re-entry, summary proceedings or other specific remedies were not provided for
in this Sublease.
(C) (i) If this Sublease and the Term shall expire and come to an
end as provided in Paragraph 13 hereof, or by or under any summary proceeding or
any other action or proceeding, or if Sublessor shall re-enter the Subleased
Premises as provided in this Paragraph 27 and elsewhere in this Sublease, or by
or under any summary proceeding or any other action or proceeding, then, in any
of said events:
(a) Sublessee shall pay to Sublessor all Fixed Rent, Additional
Rent and other charges payable under this Sublease by Sublessee to Sublessor to
the date upon
16
which this Sublease and the Term shall have expired and come to an end or to the
date of reentry upon the Subleased Premises by Sublessor, as the case may be;
(b) All monies, if any, theretofore paid by Sublessee to
Sublessor, whether as advanced Fixed Rent, Additional Rent, Security, or
otherwise, shall be credited by Sublessor against any damages payable by
Sublessee to Sublessor, and any surplus, if any, shall be refunded to Sublessee;
(c) Sublessee also shall be liable for and shall pay to
Sublessor, as damages, any deficiency (hereafter referred to as "Deficiency")
between the Fixed Rent and Additional Rent reserved in this Sublease for the
period which otherwise would have constituted the unexpired portion of the Term
(conclusively presuming the Additional Rent to be the same as was payable for
the year immediately preceding such termination or re-entry) and the net amount,
if any, of rents collected under any reletting 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, and
Sublessor's re-entry upon the Subleased Premises and with such reletting,
including, but not limited to, all repossession costs, brokerage commissions,
legal expenses, attorneys' fees and disbursements, alteration costs and other
expenses of preparing the Subleased Premises for such reletting). Any such
Deficiency shall be paid in monthly installments by Sublessee on the days
specified in this Sublease for payment of installments of Fixed Rent. Sublessor
shall be entitled to recover from Sublessee each monthly Deficiency as the same
shall arise, 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.
(ii) If the Subleased Premises, or any part thereof, shall be
relet together with other space in the Demised Premises, rents collected or
reserved under any such reletting and the expenses of any such reletting shall
be equitably apportioned for the purposes of Section C. (i) hereof. In no event
whatsoever shall Sublessee be entitled to any rents collected or payable under
any reletting, whether or not such rents shall exceed the Fixed Rent and
Additional Rent reserved in this Sublease. Nothing contained in Paragraph 13
hereof or this Paragraph 27 shall be deemed to limit or preclude the recovery by
Sublessor from Sublessee of the maximum amount allowed to be obtained as damages
by any statute or rule of law, or of any sums or damages to which Sublessor may
be entitled in addition to the damages set forth in Section C. (i) hereof.
28. Certificates. Sublessor and Sublessee shall, without charge, at
reasonable intervals, and from time to time, within ten (10) business days after
requests by the other, deliver a written instrument to any person, firm or
corporation specified by them, duly executed and acknowledged, certifying:
17
(a) that this Sublease is unmodified and in full force and
effect, if there have been any modifications, that the same are in full force
and effect as modified and stating any such modifications and if the Sublease is
not then in full force and effect, so stating and setting forth in reasonable
detail the nature of any default, deficiency or changed circumstance;
(b) whether or not there are then existing set-offs or defenses
against the enforcement of any of the agreements, terms, covenants or conditions
of this Sublease and any modifications thereof on the part of Sublessee to be
performed or complied with, and, if so, specifying the same;
(c) the dates to which the Fixed Rent and Additional Rent, and
other charges hereunder, have been paid; and
(d) whether the term of this Sublease has commenced and rent is
payable thereunder and whether Sublessee has accepted possession of the
Subleased Premises.
29. Execution of Sublease. Submission by Sublessor of the within
Sublease for execution by Sublessee shall confer no rights nor impose any
obligations on either party unless and until both Sublessor and Sublessee shall
have executed this Sublease, duplicate originals thereof shall have been
delivered to the respective parties and Landlord shall have delivered to
Sublessor the Consent to Sublease and the Consent to Sublessee's Initial Plans
and Specifications referred to in Paragraph 2 hereof and Sublessor shall have
promptly notified Sublessee of its receipt of Landlord's Consent to Sublease and
Consent to Sublessee's Initial Plans and Specifications.
30. Intentionally Deleted.
31. Holding Over. If Sublessee holds over in possession after the
expiration or sooner termination of the original Term or of any extended term of
this Sublease, such holding over shall not be deemed to extend the Term or renew
the Sublease, but such holding over thereafter shall continue upon the covenants
and conditions herein set forth, except that the charge for use and occupancy of
such holding over for each calendar month or part thereof (even if such part
shall be a small fraction of a calendar month) shall be the sum of:
(a) 1/12 of the annual Fixed Rent set forth in this Sublease,
times 2.0, plus
(b) 1/12 of all other items of annual Additional Rent which
would have been payable pursuant to this Sublease had this Sublease not expired,
plus
18
(c) those other items of Additional Rent (not annual
Additional Rent) which would have been payable pursuant to this Sublease, had
this Sublease not expired, which total sum Sublessee agrees to pay to Sublessor
promptly upon demand, in full, without set-off or deduction. Neither the billing
nor the collection of use and occupancy in the above amount shall be deemed a
waiver of any right of Sublessor to collect damages for Sublessee's failure to
vacate the Subleased Premises after the expiration or sooner termination of this
Sublease. The aforesaid provisions of this Section shall survive the expiration
or sooner termination of this Sublease.
32. Late Charges. If Sublessor does not receive payment of any Fixed
Rent or Additional Rent within five (5) business days after notice by Sublessor
to Sublessee of such default, then Sublessee shall pay to Sublessor, as a "late
charge", interest at the lesser of (i) two percent (2%) per annum above the then
current prime rate charged by Citibank, N.A. or its successor, or (ii) the
maximum rate permitted by applicable law on the amount of Fixed Rent and/or
Additional Rent so overdue and such "late charge" shall be collectible as
Additional Rent by Sublessor.
33. Attorneys' Fees. In case it shall be necessary for Sublessor to
institute any action or proceeding against Sublessee for the nonpayment of rent
or for the violation of any of the covenants or provisions of this Sublease or
for the recovery of possession of the Subleased Premises or should Sublessor be
compelled to intervene in any action or proceeding wherein Sublessee is a party
m order to enforce Sublessor's interest or rights hereunder, then and in any of
such events, if Sublessor shall obtain a judgment or order in its favor on the
merits, sustained on appeal if one is taken, in such action or proceeding,
Sublessee shall be obligated to pay to Sublessor reasonable attorneys' fees,
costs and disbursements incurred for the institution and prosecution of any such
action, proceeding or intervention.
34. Signs. Sublessee shall be privileged to erect and maintain a sign
("Sublessee's Sign") outside but attached to the Subleased Premises and in the
common corridors leading to the Subleased Premises, subject to the approval of
both Landlord and Sublessor (which, as to Sublessor, shall not be unreasonably
withheld or delayed) with respect to number, type, size, shape and design and
subject to all applicable legal requirements or regulations, and to the Lease.
Sublessee may not alter the sign without the prior written approval of Sublessor
(which as to Sublessor, shall not be unreasonably withheld or delayed) and
Landlord, and at the expiration or sooner termination of the Sublease Term, if
Sublessor or Landlord shall so elect, Sublessee, at its own expense, shall
remove such sign or signs and restore the exterior of the Subleased Premises to
its original condition. Such obligations of Sublessee shall survive the
expiration or sooner termination of this Sublease. Sublessor and Landlord shall
have the right to prohibit any display by Sublessee which, in Sublessor's or
Landlord's sole judgment, tends to impair the reputation, desirability or
architectural integrity of the Demised Premises or the Building.
19
35. Electricity. Subject to the provisions of Paragraph 8 of this
Sublease, Sublessor shall furnish the electric energy that Sublessee shall
reasonably require in the Subleased Premises. Commencing on the Commencement
Date, Sublessee shall pay for such electricity at the annual rate of Fifteen
Thousand Five Hundred Forty-Three Dollars ($15,543.00) (One Thousand Two Hundred
Ninety-Five Dollars and Twenty-Five Cents ($1,295.25) per month) ("Electricity
Rent") for such electric energy. The Electricity Rent shall constitute
Additional Rent payable to Sublessor hereunder.
36. Commercial Rent Tax. Sublessee shall be solely responsible for
the payment of any New York City Commercial Rent Tax which may be imposed in
connectionAAA with this Sublease. Sublessee shall pay Sublessee's Proportionate
Share of any occupancy tax or rent tax payable by Tenant under the Lease in
accordance with Section 28.02.F thereof, provided, however, that if the rent
paid under the Lease is higher than the rent paid under this Sublease, on a pro
rata basis, then in that event, Sublessee's Proportionate Share of any such
occupancy tax or rent tax shall be no greater than the Proportionate Share of
the occupancy tax or the rent tax that would have been payable based upon the
rent paid by Sublessee under this Sublease.
37. No Broker. Sublessor and Sublessee represent and warrant that
they have dealt with no broker or finder in connection with this Sublease other
than Xxxxxx X. Xxxxxx Company Incorporated. Sublessor shall pay a commission to
Xxxxxx X. Xxxxxx Company Incorporated pursuant to a separate written agreement.
Sublessor and Sublessee each shall indemnify, defend and save harmless the other
from and against all claims arising from any breach by such party of the
foregoing representation, warranty or covenant. The indemnity set forth herein
shall survive the expiration or earlier termination of this Sublease.
20
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
XXXXXXXX XXXXXXX CO.
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Co-President
SUBLESSEE:
TURBOCHEF, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
21
EXHIBITS TO SUBLEASE
--------------------
Subleased Premises Exhibit A
Lease Exhibit B
Sublessor's Work Exhibit C
Furniture Inventory Exhibit D
Sublessee's Initial Plans Exhibit E
and Specifications
