Exhibit 10(ah)
SUBLEASE
AGREEMENT
Between
AMBAC CAPITAL MANAGEMENT, INC.
Sublandlord,
and
PLAYTEX PRODUCTS, INC.
Tenant
SUBLEASE
SUBLEASE, dated as of February 20, 1998, between AMBAC Capital
Management, Inc., a Delaware corporation, having an office at c/o Ambac
Assurance Corporation, 0 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Sublandlord"), and Playtex Products, Inc., a Delaware corporation, having an
office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Tenant").
W I T N E S S E T H :
WHEREAS, by lease dated as of August 11, 1994 (the "Xxxxxxxxx") by
and between Xxxxxxxx Management Company, a Delaware corporation, having an
office at c/o Zeneca Inc., 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000
("Overlandlord"), and Sublandlord, Overlandlord leased to Sublandlord, as
tenant, certain space on the first floor in the building (the "Building") known
as 000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Demised Premises");
WHEREAS, a true and complete copy of the Xxxxxxxxx has been
delivered to Tenant, except that certain sections pertaining solely to financial
matters between Overlandlord and Landlord have been redacted; and
WHEREAS, Tenant desires to lease from Sublandlord all of the space
leased by Sublandlord under the Xxxxxxxxx, which such space, as stipulated by
Tenant and Sublandlord, comprises 21,407 Rentable Square Feet (as defined in the
Xxxxxxxxx), upon the terms, covenants and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, for themselves, their successors
and assigns, hereby covenant and agree as follows:
1. Subleasing. Sublandlord hereby leases to Tenant, and Tenant
hereby hires from Sublandlord 21,407 Rentable Square Feet of space on the 1st
floor of the Building as shown on the floor plan annexed hereto as Exhibit A and
made a part hereof (the "Subleased Premises"), together with the right to use,
in common with Overlandlord and other tenants in the Complex (as defined in the
Xxxxxxxxx), their invitees and others, in the Common Areas (as defined in the
Xxxxxxxxx) for the term hereafter stated, for the rent hereafter reserved and
upon and subject to the covenants, agreements, terms, conditions, limitations,
exceptions and reservations of this Sublease.
2. Term. (a) The term of this Sublease shall commence on the date
(the
"Commencement Date") on which the last of the following events shall have
occurred: (i) this
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Sublease shall have been executed and delivered by Sublandlord and Tenant; (ii)
the Consent, as defined in Section 14 hereof, shall have been obtained from
Overlandlord; and (iii) possession of the Subleased Premises shall have been
delivered to the Tenant. Sublandlord and Tenant shall, upon the request of
either of them, execute a statement prepared by Sublandlord setting forth such
date as the Commencement Date. Any failure of Tenant to execute such statement
shall not affect Sublandlord's determination of the Commencement Date. The term
shall end on March 30, 2005 (the "Expiration Date"), or on such earlier date
upon which said term may expire or be terminated pursuant to any of the
provisions of this Sublease or the Xxxxxxxxx or pursuant to law.
(b) Tenant expressly waives any right to recover any damages which
may result from Sublandlord's inability to deliver possession of the Subleased
Premises on the Commencement Date.
(c) Notwithstanding anything to the contrary in this Sublease and
provided Tenant is not in default under this Sublease beyond any applicable
notice and grace periods, Sublandlord agrees, upon the written request of Tenant
given no later than ten (10) days prior to the date upon which Sublandlord must
give notice to Overlandlord under the Xxxxxxxxx with respect to extending the
term of the Xxxxxxxxx, to exercise Sublandlord's right to renew the term of the
Xxxxxxxxx pursuant to Section 3.3 of the Xxxxxxxxx and to extend the term of
this Sublease for such term minus one day upon the terms and conditions as are
provided for in the Xxxxxxxxx, including, without limitation, the determination
of Fixed Rent and Additional Rent thereunder, provided, however, that
Sublandlord shall have no obligation to renew the term of this Sublease unless
Overlandlord shall have first consented in writing to discharge Sublandlord from
all of its obligations under the Xxxxxxxxx with respect to such extension term.
(d) Notwithstanding anything to the contrary in this Sublease, if
the Commencement Date shall not have occurred prior to the first (1st)
anniversary of the date of this Sublease, upon such first (1st) anniversary this
Sublease shall terminate and be of no further force and effect. The provisions
of this paragraph (d) shall be self-operative.
3. Fixed Rent. (a) The annual fixed rent (the "Fixed Rent") payable
by Tenant hereunder shall be Four Hundred and Seventy Eight Thousand, Four
Hundred and Forty Six Dollars and Forty Five Cents ($478,446.45) per annum for
the period commencing on the Commencement Date and ending on the Expiration
Date, payable in equal monthly installments of Thirty Nine Thousand, Eight
Hundred and Seventy Dollars and Fifty Four Cents ($39,870.54).
(b) The Fixed Rent provided for hereunder shall be payable in
advance in equal monthly installments on the first day of each and every
calendar month, except that if the Commencement Date is other than the first day
of a calendar month, or if the Expiration Date is other than the last day of a
calendar month, said monthly installments shall be prorated accordingly. The
Fixed Rent, Additional Rent and other charges herein reserved and payable
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shall be paid by Tenant to Sublandlord at the address for Sublandlord listed
above or at suchother place as Sublandlord may designate, in lawful money of the
United States of America, as and when the same shall become due and payable,
without demand therefor and without any deduction, set-off or abatement
whatsoever, except as otherwise expressly provided in this Sublease.
4. Escalation Rent. (a) In addition to the annual Fixed Rent
reserved in Article 3 hereof, Tenant covenants and agrees to pay to Sublandlord,
as additional rent ("Additional Rent"), the following:
(i) All sums which Sublandlord is required to pay to Overlandlord
pursuant to Article 5 of the Xxxxxxxxx with respect to the term of this
Sublease in respect of Operating Expenses (as defined in the Xxxxxxxxx) in
excess of the sums required to be paid by Sublandlord pursuant to Article
5 of the Xxxxxxxxx for the year 1998 and (y) in respect of Real Estate
Taxes (as defined in the Xxxxxxxxx) in excess of the average of the sums
required to be paid by Sublandlord pursuant to Article 5 of the Xxxxxxxxx
with respect to the fiscal tax year 1997-1998 and fiscal tax year
1998-1999. Tenant shall have no obligation to pay any Additional Rent with
respect to Real Estate Taxes for the fiscal tax year 1997-1998.
(ii) Any other sums which become due and payable by Sublandlord to
Overlandlord as Additional Rent (as defined in Section 2 of the Xxxxxxxxx)
or otherwise which would not have become due and payable but for the acts
and/or failures to act of Tenant under this Sublease or which are
otherwise attributable to the Subleased Premises ("Tenant Surcharges"),
including, but not limited to: (w) any increase in Overlandlord's fire,
rent or other insurance premiums as provided in Article 11 of the
Xxxxxxxxx resulting from any act or omission of Tenant; (x) any additional
charges to Sublandlord on account of Tenant's use of heating, ventilation
or air conditioning after hours as provided in Section 9.2 of the
Xxxxxxxxx; and (y) any additional charges to Sublandlord on account of
Tenant's use of cleaning services after hours or in excess of normal
usage, as provided in Section 9.4 of the Xxxxxxxxx. Notwithstanding the
foregoing, however, Tenant shall not be obligated to pay any Additional
Rent with respect to amounts payable by Landlord to Overlandlord pursuant
to Section 15.7 of the Xxxxxxxxx with respect to the profits and
consideration payable to Overlandlord by Landlord as a result of this
Sublease.
(b) The parties hereto agree that Sublandlord shall have all of the
rights and remedies with respect to the nonpayment by Tenant of the Additional
Rent provided for in this Article 4 and all other costs, charges and expenses
provided for in this Sublease as are provided for in this Sublease or by law in
case of the nonpayment of annual Fixed Rent provided for hereunder. Tenant shall
have all of the rights and remedies with respect to contesting such Additional
Rent, receiving refunds for overpayments or receiving statements from
Overlandlord
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with respect to such Additional Rent as are provided to Sublandlord under the
Xxxxxxxxx. The statement or statements referred to in this paragraph (b) shall
be accompanied by copies of all statements received by Sublandlord from
Overlandlord on which such statement or statements are based. In the event that
Tenant desires to exercise Sublandlord's rights pursuant to Article 5 of the
Xxxxxxxxx ("Article 5") and/or to contest such statement from Overlandlord,
Tenant shall submit to Sublandlord a notice requesting Sublandlord to forward to
Overlandlord Tenant's request to exercise Sublandlord's rights pursuant to
Article 5 and/or Tenant's notice contesting such statement setting forth therein
the reasons for such contest, as the case may be. Sublandlord shall promptly
forward such Tenant's notice to Overlandlord. Sublandlord shall in no event be
liable to Tenant nor shall Tenant be excused from the performance or observance
of any of its obligations to be performed or observed under this Sublease, or
entitled to terminate this Sublease or to receive any reduction in or abatement
of the annual Fixed Rent, Additional Rent and other charges provided for in this
Sublease, because of any error in any statement submitted by Overlandlord,
except as may be permitted to Sublandlord as tenant under the Xxxxxxxxx. If
Overlandlord shall fail to correct any such statement so contested by Tenant,
Sublandlord shall, upon notice, permit Tenant, at Tenant's sole cost and
expense, to enforce Sublandlord's rights against Overlandlord with respect to
the Subleased Premises in Sublandlord's name or in Tenant's name as agent for
Sublandlord; provided, however, that Tenant shall indemnify and hold harmless
Sublandlord from and against all liability, loss, claims, demands, penalties or
damage which Sublandlord may incur or suffer by reason of such action, except
any such liability, loss, claims, demands, penalties or damage which Sublandlord
may incur or suffer by reason of Sublandlord's acts or omissions or the acts or
omissions of any other subtenant of Sublandlord under the Xxxxxxxxx. Sublandlord
agrees to cooperate with Tenant in such action and shall execute any and all
documents reasonably required in furtherance of such action. In the event that
as a result of Tenant's action Sublandlord shall receive a refund relating to
such contested statement, Sublandlord shall pay to Tenant, out of such refund,
an amount equal to the reasonable costs and expenses incurred by Tenant in
connection therewith upon presentation of receipted bills therefor, and Tenant's
Proportionate Share of the balance of such refund.
(c) Tenant shall pay Sublandlord the Additional Rent set forth in
paragraph (a) of this Article 4 promptly and in no event later than five (5)
days after the presentation of a statement therefor by Sublandlord to Tenant.
Tenant covenants to pay the Additional Rent when due, and in lawful money of the
United States, notwithstanding that Tenant may have cause to protest such
statement. Any such protest may be made in accordance with paragraph (b) hereof,
but shall not relieve Tenant of its obligation to pay Additional Rent when due
hereunder, provided that Sublandlord's corresponding obligation to pay
Additional Rent under the Xxxxxxxxx similarly is not relieved. Any delay by
Sublandlord in billing any sum set forth in paragraph (a) of this Article 4
shall not constitute a waiver of or in any way impair Tenant's obligation to pay
the same in accordance with the terms of this Sublease.
(d) Tenant's obligation to pay the Additional Rent provided for in
this Article 4
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during the term of this Sublease, as well as Sublandlord's obligation to pay to
Tenant Tenant's Proportionate Share of the balance of any refund in accordance
with the last sentence of paragraph 4(b) hereof, shall survive the expiration or
earlier termination of this Sublease.
(e) Notwithstanding anything herein contained to the contrary, with
respect to electric current, Tenant shall pay, as Additional Rent, to
Sublandlord such amounts as Sublandlord is required to pay for electric current
consumed in the Subleased Premises pursuant to Section 9.1 of the Xxxxxxxxx.
5. Tenant's Construction. (a) Tenant agrees that, promptly after the
Commencement Date, Tenant shall, at Tenant's sole cost and expense (subject to
the provisions of Sections 5(b) and 5(c) as to payment of the Construction
Allowance (as hereinafter defined)), plan, design, construct and complete
appropriate alterations and installations in and to the Additional Space (as
such term is defined in the Xxxxxxxxx) in order to prepare for Tenant's initial
occupancy, all such work being performed in accordance with plans and
specifications approved by Sublandlord) (collectively, "Tenant's Construction").
Tenant covenants and agrees that, in connection with Tenant's Construction,
Tenant shall comply (and shall cause its architects, contractors, subcontractors
and vendors to comply) duly, timely and completely with each and all of the
duties and obligations of Tenant under this Sublease and/or of "Tenant" under
the Xxxxxxxxx (including, but not limited to, those duties and obligations set
forth in Article 8 of the Xxxxxxxxx) which are applicable to alterations and
installations which are the same as, or are similar to, Tenant's Construction.
Without limiting the foregoing provisions of this Section 5(a), Tenant further
covenants and agrees that, in connection with Tenant's Construction:
(i) Sublandlord shall have and shall be entitled to enforce in
Sublandlord's name and for Sublandlord's benefit each and all of the
rights and privileges of "Landlord" set forth in Article 8 of the
Xxxxxxxxx;
(ii) wherever the Xxxxxxxxx provides that any plan, design or other
matter is subject to the consent or approval of Overlandlord, Tenant
shall, at Tenant's own, sole cost and expense, obtain and submit such
plan, design or other matter to Overlandlord for Overlandlord's consent or
approval and shall not proceed with any action described or referred to in
(or in connection with) such plan, design or other matter unless and until
Tenant has first received Overlandlord's written consent thereto or
approval thereof as provided in the Xxxxxxxxx, has delivered to
Sublandlord a true copy of such written consent or approval and has
thereafter received Sublandlord's written consent thereto or approval
thereof, which consent or approval Sublandlord shall not unreasonably
withhold or delay;
(iii) prior to the commencement of Tenant's Construction, Tenant
shall furnish to Sublandlord certificates of insurance conforming to the
requirements of Articles 8 and 11
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of the Xxxxxxxxx showing Sublandlord and Overlandlord as "additional
insureds" on each policy described therein (other than the policies of
workers' compensation insurance and employer's liability insurance) and
shall comply with all of the other provisions of Articles 8 and 11 of the
Xxxxxxxxx; and
(iv) save and except for the Construction Allowance (as hereinafter
defined), Sublandlord shall have no duty or obligation to pay or cause to
be paid any sum of money or to perform or cause to be performed any work
or services, or to furnish or cause to be furnished any plans, drawings,
supplies, materials or equipment.
(b) Sublandlord shall pay directly to Tenant's contractor pursuant
to Section 5(c) hereof Construction Costs (as hereinafter defined) for the
Additional Space in an amount (the "Construction Allowance") which shall not
exceed One Hundred Thousand Dollars ($100,000.00). Tenant shall pay from its own
funds, and Sublandlord shall have no obligation with respect to, (y) any and all
costs which are not Construction Costs and/or (z) any and all Construction Costs
in excess of the Construction Allowance. As used in this Sublease, the term
"Construction Costs" means amounts actually incurred and paid by Tenant and
Tenant's contractors, subcontractors and vendors in connection with Tenant's
Construction solely for the documented, bona fide cost of (i) construction
supplies and materials which are physically installed in and made a part of the
Additional Space, including, without limitation, the documented, bona fide costs
of carpeting, wall coverings, partitions, any electric meter or submeter,
architectural and engineering fees and permit fees, and (ii) labor actually
performed within the Subleased Premises.
(c) Provided that no Event of Default shall have occurred and be
continuing under this Sublease, Sublandlord shall pay to Tenant's contractor
amounts in respect of the Construction Allowance in two (2) equal installments
(each such installment being hereinafter called individually an "Installment")
as Tenant's Construction progresses, each such Installment being payable within
a reasonable period of time after Tenant shall have submitted to Sublandlord, in
form and substance reasonably satisfactory to Sublandlord, a requisition
therefor accompanied by a notarized certificate signed by Tenant's
Connecticut-licensed architect certifying (y) with respect to the first
Installment, that one-half of Tenant's Construction has been constructed and
installed, and (z) with respect to the second Installment, that all of Tenant's
Construction has been constructed and installed, in each instance substantially
in accordance with the plans and specifications therefor approved by
Overlandlord and Sublandlord. Within twenty (20) days after the making of each
payment by Sublandlord, Tenant shall submit to Sublandlord, in form and
substance reasonably satisfactory to Sublandlord, written documentation (an
"Advice") which shall:
(i) include, as attachments, copies of paid invoices for those
Construction Costs which Tenant has incurred prior to such Advice;
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(ii) include, as an attachment, a notarized certificate signed
jointly by Tenant's Connecticut-licensed architect and by a duly
authorized officer of Tenant certifying that (a) such invoices have been
paid in full and (b) the work, supplies and materials described in such
invoices have in fact been duly, properly and completely constructed and
installed in the Additional Space or in the demising walls and common area
corridors substantially in accordance with plans and specifications
theretofore approved by Overlandlord and Sublandlord; and
(iii) include, as an attachment, notarized lien waivers with respect
to those invoices exceeding Ten Thousand Dollars ($10,000.00), in proper
form for recording and otherwise in form and substance reasonably
satisfactory to Sublandlord, signed by an officer of each contractor,
subcontractor and vendor whose paid invoice accompanies the Advice,
certifying that such contractor, subcontractor or vendor waives all liens
and rights of lien with respect to the work, services and materials
described in such invoices (and Tenant shall use reasonable efforts to
include notarized lien waivers as described above for all other invoices
unless otherwise required by Overlandlord).
6. Alterations. Following the completion of Tenant's Construction,
Tenant shall make no changes, alterations, additions or improvements (except for
nonstructural modifications with estimated costs of less than $5000.00 per
modification and $10,000.00 in the aggregate annually) in, to or about the
Subleased Premises without first obtaining Overlandlord's and Sublandlord's duly
signed prior written consent thereto, which consent of Sublandlord shall not be
unreasonably withheld or delayed, and complying with all of the provisions of
Article 8 of the Xxxxxxxxx. All such alterations shall be performed at Tenant's
sole cost and expense, and at such times and in such manner as Sublandlord may
from time to time reasonably designate and otherwise in accordance with the
provisions of the Xxxxxxxxx.
7. Use. Tenant shall use and occupy the Subleased Premises for
executive and general office use and lawful uses ancillary thereto, including
any uses expressly permitted under Article 7 of the Xxxxxxxxx and for no other
use. Tenant's use shall be subject to the provisions of the Xxxxxxxxx
(including, without limitation, Article 7 thereof).
8. Assignment and Subletting. (a) Tenant shall not assign this
Sublease, sublet the Subleased Premises, or any part thereof, suffer or permit
the occupancy of the Subleased Premises, or any part thereof, by any party other
than Tenant, or in any other manner encumber this Sublease without the prior
written consent of Sublandlord and Overlandlord. The consent by Sublandlord to
any assignment or to any sublease or occupancy of the Subleased Premises, or any
part thereof, shall not be deemed to relieve or release (i) Tenant from the full
performance and observance by Tenant of all of its obligations under this
Sublease or (ii) Tenant or any assignee or sublessee of Tenant from the
obligation of obtaining the consent in writing of Sublandlord and Overlandlord
to any further assignment, sublease or occupancy. Tenant shall
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pay, upon demand, (x) any cost, expense or fee of Overlandlord which is required
to be paid in connection with any assignment, subleasing or occupancy pursuant
to this Section 8, and (y) any cost or expense of Sublandlord which is incurred
by Sublandlord in connection with any request for consent to any assignment,
subletting or occupancy pursuant to this Section 8.
(b) In the event that Tenant shall desire Sublandlord's consent to
an assignment of this Sublease or to a subletting of all or any part of the
Subleased Premises, Tenant shall request such consent by submitting to
Sublandlord an executed copy of such assignment or sublease and such other
information as Sublandlord may reasonably require. Sublandlord shall then have
the option, to be exercised by written notice to Tenant within thirty (30) days
from the receipt by Sublandlord of such assignment or sublease, as the case may
be, and such other information, to (i) terminate this Sublease, if the request
is to assign this Sublease or to sublet all of the Subleased Premises or, (ii)
terminate this Sublease with respect to such portion of the Subleased Premises
proposed to be sublet; such terminations to be effective as of the date
specified in Sublandlord's notice to Tenant, which date shall be not less than
thirty (30) days nor more than one-hundred twenty (120) days from the date of
Sublandlord's notice.
(c) In the event that Sublandlord shall exercise its option in
paragraph (b) above, Tenant shall surrender possession of that portion of the
Subleased Premises which is the subject of said option on the date set forth in
Sublandlord's notice for the termination of the Sublease or portion thereof as
the case may be. In the event that the Sublease shall be terminated as to a
portion of the Subleased Premises, the annual Fixed Rent and Tenant's
Proportionate Share shall be proportionately adjusted. In the event that
Sublandlord shall not exercise its option in paragraph (b) above, Sublandlord
shall give written notice to Tenant of its granting or denial of such consent,
which such consent shall not be unreasonably withheld or delayed, within the
thirty (30) day period specified in paragraph (b) above for the exercise of the
option contained therein.
(d) If this Sublease shall be assigned without the consent of
Sublandlord and Overlandlord, or if the Subleased Premises, or any part thereof,
shall be sublet or occupied by any person or persons other than Tenant,
Sublandlord may, after default by Tenant, collect rent from the assignee,
subtenant or occupant and apply the net amount collected to the rent herein
reserved, but no such assignment, subletting, occupancy or collection of rent
shall be deemed a waiver of any of the covenants, terms or provisions contained
in this Section 8, nor shall it be deemed an acceptance of the assignee, Tenant
or occupant as tenant hereunder, or a release of Tenant from the full
performance and observance by Tenant of all of the covenants and obligations
contained in this Sublease on the part of Tenant to be performed or observed.
(e) Notwithstanding anything to the contrary in this Sublease and
provided that the prior written consent of Overlandlord has been obtained with
respect to Tenant's subletting or assignment of the Subleased Premises,
Sublandlord hereby consents to Tenant's subletting of an
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undivided interest in the Subleased Premises only, or Tenant's assigning of its
entire interest in this Sublease only, solely to any bona-fide parent,
subsidiary or other business entity controlled by, controlling or under common
control with Tenant (collectively, an "Affiliate"); provided, in any such event
(1) Tenant otherwise complies with (and remains bound and liable for) all of the
provisions of this Sublease on Tenant's part to be performed and (2) Tenant is
not in default of its Sublease obligations beyond any applicable notice and
grace periods under this Sublease at the time of such transfer, and (3) such
Affiliate shall engage in a business at the Subleased Premises which is
compatible with those of the tenant profile at the Complex, and (4) Tenant gives
Sublandlord and Overlandlord at least fifteen (15) days prior written notice of
such transfer and further provides Landlord and Overlandlord with any and all
transfer and related documentation executed by the parties within fifteen days
after such execution thereof (any such assignment documentation containing an
express assumption by assignee of all of Tenant's Sublease obligations, and any
such sublease documentation expressly provided that the same is subject and
subordinate to this Sublease and the Xxxxxxxxx).
9. Incorporation of Xxxxxxxxx. This Sublease is subject to, and
Tenant accepts this Sublease subject to, all of the terms, covenants,
provisions, conditions and agreements contained in the Xxxxxxxxx and the matters
to which the Xxxxxxxxx is subject and subordinate. Except as otherwise provided
in this Sublease, all of the terms, covenants, conditions and agreements of the
Xxxxxxxxx including, among other things, definitions and constructions therein
contained, except such as by their nature or purport do not relate to the
Subleased Premises or are inapplicable or inappropriate to the subleasing of the
Subleased Premises pursuant to this Sublease or are inconsistent with any of the
provisions of this Sublease, are hereby incorporated in and made part of this
Sublease with the same force and effect as though set forth at length herein, it
being understood that (i) references in the Xxxxxxxxx to the "Demised Premises"
shall be deemed to refer to the "Subleased Premises" hereunder, (ii) references
in the Xxxxxxxxx to the "Landlord" and to the "Tenant" shall be deemed to refer
to "Sublandlord" and "Tenant" hereunder, respectively, (iii) references in the
Xxxxxxxxx to the "Fixed Rent" and "Additional Rent" shall be deemed to refer to
the "Fixed Rent" and "Additional Rent" hereunder, (iv) references in the
Xxxxxxxxx to "Rent" shall be deemed to refer to collectively "Fixed Rent" and
"Additional Rent" hereunder, and (v) references in the Xxxxxxxxx to the "Term of
this Lease", "the term of this Lease", or the "Term" shall be deemed to refer to
the "Term of this Sublease" or the "term of this Sublease", as applicable. It is
further understood that where reference is made in the Xxxxxxxxx to "this
Lease", "the lease" or "this lease" the same shall be deemed to refer to "this
Sublease" (except when such reference in the Xxxxxxxxx is, by its terms, unless
modified by this Sublease, to any other section of the Xxxxxxxxx, in which event
such reference shall be deemed to refer to the particular section of the
Xxxxxxxxx).
10. Articles of Xxxxxxxxx. For the purposes of this Sublease, the
provisions of the Articles of the Xxxxxxxxx, as incorporated herein, are subject
to the following modifications or deletions:
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(a) The time limits provided in the Articles of the Xxxxxxxxx for
the giving of notice, making demands, performance of any act, condition or
covenant, or the exercise of any right, remedy or option, are amended for
the purposes of this Sublease by lengthening or shortening the same in
each instance by five (5) days, as appropriate, so that notices may be
given, demands made, or any act, condition or covenant performed, or any
right, remedy or option hereunder exercised, by Sublandlord or Tenant, as
the case may be, within the time limit relating thereto contained in the
Xxxxxxxxx. If the Xxxxxxxxx only allows five (5) days or less for
Sublandlord to perform any act or to undertake to perform such act, or to
correct failure relating to the Subleased Premises or this Sublease, then
Tenant shall nevertheless be allowed three (3) days to perform such act,
undertake such act and/or to correct such failure.
(b) The following Articles and provisions of the Xxxxxxxxx shall not
be incorporated herein by reference:
Article 1; Article 3; Section 4.1; Section 4.2; Section 4.4; Article
5; Section 6.1; Section 7.1 (as relates to "Landlord's Work");
Section 7.3(f); Article 12; Article
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13; Section 14.1(c); Section 14.1(f); Sections 14.2(a), (b), (c),
(d), (e), (f), (g), (h) and (i); Section 15.1; Section 15.2; Section
15.3; Section 15.4; Section 15.5; All references in Article 16 to
"Tenant's Guarantor"; Section 20.1; Section 20.2; Section 20.3;
Section 20.4; Section 20.5; Section 20.6; Section 20.7; Section
20.8; Article 21; Section 22.2; Section 22.4; Section 22.5; Section
22.7; Section 22.16(e); Section 22.20; Exhibit B-1; Exhibit C;
Exhibit D; Exhibit G; Exhibit I.
11. Tenant's Covenants. Tenant covenants and agrees to perform
(including to refrain from any action not permitted on the part of Sublandlord
under the Xxxxxxxxx) and to observe all of the covenants, agreements, terms,
provisions and conditions of the Xxxxxxxxx on the part of the Sublandlord to be
performed and observed, to the extent that the same apply to the Subleased
Premises or the use and occupancy by Tenant of the Subleased Premises and the
services and facilities of the Building and the Complex. Tenant further
covenants and agrees not to do or suffer or permit any act or thing to be done
or suffered which would or might cause the Xxxxxxxxx or the rights of
Sublandlord as tenant thereunder to be canceled, terminated or forfeited. The
covenants and obligations of this Section 11 shall survive the expiration or
earlier termination of this Sublease.
12. Services. Sublandlord agrees that Tenant shall have and enjoy
the same rights which Sublandlord, as tenant under the Xxxxxxxxx, has to
performance by Overlandlord of any service, repair, alteration or other similar
obligation which is the obligation of Overlandlord to perform under those
provisions of the Xxxxxxxxx incorporated herein, including, but not limited to,
those set forth in clauses (i), (ii) and (iii) below; provided, however, that
Tenant agrees and understands that Sublandlord shall have no obligation or
responsibility whatsoever to provide or perform any such service, repair,
alteration or other similar obligation including, but not limited to, the
obligation of Overlandlord to (i) make restorations or repairs after damage to
the Building or the Subleased Premises by fire or other casualty or after
condemnation, (ii) provide the services specified in Article 9 of the Xxxxxxxxx,
or (iii) make the repairs or alterations referred to in Article 8 of the
Xxxxxxxxx. Tenant further agrees and understands that each such obligation shall
be provided or performed by Overlandlord and not by Sublandlord.
13. Default of Overlandlord. (a) If Overlandlord does not perform or
observe any of the agreements, covenants, obligations, terms, provisions or
conditions under the Xxxxxxxxx on its part to be performed or observed
(collectively, "Overlandlord's Obligations") (including any obligation for the
payment of money or any failure or delay on Overlandlord's part in providing any
services or in making any repairs or alterations, or in performing or observing
any similar obligation of Overlandlord under the Xxxxxxxxx), Sublandlord shall
have no liability therefor to Tenant and shall be excused from performance of
the corresponding obligations which may be owed by Sublandlord to Tenant under
this Sublease unless such
13
default of Overlandlord is excused due to the act or omission of Sublandlord or
a Tenant, other than Tenant, of Sublandlord under the Xxxxxxxxx. However,
Tenant, pursuant to the provisions of paragraph (b) hereof, may enforce
Sublandlord's rights against Overlandlord in respect of any such default insofar
as the same relate to the Subleased Premises. Any condition resulting from an
unexcused default by Overlandlord shall not constitute as between Sublandlord
and Tenant an eviction, actual or constructive, of Tenant. No such default shall
excuse Tenant from the performance or observance of any of its obligations to be
performed or observed under this Sublease, or entitle Tenant to terminate this
Sublease or to receive any reduction in or abatement of the Fixed and Additional
Rent provided for in this Sublease, except as may be permitted to Sublandlord as
tenant under the Xxxxxxxxx or unless such default of Overlandlord is excused due
to the act or omission of Sublandlord or a Tenant, other than Tenant, of
Sublandlord under the Xxxxxxxxx.
(b) If Tenant shall notify Sublandlord that Overlandlord is not
supplying services to the Subleased Premises as required under the Xxxxxxxxx,
Sublandlord shall promptly forward such notice to Overlandlord. If Overlandlord
does not perform or observe any of Overlandlord's Obligations with respect to
the Subleased Premises, Sublandlord shall, upon request from Tenant, give
written notice thereof to Overlandlord and demand therein that it comply with
Overlandlord's Obligations. If Overlandlord shall fail to do so, Sublandlord
shall, upon notice, permit Tenant, at Tenant's sole cost and expense, to enforce
Sublandlord's rights against Overlandlord with respect to the Subleased Premises
in Sublandlord's name or in Tenant's name as agent for Sublandlord; provided,
however, that Tenant shall indemnify and hold harmless Sublandlord from and
against all liability, loss, claims, demands, penalties or damage which
Sublandlord may incur or suffer by reason of such action, except any such
liability, loss, claims, demands, penalties or damage which Sublandlord may
incur or suffer by reason of Sublandlord's acts or omissions or the acts or
omissions of any other Tenant of Sublandlord under the Xxxxxxxxx which
obligation shall survive the expiration or earlier termination of this Sublease.
Sublandlord agrees to cooperate with Tenant in such action and shall execute any
and all documents required in furtherance of such action.
14. Consent of Overlandlord. Notwithstanding anything to the
contrary herein set forth, this Sublease shall not become effective unless and
until Sublandlord has obtained from Overlandlord written consent (the "Consent")
to this subletting. Sublandlord agrees to request the Consent promptly upon the
execution of this Sublease and shall forward to Tenant a copy of the same
promptly upon its receipt by Sublandlord. If the Consent is not obtained from
Overlandlord within thirty (30) days, this Sublease shall become null and void
and be of no further force or effect.
15. Notices. (a) Any notice, statement, demand or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Sublease or pursuant to any applicable law
or requirement of public authority, shall be in writing (whether
14
or not so stated elsewhere in this Sublease) and shall be deemed to have been
properly given, rendered or made, if personally delivered or sent by registered
or certified mail, return receipt requested, addressed, if to Sublandlord, as
follows:
Attention: Xxxxxx Xxxxxxxx
AMBAC Capital Management, Inc.
c/o Ambac Assurance Corporation
0 Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and if to Tenant, as follows:
Attention: Xxxxxxx X. Xxxx
Playtex Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Playtex Products, Inc.
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
until Tenant takes possession of the Subleased Premises and, thereafter, to
Tenant at the Subleased Premises, and shall be deemed to have been given,
rendered or made on the day personally delivered or posted. Either party may, by
notice as aforesaid, designate a different address for notices, statements,
demands or other communication intended for it.
(b) Sublandlord agrees to promptly forward to Tenant a copy of any
and all notices received by Sublandlord under the Xxxxxxxxx which affect the
Subleased Premises or this Sublease, including, without limitation, any notice
of default.
15
16. Condition of the Subleased Premises. Tenant represents that it
has made or caused to be made a thorough examination and inspection of the
Subleased Premises and is familiar with the condition of every part thereof.
Tenant agrees that it enters into this Sublease without any representations or
warranties by Sublandlord, its agents, representatives, employees, servants or
any other person as to the condition of the Subleased Premises. Except as
otherwise provided herein, Tenant agrees to accept the Subleased Premises "as
is" in the condition existing at the Commencement Date.
17. Consent of Sublandlord. In all provisions requiring the approval
or consent of both Sublandlord and Overlandlord, Tenant shall simultaneously
submit its request for consent or approval to Sublandlord and Overlandlord,
through Sublandlord, and Sublandlord shall forward to Overlandlord such request
without delay.
18. Entire Agreement. This Sublease contains the entire agreement
between the parties and any executory agreement hereafter made shall be
ineffective to change, modify or discharge it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification or discharge is sought.
19. Broker. Insignia/ESG is the sole broker who brought about this
Sublease, and Sublandlord agrees to pay any brokerage commission or other fee
earned by said broker in accordance with a separate agreement between said
brokers and Sublandlord. Tenant shall indemnify and hold harmless Sublandlord
from and against any and all liability, claims, suits, demands, judgments,
costs, interest and expense to which Sublandlord may be subject or suffer by
reason of any claim made by any person, firm or corporation other than the
aforesaid named broker for any commission, expense or other compensation as a
result of the execution and delivery of this Sublease and based on alleged
conversations or negotiations by said person, firm or corporation with Tenant.
20. Right to Cure Tenant's Defaults. If Tenant shall at any time
fail to make any payment or perform any other obligation of Tenant hereunder,
then Sublandlord shall have the right, but not the obligation, after the lesser
of five (5) days' notice to Tenant or the time within which Overlandlord may act
on Sublandlord's behalf under the Xxxxxxxxx, or without notice to Tenant in the
case of any emergency, and without waiving or releasing Tenant from any
obligations of Tenant hereunder, to make such payment or perform such other
obligation of Tenant in such manner and to such extent as Sublandlord shall deem
necessary, and in exercising any such right, to pay any incidental costs and
expenses, employ attorneys and other professionals, and incur and pay reasonable
attorneys' fees and other costs reasonably required in connection therewith.
Tenant shall pay to Sublandlord upon demand all sums so paid by Sublandlord and
all incidental costs and expenses of Sublandlord in connection therewith,
together with interest thereon at the Interest Rate (as such term is defined in
Section 2.01(g) of the Xxxxxxxxx), or the then maximum lawful interest rate,
whichever shall
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be less, from the date of the making of any such expenditures.
21. Casualty and Eminent Domain; Insurance. (a) If the Subleased
Premises or the Building shall be partially or totally damaged by fire or other
cause, or acquired by power of eminent domain or condemned, the consequences
thereof shall be determined pursuant to Articles 12 and 13 of the Xxxxxxxxx and
Overlandlord shall be the sole party responsible for the repair and restoration
of the Subleased Premises to the extent required under said Articles 12 and 13.
Tenant's right to an abatement or apportionement of rents and or repairs shall
be dependent upon whether or not Sublandlord has a right of abatement or
apportionement of rents and/or repairs under said Articles 12 and 13 with
respect to the Subleased Premises. Provided that Tenant is not under default of
any of its obligations beyond any applicable notice and grace periods under the
Sublease, Sublandlord agrees that it shall allocate to Tenant any abatement or
apportionment of rents to which it may be entitled pursuant to the provisions of
the Xxxxxxxxx. No damage, compensation or claims shall be payable by Sublandlord
for inconvenience, loss of business or annoyance arising from any such damage by
fire or other cause or by the repair or restoration of any portion of the
Subleased Premises or of the Building.
(b) For the purposes of Section 11.1 of the Xxxxxxxxx, as
incorporated into this Sublease, the term "Landlord" shall be deemed to include
both Sublandlord and Overlandlord, so that all policies of insurance required to
be maintained by Tenant hereunder and thereunder shall name both Sublandlord and
Overlandlord as additional insureds, provided, however, that all references to
Landlord beginning in line 5 of Section 11.1(c) shall be deemed to refer only to
Overlandlord.
22. Parking. Subject to the terms and conditions of Section 22.16 of
the Xxxxxxxxx, Tenant (and Tenant's employees, agents, visitors and permitted
subtenants) shall have the right to use up to sixty (60) unreserved parking
spaces at the Complex, plus five (5) reserved parking spaces at the Complex, all
on a Rent-inclusive basis (all Tenant's visitor parking included in such total).
All said parking spaces shall be located in the Complex's garage facilities
serving the Subleased Premises.
23. Personal Property. Tenant has acquired from Sublandlord all of
Sublandlord's furniture, equiptment and other personal property located at the
Subleased Premises except for those items listed on Exhibit B attached hereto
(collectively, the "Personal Property"). Upon the Expiration Date or sooner
termination of this Sublease, Tenant shall remove, at its sole cost and expense,
all such Personal Property from the Subleased Premises. In the event that Tenant
shall fail to remove all such Personal Property, Tenant agrees that Sublandlord
shall have the right, but not the obligation, to do so and to charge Tenant
therefor as Additional Rent hereunder.
24. Termination of Xxxxxxxxx. If for any reason, the term of the
Xxxxxxxxx shall
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terminate prior to the Expiration Date, this Sublease as between Tenant and
Sublandlord shall be terminated. Notwithstanding the foregoing (but subject to
the terms of the Xxxxxxxxx), Tenant agrees that if for any reason the term of
the Xxxxxxxxx shall terminate prior to the Expiration Date or Overlandlord shall
otherwise succeed to the estate of Sublandlord in respect of the Subleased
Premises, Tenant shall and hereby does waive any right to surrender possession
of the Subleased Premises or to terminate this Sublease and, at Overlandlord's
election, Tenant agrees to be bound to Overlandlord for the balance of the term
of this Sublease and to attorn to and recognize Overlandlord as its landlord
under all of the then executory terms of this Sublease, except that Overlandlord
shall not be (a) liable for any previous act, omission or negligence of
Sublandlord under this Sublease, (b) subject to any counterclaim, defense or
offset not expressly provided for in this Sublease theretofore accruing to
Tenant against Sublandlord, (c) bound by any previous modification or by any
previous prepayment of more than one month's Fixed Rent and Additional Rent
unless paid as provided in this Sublease, or (d) obligated to perform any
repairs or other work in the Subleased Premises or the Building beyond
Overlandlord's obligations under the Xxxxxxxxx, and Tenant agrees to execute and
deliver such instruments as Overlandlord may reasonably request to evidence and
confirm such attornment.
25. Sublandlord's Representation and Covenants. (a) Sublandlord
represents to Tenant that the Xxxxxxxxx is in full force and effect, that the
Xxxxxxxxx has not been modified and that to the best of Sublandlord's knowledge,
neither Sublandlord nor Overlandlord is in default thereunder in any material
respect.
(b) Sublandlord covenants and agrees that if and so long as Tenant
pays the Fixed Rent and Additional Rent and all other charges herein reserved
and performs and observes all of the agreements, terms, conditions, covenants
and provisions hereof, Tenant shall quietly enjoy the Subleased Premises and
Sublandlord shall not enter into any agreement or understanding with
Overlandlord that would affect Tenant's possession of the Subleased Premises
(unless Overlandlord has consented to enter into an agreement with Tenant
whereby Tenant shall remain in possession of the Subleased Premises upon the
terms and conditions of this Sublease), subject, however, to the terms of this
Sublease and the Xxxxxxxxx and to the matters to which the Xxxxxxxxx is subject
and subordinate.
(c) Promptly after receipt by Sublandlord, Sublandlord shall deliver
to Tenant a copy of each notice of default that relates or is applicable to the
Subleased Premises. Tenant shall have the right, but not the obligation, to cure
such Sublandlord's defaults after five (5) days written notice to Sublandlord,
or without notice to Sublandlord in the case of an emergency, and, without
waiving or releasing Sublandlord from any of its obligations under this
Sublease, to make such payment or perform such other obligation of Sublandlord
as Tenant reasonably deems necessary, and, in exercising any such right, to pay
any incidental costs and expenses, employ attorneys and other professionals, and
incur and pay reasonable attorney's fees in connection therewith. Sublandlord
shall pay to Tenant upon demand all sums so paid by Tenant and all
18
incidental costs and expenses of Tenant in connection therewith, together with
interest thereon at the Interest Rate (as such term is defined in Section
2.01(g) of the Xxxxxxxxx), or the then maximum lawful interest rate, whichever
shall be less, from the date of the making of any such expenditures.
26. Governing Law. The exercise, validity, construction, operation
and effect of the terms and provisions of this Sublease shall be determined and
enforced in accordance with the laws of the State of Connecticut applicable to
agreements made and to be performed in the State of Connecticut.
28. Successors and Assigns. The provisions of this Sublease, except
as otherwise specifically provided, shall extend to, bind and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. In the event of any assignment or transfer of the leasehold estate
under the Xxxxxxxxx, the transferor or assignor, as the case may be, shall be
and hereby is entirely relieved and freed of all obligations under this
Sublease, except to the extent that any such obligations accrued or were
otherwise incurred prior to the date of any such assignment or transfer.
29. No Diminishment of Overlandlord's Rights. Notwithstanding
anything to the contrary contained herein, no term or provision of this Sublease
shall be construed to diminish or impair the rights of Overlandlord under the
Xxxxxxxxx or with respect to Overlandlord's interest in the Subleased Premises.
This Sublease is expressly made subject to the Xxxxxxxxx and to the matters to
which the Xxxxxxxxx is or shall be subject and subordinate.
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IN WITNESS WHEREOF, Sublandlord and Tenant have executed this
Sublease as of the day and year first above written.
SUBLANDLORD:
AMBAC Capital Management, Inc.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
TENANT:
Playtex Products, Inc.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Secretary
EXHIBIT A
The Subleased Premises
EXHIBIT B
Personal Property
1. All conference room tables and furniture related thereto.
2. Credenza in main conference room.
3. One (1) exercise bike.
