AGREEMENT OF SUBLEASE
BETWEEN
ULTRAFEM, INC.
AS SUBLESSOR
AND
HIGH VIEW CAPITAL CORPORATION
AND HIGH VIEW ASSET MANAGEMENT CORPORATION
AS SUBTENANT
DATED AS OF OCTOBER 31, 1996
AGREEMENT OF SUBLEASE
THIS AGREEMENT (this "Sublease") dated as of the 31 day of
October, 1996, by and between Ultrafem, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Sublessor"), and High View Capital Corporation and High View Asset
Management Corporation, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(collectively and individually "Subtenant").
W I T N E S S E T H :
WHEREAS, Sublessor is the tenant under that certain Indenture of
Lease, dated July 23, 1996, between 000 Xxxxx Xxxxxx Xx. ("Xxxxxxxx"), as
landlord, for a portion of the seventeenth (17th) floor of the building (the
"Overleased Premises") known as 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the
"Building"), as amended by that certain First Amendment of Lease, dated
September ___, 1996, between Landlord and Sublessor (as amended, the
"Xxxxxxxxx")
WHEREAS, Subtenant desires to sublet from Sublessor 4,025 rentable
square feet of the Overleased Premises as shown on the floor plan annexed hereto
as Exhibit A and made a part hereof, together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed therein
at the commencement of, or at any time during, the term of this Sublease, (the
"Subleased Premises"), and Sublessor desires to sublet the same to Subtenant.
NOW, THEREFORE, in consideration of the mutual obligations of the
parties hereto, the parties for themselves, their successors and assigns, hereby
covenant and agree, as follows:
1. Subleased Premises.
Sublessor hereby subleases to Subtenant and Subtenant hereby
hires from Sublessor the Subleased Premises.
2. Term.
a. The Subleased Premises are subleased upon and subject to
the covenants, agreements, terms and conditions herein contained for a term (the
"Term") to commence on the "Commencement Date" (as defined in Section 12(a)
hereof) and to expire forty-two (42) months after the Commencement Date (the
"Expiration Date"), or on such earlier date upon which the Term may expire or be
canceled or terminated pursuant to the provisions of this Sublease including,
without limitation, Section 16 hereof, or pursuant to law.
b. In the event that Subtenant shall hold over after the
Expiration Date, Subtenant shall pay a rental for each day it holds over in an
amount equal to the "Base Rent" and "Escalations" (as defined in Section 8
hereof) in effect on the last day of the Term pro rated on a daily basis, except
that, in the event Subtenant shall hold over for a period in excess of fifteen
(15) days, Subtenant shall pay a rental for each day Subtenant holds over beyond
said 15-day period in an amount equal to one and one-half (1 1/2) times the Base
Rent and Escalations in effect on the last day of the Term pro rated on a daily
basis. Notwithstanding anything to the contrary contained herein, the provisions
set forth in the immediately preceding sentence shall not apply in respect of
any period during which Subtenant is holding over due solely to events of "force
majeure" (as hereinafter defined); during which time Subtenant shall pay a
rental for each day it holds over in an amount equal to the Base Rent and
Escalations in effect on the last day of the Term pro rated on a daily basis. As
used in this Sublease, the term "force majeure" shall consist of events the
cause of which is beyond Sublessor's or Subtenant's reasonable control
including, without limitation, legal or governmental restrictions, regulations
or controls, labor disputes, mechanical breakdowns, inability to obtain fuel,
steam, water, electricity or materials through ordinary sources, acts of God,
enemy action, civil commotion, and fire or other casualty.
3. Failure to Give Possession.
Subject to the provisions hereinafter set forth, in the event that
Sublessor is unable to give possession of the Subleased Premises on the
Commencement Date for any reason, Sublessor shall not be subject to any
liability for failure to give possession on said date, and the validity and,
except as hereinafter provided, enforceability of the Sublease shall not be
impaired under the circumstances, nor shall the same be construed in any way to
extend the term of the Sublease, but Base Rent, Additional Rent, and any and all
other charges payable hereunder shall be abated (provided Subtenant is not
responsible for the inability to obtain possession) until the Subleased Premises
are available for Subtenant's occupancy. The provisions of this Section 3 are
intended to constitute an express waiver by Subtenant of any rights to rescind
the Sublease under Section 223-a of the New York Real Property Law or any
successor statute of similar import then in force, and Subtenant further waives
the right to recover any damages which may result or arise out of the inability
of Sublessor to deliver possession of the Subleased Premises on the Commencement
Date.
Notwithstanding anything to the contrary contained herein, in the
event that the Commencement Date shall not have occurred on or before March 1,
1997, then Subtenant at anytime thereafter shall have the right to terminate
this Sublease by giving at least fifteen (15) days' written notice to Sublessor,
and such termination shall be effective at the end of such notice period unless
(i) the Commencement Date shall occur within such period, or (ii) Subtenant in
its sole discretion extends such period.
- 2 -
4. Xxxxxxxxx.
a. Annexed hereto as Exhibit B is a copy of the Xxxxxxxxx. All
of the terms, covenants and conditions of the Xxxxxxxxx are incorporated herein
as if expressly set forth and restated in their entirety and made a part hereof,
and such rights and obligations as are contained in the Xxxxxxxxx are hereby
imposed upon the respective parties hereto, except that the following provisions
of the Xxxxxxxxx shall be excluded and not incorporated herein except as
modified or referred to in this Sublease: Articles 2, 3, 12, 16, 22, 23, 24, 28,
31, 34, 36, 38, 39 and Sections 8.01(a), 15.02 and 30.02.
b. Provided that Sublessor satisfies its obligations set forth
in subsection 4c hereof, this Sublease is subject and subordinate to the
Xxxxxxxxx and to all amendments thereof heretofore and hereafter entered into
and to any termination caused by Sublessor's default thereof in accordance with
its terms and to all matters to which the Xxxxxxxxx is or shall be subordinate
and to the consent of the Landlord in accordance with the terms of the
Xxxxxxxxx. No amendment hereafter entered into by Sublessor and Landlord will
have any materially adverse effect on the rights or obligations of Subtenant
hereunder. Promptly after the execution of any amendment of the Xxxxxxxxx,
Sublessor shall mail a copy thereof to Subtenant. In the event Sublessor
receives any rent abatement from the Landlord pursuant to the Xxxxxxxxx during
the Term due to the rendering by the Landlord of the Subleased Premises into an
untenantable condition (due to Landlord's failure to supply a service which
Landlord is obligated to provide pursuant to the Xxxxxxxxx), the Base Rent
hereunder shall be then reduced by 22.75% of any such rent abatement.
c. Subtenant covenants and agrees: (i) to perform and observe
all of the terms, covenants, conditions and agreements of the Xxxxxxxxx on the
part of Sublessor to be performed thereunder relating to the Subleased Premises
(other than the covenant to pay minimum and additional rent and such other
obligations and covenants that are to remain the obligations of Sublessor
hereunder) arising after the date hereof to the extent that the same are not
modified or amended by this Sublease; (ii) not to do or not to suffer any act or
thing to be done on, or with respect to, the Subleased Premises which would
constitute a default under the Xxxxxxxxx or would cause the Xxxxxxxxx to be
canceled, terminated or forfeited by virtue of any rights of cancellation,
termination or forfeiture reserved or vested in Landlord under the Xxxxxxxxx;
and (iii) to indemnify, hold harmless and defend Sublessor (including the
payment of Sublessor's counsel fees and disbursements) from and against any and
all claims, liabilities, losses and damages of any kind whatsoever that
Sublessor may incur by reason of, resulting from or arising out of any such
cancellation, termination or forfeiture.
d. Sublessor represents that as of the date hereof the
Xxxxxxxxx is in full force and effect. Sublessor represents that Sublessor has
not received as of the date hereof any notice of default from the Landlord under
the Xxxxxxxxx and has not, to the best of its knowledge, done or suffered or
caused to be done any acts which would result in any cancellation, forfeiture,
or termination of the Xxxxxxxxx. Sublessor covenants that all
- 3 -
minimum and additional rent has been or will be paid through the Commencement
Date and thereafter on a timely basis, and that Sublessor's interest in the
Xxxxxxxxx is unencumbered.
e. To the extent that any provisions of the Xxxxxxxxx may
conflict or be inconsistent with the provisions of any Section of this Sublease,
whether or not such inconsistency is expressly noted herein, the provisions of
such Section of this Sublease shall prevail, provided, however, that in no event
shall any greater rights as against the Landlord be conferred upon Subtenant
hereunder than are conferred upon Sublessor pursuant to the Xxxxxxxxx.
Furthermore, it is understood that, pursuant to the terms of the Xxxxxxxxx,
certain work, services and repairs to be furnished or made thereunder may in
fact be furnished or made by Landlord and not by Sublessor. Except as provided
herein, Sublessor shall in no event be liable to Subtenant nor shall the
obligations of Subtenant hereunder be impaired or the performance thereof
excused because of any failure or delay on the part of the Landlord in
furnishing any such work or services or in making any of such repairs. However,
if the Landlord shall default in any of Landlord's obligations to Sublessor with
respect to this Subleased Premises, Subtenant shall be entitled to participate,
at its own expense, with Sublessor in the enforcement of the rights which
Sublessor may have against Landlord, and Sublessor shall, at the request of
Subtenant, cooperate promptly and diligently with Subtenant, including joining
in any action or proceeding if necessary, to enforce the rights of Subtenant,
provided that Subtenant shall pay or reimburse Sublessor for all costs and
expenses incurred by Sublessor in any such action or proceeding and shall
indemnify, hold harmless and defend Sublessor (including the payment of
Sublessor's reasonable counsel fees and disbursements) from any liability
arising from the taking of any such action at the request of Subtenant. In the
event Sublessor fails so to cooperate with Subtenant, Subtenant may act in
Sublessor's name to enforce its rights as aforesaid.
f. Subject to the provisions set forth in subsection 4b
hereof, in the event of termination, re-entry or dispossession by Landlord under
the Xxxxxxxxx, unless the Landlord shall otherwise provide, this Sublease shall
automatically cease and terminate subject to the foregoing. Landlord may, at its
option, take over all of the right, title and interest of Sublessor hereunder in
and to the Subleased Premises, and Subtenant shall, at Landlord's option, attorn
to Landlord pursuant to the then executory provisions of this Sublease, except
that Landlord shall not: (i) be liable for any previous act or omission of
Sublessor hereunder, unless performed at or under Landlord's direction or
consent; (ii) be subject to any offset not expressly provided in this Sublease
which theretofore accrued to Subtenant against Sublessor; or (iii) be bound by
any previous prepayment of more than one (1) month's Base Rent, if any. If this
Sublease is terminated or if Landlord takes over Sublessor's interest hereunder
by reason of default under the Xxxxxxxxx which was not caused by a default of
Subtenant under this Sublease, then such termination or taking-over shall not
release Sublessor from liability to Subtenant hereunder.
- 4 -
5. Insurance; Indemnification and Hold Harmless.
a. Subtenant covenants to provide on or before the
Commencement Date and to keep in force during the term of this Sublease at its
own cost and expense, the insurance coverage required to be provided in Article
9 of the Xxxxxxxxx. Such policy is to be written by good and solvent insurance
companies authorized to do business in the State of New York.
b. All policies of insurance required hereunder shall contain
an endorsement or other provision pursuant to which such insurance may not be
modified or canceled, nor the amount thereof reduced, except upon at least
thirty (30) days' prior notice to Sublessor.
c. Subtenant shall not carry separate or additional insurance
concurrent in form or contributing in the event of any loss or damage with any
insurance required to be obtained by Subtenant under this Sublease if the effect
of such insurance would be to reduce the protection or the payment to be made
under the insurance required hereunder, unless Sublessor is included as an
insured thereunder. Notwithstanding the foregoing, Subtenant shall be permitted
to carry separate insurance on its furnishings, furniture, and equipment in the
Subleased Premises.
d. Prior to the time any insurance specified in this Section
is first required to be carried by Subtenant and thereafter, at least fifteen
(15) days prior to the expiration of any such policies, Subtenant agrees to
deliver to Sublessor either copies of the aforesaid policies or certificates
evidencing such insurance, provided that any such certificate shall contain an
endorsement that such insurance may not be modified or canceled, nor the amount
thereof reduced, except upon the prior notice required under Section (b) of this
Section 5.
e. Each party agrees to have included in each of its insurance
policies covering the Building, the Subleased Premises, or the personal
property, fixtures, and equipment located therein or thereon a waiver of the
insurer's right of subrogation against the other party during the Term or, if
such waiver should be unobtainable or unenforceable, (i) an express agreement
that such policy shall not be invalidated if the assured waives the right of
recovery against any party responsible for a casualty covered by the policy
before the casualty, or (ii) any other form of permission for the release of the
other party. If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable from either party's then current insurance company, the
insured party shall so notify the other party promptly after learning thereof,
and shall use its best efforts to obtain the same from another insurance company
described in Section 5a hereof. Each party hereby releases the other party, with
respect to any claim (including a claim for negligence) which it might otherwise
have against the other party, for loss, damage or destruction with respect to
its property occurring during the Term to the extent to which it is, or is
required to be, insured under a policy or policies
- 5 -
containing a waiver of subrogation or permission to release liability, as
provided in the preceding subdivisions of this Section. Nothing contained in
this Section shall be deemed to relieve either party of any duty imposed
elsewhere in this Sublease to repair, restore or rebuild or to nullify any
abatement of rents provided for elsewhere in this Sublease.
f. If, by reason of a failure of Subtenant to comply with the
provisions of Section 5(g) or Section 11 hereof, Sublessor is required pursuant
to the Xxxxxxxxx to pay to or reimburse Landlord for all or any portion of any
increased premiums for fire insurance and extended coverage, Sublessor shall
notify Subtenant thereof and Subtenant shall reimburse Sublessor, on demand, for
that portion of such Sublessor's payment or reimbursement occasioned because of
such failure on the part of Subtenant.
g. Subtenant shall not violate, or permit the violation of,
any condition imposed by the standard fire insurance policy then issued for
office buildings in the Borough of Manhattan, City of New York, and shall not
do, or permit anything to be done, or keep or permit anything to be kept in the
Subleased Premises in violation of this Sublease or the Xxxxxxxxx which would
subject Landlord or Sublessor to any liability or responsibility for personal
injury or death or property damage, or which would increase the fire or other
casualty insurance rate on the Building or the property therein over the rate
which would otherwise then be in effect or which would result in insurance
companies of good standing refusing to insure the Building or any of such
property in amounts reasonably satisfactory to Landlord and Sublessor.
h. In addition to the foregoing, upon failure of Subtenant to
procure, maintain or place such insurance and pay all premiums and charges
therefor, Sublessor may, upon fifteen (15) days' notice to Subtenant, do so (but
shall not be obligated to do so) and in such event Subtenant agrees to pay the
amount therefor, plus interest at the Interest Rate (as such term is defined in
Section 8(e) hereof), from the date of such payment by Sublessor until payment
in full by Subtenant, to Sublessor on demand as Additional Rent. Notwithstanding
the foregoing, if Subtenant shall fail to keep in force and effect the insurance
substantially as hereinabove set forth, then Subtenant shall indemnify, save
harmless and defend Landlord and Sublessor (including the payment of Landlord's
and Sublessor's reasonable counsel fees and disbursements) from and against any
and all liability and damages, and from and against any and all suits, claims
and demands of every kind and nature, including reasonable attorneys' fees by or
on behalf of any person, firm, association or corporation arising out of or
based upon any accident, injury or damage, caused by the negligence, wilful act
or omission of Subtenant, or its employees, agents or contractors, which shall
or may happen in, on, at or about the Subleased Premises, and from and against
any matter or thing arising out of the condition, maintenance, repair,
alteration, use, occupation, or operation of the Subleased Premises, except to
the extent the same shall have been caused by the negligent acts of Sublessor or
Landlord, and their employees, agents, contractors, licensees, invitees,
undertenants, successors, or assigns.
- 6 -
6. Assignment and Subletting.
a. Subtenant shall not assign this Sublease or Subtenant's
rights in and to the Subleased Premises or sublet all or any part of the
Subleased Premises without consent of Sublessor, which consent may be withheld
by Sublessor in its sole and absolute discretion. This prohibition against
assigning or subletting shall be construed to include a prohibition against any
assignment or subletting by operation of law. If this Sublease is assigned or if
the Subleased Premises or any part thereof is underlet or occupied by anyone
other than the Subtenant in violation of the terms hereof, Sublessor may collect
rent from the assignee, undertenant or occupant and apply the net amount
collected to the rents herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of this covenant or the
acceptance of the assignee, undertenant or occupant as tenant, or a release of
Subtenant from the further performance or observance by Subtenant of the
covenants herein contained. The consent by Sublessor to an assignment or
underletting shall not in anywise be construed to relieve Subtenant (or any
assignee or undertenant) from obtaining the express written consent of Sublessor
to any further assignment or underletting. Notwithstanding any assignment or
sublease which shall have been consented to by Sublessor, Subtenant shall remain
primarily liable on this Sublease and shall not be released from performing and
observing any of the terms, covenants and conditions of this Sublease.
b. Any transfer of a 50% or greater interest in Subtenant
(whether stock, partnership interest or otherwise) shall be deemed to be an
assignment of this Sublease and a substantial violation of the provisions
hereof, unless the prior written consent of Sublessor shall have been first
obtained, which prior written consent may be withheld by Sublessor for any
reason or no reason.
Notwithstanding anything to the contrary contained
herein and provided Subtenant complies with Article 11 of the Xxxxxxxxx as if
Subtenant were the Tenant and Sublessor were the Landlord thereunder, Subtenant
may at any time during the Term and without Sublessor's or Landlord's consent,
but on 30 days' prior written notice to Sublessor and Landlord, (i) assign this
Sublease or sublet the Subleased Premises or any part thereof to any corporation
or other entity which is a successor to or an affiliate of Subtenant, or (ii)
transfer a 50% or greater interest in Subtenant, provided that such transfer is
pursuant to a sale of Subtenant's business, "public offering", "private
placement or offering", or for any other business transaction other than one
having the principal purpose of assigning this Sublease.
c. Every assignment hereunder is subject to the express
condition, and by accepting an assignment hereunder each assignee shall be
conclusively deemed to have agreed, that if this Sublease should be terminated
prior to the expiration date or if Sublessor should succeed to Subtenant's
estate in the Subleased Premises, then the assignee shall attorn to and
recognize Sublessor as the assignee's landlord and the assignee shall promptly
execute and deliver any instrument Sublessor may reasonably request to evidence
such attornment.
- 7 -
d. Subtenant shall furnish Sublessor with an executed
counterpart of any assignment made hereunder within ten (10) business days after
the date of its execution. Subtenant shall remain fully liable for the
performance of all of Subtenant's obligations hereunder notwithstanding any
assignment provided for herein, and without limiting the generality of the
foregoing, shall remain fully responsible and liable to Sublessor for all acts
and omissions of any assignee or anyone claiming by, through or under any
assignee which shall be in violation of any of the obligations of this Sublease
and any such violation shall be deemed to be a violation by Subtenant.
e. Notwithstanding any assignment and assumption by the
assignee of the obligations of Subtenant hereunder, Subtenant herein named, and
each immediate or remote successor in interest of Subtenant herein named, and
any guarantor of this Sublease, shall remain liable jointly and severally (as a
primary obligator) with its assignee and all subsequent assignees for the
performance of Subtenant's obligations hereunder, and, without limiting the
generality of the foregoing, shall remain fully and directly responsible and
liable to Sublessor for all acts and omissions on the part of any assignee
subsequent to it in violation of any of the obligations of this Sublease.
f. Notwithstanding anything to the contrary hereinabove set
forth, no assignment of this Sublease shall be binding upon Sublessor unless the
assignee shall execute and deliver to Sublessor an agreement, whereby such
assignee agrees, unconditionally, to be personally bound by and to perform all
of the obligations of Subtenant hereunder and further expressly agrees that
notwithstanding such assignment the provisions of this Article shall continue to
be binding upon such assignee with respect to all future assignments and
transfers. A failure or refusal of such assignee to execute or deliver such an
agreement shall not release the assignee form its liability for the obligations
of Subtenant hereunder assumed by acceptance of the assignment of this Sublease.
g. If Sublessor shall decline to give its consent to any
proposed assignment, Subtenant shall indemnify, defend and hold harmless
Sublessor against and from any and all loss, liability, damages, costs and
expenses (including reasonable legal fees and disbursements) resulting from any
claims that may be made against Sublessor by the proposed assignee or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment.
h. In the event that Subtenant fails to execute and deliver
the assignment or sublease to which Sublessor consented within sixty (60) days
after the giving of such consent, then, Subtenant shall again comply with all of
the provisions and conditions of this Section before assigning this Sublease.
i. The consent by Sublessor to an assignment or to a
subletting shall not relieve Subtenant (or any successor thereto) from obtaining
the express written consent of Sublessor to any further assignment or
subletting.
- 8 -
7. Use and Occupancy.
Subtenant covenants and agrees to use the Subleased Premises only
for the uses permitted in the Xxxxxxxxx and for no other purpose.
8. Annual Rental Rate and Payment Dates.
a. Subtenant shall pay as rent for the Subleased Premises
the fixed minimum rent ("Base Rent") of $155,969.00 per annum (or $12,997.00
per month) for months 1-12 of the Term, $157,981.00 per annum (or $13,165.00
per month) for months 13-24 of the Term, and $159,994.00 per annum (or
$13,333.00 per month) for months 25-42 of the Term. Notwithstanding the
foregoing, Base Rent and Additional Rent shall be abated for the first two
(2) months immediately following the Commencement Date.
b. Subtenant shall pay to Sublessor the Base Rent in equal
monthly installments in advance on the first day of each and every calendar
month. If the Expiration Date occurs on a date other than the last day of a
calendar month, the Base Rent for such calendar month shall be pro rated.
c. (i) In addition to the Base Rent, Subtenant shall pay to
Sublessor, as additional rent ("Additional Rent"), without limitation or
exception, all other sums of money as the same shall become due and payable by
Subtenant under this Sublease and, except as specifically stated to the contrary
herein, any specific Landlord charges imposed on and incurred by Subtenant which
may or may not be billed to Sublessor (e.g.
overtime service charges).
(ii) In addition to the Base Rent and all other sums
specified herein, and as part of the total rent to be paid, Subtenant shall pay
Sublessor, as Additional Rent, without set-off or deduction, Twenty-Two and
Seventy-Five One Hundredth Percent (22.75%) of any and all sums paid by
Sublessor to Landlord as Additional Rent pursuant to Article 22 of the Xxxxxxxxx
(the "Escalations"). Subtenant shall pay the Escalations within thirty (30) days
following receipt of a written xxxx therefor from Sublessor (the "Escalation
Statement"), which xxxx shall itemize the Escalations, if any, and the method by
which Landlord and Sublessor calculated such amounts. Sublessor's estimations of
the Escalations shall not exceed those estimated by Landlord.
Sublessor's failure during the Term to prepare and
deliver any Escalation Statement shall not in any way cause Sublessor to forfeit
or surrender its rights to collect the Escalations applicable thereto.
Subtenant's liability for the amounts due under this Article shall survive the
expiration of the Term.
- 9 -
To the extent back-up or billing is then provided
to Sublessor by Landlord on account of the Escalations, Sublessor shall
reasonably estimate the Escalations on an annual basis and one-twelfth (1/12) of
the amount so estimated shall be paid by Subtenant to Sublessor on the first day
of each calendar month in advance. Within one hundred twenty (120) days after
the end of each calendar year and the expiration of the Term, Sublessor shall
furnish Subtenant a statement in reasonable detail listing the actual
Escalations for the prior year. Such statement shall be prepared in accordance
with sound accounting practices. Upon delivery of such statement, there shall be
an adjustment between Sublessor and Subtenant, with payment to or reimbursement
by Sublessor, as the case may require.
d. Subtenant shall pay all Base Rent and Additional Rent in
lawful money of the United States by check drawn on a bank or trust company
branch located in the United States, delivered or mailed to the office of
Sublessor, or such other place as Sublessor may designate in writing, without
any set off or deduction whatsoever, except that Subtenant shall pay the first
full monthly installment of Base Rent equal to $12,997.00 upon execution
hereof, which shall be applied against the Base Rent becoming due and payable
hereunder for the third month immediately following the Commencement Date.
e. If Subtenant shall fail to pay when due any installment or
payment of Base Rent or Additional Rent within ten (10) days after the date on
which such installment or payment is due, provided Subtenant has received at
least five (5) days' notice thereof (except that no such notice shall be
required more than once any lease year), Subtenant shall pay interest thereon at
the Interest Rate, as hereinafter defined, from the date when such installment
or payment shall have become due to the date of the payment thereof, and such
interest shall be deemed Additional Rent, payable simultaneously with the
installment or payment for which such interest shall have accrued. For purposes
of this Sublease, "Interest Rate" shall mean a rate which is equal to the prime
interest rate as published in the Wall Street Journal.
9. Electricity and Other Utilities.
a. All of the terms, covenants and conditions set forth in
Article 23 of the Xxxxxxxxx are incorporated herein as if expressly set forth
and restated in their entirety and made a part hereof, and such rights and
obligations as are contained in the Xxxxxxxxx are hereby imposed upon the
respective parties hereto, except that all references therein to "Tenant",
"Landlord", "annual minimum rent", and "Demised Premises" shall refer to
Subtenant, Sublessor, Base Rent, and Subleased Premises, respectively, and the
"Rent Inclusion Factor" shall be deemed to equal Eleven Thousand Sixty-Eight and
75/100 ($11,068.75) Dollars per annum. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, in any circumstance in which
Sublessor's consent is required under Article 23 of the Xxxxxxxxx as
incorporated herein, and if a corresponding consent of the Landlord is required
pursuant to the Xxxxxxxxx in order to avoid having the action or circumstances
consented to by Sublessor be deemed a breach of any of the terms or conditions
- 10 -
of the Xxxxxxxxx, then in addition to Sublessor's consent, Sublessor shall
request Landlord's consent on Subtenant's behalf.
b. Subtenant shall pay for, at its own cost and expense, all
other utilities for the Overleased Premises (including telephone, Bloomberg
terminal, and other similar services), including the cost of installation and
maintenance of meters and any additional items from the date Subtenant takes
delivery of the Subleased Premises.
c. Subtenant agrees to maintain, repair and replace when
reasonably necessary, at Subtenant's own cost and expense, the light bulbs and
tubes in the Subleased Premises. All heating and air conditioning equipment
existing in the Subleased Premises as of the Commencement Date or thereafter
installed in therein at Sublessor's sole cost and expense shall remain the
property of the Sublessor.
10. Signs.
Subject to the consent of the Landlord, Subtenant shall have
the privilege of placing on the Subleased Premises such signs as it deems
necessary and proper in the conduct of its business (location to be approved by
Sublessor), provided Subtenant pays all permit and license fees which may be
required to be paid for the erection and maintenance of any and all such signs,
and provided the signs are legally permitted to be installed. Subtenant agrees
to exonerate, save harmless, protect, and indemnify the Sublessor and the
Landlord from and against any and all losses, damages, claims, suits, or actions
for any damage or injury to person or property caused by the erection and
maintenance of the signs or parts thereof, and insurance coverage for the signs
shall be included in the public liability policy, which Subtenant is required to
furnish under paragraph 5 hereof. Subtenant shall be entitled to no less than
Twenty-Two and Seventy-Five One Hundredth Percent (22.75%) of the directory
listings located on the main directory in the lobby of the Building that are
provided to Sublessor under the Xxxxxxxxx. Notwithstanding anything to the
contrary contained herein, Subtenant shall be entitled to place its standard
identification sign on the elevator lobby of the Subleased Premises and at the
entrance to the Subleased Premises.
11. Permits; Compliance with Laws.
Subtenant covenants that Subtenant will not use or suffer or
permit any person to use the Subleased Premises for any unlawful purpose and
that it will obtain and maintain at its sole cost and expense all licenses and
permits, from any and all governmental authorities having jurisdiction over the
Subleased Premises which may be necessary for the conduct of Subtenant's
business thereon. Subtenant further covenants to comply with all applicable
laws, resolutions, codes, rules and regulations of any department, bureau,
agency or any governmental authority having jurisdiction over the operation,
occupancy, maintenance and use of the Subleased Premises for the purpose set
forth herein to the extent required as a result of Subtenant's particular manner
of use of the Subleased Premises. Subtenant will
- 11 -
indemnify, hold harmless and defend Sublessor (including the payment of
Sublessor's reasonable counsel fees and disbursements if Sublessor is required
to appear in any action or proceeding) from and against any claims, penalties,
loss, damage or expense imposed by reason of a violation of any applicable law
or the rules and regulations of governmental authorities having jurisdiction
thereof relating to Subtenant's particular manner of use of the Subleased
Premises.
12. Condition of Subleased Premises .
a. Subtenant represents that Subtenant has made a thorough
examination and inspection of the Subleased Premises and is familiar with the
condition thereof. Subtenant acknowledges that except as stated herein this
Sublease has been made without any representations or warranties by Sublessor as
to the present or future condition of the Subleased Premises or the
appurtenances thereto or any improvements therein. It is further agreed that
subject to "Landlord's Work" being "substantially completed" (as such terms are
defined in the Xxxxxxxxx), Subtenant does and will accept the Subleased Premises
in its "as is" condition and state of repair as of the Commencement Date.
Sublessor shall have no obligation to perform any work or provide any materials
therein. Notwithstanding the foregoing, Sublessor shall deliver the Subleased
Premises to Subtenant broom clean and vacant.
b. The parties hereto agree that the term of this Sublease and
the payment of Base Rent hereunder shall commence on the date that Landlord's
Work in the Subleased Premises shall be deemed substantially completed as
defined in the next sentence (the "Commencement Date"). The Subleased Premises
shall be deemed substantially completed when Landlord has substantially
performed the work required to be performed pursuant to Exhibit C hereof and
given Sublessor notice thereof, and Sublessor thereafter gives Subtenant five
(5) business days' notice thereof. Except as set forth on Exhibit C , Landlord
and Sublessor shall have no obligation to perform any other work in connection
with preparing the Subleased Premises for Subtenant's occupancy. Within five (5)
business days after Landlord has delivered possession of the Subleased Premises
to Sublessor (and Sublessor has delivered possession thereof to Subtenant) with
Landlord's Work substantially completed, Landlord, Sublessor, and Subtenant
shall inspect the Subleased Premises and agree on a punch list of the items to
be completed. Landlord's Work shall be deemed to be substantially completed even
though minor details or adjustments, none of which materially interfere with
Subtenant's access to and use of the Subleased Premises may not then have been
completed, but shall be completed by Landlord promptly thereafter. Landlord's
Work shall be in accordance with Subtenant's plans and specifications as
prepared by SCR Design Organization ("SCR") and as approved by Sublessor, which
approval shall not be unreasonably withheld or delayed. The fees of SCR and all
other consultants in connection with the build-out of the Subleased Premises
shall be borne solely by Subtenant. The cost of Landlord's Work shall not
- 12 -
be borne by Subtenant except for the costs of specialty glass in board
conference rooms and pantry appliances which shall be borne by Subtenant.
c. Promptly after the Commencement Date, Sublessor and
Subtenant shall execute a statement in recordable form confirming the agreed
upon Commencement and Expiration Dates of this Sublease.
13. Alterations or Improvements.
a. Subtenant shall not make any alterations or improvements to
the Subleased Premises without the express prior written consent of Sublessor
and Landlord if such consent is required by Article 5 of the Xxxxxxxxx.
Notwithstanding the foregoing, if Landlord's consent is not required under the
Xxxxxxxxx, Subtenant shall not be required to obtain Sublessor's consent to
perform any such alterations or improvements. All alterations or improvements
shall be made, if at all, at the sole cost and expense of Subtenant, and shall
be made solely in accordance with the provisions and requirements of the
Xxxxxxxxx, and with respect thereto: (i) all obligations of and all acts or
things to be performed, done or observed on "Tenant's" part thereunder, shall be
the obligations of and shall be performed, done and observed by Subtenant; and
(ii) all references contained therein to "Landlord" shall be deemed to include
and shall include Sublessor hereunder.
b. Any personal property (expressly excluding Sublessor's
personalty and Sublessor's fixtures, furnishings and furniture as set forth as
"Sublessor's Personalty" on Exhibit D annexed hereto and made a part hereof
which Sublessor's Personalty shall be returned to Sublessor at the end of the
Term in good condition, reasonable wear and tear excepted) shall remain the
property of Subtenant and may be removed by Subtenant on or prior to the
expiration of the Term, provided that Subtenant repair any damage to the
Subleased Premises caused by its removal. Except as provided below, all personal
property not removed by Subtenant as aforesaid, Sublessor's Personalty, and all
alterations and improvements shall be the property of Sublessor at the
expiration of the Term. At Sublessor's request, made prior to the end of the
Term, Subtenant shall be obligated within a reasonable time, at its sole cost
and expense, to remove from the Subleased Premises on or prior to the expiration
of the Sublease (i) all or any part of Subtenant's movable personal property not
affixed to the Subleased Premises, and (ii) all or any part of any alterations
or improvements made by Subtenant or for its account other than those performed
with the express prior written consent of Sublessor or for those to which
Sublessor's consent is not required hereunder. Subtenant shall substantially
restore any portions of the Subleased Premises damaged by the removal of the
items set forth in the immediately preceding sentence including, but not limited
to, signage, furniture and furnishings, to the condition existing as of the
commencement of occupancy by Subtenant of the Subleased Premises, ordinary wear
and tear, the failure of Landlord or Sublessor to perform its repair obligations
hereunder, and damage from fire or other casualty excepted.
- 13 -
14. Brokers.
Each party warrants and represents to the other that each
party has not engaged and or dealt with any broker, finder or any person acting
in such capacity or similar capacity in connection with this Sublease other than
Xxxx, The Real Estate Services Company ("Broker"). This Sublease is consummated
in reliance on the foregoing representation, and each party agrees to indemnify,
hold harmless and defend the other from any and all losses, damages, costs,
expenses, claims and liabilities arising out of any inaccuracy of said
representations, including court costs and attorneys' fees and disbursements.
Sublessor has agreed to pay Broker a commission pursuant to separate agreement.
Sublessor shall indemnify, hold harmless and defend Subtenant from and against
any and all losses, damages, costs, expenses, claims and liabilities arising out
of a claim by Broker or any party through or under Broker for a commission or
other payment in connection with this Sublease.
15. Indemnification.
a. Subtenant agrees to indemnify, hold harmless and defend
Sublessor (including the payment of Sublessor's reasonable counsel fees and
disbursements) against and from all liabilities, obligations, damages,
penalties, claims, costs, charges, and expenses, which may be imposed or
asserted against Sublessor by reason of any of the following occurring during
the term hereof.
(i) Any wrongful act or omission by Subtenant or any
of its agents, contractors, servants, employees,
licensees or invitees arising out of Subtenant's
use, occupancy, control, or management of the
Subleased or Demised Premises and any part
thereof;
(ii) Any work or thing done by Subtenant in or about
the Subleased or Demised Premises or any part
thereof, including, but not limited to, work done
pursuant to Article 13 hereof; or
(iii) Any failure on the part of Subtenant to perform or
comply with any of the covenants, agreements,
terms or conditions contained in this Sublease or
the Xxxxxxxxx, as incorporated herein, on
Subtenant's part to be performed, after the
expiration of any applicable notice and grace
periods.
b. In the event any action or proceeding is brought against
Sublessor by reason of any of the above, Subtenant upon written notice from and
requested by Sublessor shall, at Subtenant's sole cost and expense, resist or
defend any such action or proceeding, and
- 14 -
shall pay any judgment or perform any decree resulting therefrom which shall
have become final and unappealable, provided that Sublessor will not settle any
such action without Subtenant's express prior written consent to the extent that
such settlement exceeds the applicable insurance coverage, provided that if such
consent is not forthcoming promptly after the request therefor, Subtenant shall
post a bond in the amount of the offered settlement to the extent it exceeds
such insurance coverage.
c. Sublessor agrees to indemnify, hold harmless and defend
Subtenant (including the payment of Subtenant's reasonable counsel fees and
disbursements) against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, which may be imposed or asserted
against Subtenant by reason of (i) any event occurring prior to the term hereof,
(ii) any failure of Sublessor to make timely payment of rent and additional rent
under the Xxxxxxxxx, except to the extent that such failure results from
Subtenant's failure to pay rent or additional rent under this Sublease within
applicable notice and cure periods or (iii) any of the occurrences set forth in
subsection 15a above except that for purposes of this subsection 15c each
reference to Subtenant therein shall be deemed to refer to Sublessor.
16. Default Provisions and Remedies.
a. If any one or more of the following events (hereinafter
referred to as "Events of Default" ) shall occur:
(i) If this Sublease or the estate of Subtenant
hereunder shall be transferred or assigned by
Subtenant to any person, firm corporation or other
entity, whether by operation of law or otherwise,
except in a manner as may be herein expressly
permitted; or
(ii) If default shall be made by Subtenant in the due
and punctual payment of any installment of Base
Rent or any Additional Rent payable under this
Sublease within ten (10) days after receipt of
notice that such Base Rent or Additional Rent is
due; or
(iii) If (A) default shall be made by Subtenant in the
observance or performance of any covenant,
agreement, term or condition, other than those
referred to in the foregoing subparagraphs (i) and
(ii) of this Section 16(a), and Subtenant shall
fail to remedy such default within fifteen (15)
days after notice by Sublessor to Subtenant of
such default, unless (B) such default is of such a
nature that it cannot be completely remedied
within such 15-day
- 15 -
period, in which case it must be remedied within
such time after the date of the giving of said
notice as shall reasonably be necessary; or
(iv) If Subtenant shall abandon the Subleased Premises;
or
(v) If at any time during the term hereof, there shall
be filed by Subtenant in any court, pursuant to
any statute, either of the United States or any
state, a petition in bankruptcy or insolvency, or
for the appointment of a receiver or Subtenant
otherwise enters into an arrangement under the
United States Bankruptcy Act or under any law of
similar import, and if within ninety (90) days
after the commencement of any such occurrence the
same shall not have been stayed, dismissed or
otherwise remedied; or
(vi) If at any time during the term hereof, there shall
be filed against Subtenant or any assignee of
Subtenant in any court pursuant to any statute
either of the United States or of any state a
petition in bankruptcy or insolvency, or for
reorganization, or for the appointment of a
receiver or trustee of or for Subtenant's
property, and if within ninety (90) days after the
commencement of any such proceeding against
Subtenant the same shall not have been stayed or
dismissed.
In any such event, Sublessor may serve a written notice of
cancellation and termination of this Sublease, and upon the expiration of five
(5) days from the receipt or attempted delivery thereof, this Sublease and the
term hereof shall end and expire as fully and completely as if the date of
expiration of such five (5) day period were the day herein definitely fixed for
the end and expiration of this Sublease and the term hereof, and Subtenant shall
then quit or surrender to Sublessor the Subleased Premises and each and every
part thereof, but Subtenant shall remain liable for damages and all other sums
payable pursuant to the provisions of Section 16(b) below.
b. If this Sublease and the term hereof shall expire and
terminate as provided in Section 16(a) above:
(i) Subtenant will quit and peacefully surrender the
Subleased Premises to Sublessor, and Sublessor,
upon or at any time after any such expiration or
termination, may without further notice, enter
upon and re-enter the Subleased Premises and
possess and repossess itself thereof, by
- 16 -
force, summary proceedings, ejectment or
otherwise, may dispossess Subtenant and remove
Subtenant and all other persons and property from
the Subleased Premises and may have, hold and
enjoy the Subleased Premises and the right to
receive all rental income of and from the same.
(ii) At any time or from time to time after any such
expiration or termination, Sublessor may relet the
Subleased Premises or any part thereof, in the
name of Sublessor or otherwise, for such term or
terms (which may be greater or less than the
period which would otherwise have constituted the
balance of the term of this Sublease) and on such
conditions (which may include concessions or free
rent) as Sublessor in its absolute discretion may
determine, and Sublessor may collect and receive
the rent therefor.
(iii) No such expiration or termination of this Sublease
shall relieve Subtenant of Subtenant's liability
and obligations which shall survive any such
expiration or termination. In case of any such
default, re-entry, expiration and/or dispossession
by summary proceedings or otherwise, (a) the rent
shall become due thereupon and be paid up to the
time of such re-entry, dispossess and/or
expiration, (b) Sublessor may re-let the Subleased
Premises or any part or parts thereof, and agrees
to use its best efforts to do so, either in the
name of Sublessor or otherwise, for a term or
terms, which may at Sublessor's option be less
than or exceed the period which would otherwise
have constituted the balance of the term of this
Sublease and may grant concessions or free rent or
charge a higher rental than that in this Sublease,
and/or (c) Subtenant or the legal representatives
of Subtenant shall also pay Sublessor as
liquidated damages for the failure of Subtenant to
observe and perform said Subtenant's covenants
herein contained, any deficiency between the rent
hereby reserved and/or covenanted to be paid and
the net amount, if any, of the rents collected on
account of the lease or leases of the Subleased
Premises for each month of the period which would
otherwise have constituted the balance of the term
of this Sublease, provided that any concessions or
free rent shall be pro rated over the term of the
new sublease. The failure of Sublessor to re-let
the premises or any part
- 17 -
or parts thereof shall not release or affect
Subtenant's liability for damages. In computing
such liquidated damages there shall be added to
the said deficiency such reasonable expenses as
Sublessor may incur in connection with re-letting,
such as legal expenses, attorneys' fees,
brokerage, advertising and for keeping the
Subleased Premises in good order or for preparing
the same for reletting, which amounts shall be pro
rated over the term of the new sublease. Any such
liquidated damages shall be paid in monthly
installments by Subtenant on the rent day
specified in this Sublease and any suit brought to
collect the amount of the deficiency for any month
shall not prejudice in any way the rights of
Sublessor to collect the deficiency of any
subsequent month by a similar proceeding.
Sublessor, in putting the Subleased Premises in
good order or preparing the same for re-rental
may, at Sublessor's option, make such alterations,
repairs, replacements, and/or decorations in the
Subleased Premises as Sublessor, in Sublessor's
reasonable judgment, considers advisable and
necessary for the purpose of re-letting the
demised premises, and the making of such
alterations, repairs, replacements, and/or
decorations shall not operate or be construed to
release Subtenant from liability hereunder as
aforesaid. Sublessor shall in no event be liable
in any way whatsoever for failure to re-let the
Subleased Premises, or in the event that the
Subleased Premises are re-let, for failure to
collect the rent thereof under such re-letting,
and in no event shall Subtenant be entitled to
receive any excess, if any, of such net rents
collected over the sums payable by Subtenant to
Sublessor hereunder. In the event of a breach by
Subtenant or Sublessor of any of the covenants or
provisions hereof, Sublessor and Subtenant shall
have the right of injunction and the right to
invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other
remedies were not herein provided for. Mention in
this Sublease of any particular remedy, shall not
preclude Sublessor or Subtenant from any other
remedy, in law or in equity. Subtenant hereby
expressly waives any and all rights of redemption
granted by or under any present or future laws in
the event of Subtenant being evicted or
dispossessed for any cause, or in the event of
Sublessor obtaining possession of Subleased
- 18 -
Premises, by reason of the violation by Subtenant
of any of the covenants and conditions of this
lease, or otherwise.
(iv) To the extent permitted by applicable law,
Subtenant hereby waives service of any notice of
intention to re-enter provided for in any
statute, law or regulation, and the service of
notice of the institution of legal proceedings to
that end. To the extent permitted by applicable
law, Sublessor and Subtenant hereby waive trial by
jury in any action, proceeding or counterclaim
brought by either against the other on any matter
whatsoever arising out of or in any way connected
with this Sublease, the relationship of Sublessor
and Subtenant, Subtenant's use or occupancy of the
Subleased Premises, except for any and all
personal injury or property damage claims. The
terms "enter", "re-enter", "entry" and "reentry"
as used in this Sublease are not restricted to
their technical, legal meanings. The provisions of
this Section shall survive the termination of this
Sublease.
(v) The failure of Sublessor or Subtenant, as the case
may be, to insist in any one or more instances
upon the strict performance of any one or more of
the obligations of this Sublease, or to exercise
any election herein contained, shall not be
construed as a waiver or relinquishment for the
future of the performance of such one or more
obligations of this Sublease or of the right to
exercise such election, but the same shall
continue and remain in full force and effect with
respect to any subsequent breach, act or omission.
No covenant, agreement, term or condition of this
Sublease to be performed or complied with by
Sublessor or Subtenant, as the case may be, and no
breach thereof, shall be waived, altered or
modified, and no attempt shall be effective to
change, modify, waive, release, discharge,
terminate or effect an abandonment of this
Sublease, in whole or in part, unless such waiver,
alteration, modification, charge, release,
discharge, termination, abandonment, or executory
agreement is in writing, refers expressly to this
Sublease, and is signed by the party against whom
enforcement thereof is sought.
- 19 -
(vi) In the event of any breach by Subtenant of any of
the covenants, agreements, terms or conditions
contained in this Sublease, Sublessor shall be
entitled to enjoin such breach and shall have the
right to invoke any right and remedy allowed at
law or in equity or by statute or otherwise as
though re-entry, summary proceedings, and other
remedies were not provided for in this Sublease.
(vii) Each right and remedy of Sublessor provided for in
this Sublease or in the Xxxxxxxxx shall be
cumulative and shall be in addition to every other
right or remedy provided for in this Sublease or
Xxxxxxxxx as now or hereafter existing at law or
in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Sublessor
of any one or more of the rights or remedies
provided for in this Sublease or in the Xxxxxxxxx
or now or hereafter existing at law or in equity
or by statute otherwise, shall not preclude the
simultaneous or later exercise by Sublessor of any
or all other rights or remedies provided for in
this Sublease or in the Xxxxxxxxx now or hereafter
existing at law or in equity or by statute or
otherwise.
(viii) Subtenant hereby agrees that, in the event
Sublessor commences a summary proceeding for
possession of the Subleased Premises, Subtenant
will not interpose any permissive counterclaim of
any nature or description whatsoever in such
proceeding, except that Subtenant shall not be
estopped in such action from alleging any
affirmative defense Subtenant elects to claim.
17. Repairs.
Subtenant shall, throughout the Term, take good care of the
Subleased Premises and the fixtures, appurtenances, Sublessor's Personalty, and
personal property of Subtenant therein, and make all non-structural repairs
thereto (except that Subtenant shall be required to make structural repairs
necessitated by Subtenant's negligence, wilful act or omission) which would
otherwise be required of Sublessor under the Xxxxxxxxx, ordinary wear and tear,
the repair obligations of Landlord or Sublessor, fire, or other casualty
excepted. Notwithstanding anything contained in the Section 17 or in Article 6
of the Xxxxxxxxx, Subtenant shall not be required to make any repairs to the
HVAC, mechanical, plumbing and electric systems unless such repair is
necessitated by the negligence, wilful act or omission of Subtenant or its
employees, agents, or contractors. In addition, all damage or injury to the
Subleased Premises or the Building caused by or resulting from the use of the
Subleased
- 20 -
Premises by Subtenant and Subtenant's tenants, employees, invitees, or
licensees, shall be repaired promptly by Subtenant at Subtenant's sole cost and
expense, to the reasonable satisfaction of Sublessor but in no event shall such
repairs be required to restore the Subleased Premises to a condition better than
its original condition.
18. Waiver.
Subtenant, on its own behalf and on behalf of all persons
claiming through or under Subtenant, including all creditors, does hereby waive
any and all rights and privileges, so far as is permitted by law, which
Subtenant and all such persons might otherwise have under any present or future
law (a) to redeem the Subleased Premises, (b) to re-enter or repossess the
Subleased Premises, or (c) to restore the operation of this Sublease after
Subtenant shall have been dispossessed by a judgment or by warrant of any court
or judge; or after any re-entry by Sublessor, or after 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.
19. Breach.
In the event of any breach by Subtenant or any persons claiming
through or under Subtenant or any of the agreements, terms, covenants or
conditions contained in this Sublease, Sublessor shall be entitled to enjoin
such breach and shall have the right to invoke any right and remedy allowed at
law or in equity or by statute or otherwise as if re-entry, summary proceedings
or other specific remedies were not provided for in this Sublease.
20. 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 or not so stated
elsewhere in this Sublease) and shall be given, rendered or made by overnight
courier services such as Federal Express, providing for a receipt on delivery,
or by certified or registered mail, return receipt requested, addressed to the
other party at the address hereinabove set forth and if to Subtenant with a copy
to Xxxxxxxx, Kill & Olick, P.C., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention; J. Xxxxxx Xxxx, Esq., and shall be deemed to have been
given, rendered or made on the second (2nd) business day following the day so
mailed or the following business day if sent by overnight courier services,
unless mailed outside of the State of New York, in which case it shall be deemed
to have been given, rendered or made on the earlier of actual receipt, or the
expiration of the normal period of time for delivery of mail from the post
office of origin to the post office of destination. Either party may, by notice
as aforesaid, designate a different address or addresses for notice, statements,
demands or other communications intended for it.
- 21 -
b. If there occurs any interruption of registered mail service
lasting more than five (5) consecutive business days, notices may be given by
telegram, overnight courier service, or personal delivery, but shall not be
effective until personally received by an executive officer of a party which is
a corporation, or a managing partner of a party which is a partnership or a
principal of any other entity.
21. End of Term.
Subtenant shall surrender the Subleased Premises to Sublessor
at the expiration or sooner termination of this Sublease in the same order and
condition as delivered to Subtenant, except for reasonable wear and tear, damage
by the elements, damages caused by perils and condemnation, and damages due to
the failure of Landlord or Sublessor to make repairs or replacements of which
they are obligated hereunder or under the Xxxxxxxxx. Sublessor may require
Subtenant to remove all or a portion of any structural alterations, improvements
or additions in and to the Subleased Premises made by Subtenant without
Sublessor's express prior written approval if such approval was required
hereunder, to repair any damage caused by such removal to Sublessor's reasonable
satisfaction and to restore the Subleased Premises to the condition as
aforesaid, Sublessor's removal of its personal property, excepting therefrom
reasonable wear and tear, damage by the elements, damages caused by perils and
condemnation, and damages due to the failure of Landlord or Sublessor to make
repairs or replacements of which they are obligated hereunder or under the
Xxxxxxxxx.
22. Security.
Subtenant has deposited with Sublessor the sum of
$38,991.00 Dollars as security for the faithful performance and observance by
Subtenant of the terms, provisions and conditions of this Sublease; it is
agreed that in the event Subtenant defaults beyond any applicable notice or
cure periods in respect of any of the terms, provisions, and conditions of
this Sublease, including, but not limited to, the payment of Base Rent and
Additional Rent, Sublessor may use, apply or retain the whole or any part of
the security so deposited to the extent required for the payment of any Base
Rent and Additional Rent, or any other sum as to which Subtenant is in
default or for any sum which Sublessor may expend or may be required to
expend by reason of Subtenant's default in respect of any of the terms,
covenants, and conditions of this Sublease, including but not limited to, any
damages or deficiency in the reletting of the Subleased Premises, whether
such damages or deficiency accrued before or after summary proceedings or
other re-entry by Sublessor. In the event that Subtenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions
of this Sublease, within any applicable notice and cure period upon the first
anniversary of the Commencement Date the sum of $12,997.00 shall be deducted
from the security and returned to Subtenant and the balance of the security
shall be returned to Subtenant within thirty (30) business days after the
date fixed as the end of the Term and after delivery of entire possession of
the Subleased Premises to Sublessor. In the event of a sale of the land and
Building or leasing of the Building, Sublessor shall have the right to
transfer the security to the vendee or lessee and Sublessor shall thereupon
be released
- 22 -
by Subtenant from all liability for the return of such security; and Subtenant
agrees to look to the new Sublessor solely for the return of said security, and
it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Sublessor. Subtenant further covenants
that it will not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Sublessor nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
23. Damage By Fire or Other Cause. Notwithstanding anything to the
contrary contained herein, Base Rent, Additional Rent, and all other charges to
Subtenant under this Sublease shall be abated in the same manner that minimum
rent is abated under Article 10 of the Xxxxxxxxx. Notwithstanding anything to
the contrary contained herein or in the Xxxxxxxxx, upon ten (10) days prior
written notice to Sublessor, Subtenant may terminate this Sublease in the event
that fire or other casualty damages (i) all or substantially all of the
Subleased Premises, (ii) the Subleased Premises or any portion of the Building
consisting of access to or egress from the Subleased Premises to such an extent
that the time to repair such damage would exceed sixty (60) days, as reasonably
estimated by Subtenant's architect or engineer, or (iii) the Subleased Premises
during the last six (6) months of the Term.
24. Condemnation. Notwithstanding anything to the contrary contained
herein or in the Xxxxxxxxx, for the purposes hereof the term "Demised Premises",
as it appears in Article 14 of the Xxxxxxxxx, shall be deemed to refer to the
Subleased Premises and all rights conferred upon Sublessor with respect to its
rights to terminate the Xxxxxxxxx shall be deemed the rights of Subtenant to
terminate this Sublease.
25. Option to Extend.
a. Option. Subtenant may extend this Lease for a period of six
(6) months ("Extension Term") beginning immediately after the Term, upon the
same terms and conditions of the Sublease, except that:
(i) the Term shall be modified as stated above;
(ii) the Base Rent shall be calculated as follows:
$159,994.00 per annum (or $$13,333.00 per month)
(iii) The Option to Extend shall be deleted (paragraph
25).
b. Conditions. To exercise this Option to Extend Subtenant
must:
(i) not be in default beyond applicable notice and cure
periods at the time it exercises the Option to Extend; and
- 23 -
(ii) give notice to Sublessor that Subtenant is
exercising its Option to Extend at least one hundred and twenty (120) days but
not more than two hundred and forty (240) days before the Term ends.
26. Miscellaneous.
a. Section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
b. This Agreement shall be interpreted and given effect in
accordance with the laws of the State of New York.
c. This Agreement expresses the whole agreement between the
parties, there being no representation, warranty or other agreement not herein
expressly set forth or provided for. No change, modification of or addition to
this Agreement shall be valid unless in writing and signed by each of the
parties hereto.
d. Each party hereto agrees that it will execute and deliver
such further instruments and will take such further action as may be necessary
to discharge or perform or carry out any of their respective obligations and
agreements hereunder. Each party hereto represents to the other that each has
full authority to enter into this Sublease.
e. This Sublease shall not be recorded in the land records of
the County of New York.
f. Nothing contained in this Sublease shall be deemed or
construed to create any relationship between the parties hereto other than
sublandlord and subtenant, and the parties hereby acknowledge that they are not,
and shall not be deemed by this Sublease to be partners or joint venturers.
g. The incorporation of the Xxxxxxxxx in this Sublease is
intended to clarify the rights of Landlord to which this Sublease is subject and
the limitations imposed on Subtenant's use and occupancy of the Demised Premises
and not to establish rights or obligations of Sublessor or Subtenant which are
not provided for in this Sublease.
h. This Sublease is subject to the consent of the Landlord
pursuant to the terms of the Xxxxxxxxx and this Sublease, and Landlord's
agreement to its obligations herein contained. Sublessor hereby covenants and
agrees that for such consent to be valid for purposes hereof, Landlord must
specifically consent to Subtenant's intended use of the Subleased Premises and
the provisions of Article 10 hereof. In the event the conditions contemplated in
this paragraph are not met, Sublessor shall promptly return to Subtenant any
monies paid hereunder and this Sublease and the rights and obligations of the
parties hereunder shall be terminated. If such Landlord consent is not received
within 30 days from the date of
- 24 -
this Sublease, Subtenant may cancel this Sublease by notice given after the
expiration of such 30-day period and prior to the granting of such consent, in
which case Sublessor shall promptly return to Subtenant any monies paid
hereunder and this Sublease and the rights and obligations of the parties
hereunder shall be terminated. Sublessor shall promptly notify Sublessee of
having obtained such consent. Except for the consent of Landlord, Sublessor
hereby represents that no other consents, authorizations or permissions are
required to be obtained with respect to this Sublease, and Sublessor, subject
thereto, has the right and power to sublease the Subleased Premises. Sublessor
covenants and agrees that it shall pay any and all sums required by Landlord in
connection with the giving of its consent.
i. Any capitalized terms not defined herein shall have the
meanings ascribed to them in the Xxxxxxxxx.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
this 31st day of October, 1996.
ULTRAFEM, INC. HIGH VIEW CAPITAL CORPORATION
By: /s/ Xxxx X. Reap By: /s/ Xxxxxx Xxxxx
---------------------------- ----------------------------
Name: Xxxx X. Reap Name: Xxxxxx Xxxxx
Title: SVP Title: Managing Director
HIGH VIEW ASSET MANAGEMENT
CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
- 25 -
EXHIBIT A
Floor plan of Subleased Premises
A-i
EXHIBIT B
Xxxxxxxxx
(see annexed Xxxxxxxxx)
B-i
EXHIBIT C
Landlord's Work - plans and specifications
C-i
EXHIBIT D
Sublessor's Personalty
C-ii
