SUBLEASE
Exhibit
10.1
THIS
SUBLEASE (“this Sublease”), dated as of 31st
day of
July 2006, between Live Nation
Worldwide, Inc.
f/k/a
SFX
Entertainment, Inc.,
a
Delaware corporation, having an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx
Xxxx 00000 (referred to herein as “Sublandlord”), and Flagship
Patient Advocates, Inc.,
a
Delaware corporation, having an address at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx
Xxxx 00000 (referred to herein as “Subtenant”).
WITNESSETH:
1. DEMISE
AND TERM.
Sublandlord
hereby leases to Subtenant, and Subtenant hereby hires from Sublandlord,
those
certain premises (the “Subleased Premises”) consisting of a total of
approximately 10,690 rentable square feet comprising the entire 23rd
floor
(5,845 rentable square feet) and the entire 24th
floor
(4,845 rentable square feet) (as identified on Exhibit A
attached
hereto) of the building located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(the
“Building”). The term of this Sublease shall be the period (A) commencing
upon the delivery of possession of the Subleased Premises by the Sublandlord
to
Subtenant (the “Rent Commencement Date”), and (B) ending at 11:59 p.m.
One Hundred and Twenty Five Months (the “Expiration Date”) from the Rent
Commencement Date, unless sooner terminated pursuant to the terms of this
Sublease or pursuant to law, or extended as provided pursuant to the terms
of
this Sublease. The Subleased Premises shall be delivered to Subtenant, free
of
all liens, encumbrances and tenancies incurred by SFX Entertainment, Inc.
except
for tenancy created pursuant to the Xxxxxxxxx more particularly set forth
herein, upon full execution and delivery of the Sublease and Sublandlord’s
receipt of the first month’s Fixed Rent, the Security Deposit and proof of
insurance as required pursuant to the terms of this Sublease.
2. SUBORDINATE
TO XXXXXXXXX.
This
Sublease is and shall be subject and subordinate to that certain lease dated
as
of March 13, 2000, between Clear (NY), L.P., as successor to Massachusetts
Mutual Life Insurance Company (the “Overlandlord”), as landlord, and
Sublandlord, as tenant, as the same has been modified by an amendment dated
as
of October 22, 2002, and as the same may be amended and/or modified from
time to time (the “Xxxxxxxxx”) and all other matters to which the Xxxxxxxxx is
or shall be subject and subordinate. Upon execution of this Sublease,
Sublandlord shall submit a request to Overlandlord for a non-disturbance
agreement with respect to this Sublease pursuant to Section 7.12 of the
Xxxxxxxxx. Sublandlord shall not be obligated to secure a non-disturbance
agreement from Overlandlord and Subtenant agrees that is shall pay any fees
that
the Overlandlord may charge pursuant to Section 7.08(b)(5) of the
Xxxxxxxxx. Subtenant hereby acknowledges receipt of a redacted version of
the
Xxxxxxxxx prior to the execution and delivery of this Sublease. Sublandlord
warrants and represents that: (i) the
Xxxxxxxxx is in full force and effect; (ii) Sublandlord
is not in default in the payment of Rent or Additional Rent under the Xxxxxxxxx;
and (iii) Sublandlord
has not received any notice of default under the Xxxxxxxxx.
3. PROVISIONS
OF XXXXXXXXX.
(A) Incorporation
by Reference.
The
terms, covenants and conditions of the Xxxxxxxxx are incorporated herein
by
reference so that, except to the extent that they are inapplicable or deleted
or
modified by the provisions of this Sublease for the purpose of incorporation
by
reference, each and every term, covenant and condition of the Xxxxxxxxx binding
or inuring to the benefit of the landlord thereunder shall, in respect of
this
Sublease, bind or inure to the benefit of Sublandlord, and each and every
term,
covenant and condition of the Xxxxxxxxx binding or inuring to the benefit
of the
tenant thereunder shall, in respect of this Sublease, but solely to the extent
each of the same relates to Subtenant’s occupancy or its use and enjoyment of
the Subleased Premises, bind or inure to the benefit of Subtenant, with the
same
force and effect as if such terms, covenants and conditions were completely
set
forth in this Sublease, and as if the words “Landlord” and “Tenant,” or words of
similar import, wherever the same appear in the Xxxxxxxxx, were construed
to
mean, respectively, “Sublandlord” and “Subtenant” in this Sublease, and as if
the words “Premises” or “Office Premises” or “Demised Premises,” or words of
similar import, wherever the same appear in the Xxxxxxxxx, were construed
to
mean “Subleased Premises” in this Sublease, and as if the word “Lease,” or words
of similar import, wherever the same appear in the Xxxxxxxxx, were construed
to
mean this “Sublease.” Notwithstanding the foregoing, the following provisions of
the Xxxxxxxxx shall be deemed deleted for the purposes of incorporation by
reference in this Sublease (however, Subtenant’s rights hereunder shall remain
subject to Overlandlord’s rights as set forth in such provisions): (1) Sections 1.01-1.05,
2.01-2.04, 3.02(a) but only to the extent that the Tenant is obligated to
pay
amounts related to 100% of the Taxes as opposed to Subtenant’s Proportionate
Share as set forth in Article 11 of this Sublease, 3.02(c) and (e), 3.03,
but
only to the extent that the Tenant is obligated to pay amounts related to
100%
of the Operating Expenses as opposed to Subtenant’s Proportionate Share as set
forth in Article 11 of this Sublease, 3.06,, 5.02, 5.04-5.05, 11.01(b)-(f),
11.03(a), 12.01(ii), 12.02 (except to the extent of Subtenant’s furniture that
is brought into the Subleased Premises), 14.01, 14.02, 15.01, 19.01, except
Subtenant shall be entitled to an abatement of rent and additional rent to
the
same extent that Sublandlord receives same with regard to the Subleased
Premises, 19.05, 27.01, 35.04(b) and (c)(except as hereinafter referenced),
35.07(b), 35.19(c), and 37.05, (2) Articles
3, 4, 6, 7, 8, 9, 16, 28, 29, 30, 31, 33, 38, 39, 40, 42, 43, 44, 45 and
46, and
(3) Xxxxxxxx
X, X-0, X-0, X, X, X-0, X-0, X-0, X-0, X, X, X, X, X-0, X-0, 0, P, Q, X-0,
X-0,
X, X, X, X, X, X, X, X, AA and BB. In the event of a conflict or inconsistency
between any term, covenant or condition in the Xxxxxxxxx incorporated herein
by
reference and any of the express terms, covenants or conditions set forth
herein, the terms, covenants and conditions of this Sublease shall govern
(except to the extent that the same would be a violation of or breach of
the
terms of the Xxxxxxxxx).
(B) Subtenant’s
Obligations.
Except
as otherwise specifically provided herein, all acts and obligations to be
performed and all of the terms and conditions to be observed by Sublandlord
as
tenant under the Xxxxxxxxx with respect to the Subleased Premises shall be
performed and observed by Subtenant, and Subtenant’s obligations shall run to
Sublandlord or Overlandlord as Sublandlord may determine to be appropriate
or
required by the respective interests of Sublandlord and Overlandlord.
Notwithstanding anything to the contrary contained in this Sublease, Subtenant
shall not be bound by any amendment or modification of the Xxxxxxxxx entered
into between Sublandlord and the Overlandlord on or after the date hereof
which
amendment contains an obligation which is greater than any obligation of
the
tenant or which diminishes any right of the tenant contained in the Xxxxxxxxx
as
of the date hereof nor shall any right or obligation of Subtenant contained
in
the Xxxxxxxxx (as incorporated by reference herein) be modified in any adverse
manner without the prior written consent of Subtenant.
-2-
(C) Time
Limits.
The
time limits contained in the Xxxxxxxxx, as included herein by reference,
for the
giving of notices, making of demands or performing of any act, condition
or
covenant on the part of the tenant thereunder, or for the exercise by the
tenant
thereunder of any right, remedy or option, are changed for the purposes of
incorporation herein by reference by shortening all time limits of ten (10)
days
or less by three (3) days in each instance and by shortening all time limits
in
excess of ten (10) days by five (5) days in each instance, so that in each
instance Subtenant shall have three (3) days or days, as the case may be,
less
time to observe or perform hereunder than Sublandlord has as the tenant under
the Xxxxxxxxx; provided that if the Xxxxxxxxx provides a time limit of five
(5)
days or less, Subtenant shall have two (2) Business Days (the term “Business
Day” being defined as defined in the Xxxxxxxxx) for notice, demand or cure as
the case may be.
(D) Conflict
of Terms.
If any
of the express terms, conditions or provisions of this Sublease shall conflict
with any of the terms, conditions or provisions incorporated by reference
from
the Xxxxxxxxx, such conflict: (i) if
it relates to services or facilities to be provided by the Overlandlord under
the Xxxxxxxxx or benefits to be conferred by the Overlandlord under the
Xxxxxxxxx, shall be resolved in each such instance in favor of the express
terms, conditions and provisions of the Xxxxxxxxx, and (ii) if
it relates to any other term, condition or provision of this Sublease, shall
be
resolved in each such instance in favor of the express terms, conditions
and
provisions of this Sublease.
(E) Notices
from Overlandlord.
If
Subtenant receives any notice or demand from the Overlandlord with respect
to
the Subleased Premises or this Sublease, Subtenant shall promptly give a
copy
thereof to Sublandlord. If Sublandlord receives any notice or demand from
the
Overlandlord with respect to any obligations to be performed by Subtenant
or
Sublandlord or any services or facilities to be furnished to Subtenant at
the
Subleased Premises, Sublandlord shall promptly give a copy thereof to
Subtenant.
4. PERFORMANCE
BY SUBLANDLORD.
(A) Any
obligation of Sublandlord which is contained in this Sublease by the
incorporation by reference to the provisions of the Xxxxxxxxx shall be observed
or performed by Sublandlord using commercially reasonable efforts to cause
the
Overlandlord to observe and/or perform the same, and Sublandlord shall have
a
reasonable time to enforce its rights to cause such observance or performance.
Subject to the foregoing, and except as otherwise specifically set forth
in this
Sublease, Sublandlord shall not be required to furnish, supply to, or install
anything in the Subleased Premises. Subtenant shall not in any event have
any
rights in respect of the Subleased Premises greater than Sublandlord’s rights
under the Xxxxxxxxx, and, notwithstanding any provision to the contrary,
as to
obligations contained in this Sublease by the incorporation by reference
of the
provisions of the Xxxxxxxxx, Sublandlord shall not be required to make any
payment or perform any obligation, and Sublandlord shall have no liability
to
Subtenant for any matter whatsoever, except for Sublandlord’s obligation to pay
the rent and additional rent as and when due under the Xxxxxxxxx and otherwise
perform its obligations so as to prevent a default by Sublandlord under the
Xxxxxxxxx, and for Sublandlord’s obligation to use commercially reasonable
efforts, upon written request of Subtenant, to cause the Overlandlord to
observe
and/or perform its obligations under the Xxxxxxxxx. Sublandlord shall not
be
responsible for any failure or interruption, for any reason whatsoever, of
the
services or facilities that may be appurtenant to or supplied at the Building
of
which the Subleased Premises are a part, including, without limitation, heat,
air conditioning, water, electricity, elevator service and cleaning service,
if
any; and no failure to furnish, or interruption of, any such services or
facilities shall give rise to any (i) abatement,
diminution or reduction of Subtenant’s obligations under this Sublease,
(ii) constructive
eviction, whether in whole or in part, or (iii) liability on the part of
Sublandlord; except, with regard to (iii) only,
to the extent caused by the gross negligence or willful misconduct of
Sublandlord, its employees, agents, representatives, contractors, clients,
guests or invitees. The obligations and duties of Subtenant with regard to
Article 13 of the Xxxxxxxxx as the same is incorporated in this Sublease
by
reference relate to the Subleased Premises, and not the Building as a whole
unless the misuse, negligence, willful misconduct or uninsurable acts or
omissions of Subtenant, its employees, agents, representatives, contractors,
clients, guests, invitees and/or sub-subtenants shall have an adverse impact
upon a portion or portions of the Building outside of the Subleased Premises
or
those portions of the Building systems outside the Subleased Premises; by
way of
amplification, Subtenant shall not be responsible for structural repairs
or
repairs to the Building systems or entrance doors unless due to the misuse,
negligence, willful misconduct or uninsurable acts or omissions of Subtenant,
its employees, agents, representatives, contractors, clients, guests, invitees
and/or sub-subtenants. Without derogation of the foregoing, if and to the
extent
Sublandlord shall receive an abatement pursuant to the provisions of
Subsections 35.04(b) and (c) of the Xxxxxxxxx, relative to the Subleased
Premises, Subtenant shall be entitled to a portion of such abatement (i.e.
as
such portion of Subtenant’s rentable square footage affected by the condition
giving rise to such abatement relates to the aggregate rentable square footage
in the Building also affected by the condition giving rise to the abatement)
after deduction of the same portion of all reasonable costs, fees and/or
expenses, including without limitation reasonable attorneys’ fees and
disbursements incurred in connection with obtaining same.
-3-
(B) During
the Term, as long as Subtenant is not in default under any of the covenants
of
this Sublease (beyond applicable notice and/or grace periods, if any),
Sublandlord shall provide, at its sole cost and expense except as otherwise
expressly provided to the contrary: (i) necessary
passenger elevator facilities on Business Days from 8:00 a.m. to 6:00 p.m.
and
have one elevator subject to call at all other times, subject to the rules
and
regulations of the Building; (ii) heat
to the Subleased Premises when during such times of the year as are required
by
law, on Business Days from 8:00 a.m. to 6:00 p.m.; (iii) water
for ordinary lavatory, and office pantry purposes, but if Subtenant uses
or
consumes water for any other purposes or in unusual quantities based upon
Sublandlord’s commercially reasonable judgment, Sublandlord may install a water
meter at Subtenant’s reasonable expense which Subtenant shall thereafter
maintain at Subtenant’s expense in good working order and repair to register
such water consumption and Subtenant shall pay for water consumed as shown
on
said meter as additional rent as and when bills are rendered; (iv) cleaning
service for the Subleased Premises on Business Days at Sublandlord’s expense to
specifications consistent in all material respects with the cleaning
specifications set forth on Exhibit F
attached
hereto and made a part hereof; (v) air
conditioning/cooling will be furnished to Subtenant from May 15th through
September 30th on Business Days (Mondays through Fridays, holidays excepted)
from 8:00 a.m. to 6:00 p.m. and ventilation will be furnished on Business
Days
during the aforesaid hours except when air conditioning/cooling is being
furnished as aforesaid; and (vi) freight
elevator, without charge during move-in to the Subleased Premises, however
not
to exceed sixteen (16) hours, provided that if use other than move-in Subtenant
shall be responsible for any costs of Sublandlord in providing same (i.e.
xxxxxx’x straight time during Building’s ordinary delivery times), and which may
include without limitation overtime charges for the managing agent and/or
Sublandlord’s facilities management staff), pursuant to the rules and
regulations of the Building (the existing rules and regulations, relating
to the
scheduling of freight transport are attached hereto as Exhibit C).
Subtenant’s use of the freight elevator shall, during the hours of 7:30 a.m. to
11:00 a.m. and 12:15 p.m. to 3:30 p.m. during Business Days, be free of
charge except to the extent the Building’s management must install or reinstall
protection to a passenger elevator to reasonably accommodate a freight shipment,
then Subtenant shall be responsible for the personnel costs associated with
the
installation and removal of such protection. In the event that the Subtenant
wishes to have cooling on days or hours not included above, then the entire
cost
of supplying the same shall be borne by Subtenant in the amount of $50.00
per
hour, (which shall include all customary costs associated with such use as
would
be charged by a similarly situated building and an administrative fee due
Sublandlord equal to ten (10%) percent of the cost of supplying the same)
and
shall be made available if, and to the extent that the system and equipment
serving the Subleased Premises are capable of providing such service. Such
sum
for cooling shall be increased over the term of this Sublease to the extent
Sublandlord’s cost for providing this service is increased including the cost of
labor, utilities and supplies used in providing such service. Sublandlord
reserves the right to stop services of the heating, elevators, plumbing,
air
conditioning, power systems or cleaning or other services, if any, when
necessary by reason of accident or for repairs, alterations, replacements
or
improvements necessary or desirable in the judgment of Sublandlord for as
long
as may be reasonably required by reason thereof. The same shall be done with
a
minimum of inconvenience to Subtenant, and Sublandlord shall pursue the
alteration with due diligence, in a workmanlike manner, with minimal
interference, to the extent possible, with the Subtenant’s use and occupancy of
the Subleased Premises.
-4-
(C) Notwithstanding
anything herein to the contrary, provided Subtenant complies with the provisions
of Section 19 herein, Sublandlord shall allow Subtenant to tap into the
Building’s condenser water HVAC supply and return lines at a one time charge of
$2,000.00 per tap in. Subtenant shall be responsible for the costs incurred
in
connection with the tap-ins, inclusive of all plumbing and engineering charges.
Subtenant shall cause to be installed all valves and controls as required
by
Sublandlord’s engineers. Should Sublandlord elect to tap in to the Building’s
condenser water HVAC supply, Subtenant shall pay to Sublandlord an annual
charge
equal to $400.00 per ton, based on the tonnage installed by Subtenant. In
the
event Subtenant elects to install an air cooled air conditioning system that
requires a vent to be installed through the exterior of the Building,
Sublandlord shall not unreasonably withhold its consent to such installation
provided that Subtenant complies with provisions of Section 19 herein, obtains
all necessary consents and approvals as required by the Xxxxxxxxx and complies
with all applicable rules, laws and regulations.
(D) Sublandlord
shall deliver the HVAC system(s) affecting the Subleased Premises in working
order and condition.
-5-
5. NO
BREACH OF XXXXXXXXX.
Subtenant
shall not do or permit to be done any act or thing (or fail to act in a manner),
which may constitute a breach or violation of any term, covenant or condition
of
the Xxxxxxxxx by the tenant thereunder.
6. NO
PRIVITY OF ESTATE.
Nothing
contained in this Sublease shall be construed to create privity of estate
or
contract between Subtenant and the Overlandlord.
7. INDEMNIFICATION
BY SUBTENANT.
Subtenant
does hereby indemnify and hold harmless Sublandlord and Overlandlord from
and
against any and all losses, costs, damages, expenses, fees, charges, costs
of
settlement, and liabilities, including, without limitation, reasonable
attorneys’ fees and disbursements, incurred or paid by Sublandlord or
Overlandlord, and shall defend Sublandlord and Overlandlord against all claims,
assertions, actions, proceedings and suits relating to: (i) the
conduct of Subtenant’s business in, or use or occupancy of, the Subleased
Premises; (ii) any
accidents, damages or injuries to persons or property occurring in, on or
about
the Subleased Premises, other than accidents, damages or injuries caused
by
Sublandlord or Overlandlord or their respective officers, employees, agents
or
contractors; (iii) any
breach or default by Subtenant in the observance or performance of the covenants
and agreements contained herein, or the Xxxxxxxxx as incorporated herein
by
reference; (iv) any
work done in or to the Subleased Premises by Subtenant or Subtenant’s
contractors, agents or employees; (v) any
act, omission or negligence on the part of Subtenant and/or its officers,
employees, agents, customers, contractors or invitees, or any person claiming
through or under Subtenant; or (vi) any
losses of or damages to property, injuries to person, or claims of other
Subtenants or occupants of Subtenant or of any other tenant or occupant of
the
Building, arising out of or in connection with any alterations, additions
or
improvements in or to the Subleased Premises by Subtenant or Subtenant’s
contractors, agents or employees, or acts, omissions or negligence in connection
herewith.
8. USE.
Subtenant
shall use and occupy the Subleased Premises for general, executive, and
administrative office use and for no other purpose. Subtenant shall comply
with
the certificate of occupancy relating to the Subleased Premises and with
all
laws, statutes, ordinances, orders, codes, rules, regulations and requirements
of all federal, state and municipal governments, or such board of fire
underwriters or fire insurance rating organization, and the appropriate
agencies, officers, departments, boards and commissions thereof (the “Government
Regulations”), and the board of fire underwriters and/or the fire insurance
rating organization or similar organization performing the same or similar
functions, whether now or hereafter in force, applicable to the Subleased
Premises, relating to Subtenant’s occupancy, use or manner of use of the
Subleased Premises; but nothing contained herein shall require Subtenant
to make
any expenditures unless same is required in order to cause the Subleased
Premises to comply with the Government Regulations and the reason for the
non-compliance is due to (a) the
particular manner of use of the Subleased Premises by Subtenant or its
employees, agents, contractors or representatives (as distinguished from
general, executive, and administrative offices), (b) a
breach of, or default under, the terms and provisions of this Sublease by
Subtenant, and/or (c) the
acts or omissions of Subtenant. Subject to the terms of this Sublease and
the
Xxxxxxxxx (including, without limitation, rights of Overlandlord and/or
Sublandlord to conduct repairs and the like), Subtenant and Subtenant’s
employees shall have access to the Subleased Premises 24 hours a day, 7 days
a
week, 365 days a year.
-6-
9. RENT.
(A) Fixed
Rent.
(i) Subtenant
shall pay to Sublandlord rent (herein called the “Fixed Rent”) (inclusive of
electricity) for the period commencing on the Rent Commencement Date and
ending
on the Expiration Date, both dates inclusive, at the annual rates set forth
below:
From
the
Rent Commencement Date through and including the end of the twelfth
(12th)
month,
the Fixed Annual Rent shall be Four Hundred Ten Thousand Two Hundred Twenty
Dollars and No Cents ($410,220.00), payable in equal monthly installments
of
$34,185.00;
From
the
beginning of the thirteenth (13th)
month
following the Rent Commencement Date through and including the end of the
twenty
fourth (24th)
month,
the Fixed Annual Rent shall be Four Hundred Twenty One Thousand Five Hundred
Sixty Four Dollars and Fifty Cents ($421,564.50), payable in equal monthly
installments of $35,130.38;
From
the
beginning of the twenty fifth (25th)
month
following the Rent Commencement Date through and including the end of the
thirty
sixth (36th)
month,
the Fixed Annual Rent shall be Four Hundred Thirty Three Thousand Two Hundred
Forty Nine Dollars and Thirty Four Cents ($433,249.34), payable in equal
monthly
installments of $36,104.11;
From
the
beginning of the thirty seventh (37th)
month
following the Rent Commencement Date of this Lease through and including
the end
of the forty eighth (48th)
month,
the Fixed Annual Rent shall be Four Hundred Sixty Six Thousand Six Hundred
Sixty
Four Dollars and Seventy Two Cents ($466,664.72), payable in equal monthly
installments of $38,888.73;
From
the
beginning of the forty ninth (49th)
month
following the Rent Commencement Date of this Lease through and including
the end
of the sixtieth (60th)
month,
the Fixed Annual Rent shall be Four Hundred Seventy Nine Thousand Seven Hundred
Two Dollars and Fifty Six Cents ($479,702.56), payable in equal monthly
installments of $39,975.21;
From
the
beginning of the sixty first (61st)
month
following the Rent Commencement Date of this Lease through and including
the end
of the seventy second (72nd)
month,
the Fixed Annual Rent shall be Four Hundred Ninety Three Thousand One Hundred
Thirty One Dollars and Fifty Three Cents ($493,131.53), payable in equal
monthly
installments of $41,094.29;
From
the
beginning of the seventy third (73rd)
month
following the Rent Commencement Date of this Lease through and including
the end
of the eighty fourth (84th)
month,
the Fixed Annual Rent shall be Five Hundred Six Thousand Nine Hundred Sixty
Three Dollars and Thirty Eight Cents ($509,963.38), payable in equal monthly
installments of $42,246.95;
From
the
beginning of the eighty fifth (85th)
month
following the Rent Commencement Date of this Lease through and including
the end
of the ninety sixth (96th)
month,
the Fixed Annual Rent shall be Five Hundred Forty Two Thousand Five Hundred
Ninety Dollars and Eighteen Cents ($542,590.18), payable in equal monthly
installments of $45,215.85;
-7-
From
the
beginning of the ninety seventh (97th)
month
following the Rent Commencement Date of this Lease through and including
the end
of the one hundred eighth (108th)
month,
the Fixed Annual Rent shall be Five Hundred Fifty Seven Thousand Nine Hundred
Five Dollars and Seventy Nine Cents ($557,905.79), payable in equal monthly
installments of $46,492.15;
From
the
beginning of the one hundred ninth (109th)
month
following the Rent Commencement Date of this Lease through and including
the end
of the one hundred twentieth (120th)
month,
the Fixed Annual Rent shall be Five Hundred Seventy Three Thousand Six Hundred
Eighty Dollars and Eighty Six Cents ($573,680.86), payable in equal monthly
installments of $47,806.74;
From
the
beginning of the one hundred twenty first (121st)
month
following Rent Commencement Date of this Lease through and including the
Expiration Date, the Fixed Annual Rent shall be Five Hundred Eighty Nine
Thousand Nine Hundred Twenty Nine Dollars and Nineteen Cents ($589,929.19),
payable in equal monthly installments of $49,160.77.
Notwithstanding
the foregoing, and provided that the Subtenant is not then in default, Subtenant
is being provided an abatement (the “Concession Period Abatement”) and is being
conditionally excused from the payment of Fixed Rent in an amount equal to
Two
Hundred Thirty Five Thousand Three Hundred Seventy Dollars and No Cents
($235,370.00) which represents and which shall be credited against, in the
aggregate, the Fixed Rent, exclusive of electricity, for: the first five
(5)
months of this Sublease for 10,690 square feet of the Subleased Premises;
the
thirteenth (13th)
and
fourteenth (14th)
months
of this Sublease for 5,845 square feet of the Subleased Premises and which
represents the 23rd floor portion of the Subleased Premises; the thirteenth
(13th),
fourteenth (14th)
and
fifteenth (15th)
months
of this Sublease for 4,845 square feet of the Subleased Premises and which
represents the 24th
floor
portion of the Subleased Premises. The amount of the rent concession is
calculated on the fixed rent per square foot applicable at such time as the
abatement is due. If at any time prior to the expiration of the Term, this
Sublease shall be terminated by Sublandlord in accordance with the terms
of this
Sublease and/or applicable law by reason of a Subtenant breach and/or default
by
Subtenant with regard to (x) any
monetary covenant on its part to be complied with or performed (after expiration
of applicable notice and/or grace periods), and/or (y) any
non-monetary covenant, agreement or term on its part to be complied with
or
performed (after expiration of applicable notice and/or grace periods), then,
upon the occurrence such termination, and only upon such termination (as
opposed
to default and/or breach not resulting in a termination of this Sublease),
the
unamortized portion of the Concession Period Abatement so conditionally excused
shall become immediately due and payable by Subtenant to Sublandlord. A schedule
of the Fixed Rent and the Concession Period Abatement are more fully set
forth
in Exhibit
E.
(ii) The
Fixed
Rent shall be paid to Sublandlord in equal monthly installments in advance
on or
before the first day of each month during the term of this Sublease, except
that
the first month’s Fixed Rent shall be paid simultaneously with the execution
hereof. Fixed Rent, Additional Rent (as hereinafter deemed) and other charges
payable hereunder shall be paid promptly when due, without notice or demand
therefore in the case of Fixed Rent (except where Additional Rent is due
in
fixed monthly payments and Subtenant has been provided with a notice of such
monthly amount; in which event, monthly invoices on account of such Additional
Rent items shall not be necessary), and without deduction, abatement,
counterclaim or set off of any amount or for any reason whatsoever. Sublandlord
shall give Subtenant notice of any change in Additional Rent or other charges
payable hereunder; provided, however, that failure to give such notice shall
not
limit Sublandlord’s rights to collect Additional Rent or other charges due and
payable hereunder retroactively after the giving of said notice and in no
event
shall failure to give such notice be deemed a waiver of Sublandlord’s rights to
collect such Additional Rent or other charges payable hereunder. Sublandlord
shall have the same remedies for a default in the payment of Additional Rent
and
other charges payable hereunder as it has for a default in the payment of
Fixed
Rent. If the Rent Commencement Date or Expiration Date shall occur on a date
other than the first (1st) day of a calendar month, the Fixed Rent for such
month shall be pro-rated based on the number of days in such calendar
month.
-8-
(B) Payment
of Rent.
Fixed
Rent, Additional Rent and all other charges payable hereunder shall be paid
to
Sublandlord in lawful money of the United States by check drawn on a bank
which
is a member of the New York Clearing House Association at the address of
Sublandlord set forth at the head of this Sublease, or to such other person
and/or at such other address as Sublandlord may from time to time designate
by
notice to Subtenant; or, by wire transfer to an account designated by
Sublandlord in writing, from time to time. Notwithstanding the foregoing,
from
and after the Rent Commencement Date and until such time as Subtenant shall
receive a notice to the contrary, the Sublandlord’s address for payment of Fixed
Rent and Additional Rent shall be at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx
00000
Attn: Controller - Accounting Department. No payment by Subtenant or receipt
by
Sublandlord of any lesser amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earliest stipulated Fixed Rent,
Additional Rent or other charge; nor shall any endorsement or statement on
any
check or letter be deemed an accord and satisfaction, and Sublandlord may
accept
any check or payment from Subtenant or otherwise without prejudice to
Sublandlord’s right to recover the balance due or to pursue any other remedy
available to Sublandlord.
10. LATE
CHARGES.
If
payment of any Fixed Rent, Additional Rent or other charge payable by Subtenant
hereunder shall not have been paid within ten (10) days after notice that
such
amount was due and payable hereunder (or without notice in the case of payments
of Fixed Rent), a late charge of one and one-half percent (1-1/2%) per month
(or
the then maximum lawful interest rate, whichever shall be less) of the unpaid
amount due shall be added to the sum due and shall be deemed Additional Rent
hereunder. If Subtenant shall issue a check to Sublandlord, which is returned
unpaid for any reason (other than the fault of Sublandlord), Subtenant shall
pay
to Sublandlord an additional charge of $500.00 to defray Sublandlord’s expenses
in connection therewith. Nothing in this Article contained and no acceptance
of
late rent by Sublandlord shall be deemed to extend or change the time for
payment of Fixed Rent, Additional Rent or any other charge payable
hereunder.
11. ADDITIONAL
RENT.
The
following shall constitute “Additional Rent” hereunder:
(A) Electricity.
-9-
(1) Subject
to the provisions of this Section 11(A), Sublandlord agrees to furnish, or
cause
the Overlandlord to furnish, Subtenant with all electric current (including
at
least 6 xxxxx per rentable square foot, exclusive of HVAC) and such other
utilities and building operating services as reasonably required by Subtenant
in
connection with the permitted use and occupancy of the Subleased Premises.
There
shall be a charge to Subtenant for such electric current which shall be Three
dollars ($3.00) per rentable square foot per annum for the Term (based upon
10,690 rentable square feet), which amount is presently included in the Fixed
Rent; provided that Sublandlord reserves the right, at its option, to change
the
manner in which electricity is charged to Subtenant, (x) by
survey, in which case Subtenant shall pay an amount equal to its share of
the
total electrical charges for the Subleased Premises as determined by such
survey, or, (y) by
submeter so long as Sublandlord shall pay the cost to install such submeter,
and
Sublandlord shall charge Subtenant the same rate that Sublandlord pays without
a
markup; provided, however, if, solely as a result of any alteration or addition
to Subtenant’s electrical equipment and/or appliances in the Subleased Premises,
the cost of furnishing electric service to the Subleased Premises shall be
increased, Subtenant shall be required to pay for such increased cost (and
notwithstanding the foregoing, Subtenant shall pay the reasonable cost of
installation of such submeter), upon a presentation of reasonable proof of
such
material increase to Subtenant. If Sublandlord shall elect to charge Subtenant
by means of survey (conducted by an electrical engineer calculating relative
usage and demand compared to that of a typical professional office tenant)
or
submeter as contemplated in the preceding sentence, then the Fixed Rent shall
be
reduced by an amount equal to Three dollars ($3.00) per square foot per annum
(based upon 10,690 rentable square feet).
(2) At
all
times during the term of this Sublease, Subtenant will comply in the Subleased
Premises with all present and future rules, regulations, terms and conditions
applicable to service equipment, wiring and requirements in accordance with
the
regulations of the public utility company supplying electric current to the
Building. Subtenant shall not use any electrical equipment, which, in the
reasonable discretion of Sublandlord or the discretion of the Overlandlord,
will
overload such installations or interfere with the use thereof by the other
occupants of the Building. Subtenant covenants and agrees that at all times
its
use of electric current shall never exceed the capacity of the then existing
feeders to the Subleased Premises or the risers or wiring installation, nor
shall Subtenant use or install any fixtures, equipment or machines the use
of
which in conjunction with other fixtures, equipment and machines in the Building
would result in an overload of the electrical circuits servicing the Building.
Nothing herein shall be deemed an assurance of the continued availability
from
the public utility company supplying electric current to the Building of
sufficient current to the Subleased Premises or that the quantity or type
of
current is now or shall hereafter be adequate for Subtenant’s needs. Sublandlord
shall in no way be liable or responsible to Subtenant for any loss or damage
or
expense which Subtenant may sustain or incur if either the quantity or character
of electric service is changed or is no longer available or suitable for
Subtenant’s requirements, except if due to the uninsurable acts or omissions of
Sublandlord, it’s employees, agents, representatives or contractors. Subtenant
shall furnish, install and replace, as required, all lighting tubes, lamps,
bulbs and ballasts required in the Subleased Premises, at Subtenant’s sole cost
and expense (or upon request by Subtenant, Sublandlord will furnish, install
and
replace same at Subtenant’s cost). All lighting tubes, lamps, bulbs and ballasts
so installed shall become Sublandlord’s property upon the expiration or sooner
termination of this Sublease.
-10-
(3) If
any
taxes or charges are or shall be imposed upon Sublandlord or its agent in
connection with the sale or resale of electrical energy to Subtenant pursuant
to
this Section 11(A), Subtenant covenants and agrees that, where permitted
by law,
such taxes or charges allocable to the Subleased Premises shall be passed
on to
Subtenant and paid by Subtenant to Sublandlord or its agent upon demand,
as
Additional Rent, without set-off or deduction. Sublandlord shall deliver
a copy
of the relevant tax xxxx upon written request by Subtenant.
(B) Real
Estate Taxes.
(1) As
Additional Rent hereunder, for each Tax Year (as hereinafter defined) commencing
as of July 1, 2007 and continuing for the balance of the Term, Subtenant
covenants and agrees to pay to Sublandlord, Subtenant’s Percentage (as
hereinafter defined) of the amount by which Taxes (as defined in the Xxxxxxxxx,
provided that Taxes for the Base Year and any other Tax Year shall be computed
as if there was no exemption due to the Industrial Commercial Incentive Program
(ICIP), exceeds Taxes for the time period from July 1, 2006 to and including
June 30, 2007 (such time period referred to herein as the “Base Year”). As of
the date of this Sublease the 2006/2007 taxable assessed value upon which
the
2006/2007 real estate taxes for the Building are based, net of ICIP exemption
benefits, is $27,243,000. Should the Taxes payable during the Base Year be
reduced by final determination of legal proceedings, settlement or otherwise,
then, the Taxes payable during the Base Year shall be correspondingly revised,
the Additional Rent theretofore paid or payable hereunder for all subsequent
years shall be recomputed on the basis of such reduction, and Subtenant shall
pay to Sublandlord as Additional Rent, within ten (10) days after being billed
therefor, any deficiency between the amount of such Additional Rent as
theretofore computed and the amount thereof due as the result of such
recomputations. Should the Taxes payable during the Base Year be increased
by
such final determination of legal proceedings, settlement or otherwise, then
appropriate recomputation and adjustment shall be made and the amount due
by the
Sublandlord to the Subtenant shall be paid within ten (10) days after the
recomputation or credit to the next rent due. Should the Taxes paid during
any
subsequent year be increased or decreased by a final determination of legal
proceedings, settlement or otherwise, then an appropriate recomputation and
adjustment shall be made between the Sublandlord and Subtenant and any amount
owed by the Subtenant shall be paid within ten (10) days after the Subtenant
is
billed therefor and be deemed Additional Rent, and any amount owed by the
Sublandlord to the Subtenant shall be paid within ten (10) days after the
recomputation or credit to the next rent due. For purposes of Section 11(B)
of
this Sublease, the term “Subtenant’s Percentage” shall mean with respect to
Taxes, five and eleven one hundredths (5.11%) percent of such Taxes (net
of
Industrial Commercial Incentive Program benefits, if any).
(2) All
amounts due to Sublandlord pursuant to Section 11(B)(1) shall be paid by
Subtenant in the same manner based upon the same proof and shall otherwise
be
subject to the same provisions as set forth in the Xxxxxxxxx.
(3) If
the
Expiration Date shall occur on a date other than June 30, any Additional
Rent
due under this Section 11(B) for the Tax Year in which such Expiration Date
shall occur shall be apportioned on a per diem basis. In the event of
termination of this Sublease, any Additional Rent due under this
Section 11(B) shall be paid or adjusted within thirty (30) days of
Sublandlord’s statement to Subtenant. Subtenant shall be entitled to its
proportionate share of any refunds (less its proportionate share of reasonable
expenses), if any. For the purposes of this Sublease, “Tax Year” shall mean the
fiscal year from July 1 to June 30. Sublandlord shall deliver a copy of the
relevant statement of expenses upon written request by Subtenant; further,
Sublandlord shall also provide Subtenant with reasonable proof of Base Year
Taxes upon written request by Subtenant.
-11-
(C) Additional
Charges.
(1) Subtenant,
at its sole cost and expense, shall pay any reasonable costs, charges, or
other
sums relating to, or incurred in connection with, Subtenant’s use of the
Subleased Premises and the providing of services in respect thereof (other
than
those services to be provided as expressly set forth herein or incorporated
by
reference in this Sublease - i.e. by way of illustration but not limitation
extraordinary cleaning requirements, use of freight elevator, overtime xxxxxx
services), whether such sums are payable pursuant to the Xxxxxxxxx or the
rules
and regulations of the Building or otherwise. Any such additional charges
shall
be due and payable to Sublandlord within thirty (30) days of written demand
from
Sublandlord to Subtenant.
(2) Subtenant’s
liability for the amounts due under this Article 11 with respect to the
Term of this Sublease shall survive for a period not to exceed two (2) years
from the expiration or sooner termination of this Sublease.
(3) In
no
event shall any adjustment of the payment made or to be made on account of
the
Additional Rent pursuant to Article 11 result in a decrease in Fixed Rent,
it being agreed that the payment of Additional Rent is an obligation
supplemental to the obligation to pay Fixed Rent.
(4) Sublandlord’s
failure during the term of this Sublease to prepare and/or deliver, or any
error
made by Sublandlord in the preparation of, any statements or bills, or
Sublandlord’s failure to make a demand, under this Article 11, or any other
provision of this Sublease, shall not in any way be deemed to be a waiver
of, or
cause Sublandlord to forfeit or surrender, its rights to collect any portion
of
Additional Rent or other charges which may have become due pursuant to this
Sublease during the term of this Sublease.
(5) Subtenant
shall pay (or reimburse Sublandlord if the same are levied against Sublandlord)
before delinquency, any occupancy or rent tax which is required by law to
be
paid by a “tenant” or “other occupant” with respect to this Sublease or the
Subleased Premises. If Subtenant is not required to pay such occupancy or
rent
tax, Subtenant shall pay (or reimburse Sublandlord if the same are levied
against Sublandlord) before delinquency, Subtenant’s Percentage of any occupancy
or rent tax which Sublandlord is required to pay with respect to the Xxxxxxxxx
or the Premises demised thereby, provided such amount payable is not in excess
of the tax payable solely with respect to the Fixed Rent, Additional Rent
and
other charges payable under this Sublease. Subtenant shall also pay (or
reimburse Sublandlord if the same are levied against Sublandlord) before
delinquency, any and all ad valorem or other taxes, assessments, license
fees
and public charges levied or assessed against Subtenant’s business in the
Subleased Premises, Subtenant’s fixtures, furnishings, furniture, equipment,
supplies, signs, and any other personal property of Subtenant therein, if
any.
-12-
(6) Sublandlord
shall provide central mail services in the Building for mail distribution
throughout the Building including the Subleased Premises which costs are
included in the Operating Expenses for the Building. All deliveries to Subtenant
must be made through the delivery entrance as designated by Sublandlord and
made
in compliance with Sublandlord’s reasonable rules and regulations thereto. All
deliveries and mail addressed to Subtenant shall be sorted and delivered
in the
Building’s central mailroom and delivered to Subtenant in accordance with
Sublandlord’s normal mailroom practices and procedures. Subtenant shall be
permitted to use the Buildings central mailroom for Subtenant’s outgoing mail
and such actual postal charges shall be billed directly to Subtenant (unless
previously stamped with postage upon deposit with mailroom).
(7) Subtenant
shall make arrangements to be billed directly for all utilities servicing
the
Subleased Premises (with the exception of electricity, which is dealt with
elsewhere in this Sublease, and water, heat, air conditioning and ventilation
utilized during business hours).
(8) Subtenant
shall be required to use the Sublandlord’s security system, at no cost or
expense to Subtenant, except for reasonable processing costs for keycards
and/or
repairs and maintenance to the extent such repairs and/or maintenance are
necessitated by the acts or omissions of the Subtenant, its employees, agents,
representatives, contractors, clients, guests or invitees.
(9) Subtenant’s
use of heating, ventilation and air conditioning during the business hours
between 8:00 a.m. and 6:00 p.m. on Business Days shall be included in
Subtenant’s Fixed Rent, provided, however, if Subtenant uses heating,
ventilation and air conditioning at other times and/or other days, the direct
costs thereof shall be Subtenant’s responsibility, as more particularly set
forth in Section 4(b) herein. Sublandlord shall cause such services to be
provided at times other than 8:00 a.m. to 6:00 p.m. on Business Days, provided
Subtenant actually provides Sublandlord or a representative of Sublandlord
designated for such purpose reasonable advance notice. If more than one
tenant/subtenant requires and receives after-hours heating, ventilation and
air
conditioning, the costs of such services shall be shared pro-rata between
Subtenant and such tenant/subtenant.
12. CONDITION
OF SUBLEASED PREMISES.
Subtenant
acknowledges that it has had the opportunity to examine and inspect the Building
and the building services and systems, the entire Subleased Premises and
the
furniture and fixtures therein and is fully familiar with the physical condition
thereof. Subtenant agrees that Subtenant is leasing the Subleased Premises
and
the furniture (if any) and fixtures therein “as is”, and that Sublandlord is not
required to perform any work or expend any monies in order to make the Subleased
Premises ready for Subtenant’s occupancy. Notwithstanding the foregoing, the
Sublandlord shall, at Sublandlord’s cost, as soon as reasonably practical after
the Rent Commencement Date, cause a contractor to “box in” the existing internal
staircase connecting the twenty second and twenty third floors of the Building
in accordance with applicable legal requirements; provided however, for
avoidance of doubt, in no event shall the Subtenant be entitled to any further
abatement or concession in Fixed Rent on account of such work except as
specifically set forth hereinabove in the calculation of Fixed Rent. In making
and executing this Sublease, Subtenant acknowledges that Sublandlord has
not
made and does not make any representations or warranties as to the Building
other than those specifically set forth in this Sublease, the building services
and systems, the air quality of the Building or the Subleased Premises, the
physical condition of the Subleased Premises or fixtures therein and that
Subtenant has relied solely on such investigations, examinations and inspections
as Subtenant has chosen to make or has made. Notwithstanding the foregoing,
Sublandlord hereby represents and warrants that to the best of its knowledge
the
Subleased Premises are in compliance with all applicable laws, rules, and
regulations.
-13-
13. CONSENTS
AND APPROVALS.
In
any
instance when Sublandlord’s consent or approval is required under this Sublease,
Sublandlord’s refusal to consent to or approve any matter or thing shall be
deemed reasonable if, inter alia,
such
consent or approval has not been obtained from the Overlandlord and, provided
that Sublandlord shall otherwise be willing to grant such consent or approval,
Sublandlord shall use reasonable efforts (which shall not include the
requirement to pay costs, fees, expenses or expend sums, except to the extent
specifically provided for in the Xxxxxxxxx; in which event, Subtenant shall
pay
same) to obtain the consent of the Overlandlord if such consent or approval
is
required under the Xxxxxxxxx. Sublandlord’s failure to notify Subtenant of
whether it will or will not consent to or approve any such matter or thing
within the applicable time limits, if any, will not be deemed unduly delayed
if,
inter alia,
such
notification has not been received from the Overlandlord within such time
limits. Except as expressly provided above, Sublandlord shall have no obligation
to take any action or incur any cost or expense to compel the Overlandlord
to
consent to any matter or thing under the Xxxxxxxxx or as to this Sublease.
In
the event that Subtenant shall seek the approval by or consent of Sublandlord
and Sublandlord shall fail or refuse to give such consent, except in instances
wherein Sublandlord is adjudicated to have acted in bad faith (and such
adjudication is final and no longer appealable), Subtenant shall not be entitled
to any damages or abatement for any withholding or delay of such approval
or
consent by Sublandlord, it being agreed that Subtenant’s sole remedy shall be an
action for injunction or specific performance and that said remedy of an
action
for injunction or specific performance shall be available only in those cases
where Sublandlord shall have expressly agreed in writing not to unreasonably
withhold or delay its consent. Except in those instances in this Sublease
wherein Sublandlord has expressly agreed not to unreasonably withhold or
delay
its consent, Sublandlord shall be entitled to grant or withhold its consent
in
its sole and absolute discretion.
14. NOTICES.
All
notices, consents, approvals, demands and requests (“Notices”) which are
required or desired to be given by either party to the other hereunder shall
be
in writing and shall be either delivered by hand, sent by recognized national
overnight mail or courier service for next business day, or sent by United
States registered or certified mail and deposited in a United States post
office, return receipt requested and postage prepaid. Notices which are served
upon Sublandlord or Subtenant in the manner provided herein shall be deemed
to
have been given or served for all purposes hereunder (i) with
respect to hand delivery, on the date delivered or delivery is refused,
(ii) with
respect to recognized national overnight mail or courier service, on the
next
Business Day after the date deposited with the overnight mail service for
next
Business Day delivery and (iii) with
respect to registered or certified U.S. mail, on the third Business Day after
being mailed with adequate postage as aforesaid. All notices to be given
to
Subtenant before the Commencement Date shall be addressed to Subtenant at
its
address set forth at the head of this Sublease. All notices to be given to
Subtenant on or after the Commencement Date shall be addressed to Subtenant
c/o
Chief Financial Officer at its address set forth at the head of this Sublease
with a copy to Subtenant’s attorney: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Xxxxx X. Xxxxxxxx, Esq. All notices to be given to Sublandlord from
and after the Commencement Date shall be addressed to Sublandlord at c/o
Live
Nation, 0000 Xxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attn:
Xxxxx Xxxxxx, Esq., Senior Counsel with a copy sent simultaneously to Live
Nation, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000, Attention: Office
of
General Counsel. Each of Sublandlord and Subtenant may from time to time
change
the names and/or addresses to which notices to be given to them shall be
addressed and sent as aforesaid, by designating such other names and/or
addresses in a notice given in accordance with the provisions of this
Article.
-14-
15. TERMINATION
OF XXXXXXXXX.
If
for
any reason the term of the Xxxxxxxxx shall terminate prior to the expiration
date of this Sublease, this Sublease shall thereupon be terminated and
Sublandlord shall not be liable to Subtenant by reason thereof; provided,
however, that Sublandlord shall have the right to terminate the Xxxxxxxxx
only
so long as the Overlandlord shall permit Subtenant to remain in occupancy
of the
Subleased Premises pursuant to the then-executory provisions of this Sublease.
If for any other reason the term of the Xxxxxxxxx shall terminate prior to
the
expiration date of this Sublease, this Sublease shall thereupon be terminated
and Sublandlord shall not be liable to Subtenant by reason thereof unless
(i) this
Sublease is in full force and effect, and (ii) said
termination shall have been effected because of the breach or default of
Sublandlord under the Xxxxxxxxx. If pursuant to any provision of the Xxxxxxxxx
the tenant thereunder shall have the right to terminate the Xxxxxxxxx prior
to
the expiration date of this Sublease, then Subtenant shall not have the right
to
terminate this Sublease solely by reason of such provision incorporated by
reference herein. If pursuant to any provision of the Xxxxxxxxx as presently
in
effect the landlord thereunder shall have the right to terminate the Xxxxxxxxx
prior to the expiration date of this Sublease, then, unless the Overlandlord
shall elect to terminate the Xxxxxxxxx pursuant to such provision, Sublandlord
shall not have the right to terminate this Sublease by reason of such provision
incorporated by reference herein. If the Overlandlord shall elect to terminate
the Xxxxxxxxx pursuant to any such provision, Sublandlord shall promptly
give
notice thereof to Subtenant, and this Sublease shall thereupon terminate
on the
date set forth in such notice with the same effect as if such date were the
last
day of the term of this Sublease, except as hereinafter provided.
Notwithstanding anything to the contrary contained in this Sublease, pursuant
to
Subsection 7.09(c) of the Xxxxxxxxx, in the event of termination, reentry
or dispossess by Overlandlord under the Xxxxxxxxx, Overlandlord may, at its
option take over all of the right, title and interest of Sublandlord under
this
Sublease and Subtenant shall, at Overlandlord’s option, attorn to Landlord
pursuant to the then executory provisions of this Sublease, except that
Overlandlord shall not be (i) liable for any previous act or omission of
Sublandlord under this Sublease, (ii) subject to any credit, offset, claim,
counterclaim, demand or defense which Subtenant may have against Sublandlord,
(iii) bound by any previous modification of such Sublease unless consented
to in writing by Overlandlord or by any previous payment of more than one.
(1)
month’s rent to the extent such payment was actually received by Overlandlord,
(iv) bound by any covenant of Sublandlord to undertake or complete any
construction of the Subleased Premises or any portion thereof, (v) required
to account for any security deposit or the Subtenant other than any security
deposit actually delivered to Overlandlord by Sublandlord, (vi) bound by
any obligation to make any payment to Subtenant or grant any credits, except
for
services, repairs, maintenance and restoration provided under the Sublease
to be
performed after the date of such attornment, (vii) responsible for any
monies owing by Overlandlord to the credit of Sublandlord or
(viii) required to remove any person occupying the Subleased Premises or
any part thereof.
-15-
16. ASSIGNMENT
AND SUBLETTING.
(a) Subtenant
shall not, by operation of law or otherwise, assign, sell, mortgage, pledge
or
in any manner transfer this Sublease or any interest therein, or sublet the
Subleased Premises or any part or parts thereof, or grant any concession
or
license or otherwise permit occupancy of all or any part of the Subleased
Premises by any person other than Subtenant without the consent of Sublandlord.
Notwithstanding the foregoing, subject to the applicable provisions of the
Xxxxxxxxx, if any, without the consent of the Sublandlord but with 10 days
prior
written notice to Sublandlord before the effective date of such transaction,
and
provided that the assignee of this Sublease or a subtenant of all of the
Subleased Premises or the successor by merger, shall have a tangible net
worth
(determined in accordance with GAAP) equal to or greater than the greater
of
(x) $5,000,000.00
or (y) the
tangible net worth of the Subtenant as of the date of such request for an
assignment, Subtenant may (i) assign
this Sublease or Sublet the entire Subleased Premises to either a Tenant
Affiliate or to the purchaser of all or substantially all of the assets or
beneficial ownership interests in Subtenant, or (ii) merge
with another entity. For purposes of this Sublease the term “Tenant Affiliate”
shall mean (i) a corporation into or with which Subtenant is merged or
consolidated, (ii) corporation or partnership or LLC to which substantially
all of Subtenant’s assets are transferred or (iii) corporation or partnership or
LLC which controls, is controlled by or is under common control with Subtenant.
For purposes hereof the term “control” shall mean, in the case of a corporation,
ownership, directly or indirectly, of at least fifty (50%) percent of all
the
voting stock, and in case of a partnership or LLC, directly or indirectly,
of at
least fifty (50%) percent of all the interests therein. Notwithstanding the
foregoing, in the event the Tenant Affiliate, as that term is defined in
the
Xxxxxxxxx, the purchaser of all or substantially all of the assets or beneficial
ownership interest in Subtenant or an entity that Subtenant merges with does
not
have a tangible net worth of $5,000,000.00 Subtenant may still assign this
Sublease or Sublet the entire Subleased Premises provided that Subtenant,
its
Tenant Affiliate, the purchaser of all or substantially all of the assets
or
beneficial interests in Subtenant or an entity that Subtenant merges with
deposits with Sublandlord an amount equal to twelve (12) months of the Fixed
Rent then due and payable pursuant to Section 9 of this Sublease as an
additional security deposit which will be held in accordance with the provisions
of Section 29 of this Sublease. No such assignment or sub-subletting shall
serve to release the Subtenant, and no such assignment shall be deemed effective
unless and until the assignee shall have executed and delivered a written
assumption of the Subtenant’s obligations under this Sublease for the benefit of
Sublandlord, which assumption shall be in form and substance reasonably
acceptable to Sublandlord (in the case of a merger, Sublandlord may require
a
written acknowledgement that the successor by merger is obligated for all
of
Subtenant’s obligations hereunder by operation of law or
otherwise).
(b) If
Subtenant shall desire to assign its interest in this Sublease or to sub-sublet
all or a portion of the Subleased Premises, Subtenant shall submit to
Sublandlord a written request for Sublandlord’s consent to such assignment or
subletting, which request shall be accompanied by the following information:
(i) the
name and address of the proposed assignee or sub-subtenant; (ii) the
terms and conditions of the proposed assignment or sub-subletting; (iii) the
nature and character of the business of the proposed assignee or sub-subtenant
and its proposed use of the Subleased Premises; and (iv) current
financial information and any other information Sublandlord may reasonably
request with respect to the proposed assignee or sub-subtenant.
-16-
Should
Subtenant request that Sublandlord consent to an assignment of this Sublease
or
sub-subletting of all or a portion of the Subleased Premises, Sublandlord
shall
have the right to terminate this Sublease as to all the Subleased Premises
with
regard to a requested assignment or with regard to a requested sub-subletting
of
all of the Subleased Premises; with regard to a sub-subletting of less than
all
of the Subleased Premises, Sublandlord at its sole option may terminate this
sublease only as to the portion of this Subleased Premises to be covered
by such
sub-sublease or the whole of the Subleased Premises but only to the extent
Sublandlord or any of its affiliates intends to occupy all or a portion of
the
Subleased Premises. Any such termination option shall be exercised by
Sublandlord in writing within 20 days of receipt of Subtenant’s written request
to assign or sub-sublet. If Sublandlord elects to exercise its option to
terminate with regard to all or portion of the Subleased Premises, such
termination shall be effective upon the proposed effective date of the
assignment or sub-subletting (but not more than 60 days after the request);
provided, if Subtenant’s proposed effective date is less than 30 days after
delivery to Sublandlord of the written request to assign or sub-sublet, then
the
effective date for a termination if exercised by Sublandlord shall be 30
days
after delivery of Subtenant’s request. If Sublandlord shall exercise its option
to recapture and terminate with regard to less than the entirety of the
Subleased Premises, rent due from and after the termination shall be adjusted
as
follows: Fixed Rent shall be reduced by an amount equal to a fraction, the
numerator of which is the rentable square footage of the space recaptured
and
the denominator of which is 10,690 square feet (or, if a portion of the
Subleased Premises was previously recaptured, the rentable square foot area
of
the Subleased Premises at such time); and, payments of Additional Rent based
upon “Subtenant’s Percentage” shall be adjusted to an amount equal to a
fraction, the numerator of which is the difference between 10,690 square
feet
(or, if a portion of the Subleased Premises was previously recaptured, the
rentable square foot area of the Subleased Premises at such time) and the
rentable square footage recaptured, and the denominator of which is the entire
rentable square footage of the Building with regard to Taxes. Notwithstanding
the foregoing, the right of recapture provided for under this
Subsection 16(b) shall not apply to a transaction for which Sublandlord’s
consent is not necessary pursuant to the last sentence of Subsection 16(a)
of this Sublease.
(c) In
event
Sublandlord does not exercise its right of recapture pursuant to
Section 16(b) above, Sublandlord shall not unreasonably withhold, delay or
condition its consent to a proposed assignment or sub-subletting for the
use(s)
permitted in this Sublease, provided that:
(1) Subtenant
shall not then be in default hereunder beyond the expiration of any applicable
notice and/or grace period;
(2) the
proposed assignee or sub-subtenant shall have a financial standing, be of
a
character, be engaged in a business, and propose to use the Subleased Premises,
in a manner in keeping with the standards of the Building and the terms and
provisions of the Xxxxxxxxx;
-17-
(3) the
proposed assignee or sub-subtenant shall not then be a subtenant, sub-subtenant
or assignee for any space in the Building, nor shall the proposed assignee
or
sub-subtenant be a person or entity with whom Sublandlord is then actively
negotiating to sublease space in the Building provided that comparable space
in
the Building is not then available or will not become available within six
months from the date of the proposed assignment or sub-subletting;
(4) the
character of the business to be conducted in the Subleased Premises by the
proposed assignee or sub-subtenant shall not be likely to substantially increase
or burden the heating and ventilation system or other services or systems
in the
Building;
(5) in
case
of a sub-subletting, the sub-subtenant shall be expressly subject to all
of the
obligations of Subtenant under this Sublease and the further condition and
restriction that such sublease shall not be assigned, encumbered or otherwise
transferred or the Subleased Premises further sub-sublet by the sub-subtenant
in
whole or in part, or any part thereof suffered or permitted by the sub-subtenant
to be used or occupied by others, without the prior written consent of
Sublandlord in each instance subject to the other provisions of this
Sublease;
(6) no
subletting shall end later than one (1) day before the Expiration Date nor
shall
any subletting be for a term of less than one (1) year unless it commences
less
than one (1) year before the Expiration Date;
(7) in
the
reasonable judgment of Sublandlord, the proposed assignee or sub-subtenant
shall
have the financial ability to perform the terms of the Sublease or the proposed
sub-sublease, as applicable;
(8) the
proposed assignee or sub-subtenant shall not be a direct business competitor
of
the Sublandlord or its Affiliates; and
(9) Subtenant
shall reimburse Sublandlord on demand for any reasonable out-of-pocket costs,
including but not limited to reasonable attorneys’ fee, not to exceed $2,500.00,
and disbursements that may be incurred by Sublandlord in connection with
said
assignment or sub-sublease.
The
failure of Sublandlord to reply to a request under this Subsection 16(c)
within thirty (30) days (the “Initial 30 Day Period”) of Sublandlord’s receipt
of a written request hereunder (“First Notice”) shall be deemed Sublandlord’s
consent to such sub-sublease or assignment provided that Subtenant shall
receive
no response within three (3) Business Days of Sublandlord’s receipt of a second
notice (the “Second Notice”), sent on or after the 26th
day
after Sublandlord’s receipt of the First Notice notifying Sublandlord that
Subtenant has not received a response to the First Notice and the date that
the
Initial 30 Day Period expires , and making specific reference to this
Subsection 16(c) and the fact that Sublandlord’s failure to respond within
such three (3) Business Day period shall be deemed consent hereunder. Further,
if within 10 days after receipt of a request hereunder, Sublandlord shall
make a
reasonable request for additional relevant information or proof or information
that is otherwise required to be provided pursuant to the terms of this
Subsection, but was not provided in full, such initial thirty (30) day period
shall not be deemed to run until such additional information has been received
by Sublandlord.
-18-
(d) Subtenant
shall deliver to Sublandlord a copy of each sub-sublease or assignment made
hereunder within ten (10) days after the date of its complete execution and
delivery. Subtenant shall remain fully liable for the performance of all
of
Subtenant’s obligations hereunder notwithstanding any sub-subletting or
assignment provided for herein and, without limiting the generality of the
foregoing, shall remain fully responsible and liable to Sublandlord for all
acts
and omissions of any sub-subtenant, assignee or anyone claiming by through
or
under any sub-subtenant or 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. Notwithstanding any assignment and assumption by
the
assignee of the obligations of Subtenant hereunder, Subtenant, and each
immediate or remote successor in interest of Subtenant, shall remain liable
jointly and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Subtenant’s obligations hereunder,
and shall remain fully and directly responsible and liable to Sublandlord
for
all acts and omissions on the part of any assignee subsequent to it in violation
of any of the obligations of this Sublease.
(e) Notwithstanding
anything to the contrary contained in this Sublease, no assignment of
Subtenant’s interest in this Sublease shall be binding upon Sublandlord unless
the assignee shall execute and deliver to Sublandlord an agreement whereby
such
assignee agrees unconditionally to be bound by and to perform all of the
obligations of Subtenant hereunder from and after the effective date of such
assignment and further expressly agrees that notwithstanding such assignment
the
provisions of this Section 16 shall continue to be binding upon such
assignee with respect to all future assignments and transfers. Every
sub-subletting hereunder is subject to the express condition, and by accepting
a
sub-sublease hereunder each sub-subtenant shall be conclusively deemed to
have
agreed, that if this Sublease should be terminated prior to the Expiration
Date
or if Sublandlord should succeed to Subtenant’s estate in the Subleased
Premises, then at Sublandlord’s election such sub-subtenant shall either
surrender the Subleased Premises to Sublandlord within thirty (30) days of
Sublandlord’s request therefor, or shall attorn to and recognize Sublandlord as
such sub-subtenant’s sub-sublandlord under such sub-sublease, and such
sub-subtenant shall promptly execute and deliver any instrument Sublandlord
may
reasonably request to evidence such attornment.
(f) In
the
event that Subtenant fails to execute and deliver any assignment or sublease
to
which Sublandlord consented under the provisions of this Section 16 within
sixty (60) days after the giving of such consent, then Subtenant shall again
comply with all of the provisions of this Section 16 before assigning its
interest in this Sublease or sub-subletting the Subleased Premises.
(g) The
consent of Sublandlord to an assignment or a sub-subletting shall not relieve
Subtenant from obtaining the express consent in writing of Sublandlord to
any
further assignment or sub-subletting; nor act in derogation of Sublandlord’s
rights pursuant to Section 16(b) hereof.
-19-
(h) If
Subtenant’s interest in this Sublease be assigned, or if the Subleased Premises
or any part thereof be sub-sublet or occupied by anyone other than Subtenant,
Sublandlord may collect rent from the assignee, sub-subtenant or occupant
and
apply the net amount collected to all Fixed Rent and Additional Rent herein
reserved, but no such assignment, sub-subletting, occupancy or collection
shall
be deemed a waiver of the provisions of this Section 16 or of any default
hereunder or the acceptance of the assignee, sub-subtenant or occupant as
Subtenant, or a release of Subtenant from the further observance or performance
by Subtenant of all of the covenants, conditions, terms and provisions on
the
part of Subtenant to be performed or observed under and pursuant to this
Sublease.
(i) When
permitted hereunder (if at all) and/or after obtaining Sublandlord’s prior
written consent, if Subtenant shall receive any consideration from its assignee,
sub-subtenant or licensee for or in connection with the assignment of
Subtenant’s interest in this Sublease or the sub-subletting or occupancy of all
or any part of the Subleased Premises, as the case may be (excluding sums
paid
for the sale or rental of Subtenant’s equipment, furniture or other personal
property to the extent such sale price or rental represents fair market value),
or if Subtenant shall sub-sublet or otherwise permit occupancy of the Subleased
Premises at a rental rate (including Additional Rent) or other periodic
consideration which shall exceed the Fixed Rent and Additional Rent then
payable
hereunder, Subtenant shall pay to Sublandlord, at Sublandlord’s sole option, as
additional rent hereunder, fifty (50%) percent of such excess consideration
received by Subtenant or paid on its account. For the purpose of determining
whether there is any excess consideration being paid with regard to any such
assignment or sublet, Subtenant may deduct its reasonable out-of-pocket costs
for commercially reasonable brokerage commissions, commercially reasonable
costs
of alterations, commercially reasonable free rent concessions, marketing
and
construction paid on account of such assignment or subletting and reasonable
attorneys’ fees incurred in connection therewith as amortized over the term of
the subject sub-sublease, or in the case of an assignment, over the balance
of
the term of this Sublease.
(j) In
no
event shall Subtenant publicly market and/or advertise the Subleased Premises
for assignment or sub-sublease at rates lower than those then being offered
by
Sublandlord for comparable space in the Building.
17. INSURANCE.
(A) Insurance
Policies.
Subtenant shall maintain throughout the term of this Sublease commercial
general
liability insurance on an occurrence basis in respect of the Subleased Premises
and the conduct and operation of business therein, with Sublandlord and the
Overlandlord named as additional insured, with limits of Five Million and
00/100
($5,000,000.00) Dollars combined single limit for bodily injury or death
or for
property damage, including water damage legal liability, arising out of any
one
occurrence or accident. Such insurance limits may be increased during the
Term
to such amount, as Sublandlord shall reasonably require consistent with
insurance requirements imposed in similar midtown Manhattan office buildings.
Subtenant shall also obtain casualty insurance covering all tenant improvements,
furniture, fixtures, furnishings, business equipment and contents of the
Subleased Premises. Subtenant shall deliver to Sublandlord a policy or
certificate of insurance prior to the Commencement Date, and the Sublandlord
and
the Overlandlord shall be named as an additional insured with respect to
the
public liability insurance. Subtenant shall procure and pay for renewals
of such
insurance from time to time before the expiration thereof, and Subtenant
shall
deliver to Sublandlord and the Overlandlord such renewal policy or certificate
of insurance at least thirty (30) days before the expiration of any existing
policy. All such policies shall be issued by reputable companies licensed
to do
business in the State of New York which are reasonably acceptable to
Sublandlord, and all such policies shall contain a provision whereby the
same
cannot be canceled unless Sublandlord and the Overlandlord are given at least
thirty (30) days’ prior written notice of such cancellation or
modification.
-20-
(B) Releases.
Subtenant hereby releases the Overlandlord or anyone claiming through or
under
the Overlandlord by way of subrogation or otherwise to the extent that
Sublandlord released the Overlandlord and/or the Overlandlord was relieved
of
liability or responsibility pursuant to Section 9.04 of the Xxxxxxxxx, and
Subtenant will cause its insurance carriers to include any clauses or
endorsements in favor of the Overlandlord which Sublandlord is required to
provide pursuant to the provisions of the Xxxxxxxxx.
18. ESTOPPEL
CERTIFICATES.
Subtenant
and Sublandlord shall, within ten (10) days after each and every request
by the
other party, execute, acknowledge and deliver a statement in writing
(i) certifying
that this Sublease is unmodified and in full force and effect (or if there
have
been modifications, that the same is in full force and effect as modified,
and
stating the modifications), (ii) specifying
the dates to which the Fixed Rent and Additional Rent have been paid, and
(iii) stating
whether or not, to its best knowledge, the other party is in default in
performance or observance of its obligations under this Sublease, and, if
so,
specifying each such default. Any such statement delivered pursuant to this
Section 18 may be relied upon by the requesting party and by any
prospective assignee or transferee of the requesting party’s interests in the
Premises or any part thereof.
19. ALTERATIONS.
(a) Subtenant
shall not make or cause, suffer or permit the making of any non-structural
alteration, addition, change, replacement, installation or addition in or
to the
Subleased Premises other than moving furniture and installing other furniture,
furnishings and trade fixtures which are not affixed to the Subleased Premises
or making cosmetic or decorative changes without obtaining the prior written
consent of Sublandlord in each instance and, if required pursuant to the
Xxxxxxxxx, the consent of the Overlandlord. Such consent by Sublandlord shall
not be unreasonably withheld, conditioned or delayed. Subtenant shall not
make
or cause, suffer or permit the making of any structural or non-structural
alteration, addition, change, replacement, installation or addition in or
to the
Subleased Premises at any time without the prior written consent of the
Overlandlord and Sublandlord in each instance (which consent from Sublandlord
shall be at its sole discretion). Provided Sublandlord shall have provided
its
consent to such alterations, Sublandlord shall use reasonable efforts to
obtain
the consent of the Overlandlord, if required, as determined by Sublandlord,
at
Subtenant’s sole reasonable cost and expense. Notwithstanding the foregoing,
Subtenant may make non-structural alterations, changes, replacements
installations or additions the cost of each of which do not exceed $50,000.00
without the consent of Sublandlord. Any such alteration, addition, change,
replacement, installation or addition shall be made only in strict accordance
with the terms, conditions and provisions of the Xxxxxxxxx. Any such alteration,
addition, change, replacement, installation or addition shall, upon
installation, become the property of Sublandlord and shall be surrendered
with
the Subleased Premises upon the expiration or earlier termination of this
Sublease, unless Sublandlord shall notify Subtenant to remove same; provided
that Subtenant shall not be obligated to remove alterations done to the Building
standard utilizing finishes and materials substantially similar to those
existing in the Subleased Premises as of the date hereof, and with regard
to
those alterations which are not standard, Sublandlord must notify Subtenant
as
of the time of Sublandlord’s consent whether the same must be removed at the end
of the Term or the earlier termination of this Sublease; provided, further,
that
Subtenant shall have the right to remove its movable furniture, fixtures,
furnishings and equipment (excluding, however, all furniture, fixtures,
furnishings and equipment and other personal property delivered with possession
upon the Commencement Date) upon the expiration or earlier termination of
this
Sublease. Sublandlord reserves the right to charge Subtenant a reasonable
supervisory fee associated with Subtenant’s alterations. In no event shall the
Subtenant be entitled to tint the windows of the Subleased
Premises.
-21-
(b) Provided
the requested alteration, addition, change, replacement, or installation
is
non-structural in nature and does not materially impact the Building systems,
the failure of Sublandlord to reply to a request under Subsection 19(a)
within thirty (30) days of Sublandlord’s receipt of a written request hereunder
shall be deemed Sublandlord’s consent to such alteration, addition, change,
replacement, or installation provided that Subtenant shall receive no response
within three (3) Business Days of Sublandlord’s receipt of a second notice
notifying Sublandlord that it has failed to timely respond within the initial
thirty (30) day period, and making specific reference to this Subsection
and the
fact that Sublandlord’s failure to respond within such three (3) Business Day
period shall be deemed consent hereunder. Further, if after receipt of a
request
hereunder, Sublandlord shall make a reasonable request for additional relevant
information, or proof or information that is otherwise required to be provided
pursuant to the terms of this Section, but was not provided in full, such
initial thirty (30) day period shall not be deemed to run until such additional
information has been received by Sublandlord.
(c) Subtenant
has informed Sublandlord that Subtenant intends to initially improve the
Subleased Premises by combining two (2) offices located on the 23rd
floor of
the Subleased Premises. (“Initial Alterations”). Such improvement has been
approved by Sublandlord in accordance with the plans and specifications subject
to the terms and conditions set forth in Section 19(d) below provided
however that any such improvements shall be subject to therefor, (i) Subtenant’s
compliance with the other provisions of this Section 19 and those
provisions of the Xxxxxxxxx which are incorporated herein and applicable
to such
an alteration including but not limited to compliance with all applicable
municipal laws, ordinances, codes, rules and regulations, (ii) such
alterations being constructed consistent with or better quality than the
Building standard utilizing finishes and materials substantially similar
to
those existing in the Subleased Premises as of the date hereof, (iii) such
improvement shall not change, alter or affect any of the Building’s systems in
an adverse manner, and (iv) reimbursement
to Sublandlord of its reasonable and actual out-of-pocket costs and expenses
for
review of Subtenant’s plans and specifications for such alteration or its
applications for permits including any review by outside
professionals.
(d) Subtenant
has provided Sublandlord, and Sublandlord has reviewed and hereby approves
pursuant to the provisions of this Section 19, all plans and specifications
with regard to its Initial Alterations, as identified on Exhibit
D
attached
hereto and made a part hereof, subject to and conditioned upon Subtenant
meeting, to Sublandlord’s reasonable satisfaction, the terms and conditions of
Sublandlord’s architects.
-22-
20. DEFAULT
BY SUBTENANT.
The
following shall constitute a default by Subtenant hereunder: (i) any
failure of Subtenant to pay any Fixed Rent, Additional Rent or other charges
payable hereunder within three (3) Business Days after notice of such failure
in
payment shall have been given to Subtenant; or (ii) any
failure of Subtenant to perform any other of the terms, covenants or conditions
of this Sublease (including those incorporated herein by reference) to be
observed or performed by Subtenant for more than twenty (20) days after written
notice of such default shall have been served upon Subtenant, or any sooner
time
otherwise specifically set forth in any provision of this Sublease (including,
without limitation, any provision incorporated by reference, as same may
be
modified by Article 3 hereof), or, if such default cannot reasonably be
cured within such period of twenty (20) days, if Subtenant shall not have
commenced the cure thereof within such period of time and shall not be
proceeding with due diligence and good faith to cure same (so long as such
default is cured before the event resulting in such default causes a default
by
the tenant under the Xxxxxxxxx and in any event within sixty (60) days);
or
(iii) if
Subtenant shall abandon the Subleased Premises for more than one hundred
twenty
(120) consecutive days; or (iv) if
by operation of law or otherwise, and other than in accordance with this
Sublease, any interest of Subtenant in or to the Subleased Premises or in
or to
this Sublease shall pass to another and not revert to Subtenant within twenty
(20) days; or (v) if
Subtenant shall make an assignment of all or a portion of its property for
the
benefit of creditors, or file a petition in bankruptcy or insolvency or for
reorganization or arrangement or for the appointment of a receiver of all
or a
portion of its property; or if Subtenant shall have filed against it a petition
in bankruptcy or insolvency or for reorganization or arrangement or for the
appointment of a receiver of all or a portion of its property and such petition
shall not be vacated or withdrawn within sixty (60) days after the date of
filing thereof; or if a permanent receiver shall be appointed for all or
a
portion of the property of Subtenant. In case of any default hereunder, then,
in
addition to all other remedies (including those incorporated herein by
reference) available to Sublandlord, Sublandlord shall have the right to
terminate this Sublease on three (3) days’ prior written notice to Subtenant,
upon which Sublandlord shall have the immediate right of re-entry and may
remove
all persons and property from the Subleased Premises by summary
proceedings.
21. RIGHT
TO CURE SUBTENANT’S DEFAULTS.
If
Subtenant shall at any time fail to make any payment or perform any other
obligation of Subtenant hereunder, then Sublandlord shall have the right,
but
not the obligation, after the lesser of five (5) Business Days’ written notice
to Subtenant or the time within which the Overlandlord may act on Sublandlord’s
behalf under the Xxxxxxxxx, or without notice to Subtenant in the case of
any
emergency, and without waiving or releasing Subtenant from any obligations
of
Subtenant hereunder, to make such payment or perform such other obligation
of
Subtenant in such manner and to such extent as Sublandlord shall deem necessary,
and in exercising any such right, to pay any reasonable incidental costs
and
expenses, employ attorneys, and incur and pay reasonable attorneys’ fees and
disbursements. Subtenant shall pay to Sublandlord not more than twenty (2)
days
from written demand all sums so incurred and paid by Sublandlord and all
necessary reasonable incidental costs and expenses of Sublandlord in connection
therewith, together with interest thereon at the rate of one and one-half
percent (1-1/2%) per calendar month or any part thereof (or the then maximum
lawful interest rate, whichever shall be less), from the date of the making
of
such expenditures.
-23-
22. BROKERAGE.
Sublandlord
and Subtenant represent to each other that they have dealt with no broker,
finder or other similar person in bringing about this Sublease other than
Newmark Xxxxxx Xxxxx and Xxxxxxx & Xxxxxxxxx (the “Brokers”). Sublandlord
and Subtenant agree to indemnify, defend and hold harmless, the other from
and
against any claims made by any broker, finder or other person for a brokerage
commission, finder’s fee, or similar compensation other than the Brokers, by
reason of or in connection with this Sublease, and any loss, liability, damage,
cost and expense (including, without limitation, reasonable attorneys’ fees and
disbursements or the reasonable value of legal services rendered by Sublandlord
on behalf of itself in connection with such claims) in the event the
representation set forth above and made by such party shall be untrue.
Sublandlord shall pay all fees or commissions due and owing to the
Brokers.
23. LIABILITY
OF SUBLANDLORD.
Subtenant
shall look only to Sublandlord’s estate and interest in the Building (or the
proceeds thereof) for the satisfaction of Subtenant’s remedies or for the
collection of any judgment (or other judicial process) in the event of any
default by Sublandlord under this Sublease. Subtenant shall not look to any
other property or assets of Sublandlord or the partners of Sublandlord, nor
shall any of Sublandlord, its affiliates or the shareholders, officers or
directors of Sublandlord be subject to levy, execution or other enforcement
procedure for the satisfaction of Subtenant’s remedies under or with respect to
this Sublease, the relationship of Sublandlord and Subtenant hereunder or
Subtenant’s use and occupancy of the Subleased Premises, nor shall anything
contained in this Sublease be construed to permit Subtenant to offset any
claim
or sum against any Fixed Rent, Additional Rent or other charge due
hereunder.
24. WAIVER
OF JURY TRIAL AND RIGHT TO COUNTERCLAIM.
Subtenant
and Sublandlord hereby waive all right to trial by jury in any summary or
other
action, proceeding or counterclaim arising out of or in any way connected
with
(a) this
Sublease, (b) the
relationship of Sublandlord and Subtenant hereunder, (c) the
Subleased Premises or the use and occupancy thereof, and (d) any
claim of injury or damages in connection the Subleased Premises or the use
and
occupancy thereof Subtenant also hereby waives all rights to assert or interpose
a counterclaim (excepting compulsory counterclaims) in any summary proceeding
or
other action or proceeding to recover or obtain possession of the Subleased
Premises.
25. NO
WAIVER.
The
failure of either party to insist in any one or more cases upon the strict
performance or observance of any obligation of the other party hereunder
or to
exercise any right or option contained herein shall not be construed as a
waiver
or relinquishment for the future of any such obligation of the other party
or
any right or option of such party. Sublandlord’s receipt and acceptance of Fixed
Rent or Additional Rent, or Sublandlord’s acceptance of performance of any other
obligation by Subtenant, with knowledge of Subtenant’s breach of any provision
of this Sublease, shall not be deemed a waiver of such breach. No waiver
by
Sublandlord or Subtenant of any term, covenant or condition of this Sublease
shall be deemed to have been made unless expressed in writing and signed
by the
party making such waiver.
-24-
26. COMPLETE
AGREEMENT.
There
are
no representations, agreements, arrangements or understandings, oral or written,
between the parties relating to the subject matter of this Sublease, which
are
not fully expressed in this Sublease. This Sublease cannot be changed or
terminated orally or in any manner other than by a written agreement executed
by
both parties.
27. SUCCESSORS
AND ASSIGNS.
The
provisions of this Sublease, except as herein otherwise specifically provided,
shall extend to, bind and inure to the benefit of the parties hereto and
their
respective legal representatives and successors and permitted assigns. In
the
event of any assignment or transfer of Sublandlord’s interest 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, accruing
from and after the date of such transfer, and provided that the assignee
or
transferee assumes all such obligations (in writing).
28. INTERPRETATION.
Irrespective
of the place of execution or performance, this Sublease shall be governed
by and
construed in accordance with the laws of the State of New York. If any provision
of this Sublease or the application thereof to any person or circumstance
shall,
for any reason and to any extent, be invalid or unenforceable, the remainder
of
this Sublease and the application of that provision to other persons or
circumstances shall not be affected but rather shall be enforced to the extent
permitted by law. The table of contents, captions, headings and titles, if
any,
in this Sublease are solely for convenience of reference and shall not affect
its interpretation. This Sublease shall be construed without regard to any
presumption or other rule requiring construction against the party causing
this
Sublease to be drafted. If any words or phrases in this Sublease shall have
been
stricken out or otherwise eliminated, whether or not any other words or phrases
have been added, this Sublease shall be construed as if the words or phrases
so
stricken out or otherwise eliminated were never included in this Sublease
and no
implication or inference shall be drawn from the fact that said words or
phrases
were so stricken out or otherwise eliminated. Each covenant, agreement,
obligation or other provision of this Sublease shall be deemed and construed
as
a separate and independent covenant of the party bound by, undertaking or
making
same, not dependent on any other provision of this Sublease unless otherwise
expressly provided. All terms and words used in this Sublease, regardless
of the
number or gender, in which they are used, shall be deemed to include any
other
number and any other gender as the context may require. The word “person” as
used in this Sublease shall mean a natural person or persons, a partnership,
a
limited liability company, a corporation or any other form of business or
legal
association or entity.
-25-
29. SECURITY.
(a) Subtenant
has deposited with Sublandlord the sum of Six Hundred Twenty One Thousand
Three
Dollars and No Cents ($621,003.00) as security for the faithful performance
and
observance by Subtenant of the terms, provisions and conditions of this Sublease
which shall be held by Sublandlord in a segregated interest bearing account
(or
sub-account) and in compliance with applicable laws (interest earned, after
deduction of permitted statutory administration fees shall, provided Subtenant
is not then in default under the terms of this Sublease, be paid to Subtenant
not more frequently than annually after written demand therefore from Subtenant
to Sublandlord). It is agreed that in the event Subtenant defaults (beyond
any
applicable notice and/or grace period) in respect of any of the terms,
provisions and conditions of this Sublease, including, but not limited to,
the
payment of Fixed Rent and/or Additional Rent, Sublandlord may use, apply
or
retain the whole or any part of the security so deposited to the extent required
for the payment of any Fixed Rent and/or Additional Rent and/or any other
sum as
to which Subtenant is in default (beyond any applicable notice and/or grace
period) or for any sum which Sublandlord may expend and/or may be required
to
expend by reason of Subtenant’s default (beyond any applicable notice and/or
grace period) in respect of any of the terms, covenants and conditions of
this
Sublease, including, but not limited to, any damages or deficiency in the
re-letting of the Subleased Premises whether such damages or deficiency accrued
before or after summary proceedings or other re-entry by Sublandlord and/or
the
reasonable costs of enforcement of this Sublease incurred by Sublandlord.
In the
event that the Sublandlord shall apply all or any part of the amount being
held
as security, then Subtenant shall, within ten (10) days of demand therefor,
replenish the amount held by Sublandlord to the amount set forth above as
the
original security deposit. In the event that Subtenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions
of
this Sublease, the security shall be returned to Subtenant promptly after
the
date fixed as the end of the Sublease and after delivery of entire legal
possession of the Subleased Premises (and the furniture and fixtures described
in Section 35 of this Sublease) to Sublandlord in the condition required
pursuant to the terms of this Sublease. In the event of a sale or other transfer
of the interest of Sublandlord in the Xxxxxxxxx or the master leasing of
the
Building, of which the Subleased Premises form a part, Sublandlord shall
transfer the security to the vendee or lessee and Sublandlord shall thereupon
be
released by Subtenant from all liability for the return of such security
and
Subtenant agrees to look to the new Sublandlord 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 Sublandlord. 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 Sublandlord
nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
(b) In
lieu
of the cash security deposit provided for in Section 29(a) hereof,
Subtenant may at any time during the Term or upon the execution and delivery
of
this Sublease by the parties hereto deliver to Sublandlord and shall thereafter,
except as otherwise provided herein, maintain in effect at all times during
the
term hereof, a clean, irrevocable letter of credit, in form and substance
reasonably satisfactory to Sublandlord, (provided that the form of such letter
of credit shall be delivered to and approved by Sublandlord in draft form
prior
to its issuance), in the amount of the security required pursuant to this
Section 29, issued by a commercial bank reasonably satisfactory to
Sublandlord and having its principal place of business or its duly licensed
branch or agency in the City of New York where drafts on the letter of credit
may be presented for payment. Draws may be made under such letter of credit
without any additional instruments or documentation other than a simple draft.
Such letter of credit shall have an expiration date no earlier than the first
anniversary of the date of issuance thereof and shall be automatically renewed
from year to year unless terminated by the issuer thereof by notice to
Sublandlord given by certified or registered mail, return receipt requested
not
less than thirty (30) days prior to the expiration thereof. Except as otherwise
provided in this Section 29, Subtenant shall, throughout the term of this
Sublease deliver to Sublandlord, in the event of the termination of any such
letter of credit, replacement letters of credit in lieu thereof (each such
letter of credit and such extensions or replacements thereof, as the case
may
be, is hereinafter referred, to as a “Security Letter”) no later than thirty
(30) days prior to the expiration date of the preceding Security Letter.
The
term of each such Security Letter shall be not less than one (1) year and
shall
be automatically renewable from year to year as aforesaid. If Subtenant shall
fail to obtain any replacements of a Security Letter within the time limits
set
forth in this Section 29(b), Sublandlord may draw down the full amount of
the existing Security Letter and retain the same as security hereunder.
Subtenant shall have the right to substitute for any Security Letter then
being
held by Sublandlord a substitute Security Letter which satisfies all of the
requirements of this Section 29(b), provided that Sublandlord shall not be
obligated to relinquish the Security Letter then being held by Sublandlord
until
such new Security Letter has been delivered to Sublandlord. Should Sublandlord
be entitled to draw upon a Security Letter, the proceeds thereof may be applied
to the same extent as if a cash security deposit had been posted. Should
Sublandlord be entitled to draw upon a Security Letter, then within ten (10)
days of demand therefor, Subtenant shall provide either cash, a new Security
Letter or an amendment to the existing Security Letter so that the Sublandlord
shall be holding in cash security or the undrawn amounts of Security Letters,
the amount set forth above as the original security deposit.
-26-
(c) In
the
event of a sale, transfer or assignment of the Xxxxxxxxx, Sublandlord shall
have
the right to require Subtenant to deliver a replacement Security Letter naming
the new Sublandlord as beneficiary and, if Subtenant shall fail to timely
deliver the same within ten (10) Business Days after written request therefor,
to draw down the existing Security Letter and retain the proceeds as security
hereunder until a replacement Security Letter is delivered. Subtenant hereby
acknowledges and agrees that in connection with any transfer by Sublandlord
or
its successors or assigns hereunder of Sublandlord’s interest in the Security
Letter, and the delivery of a replacement Security Letter as provided herein,
Subtenant shall be solely liable to pay any transfer fees charged by the
issuing
bank to Sublandlord or the transferee in connection with any such transfer
of
the Security Letter, as Additional Rent hereunder, within twenty (20) days
after
delivery to Subtenant of an invoice therefor.
(d) Provided
Subtenant is not then in default beyond the expiration of any applicable
notice
and cure period provided herein for the cure thereof (if any), and further
provided that Subtenant has not been in default hereunder beyond the expiration
of any applicable notice and cure period provided herein for the cure thereof
(if any) at any time during the Term hereof, then, the amount of the Security
Deposit shall be reduced to twelve months of the then Fixed Rent upon the
earlier of (i) Subtenant
achieving revenues in excess of twenty million dollars, annualized revenue,
for
four (4) consecutive quarters; or (ii) receipt
by Sublandlord of twenty four (24) months of payment of Fixed Rent and
Additional Rent.
(e) After
the
sixtieth (60th)
month
following the Rent Commencement Date and provided that: (i) Subtenant
shall have annualized revenues exceeding Twenty Million Dollars
($20,000,000.00); (ii) Subtenant
is not then in default beyond the expiration of any applicable notice and
cure
period provided herein for the cure thereof (if any); (iii) Subtenant
has not been in default hereunder beyond the expiration of any applicable
notice
and cure period provided herein for the cure thereof (if any) at any time
during
the Term hereof, then, upon written request by Subtenant, the amount of the
Security Deposit shall be reduced to nine (9) months of the then Fixed
Rent.
30. POSSESSION.
If
Sublandlord is unable to give possession of the Subleased Premises on the
Rent
Commencement Date, Sublandlord shall not be subject to any liability for
failure
to give possession on said date and the validity of this Sublease shall not
be
impaired under such circumstances, nor shall the same be construed in any
wise
to extend the term of this Sublease, but, provided Subtenant is not responsible
for the inability to obtain possession, the rent payable hereunder shall
be
abated until after Sublandlord shall have given written notice that the
Sublandlord is able to deliver possession as required by the terms of this
Sublease. The provisions of this Article are intended to constitute “an express
agreement to the contrary” within the meaning of Section 223-a of the Real
Property Law.
-27-
31. INDEMNIFICATION
OF SUBTENANT.
Wherever
in the Xxxxxxxxx it is provided that the Overlandlord shall indemnify and/or
hold harmless the tenant thereunder, then, for purposes of incorporation
by
reference herein, Sublandlord shall indemnify and/or hold harmless Subtenant
only if, as and when and to the extent Sublandlord shall actually receive
any
monies, deductions, abatements or setoffs from the Overlandlord by reason
of
such indemnity or hold harmless agreement, and then only after deducting
the
reasonable costs, including, without limitation, reasonable attorneys’ fees and
disbursements (and/or the reasonable value of legal services rendered by
Sublandlord on behalf of itself in the case where a sophisticated tenant
would
have incurred outside attorneys’ fees), incurred by Sublandlord in obtaining
same, which net amounts shall be shared by Sublandlord, any other occupant
of
the Premises and Subtenant in proportion to each party’s actual damages incurred
by each of them by reason of the act or omission giving rise to the payment
of
such monies, deductions, abatements or setoffs. The provisions of the foregoing
sentence shall not be construed to limit or release Sublandlord’s liability
under such indemnity provisions for the wrongful acts or omissions of
Sublandlord and its officers, directors, agents, contractors and employees.
Wherever in the Xxxxxxxxx it is provided that the landlord thereunder shall
pay
to the tenant thereunder any sums received by the landlord thereunder as
proceeds of any insurance policies, then, for purposes of incorporation by
reference herein, Sublandlord shall pay such proceeds to Subtenant only if,
as
and when and to the extent that Sublandlord shall actually receive such proceeds
from the landlord under the Xxxxxxxxx, and then only after deducting the
reasonable costs, including, without limitation, reasonable attorneys’ fees and
disbursements (and/or the reasonable value of legal services rendered by
Sublandlord on behalf of itself in the case where a sophisticated tenant
would
have incurred outside attorneys’ fees) incurred by Sublandlord in obtaining
same, which net proceeds shall be shared by Sublandlord, any other occupant
of
the Premises and Subtenant in proportion to each party’s actual damages incurred
by each of them by reason of the act or omission giving rise to such insurance
proceeds. In all events no such monies, deductions, setoffs or insurance
proceeds shall be paid to Subtenant in excess of the loss or damage actually
incurred by Subtenant.
32. EXECUTION;
COUNTERPARTS.
This
Sublease shall not become binding upon Sublandlord or Subtenant, and Subtenant
shall have no rights with respect to the Subleased Premises for any period
on or
after the Commencement Date, either pursuant hereto or otherwise, unless
and
until Sublandlord and Subtenant shall each have executed and delivered a
fully
executed copy of this Sublease to each other. Notwithstanding the foregoing,
this Sublease may be executed in multiple counterparts which, when taken
together, shall be deemed to constitute one and the same
instrument.
-28-
33. STATUS
OF SUBTENANT.
Subtenant
hereby represents and warrants to Sublandlord: (i) that
it is a duly organized and validly existing corporation under the laws of
the
State of Delaware and it is qualified to do business in the State of New
York;
(ii) the
Subtenant’s financial statements provided to Sublandlord are true, complete,
correct and accurate in all material respects; (iii) the
obligations to be performed by Subtenant hereunder have been duly authorized
by
Subtenant by all requisite action and in accordance with its organizational
documents and operating agreements; and (iv) this
Sublease is valid and binding against the Subtenant in all respects. The
individual signing this Sublease on behalf of Subtenant hereby represents
and
warrants to Sublandlord that such individual has the power and authority
to bind
Subtenant to all of the terms hereof. This Sublease shall be interpreted
and
enforced under the laws of the State of New York. Subtenant does hereby agree
to
be subject to the jurisdiction and to the venue of the courts of the State
of
New York or the federal district court for the Southern District of New York
for
any action, suit or proceeding relating to this Sublease, and that service
may
be made upon Subtenant in accordance with the Notice provisions of this
Sublease.
34. INTENTIONALLY
OMITTED.
35. FURNITURE.
Subtenant
acknowledges that Sublandlord shall deliver possession of Subleased Premises
with the existing furniture in the Subleased Premises (excluding specifically,
Sublandlord’s trade fixtures, business equipment, computer systems, and
telephone system and employee’s furnishings, except as otherwise provided in
this Sublease). The existing furniture will remain the property of Sublandlord
at all times. Upon the Expiration Date, or the earlier termination of this
Sublease, it shall be Subtenant’s obligation to remove Subtenant’s other
furniture, fixtures, business equipment and employee possessions (i.e. other
than the furniture and fixtures in the Subleased Premises as of the delivery
of
possession to Subtenant) from the Subleased Premises and to deliver the
Subleased Premises and existing furniture in its present condition and repair
subject to reasonable wear and tear (and damage by fire or other casualty
excepted if Subtenant has properly insured same and provided the proceeds
of
such coverage are paid over the Sublandlord at the expiration or sooner
termination of this Sublease, unless Subtenant has used such proceeds to
replace
such furniture), in broom clean condition, and free of other personal property
and debris. Sublandlord has not and does not now make any representations
or
warranties, express or implied, with regard to such furniture and the Subtenant
agrees to accept same in its present “as is” condition, subject to normal wear
and tear between the date hereof and the Commencement Date. Subtenant shall
not
dismantle and/or remove the furniture provided hereunder except with
Sublandlord’s consent (and if consent is so granted the same shall be stored and
insured as reasonably required by Sublandlord at Subtenant’s cost and expense).
Attached hereto as Exhibit
B
and made
a part hereof is a furniture inventory identifying the furniture which is
owned
by Sublandlord and being made available to Subtenant pursuant to the terms
of
this Section 35.
36. SIGNAGE.
Except
to
the extent provided to other subtenants of the Building (which presently
includes a placard at the security desk), Subtenant shall not be entitled
to
signage in the Building lobby; provided, however, with the prior written
consent
of Sublandlord, not to be unreasonably withheld, conditioned or delayed,
Subtenant may adorn the easterly entranceways to the Subleased Premises with
a
sign consistent with the character and finish of the Building’s interiors (which
sign will be removed and any damage repaired at Subtenant’s sole cost and
expense upon the Expiration Date or earlier termination of this Sublease).
Notwithstanding the foregoing, if and to the extent other subtenants of the
Building that are not Affiliates of Sublandlord are provided signage in the
lobby, Subtenant will be provided with similar signage. Sublandlord shall
provide a proportionate share of Sublandlord’s directory listings rights of the
Building’s directory system.
-29-
37. HOLDOVER.
Supplementing
and modifying Article 34 of the Xxxxxxxxx which is incorporated in this
Sublease by reference pursuant to Section 3(a) of this Sublease, in
addition to and not in limitation of any and all rights and remedies Sublandlord
shall have in the event of a holdover by Subtenant beyond the Expiration
Date or
earlier termination of this Sublease, Subtenant shall be liable to Sublandlord
for any direct consequential losses, damages, claims, costs, fees and/or
expenses occasioned as a result of Subtenant remaining in
possession.
38. RULES
AND REGULATIONS.
At
any
time and from time to time, Sublandlord shall have the right upon reasonable
prior notice to Subtenant to institute reasonable rules and regulations
governing the use and occupancy of the Subleased Premises and the common
areas
of the Building to which Subtenant has access, the use of the Building Systems
and the use of vendors servicing Subtenant; provided all such rules shall
be
enforced in a non-discriminatory manner against all other subtenants of the
Building who are not Affiliates of Sublandlord. Sublandlord covenants that
the
initial rules and regulations will be substantially comparable with those
of
other first class office buildings in the Times Square area (i.e. 3 and 5
Times
Square).
39. QUIET
ENJOYMENT.
Sublandlord
covenants that during the term of this Sublease, Subtenant shall have quiet
and
peaceable possession of the Subleased Premises, without hindrance or molestation
by Sublandlord or any person claiming through or under Sublandlord, subject
to
the terms, covenants, conditions and provisions of this Sublease, the Xxxxxxxxx,
any Superior Lease (as defined in the Xxxxxxxxx), any Superior Mortgage (as
defined in the Xxxxxxxxx), and all covenants, conditions, restrictions,
easements, encumbrances, agreements, documents, and instruments now of
record.
40. DAMAGE
AND DESTRUCTION.
Anything
in this Sublease to the contrary notwithstanding, (a) in
the event of damage or destruction to the Subleased Premises or the material
services relating thereto (i.e., heat, air conditioning, elevator service,
electricity and water) or the means of ingress or egress therefrom by fire
or
other casualty, whether to the Building or otherwise (collectively, “Casualty”)
and Sublandlord or Overlandlord has not substantially completed its portion
of
the restoration of the affected portion of the Subleased Premises to
substantially its condition immediately prior to the Casualty (excepting
any
leasehold improvements made by Subtenant) within 270 days from the occurrence
of
such Casualty (and provided access to the Subleased Premises is also restored),
then the Subtenant may elect to terminate this Sublease on notice to the
Sublandlord at any time after such 270 day period and before the completion
of
such restoration, or (b) if
the Casualty shall occur in the last eighteen (18) months of the term of
this
Sublease, then, provided the Casualty was not caused by the uninsurable acts
or
omissions of Subtenant, its partners, officers, directors, employees, agents,
contractors, representatives, invitees, permitted assigns, or affiliates,
Subtenant may terminate this Sublease by written notice to Sublandlord within
30
days following the receipt of notice by Sublandlord that such restoration
cannot
be completed within the 270-day period. Such notice by Sublandlord shall
be
given within 45 days of the Casualty. If Subtenant elects to terminate under
this provision, this Sublease shall terminate on the date of the occurrence
of
the Casualty as the effective date of termination. Within 30 days of the
date
that Subtenant has delivered the foregoing notice of termination, Subtenant
shall vacate and surrender possession of the Subleased Premises, Fixed Rent,
Additional Rent and other amounts payable under this Sublease shall be prorated
as of such effective date and the parties shall have no further obligations
hereunder. A determination as to the time necessary to substantially restore
the
Subleased Premises shall be made promptly after such occurrence by a licensed,
reputable general contracting firm or architect, and if such contractor or
architect shall determine that the Subleased Premises cannot be restored
within
such 270-day period, Subtenant may terminate this Sublease.
-30-
41. NO
RECORDING.
Subtenant
shall not record this Sublease or any memorandum of this Sublease. If Subtenant
records this Sublease or any memorandum of this Sublease, the Subtenant shall
be
deemed at Sublandlord’s option to have committed an incurable default.
Sublandlord may then record a “Notice of Termination” of this Sublease, which
shall be effective without Tenant’s signature.
THE
BALANCE OF THIS PAGE LEFT INTENTIONALLY BLANK
-31-
IN
WITNESS WHEREOF, Sublandlord and Subtenant have hereunto executed this Sublease
as of the day and year first above written.
| SUBLANDLORD: | ||
| LIVE NATION WORLDWIDE, INC. f/k/a | ||
| SFX ENTERTAINMENT, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name: Xxxxx Xxxxxxx |
||
| Title: Executive Vice President and Chief Accounting Officer | ||
| SUBTENANT: | ||
|
FLAGSHIP
PATIENT ADVOCATES, INC.
|
||
| |
|
|
| By: | /s/ Xxxx X. Xxxxx | |
|
Name: Xxxx X. Xxxxx |
||
| Title: Chairman and Chief Executive Officer | ||
-32-
