EXHIBIT 10.23
SUBLEASE
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This Sublease (the "Sublease") is dated as of Nov 15th, 1999, and is by and
between Thyssen Dover Elevator, a Delaware corporation ("Tenant") and
XxxxXxxxxx.xxx, a Delaware corporation ("Subtenant"). Tenant, as Dover Elevator
Company, entered into a lease (the "Lease") with Yarrow Bay Office I Limited
Partnership, as landlord ("Landlord"), dated January 7th, 1998, regarding
premises known as Xxxxx 000 & Xxxxx 000, (the "Premises") located at The Plaza
at Yarrow Bay (Building I) (the "Building"). A copy of the Lease is attached
hereto as Exhibit A and incorporated herein by this reference.
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The parties hereto have agreed that Tenant shall sublet the Premises to
Subtenant. The parties agree as follows:
1. Premises. Tenant hereby subleases to Subtenant the entire Premises,
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consisting of 9157 rentable square feet, more or less, of the space on the 2nd
floor of the Building, as delineated on the floor plan attached hereto as
Exhibit B. Neither Subtenant nor Tenant shall commit, or permit to be committed,
any occurrence, act or event which would violate any term or condition of the
Lease.
2. Term. This Sublease shall be for a term of eight years and three
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months, beginning on November 15, 1999 (the "Commencement Date") and ending on
February 14, 2008, unless sooner terminated pursuant to the terms of this
Sublease or pursuant to the Lease. Notwithstanding the Commencement Date, if for
any reason Tenant cannot deliver possession of the Premises to Subtenant on the
Commencement Date, Tenant shall not be subject to liability therefor, nor shall
such failure affect the validity of this Sublease or obligations of the
Subtenant hereunder or extend the term hereof, but in such case Subtenant shall
not be obligated to pay rent until possession of the Premises is tendered to
Subtenant. Notwithstanding the foregoing, if Tenant has not delivered possession
of the Premises to Subtenant within ninety (90) days after the Commencement
Date, then Subtenant may, at Subtenant's option, by notice in writing to Tenant
within ten (10) days thereafter, terminate this Sublease. If this Sublease is so
terminated, all parties shall be discharged from all obligations hereunder, and
Tenant shall refund to Subtenant any prepaid rent or security deposit paid by
Subtenant. If Tenant permits Subtenant to occupy the Premises prior to the
Commencement Date, such occupancy shall be subject to all the provisions of this
Sublease. Early possession shall not advance the termination date of this
Sublease.
3. Rent. Subtenant shall pay direct to Landlord, with a copy of such
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payment to Tenant, rent at the triple net (NNN) rates set forth for the
following periods:
Month 01 - 03 (11/15/99 -02/14/00) $ 17,169.38
Month 04 - 15 (02/15/00 -02/14/01) $ 17,932.46
Month 16 - 27 (02/15/01 -02/14/02) $ 18,695.54
Month 28 - 39 (02/14/02 -02/14/03) $ 19,458.63
per month, in advance on the first day of every month during the term hereof,
without deduction or offset. Tenant has already paid the rent for the period
11/1/99 through 11/30/99, and Subtenant shall reimburse Tenant for that portion
of the rent for the period 11/16/99 through 11/30/99.
Rent for the period of months forty (40) through ninety-nine (99) shall be the
then fair market rent mutually agreed upon by Tenant and landlord, but in no
event shall be less than $20,221.71 per month. Landlord's acceptance of rent
from Subtenant shall not be deemed a waiver of any rights of the Landlord under
the Lease.
4. Use. The Premises shall be used for general office and related purposes
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consistent with the operation of a first class office building and for no other
purpose.
5. Incorporation of Lease Terms. All the terms and conditions contained in
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the Lease, except for Sections 3.1 of the Lease, are made terms and conditions
of this Sublease (with each reference in the Lease to Landlord and Tenant to be
deemed to refer in this Sublease to Tenant and Subtenant, respectively).
Subtenant shall not have any right to exercise any options provided to Tenant in
the Lease without Tenant's prior written consent, which consent may be withheld
in Tenant's sole discretion. Tenant hereby warrants that there is not uncured
breach or default of the Lease by Tenant, and Tenant covenants not to commit any
act or omission that is or may result in, a breach or default of the Lease.
6. Condition of Premises. Subtenant has inspected the Premises and accepts
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them in their present condition, AS IS, without warranty of any kind or nature,
express or implied. Subtenant hereby assumes all of Tenant's obligations under
the Lease (except as provided otherwise under Section 5 above, and except as
otherwise set forth in this Sublease), and agrees to perform all Tenant's
obligations under the Lease, as modified hereunder. In case of a conflict
between the Sublease and the Lease, the Sublease shall control.
7. Assignment. Subtenant shall not assign this Sublease nor sublet the
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Premises in whole or in part.
8. Additional Charges. Subtenant shall pay to Landlord, with copy of such
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payment to Tenant, in advance on the first day of each month hereunder, without
deduction or offset, that portion of additional rent or other sums owed under
the Lease, including without limitation under Sections 3.3 and 5.1 thereof. Any
rent or other sums payable by Subtenant under this Section 8 shall be deemed
additional rent and shall be collectible as such. If Tenant shall receive any
refund under this Section 8, Subtenant shall be entitled to the return of so
much of the refund as shall be attributable to prior payments by Subtenant.
Landlord's acceptance of additional rent from Subtenant shall not be deemed a
waiver of any rights of the Landlord under the Lease.
9. Limitation. Notwithstanding anything contained herein to the contrary,
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the only services or rights to which Subtenant is entitled hereunder are those
to which Tenant is entitled under the Lease, and for all such services and
rights Subtenant shall look directly to Landlord under the Lease.
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10. Indemnity. Subtenant shall neither do nor permit anything to be done
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which would cause the Lease to be in default, or to be terminated or forfeited
by reason of any right of termination or forfeiture reserved or vested in
Landlord under the Lease. Subtenant shall indemnify and hold Tenant harmless
from and against all claims, liabilities, losses and expenses (including
attorneys fees) of any kind whatsoever by reason of any breach or default on the
part of Subtenant by reason of which the Lease may be terminated or forfeited.
11. Security Deposit. Subtenant has paid Tenant on the execution and
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delivery of this Sublease the sum of twenty thousand dollars ($20,000.00) as
security for the full and faithful performance of the terms, covenants and
conditions of this Sublease on the part of Subtenant to be performed or
observed, including but not limited to payment of rent and additional rent in
default or for any other sum which Tenant may expend or be required to expend by
reason of Subtenant's default. If Subtenant shall fully and faithfully comply
with all the terms, covenants and conditions of this Sublease on the part of
Subtenant to be performed or observed, the security deposit, or any unapplied
balance thereof, shall be returned to Subtenant within thirty (30) days after
the time fixed as the expiration of the demised term and after the removal of
Subtenant and surrender of possession of the Premises to Tenant.
12. Entire Agreement. All prior understandings and agreements between the
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parties are merged within this Sublease, which alone fully and completely sets
forth the understanding of the parties; and this Sublease may not be changed or
terminated orally or in any manner other than by an agreement in writing which
is signed by the party against whom enforcement of the change or termination is
sought.
13. Notices. Any notice or demand which either party may or must give to
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the other hereunder shall be in writing and delivered personally or sent by
registered mail, postage prepaid, or sent by facsimile, addressed, if to Tenant,
as follows:
Thyssen Dover Elevator
X.X. Xxx 0000
Xxxxxxx, XX 00000
Ph. No: 000-000-0000
Fax No.: 000-000-0000
and if to Subtenant, as follows:
XxxxXxxxxx.xxx, Inc.
Attention: Facilities Manager
00000 XX Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Ph. No.: 000-000-0000
Fax No.: 000-000-0000
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XxxxXxxxxx.xxx, Inc.
Attention: General Counsel
00000 XX Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Ph. No.: 000-000-0000
Fax No.: 000-000-0000
Either party may, by notice in writing, direct the future notices or demands be
sent to a different address. Subtenant agrees to immediately notify Tenant in
the manner set forth above of any notice that Subtenant receives from Landlord
concerning the Premises, the Building, the Lease, or this Sublease. Notices
delivered personally shall be deemed given when delivered; notices sent by
facsimile shall be deemed given upon electric confirmation of successful
transmission; and notices sent by mail shall be deemed given three (3) business
days after being placed in the mail.
14. Successors and Assigns. The covenants and agreements herein contained
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shall be binding upon and shall inure to the benefit of Tenant, Subtenant, and
their respective executors, administrators, successors and assigns.
15. Agency Disclosure and Commission. Tenant and Subtenant each represent
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and warrant to the other that neither has employed, retained or consulted any
broker, agent, or finder in carrying on the negotiations in connection with this
Agreement or the purchase and sale referred to herein. Tenant and Subtenant
shall each indemnify and hold the other harmless from and against any and all
claims, demands, causes of action, debts, liabilities, judgments and damages
(including costs and reasonable attorneys' fees incurred in connection with the
enforcement of this indemnity) which may be asserted or recovered against the
indemnified party on account of any brokerage fee, commission or other
compensation arising by reason of the indemnitor's breach of this representation
and warranty.
16. Personal Property. Subtenant has agreed to purchase certain tangible
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assets listed on Exhibit "C", and receipt of payment for these assets of
$233,700.00 is a condition precedent to the execution of this sublease. All
assets are sold in an AS-IS condition, and Subtenant has inspected and accepts
this condition. Tenant and Subtenant agree and covenant to sign any and all
additional documents and other instruments necessary to carry out the terms of
this Section 16.
17. Parking. Subtenant is entitled to all of the parking rights granted to
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Tenant under, and set forth in, the Lease.
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Dated this 15th day of November, 1999.
TENANT:
Thyssen Dover Elevator
By: /s/ Xxxx XxXxxxxxx
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Name: Xxxx XxXxxxxxx
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Title: President & COO
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SUBTENANT:
XxxxXxxxxx.xxx
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: VP & Corporate Secretary
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