Exhibit 10.3
ITT CORPORATION
Sublandlord
and
GENESIS DIRECT SECAUCUS OPERATIONS, LLC
Subtenant
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SUBLEASE AGREEMENT
DATED AS OF FEBRUARY , 1997
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000 Xxxxx Xxxxx
Xxxxxxx xx 0xx, 0xx and 4th Floors
Secaucus, New Jersey
TABLE OF CONTENTS
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1. Sublease Premises/Use................................................. 2
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2. Term.................................................................. 2
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3. Rent: Sublease Fixed Rent: Sublease Additional Rent................... 5
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4. Real Estate Tax and Operating Expense Payments........................ 7
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5. Applicability of Xxxxxxxxx Provisions.................................12
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6. Subordination.........................................................19
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7. Quiet Enjoyment.......................................................20
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8. Condemnation..........................................................20
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9. Assignment, Subletting, and Mortgaging................................22
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10. Damage and Destruction................................................26
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11. Security..............................................................28
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12. Electric/Gas Energy...................................................31
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13. Parking...............................................................32
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14. Definition of Sublandlord.............................................32
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15. Notices...............................................................33
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16. Broker................................................................34
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17. Inspection............................................................34
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18. Right of First Offer..................................................34
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19. Subtenant's Work/Sublandlord's Work...................................43
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20. Sublandlord's Systems and Equipment...................................49
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21. Building Name.........................................................49
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22. Representations. Warranties and Covenants of Sublandlord..............49
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23. Representations. Warranties and Covenants of Subtenant................51
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24. Roof..................................................................52
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25. Subtenant's Right to Provide Cleaning Services........................52
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26. Capitalized Terms.....................................................53
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EXHIBITS
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Exhibit A Xxxxxxxxx
Exhibit B-I Floor Plan of First Floor Space
Exhibit B-2 Floor Plan of Third Floor Space
Exhibit X-0 Xxxxx Xxxx xx Xxxxxx Xxxxx Space
Exhibit C Genesis Indemnity Letter
Exhibit D Inside Parking Area
Exhibit E Outside Parking Area
Exhibit F Sublandlord's Personal Property
Exhibit G Roof Space
Exhibit H Letter of Credit
Exhibit I Preliminary Plans
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (hereinafter "Sublease"), made as of this 14th
day of February, 1997 (hereinafter the "Effective Date"), between ITT
CORPORATION (formerly known as ITT Destinations, lnc.), a Nevada corporation,
with its offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter "Sublandlord"), and GENESIS DIRECT SECAUCUS OPERATIONS, LLC, a
Delaware limited liability company, with its offices at Xxx Xxxxxx Xxxxx, Xxxxx
000, Xxxx Xxx, Xxx Xxxxxx 00000-0000 (hereinafter "Subtenant").
WITNESSETH:
WHEREAS, Sublandlord is the tenant under that certain Agreement of
Lease dated March 28, 0000, xxxxxxx Xxxxxx Xxxx Associates (hereinafter
"Overlandlord"), as landlord, and ITT Corporation, a Delaware corporation
(hereinafter "Original Tenant"), as tenant, as amended by Letter Agreement dated
March 28, 1989, First Lease Modification Agreement dated November 17, 1989,
Letter Agreement dated March 26, 1991 and Second Lease Modification Agreement
dated March 31, 1992 (said Agreement of Lease, Letter Agreement dated March 28,
1989, First Lease Modification Agreement, Letter Agreement dated March 26, 1991
and Second Lease Modification Agreement are annexed hereto as Exhibit A and are
hereinafter the "Xxxxxxxxx"), which Xxxxxxxxx demised portions of the first
(1st), third (3rd) and fourth (4th) floors (hereinafter the "Xxxxxxxxx
Premises") of the building (hereinafter the "Building") known as 000 Xxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx, in the Plaza at Xxxxxx Meadow and certain
appurtenant parking and other rights as described in the Xxxxxxxxx.
WHEREAS, Sublandlord is the successor-in-interest to Original Tenant
as tenant under the Xxxxxxxxx pursuant to Lease Assignment Agreement dated as of
December 15, 1995, between Original Tenant and Sublandlord.
WHEREAS, Subtenant herein desires to sublet from Sublandlord the
following portions of the Xxxxxxxxx Premises: (a) the entire portion of the
first (1st) floor of the Xxxxxxxxx Premises containing 4,529 square feet of
Gross Floor Space and being more particularly described in Exhibit B-I annexed
hereto; (b) the entire portion of the third (3rd) floor of the Xxxxxxxxx
Premises containing 37,103 square feet of Gross Floor Space and being more
particularly described in Exhibit B-2 annexed hereto; and (c) that portion of
the fourth (4th) floor of the Xxxxxxxxx Premises containing 60,833 square feet
of Gross Floor Space and being more particularly described in Exhibit B-3
annexed hereto (said premises being sublet hereunder are sometimes hereinafter
collectively referred to as the "Sublease Premises"), consisting of an aggregate
of 102,465 square feet of Gross Floor Space and Sublandlord is willing to sublet
the Sublease Premises upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and Ten Dollars
($10.00) and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, Sublandlord and Subtenant hereby covenant and
agree as follows:
1. Sublease Premises/Use. Sublandlord hereby leases to Subtenant and
Subtenant leases and hires from Sublandlord, the Sublease Premises as the same
are more particularly described in Exhibits X-0, X-0 and B-3 annexed hereto,
together with the right to (i) the exclusive use of parking spaces as set forth
in Paragraph 13 of this Sublease, (ii) the use of the roof of the Building as
set forth in Paragraph 24 of this Sublease, and (iii) the right to use in common
with Overlandlord, Sublandlord and other tenants in the Building and their
invitees, customers and employees, all lobby areas, stairways, elevators,
toilets and other Interior Common Areas in the Building, as well as the right to
use in common with Overlandlord, Sublandlord and other tenants in the Entire
Premises, their invitees, customers and employees, the peripheral roads/overpass
and Exterior Common Areas as set forth in Section 7.02 and 7.03 of the
Xxxxxxxxx; subject, however, to the provisions of Paragraph 13 of this Sublease.
The Sublease Premises shall be used by Subtenant for general and executive
office uses and attendant administration uses, and any other uses permitted
under the Xxxxxxxxx, and for no other purposes. Subtenant expressly covenants
and agrees with Sublandlord that the Sublease Premises may not be used by
Subtenant for any use or in any manner which shall violate any of the terms of
the Xxxxxxxxx.
2. Term. (a) The term of this Sublease (hereinafter the "Term") shall
commence on the date (hereinafter the "Sublease Commencement Date") which is the
latest to occur of (i) the date that this Sublease has been fully executed and
delivered to Sublandlord and Subtenant, and (ii) the date Overlandlord shall
have (1) granted written consent (hereinafter the "Consent") to this Sublease
and to Subtenant's Work (as hereinafter defined) as set forth on the final plan
(as hereinafter defined) and (2) agreed (hereinafter the "Restoration Waiver")
in writing that Sublandlord shall have no obligation at the expiration of the
Xxxxxxxxx to remove Subtenant's Work encompassed within the final plan and
restore the Sublease Premises to their condition prior to the making of such
Subtenant's Work, and shall end at 11:59 p.m. on March 30, 2005 (hereinafter the
"Sublease Expiration Date"), or on such earlier date upon which this Sublease
shall terminate for any reason. Subject to the provisions of the next succeeding
sentence, Sublandlord shall deliver the Sublease Premises to Subtenant on the
Sublease Commencement Date, free of all tenancies (except for the Xxxxxxxxx) and
occupants. Except as otherwise expressly provided in subsection (d) of this
Paragraph 2, notwithstanding that the Sublease Commencement Date shall have
occurred, Subtenant shall have no right to occupy the Sublease Premises and
Sublandlord shall have no obligation to deliver the Sublease Premises to
Subtenant until the first of the following events shall occur (the first to
occur of such events being hereinafter referred to as the "Sublease Occupancy
Event"): (i) Subtenant shall have notified Sublandlord in writing that it has
obtained the Grant (as hereinafter defined) and (ii) Subtenant shall have failed
to timely exercise Subtenant's Termination Right (as
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hereinafter defined). If within thirty (30) days following the Effective Date,
Sublandlord shall have failed to obtain the Consent and the Restoration Waiver
from Overlandlord, Subtenant shall have the right to terminate this Sublease on
written notice to Sublandlord given within ten (10) business days after the
expiration of said thirty (30) day period, unless prior to the exercise by
Subtenant of such right of termination Sublandlord shall have obtained the
Consent and the Restoration Waiver. In addition, if Sublandlord fails to make
available possession of the Sublease Premises to Subtenant in accordance with
the terms hereof on the latest to occur of (a) the date Sublandlord delivers the
Consent and the Restoration Waiver to Subtenant, and (b) the date on which the
first of the following shall occur: (i) Subtenant shall have notified
Sublandlord that it has obtained the Grant, and (ii) March 20, 1997, provided
Subtenant has not exercised Subtenant's Termination Right prior to said date,
then, (i) Subtenant shall have the right to terminate this Sublease on written
notice to Sublandlord given within ten (10) business days after the latest to
occur of the dates described in (a) and (b) of this sentence above, unless prior
to the exercise by Subtenant of such right of termination Sublandlord shall have
made available to Subtenant such possession of the Sublease Premises. If the
Sublease is not terminated by Subtenant pursuant to its right to do so under the
immediately preceding sentence, then, the Rent Commencement Date (as hereinafter
defined) shall be delayed one day for each day that Sublandlord fails to so make
available possession of the Sublease Premises to Subtenant from and after the
latest to occur of the dates described in (a) and (b) of said immediately
preceding sentence. Sublandlord may terminate this Sublease upon ten (10) days
written notice to Subtenant, if within thirty (30) days following the Effective
Date it is unable to obtain the Consent and the Restoration Waiver, unless prior
to the exercise by Sublandlord of such right of termination Sublandlord obtains
the Consent and the Restoration Waiver. If this Sublease shall so terminate as
provided in this subsection (a) of Paragraph 2, (a) this Sublease shall be
deemed null and void and of no further force or effect (except with respect to
the provisions of Paragraph 16 hereof which shall survive such termination), and
(b) Sublandlord shall promptly return to Subtenant any amount paid by Subtenant
upon Subtenant's execution of this Sublease for Sublease Fixed Rent.
(b) Subtenant shall have the right (herein "Subtenant's
Termination Right"), by written notice of termination given to Sublandlord on or
after March 14, 1997, but prior to March 20, 1997, to terminate this Sublease if
the New Jersey Economic Development Authority's Board (hereinafter the "Board")
shall not have approved by March 14,1997 the award of the State of New Jersey
Business Employment Incentive Program Grant (herein the "Grant") to Subtenant
with respect to Subtenant's use of the Sublease Premises for its business use,
provided, however, Subtenant's Termination Right shall automatically expire if
the Board shall approve the Grant prior to the exercise by Subtenant of
Subtenant's Termination Right. If this Sublease shall so terminate (a) this
Sublease shall be deemed null and void and of no further force or effect, except
with respect to the provisions of Paragraph 2(d) and 16 hereof which shall
survive such termination, and (b) Sublandlord shall promptly return to
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Subtenant any amount paid by Subtenant upon the Subtenant's execution of this
Sublease for Sublease Fixed Rent.
(c) The award of the Grant, pending the approval of the
Board, is a material factor in Subtenant's expansion plans for New Jersey.
Subtenant would not expand to the Sublease Premises but for the award of this
Grant. Subtenant agrees to use reasonable efforts to pursue the obtaining of the
Board's approval of the Grant, and to advise Sublandlord promptly as to whether
it obtained or failed to obtain the Board's approval of the Grant.
(d) If the Sublease Commencement Date shall have occurred but
the Sublease Occupancy Event shall not have occurred, then Subtenant shall have
the right, upon one (1) days prior written notice (hereinafter the "Early
Occupancy Notice") to Sublandlord, to occupy the Sublease Premises for the
limited purpose of performing Subtenant's Work (as said term is hereinafter
defined), provided that Subtenant delivers to Sublandlord, concurrently with the
giving of the Early Occupancy Notice, (1) a letter of indemnity (hereinafter the
"Genesis Indemnity Letter") from Genesis Direct, Inc. to Sublandlord in the form
of Exhibit C annexed hereto, (2) a certified copy of a resolution of the Board
of Directors of Genesis Direct, Inc. authorizing the execution and delivery to
Sublandlord of the Genesis Indemnity Letter and an incumbency certificate with
respect to officer(s) of Genesis Direct, Inc. executing the Genesis Indemnity
Letter, and (3) a Two Million Dollar ($2,000,000) unconditional, irrevocable
commercial letter of credit, in form and substance reasonably satisfactory to
Sublandlord (the form attached hereto as Exhibit H is satisfactory to
Sublandlord), and issued by a member bank of the New York Clearinghouse
Association acceptable to Sublandlord in its reasonable discretion, payable upon
presentation by Sublandlord to such bank at its counters in New York City of a
sight draft, without presentation of any other documents, statements or
authorizations, which letter of credit shall provide for the continuance of such
credit for the period of at least ninety (90) days from the date of its delivery
to Sublandlord. If the Subtenant shall exercise Subtenant's Termination Right,
Sublandlord shall have the right to draw on such letter of credit at sight for
the full sum thereof. Sublandlord shall have the right to retain the full
proceeds of the letter of credit as liquidated damages for the damage incurred
by Sublandlord as a result of the exercise by Subtenant of Subtenant's
Termination Right and arising from the performance of all or a portion of
Subtenant's Work, including, without limitation, (a) any damage done to the
Sublease Premises as a result of the performance of Subtenant's Work, (b) the
cost to Sublandlord of restoring the Sublease Premises, (c) loss by Sublandlord
of rental that could have been earned with respect to the Sublease Premises had
the Term of the Sublease not been terminated by Subtenant, and (d) loss by
Sublandlord of rental that could have been earned with respect to the Sublease
Premises during periods required to restore the Premises following Subtenant's
exercise of Subtenant's Termination Right. Sublandlord and Subtenant agree that
Sublandlord's actual damages in the event of Subtenant's performance of
Subtenant's Work (in whole or in part) and Subtenant's exercise of Subtenant's
Termination Right would be difficult or impossible to determine and that, after
negotiations, the proceeds of the letter of credit, to wit,
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$2,000,000, has been selected as Sublandlord's and Subtenant's best estimate of
Sublandlord's damages. Performance of Subtenant's Work is subject to compliance
with the provisions of Paragraph 19 of this Sublease and Article 15 of the
Xxxxxxxxx to the extent incorporated into this Sublease. Notwithstanding the
said letter of credit and the foregoing liquidated damages provision, Subtenant
shall remain responsible for all costs incurred for the performance of
Subtenant's Work and hereby agrees to indemnify and hold harmless Sublandlord
from and against any and all loss, cost, damage, expense or liability that
Sublandlord may incur by reason of Subtenant's failure to pay all costs incurred
for or with respect to the performance of Subtenant's Work. Except as
specifically provided in the next succeeding sentence, the $2,000,000 letter of
credit and the proceeds thereof shall not be Security Funds. The parties agree
that if a Sublease Occupancy Event shall occur and Subtenant's Termination Right
shall not have been exercised, Sublandlord shall return the $2,000,000 letter of
credit to Subtenant concurrently with the delivery to Sublandlord of the
Security Funds (as said term is hereinafter defined) and from and after the
occurrence of a Sublease Occupancy Event and until the Security Funds are so
delivered to Sublandlord, said $2,000,000 letter of credit shall be and shall
be deemed to be the Security Funds, limited in amount, however, to the sum as
specified in Paragraph 11 of this Sublease. Any controversy arising with respect
to the $2,000,000 letter of credit shall be decided by the United States
District Court for the Southern District of New York, which shall have exclusive
jurisdiction over such controversy, and the parties hereby consent to personal
jurisdiction and venue in that court. If Subtenant exercises the Subtenant's
Termination Right Sublandlord shall promptly refund to Subtenant any Sublease
Fixed Rent paid by Subtenant to Sublandlord on execution of this Sublease.
3. Rent: Sublease Fixed Rent: Sublease Additional Rent.
(a) Payment of Rent - Subtenant agrees to pay rent
(hereinafter the "Rent") for the Sublease Premises to Sublandlord, which at all
times during the Term shall consist of: (i) fixed rent (hereinafter "Sublease
Fixed Rent") which, for the period commencing on the two hundred tenth (210th)
day including and after the date that this Sublease has been fully executed and
delivered to Sublandlord and Subtenant, and the Consent has been granted
(hereinafter the "Rent Commencement Date"), to and including the Sublease
Expiration Date, shall be Twelve and 50/100 Dollars ($12.50) per square foot of
Gross Floor Space per annum (i.e., $1,280,812.50 per annum for 102,465 square
feet of Gross Floor Space) payable in equal monthly installments of One Hundred
Six Thousand Seven Hundred Thirty-Four and 38/100 Dollars ($106,734.38); and
(ii) additional charges (hereinafter the "Sublease Additional Charges") which
shall be all amounts that become payable by Subtenant to Sublandlord hereunder
other than the Sublease Fixed Rent. Subtenant shall pay to Sublandlord, as
Sublease Additional Charges, during the Term, Real Estate Taxes and Operating
Expenses as set forth in Paragraph 4 hereof.
(b) The Sublease Fixed Rent shall be payable in equal monthly installments,
each payable in advance on the first day of each and every calendar
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month of the Term and without deduction or offset, except as may otherwise be
provided herein, and, except that the first monthly installment due under this
Sublease shall be paid to Sublandlord on the execution hereof. If the Term
commences or ends on a day other than the first or last day, respectively, of a
calendar month, then the second and final monthly installments of Sublease Fixed
Rent shall be prorated in the proportion that the number of days this Sublease
is in effect during the first and last partial month bears to the total number
of days in such calendar month, and such prorated rent for the last partial
month of the Term shall be payable on the first day of such month.
(c) The Rent shall be paid in lawful money of the United
States to Sublandlord at its office at the address above set forth, or such
other place as Sublandlord shall designate by notice to Subtenant. Subtenant
shall pay the Rent promptly when due without notice or demand therefor (except
as to Subtenant Additional Charges of which Subtenant shall be notified) and
without any abatement, deduction or setoff for any reason whatsoever, except as
may be expressly provided in this Sublease. If Subtenant makes any payment to
Sublandlord by check, same shall be by check of Subtenant and Sublandlord shall
not be required to accept the check of any other Person, and any check received
by Sublandlord shall be deemed received subject to collection. Subtenant shall
assume the risk of lateness or failure of delivery of the mails, with respect to
payments made by Subtenant by mail, and no lateness or failure of the mails will
excuse Subtenant from its obligation to have made the payment in question when
required under this Sublease.
(d) No payment by Subtenant or receipt or acceptance by
Sublandlord of a lesser amount than the correct Rent shall be deemed to be other
than a payment on account, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Sublandlord may accept such check or payment without prejudice
to Sublandlord's right to recover the balance or pursue any other remedy in this
Sublease or at law provided.
(e) If Subtenant is in default in payment of Rent beyond the
expiration of any applicable grace and notice periods, Subtenant waives
Subtenant's right, if any, to designate the items to which any payments made by
Subtenant are to be credited and Sublandlord may apply any payments made by
Subtenant to such items as Sublandlord sees fit, irrespective of and
notwithstanding any designation or request by Subtenant as to the items to which
any such payments shall be credited.
(f) Any Sublease Additional Charge required of Subtenant by
Sublandlord shall be stated in a written notice to Subtenant from Sublandlord
and accompanied with reasonable supporting documentation and Subtenant shall
have fifteen (15) days from notice of such in which to make said payment;
provided, however, Real Estate Taxes and Operating Expenses shall be invoiced
and paid in accordance with the provisions of Paragraph 4.
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(g) All such sums payable by Subtenant to Sublandlord are
sometimes hereinafter collectively referred to as, and shall collectively
constitute, "rent" for all purposes hereunder, at law and in equity.
4. Real Estate Tax and Operating Expense Payments
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(a) Definitions. As used in this Sublease, the term "Real
Estate Taxes" shall have the meaning given to it and shall be calculated as
provided in the Xxxxxxxxx; the terms "Operating Expenses" and "Additional
Charges" shall have the respective meanings given to them in the Xxxxxxxxx; the
term "Sublease Operation Year" shall mean each consecutive twelve (12) month
period commencing January 1, 1997; the term "Sublease Base Year" shall mean the
Sublease Operation Year commencing January 1, 1997; the term "Subtenant's
Fraction" shall mean that fraction which is the proportion of the Gross Floor
Space of the Sublease Premises to the Gross Floor Space of the Xxxxxxxxx
Premises (i.e., .9169), if the Gross Floor Space of the Xxxxxxxxx Premises
should change during the Term of this Sublease, then Subtenant's Fraction shall
be adjusted accordingly and such adjustment shall pertain to all periods
subsequent to such change; and the term "Subtenant's Proportionate Shares"
shall mean the respective percentages obtained by multiplying by Subtenant's
Fraction (a), with respect to Real Estate Taxes, the respective percentages for
Tenant's Proportionate Share set forth in Exhibit K of the Xxxxxxxxx, as such
percentages were adjusted pursuant to the provisions of Paragraph 6 of the
Second Lease Modification Agreement constituting a part of the Xxxxxxxxx, and
(b) with respect to Operating Expenses and "Overlandlord's Electricity and Gas
Costs" (as said term is defined in Paragraph 12 of this Sublease), the
respective percentages for Tenant's Proportionate Share set forth in Exhibit L
of the Xxxxxxxxx, as such percentages were adjusted pursuant to the provisions
of Paragraph 6 of said Second Lease Modification Agreement. If there shall be a
further adjustment in Tenant's Proportionate Share by reason of any further
change in the Gross Floor Space of the Xxxxxxxxx Premises, there shall be an
appropriate adjustment to the percentages of Tenant's Proportionate Share for
purposes hereof as of the date of such change.
(b) Subtenant's Share of Costs - Subtenant shall pay, as
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Sublease Additional Charges, Subtenant's Proportionate Shares of the amounts by
which Additional Charges for Real Estate Taxes and Operating Expenses payable by
Sublandlord under the Xxxxxxxxx for any Sublease Operational Year subsequent to
the Sublease Base Year exceed the Additional Charges for Real Estate Taxes and
Operating Expenses payable by Sublandlord under the Xxxxxxxxx for the Sublease
Base Year. As an Operation Year under the Xxxxxxxxx and a Sublease Operation
Year under this Sublease include different fiscal periods (i.e., April 1 - March
31 Operation Year under the Xxxxxxxxx and January 1 - December 31 Sublease
Operation Year under this Sublease), it is agreed for purposes of this Sublease
that (i) Real Estate Taxes and Operating Expenses accruing during an Operation
Year under the Xxxxxxxxx shall be deemed to have accrued in equal monthly
amounts during such Operation Year and (ii) Additional Charges for Real Estate
Taxes and Operating
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Expenses payable by Sublandlord under the Xxxxxxxxx for any such Operation Year
shall be deemed to have been paid by Sublandlord in corresponding equal monthly
amounts over such Operation Year.
(c) For each Sublease Operation Year during the Term
subsequent to the Sublease Base Year, Sublandlord shall estimate Subtenant's
Sublease Additional Charges for Real Estate Taxes (which estimate may be changed
by Sublandlord from time to time, but not more than four (4) times per year) and
Subtenant shall pay to Sublandlord one-twelfth (1/12th) of Subtenant's Sublease
Additional Charges for Real Estate Taxes so estimated on the first day of each
month of such Sublease Operation Year in advance. If at any time Sublandlord
changes its estimate of Subtenant's Sublease Additional Charges for Real Estate
Taxes for the then current Sublease Operation Year or partial Sublease Operation
Year, Sublandlord shall give notice to Subtenant of such change and within
twenty (20) business days after such notice Sublandlord and Subtenant shall
adjust for any overpayment or underpayment during the prior months of the then
current Sublease Operation Year or partial Sublease Operation Year. After the
end of each Sublease Operation Year and after the end of the Term, Sublandlord
shall submit to Subtenant a statement in reasonable detail of Subtenant's actual
Sublease Additional Charges for Real Estate Taxes for such Sublease Operation
Year or partial Sublease Operation Year, and if Subtenant's actual Sublease
Additional Charges for Real Estate Taxes so stated for such Sublease Operation
Year are more or less than the amount paid therefor Subtenant shall pay to
Sublandlord the deficiency, or Sublandlord shall refund to Subtenant the excess,
within twenty (20) business days after submission of such statement. If
Subtenant is in default hereunder beyond the expiration of any applicable grace
and notice periods on the date any such payment to Subtenant is otherwise due,
payment of such refund will be suspended until such time, if any, that such
default is cured. The provisions hereof shall survive the expiration or sooner
termination of the Term.
(d) If Sublandlord shall receive a refund of Real Estate Taxes
for any Fiscal Tax Year subsequent to Fiscal Tax Year ending December 31, 1997,
Sublandlord at Sublandlord's election shall either pay to Subtenant, or permit
Subtenant to credit against subsequent payments under this Paragraph, an amount
equal to Subtenant's Proportionate Share (applicable to the category of Real
Property to which the refund related) of the refund, less Sublandlord's actual,
out-of-pocket reasonable costs and expenses, including, but not limited to,
third party, independent appraisal, accounting and legal fees of obtaining the
same, but in no event shall Subtenant be paid or credited with any share of such
refund in excess of amounts paid by Subtenant with respect to such refunded Real
Estate Taxes. There shall be an appropriate adjustment to the extent any part of
such fiscal tax year is outside of the Term of this Sublease.
(e) For each Sublease Operation Year during the Term
subsequent to the Sublease Base Year, Sublandlord shall estimate, based on
Overlandlord's estimates of Additional Charges for Operating Expenses,
Subtenant's Sublease
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Additional Charges for Operating Expenses (which estimate may be changed by
Sublandlord from time to time, based upon actual changes in Additional Charges
for Operating Expenses payable or to be payable pursuant to the provisions of
Section 6.03(b) of the Xxxxxxxxx) and Subtenant shall pay to Sublandlord
one-twelfth (1/12th) of Subtenant's Sublease Additional Charges so estimated on
the first day of each month of such Sublease Operation Year in advance. If at
any time Sublandlord changes its estimate of Subtenant's Sublease Additional
Charges for Operating Expenses for the then current Sublease Operation Year or
partial Sublease Operation Year as aforesaid, Sublandlord shall give notice to
Subtenant of such change and within twenty (20) business days after such notice
Sublandlord and Subtenant shall adjust for any overpayment or underpayment
during the prior months of the then current Sublease Operation Year or partial
Sublease Operation Year. Nothing contained herein shall be construed to limit
the right of Overlandlord from time to time, based upon actual changes in
Operating Expenses payable or to be payable pursuant to the provisions of
Section 6.03(b) of the Xxxxxxxxx, during any period to reasonably revise its
estimates of the expenses which are the subject of this Paragraph and to reflect
such revision by prospective adjustment in xxxxxxxx to Sublandlord in which case
Sublandlord shall be entitled to make a corresponding proportionate adjustment
in xxxxxxxx to Subtenant for Subtenant's monthly installments payable under this
Paragraph 4 over the remainder of the period. After the end of each Sublease
Operation Year and after the end of the Term, Sublandlord shall submit to
Subtenant a statement in reasonable detail of Subtenant's actual Sublease
Additional Charges for Operating Expenses for such Sublease Operation Year or
partial Sublease Operation Year, and if Subtenant's actual Sublease Additional
Charges for Operating Expenses so stated for such Sublease Operation Year are
more or less than the amount paid therefor Subtenant shall pay to Sublandlord
the deficiency, or Sublandlord shall refund to Subtenant the excess, within
twenty (20) business days after submission of such statement. If Subtenant is in
default hereunder beyond the expiration of any applicable grace and notice
periods on the date such payment is otherwise due, payment of such refund will
be suspended until such time, if any, that such default is cured. The provisions
hereof shall survive the expiration or sooner termination of the Term.
(f) (i) Each such statement given by Sublandlord pursuant to
subparagraph 4(c) or subparagraph 4(e), or with respect to any other Sublease
Additional Charges, shall be conclusive and binding upon Subtenant, unless
within thirty (30) days after the receipt thereof Subtenant shall notify
Sublandlord in writing that it disputes the correctness of the statement, and
within thirty (30) days thereafter shall specify in writing the particular
respects in which the statement is claimed to be incorrect. If such dispute is
not settled by agreement within thirty (30) days thereafter, either party may
submit the dispute to arbitration as provided in Article 36 of the Xxxxxxxxx
incorporated into this Sublease. Notwithstanding the foregoing, Subtenant may
not dispute any such statement on the basis of any incorrectness in the
statement given by the Overlandlord to Sublandlord pursuant to Section 6.02 or
Section 6.03 of the Xxxxxxxxx or with respect to any other Additional Charges
under the Xxxxxxxxx and any such dispute with respect thereto must be initiated
by Subtenant as provided in
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subparagraph 4(f)(ii) below. Subtenant shall, within twenty (20) days after
receipt of such statement, or, if later, the date of the payment for which the
statement is rendered, pay the Sublease Additional Charges in accordance with
Sublandlord's statement, without prejudice to Subtenant's right to dispute the
correctness of the statement or any item thereof and to have the same settled by
arbitration as aforesaid. If the dispute shall be determined in Subtenant's
favor, Sublandlord shall forthwith pay to Subtenant the amount of Subtenant's
overpayment resulting from compliance with Sublandlord's statement, together
with interest in the case of arbitration from the date of payment by Subtenant
to the date of refund by Sublandlord of the amount of the arbitration award at
the lowest of the prime rates or minimum commercial lending rates, however
described, for ninety (90) day loans in United States currency to the most
responsible and reliable commercial customers then being charged by Citibank,
N.A. or Chase Manhattan Bank in New York City.
(ii) Within fifteen (15) days after the receipt by Sublandlord of any
statement given by Overlandlord to Sublandlord pursuant to Section 6.02 or
Section 6.03 of the Xxxxxxxxx or with respect to any other Additional Charges
under the Xxxxxxxxx, Sublandlord shall deliver a copy of such statement to
Subtenant, and such statement shall be conclusive and binding upon Subtenant
unless within five (5) days after the receipt thereof, Subtenant shall notify
Sublandlord in writing that it disputes the correctness of such statement with a
direction to Sublandlord to send notice to Overlandlord that the statement is in
dispute, and within twenty (20) days thereafter Subtenant shall specify to
Sublandlord in writing the particular respects in which the statement is claimed
to be incorrect. Sublandlord shall, after receipt of such timely notices from
Subtenant and at the sole cost and expense of Subtenant, including without
limitation, actual, out-of-pocket reasonable costs and expenses for third party,
independent attorneys' fees and consulting costs incurred by Sublandlord,
dispute the correctness of such statement with Overlandlord pursuant to the
provisions of Section 6.04 of the Xxxxxxxxx. Sublandlord agrees that it will not
settle the dispute with respect to such statement without the consent of
Subtenant which consent Subtenant agrees, shall not be unreasonably withheld or
delayed. If the dispute is not settled within the period provided for under
Section 6.04 of the Xxxxxxxxx, then Sublandlord, may and, at the written request
of Subtenant timely received will, submit the dispute to arbitration as provided
in Article 36 of the Xxxxxxxxx. Any arbitration determination or award or
agreement made between Sublandlord and Overlandlord, with respect to such
dispute shall be binding upon Subtenant. Anything contained in this Paragraph
4(f)(ii) to the contrary notwithstanding, Subtenant shall have no right to
dispute any such statement if Subtenant is then in default under this Sublease
beyond the expiration of any applicable grace and notice periods. Whether or not
requested by Subtenant, Sublandlord shall have the right to dispute the
correctness of any such statement pursuant to Section 6.04 of the Xxxxxxxxx and
any agreement reached with respect to such dispute, whether as a result of
arbitration or otherwise shall be conclusive and binding upon Subtenant;
provided, however, that any such agreement, except any agreement reached as a
result of arbitration, shall be subject to approval by Subtenant, which
approval, Subtenant agrees, will not be unreasonably withheld or delayed.
10
(g) With respect to any amounts demanded as Sublease
Additional Charges by Sublandlord pursuant to this Sublease, Subtenant shall be
entitled to review Sublandlord's books, records and accounts relating to such
charges during regular business hours at Sublandlord's offices upon not less
than forty-eight (48) hours written notice to Sublandlord. Subtenant agrees to
bear the reasonable costs of duplicating and other expenses sustained by
Sublandlord by reason of Subtenant's review. Subtenant shall have the right to
request that Sublandlord examine the books and records of Overlandlord pursuant
to Section 6.05 of the Xxxxxxxxx, which examination may be conducted by
accountants approved by Sublandlord and Subtenant, at the sole cost and expense
of Subtenant. If Sublandlord shall also elect to examine Overlandlord's books
and records pursuant to Section 6.05 of the Xxxxxxxxx where Subtenant shall not
have requested that Sublandlord make such examination, the actual, out-of-pocket
reasonable costs of such examination shall be payable to the extent of any
refund or savings resulting therefrom before any credit or refund is provided to
Subtenant.
(h) If any Sublease Operation Year of the Term is less than a
full Sublease Operation Year, an appropriate adjustment will be made in each of
the elements used to calculate Sublease Additional Charges payable by Subtenant
pursuant to this Paragraph 4 for such Sublease Operation Year.
(i) If Subtenant's Proportionate Share (of the excess) for any
category of Real Estate Taxes or Operating Expenses shall be adjusted during any
Sublease Operation Year of the Term, Subtenant's Proportionate Share for the
affected category in that Sublease Operation Year shall be the weighted average
of all of Subtenant's Proportionate Shares for such category which existed
during that Sublease Operation Year, based on the number of months each such
Proportionate Share existed during the Sublease Operation Year.
(j) With respect only to Fiscal Tax Years occurring after the
Sublease Base Year, if requested by Subtenant in writing, Sublandlord shall, as
provided in Section 6.06 of the Xxxxxxxxx, promptly request Overlandlord in
writing to protest any Real Estate Taxes, assessment or levy on the Land,
Building, Exterior Common Areas or Peripheral Roads/Overpass (all as such terms
are defined in the Xxxxxxxxx) during the Term and execute and file a petition
with the Court having jurisdiction for a review thereof. All expenses incurred
by Sublandlord under the terms of said Section 6.06 of the Xxxxxxxxx by reason
of any such request by Subtenant shall be reimbursed by Subtenant to Sublandlord
within twenty (20) days after written demand therefor. To the extent such
expenses are deducted and recovered by Overlandlord from the savings, if any, in
Real Estate Taxes before distribution of proportionate shares under the
Xxxxxxxxx to Overlandlord, Sublandlord shall credit the amount of such deduction
from Sublease Fixed Rent thereafter accruing, limited however to the amount of
the reimbursement made by Subtenant to Sublandlord for such expenses.
11
5. Applicability of Xxxxxxxxx Provisions.
(a) In General - This Sublease is subject and subordinate to
the Xxxxxxxxx, the terms of which, except to the extent hereafter expressly
provided, are incorporated herein by this reference.
(b) Rights of Subtenant - Except as otherwise provided
herein, Subtenant hereby (i) covenants and agrees to perform all of the
obligations undertaken by Sublandlord with respect to the Sublease Premises and
(ii) shall, with respect to the Sublease Premises, be entitled to the benefit of
the provisions of the Xxxxxxxxx to the extent applicable hereto and/or the other
provisions of this Sublease, which are for the benefit of the "Tenant"
thereunder, provided that Sublandlord shall have the exclusive right to enforce
all "Tenant" rights under the Xxxxxxxxx, including the applicable provisions of
the Xxxxxxxxx incorporated herein as aforesaid.
(c) Performance of Xxxxxxxxx Obligations - Except to the
extent of those provisions of the Xxxxxxxxx that are herein expressly provided
to be inapplicable to this Sublease, Subtenant's agreement to perform the
obligations undertaken of Sublandlord under the Xxxxxxxxx shall be applicable
from the Sublease Commencement Date to the Sublease Expiration Date, with
Sublandlord being substituted for the "Landlord" and Subtenant being substituted
for the "Tenant" under the Xxxxxxxxx, and shall include all obligations and
liabilities under the Xxxxxxxxx insofar as they may relate to the Sublease
Premises, except that Sublandlord and Subtenant acknowledge, confirm, covenant
and agree that:
(i) the Sublease Term and Sublease Premises shall be as set
forth herein;
(ii) the term "Demised Premises" for the purposes of this
Sublease shall mean the Sublease Premises;
(iii) the liability of Sublandlord with respect to compliance
with any laws, regulations or Legal Requirements,
including, without limitation, under Article 12 and/or
Section 39.19 of the Xxxxxxxxx, shall be strictly
limited and relate only to the acts and omissions and
conduct of the Sublandlord or Sublandlord's agents,
servants, employees, contractors, subcontractors,
licensees, invitees, officers, directors, partners,
members and subtenants (other than Subtenant) and
Sublandlord shall have absolutely no obligation or
liability whatsoever under any environmental laws and
regulations or with respect to any Hazardous Materials
for the acts of any other person, party or entity;
12
(vi) Sublandlord shall have absolutely no liability or
obligation to indemnify, defend or hold harmless
Subtenant with respect to any acts or conduct or
omissions referred to in Xxxxxxxxx which shall be the
conduct of Overlandlord, Landlord's Representatives (as
such term is defined in the Xxxxxxxxx) or any other
person, party or entity other than Sublandlord and/or
Sublandlord's agents, servants, employees, contractors,
subcontractors, licensees, invitees, officers,
directors, partners, members and subtenants (other than
Subtenant);
(vii) (a) Without regard to the fact that the commencement
date of Subtenant's obligation to pay Additional
Charges for Operating Expenses is deferred until the
expiration of the Sublease Base Year, Subtenant
shall pay Sublandlord within twenty (20) days after
demand, costs incurred by Sublandlord and billed by
Overlandlord for (i) extra cleaning work in the
Sublease Premises required because of (a) misuse or
neglect on the part of Subtenant or its subtenants
or its or their employees or visitors, (b) use of
portions of the Sublease Premises for preparation,
serving, or consumption of food or beverages, data
processing or reproduction operations, private
lavatories or toilets, or other special purposes
requiring greater or more difficult cleaning work
than office areas, (c) interior glass partitions or
unusual quantity of interior glass surfaces, and (d)
non-Building standard materials or finishes
installed by Subtenant or at its request, (ii)
removal from the Sublease Premises of any refuse and
rubbish of Subtenant in excess of that ordinarily
accumulated in business office occupancy or, if
requested by Subtenant, at times other than
Overlandlord's standard cleaning times;
(b) Sublandlord shall not have any obligation to provide
or install any additional risers, feeders or other
equipment or service under this Sublease or the
Xxxxxxxxx; and
(c) If any charge payable by Sublandlord under the terms
of the Xxxxxxxxx as Additional Rent or otherwise,
for heat or air-conditioning service during non-
Business Hours, for any excess electrical use or for
other additional service provided by Overlandlord
is attributable to use by Subtenant or Subtenant's
request therefor, Subtenant shall be obligated to
pay the same directly to Overlandlord or to
reimburse Sublandlord for the same within twenty
(20) days after demand;
13
(viii) Subtenant shall have no right to resort to self-help
and in any instance where self help would be
available to Sublandlord, Subtenant's sole right
shall be to notify Sublandlord in writing of
Overlandlord's failure to provide services which
notice shall set forth such failures in reasonable
detail and Sublandlord shall thereafter (at
Subtenant's sole cost and expense) use reasonable
efforts to cause Overlandlord to restore such
service in accordance with subparagraph (xiv) of
this Paragraph 5;
(ix) no right of offset shall exist on the part of
Subtenant against Sublandlord for any act, conduct
or omission of Overlandlord or Landlord's
Representatives, except to the extent that a
corresponding right of offset shall actually exist
and be availed of by Sublandlord with respect to the
portions of the Sublease Premises in question in
favor of Sublandlord under the Xxxxxxxxx; Subtenant
agrees to promptly give written notice to
Sublandlord of any situation which shall entitle
Sublandlord to an offset under the Xxxxxxxxx which
relates to the Sublease Premises or any portion
thereof;
(x) Subtenant shall not have the right to commence any
proceeding or to take any other action to contest
the Real Estate Taxes for the Sublease Premises;
(xi) notwithstanding any provisions of the Xxxxxxxxx with
respect thereto, any grace period afforded to
Subtenant under this Sublease upon the occurrence of
any default or failure of performance on the part of
Subtenant shall expire five (5) days prior to the
expiration of the applicable grace period afforded
under the Xxxxxxxxx;
(xii) Sublandlord shall not have any obligation to install
any electric meters under Section 18.01 of the
Xxxxxxxxx and Subtenant shall not have any right to
install or have separate electric meters installed
in the Sublease Premises;
(xiii) notwithstanding the provisions of Section 7.05 of
the Xxxxxxxxx, Subtenant shall have no right to
restrict access to those portions of the Entire
Premises which are not included within the Sublease
Premises;
(xiv) in the event of any default (including, without
limitation, any default with respect to a warranty
or representation made by Overlandlord under the
Xxxxxxxxx) on the part of Overland lord, Subtenant
shall not have the right to commence any legal
action or proceeding or
14
take any other action against Overlandlord;
Subtenant's sole right shall be to give written
notice to Sublandlord specifying the defaults of
Overlandlord in question and requesting that the
Sublandlord make demand upon Overlandlord to
perform; and Sublandlord shall thereafter use
reasonable efforts in pursuing such action as may be
necessary in the reasonable judgment of Sublandlord,
whether in the form of legal action or proceedings
or arbitration proceedings or otherwise to cause
Overlandlord to perform, with any counsel or
representatives to be selected by Sublandlord and
satisfactory to Subtenant but at the sole cost and
expense of Subtenant, and that Subtenant agrees that
it shall indemnify and hold harmless Sublandlord
from any and all liabilities, including reasonable
attorneys' fees, court costs, fines and penalties
which Sublandlord incurs by reason thereof and,
within twenty (20) days after Sublandlord's request,
shall reimburse to Sublandlord such expenses, costs,
legal fees and other charges incurred in connection
therewith;
(xv) in the case of any matters for which the consent or
approval of Sublandlord is sought and the consent or
approval of Overlandlord is also required under the
terms of the Xxxxxxxxx, Sublandlord shall have no
liability if Overlandlord shall withhold or delay
its consent or approval, provided that Sublandlord
agrees to promptly transmit to Overlandlord any
requests for consent or approval and accompanying
documentation;
(xvi) any default or failure of performance by Subtenant
under any of the terms, provisions, covenants or
agreements contained in this Sublease shall
constitute a default under this Sublease permitting
Sublandlord, after the expiration of any relevant
grace and cure period, to exercise all rights and
remedies contemplated by the Sublease or available
at law or in equity;
(xvii) Sublandlord shall not be required to maintain any
insurance required to be maintained by Overlandlord
under the terms of the Xxxxxxxxx and all policies of
insurance maintained by Subtenant (except workers'
compensation) shall be separate policies and shall
name Overlandlord and Sublandlord as additional
insureds;
(xviii) the references in Section 15.04 and Article 24 of
the Xxxxxxxxx to "Tenant's Parking Area" shall, for
purposes of this Sublease, be deemed to mean
"Subtenant's Parking Area", and the thirty (30) day
period referred to in Section 24.03 of the Xxxxxxxxx
is hereby deemed to be a forty (40) day period;
15
(xix) Subtenant shall have no right to obtain or to
require that the Overlandlord or Sublandlord obtain
a separate non-disturbance and attornment agreement
with respect to this Sublease pursuant to Article 9
of the Xxxxxxxxx;
(xx) the terms "Fixed Rent" and "Additional Charges" as
used in Article 29 of the Xxxxxxxxx, shall, for
purposes of this Sublease, be deemed to mean,
respectively, "Sublease Fixed Rent" and "Sublease
Additional Charges";
(xxi) for purposes of this Sublease, the reference to
"Article 11" in Section 39.04 of the Xxxxxxxxx shall
be deemed to be a reference to Paragraph 9 of this
Sublease; and
(xxii) promptly following the occurrence of the
Commencement Date, Sublandlord, pursuant to Section
20.02 of the Xxxxxxxxx, will request that
Overlandlord provide cleaning services to the
Xxxxxxxxx Premises. Such notice shall request that
such cleaning services not be commenced until
Subtenant begins to occupy all or a part of the
Sublease Premises for its business purposes.
(d) Limitations of Sublandlord's Liability. Subtenant
covenants and agrees that Sublandlord shall have no obligation or liability to
Subtenant with respect to the following:
(i) to maintain, repair, replace or restore the
Building, the Entire Premises, the Common Areas and
for any improvements or structures therein;
(ii) to make available and/or provide any service or
services under or pursuant to the Xxxxxxxxx or to
remedy any failure of such service or service,
except to use reasonable efforts to make demands
upon Overlandlord as provided herein;
(iii) to cause the Sublease Premises, or the Building or
the Entire Premises, or the Common Areas to be
constructed, altered, maintained, repaired or
restored in accordance with the provisions of The
Americans with Disabilities Act (hereinafter the
"ADA") or any Environmental Laws or any statute or
regulation or perform any obligations with respect
thereto;
(iv) to remedy any non-compliance with Environmental Laws
or with respect to Hazardous Materials not caused by
Sublandlord or Sublandlord's agents, servants,
employees, contractors,
16
subcontractors, licensees, invitees, officers,
directors, partners, members, or subtenants (other
than Subtenant); and
(v) to provide any rights of access to the Sublease
Premises as contemplated by the Xxxxxxxxx.
Except as otherwise expressly provided herein, Subtenant covenants and agrees to
look solely to Overlandlord with respect to the performance of any and all of
the representations, warranties, covenants, agreements, obligations and
liabilities of "Landlord" under the Xxxxxxxxx incorporated herein by reference
or contemplated by this Sublease to be performed by Overlandlord.
(e) Xxxxxxxxx Provisions Not Applicable. Sublandlord and
Subtenant expressly acknowledge and agree that the following sections of the
Xxxxxxxxx shall not be applicable to this Sublease except as hereafter in this
Paragraph provided:
Agreement of Lease
Article 1 - Definitions - except as said definitions may be
applicable to other provisions of the Xxxxxxxxx which shall be
incorporated herein or such definitions are used in this Sublease;
Article 2 - Demise and Term
Article 3 - Rent
Section 4.01; Section 4.03 (provided, however, Sublandlord
agrees not to give Overlandlord its consent to use of the Building
outside the Demised Premises for any purpose other than general and
executive business offices and uses accessory to a first class office
building (i.e., restaurant, newsstand, etc.) without first obtaining
Subtenant's written consent thereto)
Article 5 - Preparation of Demised Premises
Article 6 - Tax and Operating Expense Payments
Section 7.03; Section 7.04
Article 8 - Security
Section 9.02; Section 9.03
Article 10 - Quiet Enjoyment
Article 11 - Assignment, Subletting and Mortgaging
Section 15.05
Article 18 - Electric / Gas Energy
Section 20.02 (as amended by Paragraph 1 of the First Lease
Modification Agreement) other than the first two sentences of the
first unnumbered paragraph of said Section 20.02 (the first sentence
of which begins with the words "Landlord shall cause the Demised
Premises"), the second unnumbered paragraph of said Section 20.02
(which unnumbered paragraph begins with the words "Landlord, its
cleaning contractor"), and the balance of the third unnumbered
paragraph of said Section 20.02 beginning with the fourth
17
sentence of said unnumbered paragraph (which sentence begins with the
words "Operating Expenses for each Operation Year");
Section 21.04 and the last sentence of Article 21 following
said Section
21.04;
Section 23.03
Article 25 - Eminent Domain
Section 26.02
Section 32.02
Article 33 - Broker
Article 34 - Notices
Section 39.10; Section 39.11
Section 39.13; Section 39.14; Section 39.16
Section 39.17; Section 39.18
Second Lease Modification Agreement
Sections 1 to and including Section 11.
(f) Exhibits to Xxxxxxxxx. Except to the extent of
provisions specifically incorporated into this Sublease from the Xxxxxxxxx by
reference, the Exhibits to the Xxxxxxxxx shall not be applicable.
(g) Demands on Overlandlord. Upon written request by
Subtenant, Sublandlord agrees to promptly and in good faith to make demand upon
Overland lord for the performance, for the benefit of the Sublease Premises and
Subtenant, of any obligations imposed upon Overlandlord by the applicable
provisions of the Xxxxxxxxx or to obtain any required consent and/or approval of
Overlandlord pursuant to the terms of the Xxxxxxxxx and Sublandlord will, as
permitted by law, use reasonable efforts to pursue the matter with due
diligence, including prosecution of suit if required by Subtenant, at
Subtenant's sole cost and expense (with all such fees and expenses to be
advanced by Subtenant to Sublandlord at Sublandlord's request) but by counsel
selected by Sublandlord and satisfactory to Subtenant and Subtenant shall
indemnify and hold harmless Sublandlord from any and all liabilities incurred
(including, without limitation, court costs and reasonable attorneys' fees) as a
result thereof. Notwithstanding anything herein contained to the contrary,
except as expressly provided herein, all dealings with Overlandlord concerning
matters pertaining to the Sublease Premises or the Xxxxxxxxx shall be by and
through Sublandlord only (notwithstanding the foregoing provisions of this
subparagraph, Subtenant shall have the right to request non-Business Hours
services provided by Overlandlord (i.e., after hours HVAC) directly from
Overlandlord if Overlandlord determines that such procedure is acceptable to
it). In the event that Sublandlord shall elect to terminate the Xxxxxxxxx
pursuant to Articles 24 or 25 or Section 39.19(g) of the Xxxxxxxxx entitling
Sublandlord to terminate the Xxxxxxxxx, a copy of Sublandlord's notice to the
Overlandlord shall be concurrently given to Subtenant and this Sublease shall
terminate on the day preceding the date therein specified as the date of
termination of the Xxxxxxxxx.
18
(h) No Liability for Non-Performance by Overlandlord.
Sublandlord shall not be liable for any act or failure to act caused by the
default of Overlandlord. Except as otherwise expressly provided herein,
Subtenant agrees that performance of the "Landlord's" obligations under the
applicable provisions of the Xxxxxxxxx incorporated herein by reference will be
required only of Overlandlord; and in no event shall any negligent act or
omission of Overlandlord be imputed to Sublandlord or result in the imposition
of liability upon Sublandlord for such negligent act or omission on the part of
Overlandlord.
(i) Abatement of and Offset Against Rent-Limitation.
Notwithstanding anything to the contrary contained in this Sublease or the
Xxxxxxxxx, Subtenant shall not be entitled to any abatement of or offset against
Rent hereunder for the failure of Overlandlord to supply services or perform any
obligation, unless Sublandlord shall receive an abatement of or offset against
rent or additional rent under the Xxxxxxxxx for such failure, in which case
Subtenant shall be entitled to an appropriate abatement or offset with respect
to the Rent payable hereunder. In no event shall any such abatement or offset
hereunder exceed, in the case of abatement, that amount allowed as abatement of
rent or additional rent under the Xxxxxxxxx with respect to the Sublease
Premises and, in the case of an offset, the amount expended by Subtenant
hereunder and permitted by the Xxxxxxxxx to be offset against rent or additional
rent thereunder with respect to the Sublease Premises.
(j) Defaults Caused By Subtenant. During the Term of this
Sublease, Subtenant further covenants not to violate any of the provisions of
the Xxxxxxxxx or to take or omit to take any action which shall place
Sublandlord in default under the terms and provisions of the Xxxxxxxxx.
(k) Rights of Sublandlord. Except as otherwise provided
herein, the rights of Sublandlord herein under the applicable provisions of the
Xxxxxxxxx incorporated herein by reference shall be the same as the rights of
Overlandlord (as Landlord) thereunder.
(I) Superseding Effect - If there is any conflict or
inconsistency between a provision of this Sublease and an applicable provision
of the Xxxxxxxxx as incorporated herein, the provisions of this Sublease shall
prevail.
6. Subordination.
(a) This Sublease is subject and subordinate to the Xxxxxxxxx
and to all ground leases and underlying leases of the Land and/or the Building
now or hereafter existing and to all mortgages with respect to which the
Xxxxxxxxx is or shall become subject and subordinate. This Paragraph shall be
self-operative and no further instrument of subordination shall be required.
Nevertheless, Subtenant shall within five
19
(5) business days after demand, execute any and all instruments reasonably
requested by Sublandlord to evidence such subordination.
(b) This Sublease shall also be subject to and Subtenant
accepts this Sublease as subject to any amendments and supplements to the
Xxxxxxxxx hereafter made between Sublandlord and Overlandlord, provided that any
such amendment or supplement to the Xxxxxxxxx will not prevent or adversely
affect the use by Subtenant of the Sublease Premises in accordance with the
terms of this Sublease, increase the obligations of Subtenant or materially
decrease its rights under this Sublease or in any other way adversely affect
Subtenant, shorten the Term of this Sublease or increase the Rental required to
be paid by Subtenant under the terms of this Sublease.
7. Quiet Enjoyment. Upon paying the Rent reserved hereunder and
observing and performing all of the covenants, conditions and provisions on
Subtenant's part to be observed and performed hereunder, Subtenant shall
peacefully and quietly have, hold and enjoy the Sublease Premises for the entire
Term, subject to all the provisions of this Sublease and the Xxxxxxxxx.
8. Condemnation.
(a) If the whole of the Building shall be taken by any public
or quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance subsequent to the commencement of
an action under such power of the whole of the Building in lieu thereof, this
Sublease shall terminate as of the date of vesting of title on such taking
(hereinafter the "Date of Taking"). If twenty-five percent (25%) or less of the
Gross Floor Space of the Sublease Premises shall be so taken or conveyed and the
remaining part, in Subtenant's reasonable judgment, is adequate for Subtenant's
operation thereat, this Sublease shall terminate only in respect of the part so
taken or conveyed as of the Date of Taking; provided, however, that if the
remaining part of the Sublease Premises is, in Subtenant's reasonable judgment,
inadequate for Subtenant's operation as of the Date of Taking, Subtenant shall
have the right to terminate this Sublease as to the remaining part upon notice
given to Sublandlord within twenty (20) days after the Date of Taking, said
termination to be effective on the last day of the month following the month in
which said notice is given. If more than twenty-five percent (25%) of the Gross
Floor Space of the Sublease Premises shall be so taken or conveyed, this
Sublease shall terminate only in respect of the part so taken or conveyed as of
the Date of Taking but either party shall have the right to terminate this
Sublease as to the remaining part upon notice given to the other party within
twenty (20) days after the Date of Taking, said termination to be effective on
this last day of the month following the month in which the notice is given.
(b) In addition to the right of termination of this Sublease
as aforesaid, if any parking spaces in Subtenant's Parking Area are so taken or
conveyed and in Subtenant's reasonable judgment the remaining parking spaces in
Subtenant's Parking Area are inadequate for Subtenant's operations in the
Sublease Premises, Subtenant
20
shall advise Sublandlord in writing of the number of additional parking spaces
(up to the number taken) needed to provide adequate parking to Subtenant, and if
Sublandlord and/or Overlandlord does not within twenty (20) days thereafter
provide such number of substitute spaces (i) elsewhere in the Entire Premises or
immediately adjacent thereto or (ii) in parking areas acceptable to Subtenant
with transportation to/from the Building and such substitute parking areas,
acceptable to Subtenant, Subtenant may by written notice to Sublandlord, either
terminate this Sublease in its entirety on the last day of the month following
the month in which said notice is given or be reimbursed by Sublandlord for
Subtenant's cost of providing alternative parking and/or transportation.
Following a substitution of spaces by Sublandlord and/or Overland lord as
aforesaid, Subtenant's Parking Area shall consist of the part of Subtenant's
Parking Area remaining after such taking or conveyance plus the spaces so
substituted.
(c) If this Sublease shall be terminated in its entirety as a
result of any such taking or conveyance, Rent shall be apportioned as of the
Date of Taking, and any Rent paid for any period after said Date of Taking shall
be promptly repaid to Subtenant. If this Sublease notwithstanding any such
taking or conveyance shall continue in effect as to any part of the Sublease
Premises, the Rent shall be apportioned and adjusted as of the Date of Taking on
the basis of the Gross Floor Space of such part; and any Rent paid for the part
so taken or conveyed for any period after the Date of Taking shall be promptly
repaid to Subtenant.
(d) If this Sublease notwithstanding any such taking or
conveyance shall continue in effect, Overlandlord, pursuant to the Xxxxxxxxx,
is obligated to make all necessary alterations so as to constitute the remaining
Building and Sublease Premises a complete architectural and tenantable unit,
except for the Subtenant's Property and any Tenant's Property (as defined in the
Xxxxxxxxx) remaining in the Sublease Premises.
(e) All awards and compensation for any taking or conveyance,
whether for the whole or a part of the Entire Premise, the Sublease Premises or
otherwise, shall be property of Overlandlord or Sublandlord as their interests
shall appear, and Subtenant hereby assigns to Sublandlord all of Subtenant's
right, title and interest in and to any and all such awards and compensation,
including, without limitation, any award or compensation for the value of the
unexpired portion of the Term. Subtenant shall be entitled to claim, prove and
receive in the condemnation proceedings such award or compensation as may be
allowed for the Subtenant's Property and for interruption or loss of business,
good will, and depreciation or injury to and cost of removal of the Subtenant's
Property and the relocation but only if such award or compensation shall be made
by the condemning authority in addition to, and shall not result in a reduction
of, the award or compensation made by it to Sublandlord or Overlandlord.
(f) If during the Term the temporary use or occupancy of all
or any part of the Sublease Premises shall be taken by a public or quasi-public
authority under
21
the power of condemnation or eminent domain or expropriation, Rent shall, as
appropriate, xxxxx in full or be reduced in proportion to the part so taken for
the period of such temporary use and occupancy and any Rent paid for the part so
taken for any period after the date of possession shall be promptly repaid to
Subtenant. However, if such temporary use or occupancy shall be of the entire
Sublease Premises, or if less than the entire Sublease Premises and the
remaining part of the Sublease Premises is, in Subtenant's reasonable judgment,
inadequate for Subtenant's operation and such temporary use or occupancy shall
continue for thirty (30) days or more, Subtenant may upon ten (10) days written
notice to Sublandlord terminate this Sublease in its entirety, as of the last
day of the month following the month in which notice is given, whereupon Rent
shall be apportioned as of the date possession for such temporary use or
occupancy shall have been taken and any Rent paid for any period after said date
shall be promptly repaid to Subtenant. If there is a temporary use or occupancy
of Subtenant's Parking Area by such public or quasi-public authority to the
degree described in Paragraph 8(b) for a period of thirty (30) days or more,
then the provisions of said Paragraph 8(b) shall be applicable to such temporary
use or occupancy during the period of such temporary use or occupancy.
(g) Nothing contained herein shall grant or extend to
Subtenant any right to terminate the Xxxxxxxxx in whole or in part or limit or
impair any right of Sublandlord to exercise any right of termination with
respect to the Xxxxxxxxx including, without limitation, any right of termination
which may arise solely from any taking of all or portions of the Sublease
Premises; in the event that Sublandlord shall exercise any right of termination
with respect to the Xxxxxxxxx, Sublandlord shall furnish a copy of the notice of
termination to Subtenant promptly after such notice is furnished to Overlandlord
(but the requirement to furnish a copy of such notice shall in no way limit or
condition any such right of termination of Sublandlord).
(h) Subtenant shall have no right to join in any application
by the Overland lord or Sublandlord for the payment of all or any portion of the
condemnation award due to Overland lord and/or Sublandlord.
9. Assignment, Subletting and Mortgaging.
(a) Subtenant shall not, whether voluntarily, involuntarily,
or by operation of law or otherwise, (i) assign or otherwise transfer this
Sublease, or offer or advertise to do so, (ii) sublet the Sublease Premises or
any part thereof, or offer or advertise to do so, or allow the same to be used,
occupied or utilized by anyone other than Subtenant except as otherwise provided
herein, or (iii) mortgage, pledge, encumber or otherwise hypothecate this
Sublease in any manner whatsoever, without in each instance obtaining the prior
written consent of Sublandlord (which consent with respect to Sublandlord shall
not be unreasonably withheld, conditioned or delayed) and Overlandlord in
accordance with the provisions of the Xxxxxxxxx. Notwithstanding anything herein
to the contrary, Subtenant shall have the right, without the consent of
Sublandlord (but with the requirement to obtain the prior written consent of
22
Overlandlord in accordance with the provisions of the Xxxxxxxxx), to assign
this Sublease to any affiliated company, or to sublet or otherwise permit the
use or occupancy of the Sublease Premises or any part or parts thereof to or by
any such company or companies for a term or terms expiring concurrently with or
prior to the expiration of the term of this Sublease; subject, however, in all
respect to all the covenants, conditions and provisions contained in this
Sublease and the Xxxxxxxxx, and provided that Subtenant gives Sublandlord a copy
of the assignment and the assignee expressly agrees in writing to be bound by
all of the provisions of this Sublease. The term "affiliated company" as used in
this Sublease shall mean any corporation or other person or entity controlling,
controlled by or under common control with Subtenant (control to be deemed to
exist with the direct or indirect beneficial ownership of fifty percent (50%)
or more of (i) the outstanding voting securities of any corporation or (ii) the
total partnership or beneficial interest in or under any other type of entity).
In any case herein where Subtenant has requested, in accordance with the notice
provisions of this Sublease, the consent of Sublandlord to (i) any assignment or
other transfer of this Sublease or (ii) a subletting of the Sublease Premises or
any part thereof, then, in either case, if Sublandlord has not within twenty
(20) days after its receipt of such request for consent notified Subtenant in
writing of either (a) its consent to such request or (b) its decision not to
consent to such request, then Sublandlord shall be deemed to have granted its
consent to such request. Any such request for consent shall be accompanied by
(a) an identification of the proposed assignee, transferee or subtenant, (b) a
statement of the business in which the assignee, transferee or subtenant is
engaged, and (c) a statement of the assignee's, transferee's or subtenant's
intended use of the Sublease Premises (or part thereof), which use does not
violate the provisions of this Sublease.
(b) (i) Subtenant shall pay to Sublandlord, as Sublease
Additional Charges, in connection with any assignment of this Sublease or any
sublease of all or any portion of the Sublease Premises (other than an
assignment or sublease to an Affiliate, provided such assignment or sublease is
for a good business purpose and is not done principally to avoid the obligations
of Subtenant hereinafter set forth in this Subsection 9(b)), an amount equal to
fifty (50%) percent of the following amounts:
(1) In the case of an assignment, an amount
(hereinafter called the "Assignment Profit")
equal to all sums and other consideration
actually paid to Subtenant by the assignee for
such assignment (including, but not limited to,
sums paid for the sale of Subtenant's fixtures,
leasehold improvements, equipment, furniture,
furnishings or other personal property in excess
of the greater of the book value or the fair
market value thereof) after first deducting
therefrom the amount of "Subtenant's Costs" (as
such term is hereinafter defined); and
(2) In the case of a sublease, an amount (hereinafter
called the "Sublease Profit") equal to any rents,
additional charges or
23
other consideration actually paid under the
sublease to Subtenant by the subtenant which is
in excess of the Sublease Fixed Rent and Sublease
Additional Charges accruing during the term of
the sublease in respect of the subleased space
(at the rate per square foot payable by Subtenant
hereunder) pursuant to the terms hereof
(including, but not limited to, sums paid for the
sale or rental of Subtenant's fixtures, leasehold
improvements, equipment, furniture, furnishings
or other personal property in excess of the
greater of the book value or the fair market
value thereof) after first deducting therefrom
the amount of "Subtenant's Costs" (as such term
is hereinafter defined);
The sums payable under clauses (1) and (2) of this Subsection 9(b)(i) shall be
paid to Sublandlord within twenty (20) days after the same is paid to Subtenant
by the assignee or subtenant, as the case may be.
(ii) For purposes hereof, the term "Subtenant's Costs" shall
mean:
(1) the amount of any reasonable broker's fee or commissions
paid to a broker as a result of any assignment or
subletting by Subtenant hereunder and reasonable counsel
fees and disbursements incurred with respect to such
assignment or subletting;
(2) the cost to Subtenant of any additional improvements,
alterations or changes made to prepare or separate the
space in question for the occupancy of the subtenant or
assignee thereof or work allowance or cash payment
granted by Subtenant to such subtenant or assignee in
lieu of or in addition to Subtenant's performance of any
such improvements, alterations or changes or other
allowance (including, without limitation, any relocation
allowance or any rent abatement or concession at
Subtenant's rental cost under this Lease) granted by
Subtenant as consideration for the sublease or
assignment;
(3) reasonable advertising expenses directly related to the
assignment of this Sublease or subletting of the space;
and
(4) any rent abatement and/or concession (at Subtenant's
rental cost under this Lease) and other payments, if
any, of Sublease Fixed Rent or Sublease Additional
Charges under this Sublease (to the extent Subtenant is
not otherwise reimbursed therefore) made by Subtenant to
Sublandlord for the periods subsequent to the assignment
or subletting for the Sublease Premises (in
24
the case of an assignment of the entire Lease) or the
portion thereof so assigned or sublet.
(iii) Subtenant shall be permitted to deduct from any sums
required to be paid by Subtenant to Sublandlord pursuant to Subsection 9(b)(i)
above any reasonable costs incurred by Subtenant in connection with enforcing
any rights of Subtenant under any assignment or sublease made pursuant to
Subsection 9(b)(i).
(c) If this Sublease is assigned, whether or not in violation
of this Sublease, Sublandlord may collect rent from the assignee. If the
Sublease Premises or any part thereof are sublet or used or occupied by anybody
other than Subtenant, whether or not in violation of this Sublease, Sublandlord
may, after default by Subtenant, and expiration of Subtenant's time to cure such
default, collect rent from the subtenant or occupant. In either event,
Sublandlord may apply the net amount collected to the Rent, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of any
of the provisions of Paragraph 9(a), or the acceptance of the assignee (unless
the assignment is with Sublandlord's and Overlandlord's consent pursuant to
Paragraph 9(a)), subtenant or occupant as tenant, or release of Subtenant from
the performance by Subtenant of Subtenant's obligations under this Sublease. The
consent by Sublandlord and/or Overlandlord to any assignment, mortgaging,
subletting or use or occupancy by others shall not in any way be considered to
relieve Subtenant from obtaining the express written consent of Sublandlord and
Overlandlord to any other or further assignment, mortgaging or subletting or use
or occupancy by others. Reference in this Sublease to use or occupancy by others
(that is, anyone other than Subtenant) shall not be construed as limited to
subtenants and those claiming under or through subtenants, immediately or
remotely.
(d) Any permitted assignment or transfer made with
Sublandlord's and Overlandlord's consent pursuant to Paragraph 9(a), shall be
made only if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Sublandlord an agreement whereby the assignee shall
assume Subtenant's obligations under this Sublease from and after the date of
the assignment and whereby the assignee shall agree that all of the provisions
in this Paragraph 9 shall, notwithstanding such assignment or transfer, continue
to be binding upon it in respect to all future assignments and transfers.
Notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this Sublease, and notwithstanding the acceptance of Rent by
Sublandlord from an assignee, transferee, or any other party, the original
Subtenant and any other person(s) who at any time was or were Subtenant shall
remain fully liable for the payment of the Rent and for Subtenant's other
obligations under this Sublease.
(e) The listing of any name other than that of Subtenant,
whether on the doors of the Sublease Premises or the Building directory, or
otherwise, shall not operate to vest any right or interest in this Sublease or
in the Sublease Premises, nor shall it be deemed to be the consent of
Sublandlord to any assignment or transfer of
25
this Sublease or to any sublease of the Sublease Premises or to the use or
occupancy thereof by others.
(f) Without limiting any of the provisions of Article 27 of
the Xxxxxxxxx incorporated into this Sublease, if pursuant to the Federal
Bankruptcy Code (or any similar law hereafter enacted having the same general
purpose), Subtenant is permitted to assign this Sublease notwithstanding the
restrictions contained in this Sublease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash or cash equivalent negotiable securities in an
amount equal to the sum of one (1) year's Sublease Fixed Rent plus an amount
equal to the Sublease Additional Charges for the Sublease Operation Year
preceding the year in which such assignment is intended to become effective,
which deposit shall be held by Sublandlord for the balance of the Term, as
security for the full performance of all the assignee's obligations under this
Sublease, in accordance with Paragraph 11 of this Sublease.
10. Damage and Destruction.
(a) Notwithstanding the provisions of Article 24 of the
Xxxxxxxxx, which are incorporated herein by reference, in the event of damage or
destruction to the Sublease Premises which cannot reasonably be repaired by
Overlandlord within one hundred eighty (180) days after the date of damage,
Subtenant may elect, by giving written notice to Sublandlord within seven (7)
days of receipt by Subtenant of a copy of Overlandlord's notice (hereinafter
"Overlandlord's Notice") of the estimated date by which the Demised Premises and
Tenant's Parking Area shall be substantially repaired, to terminate this
Sublease as to all of the Sublease Premises effective as of the date of the
occurrence of the casualty, and in the event that such notice is given this
Sublease shall terminate at the expiration of said seven (7) day period.
Sublandlord shall promptly furnish to Subtenant a copy of Overlandlord's Notice.
If the estimated date set forth in Overlandlord's Notice is not more than one
hundred eighty (180) days after the date of damage, or Subtenant shall not have
terminated this Sublease pursuant to the provisions of the first sentence of
this subparagraph 10(a), then, if Overlandlord has not substantially repaired
the Sublease Premises and/or Subtenant's Parking Area by the later of (j) one
hundred and eighty (180) days after the date of such damage or (ii) the
estimated date specified in Overlandlord's Notice, which period may be extended
by not more than thirty (30) days by fire or other casualty, strikes, lockouts
or other labor difficulties, unavailability of materials or any other cause
beyond the reasonable control of Overlandlord, Subtenant may, within seven (7)
days after the expiration of the applicable period, terminate this Sublease by a
written notice as of the date specified therein which shall be not earlier than
twenty (20) days after the date of the giving of such notice and unless
Overlandlord shall have substantially repaired the Sublease Premises and/or
Subtenant's Parking Area before said termination date, this Sublease shall
terminate as of said date. If Subtenant does not terminate this Sublease as
heretofore provided in this subparagraph 10(a), Subtenant shall have no further
right to terminate this Sublease pursuant to this subparagraph 10(a). For
purposes of this
26
subparagraph 10(a), subparagraph 10(b) and subparagraph 10(c) the term "repair"
and the term "substantially repaired" shall have the respective meanings given
to them in Section 24.01 of the Xxxxxxxxx.
(b) Subject to the provisions of subparagraph 10(d), if all
or part of the Sublease Premises shall be damaged or destroyed or rendered
completely or partially untenantable on account of fire or other casualty, the
Rent shall be abated or reduced, as the case may be, in the proportion that the
untenantable area of the Sublease Premises (calculated on a Gross Floor Space
basis) bears to the Gross Floor Space of the Sublease Premises for a period from
the date of damage to the date the Sublease Premises shall be substantially
repaired; provided, however, should Subtenant reoccupy a portion of the Sublease
Premises during the period the repair is taking place and prior to the date that
the Sublease Premises is substantially repaired, Rent allocable to such
reoccupied portion, based on Gross Floor Space, shall be payable by Subtenant
from the date of such occupancy. In addition, if sixty-nine (69) or more parking
spaces in Subtenant's Parking Area are not reasonably accessible or usable for
parking as a result of damage or destruction by fire or other casualty and the
Rent is reduced by less than twenty-five percent (25%) pursuant to the
provisions of this Paragraph, then from the date of damage to the date that
accessibility and usability is restored, Subtenant shall be reimbursed by
Sublandlord for the cost incurred by Subtenant in providing (i) substitute
parking and/or transportation; provided, however, Sublandlord may reduce
(pro-rata) or eliminate such reimbursement obligation by providing substitute
parking within the Entire Premises or immediately adjacent thereto or (ii)
substitute parking in Secaucus or North Bergen, New Jersey, and transportation
to/from the Building and such substitute parking acceptable to Subtenant.
(c) If this Sublease shall be terminated by Sublandlord, or
by Overlandlord as a result of the exercise of its rights under the Xxxxxxxxx,
or by Subtenant pursuant to the provisions of this Paragraph, Rent shall be
apportioned as of the date of termination and any Rent paid for any period after
said date shall be promptly repaid to Subtenant.
(d) Except as in this Paragraph otherwise provided, Subtenant
shall not be entitled to terminate this Sublease and no damages, compensation or
claim shall be payable by Sublandlord for inconvenience, loss of business or
annoyance arising from any repair of the Building, including the Sublease
Premises or Subtenant's Parking Area.
(e) If by reason of some act or omission on the part of
Subtenant or any of its partners, directors, officers, servants, employees, or
agents, Overlandlord or any Superior Lessor or any Superior Mortgagee shall be
unable to collect rent insurance proceeds pursuant to the insurance required to
be carried by Overlandlord pursuant to Article 13 of the Xxxxxxxxx that would
otherwise have been payable as a result of damage or destruction or
untenantability of the Building by fire or other casualty, then, without
prejudice to any other remedies which may be available against
27
Subtenant, there shall be no abatement or reduction of the Rent during the Term
if by reason of such act or omission there shall be no abatement or reduction of
the Rent payable under the Xxxxxxxxx during the term thereof.
(f) The provisions of this Paragraph 10 shall be deemed an
express agreement governing any case of damage or destruction of the Sublease
Premises and/or Subtenant's Parking Area by fire or other casualty, and any law
providing for such a contingency in the absence of an express agreement, now or
hereafter in force, shall have no application in such case.
(g) Nothing contained herein shall grant or extend to
Subtenant any right to terminate the Xxxxxxxxx in whole or in part or limit or
impair any right of Sublandlord to exercise any right of termination with
respect to the Xxxxxxxxx by reason of any damage or destruction, including,
without limitation, any right of termination which may arise from any damage or
destruction of all or portions of the Sublease Premises in the event that
Sublandlord shall exercise any right of termination with respect to the
Xxxxxxxxx. Sublandlord shall furnish a copy of the notice of termination to
Subtenant promptly after such notice is furnished to Overlandlord (but the
requirement to furnish a copy of such notice shall in no way limit or condition
any such right of termination of Sublandlord).
11. Security.
(a) Within five (5) business days following the occurrence of
a Sublease Occupancy Event, Subtenant shall have deposited and shall thereafter
maintain at all times with Sublandlord as a security deposit for the faithful
performance and observance by Subtenant of the covenants, agreements, terms,
provisions and conditions of this Sublease, the sum of One Million Two Hundred
Fifty Thousand and 00/100 Dollars ($1,250,000.00) as the same may be reduced as
hereinafter provided (hereinafter "Security Funds") either in the form of cash,
a letter of credit, or any combination of the two. Any such letter of credit(s)
shall be an unconditional, irrevocable commercial letter of credit, in form and
substance reasonably satisfactory to Sublandlord (the form attached hereto as
Exhibit H is satisfactory to Sublandlord), and issued by a member bank of the
New York Clearinghouse Association acceptable to Sublandlord from time to time
in its reasonable discretion, payable upon presentation by Sublandlord to such
bank at its counters in New York City of a sight draft, without presentation of
any other documents, statements or authorizations, which letter of credit shall
provide (i) for the continuance of such credit for the period of at least one
(1) year from the date thereof, (ii) for the automatic extension of such letter
of credit for additional periods of one (1) year from the initial and each
future expiry date thereof (the last such extension to provide for the
continuance of such letter of credit for at least thirty (30) days beyond the
Sublease Expiration Date) unless such bank gives Sublandlord notice of its
intention not to renew such letter of credit not less than thirty (30) days
prior to the initial or any future expiry date of such letter of credit, and
(iii) that in the event such notice is given by such bank, Sublandlord shall
have the right to draw
28
on such letter or credit at sight for the balance remaining under such letter of
credit and hold and apply the proceeds thereof as Security Funds (as hereinafter
defined). If such bank shall give notice to Sublandlord of its intention not to
renew the letter of credit, Sublandlord shall give Subtenant prompt written
notice (hereinafter a "Draw Notice") of its intention to draw on such letter of
credit at sight for the balance remaining under such letter of credit as
hereinafter provided, which Draw Notice shall be given at least ten (10) days
prior to the date on which Sublandlord intends to draw on the letter of credit
unless less than ten (10) business days then remain before the expiry date
thereof, in which case the Sublandlord shall give such notice as is practical
under the circumstances. If Subtenant fails to deliver a replacement or
substitute letter of credit complying with the requirements of this Paragraph
within such ten (10) business day period (or any shorter period provided for in
the preceding sentence), then Sublandlord shall have the right to draw on such
letter of credit at sight for the balance remaining under such letter of credit
and hold and apply the proceeds thereof. Subtenant shall pay Sublandlord's
reasonable attorneys' fees and other actual, out-of-pocket reasonable costs in
connection with the draw down, replacement, substitution or amendment of such
letter of credit. Whenever Subtenant shall deliver a proper replacement letter
of credit or shall otherwise be entitled to the return of a letter of credit
hereunder, Sublandlord (or the named beneficiary of the letter of credit being
replaced) shall deliver the letter of credit being replaced to Subtenant
together with a letter addressed to the issuer of the letter of credit stating
that Sublandlord (or such beneficiary) renounces all right, title and interest
in and to such letter of credit and authorizing the return thereof to such
issuer for cancellation.
(b) Each letter of credit and other Security Funds to be
deposited and maintained with Sublandlord (or the proceeds thereof) shall be
held by Sublandlord as security for the faithful performance and observance by
Subtenant of the terms, provisions and conditions of this Sublease, and in the
event that (x) any default occurs under this Sublease and is not cured by
Subtenant within any applicable grace and notice periods, or (y) Sublandlord
transfers its right, title and interest under this Sublease to a third party and
the bank issuing such letter of credit does not consent to the transfer of such
letter of credit to such third party, or (z) Sublandlord is entitled to draw on
the letter of credit pursuant to the provisions of subparagraph 11(a), then, in
any such event, Sublandlord may draw on such letter of credit, and the proceeds
of such letter of credit shall then be held and applied as security (and be
replenished, if necessary) in accordance with this Paragraph 11. Anything to the
contrary contained herein notwithstanding, provided Subtenant is not in default
under this Sublease beyond the expiration of applicable grace and notice
periods, (i) Subtenant shall have the right at any time to post a letter of
credit meeting the requirements as above provided in the then amount of any
Security Funds held in cash, and concurrently with such posting to receive the
return from Sublandlord of all such cash, together with all interest, if any,
earned thereon, or (ii) to deposit with Sublandlord, as Security Funds, an
equal amount of cash in substitution for all or part of a letter of credit.
29
(c) It is agreed that in the event Subtenant defaults in respect
of any of the covenants, agreements, terms, provisions and conditions of this
Sublease (after notice and the expiration of any applicable grace and notice
periods), including, but not limited to, the payment of Sublease Fixed Rent or
Sublease Additional Charges, Sublandlord may use, apply or retain such part of
the Security Funds as shall be equal to the payment of any Sublease Fixed Rent,
Sublease Additional Charges or any other sum as to which Subtenant is in default
as aforesaid, or for any sum which Sublandlord may reasonably expend or may be
required to reasonably expend by reason of Subtenant's default in respect of any
of the covenants, agreements, terms, provisions and conditions of this Sublease,
including, but not limited to, any damages or deficiency in the re-letting of
the Sublease Premises, whether such damages or deficiency occurred before or
after summary proceedings or other re-entry by Sublandlord. Sublandlord shall
not be required to so use, apply or retain any part of the Security Funds, but
if any part thereof is so used, applied or retained in accordance with the
provisions of this Paragraph, Subtenant shall, within five (5) business days
after demand, deposit with Sublandlord an amount equal to the amount so used,
applied or retained.
(d) In the event that Subtenant shall then not be in default of
any of the terms, provisions, covenants, agreements and conditions of this
Sublease:
(i) the amount of the Security Funds required hereunder shall be;
(1) reduced to $1,000,000 on the second (2nd) anniversary of
the Sublease Commencement Date;
(2) reduced to $750,000 on the fourth (4th) anniversary of
the Sublease Commencement Date;
(3) reduced to $500,000 on the fifth (5th) anniversary of
the Sublease Commencement Date; and
(4) reduced to $250,000 on the sixth (6th) anniversary of
the Sublease Commencement Date; and
(ii) the remaining letter of credit and/or any remaining balance
of cash Security Funds, as applicable, will be returned to
Subtenant after the date fixed as the end of this Sublease
and after delivery of entire possession of the Sublease
Premises to Sublandlord.
(e) In the event of any assignment or transfer or conveyance of
Sublandlord's interest in the Xxxxxxxxx or this Sublease, Sublandlord shall have
the right to transfer the Security Funds, including, without limitation, the
letter of credit, as applicable, to the grantee or transferee and, upon the
grantee's or transferee's acknowledgment of receipt thereof, Sublandlord shall
thereupon be released by
30
Subtenant from all liability for the return of such Security Funds; and
Subtenant agrees to look solely to Sublandlord's successor for the return of
said Security Funds; and it is agreed that the provisions hereof shall apply to
every transfer or assignment made of the Security Funds to a new Sublandlord.
Subtenant further covenants that it will not assign or encumber or attempt to
assign or encumber the Security Funds and that neither Sublandlord nor its
successors or assigns shall be bound by any such assignment, encumbrances,
attempted assignment or attempted encumbrances. Sublandlord agrees to deposit in
an FDIC insured institution, the cash Security Funds in a segregated,
interest-bearing account and, with respect to cash Security Funds only, after
deducting any administrative fees permitted by law, to pay the interest to
Subtenant annually, provided Subtenant is not then in monetary default or
otherwise in material default in the performance of its obligations under this
Lease beyond the expiration of any applicable grace and notice periods.
(f) Notwithstanding anything herein to the contrary, it is
agreed that Sublandlord's use, application or retention of a security deposit
made pursuant to Paragraph 9(e) hereof, shall be limited to obligations accruing
under this Sublease on and after the assignment of this Sublease as therein
contemplated.
12. Electric/Gas Energy.
(a) Pursuant to the Xxxxxxxxx, electricity shall be supplied
to the Sublease Premises by Overlandlord to provide lighting therein and to
service Subtenant's office equipment, and Subtenant shall pay to Sublandlord,
as Sublease Additional Charges for such service, sums equal to the amounts as
determined by submeter(s) (installed by Overlandlord for the purpose of
measuring electric consumption within the Sublease Premises), at charges, terms
and rates set, from time to time, during the Term by the Public Utility
Corporation ("PUC") serving the Building under the service classification in
effect pursuant to which Overlandlord purchases electricity and used in
computing its charges to Overlandlord of electricity for the entire Building
(i.e., at the price per kilowatt-hour billed by the PUC to Overlandlord for the
total electric consumption in the entire Building). If by the Commencement Date,
Sublandlord shall have been unable to segregate by submetering the electricity
servicing the Sublease Premises from the electricity servicing the Industries
Premises (as hereinafter defined), then, until such service shall be so
segregated, the determination of the amount of electricity used to service the
Sublease Premises shall be equitably determined based on the quantity of
electricity used by ITT Industries, Inc. for the most recent electricity billing
period prior to the Commencement Date. Sublandlord shall not be liable or
responsible for any failure, inadequacy or defect in the character or supply of
electric current furnished to the Sublease Premises, unless due to the gross
negligence or willful misconduct of Sublandlord or Sublandlord's agents,
servants, employees, contractors, subcontractors, licensees, invitees (other
than Overlandlord), officers, directors, partners or members or subtenants
(other than Subtenant). Subtenant shall furnish and install all lighting tubes
bulbs, and ballasts required in the Sublease Premises, at Subtenant's expense
All lighting tubes, bulbs
31
and ballasts so installed shall become Sublandlord's property upon the
expiration or sooner termination of this Sublease.
(b) Subtenant's use of electric energy in the Sublease
Premises shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Sublease Premises.
(c) Subtenant shall also pay to Sublandlord, as Sublease
Additional Charges, Subtenant's Proportionate Shares of the amounts by which (x)
Sublandlord's Additional Charges, under Section 18.03 of the Xxxxxxxxx, for
Overlandlord's cost of electricity and gas used by Overlandlord to operate the
Building Systems (as said term is defined in the Xxxxxxxxx) providing services
for the common benefit of all tenants, including Subtenant, of the Building and
to provide Interior Common Area (as said term is defined in the Xxxxxxxxx)
lighting (said cost of electricity and gas being hereinafter referred to as
"Overlandlord's Electricity and Gas Costs") payable by Sublandlord under the
Xxxxxxxxx for any Sublease Operational Year subsequent to the Sublease Base
Year, exceed (y) the Additional Charges for Overlandlord's Electricity and Gas
Costs payable by Sublandlord under the Xxxxxxxxx for the Sublease Base Year.
13. Parking. Sublandlord shall allocate for Subtenant's use, three
hundred and fifteen (315) parking spaces within Tenant's Parking Area of which
forty-six (46) shall be under the Building at the locations as shown on Exhibit
D annexed hereto and made a part hereof and two hundred and sixty nine (269) of
which are unreserved outside parking spaces within Tenant's Parking Area (as
Tenant's Parking Area (outside) is shown by crosshatching on Exhibit E annexed
hereto and made a part hereof) (hereinafter collectively "Subtenant's Parking
Area"). The parking spaces under the Building shall be for Subtenant's use at
all times and the balance of Subtenant's parking spaces shall be for Subtenant's
exclusive use during Business Hours. Subtenant and its subtenants and their
respective officers, employees, agents, customers and invitees shall park their
automobiles and other vehicles in (a) Subtenant's Parking Area and (b) such
other areas only where and as permitted in writing by Sublandlord. Subtenant
will, if and when so requested by Sublandlord, furnish Sublandlord with the
license plate numbers of any vehicles of Subtenant and any sub-subtenant and
their respective officers and employees, which will be parked in Subtenant's
Parking Area. Subtenant shall not permit its or its sub-subtenant's employees,
officers, agents, customers and invitees to park in any other spaces within the
Tenant's Parking Area or the Entire Premises.
14. Definition of Sublandlord. The term "Sublandlord" shall mean
Sublandlord named herein and any subsequent holder at the time in question of
the tenant's interest under the Xxxxxxxxx.
32
15. Notices.
(a) Any notice, demand, designation, request, consent,
approval or other communication which either party hereto is required or desires
to give or make to the other shall be in writing and shall be deemed validly
given (i) when personally delivered, (ii) when deposited for "overnight
delivery" [for example, Federal Express "Standard Overnight" (delivery by next
business afternoon), United States Post Service "Express Mail" or other
nationally recognized comparable service], prepaid, with a receipt provided
therefor, or (iii) when deposited in the United States mails, registered or
certified, return receipt requested with postage prepaid, addressed in each case
as follows:
If to Sublandlord: ITT Corporation
1330 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director of Real Estate
With a copy to: ITT Corporation
1330 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
If to Subtenant:
(a) Prior to Occupancy: Genesis Direct Secaucus Operations, LLC
Xxx Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000-0000
Attn: Chief Operating Officer
With a copy to: Genesis Direct Secaucus Operations, LLC
Xxx Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000-0000
Attn: General Counsel
(b) After Occupancy: Genesis Direct Secaucus Operations, LLC
000 Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Chief Operating Officer
33
With a copy to: Genesis Direct Secaucus Operations, LLC
000 Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
In either case with a copy to: Cole, Schotz, Meisel, Xxxxxx &
Xxxxxxx, P.A.
Xxxxx Xxxxx Xxxxx
00 Xxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxx, Esq.
Either party may designate a different or additional address(es) by
notice similarly given.
(b) Any notice hereunder shall be deemed effectively given
upon its delivery or the addressee's refusal to accept delivery as indicated by
the person attempting such personal delivery, by the applicable return receipt,
if sent by registered or certified mail, or by similar reliable advice from the
recognized courier company, as the case may be.
16. Broker. Subtenant and Sublandlord represent and warrant to each
other that each has had no conversations or negotiations with any broker except
Xxxxxxx and Wakefield of New Jersey, Inc. (hereinafter "C&W") and Xxxxxxx
Xxxxxxxx Co., Inc. (hereinafter "Klatskin") (hereinafter collectively "Broker"),
concerning the subleasing of the Sublease Premises. Sublandlord agrees to pay
the commission due in respect of this Sublease to C&W pursuant to a separate
agreement, and C&W has agreed to pay a portion of said commission to Klatskin.
Landlord and Tenant shall indemnify each other against liability in connection
with a breach of the indemnitor's representation and warranty in this Paragraph
and in connection with any claim for a brokerage commission arising out of any
conversations or negotiations had by indemnitor with any broker other than
Broker.
17. Inspection. Subtenant acknowledges that Subtenant has inspected
the Sublease Premises and agrees to accept the same in an "as is" condition,
subject to completion of Sublandlord's Work (as hereinafter defined).
18. Right of First Offer. Sublandlord grants to Subtenant a right of
first offer (hereinafter the "First-Offer Right") with respect to that space
located on the fourth (4th) floor of the Building shown by cross-hatching on
Exhibit E hereto (hereinafter the "First-Offer Space"). Subtenant's First-Offer
Right shall be on the following terms and conditions:
(a) Superior Rights. The First-Offer Right shall begin only after
the expiration or earlier termination of that certain sublease dated December
15, 1995,
34
between ITT Destinations, Inc. (now known as ITT Corporation, a Nevada
corporation), as sublandlord, and ITT Corporation, a Delaware corporation (the
successor to which by merger is ITT Industries, Inc., an Indiana corporation),
as subtenant, as such sublease may have been or may hereafter be modified or
amended, including, without limitation, all renewals and extensions of such
sublease (whether or not such renewal and extension is under an express
provision of such sublease or consummated under a sublease amendment or a new
sublease) (such sublease as modified or amended, renewed and extended being
hereinafter referred to as the "ITT Industries Sublease").
(b) Procedure for Sublandlord's Offer. Sublandlord shall
provide Subtenant with written notice (hereinafter the "First-Offer Notice")
from time to time when Sublandlord determines that any First-Offer Space will
become available for sublease to third parties. Sublandlord shall provide the
First-Offer Notice to Subtenant within one hundred eight (180) days before the
First-Offer Space will be available for sublease. The First-Offer Notice shall:
(i) Describe the First-Offer Space that will become
available for sublease (hereinafter the "Specific
First-Offer Space") and the date (hereinafter the
"Availability Date") that it will be available for
subletting (which date shall be no less than sixty
(60) days after the date of the First Offer Notice);
(ii) State Sublandlord's determination of the Fair Market Rental
Value of that space (as defined in subparagraph 18(i) below)
determined on a per square foot of Gross Floor Space basis;
and
(iii) State the number of square feet of Gross Floor Space
included within such space.
(c) Procedure for Subtenant's Acceptance. If Subtenant wishes
to exercise Subtenant's First-Offer Right with respect to the Specific
First-Offer Space, Subtenant shall, within twenty (20) business days after
delivery of the First-Offer Notice to Subtenant, deliver notice to Sublandlord
of Subtenant's intention to exercise its First-Offer Right with respect to all
the Specific First-Offer Space. The annual fixed rent (Sublease Fixed Rent) for
Specific First-Offer Space shall be as follows:
(i) if the commencement of the term of the subleasing of the
Specific First-Offer Space shall commence prior to January
1, 1999, the annual fixed rent shall be the lesser of (i) a
sum equal to Eighteen Dollars ($18.00) per each square foot
of Gross Floor Space contained within the Specific First-
Offer Space and (ii) a sum equal to seventy-five percent
(75%) of the Fair Market Rental Value of the Specific First
Offer Space as of the Availability Date;
35
(ii) if the commencement of the term of the subleasing of the
Specific First-Offer Space shall commence on or after
January 1, 1999, but before January 1, 2001, the annual
fixed rent shall be the lesser of (i) a sum equal to Sixteen
Dollars ($16.00) per each square foot of Gross Floor Space
contained within the Specific First Offer Space and (ii) a
sum equal to seventy-five percent (75%) of the Fair Market
Rental Value of the Specific First Offer Space as of the
Availability Date;
(iii) if the commencement of the term of the subleasing of the
Specific First-Offer Space shall commence on or after
January 1, 2001, but before January 1, 2003, the annual
fixed rent shall be the lesser of (i) a sum equal to
Fourteen Dollars ($14.00) per each square foot of Gross
Floor Space contained within the Specific First Offer Space
and (ii) a sum equal to seventy-five percent (75%) of the
Fair Market Rental Value of the Specific First Offer Space
as of the Availability Date; and
(iv) if the commencement of the term of the subleasing of the
Specific First-Offer Space shall commence on or after
January 1, 2003, the annual fixed rent shall be the lesser
of (i) a sum equal to Twelve Dollars ($12.00) per each
square foot of Gross Floor Space contained within the
Specific First Offer Space and (ii) a sum equal to seventy-
five percent (75%) of the Fair Market Rental Value of the
Specific First Offer Space as of the Availability Date.
If Subtenant, concurrently with Subtenant's exercise of the First-Offer Right,
notifies Sublandlord that it does not accept Sublandlord's determination of the
Fair Market Rental Value set forth in the First-Offer Notice, the Fair Market
Rental Value of the Specific First-Offer Space shall be determined in accordance
with the procedure set forth in subparagraph 18(j) below. Otherwise, the Fair
Market Rental Value shall be as set forth in Sublandlord's First-Offer Notice.
Subtenant must elect to exercise its First-Offer Right, if at all, only with
respect to all the space offered by Sublandlord to Subtenant at any particular
time, and Subtenant may not elect to sublease only a portion of that space.
(d) Effect of Subtenant's Failure to Exercise First-Offer
Right. If Subtenant does not exercise its First-Offer Right within the response
period specified in subparagraph 18(c) above, the First-Offer Right shall
terminate for the Specific First-Offer Space and Sublandlord shall be free to
sublease that space to anyone on any terms at any time during the Term, without
any obligation to provide Subtenant with a further right to sublease that space.
(e) Restrictions on First-Offer Right. The Subtenant may
exercise the First-Offer Right only if Subtenant occupies at least fifty (50%)
of the Sublease
36
Premises as of the date of the First-Offer Notice. Subtenant shall not have the
right to Sublease First-Offer Space if Subtenant is in monetary or other
material default under this Sublease beyond the expiration of any applicable
grace and notice periods as of the date of the attempted exercise of the
First-Offer Right by Subtenant or (at Sublandlord's option) as of the scheduled
date of delivery of the Specific First-Offer Space to Subtenant. Subtenant shall
have no right to sublease the Specific First-Offer Space unless Overlandlord
shall have consented to such subletting in accordance with the provisions of the
Xxxxxxxxx.
(f) Delivery of First-Offer Space. If Subtenant timely and
validly exercises the First-Offer Right, Sublandlord shall tender the Specific
First-Offer Space to Subtenant on a date selected by Sublandlord (hereinafter
the "Delivery Date") that is (i) no sooner than the last to occur of (1)
Sublandlord's receipt of written consent from Overlandlord to the subleasing of
the Specific First-Offer Space to Subtenant and (2) sixty (60) days after the
date of the First-Offer Notice, and (ii) no later than one hundred eighty (180)
days after the date of the First-Offer Notice. Subtenant agrees upon request of
Sublandlord to enter into Overlandlord's usual consent to sublease form in
connection with any such subleasing. Sublandlord shall not be liable to
Subtenant or otherwise be in default under this Sublease if Sublandlord is
unable to tender the Specific First-Offer Space to Subtenant on the projected
Delivery Date due to the failure of any other subtenant to timely vacate and
surrender to Sublandlord the Specific First-Offer Space or any portion of it.
Sublandlord agrees to use reasonable efforts to cause any such other subtenant
to vacate.
(g) Terms and Conditions Applicable to First-Offer Space. If
Subtenant timely and validly exercises the First-Offer Right, then, beginning on
the Delivery Date and continuing for the balance of the Term of this Sublease:
(i) The Specific First-Offer Space shall be part of the Sublease
Premises under this Sublease (so that the term "Sublease
Premises" in this Sublease shall refer to the space in the
Sublease Premises immediately before the Delivery Date plus
the Specific First-Offer Space);
(ii) The amount of Sublease Fixed Rent for the Specific First-
Offer Space shall be the amount as determined pursuant to
subparagraph 18(c);
(iii) The Sublease Base Year shall remain January 1, 1997, with
respect to the Specific First-Offer Space.
(iv) Subtenant's Fraction (set forth in Paragraph 4(a) of this
Sublease) shall be appropriately increased based on the
number of square feet of Gross Floor Space included within
the Specific First-Offer Space;
37
(v) An appropriate adjustment shall be made to Paragraph 12 of
this Sublease so that Subtenant shall be obligated to pay for
all electricity supplied to the Specific First-Offer Space;
(vi) An appropriate proportionate increase shall be made to
Subtenant's Parking Area to include the number of parking
spaces allocated to the Specific First-Offer Space under the
prior subleasing of such space;
(vii) The provisions of Paragraphs 19 and 20 of this Sublease shall
not be applicable to the Specific First-Offer Space; and
(viii) The amount of the Security Funds referred to in Paragraph 11
of this Sublease shall be increased by an amount equal to the
annual amount of Sublease Fixed Rent payable with respect to
the Specific First-Offer Space, but shall be subject to
prorata reductions at the times and under the conditions as
specified in said Paragraph 11.
Subtenant's sublease of the Specific First-Offer Space shall be on the same
terms and conditions as affect the original Sublease Premises from time to time,
except as otherwise provided in this subparagraph 18(g). Subtenant's obligation
to pay Sublease Fixed Rent with respect to the Specific First-Offer Space shall
begin as follows:
(1) if the Delivery Date with respect to the Specific First-Offer
Space shall occur prior to January 1, 1999, one hundred fifty
(150) days including and after the Delivery Date;
(2) if the Delivery Date with respect to the Specific First-Offer
Space shall occur on or after January 1, 1999, but before
January 1, 2001, one hundred twenty (120) days including and
after the Delivery Date;
(3) if the Delivery Date with respect to the Specific First Offer
Space shall occur on or after January 1, 2001, but before
January 1, 2003, ninety (90) days including and after the
Delivery Date; and
(4) if the Delivery Date with respect to the Specific First-Offer
Space shall occur on or after January 1, 2003, sixty (60) days
including and after the Delivery Date.
The obligation to pay Sublease Additional Charges with respect to the Specific
First-Offer Space shall commence on the Delivery Date. The Specific First-Offer
Space shall be subleased to Subtenant in its "as-is" condition, free of all
tenancies (except for the
38
Xxxxxxxxx) and occupants, and Sublandlord shall not be required to construct any
improvements in, or contribute any tenant improvement allowance for, the
Specific First-Offer Space, except that if the Specific First-Offer Space is
less than all of the First-Offer Space, Sublandlord, at its sole cost and
expense, shall construct any fire-rated demising walls that may be required to
separate the Specific First-Offer Space from the balance of the First-Offer
Space. Subtenant's construction of any improvements in the Specific First-Offer
Space shall comply with Article 15 of the Xxxxxxxxx to the extent incorporated
into this Sublease.
(h) Confirmation of Terms. If Subtenant timely and validly
exercised the First-Offer Right, Sublandlord and Subtenant shall, no later than
thirty (30) days before the Delivery Date for the Specific First-Offer Space,
confirm in an agreement amending this Sublease, the addition of the Specific
First-Offer Space to the Sublease Premises on the terms and conditions set forth
in this Paragraph 18. The agreement amending this Sublease shall confirm:
(i) The number of square feet of Gross Floor Space of the Sublease
Premises with the addition of the Specific First-Offer Space;
(ii) Subtenant's Fraction with the addition of the number of
square feet of Gross Floor Space of the Specific First-Offer
Space to the number of square feet of Gross Floor Space of
the Sublease Premises;
(iii) The number of parking spaces, both under the Building (to
include location) and outside, included within Subtenant's
Parking Area with the addition of the Specific First Offer
Space to the Sublease Premises;
(v) The Sublease Fixed Rent commencement date for the Specific
First-Offer Space;
(vi) Subtenant's obligation to pay Sublease Additional Charges
with respect to the period from and after the Delivery Date,
including, without limitation, electricity supplied to the
Specific First-Offer Space; and
(vii) Any other terms that either party reasonably requests be
confirmed with respect to the Specific First-Offer Space.
The actual Delivery Date shall be confirmed in writing between Sublandlord and
Subtenant within thirty (30) days after the occurrence of the Delivery Date.
(i) Fair Market Rental Value. For purposes of this Xxxxxxxxx 00,
Xxxx Xxxxxx Rental Value of the Specific First-Offer Space is the rental rate,
determined in
39
accordance with this subparagraph 18(i) (on a per square foot of Gross Floor
Space basis), at which tenants are leasing "comparable space" (as hereinafter
defined) on the Availability Date specified in the First-Offer Notice. For this
purpose, "comparable space" is office space that is:
(i) Not subleased;
(ii) Not subject to another tenant's expansion rights;
(iii) Not leased to a tenant that holds an ownership interest in its
landlord;
(iv) Not leased to a tenant under a renewal or extension of a
lease;
(v) Comparable in size, location and quality to the Specific
First-Offer Space;
(vi) Leased for a term comparable to Subtenant's subleasing of
the Specific First-Offer Space; and
(vii) Located in the Building and in other comparable office
buildings and office building projects located in the greater
Meadowlands market that are comparable in age, location,
quality of construction, services and amenities.
(j) Rental Rate of Comparable Space. In determining the rental
rate of comparable space (which shall be determined on a per square foot of
Gross Floor Space basis), the parties shall include all escalations and take
into consideration the following concessions:
(i) Rental abatement concessions, if any, being granted to
tenants in connection with the comparable space; and
(ii) Tenant improvements or allowances provided or to be provided
for the comparable space, taking into account the value of the
existing improvements in the Specific First-Offer Space, based
on the age, quality and layout of the improvements.
(k) Resolving Disagreement Over Fair Market Rental Value. If
Subtenant timely and effectively objects to Sublandlord's determination of Fair
Market Rental Value under subparagraph 18(c) above, the disagreement shall be
resolved under this subparagraph 18(j) as follows:
(i) Sublandlord and Subtenant shall diligently attempt in good
faith to agree on the Fair Market Rental Value on or before
the tenth (10th)
40
business day after Subtenant's objection to the Fair Market
Rental Value (hereinafter "Outside Agreement Date").
(ii) If Sublandlord and Subtenant fail to reach agreement on or
before the Outside Agreement Date, Sublandlord and Subtenant
shall each make a separate determination of the Fair Market
Rental Value and notify the other party of the determination
within five (5) business days after the Outside Agreement Date.
(a) If each party makes a timely determination of the Fair
Market Rental Value, those determinations shall be
submitted to arbitration in accordance with subparagraph
18(j)(iii).
(b) If Sublandlord or Subtenant fails to make a determination
of the Fair Market Rental Value within the five (5)
business day period, that failure shall be conclusively
considered to be that party's approval of the Fair Market
Rental Value submitted within the five (5) business day
period by the other party.
(iii) If both parties make timely individual determinations of the
Fair Market Rental Value under subparagraph 18(j)(ii)(a), the
Fair Market Rental value shall be determined by arbitration
under this subparagraph 18(j)(iii).
(a) The determination of the arbitrator(s) shall be limited to
the sole issue of whether Sublandlord's or Subtenant's
submitted Fair Market Rental Value is the closest to the
actual Fair Market Rental Value as determined by the
arbitrators, taking into account the requirements of
subparagraph 18(i).
(b) The arbitrator(s) must be a licensed real estate broker or
appraiser who is a member of the American Institute of
Real Estate Appraisers who has been active in the leasing
or appraising, as the case may be, of commercial office
properties comparable to the Building in the greater
Meadowlands market over the five (5) year period ending on
the date of his/her appointment as arbitrator(s).
(c) Within fifteen (15) days after the Outside Agreement
Date, Sublandlord and Subtenant shall each appoint one
arbitrator and notify the other party of the name and
business address of such arbitrator.
(d) If each party timely appoints an arbitrator, the two (2)
arbitrators shall, within ten (10) days after the
appointment of
41
the second arbitrator, agree on and appoint a third
arbitrator (who shall be qualified under the same criteria
set forth above for qualification of the initial two (2)
arbitrators) and provide notice to Sublandlord and
Subtenant of the arbitrator's name and business address.
(e) Within thirty (30) days after the appointment of the third
arbitrator, the three (3) arbitrators shall decide whether
the parties will use Sublandlord's or Subtenant's
submitted Fair Market Rental Value and shall notify
Sublandlord and Subtenant of their decision. The decision
of the majority of the three (3) arbitrators shall be
binding on Sublandlord and Subtenant.
(f) If either Sublandlord or Subtenant fails to appoint an
arbitrator within fifteen (15) days after the Outside
Agreement Date, the arbitrator timely appointed by one of
them shall reach a decision and notify Sublandlord and
Subtenant of that decision within (30) days after the
arbitrator's appointment. The arbitrator's decision shall
be binding on Sublandlord and Subtenant.
(g) If each party appoints an arbitrator in a timely manner,
but the two (2) arbitrators fail to agree on and appoint a
third arbitrator within the required period, the
arbitrators shall be dismissed without delay and the issue
of Fair Market Rental Value shall be submitted to binding
arbitration in Newark, New Jersey under the "expedited
arbitration" procedures of the commercial arbitration
rules then in effect of the American Arbitration
Association, or its successor, subject to the provisions
of this Paragraph 18.
(h) If Sublandlord and Subtenant each fail to appoint an
arbitrator in a timely manner, the matter to be decided
shall be submitted without delay to binding arbitration in
Newark, New Jersey under the "expedited arbitration"
procedures of the commercial arbitration rules then in
effect of the American Arbitration Association, or its
successor, subject to the provisions of this Paragraph 18.
(i) The cost of the arbitration shall be paid by the losing
party, but each party shall pay its own experts and
attorneys' fees.
42
19. Subtenant's Work/Sublandlord's Work.
(a) Subtenant hereby covenants and agrees that Subtenant will,
at Subtenant's own cost and expense (except as hereinafter expressly provided),
and in a good and workmanlike manner and in accordance with all applicable Legal
Requirements and Insurance Requirements, perform any work or installations in
and to the Sublease Premises required to prepare the Sublease Premises for
Subtenant's occupancy (hereinafter "Subtenant's Work"), other than those items
set forth in subparagraph 19(a)(iii) (hereinafter "Sublandlord's Work").
Subtenant's Work shall be performed in accordance with the provisions of Article
15 of the Xxxxxxxxx to the extent incorporated into this Sublease, this
Paragraph 19 and all other applicable provisions of this Sublease (in the event
of any conflict, the provisions of this Paragraph 19 shall control).
(i) Subtenant, at Subtenant's expense, shall cause to be
prepared by an architect licensed to practice in the State
of New Jersey, a final set of plans and specifications for
Subtenant's Work (which said final set of plans and
specifications are herein called the "final plan"), which
shall contain complete information and dimensions
necessary for the construction and finishing of the
Sublease Premises and for the engineering in connection
therewith and bear the seal or other indication of
approval by such architect. One complete set of the final
plan shall be (a) submitted by Subtenant to Sublandlord
for Sublandlord's written approval, which approval shall
not be unreasonably withheld, conditioned or delayed, and
(b) submitted by Subtenant to Overlandlord for its written
consent thereto, in accordance with the provisions of the
Xxxxxxxxx. Sublandlord shall respond to Subtenant's
request for Sublandlord's approval of Subtenant's final
plan within five (5) business days from the submission
thereof to Sublandlord and shall respond to Subtenant's
request for Sublandlord's approval of any revisions in the
final plan within five (5) business days of submission
thereof. If no response is given by Sublandlord to
Subtenant with respect to such request for approval within
said respective periods, then Sublandlord shall be deemed
to have approved such request. If Sublandlord shall
disapprove the final plan or any revision thereof,
Sublandlord shall set forth in reasonable detail its
reasons for such disapproval. Sublandlord has approved the
preliminary plans (hereinafter "Preliminary Plans") for
Subtenant's Work (which set of Preliminary Plans are
listed on Exhibit I attached hereto and made a part
hereof). Sublandlord shall not be deemed unreasonable in
withholding its approval to the extent that the final plan
or any revisions thereof prepared by Subtenant pursuant
hereto involves the performance of work or the
installation in the Sublease Premises of materials or
equipment which are not at least equal in
43
quality and class to the existing installation in the
Sublease Premises. Any request by Subtenant for
Sublandlord's approval of revisions to the final plan
shall be promptly forwarded by Sublandlord to Overlandlord
for its consent. Failure to obtain Overlandlord's written
consent to any such revision shall not be the basis for
any right to terminate this Sublease by either Sublandlord
or Subtenant. Anything in this Sublease to the contrary
notwithstanding, if, as part of Overlandlord's consent to
any revisions to the final plan Overlandlord does not
specify that Sublandlord shall have no obligation at the
expiration of the Xxxxxxxxx to remove Subtenant's Work
encompassed within such revisions and restore the Sublease
Premises to their condition prior to the making of such
revisions, then Sublandlord's approval of such revisions
shall be deemed revoked and such revisions shall not be
made unless and until Subtenant shall agree in writing
with Sublandlord that Subtenant, at its sole cost and
expense, shall, if demanded by Sublandlord at any time
prior to the expiration of this Sublease, remove at the
expiration of this Sublease, Subtenant's Work encompassed
within such revisions and restore the portion of the
Sublease Premises which were affected by such revisions to
their condition existing prior to the making of such
revisions.
(ii) In accordance with the final plan and any approved
revisions thereof, Subtenant, at Subtenant's expense
(except as hereinafter expressly provided), will promptly
commence and thereafter complete Subtenant's Work as
specified in the final plan within six (6) months after
the date on which Subtenant's final plan has been approved
or consented to by Sublandlord and Overlandlord (subject
to conditions of force majeure, including, without
limitation, the obtaining of requisite permits and
approvals from cognizant governmental authorities and
other conditions beyond the reasonable control of
Subtenant). Subtenant agrees that Subtenant's Work will be
made and performed (a) in such manner as not to
unreasonably interfere with Overlandlord in the
construction, maintenance, repair or operation of the
Building, and if any additional expense shall be incurred
by Overlandlord after notice to Subtenant as a result of
Subtenant's Work, Subtenant shall pay or reimburse
Sublandlord for any such additional expense within twenty
(20) days after demand, and (b) so as not to unreasonably
interfere with the business of Sublandlord, or the
occupants of other parts of the Building and to the
structural and mechanical parts of the Building and
Subtenant will, at its own cost and expense, leave all
structural and mechanical parts of the Building which
shall or may be affected by Subtenant's Work in as good
operating condition as existed immediately prior to the
44
commencement of any Subtenant's Work affecting the same.
At any and all times during the progress of Subtenant's
Work, Sublandlord and Overlandlord, at no additional cost
to Subtenant, shall be entitled to have a representative
or representatives on the site to inspect Subtenant's Work
and such representative or representatives shall have
reasonable access to any and every part of the Sublease
Premises, but the provisions of this sentence shall not
create any obligation on Sublandlord's or Overlandlord's
part to perform such inspection and neither Sublandlord
nor Overlandlord shall incur any obligation, liability or
responsibility to Subtenant or any third party by reason
of such access and inspection. Before proceeding with
Subtenant's Work, Subtenant shall submit to Sublandlord
for Sublandlord's approval (which shall not be
unreasonably withheld, conditioned or delayed) and the
approval of Overlandlord in accordance with the provisions
of the Xxxxxxxxx, the names of the general contractor and
subcontractors who are to do Subtenant's Work. Subtenant
shall have the right, with the consent of Sublandlord and
Overlandlord to change its final plans for Subtenant's
Work, which consent by Sublandlord shall not be
unreasonably withheld, conditioned or delayed. Subtenant
shall not be required to obtain Sublandlord's consent with
respect to minor non-structural or decorative changes or
because of field conditions. Such contractors shall use
only employees for Subtenant's Work who will work
harmoniously with other employees on the job.
(iii) Sublandlord agrees to perform and complete within thirty
(30) days after the Commencement Date the following work
(herein "Sublandlord's Work") in the Xxxxxxxxx Premises,
at Sublandlord's sole cost and expense, in a good and
workmanlike manner, and in compliance with applicable
Legal Requirements and Insurance Requirements:
(1) Construct any fire-rated demising walls and doors
necessary to separate the Sublease Premises from the
balance of the Xxxxxxxxx Premises;
(2) Segregate from the submeter(s) currently measuring
electricity supplied to the Xxxxxxxxx Premises, the
electrical service being supplied to that portion of
the Xxxxxxxxx Premises subleased by the ITT
Industries Sublease (hereinafter the "Industries
Premises"); and
(3) Connect all electric service being provided to the
Industries Premises to an independent power panel.
45
If Sublandlord shall fail to substantially complete
Sublandlord's Work within thirty (30) days after the
Commencement Date and such failure to complete shall cause a
material delay in Subtenant's completion of Subtenant's Work on
the fourth (4th) floor of the Sublease Premises such that
Subtenant is delayed in occupying for its business purposes,
all or a portion of the said fourth (4th) floor of the Sublease
Premises, then, provided Subtenant notifies Sublandlord within
five (5) business days after the commencement and end of each
such period of delay, the Rent Commencement Date, as it applies
to such fourth (4th) floor space that Subtenant has been so
delayed in occupying, shall be extended on a "day-for-day
basis", for each day that such occupancy by Subtenant is so
delayed by reason of such failure by Sublandlord.
(b) The following conditions shall also apply to Subtenant's Work:
(i) all Subtenant's Work shall be of material, manufacture, design
and capacity consistent with a first class office installation;
(ii) Subtenant, at Subtenant's sole cost and expense, shall (a) file
with governmental authorities any required architectural,
mechanical and electrical drawings and obtain all necessary
permits and certificates for the commencement and preparation
of Subtenant's Work and for final approval thereof upon
completion, and (b) furnish and perform all engineering and
engineering drawings in connection with Subtenant's Work.
Subtenant shall obtain Sublandlord's approval of the drawings
referred to in clauses (a) and (b) of this subparagraph
20(b)(ii), which approval shall not be unreasonably withheld,
conditioned or delayed;
(iii) Subtenant shall use an engineer approved by Sublandlord (which
approval by Sublandlord shall not be unreasonably withheld,
conditioned or delayed) and Overlandlord in accordance with the
provisions of the Xxxxxxxxx, with respect to the preparation of
Subtenant's engineering drawings in connection with Subtenant's
Work;
(iv) all construction workers shall use only the freight elevators.
All deliveries of materials shall be made during non-Business
Hours using the freight elevator only, except to the extent
that Overlandlord consents in writing (a) to the delivery of
materials during Business Hours and/or (b) to the use of
passenger elevators; provided, however, that such delivery
and/or use does not materially interfere with Sublandlord's or
its subtenant's access
46
to that portion of the Xxxxxxxxx Premises not included within
the Sublease Premises. Subtenant shall coordinate delivery
schedules with Overlandlord's building manager;
(v) Subject to the Work Credit (as hereinafter defined), Subtenant
shall pay to Sublandlord within twenty (20) days after demand,
as Sublease Additional Charges, all actual, out-of-pocket costs
incurred by Sublandlord as the result of the performance of
Subtenant's Work, including, without limitation, charges
incurred by Sublandlord for the use by Subtenant of the
freight elevators at Overlandlord's then established rates
therefor, any additional services other than those specifically
hereinabove listed which Subtenant shall request from
Sublandlord, and cleaning and garbage removal within the
Sublease Premises if performed by or for the benefit of
Sublandlord at Subtenant's request. There shall be no charge to
Subtenant with respect to review of final plans or for
Subtenant's initial move (furniture, equipment, files and
personnel) into the Sublease Premises; and
(vi) Throughout the performance of Subtenant's Work, Subtenant shall
carry, or cause to be carried, workmen's compensation insurance
in statutory limits and general liability insurance, with
completed operation endorsement, for any occurrence in or about
the Building, under which Overlandlord and Sublandlord and any
Superior Lessor whose name and address shall previously have
been furnished to Subtenant shall be named as parties insured,
in such limits as Overlandlord and Sublandlord may reasonably
require with insurers reasonably satisfactory to Overlandlord
and Sublandlord. Subtenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in
effect at or before the commencement of Subtenant's Work and at
reasonable intervals thereafter during the performance of
Subtenant's Work.
(c) It is understood that Overlandlord shall not furnish any
cleaning services to any portion of the Sublease Premises until Subtenant
commences occupancy of such portion of the Sublease Premises for the conduct of
its business. Subtenant, at Subtenant's cost, shall be responsible for removal
of Subtenant's refuse and rubbish during the period that Subtenant's Work is in
progress in the Sublease Premises.
(d)(i) So long as Subtenant is not in default in the performance of
its monetary or other material obligations under this Sublease
beyond the expiration of any applicable grace and notice
periods, Sublandlord shall provide Subtenant with an allowance
in the maximum amount of Five Hundred Twelve Thousand Three
47
Hundred Twenty-Five and 00/100 Dollars ($512,325.00)
(hereinafter called the "Work Credit"), which Work Credit
shall be applied solely against the costs and expenses
incurred by Subtenant with respect to or in connection
with the performance of Subtenant's Work, including,
without limitation, architectural and engineering fees,
but excluding the costs of the initial move-in by
Subtenant into the Sublease Premises and the cost of
furniture and furnishings. In the event that the cost and
expense of such actual construction work shall exceed the
amount of the Work Credit, Subtenant shall be entirely
responsible for such excess. Anything contained in this
Sublease to the contrary notwithstanding, the obligation
of Sublandlord to pay, advance or otherwise be responsible
for the Work Credit, in whole or in part, shall not arise
unless and until a Sublease Occupancy Event shall have
occurred.
(ii) The Work Credit shall be payable to Subtenant in
installments as Subtenant's Work in the Sublease Premises
progresses, but in no event more frequently than monthly.
Prior to the payment of any such installment, Subtenant
shall deliver to Sublandlord a written request for
disbursement in a form reasonably satisfactory to
Sublandlord, which requisition shall be accompanied by (1)
invoices for Subtenant's Work performed since the last
disbursement of the Work Credit, (2) paid invoices for
Subtenant's Work performed before the last disbursement of
the Work Credit, (3) a certificate signed by Subtenant's
architect certifying that Subtenant's Work represented by
the aforesaid invoices has been satisfactorily completed
in accordance with the final plan and stating that in such
architect's opinion, the amount requisitioned does not
exceed the fair and reasonable cost of Subtenant's Work
for which the requisition is submitted, (4) a certificate
signed by an officer of Subtenant stating that to the best
knowledge and belief of Subtenant, the statements made in
the architect's certificate are true and correct, and
further stating that there are no outstanding mechanic's
or other liens filed against the Sublease Premises or the
Building as the result of Subtenant's Work, and (5) lien
waivers by contractors, subcontractors and all materialmen
for all work completed by them up to the time covered by
the previous requisition paid by Sublandlord.
(iii) Any portion of the Work Credit remaining unpaid with
respect to payments for Subtenant's Work shall be paid by
Sublandlord to Subtenant upon the completion of
Subtenant's Work and upon receipt from Subtenant of a
requisition with attachments as provided in subparagraph
(ii) above, together with (1) a certificate signed by
Subtenant's architect and an officer of Subtenant
48
certifying that Subtenant's Work has been substantially
completed in accordance with the final plan, (2) all
governmental sign-offs, inspection certificates and any
permits required to be issued by any governmental entities
having jurisdiction thereover, and (3) final lien waivers
from all materialmen, contractors and subcontractors
performing Subtenant's Work for all of Subtenant's Work
performed by them. If any portion of the Work Credit
remains unadvanced following final payment towards
Subtenant's Work referred to in this paragraph (iii)
above, then, at the request of Subtenant, such remaining
portion of the Work Credit shall be credited against
Sublease Fixed Rent and Sublease Additional Charges as the
same becomes payable under this Sublease.
20. Sublandlord's Systems and Equipment. Sublandlord agrees and
Subtenant acknowledges that Sublandlord's Personal Property, as more
particularly described on Exhibit F hereto, is being left at the Sublease
Premises for Subtenant's use during the Term and at no additional cost to
Subtenant. Sublandlord shall not be responsible for the repair and maintenance
of Sublandlord's Personal Property. Sublandlord shall promptly after the
occurrence of the Commencement Date deliver to Subtenant a xxxx of sale to the
Sublandlord's Personal Property, other than the cafeteria property described in
said Exhibit F, which xxxx of sale shall be without representation or warranty
of any kind, either express or implied, other than warranty of title. Provided
Subtenant is not in default in the performance of its monetary or material
obligations under this Sublease beyond the expiration of applicable grace or
notice periods, Sublandlord shall, at the request of Subtenant, deliver such a
xxxx of sale to Subtenant for such cafeteria property promptly following the
eighteenth (18th) month after the Commencement Date.
21. Building Name. Sublandlord grants to Subtenant its exclusive right
(granted to Sublandlord under Section 21.04 of the Xxxxxxxxx) to name (and from
time to time to change such name) the Building and to have such name or its
corporate name and/or logo appear on one or more places on the exterior surfaces
of the Building, at Subtenant's sole cost and expense. Such displays shall be in
keeping with a first class office park and shall be removed by Subtenant upon
expiration or earlier termination of this Sublease. Subtenant shall also have
the nonexclusive right to install and maintain at its cost and expense, at
appropriate locations to be selected with the approval of Sublandlord and
Overlandlord, which approval by Sublandlord shall not be unreasonably withheld,
conditioned or delayed, within the Interior Common Areas of the Building, signs,
displays and directories identifying and locating corporate products and
organizational elements and personnel in the Building.
22. Representations. Warranties and Covenants of Sublandlord.
(a) Sublandlord represents and warrants to, and agrees with
Subtenant as follows as of the date of execution and delivery of this Sublease:
49
(i) the Xxxxxxxxx is in full force and effect in accordance
with, and subject to, all of the terms, covenants,
conditions and agreements contained therein;
(ii) the Xxxxxxxxx has not been modified, amended or
supplemented, except as set forth herein and in the
Exhibit A annexed hereto:
(iii) Sublandlord has not given or received any notice of any
default under the Xxxxxxxxx, which default remains
uncured, and, to the best of its knowledge, no event has
occurred or failed to occur which with the passage of time
and/or the giving of notice would ripen into such a
default;
(iv) Sublandlord has not received any written notice of
violation of any Legal Requirements or Insurance
Requirements, or Environmental Laws or with respect to any
Hazardous Materials relating to the Demised Premises; and
(v) Sublandlord shall pay all rent and perform all obligations
required to be performed by Sublandlord under the
Xxxxxxxxx (and not assumed by Subtenant under this
Sublease) and shall indemnify and hold Subtenant harmless
from any and all cost, damage, liability or expense
(including, but not limited to, reasonable attorneys'
fees) incurred by Subtenant as a result of a breach of
this subparagraph (v); provided, however, Sublandlord
shall not be liable for and shall not indemnify and hold
Subtenant harmless with respect to consequential damages
arising out of the loss of use of the Sublease Premises or
any equipment or facilities therein by Subtenant or any
person, corporation, partnership, limited liability
company or any other business entity claiming through or
under Subtenant.
(vi) Sublandlord shall not (1), except as provided under
Article 24 and 25 and Subsections 39.19 (d) and (g) of the
Xxxxxxxxx, cancel, surrender or terminate the Xxxxxxxxx,
or (2) amend or modify the Xxxxxxxxx, the result of which
would materially and adversely affect Subtenant's rights
or obligations hereunder or with respect to the Sublease
Premises, and, any such cancellation, surrender,
termination (except as provided under said Article 24 and
25 and Subsections 39.19 (d) and (g)), amendment or
modification of the Xxxxxxxxx made without Subtenant's
written consent shall not be binding on Subtenant to the
extent the same materially decreases the rights or
materially increases the obligations of Subtenant with
respect to the Sublease Premises or this Sublease;
50
(vii) there is no pending or, to the best of Sublandlord's
knowledge, threatened litigation affecting Sublandlord's
interest in the Xxxxxxxxx or the Sublease Premises;
(viii) there is no litigation pending between Sublandlord and
Overlandlord;
(ix) Sublandlord has all requisite corporate power and
authority to execute, deliver and perform its obligations
under this Sublease and the Xxxxxxxxx and the officer(s)
of Sublandlord executing and delivering this Sublease on
behalf of Sublandlord have the requisite authority to
perform such acts on behalf of Sublandlord;
(x) Sublandlord shall, promptly following receipt thereof,
deliver to Subtenant a copy of any notice received by it
from Overlandlord which would have any effect upon the
Sublease Premises or this Sublease. Failure by Sublandlord
to deliver to Subtenant any such notice shall have no
effect whatsoever on the performance by Subtenant of its
obligations under this Sublease;
(xi) The improvements made by or for Sublandlord within the
Sublease Premises contain no asbestos or asbestos-
containing materials; and
(xii) Sublandlord agrees that, with respect to any
nondisturbance agreement it has or may hereafter enter
into with respect to the Xxxxxxxxx, it will enforce for
the benefit of the Sublease Premises and Subtenant the
terms of any such agreement of nondisturbance that it has
the right to enforce.
23. Representations, Warranties and Covenants of Subtenant. Subtenant
represents and warrants to, and agrees with Sublandlord as follows as of the
date of execution and delivery of this Sublease:
(i) Subtenant has all requisite power and authority to
execute, deliver and perform its obligations under this
Sublease and the member of Subtenant executing and
delivering this Sublease on behalf of Subtenant has the
requisite authority to perform such acts on behalf of
Subtenant;
(ii) Subtenant is a limited liability company duly organized,
validly existing and in good standing under the laws of
the State of Delaware, and is in good standing under the
laws of, and is qualified to do business in, the State of
New Jersey;
51
(iii) Each of Subtenant and Genesis Direct, Inc. has all
requisite power and authority to carry on the business in
which it is now engaged. Neither Subtenant nor Genesis
Direct, Inc., nor the members or principal officers, as
the case may be, of either of them, are subject to any
agreement or restriction which would prevent or limit the
ability of Subtenant, Genesis Direct, Inc., or such
members or principal officers from conducting the business
of Subtenant or Genesis Direct, Inc. as it is now being
conducted; and
(iv) Subtenant agrees that if it operates a cafeteria in the
Sublease Premises and permits other occupants of the
Building to use and purchase prepared food from such
cafeteria, it will charge the officers or employees of ITT
Industries, Inc. that are employed in the Industries
Premises, and their business guests, no more for such
prepared food than it charges Subtenant's employees.
24. Roof. Without any increase in Sublease Fixed Rent or Sublease
Additional Charges, or in Subtenant's obligations hereunder, but at no cost to
Sublandlord; Subtenant shall have the right, to the extent Sublandlord shall
have the right under the Xxxxxxxxx, to the exclusive use of that portion of the
roof of the Building as is identified by crosshatching on Exhibit G attached
hereto and made a part hereof, including for the installation, in accordance
with the provisions of Article 15 of the Xxxxxxxxx (incorporated into this
Sublease), operation and maintenance of communications operations facility
(including, but not limited to, a microwave radio station) and/or installation
of an emergency generator and fuel tank and supplemental HVAC. Subtenant shall
be responsible for any repairs or maintenance attributable to Subtenant's use of
the roof. In the event Subtenant performs any work in such exclusive roof area,
Subtenant shall coordinate same with Overlandlord's property manager so as to
avoid the possibility of interfering with any warranties in existence with
respect to the roof. Upon expiration of the Term of this Sublease, Subtenant
shall remove, at its sole cost and expense, all installations made by Subtenant
or an affiliated company from the roof and repair any damage resulting
therefrom. Subtenant recognizes that Overlandlord has the right to permit other
tenants to utilize any portions of the roof of the Building as are not subject
to Sublandlord's exclusive rights under the Xxxxxxxxx, provided such utilization
does not interfere with Sublandlord's exclusive use of the roof as provided in
Section 39.10 of the Xxxxxxxxx as modified by the Second Lease Modification
Agreement.
25. Subtenant's Right to Provide Cleaning Services. If Subtenant
subleases from Sublandlord all of the First-Offer Space pursuant to its
First-Offer Right hereunder, then, from and after the commencement of the term
of such subleasing, Subtenant shall have the option of providing its own
cleaning services to the Sublease Premises. Subtenant may, upon not less than
eighty (80) days' prior written notice to Sublandlord, exercise its option to
obtain its own cleaning services or to request that
52
Sublandlord request Overlandlord to provide, or resume, such cleaning services.
Such notice shall specify the date upon which Subtenant desires that
Overlandlord shall either cease or recommence the cleaning services, as the case
may be; provided, however, such date shall not be earlier than the eightieth
(80th) day from the receipt by Sublandlord of such notice from Subtenant. Upon
receipt of such notice from Subtenant, Sublandlord shall, within twenty (20)
days thereafter, exercise its option under the Xxxxxxxxx to either, as the case
may be, provide its own cleaning services or have Overlandlord provide, or
resume, such cleaning services. Notwithstanding the giving of notice by
Sublandlord to Overlandlord that Sublandlord will provide its own cleaning
services, Sublandlord shall have no obligation to provide such cleaning
services, the sole obligation to provide such cleaning services shall be that of
Subtenant, and Subtenant shall provide such service to the Sublease Premises at
its sole cost and expense, during any period Overlandlord is not required under
the Xxxxxxxxx to provide such cleaning services. During any period that Fixed
Rent under the Xxxxxxxxx is reduced by reason of Sublandlord's election to
provide cleaning services to the Xxxxxxxxx Premises (following Subtenant's
exercise, pursuant hereto, of its option to provide its own cleaning services),
the Sublease Fixed Rent shall be reduced by the amount by which Fixed Rent under
the Xxxxxxxxx is so reduced.
26. Capitalized Terms. Any capitalized terms not otherwise defined in
this Sublease shall have the meanings ascribed to them in the Xxxxxxxxx.
IN WITNESS WHEREOF, the Sublandlord and the Subtenant have respectively
executed this Sublease as of the day and year first above written.
ITT CORPORATION
By: /S/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
GENESIS DIRECT SECAUCUS OPERATIONS, LLC
By: GENESIS DIRECT, INC., its member, manager
By: /s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx
EVP, C.O.O.
