SUBLEASE
SUBLEASE
THIS
SUBLEASE (“Sublease”) is made and entered into as of the 30th day of June, 2005
by and between PDI, INC., a Delaware corporation, with offices at Xxx Xxxxx
00
Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 (“Sublandlord”); and AMERICAN TACK &
HARDWARE CO., INC., a New York corporation, with offices at 00 Xxxxxx Xxxx
Xxxxx, Xxxxxx, Xxx Xxxx 00000 (“Subtenant”).
1. DESCRIPTION.
Sublandlord hereby leases to Subtenant and Subtenant hereby leases from
Sublandlord, the following space: Approximately 16,020 rentable square feet
(hereinafter the “Subleased Premises”) on the first floor in the building
located at Xxx Xxxxx 00 Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx (hereinafter the
“Building”), together with the right to use in common with other tenants in the
Building, their invitees, customers and employees, the stairways, and all other
general common facilities contained in the Building. Said Subleased Premises,
as
more particularly set forth on Exhibit A attached hereto and made a part hereof,
are a portion of the premises leased by Sublandlord from VRS Saddle River LLC
(hereinafter the “Prime Landlord”) under Lease dated November 20, 2003 (the
“Prime Lease”) attached hereto and made a part hereof as Exhibit
“B”.
2. TERM.
The
Subleased Premises are leased for a term to commence upon the later of (i)
five
(5) business days after the date on which the Prime Landlord consents to this
Sublease in accordance with Section 29 below and (ii) five (5) business days
after the date on which a new Certificate of Occupancy for Subtenant’s use of
the Subleased Premises is issued (if such Certificate of Occupancy is required)
by the Borough of Saddle River, New Jersey (“Commencement Date”) and to end at
11:59 p.m. on the last day of the calendar month in which occurs the day
preceding the sixty-first (61st)
monthly
anniversary of the Commencement Date (“Expiration Date”); provided, however, in
no event shall the Commencement Date be earlier than July 15, 2005. If
Sublandlord, for any reason whatsoever, cannot deliver possession of the
Subleased Premises to Subtenant at the Commencement Date, this Sublease shall
not be void or voidable, nor shall Sublandlord be liable to Subtenant for any
loss or damage resulting therefrom, but in that event, the Commencement Date
shall be the date that the Sublandlord delivers possession of the Subleased
Premises to the Subtenant, or the date Sublandlord would have delivered
possession of the Subleased Premises to the Subtenant but for any acts or
omissions attributable to Subtenant; provided, however, if possession of the
Subleased Premises is not delivered on or before August 1, 2005, Subtenant
shall
have the option to terminate this Sublease by sending written notice to
Sublandlord whereupon this Sublease shall be null and void and of no force
and
effect, and Sublandlord shall return to Subtenant the first month’s Rent and
security deposit and thereupon neither party shall have any further obligation
to the other.
Upon
request of either party, the parties shall execute an agreement stating the
Commencement Date and Expiration Date of the term of this Sublease.
3. RENT.
From
and after the Commencement Date, and continuing throughout the remainder of
the
Term of this Sublease, Subtenant shall pay to Sublandlord Annual Base Rent
(sometimes hereinafter referred to as “Rent”) for the Subleased Premises in the
amount of Four Hundred Thousand Five Hundred and 00/100 ($400,500.00) Dollars
in
equal consecutive monthly installments of Thirty Three Thousand Three Hundred
Seventy Five and 00/100 ($33,375.00) Dollars. The aforesaid amounts of monthly
installments of Annual Base Rent shall be payable in advance on or before the
first day of each calendar month through the remainder of the Term, without
set-off, deduction, counterclaim or any previous demand therefor provided,
however, a proportionately lesser sum may be paid for the month in which occurs
the Commencement Date or the Expiration Date in the event the Commencement
Date
occurs on other than the first date of the month. The Annual Base Rent, and
any
Additional Rent as hereinafter provided, shall be payable at the office of
the
Sublandlord at the address set forth above, or as may otherwise be directed
by
notice from Sublandlord to Subtenant. Sublandlord acknowledges receipt from
Subtenant of the sum of Thirty Three Thousand Three Hundred Seventy Five and
00/100 ($33,375.00) Dollars by check, subject to collection, for Annual Base
Rent for the first month of the Term.
Provided
Subtenant is not in monetary default in any of the terms, covenants or
provisions of this Lease beyond any applicable notice or cure period, and
notwithstanding anything contained herein to the contrary, Subtenant shall
be
entitled to a monthly abatement in the amount of Thirty Three Thousand Three
Hundred Seventy Five and 00/100 ($33,375.00) Dollars, said concession to be
applied against the monthly payment of Annual Base Rent due pursuant to this
Lease for the second (2nd)
full
calendar month of the term of this Sublease (the "Concession Period"). The
entire fixed rent otherwise due and payable irrespective of the concession
shall
become immediately due and payable to the Landlord upon the occurrence of a
default by Subtenant in any of Subtenant’s obligations under this Sublease,
which default continues beyond any applicable notice or cure period, and
Subtenant's entitlement to any prospective concession existing at such time,
if
any, shall be automatically withdrawn and terminated.
4. ADDITIONAL
RENT.
It is
expressly agreed that Subtenant shall pay during the Term, as Additional Rent,
in addition to the Annual Base Rent as provided for in Section 3, “Subtenant’s
Proportionate Share,” as hereinafter defined, of those increases in Operating
Expenses and real property taxes applicable to the Project over those Operating
Expenses and real property taxes for the Project during the calendar year 2005
(the “Base Year”) in the manner, at the times and as determined payable under
the terms of the Prime Lease.
5. SUBTENANT’S
PROPORTIONATE SHARE.
Subtenant’s Proportionate Share shall be 19.04%.
6. ELECTRICITY\UTILITIES\SERVICES.
(a)
Subtenant shall pay during the Term, as Additional Rent, in addition to the
Annual Base Rent as provided for in Section 4 hereinabove, Subtenant’s
Proportionate Share of the cost of utilities (excluding electricity supplied
to
and services supplied to the Subleased Premises and charged to Sublandlord
under
the terms of the Prime Lease). Subtenant shall have the right to access and
use
HVAC and electricity at times other than during Building days and hours, subject
to the terms of Section 11.7 and 11.8 of the Prime Lease.
(b) Subtenant
shall pay Sublandlord, in addition to Annual Base Rent, an Electrical Energy
Charge as a condition for Sublandlord to cause electric current to be supplied
to the Subleased Premises based upon Subtenant’s actual electric consumption
which shall be measured by a separate checkmeter, installed by Sublandlord
at
Sublandlord’s sole expense, for the Subleased Premises in the manner, at the
times and as determined pursuant to the terms of Section 11.6 of the Prime
Lease.
7. CONDITION
OF SUBLEASED PREMISES.
Subtenant hereby acknowledges to Sublandlord that as of the Commencement Date,
Subtenant is leasing the Subleased Premises in its “AS IS”, “WHERE IS”
condition; provided, however, the Subleased Premises shall be delivered to
Subtenant in broom clean condition, free of all debris and free of all personal
property not being leased to Subtenant hereunder.
8. INCORPORATION
OF PRIME LEASE.
(a) All
of the terms of the Prime Lease are hereby incorporated into this Sublease
and
shall, as between Sublandlord and Subtenant (as if they were the Landlord and
Tenant, respectively, under the Prime Lease) constitute the terms of this
Sublease, except to the extent they are inapplicable to, inconsistent with,
or
modified by the terms of this Sublease and provided that those economic and
performance requirements of the Prime Landlord under the Prime Lease which
are
to be performed or paid by the Prime Landlord shall remain the responsibility
of
Prime Landlord under the Prime Lease, and shall not be the responsibility of
Sublandlord. Subtenant shall be bound by the Prime Lease in accordance with
the
terms and conditions contained in this Sublease, and Sublandlord shall be
entitled to assert, pursue and obtain all rights and remedies of the Prime
Landlord under the Prime Lease, including but not limited to all rights and
remedies associated with a default under the Prime Lease or this Sublease by
the
Subtenant or Subtenant’s failure to pay any amount of Rent or Additional Rent in
accordance herewith.
(b) Sublandlord
warrants and represents to Subtenant the following, each of which warranties
and
representations shall be deemed remade and repeated as of the Commencement
Date:
(i) the Prime Lease is in full force and effect; (ii) Sublandlord has not
received a notice of default or notice of termination with respect to the Prime
Lease; (iii) Sublandlord is neither in default of, nor has Sublandlord breached
any of, its covenants, agreements or obligations under the Prime Lease; (iv)
to
the best of Sublandlord’s knowledge, Prime Landlord is neither in default of nor
has Prime Landlord breached any of its covenants, agreements or obligations
under the Prime Lease; (v) Sublandlord’s interest in the Prime Lease has not
been conveyed, transferred, assigned, pledged or otherwise encumbered; and
(vi)
all amounts due and payable by Sublandlord under the Prime Lease, including
any
Annual Base Rent and Additional Rent, have been paid through May 31,
2005.
(c) If
Prime
Landlord shall default in any of its obligations under the Prime Lease, or
shall
fail to furnish facilities, services, or utilities or make repairs to the
Subleased Premises, then, upon Sublandlord’s receipt of written notice from
Subtenant specifying such default, Sublandlord shall use diligent efforts to
cause Prime Landlord to cure such default.
9. QUIET
ENJOYMENT.
If
Subtenant performs all of the terms of this Sublease, Sublandlord warrants
that
Sublandlord shall do nothing to affect Subtenant’s right to peaceably and
quietly have, hold and enjoy the Subleased Premises for the term herein
mentioned, subject to the provisions of this Sublease.
10. USE
AND OCCUPANCY.
Subtenant shall use and occupy the Subleased Premises for general administrative
office use, and no other use shall be permitted.
11. SUBLANDLORD
TO COMPLY WITH PRIME LEASE.
Sublandlord agrees to pay the Rent or Additional Rent reserved in the Prime
Lease and to perform and observe the covenants and stipulations contained
therein so far as they ought to be performed and observed by the Sublandlord,
as
Tenant, under the Prime Lease. Sublandlord shall not do anything which would
cause the Prime Lease to be terminated or forfeited. Sublandlord shall indemnify
and hold Subtenant harmless from and against any and all claims, liabilities,
losses, damage, demands, expenses (including, without limitation, reasonably
attorneys’ fees), actions and causes of action of any kind whatsoever by reason
of any breach or default on the part of Sublandlord or its employees or agents,
in its capacity as Tenant under the Prime Lease, except the extent caused by
the
act or negligence of Subtenant, its respective employees, agents, contractors
or
invitees, by reason of which the Prime Lease is terminated or forfeited.
Sublandlord covenants that it will not enter into any agreement that will modify
or amend the Prime Lease so as to materially adversely affect Subtenant’s right
to use and occupy the Subleased Premises, or any other rights of Subtenant
under
this Sublease, or increase or materially affect the obligations of Subtenant
under this Sublease. Further, Sublandlord will promptly provide Subtenant with
copies of all notices of default that Sublandlord delivers to, or receives
from,
the Prime Landlord under the Prime Lease.
12. SUBTENANT
TO COMPLY WITH PRIME LEASE TERMS.
Subtenant agrees to perform and observe the covenants, conditions and terms
of
the Prime Lease on the part of the Tenant therein to be performed, as if the
Subtenant were the Tenant under the Prime Lease, except to the extent they
are
inapplicable to, inconsistent with or modified by the terms of this Sublease.
Except as expressly incorporated herein, the following Articles and Sections
of
the Prime Lease shall not be applicable to this Sublease: Sections 1.1; 1.2;
1.3; 1.6; 1.7, 1.8; 1.9; 1.10; 1.11; 1.12; 1.13; 1.15; certain attachments
to
Lease set forth in 1.16 as more particularly specified herein; 1.17; 1.18;
1.19;
2.1; 2.2; 3.1; 3.2; 3.3; 3.4; 3.5; 4.1; 5.2(a); 6; the term “Commencement Date”
shall be substituted for “Possession Date” in Section 7.3; the last sentence of
Section 8.3(e); the second paragraph of Section 11.11; 12.1; 12.2; 12.3; 12.5;
12.6; 12.7; 17; 24; 25.4; 26; 30; 40; the second sentence of Section 53;
Addendum Sections 1, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16; Exhibit A -
Second Floor and Third Floor; A-1; A-2; A-3; B; G; H; I; J; K; Schedules 1-A;
1-B; 1-C; 1-D. Wherever in said Prime Lease Prime Landlord’s consent is
required, Subtenant shall be required to obtain Prime Landlord’s and
Sublandlord’s consent. If Prime Landlord consents, Sublandlord shall not
unreasonably withhold its consent.
13. INDEMNITY.
Subtenant shall indemnify, defend and save harmless Sublandlord and Prime
Landlord and their agents against and from (a) any and all claims (i) arising
from (x) the conduct or management by Subtenant, its subtenants, licensees,
its
or their employees, agents, contractors or invitees on the Subleased Premises
or
of any business therein, (y) any work or thing whatsoever done, or any condition
created in or about the Subleased Premises during the term of this Sublease
or
during the period of time, if any, prior to the Commencement Date that Subtenant
may have been given access to the Subleased Premises, except to the extent
caused by the act or negligence of Sublandlord or Prime Landlord or their
respective employees, agents, contractors or invitees, or (z) any claim, damages
and expenses arising out of the nonperformance or nonobservance of Subtenant’s
obligations with respect to the Prime Lease as assumed hereby, or (ii) arising
from any negligent or otherwise wrongful act or omission of Subtenant or any
of
its subtenants or licensees or its or their employees, agents, contractors
or
invitees, and (b) all costs, expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon. In
case
any action or proceeding be brought against Sublandlord or Prime Landlord by
reason of any such claim, Subtenant upon notice from Sublandlord or Prime
Landlord, shall resist and defend such action or proceeding. The provisions
of
this Section shall survive the expiration or sooner termination of this
Sublease.
Sublandlord
agrees to indemnify and save harmless Subtenant from and against all claims
of
whatever nature arising from any act, omission, or negligence of Sublandlord
or
Sublandlord’s contractors, licensees, invitees, agents, servants or employees,
or arising from any accident, injury or damage whatsoever caused to any person,
or to the property of any person, occurring after the date that possession
of
the Subleased Premises is first delivered to Subtenant and until the end of
the
term of this Sublease, where such accident, injury or damage results, or is
claimed to have resulted, from any act or omission on the part of Sublandlord
or
Sublandlord’s agents or employees, licensees, invitees or contractors, except to
the extent caused by the act or negligence of Subtenant or its employees,
agents, contractors or invitees.
14. HOLDOVER.
Any
holdover at the expiration of this Sublease is not with Sublandlord’s consent
and may be terminated as provided by the laws of the State of New Jersey and
Subtenant shall indemnify Sublandlord for any liability resulting therefrom;
provided, however, the Rent paid by Subtenant during any such holdover period
shall be as follows: (i) for the first month of the holdover, one hundred
twenty-five (125%) percent of the Rent payable by Subtenant during the last
month of the term; (ii) for the second month of the holdover, one hundred fifty
(150%) percent of the Rent payable by Subtenant during the last month of the
term; and (iii) for the third and any subsequent month of the holdover, two
hundred (200%) percent of the Rent payable by Subtenant during the last month
of
the term.
15. ALTERATIONS,
ADDITIONS AND IMPROVEMENTS.
Subtenant shall not make alterations, additions or improvements on the Subleased
Premises without first obtaining the written consent of Prime Landlord and
Sublandlord. If Prime Landlord consents, Sublandlord shall not unreasonably
withhold its consent. All alterations, additions and improvements shall be
made
in accordance with the terms and conditions of the Prime Lease. Notwithstanding
anything herein to the contrary, but subject to the provisions of Section 8.3
and Addendum Paragraph 4 of the Prime Lease, Subtenant shall be allowed to
replace carpets, repaint walls and install and reconfigure cubicles subject
to
the prior consent of Sublandlord and Prime Landlord. Sublandlord reserves the
right to notify Subtenant of any restoration Subtenant shall be responsible
for
upon the expiration or sooner termination of this Sublease. Subject to the
prior
written approval by Sublandlord and Prime Landlord of the Subtenant’s plans,
attached hereto and made a part hereof as Exhibit E, which shall be deemed
approved upon execution of this Sublease by Sublandlord and execution of Exhibit
D, [Prime] Landlord’s Consent to Sublease by Prime Landlord, Subtenant shall be
allowed to remove a wall to expand the computer room in the Subleased Premises
and to install shelving and peg boards.
16. LIENS.
Subtenant shall keep the Subleased Premises free and clear of liens arising
out
of any work performed, materials furnished, or obligations incurred by
Subtenant.
17. SIGNS.
Subtenant shall comply with Section 46 of the Prime Lease. Sublandlord shall
use
reasonable efforts to obtain consent from the Prime Landlord under the Prime
Lease to permit Subtenant to install lobby and window signage, at Subtenant’s
sole cost and expense, acceptable to Prime Landlord. Subtenant, shall, if said
sign is permitted, obtain all the necessary governmental approvals therefor
and
be responsible for the care, cost, repair and maintenance thereof, and Subtenant
agrees to remove same at the expiration or sooner termination of this Sublease.
Notwithstanding the foregoing, Subtenant may install, subject to the prior
written consent of Sublandlord and Prime Landlord, signage on the entrance
doorway of the Subleased Premises of a size and in a location comparable to
the
signage currently existing on such doorway substantially as set forth on Exhibit
F attached hereto and made a part hereof, provided, however, Subtenant will
return Sublandlord’s sign to Sublandlord in the event Subtenant removes same.
Such consent shall be deemed given upon execution of this Sublease by
Sublandlord and execution of Exhibit D, Landlord’s Consent to Sublease by
Landlord,
18. ACCESS
FOR INSPECTION AND REPAIRS.
Subtenant shall allow Prime Landlord and Sublandlord and their agents free
access at all reasonable times, upon reasonable prior notice (except no notice
shall be required in the event of an emergency) to the Subleased Premises for
the purpose of inspecting or making repairs, additions, or alterations to the
Subleased Premises or any property owned by or under the control of Prime
Landlord or Sublandlord; provided, however, Sublandlord and Prime Landlord
shall
use reasonable efforts not to unduly disturb Subtenant’s use and occupancy of
the Subleased Premises during any such access.
19. REPAIRS
AND MAINTENANCE.
Subject
to the Prime Landlord’s obligations under the Prime Lease, Subtenant shall
maintain the Subleased Premises in good repair and tenantable condition during
the term of this Sublease.
20. INSURANCE.
Subtenant agrees to carry insurance in accordance with Section 9 of the Prime
Lease insuring Subtenant, Sublandlord and Prime Landlord against all claims
for
personal injury or property damage caused by conditions or activities on the
Subleased Premises and common areas in accordance with the Prime Lease.
Subtenant shall have Sublandlord and Prime Landlord named as additional insured
on its insurance policies, as their interests may appear, and deliver an
insurance certificate evidencing same to Sublandlord on or before the
Commencement Date of this Sublease.
21. DAMAGE
BY FIRE, EXPLOSION, THE ELEMENTS OR OTHERWISE.
Subtenant shall be bound by the provisions of Section 10 of the Prime Lease.
In
the event the Subleased Premises are damaged and the Prime Lease is not
terminated, or the damage is so slight so that the Subleased Premises are not
rendered untenantable and unfit for occupancy, any equitable abatement provided
for in said Section 10 shall inure to Subtenant only to the extent the Subleased
Premises are affected thereby. Subtenant shall immediately notify Sublandlord
in
case of fire or other damage to the Subleased Premises.
22. EMINENT
DOMAIN: CONDEMNATION.
Subject
to Prime Landlord’s and Sublandlord’s rights under Section 15 of the Prime Lease
to effect a termination of the Prime Lease, and consequently of this Sublease,
if the Subleased Premises are so taken, Subtenant shall have no claim or
interest in or to any award or damages for such taking.
23. WAIVER
OF ONE BREACH NOT WAIVER OF OTHERS.
Waiver
of one breach of a term, condition or covenant of this Sublease by either party
hereto shall be limited to the particular instance and shall not be deemed
to
waive future breaches of the same or other terms, conditions or
covenants.
24. INSOLVENCY
OF SUBTENANT.
Either
(a) the appointment of a receiver to take possession of all or substantially
all
of the assets of Subtenant, or (b) a general assignment by Subtenant for the
benefit of creditors, or (c) any action taken or suffered by Subtenant under
any
insolvency or bankruptcy act shall constitute a default of this Sublease by
Subtenant, and Sublandlord may terminate this Sublease forthwith and upon notice
of such termination, Subtenant’s right to possession of the Subleased Premises
shall cease, and Subtenant shall then quit and surrender the Subleased Premises
to Sublandlord, but Subtenant shall remain liable as hereinafter provided in
Section 27 hereof.
25. SUBLANDLORD’S
REMEDIES ON DEFAULT.
If
Subtenant defaults in the payment of Rent, or any Additional Rent, or defaults
in the performance of any of the other covenants or conditions hereof, or any
covenant or condition of the Prime Lease by it to be complied with, Sublandlord
may give Subtenant notice of such default, and if Subtenant does not cure such
default in the payment of Rent or Additional Rent within three (3) days after
the receipt of such notice, or such other default within fifteen (15) days
after
the receipt of such notice (or if such other default is of such nature that
it
cannot be completely cured within such period, if Subtenant does not commence
such curing within fifteen (15) days and thereafter proceed with reasonable
diligence and in good faith to cure such default), then Sublandlord may
terminate this Sublease, and Subtenant’s right to possession of the Subleased
Premises shall cease and Subtenant shall then quit and surrender the Subleased
Premises to Sublandlord, but Subtenant shall remain liable as hereinafter
provided in Section 26 hereof.
26. DEFICIENCY.
In any
case where Sublandlord has recovered possession of the Subleased Premises by
reason of Subtenant’s default, Sublandlord may, at Sublandlord’s option, occupy
the Subleased Premises or cause the Subleased Premises to be redecorated or
altered, in accordance with terms and conditions of the Prime Lease, or be
prepared for reletting, and may relet the Subleased Premises or any part thereof
as agent of Subtenant or otherwise, for a term or terms to expire prior to
or at
the same time as the original expiration date of this Sublease, at Sublandlord’s
option and with Prime Landlord’s consent, and receive the rent therefor. Rent so
received, or in the event that Sublandlord occupies said Premises, the
reasonable value of the rental of said Subleased Premises (not to exceed the
Rent or Additional Rent reserved herein), shall be applied first to the payment
of such expenses as Sublandlord may have incurred in connection with the
recovery of possession, redecorating, or altering, or otherwise changing or
preparing for reletting, and the reletting, including brokerage and reasonable
attorney’s fees, and then to the payment of damages in amounts equal to the Rent
or Additional Rent hereunder and to the cost and expenses of performance of
the
other covenants of Subtenant as herein provided.
Subtenant
agrees, in any such case, whether or not Sublandlord has relet, to pay to
Sublandlord damages equal to the Rent and Additional Rent and other sums herein
agreed to be paid by Subtenant, less the net proceeds of the reletting, if
any,
as ascertained from time to time, and the same shall be payable by Subtenant
on
the several days above specified for the payment of Rent or Additional Rent.
In
reletting the Subleased Premises as aforesaid, Sublandlord shall have the right
to grant reasonable rent concessions and such other concessions as it may
reasonably deem necessary. Sublandlord shall have no affirmative duty to affect
any reletting. No such reletting shall constitute a surrender and acceptance
or
be deemed evidence thereof.
Alternatively,
in any case where Sublandlord has recovered possession of the Subleased Premises
by reason of Subtenant’s default, Sublandlord may, at Sublandlord’s option, and
at any time thereafter, and without notice or other action by Sublandlord,
and
without prejudice to any other rights or remedies it may have hereunder or
at
law or equity, become entitled to recover from Subtenant, as damages for such
breach, in addition to such other sums herein agreed to be paid by Subtenant,
to
the date of re-entry, expiration and/or dispossess an amount equal to the
difference between the Rent and Additional Rent reserved in this Sublease from
the date of such default to the date of expiration of the original term demised
and the then fair and reasonable rental value of the Subleased Premises for
the
same period; provided said fair and reasonable rental is less than the Rent
and
Additional Rent reserved herein. Said damages shall become due and payable
to
Sublandlord immediately upon such breach of this Sublease and without regard
to
whether this Sublease be terminated or not, and if this Sublease be terminated,
without regard to the manner in which it is terminated.
Subtenant
hereby waives all right of redemption to which Subtenant or any person claiming
under Subtenant might be entitled by any law nor or hereafter in
force.
Sublandlord’s
remedies hereunder are in addition to any remedy allowed by law.
Subtenant
agrees to pay, as Additional Rent, all attorney’s fees and other expenses
incurred by the Sublandlord in enforcing any of the obligations under this
Sublease, this covenant to survive the expiration or sooner termination of
this
Sublease.
27. LITIGATION
COSTS.
If any
legal action is filed to enforce this Sublease, or any part thereof, the
prevailing party shall be entitled to recover reasonable attorney’s fees, to be
fixed by the court, and costs of the action.
28. NOTICES.
Except
where otherwise required by statute, all notices given pursuant to the
provisions of this Sublease shall be in writing, addressed to the party to
whom
notice is given and sent registered or certified mail, return receipt requested,
in a postpaid envelope as follows:
To
Subtenant: AMERICAN
TACK & HARDWARE CO., INC.
00
Xxxxxx
Xxxx Xxxxx
Xxxxxx,
Xxx Xxxx 00000
To
Sublandlord: PDI,
INC.
Xxx
Xxxxx
00 Xxxxx
Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
Attn:
Xxxxx Xxxxx, Director
of
Office
Administration
With
a
copy to: GREENBAUM,
ROWE, XXXXX & XXXXX LLP
00
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
Notice
shall be deemed to have been duly given upon its receipt or rejection of receipt
as evidenced by a xxxx of lading or return receipt, or upon delivery, if
personally served. It is understood and agreed that unless specifically modified
by this Sublease, Sublandlord shall be entitled to the length of notice required
to be given Prime Landlord under the Prime Lease plus three (3) days and shall
be entitled to give Subtenant the length of notice required to be given by
Tenant under the Prime Lease less three (3) days.
29. SUBLEASE
CONSENT.
This
Sublease shall become effective only if the written consent hereto of the Prime
Landlord is obtained, in substantially the form attached hereto as Exhibit
D. If
such written consent is not obtained by July 22, 2005, then either Sublandlord
or Subtenant shall have the right to send written notice to the other stating
that this Sublease shall be null and void and of no force or effect and
Sublandlord shall return to Subtenant the first month’s Rent and security
deposit and thereupon neither party shall have any further obligation to the
other. Sublandlord shall promptly request the consent of the Prime Landlord
to
this Sublease. Subtenant agrees to provide such information in connection with
such request as the Prime Landlord shall reasonably request.
30. PARKING.Subtenant
shall be provided with Subtenant’s Proportionate Share of total spaces allocated
to Sublandlord under the Prime Lease, ten (10) of which shall be
covered/reserved spaces, and the remaining portion shall be unreserved/uncovered
parking spaces.
31. SECURITY
DEPOSIT.
(a)
Subtenant shall deposit with Sublandlord on the signing of this Sublease the
sum
of One Hundred Thirty Three Thousand Five Hundred and 00/100 ($133,500.00)
Dollars as security for the performance of Subtenant’s obligations under this
Sublease, including without limitation, the surrender of possession of the
Subleased Premises to Sublandlord as herein provided. The security shall be
in
the form of an irrevocable letter of credit (the “Security Deposit L/C”). The
Security Deposit L/C shall be delivered to Sublandlord at Subtenant’s sole cost
and expense. The Security Deposit L/C shall be issued by and drawn on a bank
or
financial institution reasonably acceptable to Sublandlord maintaining an office
within the State of New Jersey and shall name Sublandlord as beneficiary. If
the
maturity date of the Security Deposit L/C is prior to the end of the term of
this Sublease, Subtenant shall renew the Security Deposit L/C as often as
necessary with the same bank or financial institution (or a similar bank or
financial institution reasonably acceptable to Sublandlord) and upon the same
terms and conditions, not less than thirty (30) days prior to the purported
expiration date of the Security Deposit L/C. In the event Subtenant fails to
timely renew the Security Deposit L/C as aforesaid, Sublandlord shall be
entitled to draw against the entire amount of the Security Deposit L/C. The
Security Deposit L/C shall be assignable by Sublandlord and upon such assignment
to any party assuming in writing the sublessor interest in this Sublease,
Sublandlord shall be relieved from all liability to Subtenant
therefor.
(b) Upon
the
occurrence of any default by Subtenant in the payment of Rent or upon the
occurrence of the events of Section 25 of this Sublease or in the event
Sublandlord terminates this Sublease in accordance with the terms hereof
following a default by Subtenant after the expiration of any applicable notice
and cure period, Sublandlord shall have the right to draw the entire amount
of
the Security Deposit L/C. Sublandlord agrees to copy Subtenant on any notice
to
the issuing bank requesting a draw against the Security Deposit L/C. In the
event that Subtenant defaults after the expiration of any applicable notice
and
cure period in making any payment required to be made by Subtenant under the
terms of this Sublease other than the payment of Rent, then Sublandlord shall
be
entitled to draw upon so much of the Security Deposit L/C as equals the
defaulted payment(s), plus any interest or other charges due thereon in
accordance with this Sublease. If Sublandlord elects to make a partial draw
upon
the Security Deposit L/C, Subtenant shall promptly restore the Security Deposit
L/C to its original amount within ten (10) days after written demand therefor.
Sublandlord’s election to make a partial draw upon the Security Deposit L/C
shall in no event prejudice or waive Sublandlord’s right to terminate this
Sublease if permitted under applicable provisions of this Sublease, nor shall
such election prejudice or waive any other remedy of Sublandlord reserved under
the terms of this Sublease, including the right to draw the entire amount of
the
Security Deposit L/C, if applicable. The Security Deposit L/C shall be available
for payment against the presentation of a sight draft by the Sublandlord (with
simultaneous notice to Subtenant) together with a certificate from Sublandlord
that Subtenant is in default of its obligations hereunder beyond expiration
of
any applicable notice and cure periods and that Sublandlord is entitled, by
the
terms of this Sublease, to draw upon the Security Deposit L/C. The proceeds
of
the Security Deposit L/C, if drawn by Sublandlord pursuant to the terms hereof,
shall be held by Sublandlord and applied to reduce any amount owed by Subtenant
to Sublandlord.
(c) In
the
event that (i) Sublandlord draws the full amount of the Security Deposit L/C
as
a result of a default by Subtenant, (ii) this Sublease is not terminated by
Sublandlord as a result of such default, (iii) such default is fully cured
by
Subtenant, and (iv) there is no outstanding cured default by Subtenant, then
the
balance of the sums drawn (after the payment of any sums related to the curing
of any defaults) shall be applied to obtain a replacement letter of credit
as
security for Subtenant’s performance hereunder in the amount initially required
herein.
(d) To
the
extent the Security Deposit L/C is either lost or the issuing bank will not
honor the Security Deposit L/C, Subtenant personally guarantees the proceeds
of
the Security Deposit L/C and will immediately remit to Sublandlord the amount
of
the Security Deposit L/C in cash to be held in accordance with this Section
31.
(e) Notwithstanding
anything to the contrary contained in this Section 31, provided Subtenant has
not been in default under this Sublease beyond the expiration of any applicable
notice and cure periods at any time during the first twenty four (24) months
of
the term of this Sublease, and Subtenant has paid Sublandlord Rent on a timely
basis as required herein, Sublandlord shall permit the Security Deposit L/C
to
be amended (at Subtenant’s sole cost and expense) to reduce the face amount of
the Security Deposit L/C to a sum equal to Sixty-Six Thousand Seven Hundred
Fifty and 00/100 ($66,750.00) Dollars. In no event shall a reduction to the
amount of the Security Deposit L/C be deemed to have occurred absent an
amendment to the Security Deposit L/C in writing by the issuing bank. It shall
be Subtenant’s sole obligation to obtain such written amendment from the issuing
bank.
(f) In
the
event of the insolvency of Subtenant, or in the event of the entry of a judgment
in bankruptcy in any court against Subtenant which is not discharged within
twenty (20) days after entry, or in the event a petition is filed by or against
Subtenant under any chapter of the bankruptcy laws of the State of New Jersey
or
the United States of America, then in such event, Sublandlord may require the
Subtenant to deposit additional security in an amount which in Sublandlord’s
sole judgment would be sufficient to adequately assure Subtenant’s performance
of all of its obligations under this Sublease including all payments
subsequently accruing. Failure of Subtenant to deposit the security required
by
this Paragraph within ten (10) days after Sublandlord’s written demand shall
constitute a material breach of this Sublease by Subtenant.
(g) Within
thirty days after expiration or sooner termination of this Sublease, provided
Subtenant is not then in default of any of the terms, covenants and conditions
of this Sublease or the Prime Lease, Sublandlord shall return the security
deposit, or balance thereof to which Subtenant is entitled after deduction
therefrom of any sums in accordance with the provisions of this Sublease.
32. HAZARDOUS
MATERIALS.
Sublandlord represents that to the best of its knowledge, without undertaking
any independent inquiry, that neither the Subleased Premises nor the Building,
including the ground and groundwater contain any Hazardous Substances, nor
have
they been used for the storage, manufacture or disposal of same.
33. BROKER.
Sublandlord and Subtenant represent and warrant one to the other that CB Xxxxxxx
Xxxxx, Inc. and The Xxxxxx Xxxxx Company, LLC (collectively, “Broker”) is the
sole Broker with whom either party has negotiated in bringing about this
Sublease, and Sublandlord and Subtenant agree to indemnify and hold each other
harmless from any and all claims of other brokers and expenses in connection
therewith arising out of or in connection with any conduct inconsistent with
the
representations tendered by one to the other herein. Sublandlord agrees to
pay
Broker a commission pursuant to a separate agreement.
34. SUBLEASE
APPLICABLE TO HEIRS, SUCCESSORS AND ASSIGNS.
The
terms, conditions and covenants of this Sublease shall inure to and be binding
on the heirs, successors, administrators, executors and assigns of the parties
hereto, except as otherwise herein provided.
35. NO
ASSIGNMENT OR SECOND SUBLEASE WITHOUT CONSENT.
(a)
Subtenant shall not sell or assign this Sublease or any part thereof, or any
interest therein, or re-sublet the Subleased Premises in whole or in part
without first obtaining the written consent of Sublandlord and Prime Landlord,
which consent as to the Sublandlord only shall not be unreasonably withheld.
This Sublease shall not be assigned by operation of law. If Sublandlord and
Prime Landlord give consent to assignment of this Sublease or of any interest
therein, they shall not thereby be barred from subsequently refusing to consent
to any further assignment. However, said consent shall not be unreasonably
withheld by Sublandlord. Any attempt to sell, assign, or re-sublease without
written consent of Sublandlord and Prime Landlord shall be deemed a default
and
shall entitle Sublandlord to proceed pursuant to this Sublease if Sublandlord
so
elects.
(b) Notwithstanding
anything to the contrary contained in this Sublease or the Prime Lease,
Subtenant may assign this Sublease or sublet the whole or any part of the
Subleased Premises to any person or entity, or to any corporation or entity
with
which it shall be merged or which shall acquire all or substantially all of
the
assets or stock of Subtenant, without Sublandlord’s or Prime Landlord’s consent,
but upon notice to Sublandlord and Prime Landlord, provided, however, that
in
the event of such merger, consolidation or transfer of all or substantially
all
of the assets or stock of Subtenant (i) the successor to Subtenant has a net
worth computed in accordance with generally accepted accounting principles
sufficient to meet its then remaining obligations under this Sublease from
and
after the effective date of such transaction, and (ii) proof reasonably
satisfactory to Sublandlord and Prime Landlord of such net worth shall have
been
delivered to Sublandlord and Prime Landlord at least 10 business days prior
to
the effective date of any such transaction.
36. INTERRUPTION
OF SERVICES OF USE.
Interruption or curtailment of any service maintained in the Building shall
not
entitle Subtenant to claim constructive eviction or any other cause of action
against Sublandlord, but Subtenant shall join with and have those rights and
remedies Sublandlord may have against Prime Landlord as a result of said
interruption. Subtenant shall, under no circumstances, have any claim against
Sublandlord or Prime Landlord for interruption to Subtenant’s business, however
occurring.
37. SUBLANDLORD
NOT LIABLE.
Sublandlord shall not be liable to Subtenant for any loss suffered by Subtenant
under any circumstances, including, but not limited to (i) that arising from
the
negligence of Sublandlord or Prime Landlord, their agents, servants, invitees,
contractors or subcontractors, or from defects, errors or omissions in the
construction or design of the Subleased Premises and/or the Building including
the structural and nonstructural portions thereof; or (ii) for loss of or injury
to Subtenant or to Subtenant’s property or that for which Subtenant is legally
liable from any cause whatsoever, including but not limited to theft or
burglary; or (iii) for that which results from any inspection, repair,
alteration or addition or the failure thereof undertaken or failed to be
undertaken by Sublandlord or Prime Landlord, but Subtenant shall join with
and
have those rights and remedies Sublandlord may have against Prime Landlord
as a
result of said interruption.
38. WAIVER
OF SUBROGATION.Sublandlord
and Subtenant each hereby waives its respective right of recovery against the
other and each releases the other from any claim arising out of loss, damage
or
destruction to the Subleased Premises, and contents thereon or therein whether
or not such loss, damage or destruction may be attributable to the fault or
negligence of either party or its respective agents, invitees, contractors
or
employees. Each casualty insurance policy shall include a waiver of the
insurer’s rights of subrogation against the party hereto who is not an insured
under said policy. Each party shall look solely to the proceeds of its
respective casualty insurance policy (and to its own funds to the extent it
is
self-insured) to compensate it for any such loss, damage or
destruction.
39. COMMUNICATIONS.
Sublandlord agrees to allocate reasonable space in Sublandlord’s existing
telephone\server room to permit installation of Subtenant’s telephone\server
equipment serving the Subleased Premises. Subtenant agrees to maintain such
equipment and hold Sublandlord harmless from and against any damage or injury
to
such equipment howsoever caused. Subtenant shall install and maintain such
equipment in a manner which will not cause interference or damage to
Sublandlord’s equipment.
40. FURNITURE.
During
the Term of this Sublease, Subtenant shall be permitted to use Sublandlord’s
furniture and fixtures existing in the Subleased Premises as of the Commencement
Date, as set forth on Exhibit C hereto. Subtenant shall keep and maintain the
furniture and fixtures in good order and condition throughout the term of this
Sublease, making all necessary repairs and replacements as required, and
surrender same to Sublandlord in good order and condition at the expiration
or
sooner termination of this Sublease, reasonable wear and tear and damage by
casualty and the elements excepted.
41. RENEWAL
OPTION.
(a)
Provided Subtenant is not in default under this Sublease beyond any applicable
grace period at the time any renewal notice is given or at the time the renewal
period is to commence, Subtenant shall have the right to renew this Sublease
for
one (1) two (2) year period (the “Renewal Term”).
(b)
Subtenant’s right to renew hereunder is expressly subject to Subtenant’s
furnishing to Sublandlord written notice of its intention to renew this Sublease
at least twelve (12) months prior to the expiration of the term, TIME HEREBY
BEING MADE OF THE ESSENCE.
(c)
All
the terms and conditions of this Sublease shall apply to the renewal period,
except that the Annual Base Rent to be paid during the renewal period shall
be
adjusted as follows:
The
Annual Base Rent to be paid during the Renewal Term shall not be less than
that
paid for the Subleased Premises during the last year of the original term of
this Sublease (without regard to any temporary abatement of rent then in effect
pursuant to the Sublease provisions). However, if the fair rental value per
square foot at the commencement of the renewal term shall exceed the rent as
established in the preceding sentence, the Subtenant shall pay such fair rental
value. In determining the fair rental value, the Sublandlord shall notify the
Subtenant of the fair rental value as established by Sublandlord. Should
Subtenant dispute Sublandlord’s determination, then the Subtenant shall be free
to, at the Subtenant’s sole cost and expense, employ the services of an
appraiser familiar with office buildings located within the Saddle River, New
Jersey area comparable to the Building, who shall be a member of The Appraisal
Institute (“MAI”) and who shall render an appraisal. If the Sublandlord and the
Subtenant’s appraiser cannot agree on the fair rental value, or in such case, on
an independent appraiser acceptable to both, either party may request the
American Arbitration Association of Somerset, New Jersey to appoint such
independent appraiser who shall be a member of MAI familiar with office
buildings in the area of the Building and in such event the judgment of a
majority of the two appraisers and Sublandlord shall be final and binding upon
the parties. The parties shall share equally in the cost of any such independent
appraiser. Pending resolution of the issue of fair rental value, the Lessee
shall pay Sublandlord as of commencement of the renewal term, the Annual Base
Rent as established by Sublandlord, subject to retroactive adjustment upon
final
determination of this issue.
42. SECTION
HEADINGS.
The
Section headings in this Sublease and position of its provisions are intended
for convenience only and shall not be taken into consideration in any
construction or interpretation of this Sublease or any of its
provisions.
43. CAPITALIZED
TERMS.
Capitalized terms used herein shall have the same meanings ascribed to them
in
the Prime Lease unless otherwise defined herein.
44. COUNTERPARTS.
This
Sublease may be executed in two (2) or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
45. SUBORDINATION
OF SECURITY INTEREST. Notwithstanding
anything to the contrary in this Sublease or the Prime Lease, any security
interest that Sublandlord may have in any of the Subtenant’s personal property
shall be automatically subordinated to the security interest, if any, granted
to
Subtenant’s lenders from time to time in the ordinary course of Subtenant’s
business. At Subtenant’s request, Sublandlord shall execute a lien waiver, the
form of which shall be reasonably satisfactory to Sublandlord and Subtenant’s
lender(s), waiving such security interest of Sublandlord in the collateral
described in such lien waiver (which collateral shall exclude any tenant
improvements, any fixtures installed in the Subleased Premises, and any
furniture and fixtures set forth on Exhibit C.
PDI,
INC., Sublandlord
BY:________/S/
XXXXXXX X. XXXXX
NAME:
__BERNARD X. XXXXX
TITLE:___CFO
AMERICAN
TACK & HARDWARE CO., INC., Subtenant
BY:__/S/_JOHN
X. XXXXXX
NAME:____JOHN
X. XXXXXX
TITLE:________PRESIDENT
1
EXHIBIT
A
SUBLEASED
PREMISES
1
EXHIBIT
B
PRIME
LEASE
1
EXHIBIT
C
FURNITURE
AND FIXTURES
1
EXHIBIT
D
LANDLORD’S
CONSENT TO SUBLEASE
THIS
CONSENT TO SUBLEASE ("Consent Agreement") dated as of _________________, 2005,
is made with reference to that certain sublease (the "Sublease") dated June
___,
2005 by and between PDI, INC. (Tenant") and AMERICAN TACK & HARDWARE CO.,
INC. ("Sublessee"), and is entered into between the foregoing parties and VRS
SADDLE RIVER LLC ("Landlord"), having an address c/o Kwartler Associates, Inc.,
0 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 with reference to the following
facts:
A. Landlord
and Tenant are the parties to that certain master lease (the "Master Lease")
dated as of November 20, 2003, respecting certain premises ("Premises") known
as
Suite(s) 300, located in the building ("Building") located at Xxx Xxxxx 00
Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx.
B. Tenant
and Sublessee wish to enter into the Sublease respecting the portion of the
Premises described therein (the "Sublease Premises").
C. The
Master Lease provides that Tenant may not enter into any sublease without
Landlord's prior written approval.
D. Tenant
and Sublessee have herewith presented the fully-executed Sublease to Landlord
for Landlord's approval, and Landlord is willing to approve the same, upon
all
of the terms and conditions hereinafter appearing.
NOW,
THEREFORE, for good and valuable consideration, the parties hereto agree as
follows:
1. Neither
the Master Lease, the Sublease nor this Consent Agreement shall be deemed to
grant Sublessee any rights whatsoever against Landlord. Sublessee hereby
acknowledges and agrees that its sole remedy for any alleged or actual breach
of
its rights in connection with the Sublease Premises shall be solely against
Tenant.
2. This
Consent Agreement shall not release Tenant from any existing or future duty,
obligation or liability to Landlord, pursuant to the Master Lease, nor shall
this Consent Agreement change, modify or amend the Master Lease in any manner.
This Agreement shall not be deemed Landlord's consent to any further
subleases.
3. (a) In
the
event of Master Lease Termination (as hereinafter defined) prior to the
termination of the Sublease, at Landlord's option, Sublessee agrees to attorn
to
Landlord and to recognize Landlord as Sublessee's Landlord under the Sublease,
and Landlord agrees to recognize Sublessee as Landlord’s tenant, upon the terms
and conditions and at the rental rate specified in the Sublease, and for the
then remaining term of the Sublease, except that Landlord shall not be bound
by
any provision of the Sublease which in any way increases Landlord's duties,
obligations or liabilities to Sublessee beyond those owed to Tenant under the
Master Lease. Sublessee agrees to execute and deliver at any time and from
time
to time, upon the request of Landlord, any instruments which may be necessary
or
appropriate to evidence such attornment. Landlord shall not (i) be liable to
Sublessee for any act, omission or breach of the Sublease by Tenant, (ii) be
subject to any offsets or defenses which Sublessee might have against Tenant,
(iii) be bound by any rent or additional rent which Sublessee might have paid
in
advance to Tenant, except to the extent Tenant has turned over such advance
rent
to Landlord, (iv) be bound to honor any rights of Sublessee in any security
deposit made with Tenant except to the extent Tenant has turned over such
security deposit to Landlord. Tenant hereby agrees that in the event of Master
Lease Termination, Tenant shall immediately pay or transfer to Landlord any
security deposit, rent or other sums then held by Tenant.
(b) "Master
Lease Termination" means any event, which by voluntary or involuntary act or
by
operation of law, might cause or permit the Master Lease to be terminated,
expired, canceled, foreclosed against, or otherwise come to an end, including
but not limited to (i) a default by Tenant under the Master Lease of any of
the
terms or provisions thereof, (ii) foreclosure proceedings brought by the holder
of any mortgage or trust deed to which the Master Lease is subject; or (iii)
the
termination of Tenant's leasehold estate by dispossession proceeding or
otherwise.
(c) In
the
event of attornment hereunder, Landlord's liability shall be limited to matters
arising during Landlord's ownership of the Building, and in the event that
Landlord (or any successor owner) shall convey or dispose of the Building to
another party, such party shall thereupon be and become Landlord hereunder
and
shall be deemed to have fully assumed and be liable for all obligations of
this
Consent Agreement or the Sublease to be performed by Landlord which first arise
after the date of conveyance, including the return of any security deposit,
and
Tenant shall attorn to such other party, and Landlord (or such successor owner)
shall, from and after the date of conveyance, be free of all liabilities and
obligations hereunder not then incurred. The liability of Landlord to Sublessee
for any default by Landlord under this Consent Agreement or the Sublease after
such attornment or arising in connection with Landlord's operation, management,
leasing, repair, renovation, alteration, or any other matter relating to the
Building or the Sublease Premises, shall be limited to the interest of the
Landlord in the Building (and proceeds thereof). Under no circumstances shall
any present or future general partner of Landlord (if Landlord is a partnership)
have any liability for the performance of Landlord's obligations under this
Consent Agreement or the Sublease.
4. In
addition to Landlord's rights under Section 3 hereof, in the event Tenant is
in
default under any of the terms and provisions of the Master Lease, Landlord
may
elect to receive directly from Sublessee all sums due or payable to Tenant
by
Sublessee pursuant to the Sublease, and upon receipt of Landlord's notice,
Sublessee shall thereafter pay to Landlord any and all sums becoming due or
payable under the Sublease and Tenant shall receive from Landlord a
corresponding credit for such sums against any payments then due or thereafter
becoming due from Tenant. Neither the service of such written notice nor the
receipt of such direct payments shall cause Landlord to assume any of Tenant's
duties, obligations and/or liabilities under the Sublease, nor shall such event
impose upon Landlord the duty or obligation to honor the Sublease, nor
subsequently to accept Sublessee's attornment pursuant to Section 3(a)
hereof.
5. Sublessee
hereby acknowledges that it has read and has knowledge of all of the terms,
provisions rules and regulations of the Master Lease and agrees not to do or
omit to do anything which would cause Tenant to be in breach of the Master
Lease. Any such act or omission by Sublessee shall also constitute a breach
of
this Consent Agreement and shall entitle Landlord to recover any damage, loss,
cost or expense which it thereby suffers, from Sublessee, whether or not
Landlord proceeds against Tenant.
6. In
the
event of any litigation between the parties hereto with respect to the subject
matter hereof, the unsuccessful party agrees to pay the successful party all
costs, expenses and reasonable attorney's fees incurred therein by the
successful party, which shall be included as a part of the judgment therein
rendered.
7. This
Consent Agreement shall be binding upon an inure to the benefit of the parties'
respective successors and assigns, subject to all agreements and restrictions
contained in the Master Lease, the Sublease and herein with respect to
subleasing, assignment, or other transfer. The agreements contained herein
constitute the entire understanding between the parties with respect to the
subject matter hereof, and supersede all prior agreements, written or oral,
inconsistent herewith. No amendment, modification or change therein will be
effective unless Landlord shall have given its prior written consent thereto.
This Consent Agreement may be amended only in writing, signed by all parties
hereto.
8. Notices
required or desired to be given hereunder shall be effective either upon
personal delivery, upon delivery by a nationally recognized overnight delivery
service or three (3) days after deposit in the United States mail, by certified
mail, return receipt requested, addressed to the Landlord at the address set
forth above, or to Tenant or Sublessee at the address of the Premises or of
the
Sublease Premises, respectively. Any party may change its address for notice
by
giving notice in the manner hereinabove provided.
9. As
a
condition to the effectiveness of Landlord's consent to the Sublease, Tenant
agrees to pay Landlord concurrently with Tenant's delivery of an executed
counterpart hereof,
Dollars
($ )
in
reimbursement of Landlord's reasonable attorneys' fees and administrative
expenses incurred in connection with this Consent Agreement, as additional
rent.
Landlord's acceptance of such fee shall impose no duty on Landlord to approve
or
execute the Sublease. Tenant shall also promptly pay Landlord any share of
bonus
rents, or other items required under the Master Lease in connection with
subleases.
10. Notwithstanding
anything to the contrary set forth herein or elsewhere, if the Master Lease
was
guaranteed at the time of execution or at any time prior hereto by any
guarantor, the Landlord may at any time hereafter declare all of its agreements
in this Consent Agreement to be null and void and or no force and effect unless
and until Landlord receives a counterpart of this Consent Agreement indicating
approval thereof by any and all such guarantor(s), and their spouses (if
any).
11. Tenant
and Sublessee agree to indemnify and hold Landlord harmless from and against
any
loss, cost, expense, damage or liability, including reasonable attorney's fees,
incurred as a result of a claim by any person or entity (i) that it is entitled
to a commission, finder's fee or like payment in connection with the Sublease
or
(ii) relating to or arising out of the Sublease or any related agreements or
dealings.
12. Tenant
agrees to hold any and all payments due under the Sublease as a trust fund
to be
applied first to the satisfaction of all of Tenant's obligations under the
Master Lease and hereunder before using any part thereof for any other
purpose.
13. Notwithstanding
anything to the contrary contained in the Sublease or the Master Lease,
Sublessee may assign the Sublease or sublet the whole or any part of the
Sublease Premises to any person or entity, or to any corporation or entity
with
which it shall be merged or which shall acquire all or substantially all of
the
assets or stock of Sublessee, without Tenant’s or Landlord’s consent, but upon
notice to Tenant and Landlord, provided, however, that in the event of such
merger, consolidation or transfer of all or substantially all of the assets
or
stock of Sublessee (i) the successor to Sublessee has a net worth computed
in
accordance with generally accepted accounting principles sufficient to meet
its
then remaining obligations under this Sublease from and after the effective
date
of such transaction, and (ii) proof reasonably satisfactory to Tenant and
Landlord of such net worth shall have been delivered to Tenant and Landlord
at
least 10 business days prior to the effective date of any such
transaction.
14. Notwithstanding
anything to the contrary contained in the Sublease or the Master Lease, any
security interest that Landlord may have in any of the Sublessee’s personal
property shall be automatically subordinated to the security interest, if any,
granted to Sublessee’s lenders from time to time in the ordinary course of
Sublessee’s business. At Sublessee’s request, Landlord shall execute a lien
waiver, the form of which shall be reasonably satisfactory to Landlord and
Sublessee’s lender(s), waiving such security interest of Landlord in the
collateral described in such lien waiver (which collateral shall exclude any
tenant improvements, any fixtures installed in the Sublease Premises, and any
furniture and fixtures set forth on Exhibit C to the Sublease.
15, Notwithstanding
anything to the contrary contained in the Sublease, the Master Lease, or herein,
Landlord hereby (i) approves Sublessee’s plans, as set forth in Exhibit E to the
Sublease, and the work to be performed pursuant thereto; and (ii) approves
Sublessee’s signage, as set forth in Exhibit F to the Sublease, and the
installation of such sign pursuant thereto.
IN
WITNESS WHEREOF, the following parties have executed this Consent Agreement
as
of the date first above written.
TENANT:
PDI,
INC.
By:
Its:
SUBLESSEE:
AMERICAN
TACK & HARDWARE CO., INC.
By:
Its:
LANDLORD:
VRS
SADDLE RIVER LLC
By:
Its:
1
EXHIBIT
E
SUBTENANT’S
PLANS
1
EXHIBIT
F
SUBTENANT’S
SIGNAGE
