LEASE/SUBLEASE
BY AND BETWEEN
XXXXX XXXX'X INCORPORATED,
a Delaware corporation, and
XXXXX XXXX'X HOLDINGS, INC.
a Delaware corporation
COLLECTIVELY, AS SUBLANDLORD
AND
PORT CITY PRESS, INC.,
a Maryland corporation
AS SUBTENANT
DATED AS OF AUGUST 14, 1998
LEASE/SUBLEASE
THIS LEASE/SUBLEASE ("Lease/Sublease") is entered into as of the
14th day of August, 1998 (the "Effective Date") by and between XXXXX XXXX'X
INCORPORATED, a Delaware corporation, and XXXXX XXXX'X HOLDINGS, INC., a
Delaware corporation (collectively, "Sublandlord"), and PORT CITY PRESS,
INC., a Maryland corporation ("Subtenant"), with reference to the following:
W I T N E S S E T H
WHEREAS, Sublandlord is the owner (or tenant, as described in the
succeeding recitals) of that certain premises (the "Premises") consisting of:
(a) land described in EXHIBIT "A" hereto, (b) all buildings, structures and
other improvements constructed and to be constructed thereon (including all
building equipment and fixtures owned by Sublandlord, but excluding personal
property, trade equipment and fixtures owned by Subtenant; and (c) all
easements, rights and appurtenances relating thereto.
WHEREAS, (i) Sublandlord has agreed to sell (the "Sale Transaction")
the Premises to 1323 Greenwood, L.L.C., a Delaware limited liability company
(herein "Landlord"); and (ii) Landlord, and Sublandlord, have agreed, at the
closing (the "Closing") of the Sale Transaction, to enter into that certain
lease agreement, dated August 13, 1998 (hereinafter, the "Master Lease"),
wherein Landlord has agreed to lease to Sublandlord and Sublandlord agreed to
lease back from Landlord, the Premises.
WHEREAS, a true and complete copy of the Master Lease is set forth
on EXHIBIT "B" attached hereto and incorporated by reference herein and the
same has been delivered to Subtenant, and Subtenant, by its execution hereof,
acknowledges receipt of the same; all capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms under the Master Lease.
WHEREAS, Sublandlord and Subtenant may enter into this
Lease/Sublease prior to the time Sublandlord and Purchaser enter into the
Master Lease at the Closing under the Purchase Agreement.
WHEREAS, (a) if the Closing has not occurred as of the Effective
Date, Sublandlord and Subtenant intend that this Lease/Sublease shall
constitute a direct, prime lease of the Premises by Sublandlord, as owner of
the Premises, to Subtenant, as tenant, until the date of the Closing and the
effectiveness of the Master Lease, at which time this Lease/Sublease shall
automatically be converted, without further action by the parties hereto, into
a sublease of the Premises by Purchaser, as Landlord, Sublandlord, as
Sublandlord, and Subtenant, as Subtenant, or (b) if the Closing has occurred,
this Lease/Sublease shall immediately upon execution be a
sublease between Sublandlord, as Sublandlord, and Subtenant, as Subtenant; in
either case at a rent, and upon and subject to the covenants, agreements,
terms, conditions, limitations, exceptions and reservations contained in the
Master Lease.
NOW, THEREFORE, in consideration of the premises leased and/or
subleased herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Sublandlord and Subtenant hereby
covenant and agree as follows:
ARTICLE I.
LEASE PROVISIONS.
If the Effective Date is prior to the date that Landlord and
Sublandlord enter into the Master Lease (the "Master Lease Commencement
Date"), Sublandlord hereby leases pursuant to the terms of this Article I and
Article III (the "Lease") the Premises to Subtenant, and Subtenant hereby
hires the Premises from Sublandlord on the following terms, covenants and
conditions:
1.1. INCORPORATION OF TERMS OF MASTER LEASE. Each and every
provision of the unexecuted Master Lease as set forth on EXHIBIT "B" of this
Lease/Sublease is hereby incorporated by reference into the Lease with the
same force and effect as if set forth at length herein and shall apply to the
Premises at all times during the Lease Term as if the Lease Term and the Term
of the Master Lease were co-extensive. References in the Master Lease to
"Landlord", "Tenant", "Premises", "Lease", "Basic Rent" and "Additional Rent"
shall be deemed to refer to Sublandlord, Subtenant, Premises, Lease, Basic
Rent, Additional Rent applicable to the Lease Term hereunder,
respectively. All references to the Lease in this Article I shall be deemed
to be to the provisions of this Article I incorporating the terms of the
unexecuted Master Lease.
1.2. LEASE TERM. The Lease shall be for a term ("Lease Term")
commencing on the Effective Date and ending on the Master Lease Commencement
Date or on such earlier date upon which said term may expire or be canceled
or terminated pursuant to the terms of the Master Lease; provided, however,
that if for any reason Purchaser and Landlord do not enter into the Master
Lease, the Lease Term shall continue until the expiration of the Term (as
defined in the Master Lease), unless sooner terminated under the terms of the
Lease.
1.3. LEASE RENT.
(a) BASIC RENT. Subtenant shall pay as rent for the Premises
during the Lease Term an amount equal to the Basic Rent (which would
otherwise be applicable under the Master Lease if the Term of the Master Lease
and the Lease Term were co-extensive) in the amounts set forth on Exhibits
5-1 and 5-2 of the Master Lease, in monthly installments in advance on the
Basic Rent Payment Date.
(b) ADDITIONAL RENT. In addition to the Basic Rent provided
for in Paragraph 1.3(a) of this Article I, during the Lease Term, Subtenant
shall pay any and all Additional Rent and any other amounts payable by Tenant
under the Lease.
2.
(c) PAYMENT OF RENT. During the Lease Term, Subtenant shall
pay the Basic Rent, the Additional Rent and any other amounts required to be
paid by Tenant under the Lease by wire or other electronic transfer of
immediately available funds to Sublandlord at the address of Sublandlord set
forth at Paragraph 1 of Article III hereof and/or to such other person or
such other place or account as Sublandlord may designate to Subtenant in
writing, without demand therefor, provided, Sublandlord may designate to
Subtenant in writing that all of the monthly Basic Rent be paid directly to a
mortgagee of Landlord (to the extent so provided in the Master Lease), and
such payment by Subtenant to Landlord or a mortgagee shall satisfy
Subtenant's rental obligations to the same extent as if such payment was
made to the Sublandlord.
(d) NO SET-OFF. Except as otherwise expressly provided in the
Lease, Basic Rent and Additional Rent shall be paid by Subtenant without notice
or demand (except as expressly provided in the Master Lease with respect to
notice and demands), setoff, counterclaim, abatement, suspension, deduction
or defense.
1.4 ARTICLE I NOT EFFECTIVE IF CLOSING HAS OCCURRED. Notwithstanding
anything to the contrary contained herein, the provisions of this Article I
shall immediately cease to be effective, in the event that the Closing has
occurred prior to the Effective Date hereof.
Article II.
SUBLEASE PROVISIONS.
If and when Landlord and Sublandlord enter into the Master Lease,
Sublandlord hereby subleases pursuant to the terms of this Article II and
Article III (the "Sublease") to Subtenant, and Subtenant hereby subleases from
Sublandlord the Premises on the following terms, covenants and conditions:
2.1 INCORPORATION OF MASTER LEASE TERMS. Except as otherwise
expressly provided herein, the provisions of the executed Master Lease in
identical form as set forth on EXHIBIT "B" of this Lease/Sublease are hereby
incorporated by reference with the same force and effect as if set forth at
length herein and shall apply to the Premises to the extent that the same are
applicable, except as modified and amended by this Lease/Sublease. References
in the Master Lease to "Landlord", "Tenant", "Premises", "Master Lease",
"Basic Rent" and "Additional Rent" shall be deemed to refer to Sublandlord,
Subtenant, Premises, this Lease/Sublease, Basic Rent and Additional Rent
hereunder, respectively. Subtenant hereby covenants to Sublandlord and agrees
for the benefit of Sublandlord that Subtenant shall perform and observe each
and every covenant and agreement to be observed or performed by the Tenant
under the Master Lease. Sublandlord hereby covenants to Subtenant and agrees
for the benefit of Subtenant that Sublandlord will not interfere with the
fulfillment by Landlord of any of its obligations to Subtenant under that
certain Non-Disturbance Agreement, dated on or about the date of the Closing,
by and among, Landlord, Sublandlord and Subtenant (the "Non-Disturbance
Agreement"), nor will Sublandlord have the right to take any action which
will result in a default under the Master Lease or in the termination of the
Master Lease. Notwithstanding the foregoing, Sublandlord shall have no
liability to Subtenant for any default under the Master Lease to the extent
the same is caused by Subtenant's failure to comply with its own obligations
3.
under this Sublease. All references to the Sublease in this Article II shall
be deemed to be to the provisions of this Article II incorporating the terms
of the Master Lease. To the extent that any provisions of the Master Lease
may conflict or be inconsistent with the provisions of any provisions of this
Sublease, whether or not such inconsistency is expressly noted herein, the
provisions of this Sublease shall govern.
2.2. SUBLEASE TERM. The Sublease term ("Sublease Term") shall
commence on the Master Lease Commencement Date and shall, subject to the
terms of the Non-Disturbance Agreement, end on the day preceding the
expiration of the Term of the Master Lease (the "Sublease Expiration Date")
or on such earlier date upon which said term may expire or be canceled or
terminated pursuant to any of the provisions of the Master Lease and this
Sublease.
2.3. SUBLEASE RENT.
(a) BASIC RENT. Subtenant shall pay as rent for the Premises
during the Sublease Term an amount equal to the Basic Rent which would
otherwise be applicable under the Master Lease if the Term of the Master
Lease and the Sublease Term were coextensive in the amounts set forth on
Exhibits 5-1 and 5-2 of the Master Lease in monthly installments in advance
on the Basic Rent Payment Date.
(b) ADDITIONAL RENT. In addition to the Basic Rent provided
for in Paragraph 1.3(a) of this Article II, during the Sublease Term,
Subtenant shall pay any and all Additional Rent and any other amounts payable
by Tenant under the Lease when and if required under the Sublease.
(c) PAYMENT OF RENT. During the Sublease Term, Subtenant
shall pay the Basic Rent, the Additional Rent and any other amounts required
to be paid by the Tenant under the Sublease by wire or other electronic
transfer of immediately available funds directly to Landlord at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and/or to such other person or such
other place or account as Landlord may designate to Subtenant in writing,
without demand therefor; provided, Landlord or Sublandlord may designate to
Subtenant in writing that all of the monthly Basic Rent and Additional Rent
be paid directly to Landlord or a mortgagee of Landlord (to the extent so
provided in the Master Lease), and such payment by Subtenant to Landlord or a
mortgagee shall satisfy Subtenant's rental obligations to the same extent as
if such payment was made to Sublandlord.
(d) NO SET-OFF. Except as otherwise expressly provided in
the Master Lease, Basic Rent and Additional Rent shall be paid by Subtenant
without notice or demand (except as expressly provided in the Master Lease
with respect to notice and demands), setoff, counterclaim, abatement,
suspension, deduction or defense.
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4.
2.4. CONDITION OF PREMISES.
(a) (i) Subtenant agrees that it enters into this Sublease
without any representations, warranties or promises by Sublandlord, its
agents, representatives, employees, servants or any other person with respect
to the Premises; and no rights, easements or licenses are acquired by
Subtenant by implication or otherwise, except as otherwise expressly set
forth in the Master Lease.
(ii) Subtenant further represents that it has made a
thorough examination of the Master Lease and that it is familiar with all the
terms, conditions and covenants contained therein.
(b) Sublandlord shall not be required to make any
alterations, installations, additions, decorations, repairs or improvements
to the Premises.
(c) In no event shall Sublandlord be required to repair any
damage to any equipment, furniture, furnishings, partitioning, carpeting,
wallpapering or other decorative finishings unless such damage is due to the
willful misconduct or negligence of Sublandlord.
(d) Sublandlord shall (i) promptly submit to Landlord an
extra copy or copies of plans, specifications and other items submitted by
Subtenant for consent and approval, and (ii) promptly submit to Subtenant,
all responses or inquiries from Landlord with respect to the foregoing.
(e) On the expiration, termination or cancellation of this
Sublease, all Alterations made by Subtenant, and all personal property left
by Subtenant, shall, unless Sublandlord elects otherwise, be dealt with as
provided in the Master Lease.
2.5. USE OF PREMISES. Subtenant may use the Premises only for such
use or uses as are permitted under the Master Lease.
2.6. ASSIGNMENT AND SUBLETTING. Subtenant shall not, directly,
indirectly, by operation of law or otherwise, assign, mortgage, pledge,
encumber or in any manner transfer this Sublease, or any part thereof, or any
interest of Subtenant hereunder, nor sublet or permit the Premises or any
part thereof to be used or occupied by others except as provided in Paragraph
16 of the Master Lease. Subtenant agrees to provide Sublandlord with written
notice of any proposed assignment or subletting concurrently with providing
any such notice to Landlord under the Master Lease.
2.7. SUBJECT TO MASTER LEASE.
(a) This Sublease is subject and subordinate to all of the
terms, covenants, provisions, conditions and agreements contained in the
Master Lease and in any amendments or supplements thereto now or hereafter
existing and the matters to which the Master Lease is subject and
subordinate. Sublandlord will not enter into any modification or amendment
of the Master Lease without Subtenant's prior written consent, which consent
shall
5.
not be unreasonably withheld. Subtenant acknowledges and agrees that the
Master Lease may not be modified or amended without Sublandlord's prior
written consent. Sublandlord hereby agrees that in the event that Subtenant
requests the consent of Landlord or Sublandlord to any act or undertaking of
Subtenant (i) Sublandlord will reasonably cooperate with such request, at no
cost to Sublandlord, and (ii) provided that Landlord grants such consent,
Sublandlord shall also grant such consent, if the granting of such consent
will not increase, in any material way, the obligations, liabilities or
financial burdens (contingent or otherwise) of Sublandlord under the Master
Lease. Subtenant further covenants and agrees (iii) that Subtenant will not
do or cause to be done or suffer or permit any act or thing to be done which
would or might cause the Master Lease or the rights of Sublandlord as Tenant
thereunder to be canceled, terminated or forfeited or which would make
Sublandlord liable for any damages, claims or penalties; and (iv) except for
Sublandlord's willful misconduct, negligence or breach of the Master Lease,
to indemnify and hold harmless Sublandlord from and against any and all
liability, loss, damage, suits, penalties, claims and demands of every kind
or nature (including, without being limited to, reasonable attorneys' fees
and expenses of defense) by reason of Subtenant's failure to comply with the
terms of the Sublease.
(b) Subject to the terms of the Non-Disturbance Agreement, in
the event of, and upon the termination or cancellation of the Master Lease
pursuant to the terms and provisions thereof, this Lease/Sublease shall
automatically cease and terminate.
(c) In the event of any default on the part of either
Sublandlord or Subtenant under any of the terms, covenants, conditions,
provisions or agreements of the Master Lease or of this Sublease, Sublandlord
shall have the same rights and remedies against Subtenant under this Sublease
as are available to the Landlord against Sublandlord under the provisions of
the Master Lease, and Subtenant shall have the same rights and remedies
against Sublandlord under this Sublease as are available to the Tenant
against Landlord under the provisions of the Master Lease.
(d) The provisions of this Paragraph 2.7 shall survive the
expiration or sooner termination of this Sublease.
2.8 DAMAGE OR DESTRUCTION. If the Premises shall be partially or
totally damaged by fire or other cause, the consequences thereof shall be
governed by the Master Lease, including, without limitation, Paragraphs 13,
14 and 15 of the Master Lease. Subtenant's right to an apportionment or
abatement of rent and to repairs shall be dependent upon whether or not
Sublandlord has a right to apportionment or abatement of rents and/or repairs
under said Master Lease, including, without limitation, Paragraphs 13, 14 and
15, in respect of the Premises. Except as such rights are provided to
Sublandlord by Landlord in the Master Lease, no damage, compensation or
claims shall be payable by Sublandlord for inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the
Premises.
2.9 SERVICES, REPAIRS, RESTORATIONS, ETC. Subject to the terms of
the Non-Disturbance Agreement, if Landlord shall default in any of its
obligations to Sublandlord with respect to the Premises, Subtenant shall be
entitled to enforce Sublandlord's rights against Landlord under the Master
Lease, at no cost or expense to Sublandlord; provided Subtenant shall
6.
defend, indemnify, protect and hold Sublandlord harmless from and against any
and all claims, costs and expenses related to any such enforcement. Subject
to the terms of the Non-Disturbance Agreement, if, after written request from
Subtenant, Sublandlord shall fail or refuse to take appropriate action for
the enforcement of Sublandlord's rights against Landlord with respect to the
Premises within a reasonable period of time considering the nature of
Landlord's default, Subtenant shall, if the same right would be permissible
by Sublandlord under the Master Lease, have the right to pursue a claim,
action, proceeding or arbitration, for injunction, damages or other remedy in
its own name, and for that purpose and only to such extent all of the rights
of Sublandlord under the Master Lease hereby are conferred upon and assigned
to Subtenant and Subtenant hereby is subrogated to such rights to the extent
that the same shall apply to the Premises; provided Subtenant shall defend,
indemnify, protect and hold Sublandlord harmless from and against any and all
claims, costs and expenses related to any such actions by Subtenant; and,
provided, further, that notwithstanding anything herein to the contrary, in
no event shall Subtenant have the right to take any action which may result
in a default under the Master Lease or in a termination of the Master Lease,
in whole or in part or in a surrender of all or any portion of the Premises.
In connection with the defense of any indemnified claim hereunder,
Sublandlord agrees that Subtenant may, at its option, provide a joint defense
(with counsel reasonably acceptable to Sublandlord) to a claim which is
asserted against both Sublandlord and Subtenant.
2.10 EVENTS OF DEFAULT. The occurrence of any Event of Default
under the Master Lease shall constitute a material default hereunder.
ARTICLE III
PROVISIONS APPLICABLE TO BOTH LEASE AND SUBLEASE
The following terms, covenants and conditions shall apply to both the Lease
and the Sublease:
3.1 NOTICES. Any notice, demand, request or other communication
which under the terms of this Lease/Sublease or under any provision of law or
governmental regulation must or may be given either by Sublandlord to
Subtenant or by Subtenant to Sublandlord shall be in writing and hand
delivered or mailed by United States certified mail, return receipt
requested, postage prepaid, addressed as follows to the person entitled to
receive the same:
(a) if to Sublandlord:
Xxxxx Xxxx'x Incorporated
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile:
------------------
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7.
with a copy to:
Liner Yankelevitz Sunshine
Xxxxxxxx & Xxxxxxxxxxx LLP
0000 Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
The Xxxxxxx Group
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
(b) if to Subtenant:
The Xxxx Printing Group
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Dechert Price & Roads
4300 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Any notice shall be deemed to have been validly given two (2) business days
after being deposited in the mail, postage prepaid. Either party by notice as
aforesaid may change the addresses set forth above for notices, requests,
demands or communications to it.
//
//
//
8.
3.2. BROKERS. Sublandlord and Subtenant each warrant and represent
to the other, that it has dealt with no broker or other person in connection
with this lease transaction. Sublandlord and Subtenant each agree to
indemnify and save harmless the other from any costs, expenses, attorneys'
fees or liability for compensation or charges which may be claimed by any
broker or agent as a result of any conversations, correspondence, other
dealings or actions of the indemnifying party in connection with this
Lease/Sublease.
3.3. SUCCESSORS AND ASSIGNS. This Lease/Sublease shall be binding
upon and inure to the benefit of the parties hereto and, subject to the
limitations set forth in Paragraph 2.6 of Article II hereof, their
respective successors and assigns.
3.4. COUNTERPARTS. This Lease/Sublease may be executed in
counterpart originals and delivered by facsimile and all such counterparts
and facsimiles shall constitute one original Lease/Sublease. If this
Lease/Sublease is delivered by facsimile, the party delivering the
Lease/Sublease by facsimile shall deliver to the other party the executed
original by personal delivery or overnight courier in accordance with
Paragraph 1 of this Article III.
/ /
/ /
/ /
[SIGNATURES ON FOLLOWING PAGE]
9.
IN WITNESS WHEREOF, Sublandlord and Subtenant have duly executed
this Lease/Sublease as of the day and year first above written.
"SUBLANDLORD": "SUBTENANT":
XXXXX XXXX'X INCORPORATED, PORT CITY PRESS, INC.,
a Delaware corporation a Maryland corporation
By: /s/ Xxxxxxx X. Xxxx By: /s/ XXXXXX X. XXXXXXX
---------------------------- --------------------------
Its: Assistant Secretary Its: Secretary
----------------------- --------------------------
XXXXX XXXX'X HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Its: Assistant Secretary
-----------------------
10.
EXHIBIT "A"
(PREMISES)
Exhibit "A" to Lease/Sublease, dated as of August 14, 1998, by and
between by and between XXXXX XXXX'X INCORPORATED, a Delaware corporation, and
XXXXX XXXX'X HOLDINGS, INC., a Delaware corporation, collectively, as
Sublandlord, and PORT CITY PRESS, INC., a Maryland corporation, as Subtenant.
EXHIBIT "A"
EXHIBIT "B"
(MASTER LEASE)
Exhibit "B" to Lease/Sublease, dated as of August 14, 1998, by and
between XXXXX XXXX'X INCORPORATED, a Delaware corporation, and XXXXX XXXX'X
HOLDINGS, INC., a Delaware corporation, collectively, as Sublandlord, and
PORT CITY PRESS, INC., a Maryland corporation, as Subtenant.
EXHIBIT "B"
