EXHIBIT 10.1
INTERNATIONAL BUSINESS MACHINES CORPORATION
TO
MULTEX SYSTEMS, INC.
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SUBLEASE
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DATED AS OF AUGUST 23, 1995
PREMISES: THE ENTIRE 0XX XXXXX
00 XXXXXX XXXX
XXX XXXX, XXX XXXX
SUBLEASE
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SUBLEASE, dated as of the __ day of August, 1995, between INTERNATIONAL
BUSINESS MACHINES CORPORATION, a New York corporation, having its principal
office at Xxxxxx, Xxx Xxxx 00000 ("Sublessor") and MULTEX SYSTEMS, INC., a
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Delaware corporation, having an office at 0 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxx,
Xxx Xxxxxx 00000 ("Sublessee").
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W I T N E S S E T H:
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WHEREAS, by Lease, dated March 29, 1985, by and between Federal Tower
Associates, as landlord ("Landlord"), and Sublessor, as tenant, which Lease was
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supplemented by (aa) that certain letter agreement, dated March 29, 1985,
between Landlord and Sublessor, and was amended by (bb) that certain Lease
Modification Agreement, dated June 28, 1995, between Landlord and Sublessor, and
(cc) that certain Second Lease Modification Agreement, dated February 27, 1992,
between Landlord and Sublessor, (said Lease, as so supplemented and amended,
being hereinafter referred to as the "Main Lease") pursuant to which Landlord
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leased to Sublessor the entire second through fifteenth floors and certain
portions of the Concourse Level and Mezzanine Level in the building ("Building")
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located at 00 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx; and
WHEREAS, Sublessee desires to sublease from Sublessor a portion of the
premises demised under the Main Lease consisting of the entire 5th floor
comprising approximately 21,985 rentable square feet in the Building (the
"Premises"), as more particularly shown by hatching on the floor plan annexed
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hereto as Exhibit A, upon the terms and conditions hereinafter set forth.
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NOW, THEREFORE, in consideration of the sum of ten dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Sublessor and Sublessee hereby agree as follows:
DEFINED TERMS:
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1. Unless the context clearly indicates a contrary intent, or unless
otherwise specifically provided therein, all capitalized terms used in this
Sublease which are defined in the Main Lease shall be deemed to have the
respective meanings set forth in the Main Lease.
TERM, PREMISES, USE.
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2. A. Sublessor hereby subleases to Sublessee, and Sublessee hereby
takes and hires from Sublessor, for a term (the "Term") commencing on the
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ate which is the later to occur of the date upon which (i) Sublessor and
Sublessee shall have unconditionally executed and delivered a counterpart of
this Sublease to each other, and (ii) Landlord has consented or been deemed to
consent to the execution and delivery of this Sublease as described in Paragraph
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33 hereof (the "Commencement Date") and expiring at 12:00 p.m. on
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December 30, 2000 (the "Expiration Date") unless sooner terminated, the
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Premises, together with all rights and appurtenances thereunto belonging, at the
rentals and upon and subject to the covenants, conditions and agreements set
forth in this Sublease.
B. The Premises will be occupied and used by Sublessee only for
executive and administrative offices for the business of Sublessee which is the
design and maintenance of software and for no other purpose. Sublessee's offices
will include the operation of a central computer site for computers for the
receipt, storage and distribution of data.
C. When the Commencement Date has been determined by Sublessor in
accordance with the provisions of Paragraph 2A hereof, Sublessor and Sublessee
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shall, upon the request of either of them, execute a statement prepared by
Sublessor setting forth such date in substantially the form of Exhibit B
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attached hereto. Any failure of Sublessee to execute such statement shall not
affect Sublessor's determination of the Commencement Date.
FIXED RENT; ADDITIONAL RENT.
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3. A. (i) Sublessee shall pay to Sublessor fixed rent ("Fixed Rent")
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for the period commencing on the Commencement Date through the Expiration Date
at the rate of $329,775.00 per annum, payable in equal monthly installments of
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$27,418.25 each on the first day of each and every month during such period.
The first monthly installment of Fixed Rent shall be paid by Sublessee to
Sublessor upon the execution of this Sublease by Sublessee and shall be applied
to the fourth month of the Term, notwithstanding any provisions of this Sublease
(including the provisions with respect to the Initial Credit, as hereinafter
defined) to the contrary.
(ii) Provided that Sublessee shall not then be in material default
of any of its obligations under this Sublease, Sublessee shall be entitled to a
credit (the "Initial Credit") against the monthly installments of Fixed Rent
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payable during the first, second, third, tenth, eleventh and twelfth months of
the
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Term, to be applied in equal monthly installments of $27,481.25 each against the
monthly installments of Fixed Rent coming due for such months under this
Sublease, up to a maximum aggregate amount of $164,887.50; provided, that
Sublessee shall be responsible for Additional Rent, if any, as set forth in
Paragraph 3B of this Sublease and for electricity charges with respect to the
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Premises as set forth in Paragraph 13 of this Sublease commencing on and at all
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times after the Commencement Date, without giving effect to the Initial Credit
set forth in this sub-clause.
B. Sublessee shall pay to Sublessor additional rent ("Additional
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Rent"), as follows, which Additional Rent shall be payable to Sublessor on or
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before the date which is thirty (30) days prior to the date such Additional Rent
is payable to Landlord by Sublessor;
(i) Sublessee's Tax Proportionate Share of the amount by which
Taxes payable for the applicable Tax Year exceed the Base Tax Factor;
provided, however, that for purposes of this calculation, the "Base Tax
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Factor", as used in the Main Lease, shall mean the Taxes payable with
respect to the Tax Year commencing on July 1, 1995, and ending on June 30,
1996;
(ii) Sublessee's Operating Proportionate Share of the amount by
which Operating Expenses for the applicable Escalation Year exceed the Base
Operating Factor; provided, however, that for purposes of this calculation,
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the "Base Operating Factor", as used in the Main Lease, shall mean
Operating Expenses for the twelve (12) month period commencing with the
Commencement Date and ending one (1) day prior to the first anniversary of
the Commencement Date;
(iii) any and all other cost, expenses, charges, payments or
adjustments payable by Sublessor under the Main Lease with respect to the
Premises; and
(iv) all other sums of money as shall become due and payable to
or for the benefit of Sublessor pursuant to the provisions of this
Sublease.
C. For purposes hereof, (i) "Sublessee's Tax Proportionate Share"
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shall mean 3.94% and (ii) "Sublessee's Operating Proportionate Share" shall mean
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3.97%.
D. "Rent" shall mean Fixed Rent and Additional Rent payable
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hereunder collectively. Sublessor shall have the same remedies for a default in
payment of Additional Rent as for a default in payment of Fixed Rent.
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E. If the Commencement Date shall take place on a day other than the
first day of a calendar month, the Fixed Rent and Additional Rent for such month
shall be apportioned to (and shall include) such date, and such apportioned Rent
from the period from the Commencement Date to the end of such calendar month
shall be payable simultaneously with the payment of the monthly installment of
Fixed Rent payable on the first day of the fourth month of the Sublease.
F. In the event that any sums payable by Sublessor under the Main
Lease with respect to the Premises are subject to adjustment by Landlord at the
end of a year or other period, then either (i) Sublessee shall pay to Sublessor
within then (10) days after billing therefore, Sublessee's allocable portion of
any deficiencies payable to Landlord by reason of such adjustment, which
obligation of Sublessee shall survive the termination of this Sublease, or (ii)
Sublessor shall credit against the next payments of Additional Rent coming due
hereunder Sublessee's allocable portion of any refund or credit received by
Sublessor from Landlord by reason of such adjustment, except that if no further
payments of Additional Rent shall be due hereunder, then Sublessor shall refund
such amount to Sublessee promptly upon receipt of the same from Landlord.
Sublessor shall, promptly upon request by Sublessee, furnish copies of bills and
statement received by Sublessor from Landlord with respect to the Premises.
G. Fixed Rent and, except as otherwise specifically provided in this
Sublease, Additional Rent shall be paid by Sublessee to Sublessor, without
notice or demand therefor, in lawful money of the United States of America, by
check drawn on a member of the New York Clearinghouse Association, at the
address of Sublessor set forth herein or at such other address as may be
designated by Sublessor from time to time. There shall be no abatement of,
deduction from, or counterclaim or setoff against Fixed Rent or Additional Rent,
except that Sublessee shall be entitled to an abatement of rent if and so long
as Sublessor shall receive an abatement of rent reserved under the Main Lease
pursuant to Article 15 and Article 16 of the Main Lease with respect to the
Premises. If any amount payable by Sublessee or repayable to Sublessee as
provided for herein shall be determined after the termination of this Sublease,
such amount shall nevertheless be payable by Sublessee or repayable to
Sublessee, as the case may be, in the same manner as if this Sublease had not
terminated.
H. If Sublessee fails to make any payment or shall default in the
performance of any term, covenant, condition or provision of this Sublease which
involves an expenditure of money by Sublessee, Sublessor, at Sublessor's sole
option, upon notice to Sublessee, may make such payment or expend such sums as
may be necessary to perform and fulfill such term, covenant, condition
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or provision. In such event, Additional Rent shall include, also, on written
demand, the entire amount of Sublessor's expenditure or payment and any and all
costs of any kind (including, without limitation, legal fees) as may be
necessary to perform and fulfill such term, covenant, condition or provision,
together with interest on the amount thereof from the time such moneys are
expended until paid at an annual rate equal to two (2%) percent per annum above
the prime interest rate on unsecured loans charged by Chemical Bank at its main
office in New York, New York on short-term unsecured loans in effect from time
to time during any period for which computation of interest is made hereunder
("Prime Rate").
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CONDITION OF THE PREMISES.
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4. Sublessee has inspected the Premises, knows the condition thereof and
agrees to accept the same "AS IS" on the Commencement Date in the condition in
which it exists as of the Commencement Date. Sublessee acknowledges that
Sublessor has made no representations or warranties whatsoever with respect to
the Premises, and Sublessee agrees that Sublessor has no obligation to alter or
repair the Premises or to prepare the same in any way for Sublessee's occupancy
or use. During the term of the Sublease, Sublessee shall have the use of the
office furniture located on the fifth floor as of the date of this Sublease a
description of which furniture is attached hereto as Exhibit C. Notwithstanding
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anything to the contrary contained herein, Sublessor shall be responsible for
any latent defects and any asbestos existing in the Premises prior to the
Commencement Date.
INCORPORATED ARTICLES OF THE MAIN LEASE.
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5. A. The parties agree that except as otherwise provided either in
this Paragraph 5 or elsewhere in this Sublease, and to the extent not
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inconsistent with either the agreements and understandings expressed or implied
in this Sublease or applicable solely to the original parties to the Main Lease,
this Sublease shall specifically incorporate all of the terms, covenants,
conditions and provisions of the Main Lease with the exception of the Excluded
Articles (as hereinafter defined) (the incorporated terms, covenants, conditions
and provisions hereinafter collectively referred to as the "Incorporated
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Articles") and Sublessor shall have all the rights, but none of the obligations,
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of Landlord under the Incorporated Articles. Sublessee shall be entitled,
during the Term, (i) to receive all services, utilities, repairs and facilities
to be provided by Landlord under the Main Lease, subject to the provisions of
the Main Lease relating to the furnishing of the such services, utilities,
repairs and facilities, and (ii) to have all rights and benefits afforded to
Sublessor by the Main
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Lease, except as set forth above and as otherwise provided in this Sublease.
B. Subject to the provisions of Xxxxxxxxx 0, Xxxxxxxxx shall have
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all rights and obligations of a tenant under the Incorporated Articles;
provided, however, that specific inclusion of any article of the Main Lease
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shall not require Sublessee to make double payments of any charges or
escalations thereunder. Any reference to "demised premises" or "premises" in
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the Incorporated Articles shall be deemed a reference to the Premises herein.
With respect to the Incorporated Articles, any reference to "Tenant", shall be
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deemed to refer to "Sublessee" and any reference to "Landlord" shall be deemed
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to refer to "Sublessor". If there shall be any inconsistency between the
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Incorporated Articles and the express provisions of this Sublease, such
provisions of this Sublease shall govern. Notwithstanding the foregoing, any
reference to the Main Lease without reference to the Incorporated Articles or to
any specific provisions of the Main Lease shall mean all terms covenants,
conditions and provisions of the Main Lease.
C. "Excluded Articles" shall be deemed to mean the following
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articles and sections of the Main Lease: Articles and Sections 1.02, 2, 3, 4,
5.01, 5.03, 7.02A (1st parenthetical clause) 7.02A (3rd sentence), 7.02C, 7.02H
(1st sentence), 7.03A (1st parenthetical clause), 7.03F (1st sentence), 10.01,
12.01 (last clause) 15.02A, 16.01B, 17.04, 19.02, 22 (but not excluding 22.08),
23.01B, 25.02, 28, 31.02, 31.03, 32.04, 35, 37, 38, 42 and 44, Exhibits B, C and
I: and Sections 3, 4, 5, 6, 7.02, and Exhibits A, B and C (as incorporated into
Exhibit B of the March 29, 1985 Lease, which is also an Excluded Article) of the
First Modification Agreement.
D. For purposes of this Sublease, the following Exhibits and
Schedule to this Sublease shall be deemed to supersede and replace the
comparable Exhibits to the Main Lease, and shall govern the rights and
obligations of Sublessor and Sublessee with respect to all matters contained
herein:
(i) Exhibit D to this Sublease, with respect to cleaning services,
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shall replace Exhibit D to the Main Lease;
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(ii) Exhibit E to this Sublease, with respect to certain rules and
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regulations, shall replace Exhibit E to the Main Lease; and
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(iii) Exhibit F to this Sublease shall replace Exhibits F and G to
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the Main Lease.
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E. Notwithstanding anything to the contrary contained herewith,
Section 7.03(E) of the Incorporated Articles shall be amended to provide that
Sublessor shall submit a Sublessor's Statement within six (6) months after any
such termination.
MATTERS AFFECTING LANDLORD.
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6. A. Sublessor shall have no responsibility or liability of any
kind whatsoever for any default of or by Landlord under the Main Lease or for
the furnishing to Sublessee or the Premises of any services of any kind
whatsoever which Landlord is required to furnish to Sublessor or to the Premises
under the Main Lease. In furtherance (and without limitation) of the foregoing,
Sublessee agrees that Sublessor shall have no obligation to furnish heat, air
conditioning, electricity, cleaning service, and/or any other building services
of any kind whatsoever, and that Sublessor shall not be obligated to make any
repairs or restorations of any kind whatsoever in the Premises.
B. Sublessee agrees to look solely to Landlord for any
services, repairs and/or work of any kind whatsoever to be furnished to the
Premises; however, Sublessor agrees that Sublessor will use reasonable efforts
to cause Landlord to perform Landlord's obligations under the Main Lease with
respect to the Premises, to forward to Landlord any approvals or consents
requested by Sublessee, and to enforce Sublessor's rights against Landlord under
the Main Lease. If Landlord shall default in any of its obligations to
Sublessor with respect to the Premises, Sublessee shall be entitled to
participate with Sublessor in the enforcement of Sublessor's rights against
Landlord (and in any recovery or relief obtained), but Sublessor shall have no
obligation to bring any action or proceeding or to take any steps to enforce
Sublessor's rights against Landlord. Any action or proceeding so instituted by
Sublessor shall be at the sole expense of Sublessee. If, after written request
from Sublessee, Sublessor shall fail or refuse to take appropriate action for
the enforcement of Sublessor's rights against Landlord, Sublessee shall have the
right, at Sublessee's sole cost and expense, to take such action in its own name
and, for that purpose and only to such extent, all of the rights of Sublessor to
enforce the obligations of Landlord under the Main Lease are hereby conferred
upon and are conditionally assigned to Sublessee and Sublessee hereby is
subrogated to such rights (including, without limitation, the benefit of any
recovery or relief); provided, however, if any such action or proceeding against
Landlord in Sublessee's name is barred by reason of lack of privity, non-
assignability or otherwise, then, at Sublessor's option, (i) Sublessee may take
such action or proceeding in Sublessor's name, or (ii) Sublessor shall, at
Sublessee's sole cost and expense, join Sublessee in such action or proceeding,
and Sublessor agrees, in either case, to execute all documents reasonably
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requested by Sublessee as necessary to allow such action or proceeding to
proceed, provided further, however that (x) Sublessee shall only have such
rights if Sublessee shall not be in default beyond applicable notice and grace
periods, under this Sublease and (y) Sublessor shall have the right to require
Sublessee to discontinue such action if in the reasonable opinion of Sublessor
such action may cause a cancellation, forfeiture or termination of the Main
Lease or Sublessor's estate and rights thereunder with respect to the Premises.
Sublessee shall indemnify and hold Sublessor harmless from and against any and
all losses, costs, liability, claims, damages, expenses (including, without
limitation, attorneys' fees), penalties and fines to which Sublessor may be
exposed and which Sublessor may incur in connection with or arising out of the
taking of any such action by Sublessee. Sublessor covenants and agrees that
Sublessor shall observe and perform each and every term, covenant and condition
to be observed or performed by Sublessor as tenant under the Main Lease, except
such obligations which are, by the terms hereof, to be performed by Sublessee.
Sublessor shall not do any act or thing which would constitute a default under
the Main Lease.
C. Sublessor shall promptly forward to Sublessee copies of all
statements, notices, demands, and other communications received from Landlord
relating to the Premises, the Sublease or Sublessee.
SUBORDINATION.
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7. This Sublease and all rights of Sublessee hereunder are and shall
be subject and subordinate to the Main Lease and to all mortgages, ground
leases, leasehold mortgages, encumbrances, covenants, restrictions and other
rights, if any, to which the Main Lease and the Sublessor's interest therein are
subject and subordinate and Sublessor may exercise all of the rights,
privileges, claims, powers and remedies with respect to the Premises reserved to
the Landlord under the Main Lease, to the same extent as if fully set forth
herein at length, including, without limitation, the right (a) arising out of
any default in the payment of money or otherwise, (b) to give or receive any
consent, notice, or willful approval and (c) to exercise any election or option
(including, without limitation, election of remedies). The Sublessee is also
subject to any amendments to the Main Lease or supplemental agreements hereafter
made between Landlord and Sublessor, provided that any such amendments and/or
supplemental agreements do not adversely affect Sublessee or its use of the
Premises or increase Sublessee's or decrease Sublessors obligations hereunder.
Sublessor shall provide Sublessee with copies of any such amendments or
supplemental agreements (with any proprietary information appropriately
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redacted) promptly after Sublessor receives final executed copies of the same.
INDEMNIFICATION.
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8. A. Sublessee agrees not to do or permit to be done any act or
thing or neglect to take any action which act or thing or neglect will
constitute or cause a breach or violation of any of the terms, covenants,
conditions or provisions of the Main Lease or which will make Sublessor liable
for any damages, claims, fines, costs or penalties under the Main Lease.
Sublessee agrees to indemnify Sublessor and hold Sublessor harmless from and
against all loss, liability, obligation, damage, penalty, cost, charge and
expense of any kind whatsoever (including, but not limited to, attorneys' fees),
whensoever asserted or occurring, with Sublessor may incur or pay out, or which
may be asserted against Sublessor (a) by reason of any failure of or by
Sublessee to perform or comply with any and all of the terms, covenants,
conditions and provisions of this Sublease, (b) by reason of any breach or
violation by (or caused by) Sublessee of the terms, covenants, conditions and
provisions of the Main Lease, (c) by reason of any work or thing of whatsoever
kind done in, or about the Premises or the Building by Sublessee's employees,
contractors, agents, licensees or invitees (including, but not limited to,
construction alternations, repairs or similar acts of any kind whatsoever, and
whether or not authorized by this Sublease), (d) by reason of any negligence or
willful act or omission of Sublessee or Sublessee's employees, contractors,
agents, licensees or invitees or (e) by reason of any injuries to persons or
property occurring in, on or about the Premises or the Building caused by the
negligence or willful act of omission of Sublessee; provided, however, that this
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subsection (e) shall not apply to injuries to persons or property caused by the
acts, omissions or negligence of Sublessor or Sublessor's employees,
contractors, agents or licensees. If any action proceeding shall be brought
against Sublessor or Landlord by reason of any such claim, Sublessee, upon not
less than five (5) days' notice from Sublessor which notice shall contain a copy
of any documents received by Sublessor with respect to such action or
proceeding, agrees to resist or defend such action or proceeding and to employ
counsel therefor reasonably satisfactory to Sublessor; it being understood that
counsel for Sublessee's insurance company shall be deemed to be satisfactory to
Sublessor. Sublessee shall pay to Sublessor on demand all sums which may be
owing to Sublessor by reason of the provisions of the provisions of this
Paragraph 8A. Sublessee's obligations under this Paragraph 8A shall survive the
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termination of this Sublease.
B. Sublessor agrees not to do or permit to be done any act or
thing or neglect to take any action which act or thing
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or neglect will constitute or cause a breach or violation of any of the terms,
covenants, conditions or provisions of the Main Lease as the same applies to the
Premises. Sublessor agrees to indemnify and hold Sublessee harmless from and
against all loss, liability, obligation, damage, penalty, cost, charge and
expense of any kind whatsoever (including, but not limited to, attorneys' fees,
whensoever asserted or occurring, which Sublessee may incur or pay out, or which
may be asserted against Sublessee (a) by reason of any failure of or by
Sublessor to perform or comply with any and all of the terms, covenants,
conditions, and provisions of this Sublease, (b) by reason of any covenants,
conditions and provisions of the Main Lease as the same applies to the Premises,
(c) by reason of any work or thing of whatsoever nature and done in, on or about
the Premises or the Building by Sublessor's employees, contractors, agents,
licensees or invitees (including, but not limited to, construction alterations,
repair or similar acts of any kind whatsoever, and negligence or willful act or
omission of Sublessor or Sublessor's employees, contractors, agents, licensees
or invitees or (e) by reason of any injuries to persons or property occurring
in, on or about the portions of the Building (other than the Premises) leased by
Sublessor pursuant to the Main Lease; provided, however, that sub-clause (e)
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shall not apply to injuries to persons or property caused by the acts, omissions
or negligence of Sublessee or Sublessee's employees, contractors, agents or
licensees. If any action or proceeding shall be brought against Sublessee by
reasons of any such claim, Sublessor, upon notice from Sublessee, agrees to
resist or defend such action or proceeding and to employ counsel therefor
reasonably satisfactory to Sublessee; it being understood that counsel for
Sublessor's insurance company shall be deemed to be satisfactory to Sublessee.
Sublessor shall pay to Sublessee on demand all sums which may be owing to
Sublessee by reason of the provisions of this Paragraph 8B. Sublessor's
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obligations under this Paragraph 8B shall survive the termination of this
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Sublease and the Main Lease.
ALTERATIONS.
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9. A. All alterations, decorations, installations, additions,
fixtures, equipment, improvements and appurtenances attached to, or built into,
the Premises made by either Sublessor or Sublessee and affixed to the realty so
that removal thereof may cause material damage shall be and remain part of the
Premises and be deemed the property of Landlord and shall not be removed by
Sublessee. All business machines, fixtures, furniture, furnishings and other
articles of personal property owned by Sublessee, located in the Premises and
not so affixed to the realty (all of which are, collectively, hereinafter
referred to as "Sublessee's Property") shall be and remain the property of
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Sublessee, and may be removed by it at any time during the Term, provided that
Sublessee repairs any damage caused by removal of
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Sublessee's Property. Any of Sublessee's Property which shall remain in the
Premises following the termination on of this Sublease and the removal of
Sublessee from the Premises may, at the option of Sublessor, be deemed to have
been abandoned and either may be retained by Sublessor as its property or be
removed and disposed of, without accountability and at Sublessee's expense, in
such manner as Sublessor may see fit, with any damage to the Premises or the
Building caused by such removal to be repaired at Sublessee's expense.
B. Sublessee shall make no alterations, decorations,
installations, additions or improvements (collectively, "Alterations") in the
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Subleased Premises without the prior written consent of Sublessor, which consent
Sublessor shall not unreasonably withhold or delay provided Sublessee complies
with all applicable provisions of the Main Lease. Sublessor and Sublessee agree
that Sublessor has consented to the design concept for the Alterations set forth
on Exhibit G-2 annexed hereto, subject to review and approval by Sublessor and
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Landlord of Sublessee's final plans and specifications to such Alterations and
any other information reasonably required by Sublessor or Landlord in accordance
with the Main Lease with respect to such Alterations, and subject to the further
provisions of this Paragraph 9B. With respect to each consent of Sublessor and
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Landlord to any Alterations, Sublessor and Landlord shall indicate which
Alterations, if any, Sublessor shall require Sublessee to remove from the
Premises pursuant to Paragraph 9A upon the termination of this Sublease.
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Notwithstanding anything to the contrary contained herein, Sublessor shall not
require the restoration or removal of any alteration, decoration, installation,
or addition performed by Sublessee in the Premises unless Landlord shall require
such restoration pursuant to the provisions of the Main Lease.
INSURANCE.
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10. Sublessee shall obtain and maintain in full force and effect
during the Term, at its own cost and expense, to protect Sublessor, Landlord,
any superior lessor, any superior mortgagee, Sublessee and any of their
respective agents, as additional insureds, a policy of comprehensive commercial
general public liability insurance with respect to the Premises and other
insurance pursuant to Article 8 of the Main Lease for Sublessor's property and
Sublessee's Property in each instance in accordance with the terms of and in the
amounts specified in Article 8 of the Main Lease.
DAMAGE AND DESTRUCTION.
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11. A. Nothing contained in this Sublease shall relieve Sublessee
from liability that may exist as a result of damage
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from fire or other casualty, but each party shall look first to its own
insurance before making any claim against the other Party for recovery for loss
or damage resulting from fire or other casualty. To the extent that such
insurance is in force and collectible and to the extent permitted by law,
Sublessor and Sublessee each hereby releases and waives all right of recovery
against the other or anyone claiming through or under the other by way of
subrogation or otherwise with respect to damage by fire or other casualty. The
foregoing release and waiver shall be in force only if the insurance policies of
Sublessor and Sublessee provide that such release or waiver does not invalidate
the insurance. Each party agrees to use its best efforts to include in its
applicable insurance policies such a provision. If the inclusion of said
provision would involve an additional expense, either party, at its expense, may
require such provision to be inserted in the other's policy.
B. In the event that (A) (i) (a) thirty (30%) percent or more
of the rentable area of the Premises shall be damaged by fire or other casualty,
or (ii) the Premises are damaged to less than the extent of 30% of the rentable
area of the Premises but repairs to the Premises necessary to render the
Premises in substantially the same condition as prior to such damage (the "Pre-
---
existing Condition") cannot, in the reasonable opinion of Landlord's Architect,
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be made within 120 days from the date of such damage, or (iii) either (i) or
(ii) occur during the last year of the Term, or (B) (x) the Premises shall be
damaged by fire or other casualty such that Sublessee's access is prevented for
a period of not less than thirty (30) days or (y) the area so damaged contains
Sublessee's central computer site such that the central computer is rendered
totally unusable, then, Sublessee may, by notice given to Sublessor within
thirty (30) days after it receives notice of the opinion of Landlord's
Architect, terminate this Sublease, which termination shall be effective thirty
(30) days after the giving of such notice. If Landlord's Architect states that
the Premises can be restored to their Pre-Existing Condition, but Landlord fails
to complete such restoration within such 120 day period, then Sublessee may,
within thirty (30) days after the expiration of such 120 day period, serve
notice to Sublessor of Sublessee's intention to terminate this Sublease, or the
date which is thirty (30) days after the date of such notice and unless Landlord
shall have complete the restoration of the Premises to its Pre-Existing
Condition within such thirty (30) day period, this Sublease shall automatically
terminate at the end of such thirty (30) day period.
TIME LIMITS FOR NOTICES, ETC.
-----------------------------
12. Whenever in the Main Lease a time is specified for the giving of
any notice or the making of any demand by the Tenant
12
thereunder, such time is hereby changed (for the purpose of this Sublease only)
by adding five (5) days thereto; and whenever in the Main Lease a time is
specified for the giving of any notice or the making of any demand by the
Landlord thereunder, such time is hereby changed (for the purpose of this
Sublease only) by subtracting five (5) days therefrom, if such notice, request
or demand given or made by Landlord relates to the payment (or default in the
payment) of Fixed Rent or Additional Rent under the Main Lease, and by fifteen
(15) days if such notice, request or demand of Landlord relates to any subject
other than the payment of fixed rent or additional rent under the Main Lease.
Whenever in the Main Lease a time is specified within which the Tenant
thereunder must give notice or make a demand following an event, or within which
the Tenant must respond to any notice, request or demand previously given or
made by the Landlord thereunder, or to comply with any obligation on the
Tenant's part thereunder, such time is hereby changed (for the purpose of this
Sublease only) by subtracting five (5) days therefrom, if the same shall relate
to the payment of Fixed Rent or Additional Rent under the Main Lease or under
this Sublease, and fifteen (15) days if the same shall relate to any other
obligation under the Main Lease or under this Sublease. Wherever in the Main
Lease a time is specified within which the Landlord thereunder must give notice
or make a demand following an event, or within which the Landlord must respond
to any notice, request or demand previously given or made by the Tenant
thereunder, such time is hereby changed (for the purpose of this Sublease only)
by adding five (5) days thereto. It is the purpose and intent of the foregoing
provisions, among other things, to provide the Sublessor with time within which
to transmit to the Landlord any notices or demand received from the Sublessee
and to transmit to the Sublessee any notices or demands received from the
Landlord. Sublessor shall use reasonable efforts to transmit such notices as
promptly as possible, but in no event later than the time periods set forth in
this Paragraph 12.
------------
ELECTRICITY.
-----------
13. A. Electrical energy shall be furnished to the Premises through
presently installed electrical facilities for Sublessee's reasonable use of
normal office equipment, including computer equipment, printers, copiers and
related equipment, and for such lighting and electrical appliances and other
machines and equipment as Sublessor may reasonably permit to be installed in the
Premises. Subject to the provisions with respect to submetering set forth in
Paragraph 13B, there shall be no specific charge by way of measuring such
-------------
electrical energy on any meter or otherwise as the cost of furnishing of such
electrical energy (the "Base Charge", which Base Charge is initially $43,970.00
-----------
per annum), which Base Charge shall be Additional Rent under this Sublease and
--- -----
payable in equal monthly installments of
13
$3,664.17 on the first day of each and every month during the Term, subject to
the further provisions of this Paragraph 13. If either the quantity or
------------
character of electrical services is changed by the public utility corporation
supplying electrical services to the Building, or is no longer available or
suitable for Sublessee's requirements, no such change, unavailability or
unsuitability shall constitute an actual or constructive eviction, in whole or
in part, or entitle Sublessee to an abatement or diminution of Rent, or relieve
Sublessee from any of its obligations under this Sublease or impose any
liability upon Sublessor or Sublessor's agents, provided, however, if electrical
-------- -------
services are no longer available, the Base Charge shall no longer be payable to
Sublessor and Sublessee, at its sole cost and expense, shall make the necessary
provisions to receive electrical service (subject to the applicable provisions
of the Main Lease).
B. Sublessor, shall cause a submeter (the "Submeter") to be
--------
installed at Sublessor's expense to measure Sublessee's consumption of
electrical energy in the Premises promptly following the Commencement Date and
in any event within sixty (60) days of the Commencement Date, subject to the
provisions of this Paragraph 13(B) hereinafter set forth, and Sublessee shall
---------------
pay, as Additional Rent, on demand for its consumption of electrical energy at
the then applicable rate, if any, for submetered electrical energy, or, if not
such rate is promulgated, then at the same rate and frequency that Sublessor
would be obligated to pay together with 2% of each such periodic payment to
defray Sublessor's administrative costs, and in such event, Sublessee's
liability for the Base Charge attributable to electrical energy as provided in
Paragraph 13A hereof, as the same may be increased or decreased pursuant to this
-------------
Paragraph 13, shall terminate as of commencement of the operation of such
------------
Submeter; provided that, (i) such submetering is permitted by applicable law in
-------------
the premises demised under the Main Lease pursuant to an action of the Public
Service Committee of the State of New York or otherwise and (ii) Landlord shall
have consented in writing to such submetering. Such Submeter shall be installed
by Sublessor or Sublessor's contractor. Once the Submeter is installed, it
shall be maintained at the sole cost and expense of Sublessee. In no event,
however, shall the amount payable by Sublessee per kilowatt and/or kilowatt hour
be less than Sublessor's cost per kilowatt and/or kilowatt hour (utilizing the
then current Electric Rate (as hereinafter defined)) of electrical energy for
the entire premises demised under the Main Lease. For the purposes of this
Paragraph 13B, the rate to be paid by Sublessee in the event of submetering
-------------
shall include all of the components of the Electric Rate. In the event that any
tax shall be imposed upon Sublessor's receipts from the sale or resale of
electrical energy to Sublessee, such
14
tax shall be passed on to, included in the xxxx of, and paid by Sublessee if and
to the fullest extent permitted by law.
C. "Electric Rate" shall be deemed to mean the rate at which
-------------
Sublessor purchases electrical energy from the public utility supplying
electrical service to the Building, including any surcharges or charges incurred
(except for interest or late fees) or taxes payable by Landlord in connection
therewith and increased or decreased by reason of a fuel adjustment or any
substitutions for such electrical rate or additions thereto.
DEFAULT OF SUBLESSEE.
--------------------
14. In the event that Sublessee shall default in the performance of
any of the terms, covenants and conditions on its part to be performed under
this Sublease, or in the event that Sublessee shall default in the performance
of any of the terms, covenants and conditions on the tenant's part to be
performed under the Main Lease and the same are not cured at least five (5) days
prior to the expiration of the time for the curing thereof under the Main Lease,
then Sublessor shall have the same rights and remedies with respect to such
default as are given to Landlord under the Main Lease with respect to defaults
by the tenant under the Main Lease, all with the same force and effect as though
the provisions of the Main Lease with respect to defaults and the rights and
remedies of Landlord thereunder in the event thereof were set forth at length
herein. Sublessor agrees promptly to give notice to Sublessee of any notices of
default relating to the Premises which may be received by Sublessor from
Landlord, but failure of Sublessor to give such notice to Sublessee shall not
diminish Sublessee's obligations hereunder. If Sublessee shall default in the
performance of any of Sublessee's obligations under this Sublease or under the
provisions of the Main Lease, Sublessor, without thereby waiving such default,
may, at Sublessor's option, perform the same for the account and at the expense
of Sublessee.
FAILURE TO DELIVER POSSESSION.
-----------------------------
15.A. If Sublessor shall be unable to give possession of the Premises
on the Commencement Date, Sublessor shall not be subject to any liability for
failure to give possession on such date and the validity of this Sublease shall
not be impaired under such circumstances, nor shall the same be construed in any
way to extend the Term, provided, however the Commencement Date shall be
extended by the number of days beyond the Commencement Date that Sublessor is
unable to give possession of the Premises to Sublessee and the Initial Credit
shall not be applied until the Commencement Date.
15
B. Notwithstanding anything to the contrary contained herein, if
Sublessor fails to deliver possession of the Premises by September 30, 1995,
Sublessee may, by giving written notice to Sublessor within ten (10) days
thereafter, elect to terminate this Sublease, in which event this Sublease shall
be deemed terminated on the fifth day following the delivery of such notice
("Termination Date"), provided that Sublessor has not prior to the Termination
------------------
Date delivered possession to Sublessee, and in the event of such termination
neither party shall have any further obligations to the other except Sublessor
shall refund to Sublessee any advance rentals paid hereunder.
NOTICES.
-------
16. All notices, requests, demands, elections, consents, approvals
and other communications hereunder ("Notices") must be in writing and addressed
as follows (or to any other address which such party may designate by Notice)
If to Sublessor: (1) International Business Machines
Corporation
000 Xxxxxxxxxx Xxxx
Mail Drop 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Manager, Real Estate Operations
(2) International Business Machines
Corporation
Xxx Xxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Corporate Counsel,
Real Estate
Corporate Services
If to Sublessee: At the address first above written,
Attention: Xxxxx Xxxxxx,
President & CEO
Any Notice required by this Sublease to be given or made within a specified
period of time, or on or before a date certain, shall be deemed duly given or
made only if sent by hand, evidenced by written receipt or by certified mail,
return receipt requested, and postage and registry fees prepaid. A Notice sent
by certified mail (as above) shall be deemed given on the date of mailing. All
other Notices shall be deemed given when received.
16
OVERTIME HVAC.
-------------
17. In the event that Sublessee shall require overtime heating,
ventilating or air conditioning, or any other service for which Landlord may
impose a separate charge, Sublessee shall notify Landlord directly in accordance
with the provisions of the Main Lease, and Sublessee shall reimburse Sublessor
for the full amount of the charges made by Landlord for providing such services,
such reimbursement to be paid on demand.
WAIVER OF REDEMPTION AND OF JURY TRIAL.
--------------------------------------
18. To the extent permitted by law, Sublessee hereby waives service of
notice of intention to re-enter. Sublessee (for itself and for persons claiming
through or under Sublessee) hereby expressly waives any and all rights, under
any present or future law, to redeem the Premises or to a new trial, after
reentry by Sublessor or after issuance or entry of any warrant to dispossess in
any summary proceeding or otherwise to enforce the provisions hereof. If
Sublessor acquires possession of the Premises by summary proceeding or in any
other lawful manner, with or without judicial proceeding, Sublessor shall be
deemed to have re-entered within the meaning of this Paragraph 18. To the full
------------
extent now or hereafter permitted by law, Sublessee and Sublessor waive trial by
jury in any action or proceeding brought by either against the other with
respect to the Premises or to any matter pertaining to this Sublease.
SURRENDER OF PREMISES.
---------------------
19. On the termination of this Sublease, Sublessee shall quit and
surrender the Premises and the office furniture set forth on Exhibit C to
Sublessor broom-clean and in the condition, subject to this Sublease that the
same existed on the Commencement Date, except for ordinary wear and tear, damage
by fire or other casualty, and any other damage which Sublessee shall not be
obligated to repair pursuant to the terms hereof, and in accordance with the
applicable provisions of the Main Lease. If the Subleased Premises are not
surrendered upon the termination of this Sublease, Sublessee hereby indemnifies
Sublessor from and against all loss, cost, liability, claim, damage and expense
(including, without limitation, reasonable attorneys' fees) resulting from delay
by Sublessee in so surrendering the Premises and Sublessee, at the option of
Sublessor, shall be deemed to be occupying the Premises as a tenant from month
to month, at a monthly rental equal to three times the Rent payable during the
last month of the Term and subject to all of the other terms of this Sublease
insofar as the same are applicable to a month-to-month tenancy. Sublessee's
obligations under this Paragraph 19 shall survive the termination of this
------------
Sublease. Notwithstanding anything to the contrary
17
contained herein, in the event that Landlord waives the payment by Sublessor of
the amounts set forth in Section 21.04 with respect to a holdover, then
Sublessor shall waive the requirements of this Paragraph 19 for a period not to
exceed sixty (60) days from the Expiration Date of this Sublease.
QUIET ENJOYMENT.
---------------
20. As long as Sublessee shall pay the Rent and shall duly perform all the
terms, covenants and conditions of this Sublease on its part to be performed,
Sublessee shall, subject to the terms hereof and of the Main Lease, quietly hold
and enjoy the Premises during the Term without hindrance, ejection, molestation
or interruption. Notwithstanding the foregoing, if the Main Lease terminates or
is terminated for any reason whatsoever prior to the date on which this Sublease
is scheduled to expire, this Sublease shall thereupon terminate. Sublessor
shall not be liable to Sublessee by reason of any such termination and
thereafter shall have no further obligations to Sublessee hereunder, except as
specifically set forth herein.
ASSIGNMENT AND SUBLETTING.
-------------------------
21. A. Neither this Sublease nor the term and estate hereby granted
shall be assigned, mortgaged, pledged, encumbered or otherwise transferred by
Sublessee, by operation of law or otherwise, and neither the Premises, nor any
part thereof, nor any of the Sublessee's Property shall be encumbered or sublet
or used or occupied or permitted to be used or occupied, or utilized for desk
space or for mailing privileges by anyone other than Sublessee, except as set
forth in Paragraph 21C hereof.
--------------
B. For purposes of this Paragraph 21, (a) the issuance of interests
------------
in any entity, or the transfer of interests in any entity (whether stock,
partnership interest or otherwise) to any person or group of related persons,
whether in a single transaction or a series of related or unrelated
transactions, in such quantities that after such issuance or transfer, as the
case may be, such transferee shall have control (as hereinafter defined) of such
entity, if such issuance shall have been made for the principal purpose of
transferring this subleasehold estate, shall be deemed an assignment, except
that the transfer of the outstanding capital stock of any corporate Sublessee by
persons or parties (other than persons or parties owning 5% or more of the
voting stock of such corporation) through the "over-the-counter" market or any
recognized national securities exchange, shall not be included in the
calculation of such transfer of control, (b) a "take-over agreement" pursuant to
which one or more persons shall agree to assume the obligations of Sublessee
hereunder in consideration of Sublessee leasing space in another building shall
be deemed an assignment of this
18
Sublease, and (c) a modification or amendment of a sublease which decreases the
rent, extends the term or increases or decreases the subleased space shall be
deemed a sublease. For the purposes of the preceding sentence, stock ownership
shall be determined in accordance with the principles set forth in Section 544
of the Internal Revenue Code of 1986, as the same existed on January 1, 1987.
For the purposes hereof, "control" shall mean with respect to any corporation,
partnership or other business entity, the possession of the power directly or
indirectly to direct or cause the direction of management and policy of such
corporation, partnership or other business entity, whether through the ownership
of voting securities, by contract, common directors or officers, the contractual
right to manage the business affairs of any such corporation, partnership or
business entity, or otherwise. Any person or legal representative of Sublessee,
to whom Sublessee's interest under this Sublease passes by operation of law or
otherwise, shall be bound by the provisions of this Paragraph 21.
------------
C. If at any time, Sublessee desires to sublet all or any portion of
the Premises or to assign its interest in this Sublease, Sublessee shall submit
to Sublessor the name and address of the proposed sublessee or assignee, its
proposed use of the Premises or portion thereof proposed to be subleased, a
reasonably detailed description of such proposed sublessee's or assignee's
business and any other information about such proposed sublessee or assignee
reasonably requested by Sublessor. Sublessor agrees not to unreasonably
withhold or delay its consent to any such subletting or assignment by Sublessee,
provided that the following conditions shall have been satisfied:
(a) In the reasonable judgment of Sublessor the nature of the
proposed sublessee's or assignee's business and its reputation is in
keeping with the character of the Premises, Building and its tenancies;
(b) The purposes for which the proposed sublessee or assignee
intends to use the Premises are uses expressly permitted by and not
prohibited by the Main Lease, this Sublease or by any other lease of space
in the Building;
(c) Sublessee shall not have (i) advertised or publicized in any
way the availability of all or part of the Premises without Sublessor's
consent, which shall not be unreasonably withheld, and no advertisement
shall state the name or the address of the Building or the proposed rental
or (ii) listed or publicly advertised the Premises or any part thereof for
subletting, whether through a broker, agent, representative or otherwise,
at a rental rate less than the rent then payable hereunder for such space;
however, Sublessee may negotiate and consummate a sublease
19
at a lesser rate of rent insofar as permitted under the provisions of this
Sublease and the Main Lease;
(d) The proposed occupancy shall not impose a material extra
burden upon the Building Equipment or Building services;
(e) The proposed sublease or assignment shall prohibit any
assignment or subletting;
(f) The proposed sublease or assignment shall be expressly
subject and subordinate to all of the terms of the Main Lease and this
Sublease;
(g) Sublessee shall not be in default beyond any applicable grace
period in the performance of any of its obligations under this Sublease at
the time Sublessor's consent to such subletting or assignment is requested
or at the commencement of the term of any proposed sublease;
(h) The proposed sublessee or assignee shall not then be a tenant
or occupant of any space in the Building or a corporation related to or
affiliated with any other tenant or occupant or a party who is then
negotiating with, or within the six (6) months immediately preceding
Sublessee's request for Sublessor's consent, has dealt with, Sublessor or
Sublessor's agent, or Landlord or Landlord's agent (either directly or
through a broker) for the rental of any space in the Building;
(i) The proposed sublessee or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in, and the jurisdiction of the courts
of, New York State;
(j) The proposed sublessee or assignee shall not be a person,
firm or corporation described in Subparagraph D of this Paragraph 21;
-------------- ------------
(k) Sublessor shall remain fully and primarily liable for the
payment and performance of all of the obligations of Sublessee hereunder;
and
(l) The Landlord under the Main Lease shall have consented in
writing to the proposed sublease or assignment and agreed that Sublessor
may deliver the consent for such proposed sublease or assignment,
notwithstanding any provision of the Main Lease to the contrary.
20
Within ten (10) days after the commencement of the term of any such subletting,
or within ten (10) days after the effective date of any such assignment, notice
of such commencement or effective date and a duplicate original of such sublease
or assignment shall be delivered by Sublessee to Sublessor.
D. Notwithstanding any of the foregoing provisions of this Paragraph
---------
21, in no event shall Sublessee sublet or permit occupancy of all or any part of
--
the Premises or assign its interest under this Sublease to any person, firm or
entity which as a major part of its business which Sublessor deems to be in a
business which competes with any business of Sublessor and which derives in
excess of 50% of its annual gross revenues from such competitive business.
E. Notwithstanding anything to the contrary contained herein, if
Sublessee shall sublet the Premises or any portion thereof for rents, additional
charges or other consideration (including, without limitation, sums designated
by the subtenant as paid for the purchase or use of Sublessee's Property in the
Premises, less the then fair market rental value thereof), which, after
deducting from the amount of such rents, charges or other consideration, any
brokerage commissions, actual and reasonable costs for labor and materials in
preparing the space for subletting, and attorneys' fees and disbursements
reasonably incurred by Sublessee for such subletting (the "Deductions"), shall,
----------
for any period, exceed the Rents payable for the subleased space under this
Sublease for the same period (computed on a per square foot basis in the event
of a subletting of less than the whole of the Premises), Sublessee shall pay to
Sublessor, as Additional Rent, within ten (10) days after the date or dates on
which such rents, charges and other sums have been paid to Sublessee, 50% of any
such excess. Notwithstanding anything to the contrary contained in this
Paragraph 21E or elsewhere in this Sublease, Sublessee shall have been deemed to
-------------
grant to Sublessor the option, with respect to any portion of the Premises which
is the subject of a proposed sublet or assignment pursuant to Paragraph 21D (or
-------------
any proposed sublet, assignment or occupancy which Sublessee undertakes in
violation of the provisions of this Paragraph 21D), an option (the "Recapture
------------- ---------
Right") to be exercised within fifteen (15) business days after receipt of all
-----
items to be submitted by Sublessee pursuant to Paragraph 21C (and which
-------------
satisfies the conditions of Paragraph 21C (a) to (l)) or receipt by Sublessor of
-------------------------
notice of any such prohibited sublease, assignment or occupancy) to terminate
this Sublease on the terms and conditions hereinafter set forth with respect
only to the portion of the Premises which is subject to any proposed subletting,
assignment or occupancy (the "Recaptured Area"). In the event that Sublessor
---------------
exercises the Recapture Right then, as to the Recaptured Area:
21
(a) Sublessee shall vacate and surrender the Recaptured Area on or
before the day immediately preceding the proposed commencement date of the
proposed assignment, sublease or occupancy and the Sublease shall terminate
with respect to such Recaptured Area on such proposed commencement date as
if such date were the Expiration Date;
(b) from and after such date of termination, this Sublease shall be
deemed amended to (1) eliminate the Recaptured Area from the Premises, (2)
reduce the Fixed Rent payable hereunder by an amount equal to the Fixed
Rent payable with respect to the Recaptured Area immediately prior to such
termination, (3) reduce the Sublessee's Tax Proportionate Share and
Sublessee's Operating Proportionate Share to reflect the elimination of the
Recaptured Area from the Premises, and (4) make such other changes as are
appropriate to reflect the elimination of the Recaptured Area from the
Premises. Sublessor and Sublessee shall execute a written amendment to
this Sublease prepared by Sublessor and reasonably satisfactory to
Sublessor and Sublessee setting forth the foregoing modifications;
(c) Sublessor may, and shall have no liability to Sublessee if
Sublessor shall, sublease the Recaptured Area (or any part thereof) to
Sublessee's prospective subtenant, assignee or occupant for all or any
portion of the term of the proposed subletting, assignment or occupancy;
and
(d) Sublessor, at its expense, shall make such alterations as may be
required to separate physically the Recaptured Area from the remainder of
the Premises and to comply with all Legal Requirements and Insurance
Requirements (unless the same would have been the responsibility of the
subtenant pursuant to the proposed assignment, sublease or occupancy), and,
at Sublessor's expense (unless the same would have been the responsibility
of Sublessee pursuant to the proposed assignment, sublease or occupancy
agreement), shall repair or restore to tenantable condition any part of the
remainder of the Premises which is damaged by such separation. If required
by Legal Requirements and Insurance Requirements, Sublessor shall afford
Sublessee and its agents, tenants, undertenants, or licensees reasonably
appropriate means of ingress to and egress from the Recaptured Area, and,
if required by Legal Requirements and Insurance Requirements, Sublessee
shall afford Sublessor and its agents, undertenants and licensees
reasonably appropriate means of ingress to and egress from the remainder of
the Premises; and
22
(e) on or prior to the Expiration Date, Sublessee shall restore, or
reimburse Sublessor for its restoration cost with respect to, the
Recaptured Area to the condition required by this Sublease and/or the Main
Lease, including removal of any alterations made in the Recaptured Area by
any party to the extent required by this Sublease and/or the Main Lease.
OCCUPANCY TAX.
-------------
22. Sublessee agrees to file all requisite New York City occupancy tax
returns with the Department of Finance of the City of New York on a timely basis
and to pay directly to the City of New York all occupancy and commercial rent
taxes which may be payable by Sublessee with respect to Rent and shall pay
directly to the appropriate taxing authority any and all other taxes the payment
of which shall be imposed directly on the occupant of the Premises.
Termination of Main Lease.
-------------------------
23. A. In the event of and upon the termination or cancellation of the
Main Lease pursuant to the terms and provisions thereof, this Sublease shall
automatically cease and terminate, subject however to all of the rights of the
Landlord pursuant to the Main Lease.
B. Reference in this Sublease to "termination" of this Sublease
includes expiration or earlier termination of the Term or cancellation of this
Sublease pursuant to any of the provisions of this Sublease or pursuant to law.
Upon the termination of this Sublease, the term and estate granted by this
Sublease shall end at 12:00 p.m. on the date of termination as if such time and
date were the time and date of expiration of the Term, and neither party shall
have any further obligation or liability to the other after such termination,
except (i) as shall be expressly provided for in this Sublease, and (ii) for
such obligations as by their nature or under the circumstances can only be, or
by the provisions of this Sublease, may be, performed after such termination
and, in any event, unless otherwise expressly provided in this Sublease, any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of such termination shall survive the termination of
this Sublease.
C. Provided this Sublease is in full force and effect and Sublessee
is not in material default hereunder beyond any applicable cure period,
Sublessor covenants and agrees to observe and perform all of the terms,
covenants and conditions to be performed by the Tenant in the Main Lease and
further covenants and agrees not to do or suffer or permit anything to be done
23
which would result in a default under or cause the Main Lease to be terminated
or which would result in an elimination of reduction of services under the Main
Lease. Sublessor shall not terminate or surrender the Main Lease provided
however, nothing contained herein shall be deemed to prevent Sublessor from
exercising any right of termination Sublessor might have pursuant to the Main
Lease with respect to Article 15 or Article 16 of the Main Lease.
---------- ----------
BROKER.
------
24. Sublessee represents and warrants to Sublessor that there is no
broker, finder or similar person entitled to a commission, fee or other
compensation in connection with the consummation of this Sublease and no
conversations or prior negotiations were had by Sublessee with any broker,
finder or similar person concerning the renting of the Subleased Premises other
than The Xxxxxxxxx Company and Park Tower Realty Corp. (collectively, the
"Brokers"). Sublessee agrees to indemnify and hold Sublessor harmless from and
--------
against all loss, cost, liability, claim, damage or expense (including, without
limitation, court costs and reasonable attorneys' fees) incurred in connection
with or arising out of any claims for brokerage commissions, finder's fees, or
other compensation resulting from or arising out of any conversations,
negotiations or actions had by Sublessee or anyone acting on behalf of Sublessee
with any broker, finder or similar person. Sublessor hereby agrees to pay the
brokerage commission due Brokers pursuant to a separate agreement. The
provisions of this Paragraph 24 shall survive the termination of this Sublease.
------------
CONSENTS AND APPROVALS OF SUBLESSOR.
-----------------------------------
25. A. Sublessee agrees that in any case where the provisions of this
Sublease require the consent or approval of Sublessor prior to the taking of any
action, it shall be a condition precedent to the taking of such action that the
prior consent or approval of Landlord shall have been obtained, if the consent
of Landlord must be obtained under the Main Lease in such case. Sublessor,
provided Sublessee is not in default hereunder with respect to a default of
which notice has been given by Sublessor to Sublessee, agrees that its consent
or approval will not be unreasonably withheld or delayed in any such case as to
which the Landlord shall have consented. By way of illustration, but not of
limitation, Sublessor shall not be deemed to have unreasonably withheld its
consent if the action or other matter as to which such consent is sought may, in
the good-faith judgment of Sublessor, increase Sublessor's duties or liabilities
under this Sublease or the Main Lease. The provisions of this Paragraph 25
------------
shall not apply to any assignment or mortgaging or encumbrancing of Sublessee's
interest in this Sublease or the
24
subletting or further subletting of the whole or any part of the Premises, which
shall be governed by the provisions of Paragraph 21 of this Sublease.
------------
B. (a) Sublessee hereby waives any claim against Sublessor which it
may have based upon any assertion that Sublessor has unreasonably withheld or
unreasonably delayed any such consent, and Sublessee agrees that its sole and
exclusive remedy for any claimed unreasonable withholding or delay of any
consent shall be an action or proceeding to enforce any such provision or for
specific performance, injunction or declaratory judgment, without Sublessor
being subject to any money damages whatsoever, directly or indirectly.
(b) If the determination in the action or proceeding referred to
in subsection (a) of this Paragraph 25B shall be favorable to Sublessee, the
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requested consent shall be deemed to have been granted; however, Sublessor shall
have no personal, monetary or other liability to Sublessee for its refusal or
failure to give such consent.
MISCELLANEOUS.
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26. Neither Sublessor nor any agent, representative or employee of
Sublessor has made any representations, agreements or promises with respect to
the Building or the Premises or the use thereof other than those expressly set
forth in this Sublease and no rights are to be deemed acquired by Sublessee, by
implication or otherwise, except those expressly granted herein. This Sublease
shall be construed and enforced in accordance with and governed by the laws of
the State of New York. This Sublease contains the entire agreement and
understanding between Sublessor and Sublessee with respect to the Premises and
all prior negotiations and agreements are merged in this Sublease. This
Sublease may not be modified or amended or any term or provision hereof waived
or discharged except in a writing signed by the party against whom such
amendment, modification, waiver or discharge is sought to be enforced. Any
executory agreement hereafter made between Sublessor and Sublessee shall be
ineffective to change, modify, waive, release, discharge, terminate or effect an
abandonment or surrender of this Sublease, in whole or in part, unless such
agreement is in writing and signed by the parties.
RIGHTS CUMULATIVE.
-----------------
27. Each right and remedy of Sublessor provided for in this Sublease shall
be cumulative and shall be in addition to every other right and remedy provided
for in this Sublease or now or hereafter existing at law or in equity or by
statute or otherwise.
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BINDING EFFECT.
--------------
28. The terms, covenants and conditions contained in this Sublease whether
so expressed or not shall be binding upon and inure to the benefit of and be
enforceable by Sublessor and Sublessee and their respective successors and
assigns, except that no violation of the provisions of Paragraph 21 hereof shall
------------
operate to vest any rights in any successor or assignee of Sublessee. It is
understood and agreed that the obligations of Sublessor under this Sublease
shall not be binding upon Sublessor with respect to any period subsequent to the
transfer of its interest in the Main Lease, and that in the event of such
transfer said obligations shall be binding upon the transferee of Sublessor's
interest as tenant under the Main Lease, but only with respect to the period
commencing on the date of such transfer and ending on the date of a subsequent
transfer thereof.
READINGS.
--------
29. The headings of this Sublease are for purposes of reference only and
shall not limit or otherwise affect the Leaning thereof.
NONRECOURSE.
-----------
30. Notwithstanding anything in this Sublease to the contrary, Sublessor's
exculpation or limitation of liability or Sublessee's assumption of liability or
obligation to repair shall not apply if the loss, damage or expense is covered
by Sublessor's insurance, results from the negligent acts or omissions of
Sublessor, its agents or employees; or the failure of Sublessor to: (a) perform
its obligations in accordance with the terms of this Sublease or (b) enforce the
obligations of other sublessees under their respective subleases to the extent
that proximate harm results to Sublessee.
COUNTERPARTS.
------------
31. This Sublease may be executed in several counterparts each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
SECURITY DEPOSIT.
----------------
32. Sublessee has simultaneously herewith deposited with Sublessor a
certified or bank check in the amount of $100,000.00 the proceeds of which (the
"Security"). All sums deposited by Sublessee with Sublessor pursuant to this
--------
Paragraph 32 shall be held as security for the full and punctual performance by
------------
Sublessee of all the terms of this Sublease and shall be maintained in an
interest-bearing account selected by Sublessor.
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If Sublessee defaults in the performance of any of the terms of this Sublease,
including the payment of Fixed Rent or any Additional Rent, Sublessor may use,
apply or retain the whole or any part of the Security and interest thereon to
the extent required for the payment of any such Rent or for any sum which
Sublessor may expend or may be required to expend by reason of Sublessee's
default in respect of any of the terms of this Sublease, including any damages
or deficiency in the re-letting of the Premises, whether accruing before or
after summary proceedings or other re-entry by Sublessor. In the case of every
such use, application or retention, Sublessee shall, on demand, pay to Sublessor
the sum so used, applied or retained which shall be added to the Security so
that the same shall be replenished to its former amount, and any failure by
Sublessee to pay such sum on demand shall constitute a default under this
Sublease. If any bankruptcy, insolvency, reorganization or other credit-debtor
proceedings shall be instituted by or against Sublessee, or its successors or
assigns, or the guarantor, if any, any Security and interest thereon with
Sublessor pursuant to this Paragraph shall be deemed to be applied first to the
payment of any Rents and/or other charges due Sublessor for all periods prior to
the institution of such proceedings and the balance, if any, of such Security
with Sublessor may be retained by Sublessor in partial liquidation of
Sublessor's damages. If Sublessee shall fully and punctually comply with all of
the terms of this Sublease, the unapplied portion of the Security, with
interest, shall be returned to Sublessee after the termination of this Sublease
and delivery of exclusive possession of the Premises to Sublessor; provided that
until the occurrence of such events, Sublessor may retain a one (1%) percent
administration fee per annum with respect to such Security. In the event of a
transfer of Sublessor's interest under this Sublease, Sublessor shall have the
right to transfer the Security and interest thereon to the transferee and
Sublessor shall upon such transfer be released by Sublessee from all liability
for the return of such Security; and Sublessee agrees to look solely to the
transferee Sublessor for the return of said Security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security to a Sublessor. Sublessee shall not assign or encumber or attempt to
assign or encumber the sums deposited herein as Security or the interest thereon
and neither Sublessor nor its successors or assigns shall be bound by any such
assignment, encumbrance or attempted assignment or encumbrance.
LANDLORD'S CONSENT.
------------------
33. Sublessee hereby acknowledges and agrees that this Sublease shall not
become effective until, and is expressly conditioned upon, either (i) the
delivery by Landlord of a writing signed by Landlord (the "Consent") in
-------
substantially the form pursuant to which Landlord shall consent to this
Sublease,
27
or (ii) consent having been deemed given pursuant to any applicable provision of
the Main Lease. Promptly after the execution and delivery of this Sublease,
Sublessor shall submit this Sublease to Landlord, together with Sublessor's
request that Landlord deliver the Consent. Sublessee shall cooperate in good
Faith with Sublessor and shall comply with any reasonable request made of
Sublessee by Sublessor or Landlord in the procurement of the Consent. Sublessor
or Sublessee shall not be obligated to make any payment to Landlord or incur any
other expenses or enter into litigation with Landlord in order to obtain the
Consent. Sublessor or Sublessee shall not be subject to any liability for
failure to obtain the Consent, including any asserted damages or costs or
expenses of any nature of Sublessee, its agents, contractors, architects or
other professional representatives, and in the event that the Consent is not
delivered by Landlord or consent is not deemed given by Landlord pursuant to any
applicable provision of the Main Lease, Sublessor and Sublessee shall destroy
any executed counterparts of this Sublease in their possession and neither party
shall have any further liability to the other with respect to the transaction
described herein.
RELOCATION.
----------
34. Sublessor shall, at its option, have a one-time right, at any time
during the Term, to elect by eight (8) weeks prior written notice (the
"Relocation Notice") to Sublessee to substitute for the Premises other office
-----------------
space in the Building (herein called the "Substitute Premises") designated by
-------------------
Sublessor, provided, that in all events Sublessor shall cooperate and consult
with Sublessee prior to giving the Relocation Notice, and, to the extent
-----
reasonably possible, cause the Landlord to cooperate and consult with Sublessee
to assure that Sublessee will be able to utilize its twenty-four hour central
computer equipment without interruption in the Substitute Premises and to make
available the Substitute Premises free of dust and with appropriate HVAC and
electrical connections already in place, and provided further that such
Substitute Premises (1) contains at least the same rentable square foot area as
the Premises; (2) has a configuration substantially similar to that of the
Premises to the extent of the same number of offices, workstations, HVAC,
electricity and conference areas; (3) is no lower than the fifth (5th) floor in
the Building; (4) shall be made available and access provided to Sublessee at
the time of the Relocation Notice to enable Sublessee to install or duplicate
its Central Computer Site in the Substitute Premises so that the Central
Computer Site may be relocated to the Substitute Premises and operated
continuously and without interruption in the Substitute Premises; and (5) shall
have the same Building Services (as defined in the Main Lease) and services
specified hereunder available for Sublessee's use, subject to the provisions of
the Main Lease and the provisions of this Sublease, including Paragraph 6
-----------
hereof.
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The Relocation Notice shall be accompanied by a plan of the Substitute Premises,
and such Relocation Notice or the plan shall set forth the rentable square foot
area of the Substitute Premises. Sublessee shall occupy the Substitute Premises
promptly in accordance with the terms of this Sublease. Sublessee shall pay the
same Rents with respect to the Substitute Premises as were payable with respect
to the Premises, without regard to the rentable square foot area of the
Substitute Premises. In the event of the application of the provisions of this
subclause with respect to the Substitute Premises, this Sublease shall no longer
apply to the Premises, and shall apply to the Substitute Premises as if the
Substitute Premises had been the space originally demised under this Sublease;
provided, that the property referred to on Exhibit C attached hereto shall be
---------
made available for Sublessee's use in the Substitute Premises in the event that
Sublessor exercises its option as described in this sub-clause. Sublessor shall
have no liability to Sublessee in the event of such substitution, but Sublessor
shall reimburse Sublessee for any reasonable costs and expenses it has incurred
in connection with Sublessee's relocation, including costs and expenses for
architects or engineers in connection with the Premises, the costs of any
renovations Sublessee has made in the Substitute Premises (including, without
limitation, telephone systems, any Local Area Network (LAN) or Wide Area
Network, servers and racks necessary to move to the Substitute Premises to allow
the computer and servers to operate continuously and without interruption during
such move, HVAC, and electricity, all to the extent of the comparable systems
which were included in the Premises and in quality at least equal to those
systems which were in the Premises), reasonable hourly overtime costs for
employees of Sublessee reasonably required to supervise or assist in such move,
and replacement letterhead, business cards and other reasonable costs incurred
by Sublessee directly as a result of such move, all as substantiated to the
reasonable satisfaction of Sublessor. Sublessor at Sublessor's expense, shall
construct and install the central site work stations, LAN, or Wide Area Network,
as appropriate, HVAC and electricity and shall move Sublessee's furniture,
office equipment, supplies and other items existing in the Premises at the time
of the Relocation Notice no earlier than eight (8) weeks after the Relocation
Notice is delivered to Sublessee. Sublessor shall perform such move, or cause
such move to be performed, by a reputable bonded moving company. The move shall
be commenced and completed during non-business hours (i.e., on a Saturday or a
----
Sunday) so that there will be interruption to Sublessee's business activities in
the Premises.
29
MISCELLANEOUS
-------------
35. A. Sublessor shall use good-faith efforts to cause Landlord to have
Sublessee's name and the names of its officers and employees listed in the
building directory, provided, however, that Sublessee shall be entitled to the
number of listings normally provided by the Landlord for a full floor Tenant in
the building.
B. Sublessor shall use good-faith efforts to cause Landlord to
provide to Sublessee the use of the freight elevator and other facilities that
Sublessee may reasonably require for a period of time not to exceed four (4)
hours, at no cost to Sublessee, for Sublessee's initial move-in to the Premises.
C. Sublessor represents that Sublessee's use specified in the
Sublease does not invalidate any policies of insurance of the Sublessor covering
the Premises. Sublessee shall not be obligated to reimburse Sublessor for
increases in fire insurance premiums resulting from Sublessee's use of the
Premises in accordance with Paragraph 2 hereof and not resulting from
-----------
Sublessee's negligence, misuse or neglect thereof, or breach of its obligations
hereunder nor shall Sublessee be obligated to make any alterations or repairs to
the Premises which may be required by Sublessor's insurance coverage if
Sublessee conducts its business in accordance with Paragraph 2 hereof.
-----------
D. If Sublessor fails to pay any charge, imposition, rent or claim
under the Main Lease, upon receipt by Sublessee of any notice from Landlord, in
accordance with Landlord's consent to this Sublease, requesting that all
payments of rent due under the Sublease be paid to Landlord because of a default
by Sublessor, Sublessee may fully rely thereon and make such payment to
Landlord, even though the existence and nature of the default may be questioned
or denied by Sublessor. Sublessee shall have no liability whatsoever to
Sublessor and Sublessor shall look solely to Landlord for the recovery of any
monies or claim for the rent due under the Sublease.
E. Sublessor represents that the Main Lease is in full force and
effect.
F. Subject to the consent of Landlord, either in the Consent or
pursuant to separate agreement, additional service work with respect to the
Premises or overtime HVAC service may be contracted for directly between
Landlord and Sublessee, including billing and payment by Sublessee of any
specific charges therefor. In the event that Landlord agrees to deal directly
with Sublessee with respect to overtime HVAC charges or other additional service
work, and Landlord agrees to xxxx Sublessee
30
directly, then the provisions of Paragraph 17 of this Sublease shall have no
------------
further application as to any such services.
31
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/ Xxx Xxxxxxxx
----------------------------------------------
Title: Program Manager
SUBLESSEE:
MULTEX SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------
Title: President
32
