Exhibit 10.15
SUB-SUBLEASE
AGREEMENT OF SUBLEASE, made as of the 1st day of June, 2001, between
Trans-Resources, Inc. ("Sublandlord"), a Delaware Corporation, having an office
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and ESC Medical Systems, Ltd.
("Subtenant"), an Israeli corporation, having an office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H :
WHEREAS, by agreement of lease ("Xxxxxxxxx") dated as of October 16, 1993,
between Teachers Insurance and Annuity Association of America ("Overlandlord"),
as landlord, and Foamex L.P. ("Prime Landlord"), as tenant, Overlandlord leased
to Prime Landlord, Suite 100 on the 11th floor in the building located at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Xxxxxxxxx Premises").
WHEREAS, by agreement of sublease (the "Prime Lease"), between Prime
Landlord, as sublandlord, and Sublandlord, as subtenant, Prime Landlord
subleased the Xxxxxxxxx Premises to Sublandlord; and
WHEREAS, Sublandlord desires to sublease to Subtenant, and Subtenant
desires to hire from Sublandlord a portion of the Xxxxxxxxx Premises, on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
it is agreed as follows:
1. SUBLEASING OF PREMISES. Sublandlord subleases to Subtenant and Subtenant
hires from Sublandlord the four executive offices on the west side of the
Xxxxxxxxx Premises, as depicted on Exhibit A annexed hereto (the "Premises").
The Premises also includes (i) the use (subject to passage, ingress and egress
by Sublandlord and its employees, agents and invitees to and from the balance of
the Xxxxxxxxx Premises) of the secretarial and support areas contiguous to the
Premises as also depicted on Exhibit A; (ii) the use in common with Sublandlord,
of the Boardroom, kitchen and pantry, copy room, small conference room, mail
room and file room (such use intended to approximate 50% thereof) on a first
come, first served basis, and (iii) shared use of the reception area. The use by
Subtenant includes the use of the furniture, fixtures and equipment
("Furnishings") now located within the four offices and the secretarial/support
areas immediately adjacent thereto; Exhibit B annexed hereto lists the
Furnishings and except as noted thereon the parties agree that the Furnishings
are in good condition, free from damage or defects.
2. CONDITION OF PREMISES. On the Commencement Date (as hereinafter
defined), Sublandlord shall deliver the Premises and Furnishings, and Subtenant
agrees to accept the Premises and Furnishings, in their "as is" condition, and
Sublandlord shall not be obligated to perform any work or furnish any materials
in, to or about the Premises in order to prepare the Premises or Furnishings for
use or occupancy by Subtenant or otherwise.
3. TERM OF SUBLEASE. The term ("Term") of this Sublease shall commence on
the later of May 15, 2001, or the date which is three (3) Business Days (as
hereinafter defined) after Sublandlord gives Subtenant notice that the Prime
Landlord and Overlandlord have consented to this Sublease (the "Commencement
Date") and, unless sooner terminated as herein provided, shall expire on March
31, 2002 (the "Expiration Date"). As used herein, the phrase "Business Days"
shall mean all days except Saturdays, Sundays, and days on which banks located
within the State of New York are required or permitted to be closed.
4. PRIME LANDLORD'S AND OVERLANDLORD'S CONSENT. This Sublease is subject to
and conditioned upon Sublandlord obtaining the written consent of Prime Landlord
and Overlandlord to this Sublease, to the extent required under the prime Lease
and Xxxxxxxxx. Sublandlord shall promptly request such consent, and Subtenant
shall cooperate with Sublandlord, at no cost or expense to Subtenant, to obtain
such consent and shall provide all information concerning Subtenant that Prime
Landlord shall reasonably request. If such consent is refused or if Prime
Landlord shall otherwise fail to grant such consent within thirty (30) days from
the date hereof, then either party may, by written notice to the other, given at
any time prior to the granting of such consent terminate this Sublease,
whereupon within five days after receipt of such notice of termination,
Sublandlord shall refund to Subtenant any Rental (as hereinafter defined) paid
in advance hereunder. Upon the making of such refunds, neither party hereto
shall have any further obligation to the other under this Sublease, except to
the extent that the provisions of this Sublease expressly survive the
termination of this Sublease.
5. RENT.
A. Subtenant covenants and agree to pay to Sublandlord, in lawful money of
the United States, fixed rent ("Fixed Rent") equal to thirty-five (35%) percent
of all Fixed Rent, Escalation Rent and Electricity Charges payable by
Sublandlord for the period corresponding to the term of this Sublease pursuant
to and as defined in the Prime Lease. Currently, Sublandlord pays $83,352 per
month and accordingly Fixed Rent herein shall initially be at the rate of
$29,173.20 per month. In addition, if and to the extent Subtenant shall request
overtime or additional services as provided for in paragraphs 2(h) and 2(i) of
the Prime Lease, then Subtenant shall be solely responsible for the additional
costs incurred. Subtenant shall pay the first monthly installment of Fixed Rent
payable under this Sublease on execution of this Sublease. Sublandlord shall
accompany its invoices for Fixed Rent and other charges with a copy of the
applicable invoice from Overlandlord or Prime Landlord, as the case may be.
B. (a) Fixed Rent shall be due and payable in equal monthly installments in
advance, three (3) Business Days prior to the first day of each month during the
Term. If the Commencement Date shall be other than the first day of a month, the
monthly installments of Fixed Rent payable hereunder for any such month shall be
prorated on a per diem basis based on the actual number of days in such month.
(b) All of the amounts payable by Subtenant pursuant to this Sublease,
including, without limitation, Fixed Rent, additional rent, and all other costs,
charges, sums and deposits payable by Subtenant hereunder (collectively,
"Rent"), shall constitute rent under this Sublease and shall be payable to
Sublandlord or its designee at such address as Sublandlord shall from time to
time direct in writing.
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(c) Subtenant shall promptly pay the Rental as and when the same shall
become due and payable without setoff, offset or deduction of any kind
whatsoever and, in the event of Subtenant's failure to pay same when due,
Sublandlord shall have all of the rights and remedies provided for in the Prime
Lease or at law or in equity in the case of nonpayment of rent. Subtenant's
obligation to pay Rental shall survive the expiration or sooner termination of
this Sublease.
(d) If any Rental shall not be paid within ten (10) days after the same is
due hereunder such unpaid Rental shall bear interest from the date on which such
Rental was originally due until the date when paid at a rate which is three (3%)
per cent in excess of the prime or base reference lending rate from time to time
quoted by Citibank N.A. (or any successor thereto).
6. USE. Subtenant shall use and occupy the Premises for general, executive
and administrative offices only and for no other purpose.
7. SUBORDINATION TO AND INCORPORATION OF THE PRIME LEASE.
A. This Sublease and all of Subtenant's rights hereunder are and shall
remain in all respects subject and subordinate to (i) all of the terms,
conditions and provisions of the Prime Lease and Xxxxxxxxx (which includes all
amendments thereto), a true and complete copy of which (except for the rent and
certain other financial provisions) has been delivered to and reviewed by
Subtenant, (ii) any and all amendments or modifications to the Prime Lease and
Xxxxxxxxx or supplemental agreements relating thereto hereafter made between the
Prime Landlord and Sublandlord which do not in any material respect contravene
any express rights granted to Subtenant hereunder and (iii) any and all matters
to which the tenancy of Sublandlord, as tenant under the Prime Lease, is or may
be subordinate. The foregoing provisions shall be self-operative and no further
instrument of subordination shall be necessary to effectuate such provisions.
B. Except as otherwise expressly provided in this Sublease, Subtenant
assumes and shall keep, observe and perform every term, provision, covenant and
condition on Sublandlord's part pertaining to the Premises which is required to
be kept, observed and performed pursuant to the Prime Lease and which arises or
accrues during the Term of this Sublease
C. Except as otherwise expressly provided in this Sublease, the terms,
provisions, and conditions contained in the Prime Lease are incorporated in this
Sublease by reference, and are made a part hereof as if herein set forth at
length, Sublandlord being substituted for the, "Landlord" or "Owner" under the
Prime Lease, Subtenant being substituted for the "Tenant" wider the Prime Lease,
and Premises being substituted for "demised premises" under the Prime Lease. The
parties agree that the following provisions of the Prime Lease are not so
incorporated herein by reference: 1, 2(a), (c), (d), (e), (f) and (g), 4(e), 10,
11, 12, 13, 14 and 18. Further, Subtenant shall take good care of the Furnishing
during the Term, shall not remove or cause any Furnishings to be removed and
upon expiration or termination of the Term
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shall surrender the same to Sublandlord in the condition received, reasonable
wear and tear excepted.
D. The time limits set forth in the Prime Lease for the giving of notices,
making demands, performance of any act, condition or covenant, or the exercise
of any right, remedy or option, are changed for the purposes of incorporation
into this Sublease, by lengthening or shortening the same in each instance, as
appropriate, so that notices may be given, demands made, or any act, condition
or covenant performed, or any right, remedy or option hereunder exercised, by
Sublandlord or Subtenant, as the case may be (and each party covenants that it
will do so), not later than three (3) Business Days prior to the expiration of
the time limit, taking into account the maximum grace period, if any, relating
thereto contained in the Prime Lease. Each party shall promptly deliver to the
other party copies of all notices, requests or demands which relate to the
Promises or the use or occupancy thereof after receipt of same from the prime
Landlord, in the case of any time limit described above which is one or two days
after the giving of the notice applicable thereto, such notice shall be
delivered personally as provided in Article 20 hereof. With respect to any
request for overtime services, Subtenant may make such request in Sublandlord's
name directly to the Prime Landlord, provided such request is made in accordance
with the terms of the Prime Lease and a duplicate copy of such request is
simultaneously given to Sublandlord.
E. Sublandlord shall have the same rights and remedies with respect to a
breach of this Sublease by Subtenant as the Prime Landlord has with respect to a
breach of the Prime Lease, as if the same were more fully set forth at length
herein, and Sublandlord shall have, with respect to Subtenant, this Sublease and
the Premises, all of the rights, powers, privileges and immunities as are had by
the Prime Landlord under the Prime Lease. Sublandlord herein shall not be
responsible for any breach of the Prime Lease by the Prime Landlord or any
non-performance or non-compliance with any provisions thereof by the Prime
Landlord but Sublandlord shall comply with the provisions of Article 19 hereof.
8. ATTORNMENT. If the Prime Lease and Sublandlord's leasehold interest in
the Premises shall be terminated, other than as a result of casualty,
condemnation or sale in lieu thereof, Subtenant shall, if so requested in
writing by Prime Landlord, attorn to Prime Landlord and shall, during the Term,
perform all of the terms, covenants and conditions of this Sublease on the part
of Subtenant to be performed. In the event of any such attornment, Prime
Landlord shall not be (a) liable for any act or omission or default of any prior
sublessor (including, without limitation, Sublandlord); or (b) subject to any
offsets or defenses which Subtenant might have against any prior sublessor
(including without limitation, Sublandlord); or (c) bound by any rent or
additional rent which Subtenant might have paid for more than the current month
to any prior sublessor (including, without limitation, Sublandlord); or (d)
bound by any amendment or modification of this Sublease made without Prime
Landlord's consent. The foregoing shall be self-operative without the necessity
of the execution of any further instruments but Subtenant agrees, upon the
demand of Prime Landlord, to execute, acknowledge and deliver any instrument or
instruments confirming such attornment.
9. ENFORCEMENT OF PRIME LEASE. If the Prime Landlord shall default in any
of its obligations to Sublandlord with respect to the Premises, Sublandlord
shall not be obligated to bring any action or proceeding or to take any
extraordinary steps to enforce
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Sublandlord's rights against Prime Landlord but will however, use good faith
efforts to enforce such rights under the Prime Lease with respect to the
Premises.
10. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES.
Without the prior written consent of Sublandlord and, to the extent
required under the Prime Lease, of Prime Landlord and Overlandlord, Subtenant
shall not (i) assign this Sublease (by operation of law or otherwise), (ii)
further sublease all or any part of the Premises, (iii) mortgage, pledge,
hypothecate or otherwise encumber its interest in this Sublease or the Premises
or any interest therein, or (iv) grant any concession, license or otherwise
permit the Premises to be used or occupied by anyone other than Subtenant. Any
assignment, sublease, mortgage, pledge, hypothecation or other encumbrance of or
under this Sublease without such prior written consent shall be invalid and
without force and effect. Sublandlord's consent may be withheld in its sole
discretion.
11. INDEMNIFICATION.
A. Sublandlord, Prime Landlord, Overlandlord and the employees, agents,
contractors, licensees and invitees (collectively "Agents") of each
(collectively, "Indemnified Parties"), shall not be liable to Subtenant or its
agents and Subtenant shall indemnify and hold harmless the Indemnified Parties
from and against any and all suits, claims, demands, liability, damages, costs
and expenses of every kind and nature for which the Indemnified Parties are not
reimbursed by insurance, including, without limiting the generality of the
foregoing, attorneys' fees and expenses, court costs, penalties and fines,
incurred in connection with or arising out of the following to the extent not
caused solely by the acts or omissions of the Indemnified Parties or matters
occurring outside the Premises without the fault of Subtenant:
(i) any injury or damage to any person happening on or about the
Premises, or for any injury or damage to the Premises or Furnishings, or to
any property of Subtenant or of any other person, firm, association or
corporation on or about the Premises;
(ii) default by Subtenant in the payment of the Rental or any other
default by Subtenant in the observance or performance of, or compliance
with any of the terms, provisions or conditions of this Sublease including,
without limitation, such matters relating to obtaining the possession of
the Premises following any such default;
(iii) any holdover beyond the term of this Sublease; and
(iv) any acts, omissions or negligence of Subtenant or any person
claiming through or under Subtenant, or the Agents of Subtenant or any such
person, in or about the Premises, the or the Building.
B. The provisions of this Article 11 shall survive the expiration or
earlier termination of this Sublease.
12. ALTERATIONS. Subtenant shall make no alterations, installations,
additions or improvements (collectively, "Alterations") in or about the Premises
without the prior written consent of Sublandlord in each instance.
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13. INSURANCE.
A. Subtenant, at Subtenant's sole expense, shall maintain for the benefit
of Sublandlord and Prime Landlord such policies of insurance (and in such form)
as are required by the Prime Lease with respect to the Premises, which policies
shall be reasonably satisfactory to Sublandlord as to coverage and insurer
(which shall be licensed to do business in the State of New York), provided that
such insurance at a minimum include commercial general liability insurance to
protect Sublandlord, Prime Landlord and Subtenant against all claims and
liabilities for injury or damage to persons or property occurring upon, in or
about the Premises, the Xxxxxxxxx premises and the public portions of the
Building, caused by or resulting from or in connection with any act or omission
of Subtenant, Subtenant's employees, contractors, agents or invitees.
B. Nothing contained in this Sublease shall relieve Subtenant from any
Liability as a result of damage from fire or other casualty, but each party
shall look first to any insurance in its favor 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, Sublandlord and Subtenant each hereby releases and
waives all right to recovery against the other or anyone claiming through or
under the other by way of subrogation or otherwise, and Subtenant also releases
and waives all right to recover against Prime Landlord The foregoing release
and waiver shall be in force only if the insurance policies of Sublandlord and
Subtenant provide that such release or waiver does not invalidate the insurance;
each party agrees to use its best efforts to include such a provision in its
applicable insurance policies. If the inclusion of said provision would involve
an additional expense, either party, at its sole expense, may require such
provision to be inserted in the other's policy.
14. BROKER. Each party warrants and represents to the other party hereto
that it has not dealt with party brokers in connection with this Sublease. Each
party hereby indemnifies and holds the other party hereto harmless from any and
all loss, damage, claim, liability, cost or expense (including, but not limited
to, reasonable attorneys' fees, expenses and court costs) arising out of or in
connection with any breach of the foregoing warranty and representation. The
provisions of this Article shall survive the expiration or earlier termination
of this Sublease.
15. NOTICES. All notices, consents, approvals or other communications
(collectively a "Notice") required to be given under this Sublease or pursuant
to law shall be in writing and, unless otherwise required by law, shall be
either personally delivered (against a receipt), or sent by reputable overnight
courier service, or given by registered or certified mail, return receipt
requested, postage prepaid, addressed to the party which is to receive such
Notice (attention: Xxxxxxx Xxxx, in the case of Notices to Sublandlord, and
attention: _____________ in the case of Notices to Subtenant) at its address
herein set forth (provided, however, that after the Commencement Date, Notices
addressed to Subtenant shall be sent to the Premises), or such other address as
either may designate by Notice to the other. Any Notice given pursuant thereto
shall be deemed to have received on delivery, if personally delivered or
delivered by reputable overnight courier service, or three (3) Business Days
after the mailing thereof if mailed in accordance with the terms hereof, such
availing to be effected by depositing the Notice in any post office, branch post
office or official depository regularly maintained by the United States Postal
Service.
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16. ENTIRE AGREEMENT, MISCELLANEOUS.
A. This Sublease shall be governed by and construed in accordance with the
law of the State of New York without regard to the conflicts of law principles
thereof.
B. All of the terms and provisions of this Sublease shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
C. All prior negotiations and agreements relating to this Sublease and the
Premises are merged into this Sublease. This Sublease may not be amended,
modified or terminated, in whole or in part, not may any of the provisions be
waived, except by a written instrument executed by the party against whom
enforcement of such amendment, modification, termination or waiver is sought and
unless the same is permitted under the terms and provisions of the Prime Lease.
D. This Sublease shall have no binding force and effect and shall not
confer any rights or impose any obligations upon either party unless and until
both parties have executed it and Sublandlord shall have obtained Prince
Landlord's written consent to this Sublease and delivered to Subtenant an
executed copy of such consent. Under no circumstances shall the submission of
this Sublease in draft form by or to either party be deemed to constitute an
offer for the subleasing of the Premises.
E. This Sublease and all the obligations of Subtenant to pay Rental and
perform all of its other covenants and agreements hereunder shall in no way be
affected., impaired, delayed or excused because Sublandlord or Prime Landlord
are unable to fulfill any of their respective obligations hereunder, either
explicit or implicit, if Sublandlord or Prime Landlord is presented or delayed
from so doing by reason of strikes or labor trouble or by accident, adjustment
of insurance or by any cause whatsoever reasonably beyond Sublandlord's or Prime
Landlord's control.
F. Each and every right and remedy of Sublandlord under this Sublease shall
be cumulative and in addition to every other right and remedy herein contained
or now or hereafter existing at law or in equity, by statute or otherwise.
G. At any time and from time to time either party shall, within ten (10)
days after a written request by the other, execute, acknowledge and deliver to
the requesting party a written statement certifying (i) that this Sublease has
not bean modified and is in full force and effect or, if modified, that this
Sublease is in full force and effect as modified, and specifying such
modifications, (ii) the dates to which the Fixed Rent and Additional Rent and
other charges have been paid, (iii) that to the best of the certifying party's
knowledge, no defaults exists under this Sublease or, if any do exist, the
nature of such default and (iv) as to such other matters as Sublandlord may
reasonably request.
H. Subtenant agrees that in executing this Sublease, it has not relied upon
any statements, representations, covenants or warrantees made by Sublandlord or
any person acting on behalf of Sublandlord other than those, if any, expressly
set forth in this Sublease and on such investigations, examinations and
inspections as Subtenant has chosen to make or has made.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Sublease as
of the day and year first above written.
SUBLANDLORD
TRANS-RESOURCES, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: CFO
SUBTENANT
ESC MEDICAL SYSTEMS, LTD.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: CFO
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SCHEDULES TO BE ANNEXED TO THIS SUBLEASE
A. Description of Premises
B. Furnishings
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