Exhibit 10.9
SUBLEASE
This SUBLEASE, made as of July 2, 1996 between NIKON INC., a New York
corporation having an address at 1300 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000-0000 ("Sublessor"), and ASSESMENT SYSTEMS INC., a New York corporation,
having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Subtenant"),
W I T N E S S E T H:
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Sublessor and Subtenant hereby agree as follows:
SECTION 1. DEFINITIONS
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For the purposes of this Sublease, unless the context requires otherwise,
the following terms shall have the meanings herein specified:
1.01 "Lease" shall mean the Agreement of Lease dated as of June 1, 1990
between Omni 110 Associates, a New York limited partnership, as landlord, and
Sublessor, as tenant, (a copy of which heretofore has been delivered to
Subtenant) and any and all future amendments or other modifications thereof.
1.02 "Landlord" shall mean the person or entity at any relevant time
entitled to enforce the rights of the landlord under the Lease.
1.03 "Building" shall mean the building located at 1300 Xxxx Xxxxxxx
Road, Melville, New York, and of which the Sublease Premises are a part.
1.04 "Permitted Uses" shall mean general office purposes in connection
with Subtenant's business involving sales and human resources consulting, and
employment and related investigations and verifications. Specifically, but
without limitation, any use prohibited under Section 2 of this Sublease or under
the Lease shall not be a Permitted Use.
1.05 "Subleased Premises" shall mean the space substantially as shown on
the Omnitech Drawing #96-651-F dated March 13, 1996 annexed hereto as Exhibit A,
which space is on the first floor of the Building and which consists of
approximately 7,288 rentable square feet.
1.06 "Land" shall mean the parcel of land described in Exhibit B.
SECTION 2. SUBLEASE, TERM, PERMITTED USES
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2.01 Subject to the provisions hereof, Sublessor subleases to Subtenant
and Subtenant subleases from Sublessor the Subleased Premises for a term (the
"Original Term") commencing on the date Sublessor's Work (as herein defined)
shall be completed (as such term is defined in Section 8.02 hereof) (the
"Commencement Date") and expiring at midnight on December 31, 2003 (the
"Expiration Date"). The Subleased Premises shall be occupied and used
exclusively for Permitted Uses and in accordance with the provisions of this
Sublease. The Original Term together with any renewal or extension thereof shall
be referred to as the "Term".
2.02 The parties have targeted on or about
August 1, 1996 as the Commencement Date, and the Subtenant fully understands
that such time period is only a target and that there is no assurance as to the
actual Commencement Date. Furthermore, notwithstanding anything to the contrary
contained in this Sublease, Subtenant fully understands that the Subleased
Premises is presently occupied by two (2) separate subtenants under two separate
sublease agreements and that the commencement of this Sublease is subject to
said subtenants vacating the Subleased Premises and, if Subtenant shall be
delayed in obtaining possession of the Subleased Premises, as a result of the
foregoing existing tenancies or for any other reason whatsoever, or if Sublessor
shall be delayed in the comencement or the construction of Sublessor's Work as a
result of the foregoing existing tenancies or for any reason whatsoever,
Sublessor shall not be subject to any liability, and the effectiveness of this
Sublease shall not be affected but the Fixed Rent (herein defined) shall be
abated (provided Subtenant is not responsible for the delay in obtaining
possession, or in the commencement or construction of Sublessor's Work or any
other work permitted to be performed by Subtenant) until possession shall have
been made available to Subtenant. In the event Sublessor's Work shall not be
completed, through no fault of Subtenant, within seven (7) months after the
Subleased Premises become vacant and Sublessor's Work commences, Subtenant shall
have the right to terminate this Sublease provided Subtenant gives Sublessor
notice of its intention to terminate no later than fifteen (15) business days
prior to the expiration of said seven (7) month period. The provisions hereof
are intended to constitute "an express provision to the contrary" within the
meaning of Section 223-a of the New York Real Property Law.
2.03 (i) Subtenant shall not use or permit all or any part of the
Subleased Premises to be used in any manner which in Sublessor's sole judgment
does or is likely to impair the character or dignity of the Building or
Sublessor's business or any other subtenant's business.
(ii) If any governmental license or permit shall be required for
the proper and lawful conduct of Subtenant's business in the Subleased Premises,
Subtenant shall duly procure and maintain such permit or license and comply with
its terms and conditions throughout the Term.
(iii) Any business machine or mechanical equipment with causes
vibration, noise, cold or heat shall be placed and maintained, at Subtenant's
sole cost and expense, in setting of cork, rubber or spring-type vibration
eliminators sufficient in Sublessor's sole judgment to absorb such vibration and
noise or prevent transmissions of cold and heat.
SECTION 3. LEASE
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This Sublease and the covenants, provisions, terms and conditions hereof
are subject and subordinate to the covenants, provisions, terms and conditions
of the Lease and to all other matters set forth in Section 18 hereof.
SECTION 4. OBLIGATIONS UNDER LEASE
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Subtenant agrees (i) to be bound by and to perform and comply with all the
covenants, provisions, terms and conditions of the Lease during the Term of this
Sublease to
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the extent applicable to the Subleased Premises or Sublessor with respect to the
Subleased Premises other than those set forth in Sections 3(A), (B), (C), (D)
and (E); 5(A), (B), (C), (D), (E), (F), and (G); 6; 7(A), (B), (C) and (E); 8;
9(A), (B), (C) and (D); 10(A), (B), (C), (D) and (E); 15(A), (B), (C), (D), (E),
(F), (G) and (H); 23(D); and 39, and (ii) not to commit or permit to be
committed any act, or to create or permit to be created any condition, that
would constitute a default under the Lease. In the event any provision of this
Sublease is inconsistent with a provision of the Lease, such inconsistency shall
be resolved in favor of the provision of this Sublease, unless use of the
Subleased Premises or any action or inaction in accordance with said provision
may become the basis of a default under the Lease, in which situation the
inconsistency shall be resolved in favor of the provision of the Lease.
Sublessor represents to Subtenant that the Lease is in full force and effect and
has not been amended or modified as of the date hereof, that the Subleased
Premises may be used for all Permitted Uses, and that Subtenant's rights and
obligations as set forth in this Sublease do not constitute a default under the
Lease, and that as of the date hereof Sublessor is in compliance with Article 19
of the Lease and is not in default under the Lease. Notwithstanding anything to
the contrary contained herein, if Landlord, in writing, shall claim or otherwise
allege that a use of, action or inaction involving, or other circumstance
concerning the Subleased Premises (or any use, whether permitted hereby,
pursuant to law or prohibited hereby or thereby, of the Building by Subtenant,
its employees, agents and contractors) is in violation of any provision of or
may become a default under the Lease, Subtenant, immediately upon notice from
Sublessor an without limiting the rights of Sublessor hereunder, shall cease
such use or action and take such action or cause such circumstance to be changed
so that the basis or alleged basis for such claim or allegation shall no longer
exist.
SECTION 5. FIXED RENT, OPERATING EXPENSES, TAXES AND ADDITIONAL RENT
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5.01 During the Original Term, Subtenant shall pay (i) an annualized
base fixed rent of $156,048.00 from the Commencement Date through the end of the
twenty-fourth calendar month of the Original Term which shall be payable in
equal monthly installments of $13,004.00 per month; (ii) an annual base fixed
rent of $161,836.00 from the beginning of the twenty-fifth calendar month
through the end of the forty-eighth calendar month of the Original Term which
shall be payable in equal monthly installments of $13,486.33 per month; and
(iii) an annual base fixed rent of $167,624.00 from the beginning of the forty-
ninth calendar month through the Expiration Date which shall be payable in equal
monthly installments of $13,968.67 per month (collectively the "Fixed Rent").
Subtenant agrees to pay the Fixed Rent as specified in the preceding sentence in
advance on the first day of each calendar month during the Original Term, except
that the Fixed Rent for the first, second and third full calendar months of the
Original Term less a Fixed Rent credit of $20,258.00, shall be paid at the time
of the execution hereof. The Fixed Rent shall be prorated for any portion of a
month during the Term and, if the first month of the Term is not a full calendar
month, Subtenant shall pay the prorated Fixed Rent due therefor on the
Commencement Date.
5.02 For purposes of this Section 5, unless the context requires
otherwise, the following terms shall have
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the meanings herein specified:
(i) "Base Operating Amount" shall mean the Base Operating
Expenses for the Base Operating Year.
(ii) "Base Operating Year" shall mean the twelve (12) month
period commencing August 1, 1996 and ending July 31, 1997.
(iii) "Operating Expenses" shall mean the sum of all costs and
expenses paid or incurred by Sublessor in respect of the repair, replacement,
cleaning, maintenance, management, insurance, operation, restoration, safety
(including, without limitation, fire safety) and/or security of the Building and
the Land.
(iv) "Building Operating Expense Statement" shall mean a
writing setting forth the Operating Expense Payment (as herein defined) payable
by Subtenant for a specified Operating Year pursuant to this Section 5.02.
(v) "Operating Year" shall mean each twelve (12) month period
commencing August 1 during any part of the Term.
(vi) "Subtenant's Share" shall mean the quotient, expressed as a
percentage, obtained by dividing the rentable square feet of the Subleased
Premises, which is deemed to be 7,288 square feet for purposes of this Sublease,
by the rentable square feet of the portion of the Building which is available
for occupancy, which is deemed to be 132,360 square feet for purposes of this
Sublease. On the date hereof, Subtenant's Share shall mean 5.50%. In no event
shall such deemed square footages constitute or imply any representation or
warranty by Sublessor whatsoever as to the actual size of the Subleased Premises
or the Building, but same shall constitute an express agreement between
Sublessor and Subtenant with respect to such actual sizes thereof.
(vii) "Taxes" shall mean all real estate taxes, sewer charges or
rents, water frontage charges, and assessments, special or otherwise, rates and
charges, county taxes, transit taxes levied, assessed or imposed including any
abatements or exemptions by the County of Suffolk or any other taxing authority
upon or with respect to the Building and the Land, all taxes assessed or imposed
with respect to the rentals payable hereunder other than general income and
gross receipts taxes (except that general income and gross receipts taxes shall
be included if covered by the provisions of the following sentence). Taxes shall
also include any taxes, charges or assessments levied, assessed or imposed by
any taxing authority in addition to or in lieu of the present method of real
estate taxation, provided such substitute taxes, charges and assessments are
computed as if the property were the sole property of the Sublessor subject to
said substitute tax, charge or assessment. With respect to any Tax Year (as
herein defined), all expenses, including, without limitation, legal fees,
experts' and other witnesses' fees, incurred in contesting the validity or
amount of any Taxes or in obtaining a refund of Taxes, shall be considered as
part of the Taxes for such Tax Year. In addition, the term Taxes shall mean any
tax, charge assessment, or sum included within the definition of the term
"Taxes" in the Lease.
(viii) "Tax Year" shall mean each period of
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twelve (12) months, commencing on the first day of December 1 of each such
period, in which occurs any part of the Term, or such other period of twelve
(12) months occurring during the Term as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the County of Suffolk.
(ix) "Base Tax Amount" shall mean the Taxes due for the Tax
Year commencing on December 1, 1996 and ending November 30, 1997 based at full
assessment and including any tax abatements.
5.03 (i) For each Operating Year, including the Operating Year in
which the Commencement Date occurs, any part of which shall occur during the
Term of this Sublease, Subtenant shall pay an amount (herein called an
"Operating Expense Payment") equal to Subtenant's Share of the amount by which
the Operating Expenses for such Operating Year exceed the Base Operating Amount.
Sublessor and Subtenant agree that the Operating Expense Payment for any
Operating Year in which the term of this Sublease commences or expires shall be
prorated.
(ii) Sublessor may furnish to Subtenant, prior to the
commencement of each Operating Year, a written statement setting forth
Sublessor's reasonable estimate of the Operating Expense Payment for such
Operating Year. Subtenant shall pay to Sublessor on the first day of each month
during the Operating Year in which the Operating Expense Payment will be due, an
amount equal to one-twelfth (1/12th) of Sublessor's estimate of the Operating
Expense Payment for such Operating Year. If, however, Sublessor shall not
furnish any such estimate for an Operating Year or if Sublessor shall furnish
any such estimate for an Operating Year subsequent to the commencement thereof,
then (A) until the first day of the month following the month in which such
estimate is furnished to Subtenant, Subtenant shall pay to Sublessor on the
first day of each month an amount equal to the monthly sum payable by Subtenant
to Sublessor under this Section 5.03 in respect of the last month of the
preceding Operating Year; (B) after such estimate is furnished to Subtenant,
Sublessor shall give notice to Subtenant stating whether the installments of the
Operating Expense Payment previously made for such Operating Year were greater
or less than the installments of the Operating Expense in which the Operating
Expense Payment will be due in accordance with such estimate, and (x) if there
shall be a deficiency, Subtenant shall pay the amount thereof within twenty (20)
days after demand therefor, or (y) if there shall have been an overpayment,
Sublessor shall refund to Subtenant the amount thereof (or at Sublessor's
option, credit same against the Additional Rent next due); and (C) on the first
day of the month following the month in which such estimate is furnished to
Subtenant and monthly thereafter throughout the remainder of such Operating
Year, Subtenant shall pay to Sublessor an amount equal to one-twelfth (1/12th)
of the Operating Expense Payment shown on such estimate. Sublessor may, at any
time and from time to time during each Operating Year, furnish to Subtenant a
revised statement of Sublessor's reasonable estimate of the Operating Expense
Payment for such Operating Year, and in each such case the Operating Expense
Payment for such Operating Year shall be adjusted and paid or refunded or
credited as the case may be, in the same manner as provided in the preceding
sentence.
5.04 (i) If Taxes payable for any Tax Year, including the Tax Year
in which the Commencement Date occurs,
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shall exceed the Base Tax Amount, Subtenant shall pay to Sublessor as Additional
Rent for such Tax Year an amount (herein called the "Tax Payment") equal to
Subtenant's Share of the amount by which the Taxes for such Tax Year are greater
than the Base Tax Amount. The Tax Payment for each Tax Year shall be due and
payable in installments in the same manner that Taxes for such Tax Year are due
and payable by Sublessor to the County of Suffolk. Subtenant shall pay
Subtenant's Share of each such installment within twenty (20) days after the
receipt of a writing rendering of a statement therefor by Sublessor to
Subtenant, which statement may be rendered by Sublessor so as to require
Subtenant's Share of Taxes to be paid by Subtenant not more than thirty (30)
days prior to the date such Taxes (or any installment thereof) first become due.
The statement to be rendered by Sublessor shall set forth, in reasonable detail,
the computation of the Tax Payment with respect to the particular installment(s)
being billed. If there shall be any increase or decrease in the Taxes for any
Tax Year, whether during or after such Tax Year, the Tax Payment for such Tax
Year shall be appropriately adjusted and paid or refunded, as the case may be,
in accordance herewith; in no event, however, shall Taxes be reduced below the
Base Tax Amount. If during the Term, Sublessor shall be required to pay Taxes
(either to the appropriate taxing authorities or as tax escrow payments to a
superior mortgagee or superior lessor (including, without limitation, Landlord)
in full or in monthly, quarterly, or other installments, on any other date or
dates than as presently required, then at Sublessor's option, Subtenant's Tax
Payments shall be correspondingly accelerated or revised so that said
Subtenant's Tax Payments are due no more than thirty (30) days prior to the date
payments are due to the taxing authorities or such superior mortgagee or
superior lessor.
(ii) If the Taxes comprising the Base Tax Amount are reduced as a
result of an appropriate proceeding or otherwise, the Taxes as so reduced shall,
for all purposes, be deemed to be the Taxes for purposes of determining the Base
Tax Amount and Sublessor shall give notice to Subtenant of the amount by which
the Tax Payment previously made were less than the Tax Payment required to be
made and Subtenant shall pay the amount of the deficiency within twenty (20)
days after receipt of written demand therefor.
5.05 The expiration or termination of this Sublease during any Tax Year or
Operating Year (for any part or all of which there is due a Tax Payment or
Operating Expense Payment under this Sublease) shall not affect the rights or
obligations of the parties hereto respecting such payments and any Sublessor's
Statement or tax xxxx, as the case may be, relating to such payment may be sent
to Subtenant subsequent to, and all such rights and obligations shall survive,
any such expiration or termination. Any payments due under such Operating
Expenses Statement or Tax Payment, as the case may be, shall be payable within
twenty (20) days after such statement or xxxx is sent to Subtenant.
5.06 Sublessor's failure to render or delay in rendering an Operating
Expense Statement with respect to any Operating Year shall not prejudice
Sublessor's right to thereafter render an Operating Expense Statement with
respect to any such Operating Year, nor shall the rendering of an Operating
Expense Statement for any Operating Year prejudice Sublessor's right to
thereafter render a corrected Operating
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Expense Statement for such Operating Year. Sublessor's failure to render or
delay in rendering a xxxx with respect to any installment of Taxes shall not
prejudice Sublessor's right to thereafter render such a xxxx for such
installment, nor shall the rendering of a xxxx for any installment prejudice
Sublessor's right to thereafter render a corrected xxxx for such installment.
5.07 No payment by Subtenant or receipt or acceptance by Sublessor of a
lesser sum than the correct Fixed Rent or Additional Rent shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or letter accompanying any check or payment be deemed an accord and
satisfaction, and Sublessor may accept such check or payment without prejudice
to Sublessor's right to recover the balance or pursue any remedy in this
Sublease or as provided at law.
5.08 Sublessor shall have the same rights and remedies in the event
Subtenant fails to pay Additional Rent as in the situation in which Subtenant
fails to pay Fixed Rent.
5.09 All payments due pursuant to this Section 5 and all other sums or
charges that may become due pursuant to this Sublease (other than Fixed Rent)
shall be additional rent ("Additional Rent") and shall be due and payable as
specified herein or determined in accordance herewith or, if no time is so
specified or determined, within ten (10) days of receipt of written demand.
5.10 All payments due Sublessor hereunder shall, unless expressly set
forth herein to the contrary, be paid without notice or demand and without
set-off, deduction or abatement whatsoever and shall be delivered to Sublessor
at its address set forth in Section 43 of this Sublease or at such other
address as Sublessor shall specify in writing, by good, unendorsed checks.
SECTION 6. ELECTRICITY
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6.01 (i) All electric current to be furnished to the Subleased Premises
shall be measured by a separate submeter which shall be installed and maintained
by Sublessor. Subtenant shall purchase from and promptly pay to Sublessor the
cost for all electric current that is consumed in the Subleased Premises at
charges not to exceed those being charged by the public utility company or
agency supplying electric current to the Building together with any taxes or
other charges levied on such electric current. Any such charges for electric
current shall be Additional Rent and shall be due and payable to Sublessor
within ten (10) days after the receipt of a written rendering of a statement
therefor.
(ii) Sublessor shall not be liable in any way to Subtenant for any
failure or defect in the supply or character of the electric energy or other
utility being furnished to the Subleased Premises.
6.02 Subtenant's use of electric energy in the Subleased Premises shall
be solely for the purpose of conducting its business therein and shall not at
any time exceed the capacity of any of the electrical conductors, machinery and
equipment in or otherwise servicing the Subleased Premises or the Building. In
order to insure that
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such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Subtenant shall not, without Sublessor's prior
written consent in each instance (i) connect any additional fixtures, machinery,
appliances or equipment to the Building's electric distribution system other
than lamps, typewriters, personal-type computer and related computer terminals,
desk-top copying machines, desk-top communications equipment (such as telephones
and telecopies), and other small office machines that consume comparable or less
amounts of electric energy, or (ii) make any alteration or addition to
Subtenant's machinery, appliances or equipment.
6.03 Sublessor shall not be liable or responsible to Subtenant for any
loss, damage or expense which Subtenant may sustain or incur if (1) the supply
or electric energy to the Subleased Premises is interrupted, or (ii) the
quantity or character of electric service is changed or is no longer available
or suitable to Subtenant's requirements unless directly resulting from
Sublessor's willful misconduct. A change in the availability, supply, quality or
character of electric energy shall not be deemed a constructive eviction of
Subtenant unless caused by Sublessor's willful misconduct.
SECTION 7. SERVICES
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7.01 Sublessor shall provide to the Subleased Premises (i) Monday through
Saturday (except Federal, State and local municipal holidays) from 7:00 a.m. to
7:00 p.m. heat and air conditioning as and when seasonably required but never
with respect to air conditioning between October 15 and May 15 except at
Sublessor's sole election; (ii) water for ordinary drinking and lavatory
purposes, but if Subtenant uses or consumes water for any other purposes or in
unusually large quantities (of which fact Sublessor shall be the sole judge),
Sublessor may install a water meter at Subtenant's sole cost and expense, which
meter Subtenant shall thereafter maintain at its sole cost and expense in good
working order and Subtenant shall pay for water consumed as registered by such
meter; and (iii) Monday through Friday (except Federal, State and local
municipal holidays), cleaning services, in the evenings or early morning,
provided Subtenant keeps the Subleased Premises in reasonable order and provided
further that Sublessor does not require extra or additional cleaning because of
the existence of large quantities of glass, computer, or special installments or
equipment. If the Subleased Premises are not kept in reasonable order by
Subtenant all cleaning shall be done at Subtenant's expense and any extra
cleaning required as set forth above shall be done at Subtenant's expense, all
to Sublessor's satisfaction, by Sublessor's cleaning contractor.
7.02 Any use or occupancy of the Subleased Premises during the hours or
days on or during which Sublessor is not required to furnish heat or
air-conditioning to the Subleased Premises shall be at the sole risk,
responsibility and hazard of Subtenant. Subtenant shall comply with and observe
all Building-wide regulations and requirements prescribed by Sublessor for the
proper functioning of the heating, ventilating and air-conditioning systems.
7.03 In the event that Subtenant shall require air-conditioning, heating
or ventilation at such times as same are not required to be furnished by
Sublessor, Subtenant shall give Sublessor at least forty-eight (48) hours
advance written notice of such requirement and, provided that no
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Event of Default shall be continuing and such service shall not overload or
overtax the Building's systems, same shall be furnished by Sublessor, and
Subtenant agrees to pay one hundred percent (100%) of Sublessor's cost therefor
as Additional Rent (Subtenant acknowledges that Sublessor's cost may include the
cost of labor and electric energy for minimum time periods even if the air
conditioning, heating or ventilating is not utilized for the entire minimum time
period).
7.04 Sublessor reserves the right to interrupt, curtail or suspend the
services which it is required to furnish under this Section 7 when the need
therefor arises or is reasonably desirable by reason of accident, emergency,
mechanical breakdown or strike, or to accomplish the replacement, repair or
modification of any machinery, or when required or recommended under any law,
order, regulation or pronouncement of any federal, state, county or municipal
authority, or when required to modify, repair, improve or alter the Building or
for any cause beyond the reasonable control of Sublessor (including, without
limitation, a default by Landlord under the Lease ). Sublessor shall use
reasonable efforts to complete all required repairs (or to cause Landlord to
perform and complete same to the extent of Landlord's obligations under the
Lease) or other necessary work expeditiously so that Subtenant's inconvenience
resulting from the curtailment of services may be for as short a period of time
as circumstances will permit (but Sublessor shall not be obligated to utilize
overtime labor or incur extraordinary expenses in connection therewith). No
diminution or abatement of rent or other compensation shall or will be claimed
by Subtenant as a result of such interruption, curtailment, or suspension, nor
shall this Sublease or any of the obligations of Subtenant be affected or
reduced by reason of such interruption, curtailment or suspension.
7.05 Subtenant shall reimburse Sublessor for the cost to Sublessor of
removal from the Subleased Premises and the Building of so much of any refuse
and rubbish of Subtenant as shall exceed that ordinarily accumulated daily in
the routine of business office occupancy (as reasonably determined by Sublessor
or its contractor).
7.06 Sublessor, its cleaning contractor and their respective employees
shall have access to the Subleased Premises after 5:00 p.m. and before 7:00 a.m.
and shall have the right to use, without charge, all light, power and water
required to clean the Subleased Premises as required by this Sublease.
7.07 Sublessor will not be required to furnish any additional services,
except as expressly provided in this Sublease, and to the extent Sublessor shall
agree to furnish additional services to Subtenant, Subtenant shall pay Sublessor
therefor at Sublessor's then current charges.
7.08 (i) In addition to the services Subtenant shall be entitled to
receive pursuant to the provisions of this Sublease, Subtenant shall be entitled
to receive from Landlord with respect to the Subleased Premises, all of the
services which Sublessor is entitled to receive with respect to the Subleased
Premises pursuant to the Lease. Subtenant agrees to look solely to Landlord for
such services and promptly pay to either Landlord or Sublessor, as the case may
be, all charges by Landlord for any such services which Landlord is not required
to furnish without additional
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charge.
(ii) If Landlord fails to provide any services or otherwise perform
any obligations under the Lease (including, without limitation, its obligation,
if any, to repair and maintain the Building or any part thereof) and said
failure has a material adverse effect on the Subleased Premises, Subtenant or
the conduct of its business, Sublessor, promptly after receipt of notice from
Subtenant, shall notify Landlord and use reasonable afforts to have Landlord
perform its duties, and Sublessor shall have no further obligation in connection
therewith. If Landlord shall thereafter not perform, Subtenant shall not be
entitled to any set-off or deduction from the Fixed Rent or Additional Rent due
hereunder.
SECTION 8. CONDITION OF SUBLEASED PREMISES
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8.01 Subtenant has fully inspected the Subleased Premises and agrees to
accept same "as is" in its condition on the commencement Date hereof, and
Sublessor shall have no obligation to perform any improvements in or about the
Subleased Premises, except Sublessor's Work (as herein defined.
8.02 Sublessor shall perform, finish, install and provide, or shall
cause to be performed, finished, installed and provided in a good and
workmanlike manner those items of work set forth in the Scope of Work dated May
1, 1996 and the Omnitech Drawing #96-651-F dated March 13, 1996 which have been
approved by Subtenant and are attached hereto as EXHIBIT "A" (collectively known
as the "Plans & Specifications"), together with any drawings, plans, permits,
certificates and municipal authorizations needed to complete the foregoing items
of work ("the Sublessor's Work"). Sublessor represents that Sublessor's Work
will be free from defects in material and workmanship for a period of one (1)
year from the Commencement Date. Sublessor's Work will be completed such that it
will be substantially in accordance with the Plans and Specifications. For
purposes of this Section 8, the term "substantially in accordance" shall mean
work conforming to detailed measurements contained in the Plans and
Specifications coordinated to take into account the fact that all of the Plans
and Specifications should be complementary, and in the joining and coordinating
of such documents, ambiguities or implications may occur, and the Sublessor's
Work should be deemed to fairly reflect the intended result. It is acknowledged
by Subtenant (and same shall not be an objection) that (a) contractors must
join, cut, correlate or complete and combine work existing either outside the
scope of the Plans and Specifications or by other trades to accommodate field
conditions or ambiguity in the correlation of Plans and Specifications; (b)
contractors must patch, cut or join work as a result of subsequent change orders
so that such Sublessor's Work shall be harmonious with the existing completed
work, or so that the existing work may receive such changes; (c) changes may
occur in existing work to receive equipment or materials, the specifications for
which were incorrect in the original contract documents; (d) minor or desirable
deviations may be necessary to cause the specific function or working parts to
connect or provide the utility intended; (e) modifications, patching, blending
or joining of Sublessor's Work may occur in order to accommodate field
conditions not reflected in the Plans and Specifications; and
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(f) there may exist and be performed other work, which in accordance with good
trade practices, would be required in order to accommodate Subtenant's intended
requirements as reasonably implied from the correlation of all requirements
under the Plans and Specifications.
8.03 Notwithstanding anything to the contrary set forth in this Sublease,
if for any reason the Commencement Date is delayed by any action or inaction of
Subtenant, then, at Sublessor's option, Subtenant shall (i) pay Fixed Rent and
Additional Rent in the amounts set forth in this Sublease from the date on which
the Commencement Date would have occurred through the day immediately preceding
the Commencement Date, and (ii) Subtenant shall comply with all of the other
terms and conditions of this Sublease as if the Term had commenced.
8.04 Sublessor's Work shall be deemed completed notwithstanding the fact
that portions of such work remain to be performed, furnished, installed and/or
provided, so long as the same does not, and completion thereof will not,
prevent Subtenant from occupying the Subleased Premises for the conduct of its
business or materially interfere with Subtenant's use and occupancy of the
Subleased Premises for normal office purposes. Provided Subtenant shall deliver
to Sublessor, within thirty (30) days of the Commencement Date, a list of all
unperformed items of Sublessor's Work, Sublessor shall complete same to the
extent required by 8.02 of this Sublease.
8.05 Sublessor shall cause to be obtained any permits, certificates and
municipal authorizations required to be obtained such that Sublessor's Work
complies with, and can be performed in compliance with all applicable laws,
legal requirements, orders, ordinances, codes and regulations.
8.06 In connection with the performance of Sublessor's Work, Sublessor
shall have the right, without having to obtain Subtenant's consent, to (i) make
changes and modifications to the Plans and specifications to comply with any
governmental or inspecting authorities, laws, codes, rules, regulations or
permits, and (ii) make changes and substitutions of materials from those set
forth on the Plans and Specifications, provided such changed or substituted
materials are at least equivalent in quality and design to those set forth in
the Plans and Specifications. Notwithstanding anything to the contrary contained
in this Sublease any changes or modifications to the Plans and Specifications
attached hereto as Exhibit A which are either requested by the Subtenant or are
required to comply with any governmental or inspecting authorities, laws, codes,
rules, regulations or permits, shall be the sole responsibility of Subtenant and
shall be paid by Subtenant, as additional Rent within ten (10) days of the date
on which Sublessor shall send a statement to Subtenant requesting payment
thereof.
SECTION 9. ALTERATIONS
------------------------
9.01 Subtenant shall not make any improvements, installations, additions,
alterations or other changes (herein sometimes collectively called
"Alterations") in or to the Subleased Premises without the prior written consent
of Sublessor in each instance which consent shall not be unreasonably withheld
or delayed, and, if required by the Lease, Landlord. Subtenant acknowledges that
in no event shall Subtenant make nor will Sublessor grant consent to
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Alterations which are in the form of entrances to or exits from the Subleased
Premises or the Building or which as a result thereof require the construction
of any additional entrances to or exits from the Subleased Premises or the
Building.
9.02 If Subtenant shall obtain all required consents, any Alterations to
the Subleased Premises (and the performance of all work required in connection
therewith) shall in all respects comply with the provisions of this Sublease,
the Lease and the consents given with respect thereto.
SECTION 10. REPAIRS AND MAINTENANCE
------------------------------------
10.01 Subtenant shall, at its sole cost and expense, throughout the
Term, (i) take good care of the Subleased Premises and the equipment, fixtures
and improvements located therein (including, without limitation, the property
which is deemed the Sublessor's at the end of the Term pursuant to the
provisions of this Sublease), (ii) be responsible for all non-structural
repairs, in and to the Subleased Premises excluding the heating, ventilating,
air conditioning, plumbing and electrical systems. Notwithstanding the
preceding sentence, Subtenant shall be responsible for the cost of all
repairs, interior and exterior, structural and non-structural, in and to the
Building, the Land, the Subleased Premises and the facilities and systems
thereof, but only to the extent the need for such repairs to the Building, the
Land, the Subleased Premises and the facilities and systems thereof arises out
of (a) the performance or existence of Alterations performed by or on behalf of
Subtenant, (b) the installation, use or operation of any equipment, fixtures or
property by Subtenant, its employees, agents, contractors or invitees, (c) the
moving of any equipment, fixtures or property into or out of the Subleased
Premises or the Building by any person or entity other than Landlord,
Sublessor, its employees or agents, or (d) the act, omission, misuse or
neglect of Subtenant or any of its subtenants or its or their employees,
agents, contractors or invitees. Any repairs in or to the Land, the Building and
the Subleased Premises and the facilities and systems thereof for which
Subtenant is responsible shall be performed by or on behalf of Sublessor at
Subtenant's sole cost and expense; but Sublessor may, at its option, before
commencing any such work or at any time thereafter, require Subtenant to (1)
perform same, and/or (2) furnish to Sublessor such security, in form and amount
as Sublessor shall deem necessary, to assure the payment for such work by
Subtenant.
10.02 (i) Subject to Section 7.08 (ii), Sublessor, at its sole cost and
expense, shall repair and maintain (or shall cause to be repaired and
maintained), in good working order and repair (a) the structural and the public
portions of the Building, and (b) the systems and facilities of the Building
serving the Subleased Premises, including the Building heating, ventilating or
air-conditioning, plumbing and electrical systems, except Subtenant and not
Sublessor shall be responsible for all the foregoing repairs and maintenance as
and to the extent provided for in Section 10.01 hereof.
(ii) Subtenant shall give Sublessor prompt notice of any defective
condition known to Subtenant in any plumbing, heating, air-conditioning or
ventilation system or electrical lines located in, servicing or passing through
the
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Subleased Premises. Sublessor will endeavor to minimize interference with
Subtenant's use of the Subleased Premises in making any repairs or changes which
Sublessor is required or permitted by this Sublease, or required by law, to make
in or to the fixtures, equipment or appurtenances of the Building or the
Subleased Premises.
10.03 Notwithstanding the foregoing, Sublessor shall have no liability to
Subtenant, nor shall Subtenant's covenants and obligations under this Sublease
be reduced or abated in any manner whatsoever, by reason of any inconvenience,
annoyance, interruption or injury arising from Sublessor or any party acting on
Sublessor's behalf making any repairs or changes wich Sublessor is required or
permitted by this Sublease, or required by law, to make in or to the fixtures,
equipment or appurtenances of the Building or the Subleased Premises.
SECTION 11. INSURANCE
----------------------
11.01 Subtenant, at its sole cost and expense, shall maintain in effect
throughout the Term, for the mutual benefit of Sublessor and Subtenant,
insurance covering all of the property of Subtenant, against loss or damage by
fire and such risks as are customarily included in "all-risk" and extended
coverage endorsements attached to fire insurance policies, including "agreed
amount" coverage with no co-insurance penalties, on an "occurrence basis" in an
amount not less than the full replacement value thereof.
11.02 Subtenant, at its sole cost and expense, shall maintain in effect
for the entire Term, for the mutual benefit of Sublessor and Subtenant (and for
the benefit of the additional insureds described by the provisions of 11.05)
comprehensive general liability insurance in the broadest form generally
obtained on a commercially reasonable basis for the first class commercial
buildings of approximately the same age as the Subleased Premises and located in
the area in which the Subleased Premises are located, on an occurrence basis in
the minimum amount of Three Million Dollars ($3,000,000.00) for each occurrence,
(with a combined maximum amount of Five Million Dollars ($5,000,000.00) for all
occurrences per policy year) combined single limit for bodily injury, including
death, property damage and contractual liability (covering all contractual
obligations of Subtenant including those obligations under this Sublease). Such
policies shall cover the Subleased Premises, inclusive of sidewalk and parking
areas.
11.03 The insurance required under this Section 11 shall be effected by
valid and enforceable policies issued by insurance companies approved by
Sublessor, which approval shall not be unreasonably withheld or delayed, and
licensed to do business in the State of New York.
11.04 Upon the Term Commencement Date and thereafter, not less than ten
(10) days prior to the expiration date of any expiring policies theretofore
furnished pursuant to this Section 11, copies of such policies or certificates
of insurance therefor, or renewal policies or certificates of insurance
therefor, as the case may be, shall be delivered by Subtenant to Sublessor. If
the Subleased Premises are covered by a Superior Instrument, certificates of the
policies for the insurance required under this Section 11 shall, at Sublessor's
request, also be delivered to the holder of such Superior Instruments(s) whose
name and address
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shall have been delivered to Subtenant.
11.05 Except as otherwise stated, all policies of insurance required under
this Section 11 shall name Sublessor and Subtenant as the insureds as their
interest may appear; and such holders of Superior Instruments as Sublessor shall
request as additional insureds. Each policy of insurance required under this
Section 11 shall contain an agreement by the insurer that it will not be
cancelled or terminated, or the amount of insurance or type of coverage reduced
without at least thirty (30) days prior notice to Sublessor, Landlord and the
holder of any other Superior Instrument(s) named therein, and that no act or
omission of any insured party (including, without limitation, Sublessor and any
such holder named therein) shall serve to invalidate, cancel, release or relieve
the insurer thereunder from any liability which it may have to any other named
insured party.
11.06 Subtenant shall have included in all of its insurance policies a
waiver of the insurer's right of subrogation against Landlord, Sublessor and
others required by the Lease, if any. Subtenant hereby waives any and all right
of recovery it might otherwise have against Landlord, Sublessor and others, if
any, required by the Lease, their respective officers, directors, employees,
agents and contractors, for loss or damage to Subtenant's property by fire or
other casualty notwithstanding that such loss or damage may result from the
negligence or fault of Landlord, Sublessor or such others as aforementioned,
their respective officers, directors, employees, agents or contractors.
Sublessor hereby waives any and all right of recovery it might otherwise have
against Subtenant, its officers, directors, employees, agents and contractors,
for loss or damage to Sublessor's property covered under its insurance policies
for fire or other casualties to the Building, notwithstanding that such loss or
damage may result from the negligence or fault of Subtenant, its officers,
directors employees, agents or contractors. If the foregoing waivers of
subrogation are only obtainable with additional cost, the party responsible to
obtain such insurance shall notify the other party, and, in such event, such
other party may at its option pay such additional cost, in which event such
waiver shall be obtained.
11.07 Notwithstanding any provisions in this Sublease to the contrary, if,
in order to avoid a default under the Lease or any Superior Instrument,
Sublessor or Subtenant is required to maintain broader type coverage or more
insurance coverage with respect to the Subleased Premises than required by this
Sublease (or name other parties as additional insured thereunder), Subtenant
shall comply with all provisions of the Lease and any Superior Instrument
respecting such insurance and shall maintain all insurance required thereby.
SECTION 12. DAMAGE OR DESTRUCTION
----------------------------------
12.01 If the Subleased Premises shall be damaged or destroyed by fire or
other casualty (and if this Sublease shall not be terminated as hereinafter
provided), Sublessor shall make reasonable, diligent and good faith efforts to
cause Landlord to repair the damage to and restore and rebuild the Building to
the extent of Landlord's obligations under the Lease. Sublessor shall repair the
damage to and restore and rebuild the Subleased Premises with and to the extent
of the insurance proceeds provided by the insurance required under Section 11.01
excluding Subtenant's property
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as soon as possible, but in no event more than six (6) months, subject to force
majeure, after the damage or destruction (provided Landlord has performed its
restoration obligations).
12.02 Subject to the provisions of 12.05, if all or part of the Subleased
Premises shall be damaged, destroyed or rendered completely or partially
untenantable on account of fire or other casualty, the Fixed Rent and the
Additional Rent under Section 5 of this Sublease shall be abated in the
proportion that the untenantable area of the Subleased Premises bears to the
total area of the Subleased Premises. Such abatement shall be effective from the
period commencing upon the date of the damage or destruction and ending on the
date the damage to the Subleased Premises shall be substantially restored,
provided, however, should Subtenant or any of its subtenants reoccupy a portion
of the Subleased Premises during the period the restoration is taking place and
prior to the date that the Subleased Premises are substantially repaired or made
tenantable, the Fixed Rent and the Additional Rent allocable to such reoccupied
portion, based upon the proportion which the area of the reoccupied portion of
the Subleased Premises bears to the total area of the Subleased Premises, shall
be payable by Subtenant from the date of such reoccupancy.
12.03 (i) If the Subleased Premises shall be substantially damaged or
destroyed by fire or other casualty, Sublessor shall obtain for and deliver to
Subtenant an estimate from an independent contractor, architect or professional
engineer, as to the time required for Landlord to restore and repair the
Subleased Premises, as appropriate (the "Estimate"). The date set forth in the
Estimate shall hereinafter be referred to as the "Outside Date".
(ii) If the Subleased Premises shall be damaged or destroyed by fire
or other casualty, such that the Outside Date is more than one hundred eighty
(180) days after the date of the casualty, either Subtenant or Sublessor may
terminate this Sublease by giving the other party notice to such effect. Such
termination shall be effective on the date specified in such termination notice,
but not earlier than thirty (30) days nor later than ninety (90) days after the
date of such notice. Upon such termination, the Term shall expire as if it were
the Expiration Date.
12.04 Except as expressly set forth in 12.03, Subtenant shall not be
entitled to terminate this Sublease on account of a fire or other casualty and
in the event of a fire or other casualty, Sublessor shall have no liability to
Subtenant for inconvenience, loss of business or annoyance arising on account of
the fire or other casualty or from any repair or restoration of any portion of
the Subleased Premises or of the Building.
12.05 Notwithstanding any of the foregoing provisions of this Section 12,
if by reason of some act or omission on the part of Subtenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, Sublessor or Landlord shall be unable to collect all of
the insurance proceeds (including without limitation, rent insurance proceeds)
applicable to the damage or destruction of the Subleased Premises or the
Building (by fire or other casualty), there shall be no abatement or reduction
of Fixed Rent or Additional Rent to the extent of such uncollected insurance
proceeds.
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12.06 Sublessor has no obligation to carry insurance of any kind on
Subtenant's property, furnishings, equipment, or trade fixtures and,
notwithstanding anything to the contrary set forth herein, Sublessor shall not
be obligated to repair any damage thereto, and Subtenant agrees to look solely
to its insurance for recovery of any damage to or loss thereto.
12.07 The provisions of this Section 12 shall be deemed an express
agreement governing any case of damage or destruction of the Subleased Premises
by fire or other casualty, and Section 227 of the Real Property Law of the State
of New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereinafter in force, shall
have no application in such case.
SECTION 13. EMINENT DOMAIN
---------------------------
13.01 If the Lease is terminated (whether by Sublessor or Landlord) by
reason of a condemnation (or other taking for a quasi-public or public purpose),
or if the whole or any part of the Subleased Premises or access to shall be
taken by condemnation or in any other manner for any public or quasi-public use
or purpose, this Sublease and the term and estate hereby granted shall terminate
as of the date of vesting of title on such taking (herein called "Date of the
Taking") as if such date were the Expiration Date.
13.02 Except as expressly provided in this 13.02, Sublessor shall be
entitled to receive the entire award or payment in connection with any taking
without reduction therefrom for any estate vested in Subtenant by this Sublease
or any value attributable to the unexpired portion of the Term, and Subtenant
shall receive no part of such award except as hereinafter expressly provided.
Subtenant hereby expressly assigns to Sublessor all of its right, title and
interest in and to every such award or payment and waives any right to the value
of the unexpired portion of the Term. Nothing contained herein shall be deemed
to prevent Subtenant from making a separate claim in any condemnation proceeding
for the then value of Subtenant's personal property which has been taken, and
moving expenses incurred as a result thereof, provided such claim does not
reduce the amount of the award payable to Sublessor.
SECTION 14. SUBLESSOR'S AND SUBTENANT'S PROPERTY; END OF TERM
--------------------------------------------------------------
14.01 (i) All fixtures, equipment, materials, additions, improvements,
appurtenances and other property attached to, or built into the Subleased
Premises, whether Sublessor's Work pursuant to Section 8 of this Sublease or
during the Term and whether at the expense of Sublessor or Subtenant, shall be
and remain a part of the Subleased Premises and at the expiration of the Term
shall be deemed the property of the Sublessor and same shall not be removed by
Subtenant, except as expressly provided in 14.01(ii). Notwithstanding the
foregoing, but subject nevertheless to the provisions of Section 8 of this
Sublease, neither Sublessor nor Landlord shall be liable in any manner for
payment or otherwise to any contractor, subcontractor, laborer or supplier in
connection with the purchase or furnishing after the date hereof of any such
materials or equipment or the installation thereof. Neither Sublessor nor
Landlord shall have any obligation to pay any compensation to
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Subtenant by reason of the acquisition of title to such materials and equipment
by the Sublessor pursuant to the provisions of this Section 14.
(ii) Upon written notice to Subtenant given prior to the
Expiration Date or within 10 days after any earlier expiration of the Term,
Sublessor may require Subtenant to remove (and thereupon Subtenant shall remove)
all or part of the fixtures, equipment, materials, improvements, appurtenances
and other property described in the first sentence of 14.01(i) other than
Sublessor's Work pursuant to Section 8 hereof which Sublessor did not note had
to be removed at the time of Sublessor's approval thereof. In connection with
any such removal, Subtenant shall immediately and at its expense, repair and
restore the Subleased Premises to the condition existing prior to installation
and repair any damage to the Subleased Premises or the Building due to such
removal.
14.02 Notwithstanding anything to the contrary set forth in 14.01 above,
all movable partitions, business and trade fixtures, and office equipment, to
the extent installed in the Subleased Premises by or for the account of
Subtenant without expense to Sublessor and removable without structural damage
to the Building or the Subleased Premises, and all furniture, furnishing and
other articles of movable personal property owned by Subtenant and located in
the Subleased Premises (herein sometimes collectively called "Subtenant's
property" or "property of Subtenant") shall be and shall remain the property of
Subtenant and may be removed by Subtenant at any time during the Term; provided
that if any of Subtenant's property is removed, Subtenant shall repair or pay
the cost of repairing any damage to the Subleased Premises or to the Building
resulting from the installation and/or removal thereof.
14.03 At or before the Expiration Date (or within 10 days after any
earlier termination of this Sublease) Subtenant, at its expense, shall remove
from the Subleased Premises all of Subtenant's property, and Subtenant shall
repair any damage to the Subleased Premises or the Building resulting from any
installation and/or removal thereof.
14.04 After Subtenant vacates the Subleased premises, any items of
Subtenant's property which shall remain in the Subleased Premises may at the
option of Sublessor, be deemed to have been abandoned, and in such case such
items may be retained by Sublessor as its property or disposed of by Sublessor,
without accountability, in such manner as Sublessor shall determine, at
Subtenant's sole cost and expense.
14.05 The provisions of this Section 14 shall survive the Expiration Date
or earlier termination of the Term.
SECTION 15. ACCESS, NAME OF BUILDING, AND SIGNS
------------------------------------------------
15.01 Except for the space within the inside surfaces of all exterior
walls bounding the Subleased Premises, hung ceilings, floors, exterior windows
and doors bounding the Subleased Premises, all of the remaining portions of the
Building, including, without limitation, exterior walls, core corridor walls and
doors and any corridor entrance, any space located within or adjacent to the
Subleased Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other Building facilities, and
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the use thereof, as well as access thereto through the Subleased Premises for
the purposes of operation, maintenance and repair, are reserved to Sublessor and
Landlord and persons authorized by Sublessor or Landlord. Sublessor reserves the
right, and Subtenant shall permit Sublessor and persons authorized by Sublessor,
to install, erect, use and maintain pipes, shafts, ducts and conduits in and
through the Subleased Premises.
15.02 Sublessor and persons authorized by Sublessor shall have the right
to enter and/or pass through the Subleased Premises at any time or times upon
such notice as is reasonable under the circumstances (it being agreed that one
(1) Business Day's notice shall always be deemed to be reasonable notice and
that no notice need be given in an emergency) (i) to examine the Subleased
Premises and to show them to Landlord and to actual and prospective purchasers,
mortgagees or lessees of the Building (ii) to make such repairs, alterations,
additions and improvements in or to the Subleased Premises and/or to the
Building or to its facilities and equipment as Sublessor is or persons
authorized by Sublessor are required or reasonably desire to make, and (iii) to
read any utility meter or submeter located therein. Sublessor and any authorized
persons shall be allowed to take all materials into and upon the Subleased
Premises that may be required in connection therewith, without any liability to
Subtenant (except to the extent of Sublessor's gross negligence or willful
misconduct) and without any reduction of Subtenant's covenants and obligations
hereunder.
15.03 During the time period of six (6) months prior to the Expiration
Date, Sublessor and persons authorized by Sublessor may exhibit the Subleased
Premises to prospective tenants in accordance with 15.02 above.
15.04 To the extent Sublessor shall deem necessary or desirable, Sublessor
reserves the right, at any time, without it being deemed a constructive eviction
and without incurring any liability to Subtenant therefor, or affecting or
reducing any of Subtenant's covenants and obligations hereunder, to make or
permit to be made such changes, alterations, additions and improvements in or to
the Land, the Building, and the fixtures and equipment thereof, as well as in or
to the street entrances, doors, halls, passages, lavatories, facilities, parking
lots, walkways, landscaped areas and other public part thereof provided that
Subtenant's access to the Subleased Premises is not materially adversely
affected or impeded by such changes, alterations, additions or improvements.
15.05 Sublessor reserves the right to change the address of the Building
and/or to place signs above the entrances to the Building at any time and from
time to time. Neither this Sublease nor any use by Subtenant shall give
Subtenant any easement or other right in or to the use of any door, parking lot
or any passage or any plaza connecting the Building with any other building or
to any public or private conveniences, and the use of such doors, parking lots,
passages, plazas and conveniences may without notice to Subtenant, be regulated
or discontinued at any time by Sublessor (except if expressly set forth to the
contrary herein).
15.06 If Subtenant shall not be personally present to open and permit an
entry into the Subleased Premises at any
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time when for any reason an entry therein shall be necessary by reason of fire
or other emergency, Sublessor or Landlord or its or their agents may forcibly
enter the same without rendering Sublessor or Landlord or its or their agents
liable therefor and without in any manner affecting the obligations and
covenants of this Sublease.
15.07 (i) In no event shall Subtenant, without Sublessor's prior written
consent in each instance (and Landlord's prior written consent, if required),
place or affix any signs or devices of any kind on the exterior of the Building,
or within or upon the Subleased Premises or the Building such that same are
visible from the outside of the Building or the Subleased Premises. Any such
consents to signs and/or devices shall be of the size, color, design and
location designated and approved by Sublessor (and Landlord if required ) in
writing.
(ii) Any such consented to signs and devices shall be placed or
affixed at Subtenant's sole cost and expense and shall be in conformity with all
applicable laws, codes, permits, ordinances and regulations. Subtenant, at its
sole cost and expense, shall remove such signs and/or devices at the expiration
of the Term (or earlier termination of this Sublease) and shall repair any
damage resulting from the installation, maintenance or removal thereof.
Subtenant shall hold Sublessor and Landlord harmless from any claims or
liability that may arise by virtue of the installation, maintenance or removal
of any such signs and/or devices.
SECTION 16. ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
-----------------------------------------------------
16.01 Subtenant shall not voluntarily or involuntarily (a) assign or
otherwise transfer this Sublease or the estate hereby granted, (b) sublet the
Subleased Premises (c) allow the Subleased Premises to be used or occupied by
others, or (d) mortgage, pledge or encumber this Sublease or the Subleased
Premises or any part thereof, without, in each instance, obtaining the prior
written consent of Sublessor, (and if required by the Lease, Landlord) except as
otherwise expressly provided in this Section 16.
The sale, assignment, transfer, pledge or issuance of shares of any
corporation which is the Subtenant hereunder or other occupant of the Subleased
Premises (whether by sub-sublease or assignment of this Sublease) which at one
time or in the aggregate results in a reduction of the holdings of the
shareholders of such corporation (on the date hereof or the date such
corporation first became the Subtenant or occupant of the Subleased Premises, as
appropriate) to less than 51% of the shares in such corporation shall be deemed
an assignment of this Sublease. The transfer, sale, pledge, issuance or
assignment of partnership interests in any partnership which is the Subtenant
hereunder or other occupant of the Subleased Premises (whether by sub-sublease
or assignment of the Sublease) which at one time or in the aggregate results in
a reduction of the holdings of the partners of such partnership (on the date
hereof or the date such partnership first became the Subtenant or occupant of
the Subleased Premises, as appropriate) to less than 51% of the ownership
interests in such partnership shall be deemed an assignment of this Sublease.
16.02 The provisions of Section 16.01 hereof shall not apply to (a) an
assignment to a corporation into or with
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which Subtenant is merged or consolidated or to an entity to which substantially
all of Subtenant's assets are transferred (provided such merger, or
consolidation or transfer of assets is for a good business purpose and not
principally for the purpose of transferring this Sublease or the leasehold
estate created hereby, and provided further, that the resultant corporation or
the assignee, as the case may be, has a net worth at least equal to or in excess
of the net worth of Subtenant immediately prior to such merger, or consolidation
(or transfer) or (b) an assignment to an Affiliated Entity, provided such
assignment is for a good business purpose and not principally for the purpose of
avoiding the application of Section 16.01 of this Sublease. As used in this
Section 16.02, an "Affiliated Entity" means a corporation controlled by,
controlling or under common control with the Subtenant. A corporation, for this
purpose, shall not be deemed controlled by another unless at least fifty-one
(51%) percent of its voting stock is owned both beneficially and of record by
such other.
16.03 Any assignment, subletting or transfer, whether made with
Sublessor's consent as required by Section 16.01 or without Landlord's or
Sublessor's consent pursuant to Section 16.02, shall be made only if, and shall
not be effective unless and until all of the following shall have been fulfilled
at least thirty (30) days prior to the effective date of the contemplated
assignment or subletting:
(a) Subtenant shall furnish Sublessor with the name and business
address of the proposed subtenant or assignee, information with respect to the
nature and character of the proposed subtenant's or assignee's business or
activities, and current financial information with respect to net worth, credit
and financial responsibility of the proposed subtenant or assignee;
(b) In the case of an assignment, Subtenant shall deliver to
Sublessor an executed counterpart thereof, and all ancillary agreements with the
proposed assignee (including all documents from which the considerations to be
received by Subtenant referred to in Section 16.07 hereof can be ascertained);
(c) In the case of a contemplated subletting, Subtenant shall
deliver to Sublessor, an executed counterpart of the proposed sublease and all
ancillary agreements with the proposed sublessee (including all documents from
which the considerations to be received by Subtenant referred to in Section
16.07 hereof can be ascertained);
(d) In the case of an assignment, the assignee shall execute,
acknowledge and deliver to Sublessor a recordable agreement, in form and
substance reasonably satisfactory to Sublessor, whereby the assignee shall
assume and agree to fulfill the obligations and performance of this Sublease and
the assignment and agree to be personally bound by and upon the covenants,
agreements, terms, provisions and conditions hereof on the part of Subtenant to
be performed or observed and whereby the assignee shall agree that the
provisions of Section 16.01 hereof shall, notwithstanding such an assignment or
transfer, continue to be binding upon it in the future;
(e) Each sublease or assignment referred to in clauses (b) and
(c) of this Section 16.03 shall specifically state that (i) it is subject to all
of the
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terms, covenants, agreements, provisions, and conditions of this Sublease, (ii)
the Subtenant or Assignee, as the case may be, will not have the right to a
further assignment thereof or sublease thereunder, or to allow the Subleased
Premises to be used by others, without the consent of Sublessor (and if required
by the Lease, the Landlord) in each instance, (iii) a consent by Sublessor
thereto shall not be deemed or construed to modify, amend or affect the terms
and provisions of this Sublease, or Subtenants's obligations hereunder, which
shall continue to apply to the Subleased Premises, and the occupants thereof, as
if the sublease or assignment had not been made, (iv) if Subtenant defaults in
the payment of any Fixed or Additional Rent, Sublessor is authorized to collect
any rent due or accruing from any assignee, subtenant or other occupant of the
Subleased Premises and to apply the net amounts collected to the Fixed Rent or
Additional Rent, (v) the receipt by Sublessor of any amounts from an assignee or
subtenant, or other occupant of any part of the Subleased Premises shall not be
deemed or construed as releasing Subtenant from Subtenant's obligations
hereunder or the acceptance of that party as a direct tenant.
16.04 The liability of Subtenant, and the due performance by Subtenant of
the obligations on its part to be performed under this Sublease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Sublessor or any grantee or assignee of Sublessor, by way of mortgage or
otherwise, extending the time of or modifying any of the obligations contained
in this Sublease, or by any waiver or failure of Sublessor to enforce any of the
obligations on Subtenant's part to be performed under this Sublease, and
Subtenant shall continue to be liable hereunder.
16.05 Sublessor shall not unreasonably withhold or delay its consent to a
subletting of the Subleased Premises for substantially the remainder of the
Term, provided:
(a) The proposed Subtenant is a party whose reputation, financial
net worth, credit and financial responsibility is, considering the
responsibilities involved, reasonably satisfactory to Sublessor.
(b) The nature and character of the proposed Subtenant, its
business or activities and intended use of the Subleased Premises is, in
Sublessee's judgment, in keeping with the standards of the Building and the area
in which the Building is located and does not conflict with the provisions of
Section 2.01 of this Sublease;
(c) No such subletting shall constitute or cause (with or without
notice or lapse of time or otherwise) a default under any mortgage; and
(d) Subtenant shall have complied with all of the provisions of
Section 16.03 and Sublessor shall not have made any of the elections provided
for in Section 16.07.
16.06 Subtenant shall pay to Sublessor, as Additional Rent:
(a) in the case of an assignment, an amount equal to all sums and
other considerations paid to Subtenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less, in
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the case of a sale thereof, the then net unamortized or undepreciated cost
thereof determined on the basis of Subtenant's federal income tax returns); and
(b) in the case of a sublease, any rents, additional charges or
other consideration payable under the sublease to Subtenant (including, but not
limited to, sums paid for the sale or rental of Subtenant's fixtures, leasehold
improvements, equipment, furniture or other personal property, less, in the case
of the sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Subtenant's federal income tax returns, which are in
excess of the Fixed Rent of the Subleased Space that Subtenant is then paying
Sublessor in accordance with this Sublease.
The sums payable under Subdivisions (a) and (b) preceding shall be paid to
Sublessor as and when paid by the subtenant to Subtenant.
Subtenant shall furnish Sublessor with a written statement, semi-annually,
certified by Subtenant, from which the additional rent to which Sublessor may be
entitled by reason of the application of Subdivisions (a) and (b) preceding can
be determined. Subtenant shall keep books of account in accordance with
generally accepted accounting principles consistently applied and supporting
material relating to the matters reflected in Subdivisions (a) and (b)
preceding, and shall make the same available to Sublessor at all reasonable
times for inspection at the Subleased Premises for the purpose of verifying any
statement furnished or to be furnished by Subtenant. Sublessor shall have the
right to delegate this inspection to a duly authorized representative and, in
addition, may make such copies thereof as it reasonably requires, but only for
the purposes enumerated in this Section.
16.07 Notwithstanding anything to the contrary contained in this Sublease,
in the event Subtenant desires to assign or otherwise transfer this Sublease or
sublet the Subleased Premises, Sublessor shall have the right (a) in the case of
an assignment other than to an "Affilated Entity", to cancel this Sublease and
(b) in the case of a subletting other than to an "Affiliated Entity", to
recapture the Subleased Premises by giving Subtenant written notice thereof
within 30 days after Subtenant has fulfilled all its obligations pursuant to
this Section 16 hereof. Such cancellation or recapture as the case may be shall
become effective as of the effective date of the contemplated assignment or
subletting.
SECTION 17 COMPLIANCE WITH LAWS
--------------------------------
17.01 Subtenant, at Subtenant's sole cost and expense, shall in a prompt
and diligent manner and on a timely basis, comply with all present and future
laws, ordinances, orders, codes, permits and regulations of Federal, State,
County and Municipal authorities, and with all directions, pursuant to law, of
all public officers which shall impose any compulsory and enforceable duty upon
Landlord, Sublessor or Subtenant with respect to the Subleased Premises or the
use or occupancy thereof. If a structural change, addition or repair is required
for such compliance, and if such change, addition or repair is not required
because of Landlord's or Sublessor's failure to comply with then applicable laws
at time of construction, Subtenant shall promptly modify its use
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to obviate the requirement of such change or inform Sublessor thereof (in which
event Sublessor may, on Subtenant's behalf make such change, addition or
repair). In such later event, Subtenant shall pay to Sublessor, as Additional
Rent, in equal monthly installments from the date of the completion of such
structural change, addition or repair and until the expiration of the Term, a
sum equal to either: (i) that fraction of the cost of such change, addition or
repair of which the numerator is the number of months from the date of
completion of such change, addition or repair until the expiration of the Term,
and the denominator is the number of months of the "useful life" based on the
applicable guideline issued by U.S. Internal Revenue Service for straight-line
(unaccelerated) depreciation of such change, addition or repair for tax purposes
(if the "useful life" is not less than the time then remaining in the Term); or
(ii) the full cost of such change, addition or repair if the "useful life" is
less than the time then remaining in the Term.
17.02 Except as otherwise provided in this Sublease, Subtenant agrees to
fully comply with, and not to take action or fail to take any action which shall
or may result in a violation of the Comprehensive Environmental Response
Compensation Liability Act or the Resource Conservation and Recovery Act or any
other Federal, State or local statute, regulation, law or ordinance generally
considered as having environmental implication or significance, or any statute
which shall be a successor to, or in lieu of, any of the foregoing. In the event
any lien shall be asserted against Landlord, Sublessor, any property of Landlord
or Sublessor or the Subleased Premises in connection with any such statute and
as a result of any such act or omission by Subtenant, Subtenant covenants and
agrees to immediately discharged, so that such lien, or cause the same to be
discharges, so that such lien shall no longer be asserted against Landlord or
Sublessor or the Subleased Premises or against any other property of Landlord or
Sublessor, as the case may be. Sublessor represents that there shall be no
condition existing on the Subleased Premises upon the Commencement Date nor
shall Sublessor cause any condition thereafter which may result in a violation
of the Comprehensive Environmental Response compensation Liability Act or the
Resource Conservation and Recovery Act or any other Federal, State or local
statute, regulation, law or ordinance generally considered as having
environmental implication or significance, or any statute which shall be a
successor to, or in lieu of any of the foregoing.
17.03 Subtenant shall give prompt written notice to Sublessor of any
notice it receives of the violation of any law with respect to the Subleased
Premises.
SECTION 18 SUBORDINATION
-------------------------
18.01 (i) This Sublease is and shall remain subject and subordinate to (a)
the Lease and the terms and provisions thereof, (b) all matters to which the
Lease is now or hereafter subordinate or subject to and (c) all mortgages which
may now or hereunder affect all or any portion of the Building and to all
renewals, extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitutions therefor, and advances made
thereunder [(a), (b) and (c) are collectively referred to herein as "Superior
Instruments"]. This Section 18.01 shall be self-operative, and no further
instrument of subordination shall be required. In confirmation of such
subordination,
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Subtenant shall, upon Sublessor's request, promptly execute, acknowledge and
deliver any instrument that any holder of a Superior Instrument may request to
confirm such subordination. Sublessor, however, shall endeavor to obtain from
any current or future mortgagees its standard nondisturdance and attornment
agreement.
18.02 Without limiting any of the provisions of this Sublease, in the
event that the holder of a Superior Instrument or its assigns shall succeed to
the interest of Sublessor, then, at such holder's (or its assigns') option, this
Sublease shall nevertheless continue in full force and effect and Subtenant
shall and does hereby agree to attorn to such holder or its assigns, and to
recognize such holder, or its assigns as Sublessor, except that such holder as
successor Sublessor shall not be (i) bound by any payments of rent, for more
than one (1) month in advance, (ii) required to perform any portion of the
Sublessor's Work, (iii) responsible for any monies owed to Subtenant by
Sublessor, or (iv) subject to any credits, offsets, claims or counterclaims
which Subtenant may have against Sublessor.
18.03 Subtenant shall, at any time upon not less than ten (10) days prior
notice by Sublessor, execute, acknowledge and deliver to Sublessor a statement
in writing certifying that this Sublease is in full force and effect and
unmodified (or, if modified, stating the modifications), and the dates to which
Fixed Rent, Additional Rent and other charges have been paid in advance, if any,
and stating whether or not, to the best knowledge of Subtenant, Sublessor is in
default under this Sublease and, if so, specifying each such default, and any
other statement reasonably requested by Sublessor or the holder of any Superior
Instrument, it being intended that any such statement delivered pursuant hereto
may be relied upon by any prospective purchaser of the Land and/or the Building
or any interest or estate therein, any mortgagee or prospective mortgagee
thereof or any prospective assignee of any such mortgage. Subtenant agrees at
any time to enter into reasonable modifications of this Sublease requested by
the holder of any Superior Instrument; provided, however, that no such
modifications shall (i) increase the rent reserved herein, (ii) shorten the
Term, (iii) adversely affect Subtenant's ability to use or occupy all of the
Subleased Premises or (iv) diminish Subtenant's rights hereunder.
18.04 Subtenant shall promptly furnish to Sublessor all financial
information and other information concerning Subtenant (if available) reasonably
required by any institutional mortgagee to whom Sublessor or Landlord applies
for mortgage financing on the Building, and Subtenant shall execute any
documents reasonably required by such mortgagee. Subtenant shall be under no
obligation to furnish such information unless Sublessor and any such
institutional mortgagee shall agree in advance in writing to treat all such
information received from Subtenant as confidential, and not to disclose or use
the same except for the sole purpose of mortgage financing on the Building.
18.05 If required by the provisions of any Superior Instrument of all or
any portion of the Building, and provided the name and address of any holder of
each such mortgage have been provided to Subtenant, Sublessor and Subtenant,
without first obtaining the written consent of the holder of any such mortgage,
shall not enter into any agreement, the effect of which would be to: (i) modify,
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cancel, terminate or surrender this Sublease except as provided in this
Sublease; (ii) grant any concessions in respect thereof; (iii) reduce the Fixed
Rent or Additional Rent or require the prepayment of any Fixed Rent or
Additional Rent in advance of the due date thereof; (iv) create any offsets or
claims against Fixed Rent or Additional Rent; or (v) assign in whole or in part
any of the Fixed Rents or Additional Rents therefrom or Subtenant's interest in
this Sublease or sublet the whole in any portion of the Subleased Premises,
except as provided in this Sublease.
18.06 Subtenant shall not be entitled to assert against the holder of any
Superior Instrument (in its capacity as successor Sublessor on account of
foreclosure or acceptance of a deed in lieu of foreclosure, should such holder,
ever assume such capacity) any claim or liability based on events which have
occurred or shall occur before such holder becomes the Sublessor hereunder, if
ever.
18.07 In the event of any act or omission by Sublessor which would give
Subtenant the right to terminate this Sublease or to claim a partial or total
eviction, Subtenant shall not exercise such right until (i) it shall have given
written notice, by certified or registered mail, of such act or omission to the
holder of any Superior Instrument whose name and address shall have been
furnished to Subtenant in writing, at the last address so furnished, and (ii)
fifteen (15) days shall have elapsed following the giving of such notice, and
then only if following the giving of such notice, Sublessor or said holder shall
not, with reasonable diligence, have commenced and continued to remedy such act
or omission or to cause the same to be remedied.
SECTION 19 PROPERTY LOSS, DAMAGE, REIMBURSEMENT
------------------------------------------------
Except as otherwise provided in this Sublease, neither Sublessor nor its
employees, officers, directors, contractors, invitees, licensees or agents shall
be liable for any loss of or damage to any property belonging to Subtenant or
any other occupant of the Subleased Premises, whether such loss or damage is
occasioned by fire, casualty, theft or otherwise. Neither Sublessor nor its
employees, officers, directors, contractors, invitees, licensees or agents
shall be liable for any injury or damage to persons, property, or business
resulting from fire, explosion, falling plaster, steam, gas, electricity,
electrical disturbance, water, rain or snow or leaks from any part of the
Building or from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, unless caused by or due to the gross negligence or
willful misconduct of Sublessor, its employees, officers, directors,
contractors, invitees, licensees or agents, nor shall Sublessor be liable for
any such damage caused by other tenants, subtenants or persons in the Building
or caused by operations in construction of any private, public or quasi-public
work. Subtenant shall reimburse and compensate Sublessor, as Additional Rent,
for all damages or fines sustained or incurred by Sublessor due to
non-performance or non-compliance with or breach or failure to observe any term,
covenant or condition of this Sublease upon Subtenant's part to be kept,
observed, performed and complied with.
SECTION 20 CERTIFICATE OF OCCUPANCY
------------------------------------
Subtenant will not at any time use or occupy (or allow
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the use or occupancy of) the Subleased Premises in a manner which is or is
likely to be in violation of the certificate of occupancy issued for the
Subleased Premises.
SECTION 21 DEFAULT
-------------------
21.01 Upon the occurrence at any time prior to or during the Term, of
any one or more of the following events ("Events of Default"):
(i) If Subtenant shall default in the payment when due of any
installment of the Fixed Rent or Additional Rent and such default shall continue
for a period of ten (10) days after notice thereof; or (ii) if Subtenant shall
default in the observance or performance of any term, covenant or condition of
this Sublease on Subtenant's part to be observed or performed (other than the
covenants for the payment of Fixed Rent and Additional Rent) and Subtenant shall
fail to remedy such default within thirty (30) days after notice thereof by
Sublessor, provided, that if such default is of such a nature that it cannot be
completely remedied within said period of thirty (30) days, if Subtenant shall
not commence within said period of thirty (30) days, or shall not thereafter
diligently prosecute to completion, all steps necessary to remedy such default
prior to (a) a reasonable period of time, (b) the imposition of any penalty or
other liability by any governmental authority, or (c) said event constituting a
default under a Superior Instrument; or (iii) if Subtenant shall file a
voluntary petition in a bankruptcy or insolvency, or shall be adjudicated a
bankrupt or become insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future Federal bankruptcy act or any
other present or future applicable Federal, State or other statute or law, or
shall make an assignment for the benefit of creditors or shall seek or consent
to or acquiescence in the appointment of any trustee, receiver or liquidator of
Subtenant or of all or a portion of the assets of Subtenant; or (iv) if
Subtenant's interest in this Sublease shall devolve upon or pass to any person,
whether by operation of law or otherwise, in violation of the provisions of this
Sublease; then, Sublessor, at any time thereafter, at Sublessor's option, may
give Subtenant a three (3) day notice of termination of this Sublease and, in
the event such notice is given, this Sublease and the Term shall come to an end
and expire (whether or not the Term shall have commenced) upon the expiration of
said three (3) days with the same effect as if the date of expiration of said
three (3) days were the Expiration Date, but Subtenant shall remain liable for
damages as provided in Section 23 of this Sublease.
SECTION 22 REMEDIES
--------------------
22.01 In addition to all of the remedies available to Sublessor under
Section 21, during the continuance of an Event of Default, Sublessor may, with
or without terminating this Sublease pursuant to Section 21, exercise one or
more of the following remedies:
(i) Sublessor and its agents and servants may immediately, or at
any time after such default or after the date upon which this Sublease and the
Term shall expire and come to an end, re-enter the Subleased Premises or any
part thereof, without notice, either by summary proceedings or by any other
applicable action or proceedings or otherwise as
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permitted by law, and may repossess the Subleased Premises and dispossess
Subtenant and any other occupants from the Subleased Premises and remove any and
all of their property and effects from the Subleased Premises; and
(ii) Sublessor, at Sublessor's option, may relet the whole or any
part or parts of the Subleased Premises from time to time, either in the name of
Sublessor or otherwise, to such party or parties, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Sublessor, in its discretion, may determine. Sublessor shall have no obligation
to relet the Subleased premises or any part thereof and shall in no event be
liable for refusal or failure to relet the Subleased Premises or any part
thereof, or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Subtenant of any liability under this Sublease or
otherwise to affect any such liability. Sublessor, at Sublessor's option, may
make such repairs, replacements, alterations, additions, improvements,
decorations and other physical changes in and to the Subleased Premises as
Sublessor, in its discretion, deems advisable or necessary in connection with
any such reletting or proposed reletting, without relieving Subtenant of any
liability under this Sublease or otherwise affecting any such liability.
22.02 In the event a breach or threatened breach by Subtenant, or by any
persons claiming through or under Subtenant, of any term, covenant or condition
of this Sublease on such party's part to be observed or performed, Sublessor
shall have the right to enjoin such breach and the right to invoke any other
remedy allowed by law or in equity as if re-entry, summary proceedings and other
special remedies were not provided in this Sublease for such breach.
The right to invoke the remedies hereinbefore set forth are cumulative and shall
not preclude Sublessor from invoking any other remedy allowed at law or in
equity.
22.03 If Subtenant shall default in the payment when due of any
installment of Fixed Rent or Additional Rent for more than five (5) days after
the same becomes due and payable, then Subtenant shall pay Sublessor a later
charge of five ($.05) cents for each dollar ($1.00) of such Fixed Rent or
Additional Rent not paid when due. Such late charge shall be without prejudice
to any of Sublessor's rights and remedies hereunder or at law for non-payment of
rent and shall be in addition thereto.
22.04 If Subtenant shall fail to pay (i) any installment of Fixed Rent or
Additional Rent within five (5) days after the same becomes due and payable,
Subtenant shall pay interest thereon at the Rate calculated on the basis of the
actual days elapsed and based on a 360-day year, from the date on which such
installment or payment is due to the date of payment thereof, and such interest
shall deemed to be Additional Rent.
SECTION 23 DAMAGES
-------------------
23.01 If this Sublease and the Term shall expire and come to an end as
provided in Section 21 or by or under any summary proceedings or any other
action or proceedings, or if
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Sublessor shall re-enter the Subleased Premises as provided in Section 22 or by
or under any summary proceeding or any other action or proceedings, then, in any
of said events:
(i) Subtenant shall pay to Sublessor all Fixed Rent, Additional
Rent and other charges payable under this Sublease by Subtenant to Sublessor to
the date upon which this Sublease and the Term shall have expired and come to an
end or to the date of re-entry upon the Subleased Premises by Sublessor, as the
case may be; and
(ii) Subtenant shall also be liable for and shall pay to Sublessor,
as damages, any deficiency (referred to as "Deficiency") between the Fixed Rent
and Additional Rent reserved in this Sublease for the period which otherwise
would have constituted the unexpired portion of the Term, and the net amount, if
any, of rents collected under any reletting effected pursuant to the provisions
of Section 23.01 for any part of such period (first deducting from the rents
collected under any such reletting all of Sublessor's expenses in connection
with the termination of this Sublease or Sublessor's re-entry upon the Subleased
Premises and such reletting including, but not limited to, all repossession
costs, brokerage commissions, legal expenses, attorneys' fees, alteration costs
and other expenses of preparing the Subleased Premises for such reletting). Any
such Deficiency shall be paid in monthly installments by Subtenant on the days
specified in this Sublease for payment of installments of Fixed Rent. Sublessor
shall be entitled to recover from Subtenant each monthly Deficiency as the same
shall arise, and no suit to collect the amount of the Deficiency for any month
shall prejudice Sublessor's right to collect the Deficiency for any subsequent
month by a similar proceeding; or
(iii) At any time after the Term shall have expired and come to an
end or Sublessor shall have re-entered upon the Subleased Premises, as the case
may be, whether or not Sublessor shall have collected any Deficiency as
aforesaid, Sublessor shall be entitled to recover from Subtenant, and Subtenant
shall pay to Sublessor, on demand, as and for liquidated and agreed final
damages, a sum equal to the amount by which the Fixed Rent and Additional Rent
reserved in this Sublease for the period which otherwise would have constituted
the unexpired portion of the Term exceeds the fair and reasonable rental value
of the Subleased Premises for the same period. If, before presentation of proof
of such, the Subleased Premises, or any part thereof, shall have been relet by
Sublessor in an "at arms length" transaction, for the period which otherwise
would have constituted the unexpired portion of the Term, or any part thereof,
the amount of rent reserved upon such reletting shall be deemed, prima facie, to
be the fair and reasonable rental value for the part of the whole of the
Subleased Premises so relet during the term of the reletting. Subtenant's
payment of liquidated and agreed final damages as hereinabove provided shall
be reduced by the rent actually received by Sublessor upon such reletting.
23.02 Subtenant shall in no event be entitled to any rents collected or
payable under any reletting, whether or not such rents shall exceed the rent
reserved in this Sublease. Solely for the purposes of this Section 23, the
terms Fixed Rent as used in Section 23 shall mean the Fixed Rent in effect
immediately prior to the date upon which this Sublease and the Term shall have
expired and come to an end,
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or the date of re-entry upon Subleased Premises by Sublessor, as the case may
be, plus any Additional Rent, pursuant to the provisions of Section 5 payable
for the Lease Year immediately preceding such event (or if less than twelve (12)
months have elasped since the Commencement Date, all of the calendar months
immediately preceding such termination, as annualized to reflect a full calendar
year). Nothing contained in Sections 21 or 22 or this Section 23 shall be deemed
to limit or preclude the recovery by Sublessor from Subtenant of the maximum
amount allowed to be obtained as damages by any statute or rule of law, or of
any sums or damages to which Sublessor may be entitled in addition to the
damages set forth in this Section 23.
SECTION 24 RELEASE; INDEMNITY
------------------------------
24.01 Neither Sublessor nor Sublessor's officers, directors, employees,
agents or contractors (disclosed or undisclosed) shall be liable to Subtenant or
Subtenant's officers, directors, employees, agents, contractors, invitees or
licensees or any other occupant of the Subleased Premises except for their gross
negligence or willful misconduct. Subtenant shall, subject to the waiver and
release described in 11.06, save Sublessor, Sublessor's officers, directors,
employees, agents and contractors and the holder of any Superior Instrument, and
their respective officers, directors, employees, agents and contractors harmless
from any loss, cost, liability, claim, damage, expense (including, without
limitation, reimburseable attorneys' fees and disbursements), penalty or fine
incurred in connection with or arising during the Term or during any period
while Subtenant is in occupancy of any part of the Subleased Premises and
resulting from an injury to Subtenant or to any other person or for any damage
to, or loss (by theft or otherwise) of, any of Subtenant's property or of the
property of any other person, irrespective of the cause of such injury, damage
or loss (including the acts or negligence of any tenant, subtenant or other
occupant of the Building, or of any owners or occupants of adjacent or
neighboring property or caused by operations in construction of any private,
public or quasi-public work) unless due to the gross negligence or willful
misconduct of Sublessor, its officers, directors, employees, agents and
contractors, invitees or licensees, provided that even if due to such parties'
gross negligence or willful misconduct, Subtenant waives, to the full extent
permitted by law, any claim for damages resulting from loss of business or
profit.
24.02 Subtenant hereby indemnifies and agrees to hold harmless Sublessor,
its officers, directors, employees, agents and contractors and the holder(s) of
any Superior Instruments(s) from and against any loss, cost, liability, claim,
damage, expense (including, without limitation, attorney's fees and
disbursements), penalty or fine suffered or incurred in connection with or
arising from (i) a default by Subtenant in the performance of any of the terms
of this Sublease on Subtenant's part to be performed, (ii) the use or occupancy
or manner of use or occupancy or maintenance of the Subleased Premises, to the
extent such maintenance is Subtenant's obligation hereunder, and (iii) any acts,
omissions or negligence of Subtenant, or the officers, directors, employees,
agents, invitees, subtenants, assignees or licensees of Subtenant or of any such
person, in or about the Subleased Premises either prior to, during or after the
expiration of the Term.
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24.03 In case any action or proceeding be brought against Sublessor or an
employee or agent of Sublessor by reason of any of the foregoing, Subtenant,
upon notice from Sublessor, shall defend such action or proceeding by counsel
chosen by Subtenant who shall be satisfactory to Sublessor. Subtenant or its
counsel shall keep Sublessor fully apprised at all times of the status of such
defense and shall not settle same without the written consent of Sublessor.
SECTION 25 NO WAIVER
--------------------
No act or thing done by Sublessor or Sublessor's employees, directors,
officers, agents, guests or invitees during the Term shall be deemed an
acceptance of a surrender of the Subleased Premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Sublessor. No employee
of Sublessor or of Sublessor's agents shall have any power to accept the keys to
the Subleased Premises prior to the termination of this Sublease. The delivery
of keys to any agent or employee of Sublessor shall not operate as a termination
of this Sublease or a surrender of the Subleased Premises. In the event of
Subtenant at any time desiring to have Sublessor underlet the Subleased Premises
for Subtenant's account, Sublessor or Sublessor's agents are authorized to
receive said keys for such purposes without releasing Subtenant from any of the
obligations under this Sublease, and Subtenant hereby relieves Sublessor of any
liability for loss of or damage to any of Subtenant's effects in connection with
such subletting. The failure of either party to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of this
Sublease, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Sublessor of any Fixed Rent or Additional Rent with
knowledge of the breach of any covenant, term or provision of this Sublease
shall not be deemed a waiver of such breach. No covenant, term or provision of
this Sublease shall be deemed to have been waived by either party unless such
waiver be in writing signed by such party. No payment by Subtenant or receipt by
Sublessor of a lesser amount than the Fixed Rent or Additional Rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated amount then owing, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Sublessor may accept such check or payment without prejudice
to Sublessor's right to recover the balance of Fixed Rent or Additional Rent or
to pursue any other remedy in this Sublease or as provided at law. No payment by
Subtenant shall prejudice Subtenant's right to assert any rights thereafter.
SECTION 26 WAIVER OF TRIAL BY JURY; COUNTERCLAIMS
-------------------------------------------------
To the fullest extent such waiver is permitted by law, Sublessor and
subtenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by Sublessor or Subtenant against the other on any matter whatsoever
arising out of or in any way connected with this Sublease, the relationship of
Sublessor and Subtenant, the use or occupancy of the Subleased Premises by
Subtenant or any person claiming through or under Subtenant, any claim of injury
or damage,and any emergency or other statutory remedy. The provisions of the
foregoing sentence shall survive the expiration or any sooner termination of the
Term. If Sublessor commences any summary proceeding for nonpayment of rent or
otherwise to
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recover possession of the Subleased Premises, Subtenant agrees not to interpose
any counterclaim of any nature or description in any such proceeding, unless the
right to assert such counterclaim would thereby be waived, diminished or
prejudiced.
SECTION 27 INABILITY TO PERFORM
--------------------------------
If, by reason of strike or other labor dispute, fire or other casualty (or
reasonable delays in adjustment of insurance), accident, order or regulation of
any Federal, State, County or municipal authority, or any other cause beyond
Sublessor's reasonable control, whether or not such other cause shall be similar
in nature to those hereinbefore enumerated, Sublessor is unable to fulfill or is
delayed in fulfilling any of Sublessor's obligations under this Sublease or any
collateral instrument, then for a period of time equal to the time period of
such inability or delay, no such inability or delay shall constitute an actual
or constructive eviction, in whole or in part, or impose any liability upon
Sublessor or its officers, directors, employees, agents, contractors or invitees
by reason of inconvenience or annoyance, or injury to or interruption of the
business or otherwise, nor shall any such delay or inability to perform on the
part of Sublessor in anyway affect this Sublease and the obligation of Subtenant
to pay Fixed Rent and Additional Rent hereunder, and the obligation of Subtenant
to perform all of the other covenants and agreements to be performed by it
pursuant to the Terms hereof.
SECTION 28 SUCCESSORS, ASSIGNS, ETC.
-------------------------------------
The covenants, conditions and agreements contained in this Sublease shall
bind and inure to the benefit of Sublessor and Subtenant and their respective
and permitted heirs, distributees, executors, administrators, successors and
assigns.
SECTION 29 RULES AND REGULATIONS
---------------------------------
Subtenant shall comply with all rules and regulations promulgated by
Sublessor for the orderly operation of the Building and the Land including,
without limitation, those set forth on Schedule A hereof and all replacements,
modifications and additions thereto, so long as such replacements, additions or
modifications were furnished to Subtenant and do not contradict with the express
terms of this Sublease. Nothing contained in this Sublease shall be construed or
impose upon Sublessor any duty or obligation to Subtenant to enforce the Rules
and Regulations or the terms, covenants and conditions in any other lease or
sublease, as against any other tenant, and Sublessor shall not be liable to
Subtenant for violation of the same by any other tenant or its employees, agents
or visitors to Subtenant for violation of the same by any other tenant or its
employees, agents or visitors.
SECTION 30 BROKER
------------------
Subtenant acknowledges and represents to Sublessor that no broker except
Xxxxxx & Xxxxxxx, Inc. ("Broker") is entitled to a commission or fee in
connection with this Sublease transaction, and that Subtenant and its employees
of management level have not viewed or have been shown Subleased Premises with
any broker who is or may be entitled to a commission or fee in connection with
this Sublease
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transaction other than Broker. Subtenant acknowledges that Sublessor is entering
into this Sublease in reliance upon the foregoing acknowledgement and
representation. Subtenant hereby indemnifies and agrees to hold Sublessor, its
officers, directors, employees, agents and contractors harmless from and against
any and all loss, cost, liability, damage, expense (including, without
limitation, attorneys' fees and disbursements), penalty or fine suffered as a
result of breach of the foregoing representations. Subtenant agrees to cooperate
with Sublessor and to provide testimony in any action or proceeding brought
against Sublessor based upon a claim by a broker for a commission or fee in
connection with this Sublease transaction. Sublessor agrees to pay the
commission earned by Broker pursuant to a separate agreement.
SECTION 31 CAPTIONS
--------------------
The captions throughout and the index at the beginning of this Sublease are
included only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this Sublease nor the intent of any
provisions thereof.
SECTION 32 RECOVERY FROM SUBLESSOR, SUBLESSOR'S CONSENT
--------------------------------------------------------
32.01 Anything contained in this Sublease to the contrary notwithstanding,
Subtenant agrees to look solely to the estate and property of Sublessor in the
Building for the satisfaction of Subtenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Sublessor
in the event of any default or breach by Sublessor with respect to any of the
terms, covenants and/or conditions of this Sublease to be observed and/or
performed by Sublessor, subject, however, to the prior rights of the holder of
any Superior Instrument; and except as provided above no other property or
assets of Sublessor or its shareholders, officers, directors, or employees,
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Subtenant's remedies.
32.02 With respect to any provision of this Sublease which provides for
Sublessor's approval and/or consent, Subtenant, in no event, shall be entitled
to make, nor shall Subtenant make any claim, and Subtenant hereby waives any
claim, for money damages, nor shall Subtenant claim any money damages by way of
set-off, counterclaim or defense, based upon any claim or assertion by Subtenant
that Sublessor has unreasonably withheld or unreasonably delayed any such
consent or approval; Subtenant's only remedy in such event being an action for
injunction or specific performance.
SECTION 33 ENTIRE AGREEMENT
----------------------------
This Sublease contains the entire agreement between the parties with
respect to the subleasing of the Subleased Premises and all prior negotiations
and agreements are merged herein. Neither Sublessor nor Sublessor's agent or
representative has made any representation, statement, or promise upon which
Subtenant has relied regarding any matter or thing relating to the Subleased
Premises or any other matter whatsoever, except as is expressly set forth in
this Sublease (including, without limitation, any statement, representation or
promise as to the fitness of the Subleased Premises for any particular use, the
services to be rendered to the Subleased Premises or the prospective amount of
any
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item of Additional Rent). No oral or written statement, representation or
promise whatsoever with respect to the foregoing or any other matter made by
Sublessor, its agents or any broker, whether contained in an affidavit,
information circular, or otherwise, shall be binding the Sublessor unless
expressly set forth in this Sublease or in a separate writing delivered in
connection with this Sublease or subsequent thereto. This Sublease may not be
orally changed, modified or discharged, in whole or in part, and no executory
agreement shall be effective to change, modify or discharge, in whole or in
part, this Sublease or any obligations under this Sublease, unless such
agreement is set forth in a written instrument executed by the party against
whom enforcement of the change, modification or discharge is sought.
SECTION 34 FEES AND EXPENSES
------------------------------
If Subtenant shall default in the performance of any covenant on
Subtenant's part to be performed, Sublessor may at any time during the
continuance of an Event of Default, perform the same for the account of
Subtenant and Subtenant shall pay the cost thereof as Additional Rent. If
Sublessor at any time is compelled to pay or elects to pay any sum of money or
do any act which will require the payment of any sum of money, by reason of the
failure of Subtenant to comply with any provision of this Sublease, or, if
Sublessor is compelled to or does incur any expense (including, without
limitation, attorneys' fees and disbursements, and the cost of instituting
prosecuting and/or defending any action or proceedings instituted by reason of
any continuing Event of Default of Subtenant hereunder), the sum or sums so paid
by Sublessor with all interest, costs and damages, shall be deemed to be
Additional Rent hereunder.
SECTION 35 SURVIVAL
--------------------
The terms, covenants and conditions of this Sublease applicable to
Subtenant or Sublessor shall survive the expiration or earlier termination of
the Sublease, and if any credit or setoff shall not have been fully utilized,
Sublessor shall pay such amount immediately following such expiration or
termination.
SECTION 36 APPLICATION LAW
---------------------------
This Sublease shall be construed and enforced in accordance with the laws
of the State of New York and any action or court proceeding by Subtenant
hereunder shall be brought and maintained only within the County of Suffolk,
State of New York.
SECTION 37 HOLDOVER
--------------------
In the event Subtenant remains in possession of the Subleased Premises
after the expiration of the Term or earlier termination of this Sublease,
Subtenant, at the option of Sublessor, shall be deemed to be occupying the
Subleased Premises as a tenant from month to month (subject to Sublessor's right
to terminate such tenancy without notice), at a monthly rental equal to two
times the Fixed Rent and Additional Rent payable during the preceding twelve
(12) month period of the Term for the first three months following the
expiration of the Term or earlier termination of this Sublease, and at a monthly
rental equal to two and one-half (2 1/2) times the Fixed Rent and Additional
Rent
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payable during the preceding twelve (12) month period for the fourth month
following the expiration of the Term or earlier termination of this Sublease and
thereafter, subject to all of the other terms of this Sublease.
SECTION 38 CONSENT TO JURISDICTION
-----------------------------------
Subtenant hereby (a) irrevocably consents and submits to the jurisdiction
of any Federal, State, County or Municipal Court sitting in the State of New
York in respect to any action or proceeding brought therein by Sublessor against
Subtenant concerning any matters arising out of or in any way relating to this
Sublease; (b) irrevocably waives personal service of any summons and complaint
and consents to the service upon it of process in any such action or proceeding
by the mailing of such process by registered mail, return receipt requested, to
Subtenant at the Subleased Premises and hereby agrees that such service shall be
deemed sufficient; (c) irrevocably waives all objections as to venue and any and
all rights it may have to seek a change of venue with respect to any such act or
proceeding; (d) agrees that the laws of the State of New York shall govern in
any such action or proceeding and waives any defense to any action or proceeding
granted by the laws of any other country or jurisdiction unless such defense is
also allowed by the laws of the State of New York; and (f) agrees that any final
judgment rendered against it in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any manner provided by law and expressly consent to the affirmation of the
validity of any such judgment by the court of such other jurisdiction so as to
permit execution thereon. Subtenant further agrees that any action or proceeding
by Subtenant against Sublessor in respect to any matters arising out of or in
any way relating to this Sublease shall be brought only in the State of New
York, County of Suffolk. In furtherance of the foregoing, Subtenant hereby
agrees that its address for notices given by Sublessor and service of process
under this Sublease shall be the Subleased Premises.
SECTION 39 SURRENDER
---------------------
On the expiration or other termination of this Sublease, Subtenant shall
quit and surrender the Subleased Premises to Sublessor vacant and in good and
broom clean condition (ordinary wear and tear excepted) in accordance with all
the applicable terms and provisions of this Sublease, and Subtenant shall, at
its sole costs and expense, cause all property permitted or required to be
removed by Subtenant to be removed.
SECTION 40 NOTICE OF ACCIDENTS
-------------------------------
Subtenant shall give Sublessor notice of any fire, casualty or accident in
or about the Subleased Premises or of defects therein or in any fixtures or
equipment, promptly after Subtenant becomes aware thereof.
SECTION 41 EXTENSION OPTION
----------------------------
41.01 Subtenant shall have the option to extend the Original Term of this
Sublease for one (1) period of two (2) years upon the terms and conditions in
this Section 41. Subtenant may only exercise its option to extend if:
(i) at the time of the exercise of such option and the commencement
of any extension term, an uncured Event
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of Default shall not exist; and
(ii) at the time of the exercise of such option and the
commencement of any such extension term, the Subtenant named herein shall be in
actual occupancy of all of the Subleased Premises.
41.02 (i) All of the terms, provisions, covenants and conditions of this
Sublease shall apply during the extension term, expect that (1) there will be no
further privilege of extension beyond the period referred to above, (2) the word
"Expiration Date" shall mean (in addition to the meaning set forth herein) the
last day of such extension term, (3) during the extension term the Fixed Rent
payable by Subtenant to Sublessor shall be the fair market rental value of such
leasehold as mutually agreed by the Sublessor and Subtenant, or if Sublessor and
Subtenant shall fail to reach agreement within ninety (90) days after Sublessor
receives written notice from Subtenant of Subtenant's election to exercise its
option as provided in this Section 41, the Fixed Rent shall be the fair market
rental value of the Subleased Premises determined in accordance with Section
41.03, and (4) during the extension term there will be no refurbishing allowance
and Section 8 of this Sublease shall be deleted.
(ii) The fair market rental value of the Subleased Premises shall be
based upon the fair and reasonable annual market rental value of the Subleased
Premises as of the first day of the new term, taking into account the then
current rentals of comparable space in comparable buildings in the general area
of the Building, except that consideration shall also be given to any special
features of the Building and its operation such as floor sizes, hours of
operation, and other Building services. In addition, there shall be taken into
account, on an "as is" basis, all the improvements and installations in the
Subleased Premises either installed by Sublessor or installed by Subtenant and
paid for in whole or in part by Sublessor (or any replacements of such
improvements by Subtenant regardless of who pays for them), but not any other
improvements and installations paid for by Subtenant.
41.03 Any dispute with respect to the fair market value of Subleased
Premises shall be arbitrated in Suffolk County, New York, as follows: Sublessor
and Subtenant shall each appoint a member of the American Institute of Real
Estate Appraisers of the American Society of Appraisers or the Association of
Independent Fee Appraisers having at least ten (10) years appraisal experience
in Suffolk County, New York, and vicinity, to determine the fair market rental
value of the Subleased Premises, and the unanimous decision of such appraisers
shall be final and binding upon Sublessor and Subtenant. If the two appraisers
shall be unable to reach unanimous agreement within fifteen (15) days after both
appraisers have been appointed, then the two shall appoint a third appraiser who
shall have like qualifications, and the three appraisers shall determine the
matter submitted to them; provided, however, that if the two appraisers are
unable to agree upon the appointment of a third appraiser within seven (7) days
after they become obligated so to do, the parties shall apply to the President
of the American Institute of Real Estate Appraisers for such appointment or in
the case of failure to act for any reason, to the American Arbitration
Association. A decision of a majority of said appraisers shall be final and
binding upon Sublessor and Subtenant. Sublessor and Subtenant shall each pay the
fees
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and expenses of the appraiser appointed by and for such party, and all other
necessary expenses and costs to satisfy the procedure outlined in this Section
41, including, without limitation, the fees and expenses of the third appraiser,
shall be borne equally by Sublessor and Subtenant. If either party shall fail to
appoint the second appraiser within fifteen (15) days after the other party
shall have appointed the first appraiser and given notice of such appointment to
the first party, the first appraiser shall alone determine such fair market
rental value.
41.04 Subtenant shall, if at all, exercise its right to any such extension
by notifying Sublessor in writing of Subtenant's election to exercise such
option not later than 270 days prior to the Expiration Date. Time shall be of
the essence in connection with said election and notice thereof and in the event
Subtenant fails to so do as provided above, Subtenant's option shall
conclusively be deemed abandoned. Upon the giving of such notice, this Sublease
shall be deemed extended for the specified period, subject to the provisions of
this Section 41, without execution of any further instrument, except that
Sublessor and Subtenant shall execute an Amendment to this Sublease setting
forth the Fixed Rent and length of such extension term.
SECTION 42 QUIET ENJOYMENT
---------------------------
Sublessor covenants and agrees with Subtenant that, upon Subtenant paying
the Fixed Rent, Additional rent and all other sums required to be paid
hereunder, and observing and performing all the terms, covenants and conditions
on Subtenant's part to be observed and performed hereunder, Subtenant may
peaceably and quietly enjoy the Subleased Premises, subject, nevertheless, to
the terms and conditions of this Sublease, the Lease and any Superior
Instruments.
SECTION 43 NOTICES
-------------------
All notices and other communications required hereunder or given in
connection herewith, shall be in writing and sent by certified or registered
mail, return receipt requested, or by delivery against receipt, as follows:
If to Sublessor:
Nikon Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Legal Department
If to Subtenant:
Assessment Systems Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: President
Each party hereto may specify a new address for notices and copies of
notices by notice to the other party hereto. Except for notice specifying a new
address which shall be deemed given only upon actual receipt, notices shall be
deemed given when mailed.
SECTION 44 SECURITY
--------------------
Subtenant has deposited with Sublessor a check in the sum of $26,008.00,
the proceeds of which shall be held as
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security in an interest bearing account for the faithful performance and
observance by Subtenant of the terms, provisions and conditions of this
Sublease. It is agreed that during a continuing Event of Default Sublessor may
use, apply or retain the whole or any part of the security including interest so
deposited to the extent required for the payment of any Fixed Rent or Additional
Rent or any other sum as to which Subtenant is in default or for any sum which
Sublessor may expend or may be required to expend by reason of Subtenant's
default in respect of any of the terms, covenants and conditions of this
Sublease, (including, without limitation, any damages or deficiency incurred in
the reletting of the Subleased Premises whether such damages or deficiency
accrued before or after summary proceedings or other re-entry by Sublessor). In
the event of any such use, application or retention, Subtenant, on demand by
Sublessor, shall deposit with Sublessor any amounts so used, applied or
retained, to be held as security in accordance with all the terms hereof. In the
event that Subtenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Sublease, the security including
interest (to the extent not used, applied or retained in accordance herewith)
shall be returned to Subtenant after the Expiration Date and after delivery of
entire possession of the Subleased Premises to Sublessor (in the condition
required hereby). Notwithstanding anything to the contrary contained herein, one
(1%) percent of the security shall be retained per annum by Sublessor as and for
administrative purposes.
SECTION 45 PARKING
------------------
Subtenant and its employees, customers, guests, and invitees shall have the
non-exclusive right, in common with Sublessor and all others to whom Sublessor
and Landlord have granted or may hereafter grant rights (collectively Permitted
Users), to use those areas on the Land which are striped and designated as
parking spaces for parking of their passenger vehicles. Notwithstanding anything
in this Sublease to the contrary, Subtenant agrees that it will not use or
permit or suffer the use by its employees, customers, guests and invitees of (i)
areas within the Land not designated or striped as parking spaces for parking;
(ii) parking spaces for other than passenger vehicles; and (iii) parking spaces
reserved for Sublessor, its employees, customers, guests and invitees or other
tenants of the Building.
SECTION 46 ADDITIONAL SPACE
---------------------------
In the event the space presently occupied by Xxxxxxxxxx & Co., Inc. on the
first floor of the Building ("Additional Space") becomes vacant or there is an
immediate prospect of it becoming vacant before July 1, 1998, and Sublessor
decides not to use any of the Additional Space for its own use, then in such
event, Sublessor shall give notice thereof to Subtenant. Within fifteen (15)
days after Sublessor gives such notice to Subtenant, Subtenant shall have the
option to add all of the Additional Space to the Subleased Premises for a term
expiring on the Expiration Date of the Original Term by notifying Sublessor in
writing of its decision to exercise its option within said fifteen (15) day
period. Subtenant may only exercise its option to add the Additional Space if:
(i) at the time of the exercise of such option and the commencement of the term
for the Additional Space, an uncured Event of Default shall not exist; and (ii)
at the time of the exercise of such option and the commencement of the term for
-37-
the Additional space, the Subtenant named herein shall be in actual occupancy of
all of the Subleased Premises. Time shall be of the essence in connection with
said option and Subtenant's notice of its election to exercise said option, and
in the event Subtenant fails to so do as provided herein, Subtenant's option
shall conclusively be deemed abandoned.
If, pursuant to the provisions of this Section 46, the Additional Space
shall be added to the Subleased Premises, the following shall apply:
(a) All of the terms, provisions, covenants and conditions of this Sublease
shall apply to the Additional Space, except (1) the Fixed Rent payable by
Subtenant to Sublessor for the Additional Space shall be the then current,
market rental value as shall be reasonably determined by Sublessor but in no
event less than the then current rate of Fixed Rent for the Subleased Premises;
and (2) the sums payable by Subtenant pursuant to Section 5 other than Fixed
Rent and Section 44 shall be computed as if the Additional Space were a part of
the Subleased Premises at the Commencent Date of the Original Term; and (3) such
other appropriate adjustments for Additional Rent as may be required as a result
of adding the Additional Space to the Subleased Premises.
IN WITNESS WHEREOF, this Sublease has been duly executed by the parties
hereto as of the day and year set forth above.
NIKON INC.
By: Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Chief Operating Officer
Executive Vice-President
ASSESSMENT SYSTEMS INC,
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
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