Sublease Agreement
Sublease AGREEMENT (the "Sublease") dated as of the 17th day of June,
1996 by and between LIZ CLAIBORNE ACCESSORIES, INC., a Delaware corporation,
having an office at Xxx Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000 (the
"Sublandlord") and XXXXXXX XXXX PRODUCTIONS, INC., a New York Corporation,
having an office at 00 Xxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Subtenant").
WHEREAS:
a. By a lease dated April 16, 1987, as amended by Lease Modification
Agreement dated June 30, 1987, letter agreement dated July 22, 1987, Lease
Modification Agreement dated June 5, 1991, and letter agreement dated September
15, 1995 (the "Xxxxxxxxx") by and between Xxxxx Mountain Metropolitan, a New
Jersey General Partnership, as landlord, (the "Overlandlord") and Sublandlord,
as tenant, Sublandlord has leased from Overlandlord the entire premises and
buildings more fully described in the Xxxxxxxxx known as Two Xxxxxxx Xxxx,
Secaucus, New Jersey, (the "Buildings") on the real property which is part of
the Land more fully described in Exhibit A of the Xxxxxxxxx (the "Land"); and
b. Subtenant desires to sublet from Sublandlord 239,000 square feet of
the warehouse and office Building (the "Sublease Premises"), and obtain
exclusive use of certain portions of the Land and those 225 parking spaces which
are identified by crosshatching and more fully described on Exhibit A annexed
hereto and made a part hereof, upon the terms and subject to the provisions and
conditions hereinafter set forth; and
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants, conditions and agreements hereinafter contained, do hereby agree as
follows:
W I T N E S S E T H :
1. Term.
Sublandlord hereby sublets the Sublease Premises to Subtenant and
Subtenant hereby hires the Sublease Premises from Sublandlord, for a term (the
"Term") which shall commence on October 1, 1996 (the "Commencement Date") and
which shall expire on June 29, 2002, unless the Term shall be sooner terminated
in accordance with the provisions of this Sublease or the Xxxxxxxxx. The
Subtenant acknowledges that the Term of this Sublease shall terminate in the
event that the Xxxxxxxxx is terminated prior to the expiration date pursuant to
the terms set forth therein.
2. Sublease Premises Square Footage.
The Sublease Premises consists of two hundred thirty-nine thousand
(239,000) square feet of the Building. Subtenant shall also have the exclusive
use of certain portions of the Land and the two hundred twenty-five (225)
parking spaces ("Subtenant's Parking
Area") as identified on Exhibit A attached hereto. Subtenant acknowledges and
agrees that its use of Subtenant's Parking Area and of any portion of the area
in which such parking spaces are located, shall not unreasonably interfere with,
impede or restrict access to or egress from any portion of the Building or any
other premises subject to the Xxxxxxxxx whether by Sublandlord or any person
authorized by Sublandlord.
Sublandlord acknowledges and agrees that its use of those parking
spaces and of any portion of the area in which such parking spaces are located
on the Land not permitted to be used by Subtenant hereunder (the "Sublandlord's
Parking Area") identified on Exhibit A attached hereto, access to which area may
be restricted by signs, shall not unreasonably interfere with, impede or
restrict access to or egress from any portion of the Sublease Premises or the
Subtenant's Parking Area.
Both parties agree that neither one shall not place any fence,
barricade, or other type of dividing barrier or cause any security guard to
administer same between Subtenant's Parking Area and Sublandlord's Parking Area.
Subtenant acknowledges that, to the extent parking spaces are vacant in
Subtenant's Parking Area, Sublandlord's customers may be allowed to park in same
during the weekends without penalty, restriction or any charge to Sublandlord.
3. Fixed Rent.
The annual fixed rent (the "Fixed Rent") shall be the amount set forth
below for the following periods:
Period Monthly Fixed Rent Annual Fixed Rent
------ ------------------ -----------------
October 1, 1996 - September 30, 1997 $40,000.00 $ 480,000
October 1, 1997 - September 30, 1998 $48,333.33 $ 580,000
October 1, 1998 - September 30, 1999 $56,666.66 $ 680,000
October 1, 1999 - September 30, 2000 $65,000.00 $ 780,000
October 1, 2000 - September 30, 2001 $75,416.66 $ 905,000
October 1, 2001 - June 29, 2002* $85,833.33 $1,030,000*
* Such amounts shall be prorated for less than one (1) year.
Subtenant covenants and agrees to pay the Sublandlord the annual Fixed Rent in
equal monthly installments in lawful money of the United States in advance on or
prior to the first (1st) day of each calendar month during the Term, together
with additional rent as hereinafter set forth, without any deduction, offset or
abatement whatsoever. All payments to be made by Subtenant to Sublandlord
hereunder shall be made at Xxx Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000,
Attn: Director - Accounts Payable, or such other place as Sublandlord may
hereinafter designate. All amounts due from Subtenant to Sublandlord under this
Sublease shall be paid by good and sufficient check (subject to collection).
Notwithstanding anything to the contrary contained herein, all Fixed Rent, Fixed
Tax Payments (as hereinafter defined) for the
first month of the Term of this Lease shall be paid simultaneously with the
execution of this Sublease.
4. Use of the Sublease Premises.
Subtenant shall continuously use and occupy the Sublease Premises for
warehouse distribution, general office and ancillary retail use in accordance
with all laws and ordinances of all federal, state, county and municipal
governments and rules, regulations, orders and directives of all departments,
subdivisions, bureaus, agencies or offices thereof and any other governmental,
public or quasi public authorities having jurisdiction over the Land and the
Building ("Permitted Uses").
5. Incorporation of Xxxxxxxxx Terms.
a. Words or terms which are capitalized herein, shall have the meaning
ascribed to them in the Xxxxxxxxx unless the context clearly requires otherwise.
b. Except as herein otherwise expressly provided in Article 5(c), and
elsewhere in this Sublease, all of the terms, provisions, covenants and
conditions contained in the Xxxxxxxxx are hereby made a part hereof. The rights
and obligations as are contained in the Xxxxxxxxx are, during the Term, hereby
imposed upon the respective parties hereto, Sublandlord being substituted for
the landlord thereunder and Subtenant being substituted for the tenant
thereunder; provided, however, that Sublandlord shall not be liable to Subtenant
for any failure in performance resulting from the failure in performance by the
Overlandlord under the Xxxxxxxxx of the corresponding covenant of the Xxxxxxxxx,
and Sublandlord's obligations hereunder are accordingly conditional where such
obligations require such parallel performance by Overlandlord. The respective
terms, covenants, provisions and conditions of the Xxxxxxxxx on the part of
Overlandlord to be performed, which have been incorporated herein by reference
or as covenants and obligations of Sublandlord hereunder, are to be performed by
Overlandlord or its respective successors and assigns, Subtenant hereby agreeing
to look solely to Overlandlord for such performance. No representation or
warranty made by Overlandlord under the Xxxxxxxxx is deemed made by Sublandlord
hereunder. Sublandlord shall not be liable or responsible to Subtenant for any
failure or default on the part of Overlandlord, its successors or assigns, or
any breach of a representation or warranty made by Overlandlord, its successors
or assigns with respect to any of the terms, covenants, provisions, conditions,
warranties and representations of or in the Xxxxxxxxx. Sublandlord agrees,
however, to use reasonable efforts to enforce its rights (including, without
limitation, indemnity obligations of the Overlandlord) pursuant to the Xxxxxxxxx
for the benefit of Subtenant upon Subtenant's written request, and Subtenant
agrees to reimburse Sublandlord for any and all reasonable costs it shall incur
in expending such efforts. If such Sublandlord efforts benefit both Sublandlord
and Subtenant, the costs of such efforts shall be equitably pro-rated between
Sublandlord and Subtenant on the basis of the benefit received. A copy of the
Xxxxxxxxx is attached as Exhibit B hereto.
c. The Xxxxxxxxx is modified solely for the purposes of this Sublease
as follows:
1. Article 1, Paragraph 1.01:
a. Paragraph A: Delete the word "None" and insert "Fixed Rent
and Fixed Tax Payments (as hereinafter defined), for the first month of
the Term, shall be paid simultaneously with the execution of the
Sublease;
b. Paragraphs C and D: Delete the paragraphs;
c. Paragraph E: Insert the words "warehouse and office" before
"building" and delete the words "or buildings";
d. Paragraph H: Delete the words from "244,525" to "B" and
insert "the Sublease Premises as defined in the Sublease".
e. Paragraph J: Delete the first (1st) sentence;
f. Delete paragraphs O, T, V, and FF.
2. Article 2, Paragraph 2:01: Delete the first sentence.
3. Article 3:
a. Paragraph 3:01: Delete the first sentence;
b. Paragraph 3.05: Delete the word "ten (10)" and substitute
"seven (7)".
4. Article 5: Delete Paragraphs 5.01 and 5.02.
5. Article 6:
a. Paragraph 6.01: Delete the second and third sentences;
b. Paragraph 6.02: Delete the entire paragraph except for the
first sentence;
6. Article 9: In line 10 of Paragraph 9.01 insert a period "." after
the word "Mortgages" and delete the remainder of the sentence from the words "so
long" to "period".
7. Article 10: Delete paragraph 10.01 in its entirety.
8. Article 11: Delete the entire Article.
9. Article 13: Delete paragraph 13.04 in its entirety.
10. Article 15:
a. Paragraph 15.01: In lines four and eight delete the words
"Five Hundred Thousand and 00/100 Dollars ($500,000)" and insert "Three
Hundred Thousand and 00/100 Dollars ($300,000)".
b. Paragraph 15.03: In the third line insert a period "."
after the word "consent" and delete the remainder of the sentence.
11. Article 17:
a. Paragraph 17.01: In line fourteen after the word "pounds"
insert "and One Hundred Pounds and Eighty Pounds" and after the word
"foot" insert "for the mezzanine and second floors and the office area
of the Demised Premises, respectively." Delete the last sentence in the
paragraph.
b. Paragraph 17.02: Delete the last sentence in the paragraph.
12. Article 18, Paragraph 18.01 Delete the second sentence in the
paragraph.
13. Article 22:
a. Paragraph 22.03: In line twelve delete the word "ninety
(90)" and insert "ninety-five"; in line sixteen delete the word "sixty
(60)" and insert "fifty five (55)".
14. Article 25:
a. Paragraph 25.02: In the third line delete the word "ten
(10)" and insert "five (5)" therefor; in lines seven, nine and sixteen
delete the word "thirty (30)" and insert the words "twenty-five (25)"
therefor. In lines thirty-three and thirty-four delete the word "five
(5)" and insert "three (3)" therefor.
15. Article 27:
a. Paragraph 27.04: In the fifth line delete the word "five
(5)" and substitute "three (3)" therefor.
16. Article 31: Delete the entire paragraph.
17. Article 32: Delete the entire paragraph.
18. Article 35: Delete the entire paragraph.
19. Rider to Lease:
a. Delete Paragraphs R2 and R4.
20. Exhibit B: Delete in its entirety.
21. Exhibit C: Delete in its entirety.
22. Lease Modification Agreement dated June 5 1991:
a. Delete Paragraphs 1, 2, 3, 5, 6, 7, 8, 11, 13, 14 and 15.
b. Exhibit A: Delete in its entirety.
c. Wherever the Xxxxxxxxx refers to the Demised Premises, such
reference for the purposes hereof shall be deemed made to the Sublease
Premises.
d. Wherever the Xxxxxxxxx refers to "Additional Charges", such
reference for the purposes hereof shall be deemed made to Additional
Rent (hereinafter defined).
e. To the extent that there are any inconsistencies between
the provisions of the Xxxxxxxxx and the Sublease, the provisions of
this Sublease prevails.
6. Sublease Subject to Xxxxxxxxx, etc..
This Sublease is expressly made subject and subordinate to all the
terms and conditions of the Xxxxxxxxx and to the matters to which the Xxxxxxxxx
is or shall be subordinate, except as specifically provided to the contrary in
this Sublease, to the extent applicable to the Sublease Premises. Subtenant
hereby assumes and covenants that it will, throughout the term hereof, observe
all of the provisions of the Xxxxxxxxx, to the extent applicable to the Sublease
Premises, on the part of Sublandlord to be performed as the tenant thereunder
(except for the payment of rent or additional rent and except as otherwise
expressly set forth herein), and that Subtenant will not do any act, matter or
thing which will be, result in, or constitute a violation or breach of or a
default under the Xxxxxxxxx; any such violation, breach or default shall
constitute the breach by Subtenant of a substantial obligation under this
Sublease. Subtenant hereby agrees that it shall indemnify, defend and hold
Sublandlord harmless from and against any and all claims, penalties and
expenses, including reasonable attorneys' fees, based upon any default by
Subtenant, during the Term hereof, in Subtenant's performance of those terms,
covenants and conditions of the Xxxxxxxxx which are or shall be applicable to
Subtenant, as above provided, (except to the extent such default is caused by
the negligence of Sublandlord or any of its employees or agents) and Subtenant
shall pay to Sublandlord as additional rent hereunder any and all sums which
Sublandlord is required to pay to Overlandlord, caused in whole or in part by
Subtenant's failure to perform or observe any of the terms and conditions of the
Xxxxxxxxx pertaining to the Sublease Premises, as above provided, or by any act
or omission described in the preceding sentence. Provided Subtenant is not in
default hereunder, Sublandlord hereby agrees that it shall indemnify, defend and
hold Subtenant harmless from and against any and all claims, penalties and
expenses, including reasonable attorneys' fees based upon any non-payment by
Sublandlord in the Rental due Overlandlord pursuant to the Xxxxxxxxx. In any
case where the consent or approval of Overlandlord shall be required pursuant to
the Xxxxxxxxx, such Overlandlord's consent and Sublandlord's consent shall also
be required hereunder.
If Subtenant shall default in the payment of rent or additional rent
hereunder or in the performance or observance of any of the terms, covenants or
conditions of this Sublease or the Xxxxxxxxx (to the extent applicable to the
Sublease Premises) on the part of Subtenant to be performed or observed,
Sublandlord shall have the right (but not the obligation) to exercise all
remedies available to it hereunder at law or equity. Without limiting the
preceding sentence, Sublandlord shall have the right but not the obligation to
all of the same rights and remedies provided to or reserved by Overlandlord in
the Xxxxxxxxx; however, the foregoing shall in no way be deemed to limit or
impair the
rights and privileges of the Overlandlord under the Xxxxxxxxx, or to impose any
obligations or liabilities on the part of Sublandlord by reason of the exercise
by Overlandlord of any of such rights or privileges with respect to the Sublease
Premises or to the use and occupation thereof by Subtenant. Without limitation
of the foregoing, Sublandlord shall have the same rights and remedies in the
event of non-payment by Subtenant of rent or additional rent hereunder as are
available to Overlandlord under the Xxxxxxxxx and at law for the non-payment of
rent or of any installment thereof.
Subtenant shall, promptly after receipt thereof, notify Sublandlord of
any notice served by Overlandlord upon Subtenant pursuant to the terms,
provisions and conditions of the Xxxxxxxxx or with reference to the Sublease
Premises. Sublandlord shall, promptly after receipt thereof, notify Subtenant of
any notice served by Overlandlord upon Sublandlord relating in any manner to the
Sublease Premises or the services to be provided by Overlandlord to the Sublease
Premises. Wherever Overlandlord requires Sublandlord, as tenant under the
Xxxxxxxxx, to take any action to prevent a default or to cure any default (other
than a default in the payment of rent or additional rent pursuant to the
Xxxxxxxxx) applicable to the Sublease Premises within a period of time stated in
the Xxxxxxxxx, Subtenant shall complete such action or cure such default not
later than five (5) days prior to the expiration of such period within the time
periods set forth in the Xxxxxxxxx as modified by Paragraph 5(c)(14)
hereinabove, and shall immediately furnish notice of compliance to Sublandlord.
7. Sublandlord's Work/As Is Condition.
Sublandlord agrees to substantially complete the work described in the
Workletter ("Sublandlord's Work") attached hereto as Exhibit C by September 1,
1996 pursuant to the terms set forth herein. Sublandlord also agrees to deliver
certain furniture and shelving in the Sublease Premises more fully described in
Exhibit C-2 attached hereto. Title to such furniture and shelving for all
purposes shall be deemed to be transferred upon delivery to Subtenant.
Sublandlord's Work shall be deemed substantially completed notwithstanding the
fact that minor or insubstantial details of construction, mechanical adjustment
or decoration remain to be performed, the noncompletion of which does not
substantially interfere with the Subtenant's use of the Sublease Premises.
Sublandlord and Subtenant agree to cooperate with each other in the completion
of each party's respective work to the Sublease Premises as set forth herein.
The taking of possession by Subtenant of the Sublease Premises shall be
conclusive evidence as against Subtenant that the Sublease Premises were in good
and satisfactory condition at the time such possession was taken.
Subtenant expressly acknowledges and agrees that Sublandlord has not
made and is not making, and Subtenant, in executing and delivering this
Sublease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Sublease or in any other written agreement which may be made between the parties
concurrently with the execution and delivery of this Sublease and shall
expressly refer to this Sublease. This Sublease and said other written
agreement(s) made concurrently herewith are hereinafter referred to as the
"Sublease Documents". It is
understood and agreed that all understandings and agreements heretofore had
between the parties relating to the Sublease Premises are merged in the Sublease
Documents, which alone fully and completely express their agreements relating to
the Sublease Premises and that the same are entered into after full
investigation, neither party relying upon any statement or representation not
embodied in this Sublease, made by the other. Except for Sublandlord's Work,
Subtenant acknowledges that Sublandlord is not required to perform any other
work of any kind, nature or description to prepare the Sublease Premises for
Subtenant's occupancy, and Subtenant hereby accepts the Sublease Premises in its
"as is" condition subject to the specific provisions of this Sublease.
8. Alterations.
Subtenant shall comply with the provisions of Article 15 of the
Xxxxxxxxx in connection with any changes, alterations or improvements it shall
make to the Sublease Premises (collectively "Subtenant Alterations"). No
Subtenant Alterations shall be made to the fire protection system in the
Sublease Premises unless such Subtenant Alterations are "HPR" rated and approved
in accordance with the requirements of Sublandlord's insurers. Subtenant shall
perform any desired Subtenant Alterations at its sole cost and expense.
Subtenant shall use its best efforts to minimize disruption to Sublandlord's
business in connection with the performance of any Subtenant Alterations and
shall perform such Subtenant Alterations as expeditiously as reasonably
possible.
9. Subordination and Non-Disturbance.
This Sublease, and all rights of Subtenant hereunder, shall be subject
and subordinate to all ground and underlying leases (including without
limitation, the Xxxxxxxxx) of the Land and/or the Building and to all Mortgages
affecting the Real Property Land and/or the Building and/or any of such leases,
whether or not such Mortgages or leases shall also cover lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages and
to all renewals, modifications, consolidations, replacements and extensions of
any such leases and such Mortgages and spreaders and consolidations of such
Mortgages. This clause shall be self-operative and no further instrument of
subordination shall be required by any ground or underlying lessor or by any
mortgagee, holding a lease or mortgage affecting the Land. In confirmation of
such subordination, Subtenant shall promptly execute, acknowledge and deliver
any instrument that Sublandlord, the Lessor under any such lease or the Mortgage
of any Mortgages, or any of their respective successors in interest may
reasonably request to evidence such subordination; and, if Subtenant fails to
execute, acknowledge or deliver any such instrument within eight (8) days after
request therefor, Subtenant hereby irrevocably constitutes and appoints
Sublandlord as Subtenant's attorney in fact, compiled with an interest to
execute and deliver any such instruments, for and on behalf of Subtenant.
Sublandlord shall use its reasonable efforts to obtain a nondisturbance
agreement from Overlandlord in favor of Subtenant. However, in no event shall
Sublandlord be required to commence
legal proceedings against Overlandlord or pay any fees or charges to
Overlandlord in connection with such nondisturbance agreement.
10. Assignment, Subletting and Mortgage.
a. Subtenant will not, by operation of law or otherwise, assign,
mortgage or encumber this Sublease, nor sublet or permit the Sublease Premises
or any part thereof to be used by others, without Sublandlord's prior written
consent in each instance, which consent shall not be reasonably withheld or
delayed subject to the terms of this Article 10, provided that at the time
Subtenant requests Sublandlord's consent, Subtenant shall not be in default of
any obligations described herein beyond any applicable grace and cure periods.
Notwithstanding the foregoing and without limiting any other provisions herein
(i) Sublandlord may condition its consent to an assignment of this Sublease upon
(1) Subtenant's delivery to Sublandlord in recordable form, and within three (3)
days after its execution of (x) a duplicate original of the assignment, and (y)
an agreement wherein assignee assumes and agrees to keep, observe and perform
all of the covenants conditions and obligations to be kept performed and
observed under the Sublease and the Xxxxxxxxx on the part of the Subtenant, and
(2) the delivery to Sublandlord by the assignee of an amount equal to two (2)
months Fixed Rent and Fixed Tax Payment as a security deposit to ensure the
performance of the covenants, conditions and obligations to be kept, performed
and observed under the Sublease and the Xxxxxxxxx on the part of the Subtenant
(the "Security Deposit"); (ii) Sublandlord may condition its consent to a
sublease upon (1) The delivery of the Security Deposit by the Subtenant, and (2)
delivery to Sublandlord of a duplicate original of the Sublease Agreement. The
parties hereto agree that at no time shall there be more than one (1)
sub-sublease in effect with regard to the Sublease Premises. Any permitted
assignee or sublessee may only use the Sublease Premises for the Permitted Uses.
If this Sublease is assigned, or if the Sublease Premises or any part thereof be
sublet or occupied by anybody other than Subtenant, Sublandlord may, after
default by Subtenant, collect rent from the assignee, subtenant or occupant and
apply the net amount collected to the rent herein reserved but no such
assignment, occupancy or collection shall be deemed a waiver of this covenant or
the acceptance of the assignee, subtenant or occupant as Subtenant or a release
of Subtenant from the further performance by Subtenant of the terms, covenants
and conditions of this Sublessee on the part of Subtenant to be performed. Any
violation of any provision of this Sublease or the Xxxxxxxxx, whether by act or
omission, by any assignee, subtenant or similar occupant, shall be deemed a
violation of such provision by Subtenant, it being the intention and meaning of
the parties hereto that Subtenant shall assure and be liable to Sublandlord for
any and all acts and omissions of any and all assignees, subtenants and similar
occupants. The consent by Sublandlord to an assignment, encumbrance, or
subletting shall not be construed in any way to relieve Subtenant from obtaining
the express consent in writing of Landlord to any further assignment,
encumbrance or subletting.
b. If Subtenant desires to assign this lease or all or part of the
Sublease Premises, it shall submit in writing to Sublandlord, at the time it
requests such consent the following:
(i) The name and address of the proposed assignee or subtenant;
(ii) A true, complete and accurate copy of the agreement between
Subtenant and a prospective subtenant or assignee;
(iii) The nature and character of the business of the proposed assignee
or subtenant.
(iv) At least one banking reference and a financial statement of the
proposed, subtenant or assignee, certified by an officer of such entity, for a
twelve (12) month period ending not earlier than six (6) months prior to the
request.
c. In the event that Subtenant desires to assign this Sublease or
sublet more than twenty-five (25%) percent of the Sublease Premises, Sublandlord
shall have the right within twenty-six (26) days after receipt of said
application (unless it has given its consent or has exercised the right it may
have to withhold its consent) to terminate the Sublease without payment or
premium therefore by giving Subtenant notice of its election to do so and unless
Subtenant withdraws its application within seven (7) days of Sublandlord's
termination notice, thereby voiding such termination, such termination shall
become effective thirty days after the giving of such notice, and the Fixed
Rent, Fixed Tax Payments, rent and all other charges payable by Subtenant shall
be so adjusted and apportioned as of the date of termination of this Sublease.
d. If Sublandlord's consent to a subletting or assignment has been
obtained, Subtenant shall pay to Sublandlord, as additional rent hereunder, if
applicable, in the event of a subletting, an amount equal to fifty (50%) percent
of the monthly sublet rent received in excess of the monthly Fixed Rent and
Fixed Tax payments payable hereunder due within five (5) days of Subtenant's
receipt of such excess amount, except that if the sublet is for less than all of
the Sublease Premises, an appropriate pro rata adjustment shall be made in
determining the excess of sublet rental over the prorated rental payable under
this Sublease and in the event of an assignment an amount equal to fifty (50%)
percent of any consideration paid on account of the assignment due within ten
(10) days of receipt thereof by Subtenant. In no event shall this paragraph be
interpreted or construed to permit Subtenant to remit less than the Fixed Rent
and Fixed Tax payments and additional rent under all other provisions of this
Sublease. The provisions of this paragraph shall survive the expiration or
earlier termination of this Sublease.
e. The parties agree that Sublandlord shall not be deemed
"unreasonable" if it withholds its consent to any subletting or assignment
because Overlandlord has not given its consent to such subletting or assignment.
f. If Sublandlord shall not have exercised any of its options described
above within the time limits set forth above, Sublandlord shall notify Subtenant
in writing if it consents to or denies a proposed assignment, or sublet or
occupancy, within thirty (30) days of its receipt of a request for such consent
together with the information described herein above.
g. If a Sublandlord consents to such subletting or assignment,
Subtenant shall, following the execution of a Sublease or assignment agreement
and prior to the effectiveness of such Sublease or assignment, deliver to
Sublandlord, a duplicate, executed original of the instrument of assignment or
Sublease as the case may be, duly executed by the appropriate party and if
Subtenant assigns its interest in this Sublease, said assignee shall assure the
obligation for performance of Subtenant's obligations thereafter arising under
this Sublease and shall become jointly and severally liable with Subtenant for
the performance thereof pursuant to the instrument of assignment.
h. Each of the foregoing provisions shall apply to each and every
assignment or subletting. An assignment of the Sublease or a subletting as above
provided, shall not discharge or release from liability hereunder Subtenant or
any other person, firm or corporation which shall have previously assumed
Subtenant's obligations hereunder such liability to remain and continue for the
balance of the term with the same force and effect as though no assignment or
subletting had been made.
i. Subtenant shall pay the reasonable expenses, including, but not
limited to reasonable attorneys' fees incurred by Sublandlord in connection with
the review and/or preparation and/or execution of any documents submitted to
Sublandlord relating to a request for Sublandlord's consent to a proposed
assignment or subletting not to exceed $1000.00 in any one instance. Such $1000
limit shall be increased by $100 each calendar year during the term commencing
in 1998.
j. Any attempted assignment or subletting made contrary to the
provisions of this Article shall be null and void. No consent by Sublandlord or
Overlandlord to any assignment or subletting shall in any manner be considered
to relieve Subtenant from obtaining Sublandlord or Overlandlord's express
written consent to any further assignment or subletting.
11. Additional Rent.
a. General. In addition to the Fixed Rent, Subtenant shall pay to
Sublandlord during the Term, the charges described in Articles 6 and 18 of the
Xxxxxxxxx, as such share and/or charge is determined pursuant to this Sublease
and the provisions of the Xxxxxxxxx attached hereto as Exhibit B, in the manner
and at the times provided therein, except as modified by this Article 11 (the
"Additional Rent") and all other amounts payable by Subtenant to Sublandlord
pursuant to the provisions herein.
b. Taxes. Subtenant's Real Estate Tax payments as defined in Article 6
of the Xxxxxxxxx shall be the following in lieu of any Real Estate Tax payments
required under the Xxxxxxxxx: (i) the fixed amounts as follows: (the "Fixed Tax
Payment"):
Monthly Fixed Annual Tax
Period Tax Payment Payment
------ ----------- -------
October 1, 1996 - September 30, 1997 $14,166.66 $170,000.00
October 1, 1997 - September 30, 1998 $16,250.00 $195,000.00
October 1, 1998 - September 30, 1999 $18,333.33 $220,000.00
October 1, 1999 - September 30, 2000 $20,416.66 $245,000.00
October 1, 2000 - September 30, 2001 $20,416.66 $245,000.00
October 1, 2001 - June 29, 2002 $20,416.66 $245,000.00*
* Such amounts shall be prorated for less than one (1) year.
Subtenant covenants and agrees to pay the Sublandlord the Fixed Tax Payment in
lawful money of the United States in advance on or prior to the first (1st) day
of each calendar month of the Term, without any deduction, offset or abatement
whatsoever. All such Fixed Tax Payments shall be made by Subtenant to
Sublandlord simultaneously with Fixed Rent as described hereinabove in Paragraph
3.
(ii) In addition to the above Fixed Tax Payment, commencing on
January 1,1997 and each year thereafter Subtenant shall be responsible for
paying 84.6% of any increase in the Real Estate Taxes due, above the 1995/1996
Real Estate Tax xxxx for the Building and the Land which 1995/1996 Real Estate
tax xxxx is equal to $309,450.00 (the "Additional Tax Payment"). Any such
Additional Tax Payment shall be due within twenty (20) days of Sublandlord's
invoice therefor which shall include a copy of any applicable subsequent Real
Estate tax xxxx for the Building and the Land.
(iii) If Sublandlord receives any credits or refunds on Real Estate
Taxes for past or future Real Estate Tax bills, Sublandlord shall be entitled to
receive and retain the entire amount of such credit or refund. Sublandlord
agrees that it shall file protests as to the valuation of the Land and the
Building every tax year.
c. Utilities. Modifying Article 18 of the Xxxxxxxxx:
(i) Subtenant shall be responsible for paying all charges for
gas, water, sewer, electricity, heat or other utility or service supplied to the
Premises, Building and the Land relating to Subtenant's use and any cost of
repair, maintenance, replacement and reading of any meters measuring
consumption, if applicable. The usage of electricity and gas are currently
separately metered for the Sublease Premises by gas meter number 2209067 and
electric meter number 598001407. Additionally, the usage of domestic and fire
protection water services are currently separately metered for the Sublease
Premises by water meter numbers 88230613 and 28606257. As of the date of
commencement of this Sublease, Subtenant shall assume the accounts corresponding
to these respective meters and pay the respective utility companies promptly for
all charges billed. Subtenant shall be responsible for paying to Sublandlord
84.6% of the sewer charges and any other utility charges attributable to the
Subtenant's usage which are incurred for the Building and the Land within twenty
(20) days of Sublandlord's delivery of a xxxx therefor. Provided Sublandlord
receives payment
from Subtenant as described herein, Sublandlord agrees to pay such sewer and
other utility charges for which it is responsible hereunder for the Building and
Land within the time periods required by the utility companies. Provided
Sublandlord receives payment from Subtenant as described herein, Subtenant shall
not be responsible for any fines or penalties for late payments as a result of
Sublandlord's failure to pay such utility charges in a timely manner. Subtenant
expressly agrees that Sublandlord shall not be responsible for the failure of
supply to Subtenant of any of the aforesaid, or any other utility service.
Sublandlord shall not be responsible for any public or private telephone service
to be installed in the Sublease Premises, particularly conduit if required.
(ii) Subtenant's use of electric energy in the Sublease Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Sublease Premises which is currently 3,000
amps, 480 volt, 3 phase. In order to insure that such capacity is not exceeded
and to avert possible adverse effect upon the Building's electric service,
Subtenant shall not, without Sublandlord's prior consent in each instance,
(which shall not be unreasonably withheld) connect any fixtures, appliances or
equipment to the Building's electric distribution system of the Sublease
Premises existing on the date hereof. Should Sublandlord grant such consent, all
additional risers or other equipment required thereof shall be provided by
Sublandlord and the cost thereof shall be paid by Subtenant to Sublandlord on
demand.
d. Operating Expenses. Modifying Article 6 of the Xxxxxxxxx, Subtenant
shall be responsible for paying only the following amounts for Operating
Expenses (as defined in the Xxxxxxxxx) pursuant to the provisions of this
Sublease:
(i) 84.6% of any Operating Expense payments due by Sublandlord to
Overlandlord pursuant to the Xxxxxxxxx, provided that such charges are not
incurred solely for services or facilities furnished to the Premises demised
under the Xxxxxxxxx other than the Sublease Premises;
(ii) 84.6% of Sublandlord's cost for the provision of the All Risk
Property Insurance in respect of the Building and other improvements on the Land
(except for such insurance described in Article 13.02 of the Xxxxxxxxx which
Subtenant shall be obligated to procure and maintain) and rent insurance as more
particularly described in Article 13.01 of the Xxxxxxxxx.
e. Pro-Rations. In the event that additional rent is due under the
Xxxxxxxxx with respect to any period which includes the Commencement Date or the
date of expiration of the Sublease term, Subtenant's obligations hereunder on
account of such additional rent shall be appropriately pro-rated. The provisions
of this paragraph shall survive termination of this Sublease.
f. Additional Charges under Xxxxxxxxx. Subtenant agrees to pay to
Sublandlord within twenty (20) days of delivery of an invoice therefor 84.6% or
an amount equal to Subtenant's actual usage, if applicable, of any additional
charges that Sublandlord may agree or be obligated, pursuant to the Xxxxxxxxx,
by lease
amendment or otherwise, to pay to Overlandlord, provided such charges are not
incurred solely for services or facilities furnished to portions of the premises
demised under the Xxxxxxxxx other than the Sublease Premises (i.e., do not
discriminate against Subtenant) and, in the reasonable judgment of Sublandlord,
it is not feasible to exclude the Sublease Premises. Any such additional charges
shall be equitably pro-rated with respect to the Sublease Premises.
Notwithstanding anything to the contrary set forth herein, there shall be no
duplicate charges payable by Subtenant pursuant to this Subparagraph and
Subparagraph (d) above.
12. Repairs/Maintenance.
Modifying Article 17 of the Xxxxxxxxx, the exterior areas described in
the third sentence in such Article required to be repaired and maintained by
Subtenant are depicted by outline in red in Exhibit D attached hereto (the
"Exterior Sublease Premises"). The Term "Exterior Common Areas" set forth in
Article 17 of the Xxxxxxxxx for purposes of this Sublease shall mean the
Exterior Sublease Premises and the exterior areas of the premises demised to
Sublandlord pursuant to the Xxxxxxxxx.
As more particularly described in Article 17 of the Xxxxxxxxx,
Subtenant shall be responsible for the prompt removal of snow, ice and rubbish
(including litter) accumulation from the Exterior Sublease Premises. Subtenant
shall obtain a reputable contractor(s) to perform such service which
contractor(s) Subtenant shall advise to Sublandlord. Additionally, at
Sublandlord's election, Subtenant shall require such contractor to provide a
quote for service to the Sublandlord's Exterior Premises (defined hereinafter)
and if satisfactory to Sublandlord, such contractor shall remove snow, ice and
rubbish (including litter) accumulation in the parking areas, sidewalks and
areas immediately surrounding the Building demised to Sublandlord pursuant to
the Xxxxxxxxx excluding the Exterior Sublease Premises (depicted as the area
crosshatched on Exhibit D) (the "Sublandlord's Exterior Premises"). If
Subtenant's contractor provides the services described in this paragraph to both
the Exterior Sublease Premises and the Sublandlord's Exterior Premises, then in
the event that any snow or ice accumulates from Monday 8:00 a.m. to Friday at
6:00 p.m., Subtenant shall be required to contact the contractor to perform such
services for the Exterior Sublease Premises as well as the Sublandlord's
Exterior Premises (the "Snow Contract Areas"). In the event that any snow or ice
accumulates from Friday at 6:01 p.m. to Monday 7:59 a.m., Sublandlord shall be
required to contact the contractor to remove such accumulation from the Snow
Contract Areas. If Sublandlord elects to have Subtenant's contractor provide the
services described in this paragraph, Subtenant shall be required to promptly
pay its contractor for the services described herein and Sublandlord shall be
required to reimburse to the Subtenant its share of the invoices rendered
therefor for the Sublandlord's Exterior Premises.
13. Amendments to Xxxxxxxxx.
Subtenant agrees to be bound, for all purposes of this Sublease, by any
subsequent amendments to the Xxxxxxxxx. Sublandlord agrees not to amend or
modify the Xxxxxxxxx in any way that would discriminate against Subtenant, or
which would
materially affect Subtenant's rights or obligations hereunder or which would
increase Subtenant's Fixed Rent, Fixed Tax Payments or Additional Rent
hereunder. Upon the request of Sublandlord at anytime during the
term of this Sublease, Subtenant agrees to confirm in writing its agreement to
be bound by subsequent amendments to Xxxxxxxxx.
14. Commercial Rent or Occupancy Tax.
If any commercial rent or occupancy tax shall be levied with regard to
the Sublease Premises, Subtenant shall pay the same either to the taxing
authority, or, if appropriate, to Sublandlord, as additional rent, on or before
the due date of such payment. In the event that any such tax payment shall be
made to Sublandlord, Sublandlord shall remit the amount of such payment to the
taxing authority on Subtenant's behalf.
15. Insurance and Indemnity.
a. Notwithstanding anything to the contrary set forth herein and in the
Xxxxxxxxx, Sublandlord shall remain responsible for maintaining the All Risk
insurance in respect of the Building and other improvements on the Land and rent
insurance as more particularly described in the provisions of Article 13.01 of
the Xxxxxxxxx. Subtenant shall be responsible for paying to Sublandlord 84.6% of
such costs pursuant to Article 11 herein within twenty (20) days of a delivery
of an invoice therefor by Sublandlord.
b. All insurance required to be carried by the Subtenant pursuant to
the terms of Article 13.02 of the Xxxxxxxxx, shall name Sublandlord and
Overlandlord and any requested superior Lessor or mortgages as additional
insureds, as their interests may appear. Notwithstanding anything set forth
herein or in the Xxxxxxxxx to the contrary, neither Subtenant nor Sublandlord
shall be liable or responsible for, and each party hereby releases the other
from, all liability and responsibility to the other and any person claiming by,
through or under the other, by way of subrogation or otherwise, for any injury,
loss or damage to any person or property, in or around the Land, or Building or
to the other's business covered by insurance carried or required to be carried
hereunder irrespective of the cause of such injury, loss or damage and each
party shall require its insurers to include in all of such party's insurance
policies which could give rise to a right of subrogation against the other a
clause or endorsement whereby the insurer waives any rights of subrogation
against the other. Subtenant shall deliver a certificate of such insurance to
Sublandlord within one (1) business day prior to taking occupancy of the
Sublease Premises; and certificates of renewal policies shall be delivered at
least thirty (30) days prior to the expiration of the then current policies. If
Subtenant shall fail to obtain and deliver such policies in the manner herein
provided, Sublandlord may, upon three (3) days' prior written notice, obtain
such coverage and charge the cost thereof to Subtenant as Additional Rent
hereunder, to be paid by Subtenant, as and when billed.
c. Subtenant shall indemnify, defend and hold harmless Sublandlord,
Overlandlord and all Superior Lessors and their respective partners, joint
venturers, directors, officers, agents, servants and employees from and against
any and all claims, liabilities, demands, suits, actions, judgments, costs,
damages and recoveries for, or on account of, damage or injury (including
death) to property or persons (collectively "Claims") arising from or in
connection with (1) the conduct or management of the Sublease Premises or of any
business therein, or any work or thing whatsoever done, or any condition created
(other than by Sublandlord) in the Sublease Premises, or the Subtenant's Parking
Area, or the Exterior Sublease Premises, during the Term or during the period of
time, if any, prior to the Commencement Date that subtenant may have been given
access to the Sublease Premises; (2) any act, omission or negligence of
Subtenant or any of its subtenants or licensees or its or their partners, joint
venturers, directors, officers, agents, employees or contractors; (3) any
accident, injury (including death) or damage to persons or property (except to
the extent caused by Sublandlord's negligence) occurring in the Sublease
Premises, the Subtenant's Parking Area, or the Exterior Sublease Premises; and
(4) any breach or default by Subtenant in the full and prompt payment and
performance of Subtenant's obligations under this Sublease and the Xxxxxxxxx,
together with all costs, expenses and liabilities incurred or in connection with
each such Claim brought thereon, including, without limitation, all attorney's
fees and expenses. In the event that any action or proceeding is brought against
Sublandlord, any Superior Lessor, or the Overlandlord and/or its or their
partners, joint venturers, directors, officers, agents, and/or employees by
reason of any such Claim, Subtenant, upon notice from Sublandlord, Superior
Lessor or Overlandlord, shall resist and defend, at Subtenant's own cost and
expense, such action or proceeding by counsel reasonably satisfactory to
Sublandlord. In the event Subtenant fails to defend such a proceeding,
Sublandlord may, at its option, retain counsel of its own choosing and the
reasonable cost thereof (including reasonable disbursements) shall be borne by
Subtenant. Any counsel retained by Subtenant pursuant to this paragraph shall
have no authority to settle, compromise or otherwise resolve any claim against
Sublandlord, any Superior Lessor or Overlandlord without such party's prior
consent, such consent not to be unreasonably withheld or delayed; provided,
however, consent may be withheld in Sublandlord's, Superior Lessor's or
Overlandlord's sole discretion if the settlement, compromise or resolution of
the Claim affects the rights and privileges of Sublandlord, Superior Lessor or
Overlandlord and requires any respective party to pay any sums of money.
d. Subject to the provisions of Paragraphs (a) and (b) above,
Sublandlord shall indemnify, defend and save Subtenant harmless from and against
any and all Claims resulting from (1) the conduct or management of the
Sublandlord's Premises (defined in Paragraph 27 below) or of any business
therein, or any work or thing whatsoever done or any condition created (other
than by Subtenant) in the Sublandlord's Premises during the Term; (2) any
accident, injury (including death) or damage to persons or property (except to
the extent caused by Subtenant's negligence) occuring in the Sublandlord's
Premises, and (3) any act, omission or negligence of Sublandlord or any of its
subtenants or licensees (other than Subtenant) or its or their partners, joint
venturers, directors, officers, agents, employees or contractors. In the event
that any action or proceeding is brought against Subtenant and/or its partners,
joint venturers, directors, officers, agents and/or employees by reason of any
such Claim, Sublandlord, upon notice from Subtenant, shall resist and defend, at
Sublandlord's own cost and expense such action or proceeding by counsel
reasonably
satisfactory to Subtenant. In the event Sublandlord fails to defend such a
proceeding, Subtenant may, at its option, retain counsel of its own choosing and
the reasonable cost thereof (including reasonable disbursements) shall be borne
by Sublandlord. Any counsel retained by Sublandlord pursuant to this paragraph
shall have no authority to settle, compromise or otherwise resolve any claim
against Subtenant, without its prior consent, such consent not to be
unreasonably withheld or delayed; provided, however, consent may be withheld in
Subtenant's sole discretion if the settlement, compromise or resolutions of the
Claim affects the rights and privileges of Subtenant and requires Subtenant to
pay any sums of money.
Subtenant's and Sublandlord's obligations under this Article 15 shall
survive the expiration or other termination of this Sublease.
16. Brokerage.
Sublandlord and Subtenant each represents that it has dealt with no
broker other than Xxxxxxx Xxxxxxxx Company, Inc. (the "Broker") in connection
with this Sublease and Sublandlord agrees to pay the Broker its fee pursuant to
a separate agreement. Each party agrees to indemnify, defend and hold harmless
the other against any claim, including reasonable attorneys' fees by any person
or entity claiming to have dealt with the indemnifying party with respect to
this Sublease. The provisions of this Article 16, shall survive the expiration
or earlier termination of this Sublease.
17. Assignment of Xxxxxxxxx.
The term "Sublandlord" as used in this Sublease means only the tenant
under the Xxxxxxxxx at the time in question, so that if the Xxxxxxxxx is
assigned by the tenant thereunder, the assignor shall be thereupon released and
discharged from all covenants, conditions and agreements of Sublandlord
hereunder accruing from and after the date of such assignment, but such
covenants, conditions and agreements shall be binding on the assignee until
thereafter assigned and, provided, however that such assignee assumes the
obligations of the Sublandlord as set forth herein.
18. Payments.
Notwithstanding anything contained elsewhere herein to the contrary,
unless directed in writing by Sublandlord to make payments directly to
Overlandlord, Subtenant shall make all payments hereunder to Sublandlord. The
due date of each such payment shall be as set forth in this Sublease or if no
due date is set forth herein, twenty (20) business days after Subtenant has
received from Sublandlord a statement for such amounts due.
19. Binding Effect.
The covenants, conditions and agreements contained in this Sublease
shall bind and inure to the benefit of the parties hereto and their respective
legal representatives, successors and assigns (to the extent permitted
hereunder).
20. Modification, Waiver, etc.
No modification or waiver of any of the terms hereof shall be valid or
binding on either party, unless in writing duly executed by both of the parties
hereto. No waiver by either party hereto of any breach hereof or default or
delinquency hereunder by the other and no failure by either party hereto to
require performance or satisfaction of any provision of this Sublease, shall be
deemed a waiver of any subsequent breach, default or delinquency of the same or
similar nature by the other, or as a waiver of the provision itself or of the
full right of the claiming party to require such performance or satisfaction at
any time thereafter. No failure of either party hereto to exercise any right,
privilege, discretion or power given it hereunder, or to insist upon strict
compliance by the other party with any obligation in this Sublease, and no
custom or practice of either party hereto (or otherwise) at variance with the
terms hereof shall constitute a waiver or modification of its right to demand
exact compliance with the terms hereof.
21. Right of Sublandlord to Perform Subtenant's Covenants, etc.
If Subtenant shall have defaulted in the observance or performance of
any term or covenant on Subtenant's part to be observed or performed under or by
virtue of any of the terms or provisions of this Sublease, then, unless
otherwise provided elsewhere in this Sublease, if, after notice of default,
Subtenant has not itself cured the default at least three (3) days prior to the
date that Overlandlord has the right to cure such default under Article 25 of
the Xxxxxxxxx, then Sublandlord may at any time thereafter and without further
notice perform the same for the account of Subtenant, and if Sublandlord makes
any expenditures or incurs any obligations for the payment of money in
connection therewith including, but not limited to, reasonable attorneys' fees
in instituting, prosecuting or defending any action or proceeding, such sums
paid or obligations incurred with interest and costs shall be deemed to be
additional rent hereunder and shall be paid by Subtenant to Sublandlord within
five (5) days of rendition of any xxxx or statement to Subtenant therefor.
22. Acceptance of Rent; Surrender.
The receipt by Sublandlord of rent with knowledge of the breach of any
covenant of this Sublease shall not be deemed a waiver of such breach and no
provision of this Sublease shall be deemed to have been waived by Sublandlord
unless such waiver is in writing signed by Sublandlord. No payment by Subtenant
or receipt by Sublandlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement of any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Sublandlord may accept such check or payment without prejudice
to Sublandlord's right to recover the balance of such rent or pursue any other
remedy provided in this Sublease. No act or thing done by Sublandlord or
Sublandlord's agents during the term hereof shall be deemed an acceptance of a
surrender of the Sublease Premises and no agreement to accept such surrender
shall be valid unless in writing signed by Sublandlord. No employee of
Sublandlord or Sublandlord's agent shall have any power to accept the keys to
the Sublease Premises prior to the termination of this Sublease, and the
delivery of keys to any such agent or employee shall not operate as a
termination of this Sublease or a surrender of the Sublease Premises.
23. Waiver of Jury Trial; Counterclaims.
It is agreed by Sublandlord and Subtenant that they shall and hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of them against the other (except for personal injury or property damage) on any
matter whatsoever arising out of or in any way connected with this Sublease, the
relationship of Sublandlord and Subtenant, Subtenant's use or occupancy of the
Sublease Premises, and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event Sublandlord commences any summary
proceeding, Subtenant will not interpose any counterclaim of whatever nature or
description in any such proceeding, except for any counterclaim which would by
virtue of not being interposed by Subtenant in any such proceeding, be deemed
permanently waived in any other or future action or proceeding.
24. At End of Term.
Upon the expiration or sooner termination of the Term, Subtenant shall
vacate and surrender the Sublease Premises in broom-clean condition, restore the
Sublease Premises as may be required under the provisions of the Xxxxxxxxx as
herein incorporated including, without limitation, removing the shelving and
furniture transferred to Subtenant at the commencement of this Sublease and
repair any damage to the Sublease Premises caused by any permitted removal
therefrom except for ordinary wear and tear and such damage or destruction as
Overlandlord is required to repair or restore under the provisions of the
Xxxxxxxxx.
25. Notices.
Any notice or demand which under the terms of this Sublease or under
any statute must or may be given or made by the parties hereto, shall be in
writing, and shall only be effective if given or made by personal delivery or
recognized overnight courier, delivery receipt requested, or by mailing the same
by registered or certified mail, return receipt requested, postage prepaid,
addressed to the parties at the following addresses:
If to Sublandlord: Liz Claiborne Accessories, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Legal Department
If to Subtenant: Xxxxxxx Xxxx Productions, Inc.
00 Xxxxx Xxx
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
with a copy to: Xxxxxxx Xxxx Productions
00 Xxxxx Xxx
Xxxxxxxx, XX 00000
Attn: General Counsel
After the Commencement Date any notices delivered to Subtenant shall be
addressed to the Sublease Premises. Either party, however, may designate in
writing such new or other address to which such notice or demand shall
thereafter be so given, made or mailed. Any notice given hereunder shall only be
deemed delivered three (3) days after being deposited in a post office or
earlier, as noted on a signed delivery receipt, maintained by the United States
Government, enclosed in a registered or certified prepaid wrapper addressed as
hereinbefore provided, or when hand delivered or upon the next business day when
delivered by recognized overnight courier (as evidenced by a delivery receipt).
26. Miscellaneous.
This Sublease is made in the State of New Jersey and shall be governed
by and construed under the laws thereof. The headings in this Sublease are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Sublease shall not be binding upon Sublandlord for any purpose
whatsoever unless and until Sublandlord has delivered to Subtenant a fully
executed copy hereof.
27. Access to Sublease Premises and Reservation by Sublandlord.
Sublandlord, Sublandlord's agents, employees and contractors,
Overlandlord and Overlandlord's agents, employees and contractor shall have the
right to enter the Sublease Premises (in an emergency at any time without prior
notice), during reasonable business hours, upon reasonable notice to obtain
access to Sublandlord's Premises (defined below), Sublandlord's cable and other
wiring associated with its telephone and data communications services and to
examine the Sublease Premises and to make such repairs, replacements,
improvements and alterations as Sublandlord or Overlandlord may be required to
make hereunder or pursuant to the provisions of the Xxxxxxxxx and to enforce its
rights herein.
Sublandlord reserves the right to place, maintain, repair and replace
such telephone and data communications cables and wiring in and through the
Sublease Premises as is necessary to service Sublandlord's business. Such cables
and wiring shall not unreasonably interfere with Subtenant's operations in the
Sublease Premises.
For purposes of this Sublease, "Sublandlord's Premises" shall be deemed
those portions of the Building and Land demised to and permitted to be used by
Sublandlord under the Xxxxxxxxx which Subtenant is not demising hereunder or
exclusively using pursuant to the terms hereof.
28. Status of Landlord/Tenant Under Xxxxxxxxx.
Sublandlord hereby represents to Subtenant that to its knowledge, as of
the date hereof, (a) the Xxxxxxxxx is in full force and effect subject to the
bankruptcy laws and other equitable remedies, (b) it, as the tenant under the
Xxxxxxxxx, is not in violation of any of the terms or provisions of the
Xxxxxxxxx, and (c) the Overlandlord, as the Landlord under the Xxxxxxxxx, is not
in violation of any of the terms or provisions of the Xxxxxxxxx.
29. Overlandlord Consent/HMDC Approval.
This Sublease is conditional upon (i) the approval of the Overlandlord,
and (ii) the approval of and issuance of an occupancy certificate by the
Hackensack Meadowland Development Commission (HMDC). Sublandlord shall use its
reasonable efforts to obtain the Overlandlord's consent which shall not include
any obligation to institute legal proceedings or the payment of any monetary
sum. Subtenant shall submit the required application and fee to the HMDC and
Subtenant shall be required to promptly complete all information necessary for
such application. In addition the Subtenant shall be required to obtain any
applicable approvals and/or any occupancy certificates from the Town of
Secaucus. In the event that the approvals set forth in subparagraphs (i) and
(ii) are not received within ninety (90) days after the execution date hereof
either party has the right to terminate this Sublease upon ten (10) days prior
written notice to the other. In the event of termination pursuant to the
provisions of this paragraph, title to the furniture and shelving described in
Paragraph 7 above shall revert to Sublandlord. Sublandlord shall return the
Fixed Rent and Fixed Tax Payment for the first month of the term of this lease
paid by Subtenant upon the execution hereof within five (5) days of such
termination.
30. Quiet Enjoyment.
Sublandlord covenants and agrees with Subtenant that upon Subtenant's
paying the Fixed Rent, the Fixed Tax Payment, Additional Tax Payment and
additional rent in accordance with the terms of this Sublease and observing and
performing all the terms, covenants and conditions on Subtenant's part to be
observed and performed under the Sublease and the Xxxxxxxxx. Subtenant may
peaceably and quietly enjoy the Sublease Premises subject, nevertheless, to the
terms and conditions of this Sublease, and the Xxxxxxxxx and to the matters to
which the Sublease or the Xxxxxxxxx is or shall be subordinate.
31. Hazardous Materials.
Sublandlord hereby represents that to its knowledge, Sublandlord has
not placed or stored materials, substances or waste including, without
limitation, asbestos, deemed hazardous, dangerous, toxic or a pollutant pursuant
to Applicable Environmental Laws (defined below) (collectively "Hazardous
Waste"), on, in or about the Sublease Premises in violation of applicable
federal, state or local laws, rules and regulations ("Applicable Environmental
Laws"). Sublandlord and Subtenant agree that neither shall cause or permit to be
brought upon, released, stored, treated, disposed of, generated or used in, on
or about the Building, the Sublease Premises or the Land, any Hazardous Waste in
violation of Applicable Environmental Laws except such deminimus quantities
normally used in the operation of their respective businesses provided same is
in compliance with all Applicable Environmental Laws. Subtenant shall promptly
notify Sublandlord of any activity or operation to be conducted by Subtenant at
the Sublease Premises which involves the use, release, handling, generation,
treatment, storage or disposal of any Hazardous Waste.
If at any time any Hazardous Waste is found in or on the Building, the
Sublease Premises or the Land which was caused by or is the result of actions of
Sublandlord, Sublandlord at its sole cost and expense, shall remediate same to
the extent required by and in accordance with all Applicable Environmental Laws.
Sublandlord shall indemnify, defend and hold harmless Subtenant its officers,
directors, agents and employees from and against all claims, obligations,
demands, actions, proceedings, judgments, loss, damages, liability and all costs
(including reasonable attorney fees) that Subtenant may sustain or incur as a
result of or on account of the noncompliance of the Sublease Premises with
Applicable Environmental Laws caused by Sublandlord's actions.
If at any time any Hazardous Waste is found on the Sublease Premises,
the Building or the Land, which was caused by or is the result of the actions of
Subtenant, Subtenant, at its sole cost and expense, shall promptly remove same
in accordance with all Applicable Environmental Laws and shall indemnify and
hold harmless Sublandlord, its officers, directors, agents and employees from
and against all claims, obligations, demands, actions, proceedings and
judgments, loss, damages and liability and any and all costs (including
reasonable attorneys fees) which may be imposed or which Sublandlord may incur
as a result of or on account of the noncompliance of the Sublease Premises with
Applicable Environmental Laws caused by the actions of Subtenant, its employees,
agents or contractors or the use, treatment, generation, production,
manufacture, storage, sale or release or disposal of Hazardous Waste on the
Sublease Premises on or after the Subtenant's possession of the Premises or the
breach of the covenants contained herein.
Notwithstanding anything set forth herein to the contrary, Subtenant
shall not be obligated to remove or remediate any Hazardous Waste found on the
Sublease Premises, the Building, or the Land which existed prior to its
possession of the Sublease Premises.
It is Sublandlord's understanding that the Overlandlord removed one
10,000 gallon No. 2 heating oil underground storage tank the ("UST") from the
Land on or about 1988. Sublandlord makes no representations with respect to such
UST. Without limiting the immediately preceding sentence, Sublandlord makes no
representations with respect to the UST removal procedure, any remediation which
Overlandlord may have performed or the condition of the area surrounding the
previous location of the UST.
The provisions of this Paragraph 31 shall survive the expiration or
earlier termination of this Sublease.
IN WITNESS WHEREOF, Sublandlord and Subtenant have duly executed this
Sublease as of the day and year first written above.
SUBLANDLORD:
Liz Claiborne Accessories, Inc.
By: _____________________________
Title: Vice President General Counsel
SUBTENANT:
Xxxxxxx Xxxx Productions, Inc.
By:
Title:
EXHIBIT A
Depiction of the Sublease Premises and Sublandlord's and Subtenant's Parking
Spaces and Access Driveways to Sublease Premises
EXHIBIT B
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EXHIBIT C
Workletter/Inventory of Furniture
Sublandlord shall complete the following work in the Sublease Premises by
September 1, 1996:
(i) Sublandlord shall paint and carpet the office area including
repairing all baseboards and plastering all holes in the walls
(depicted in the Exhibit C-1 attached hereto) at a cost not to
exceed $80,000.
(ii) Sublandlord shall deliver to HVAC system, sprinkler system,
electrical system, plumbing and mechanical systems for the
Sublease Premises in working order.
(iii) Replace water damaged ceiling tiles;
(iv) Repair floor in kitchen area; and
(v) Repair floor in bathroom area.
EXHIBIT C-1
Outline of Office Area to be Painted and Carpeted
EXHIBIT C-2
Inventory of Furniture and Shelving
EXHIBIT D
Depiction of Exterior Area that Subtenant is Required to Repair and Maintain
