AGREEMENT OF SUBLEASE
BETWEEN
COMPUTER OUTSOURCING SERVICES, INC.
AS
SUBLESSOR
AND
RSL COM U.S.A., INC.
AS SUBTENANT
DATED AS OF JULY, 1998
AGREEMENT OF SUBLEASE
---------------------
THIS AGREEMENT (hereinafter referred to as the "Sublease") dated
as of the day of July, 1998, by and between COMPUTER OUTSOURCING
SERVICES, INC., a New York corporation, having an office at 000 Xxxx
00xx Xxxxxx, 00 Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as the "Sublessor"), and RSL COM U.S.A, INC., a
Delaware corporation, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter referred to as the "Subtenant").
W I T N E S S E T H :
WHEREAS, Sublessor is the tenant under a certain agreement of
lease dated as of January 24, 1991, as amended, between Sublessor and
G-H-G Realty Company ("Landlord"), as landlord ("Xxxxxxxxx"), covering a
portion of the basement, a portion of the Tenth (10th) Floor and the
entire Eleventh (11th) Floor ("Overleased Premises") at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Building");
WHEREAS, the Xxxxxxxxx covers the Overleased Premises in the
Building, upon and subject to the terms and conditions more particularly
set forth in the Xxxxxxxxx; and
WHEREAS, Subtenant desires to sublet from Sublessor the entire
Eleventh (11th) Floor of the Overleased Premises, consisting of
approximately 22,300 rentable square feet and part of the Tenth (10th)
floor of the Overleased Premises, consisting of approximately 9,200
rentable square feet (hereinafter referred to as the "Demised
Premises"), and Sublessor desires to sublet the same to Subtenant.
NOW, THEREFORE, in consideration of the mutual obligations of
the parties hereto, the parties for themselves, their successors and
assigns, hereby covenant and agree, as follows:
1. SUBLEASED PREMISES.
Sublessor hereby subleases to Subtenant and Subtenant
hereby hires from Sublessor the Demised Premises. The premises subleased
to Subtenant, together with all appurtenances, fixtures, improvements,
additions and other property attached thereto or installed therein at
the commencement of, or at any time during, the term of this Sublease,
are hereinafter collectively referred to as the "Subleased Premises."
Page 1 of 28
2. TERM.
a. The Subleased Premises are subleased for a term
(hereinafter referred to as the "Term") of approximately ten years, five
months, to commence on 60 days from receipt by the parties hereto of
Landlord's Consent (defined hereinafter) (said date is hereinafter
referred to as the "Commencement Date") and to expire on December 30,
2008 (hereinafter referred to as the "Expiration Date"), or on such
earlier date upon which said term may expire or be canceled or
terminated pursuant to the provisions of Section 16 hereof, or such
other date upon which said term may expire or be canceled or terminated
pursuant to the other provisions of this Sublease or pursuant to law,
upon and subject to the covenants, agreements, terms and conditions
herein contained.
b. In the event that the Subleased Premises are not
surrendered by Subtenant upon the termination of this Sublease for any
reason whatsoever other than Sublessor's default, Subtenant hereby
indemnifies, holds harmless and agrees to defend Sublessor (including
paying Sublessor's reasonable counsel fees and disbursements) against
any and all liabilities resulting from delay by Subtenant in so
surrendering the Subleased Premises, including any claims made by any
succeeding tenant or prospective tenant founded upon such delay. In
addition to, and not in limitation of, the provisions set forth in the
immediately preceding sentence, in the event that Subtenant shall hold
over after the Expiration Date, Subtenant shall pay the rental due for
any such period under this Sublease, except that, in the event Subtenant
shall hold over for a period in excess of fifteen (15) days, Subtenant
shall pay a rental for each day Subtenant shall hold over in an amount
equal to two times the total gross rent and any penalties or other
charges due and payable by Sublessor pursuant to the Xxxxxxxxx on a pro
rated daily basis as of the last day of the term of this Sublease;
provided, however, that the preceding provisions set forth in this
sentence shall not apply to any period during which Subtenant is holding
over due solely to events of "force majeure" (as such term is
hereinafter defined); during any period in which Subtenant is holding
over due solely to events of force majeure, Subtenant shall pay a rental
for each such day in an amount equal to the rent due and payable on a
pro rated daily basis as of the last day of the term of this Sublease.
As used in this Sublease, the term "force majeure" shall mean the
following causes beyond Sublessor's or Subtenant's, as the case may be,
reasonable control: legal or governmental restrictions, regulations or
controls, labor disputes, mechanical breakdowns, inability to obtain
fuel, steam, water, electricity or materials through ordinary sources,
acts of God, enemy action, civil commotion, fire or other casualty.
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3. FAILURE TO GIVE POSSESSION.
In the event possession of the Subleased Premises is not
delivered by Sublandlord to Subtenant on or prior to the Commencement
Date, Sublandlord agrees to credit Subtenant's Base Rent when payable
hereunder in the amount of $3,750.00 per week or $541.67 per day, as the
case may be, until possession is delivered ("Delay Credit"). In the
event that with the consent of the Subtenant possession of part but not
all the Subleased Premises is delivered to Subtenant prior to the
remainder of the Subleased Premises, the Delay Credit shall be adjusted
pro rata based on the amount of square footage delivered for possession
and the amount remaining. Notwithstanding anything to the contrary
stated herein, in the event all of the Subleased Premises is not
delivered by 120 days after receipt of the Landlord's Consent, Subtenant
shall be entitled by written notice to Sublandlord to cancel this
Sublease and receive the Delay Credit from Sublandlord in certified or
wired funds. Subtenant shall also be entitled to cancel this Sublease by
written notice to Sublandlord if Sublandlord has not delivered all of
the Subleased Premises to Subtenant by 150 days after receipt of the
Landlord's Consent; in such event Sublandlord shall pay the Delay Credit
and an additional $55,000.00 to Subtenant by certified check or wired
funds. Sublandlord shall only be entitled to remain in the Subleased
Premises at such time if Sublandlord must do so for the good faith
conduct of Sublandlord's business operations.
4. XXXXXXXXX.
a. Annexed hereto as Exhibit A is a copy of the Xxxxxxxxx,
the terms and provisions of which, except as otherwise herein provided,
are hereby incorporated in and made a part hereof.
b. This Sublease is subject and subordinate to the
Xxxxxxxxx and to all amendments thereof heretofore and hereafter entered
into and to any termination caused by Sublessor's default thereof in
accordance with its terms and to all matters to which the Xxxxxxxxx is
or shall be subordinate and to the consent of the Landlord in accordance
with the terms of the Xxxxxxxxx. No amendment hereafter entered into by
Sublessor and Landlord will have any adverse effect on the rights or
obligations of Subtenant hereunder. Promptly after the execution of any
amendment of the Xxxxxxxxx, Sublessor shall mail a copy thereof to
Subtenant.
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c. Subtenant covenants and agrees: (i) to perform and
observe all of the terms, covenants, conditions and agreements of the
Xxxxxxxxx on the part of Sublessor to be performed thereunder relating
to the Subleased Premises (other than the covenant to pay Base Rent and
Additional Rent and such other covenants that are to remain the
obligation of Sublessor hereunder) arising after the date hereof to the
extent that the same are not modified or amended by this Sublease; (ii)
not to do or not to suffer any act or thing to be done on, or with
respect to, the Subleased Premises which would constitute a default
under the Xxxxxxxxx or would cause the Xxxxxxxxx to be canceled,
terminated or forfeited by virtue of any rights of cancellation,
termination or forfeiture reserved or vested in Landlord under the
Xxxxxxxxx; and (iii) to indemnify, hold harmless and defend Sublessor
(including the payment of Sublessor's reasonable counsel fees and
disbursements) from and against any and all claims, liabilities, losses
and damages of any kind whatsoever that Sublessor may incur by reason
of, resulting from or arising out of any such cancellation, termination
or forfeiture.
d. Sublessor represents that as of the date hereof the
Xxxxxxxxx is in full force and effect. Sublessor represents that
Sublessor has not received as of the date hereof any notice of default
from the Landlord under the Xxxxxxxxx and has not, to the best of its
knowledge, done or suffered or caused to be done any acts which would
result in any cancellation, forfeiture, or termination of the Xxxxxxxxx.
Sublessor covenants that all rent and additional rent has been or will
be paid through the Commencement Date and thereafter on a timely basis,
and that Sublessor's interest in the Xxxxxxxxx is unencumbered.
e. To the extent that any provisions of the Xxxxxxxxx may
conflict or be inconsistent with the provisions of any Section of this
Sublease, whether or not such inconsistency is expressly noted herein,
the provisions of such Section of this Sublease shall prevail, provided,
however, that in no event shall any greater rights as against the
Landlord be conferred upon Subtenant hereunder than are conferred upon
Sublessor pursuant to the Xxxxxxxxx. Furthermore, it is understood that,
pursuant to the terms of the Xxxxxxxxx, certain work, services and
repairs to be furnished or made thereunder may in fact be furnished or
made by Landlord and not by Sublessor. Sublessor shall in no event be
liable to Subtenant nor shall the obligations of Subtenant hereunder be
impaired or the performance thereof excused because of any failure or
delay on the part of the Landlord in furnishing any such work or
services or in making any of such repairs. However, if the Landlord
shall default in any of Landlord's obligations to Sublessor with respect
to this Subleased Premises, Subtenant shall be entitled to participate,
at its own expense, with Sublessor in the enforcement of the rights
which Sublessor may have against Landlord, and Sublessor shall, at the
request of Subtenant, cooperate promptly and diligently with Subtenant,
including joining in any action or proceeding if necessary, to enforce
the rights of Subtenant, provided that Subtenant shall
Page 4 of 28
pay or reimburse Sublessor for all costs and expenses incurred by
Sublessor in any such action or proceeding and shall indemnify, hold
harmless and defend Sublessor (including the payment of Sublessor's
reasonable counsel fees and disbursements) from any liability arising
from the taking of any such action at the request of Subtenant. In the
event Sublessor fails so to cooperate with Subtenant, Subtenant may act
in Sublessor's name to enforce its rights as aforesaid.
f. In the event of termination, re-entry or dispossess by
Landlord under the Xxxxxxxxx, unless the Landlord shall otherwise
provide, this Sublease shall automatically cease and terminate subject
to the foregoing. Landlord may, at its option, take over all of the
right, title and interest of Sublessor hereunder in and to the Subleased
Premises, and Subtenant shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of this Sublease, except that
Landlord shall not: (i) be liable for any previous act or omission of
Sublessor hereunder; (ii) be subject to any offset not expressly
provided in this Sublease which theretofore accrued to Subtenant against
Sublessor; or (iii) be bound by any previous modification of this
Sublease or by any previous prepayment of more than one (1) month's Base
Rent (as hereinafter defined), if any. If this Sublease is terminated or
if Landlord takes over Sublessor's interest hereunder by reason of
default under the Xxxxxxxxx which was not caused by a default of
Subtenant under this Sublease, then such termination or taking- over
shall not release Sublessor from liability to Subtenant hereunder.
5. INSURANCE; INDEMNIFICATION AND HOLD HARMLESS.
a. Subtenant covenants to provide on or before the
Commencement Date and to keep in force during the term of this Sublease
at its own cost and expense, the insurance coverage required to be
provided in paragraph 9 of the Xxxxxxxxx and the following insurance
coverage:
(i) A standard comprehensive policy of liability
insurance naming Sublessor and Landlord as additional insureds, as their
interest may appear, and protecting Sublessor, Landlord and Subtenant
against liability occasioned by accident on or about the Subleased
Premises or any appurtenances thereto. Such policy is to be written by
good and solvent insurance companies authorized to do business in the
State of New York and the limits of liability thereunder shall not be
less than the amount of Five Million ($5,000,000.00) Dollars in respect
of any one person, in the amount of Five Million ($5,000,000.00) Dollars
in respect of any one accident, and in the amount of Five Million
($5,000,000.00) Dollars in respect of property damages. Such insurance
may be carried under a blanket policy covering the Subleased Premises
and other locations of Subtenant, if any, provided that the protection
to be provided to Sublessor pursuant to this subsection shall not be
diminished by virtue of such blanket policy or the joinder of other
parties as insureds thereunder; and
Page 5 of 28
(ii) Workers' compensation insurance providing
statutory New York State benefits in connection with any work done on or
about the Subleased Premises by or at the direction of Subtenant.
b. All policies of insurance required hereunder shall
contain an endorsement or other provision pursuant to which such
insurance may not be modified or canceled, nor the amount thereof
reduced, except upon at least fifteen (15) days' prior notice to
Sublessor.
c. Subtenant shall not carry separate or additional
insurance concurrent in form or contributing in the event of any loss or
damage with any insurance required to be obtained by Subtenant under
this Sublease if the effect of such insurance would be to reduce the
protection or the payment to be made under the insurance required
hereunder, unless Sublessor is included as an insured thereunder.
Subject to the foregoing, Subtenant shall be permitted to carry separate
insurance on its furnishings, furniture, and equipment in the Subleased
Premises.
d. Prior to the time any insurance specified in this
Section is first required to be carried by Subtenant and thereafter, at
least fifteen (15) days prior to the expiration of any such policies,
Subtenant agrees to deliver to Sublessor either copies of the aforesaid
policies or certificates evidencing such insurance, provided that any
such certificate shall contain an endorsement that such insurance may
not be modified or canceled, nor the amount thereof reduced, except upon
the prior notice required under Section (b) of this Section 5.
e. (i) Sublessor and Subtenant shall each endeavor to
secure an appropriate clause in, or an endorsement upon, each fire or
extended coverage policy obtained by it and covering the Building, the
Subleased Premises or the personal property, fixtures and equipment
located therein or thereon, pursuant to which the respective insurance
companies waive subrogation or permit the insured, prior to any loss, to
agree with a third party to waive any claim it might have against said
third party. The waiver of subrogation or permission for waiver of any
claim hereinbefore referred to shall extend to the agents of each party
and its employees and, in the case of Subtenant, shall also extend to
all other persons and entities occupying or using the Subleased Premises
in accordance with the terms of this Sublease. If and to the extent that
such waiver or permission can be obtained only upon payment of an
additional charge then, except as provided in clauses (ii) and (iii) of
this Section 5(e), the party benefiting from the waiver or permission
shall pay such charge upon demand, or shall be deemed to have agreed
that the party obtaining the insurance coverage in question shall be
free of any further obligations under the provisions hereof relating to
such waiver or permission.
Page 6 of 28
(ii) In the event that Sublessor shall be unable at
any time to obtain one of the provisions referred to above in any of its
insurance policies, Sublessor shall notify Subtenant thereof (and
include in such notice the amount of the additional premium, if any,
imposed for the inclusion of Subtenant as an insured party), and, at
Subtenant's option, Sublessor shall cause Subtenant to be named in such
policy or policies as one of the insureds, but if any additional premium
shall be imposed for the inclusion of Subtenant as such as an insured,
Subtenant shall pay such additional premium upon demand, or Sublessor
shall be excused from its obligations under this Section 5(e) with
respect to the insurance policy or policies for which such additional
premiums would be imposed. In the event that Subtenant shall have been
named as one of the insureds in any of Sublessor's policies in
accordance with the foregoing, Subtenant shall endorse promptly to the
order of Sublessor, without recourse, any check, draft or order for the
payment of money representing the proceeds of any such policy or any
other payment growing out of or connected with said policy, and
Subtenant hereby irrevocably waives any and all rights in and to such
proceeds and payment.
(iii) In the event that Subtenant shall be unable at
any time to obtain one of the provisions referred to above in any of its
insurance policies, Subtenant shall notify Sublessor thereof (and
include in such notice the additional premium, if any, imposed for the
inclusion of Sublessor as an insured party) and, at Sublessor's option,
Subtenant shall cause Sublessor to be named in such policy or policies
as one of the insureds, but if any additional premium shall be imposed
for the inclusion of Sublessor as an insured, Sublessor shall pay such
additional premium upon demand or Subtenant shall be excused from its
obligations under this Section 5(e) with respect to the insurance policy
or policies for which such additional premiums would be imposed. In the
event that Sublessor shall have been named as one of the insureds in any
Subtenant's policies in accordance with the foregoing, Sublessor shall
endorse promptly to the order of Subtenant, without recourse, any check,
draft or order for the payment of money representing the proceeds of any
such policy or any other payment growing out of or connected with said
policy and Sublessor hereby irrevocably waives any and all rights in and
to such proceeds and payment.
f. If, by reason of a failure of Subtenant to comply with
the provisions of Section 5(g) or Section 11 hereof, Sublessor is
required pursuant to the Xxxxxxxxx to pay to or reimburse Landlord for
all or any portion of any increased premiums for fire insurance and
extended coverage, Sublessor shall notify Subtenant thereof and
Subtenant shall reimburse Sublessor, on demand, for that portion of such
Sublessor's payment or reimbursement occasioned because of such failure
on the part of Subtenant.
Page 7 of 28
g. Subtenant shall not violate, or permit the violation of,
any condition imposed by the standard fire insurance policy then issued
for office buildings in the Borough of Manhattan, City of New York, and
shall not do, or permit anything to be done, or keep or permit anything
to be kept in the Subleased Premises in violation of this Sublease or
the Xxxxxxxxx which would subject Landlord or Sublessor to any liability
or responsibility for personal injury or death or property damage, or
which would increase the fire or other casualty insurance rate on the
Building or the property therein over the rate which would otherwise
then be in effect or which would result in insurance companies of good
standing refusing to insure the Building or any of such property in
amounts reasonably satisfactory to Landlord and Sublessor.
h. In addition to the foregoing, upon failure of Subtenant
to procure, maintain or place such insurance and pay all premiums and
charges therefor, Sublessor may, upon fifteen (15) days' notice to
Subtenant, do so (but shall not be obligated to do so) and in such event
Subtenant agrees to pay the amount therefor, plus interest at the
Interest Rate (as such term is defined in Section 8(e) hereof), from the
date of such payment by Sublessor until payment in full by Subtenant, to
Sublessor on demand, as Additional Rent as hereinafter defined.
Notwithstanding the foregoing, if Subtenant shall fail to keep in force
and effect the insurance substantially as hereinabove set forth, then
Subtenant shall indemnify, save harmless and defend Landlord and
Sublessor (including the payment of Landlord's and Sublessor's counsel
fees and disbursements) from and against any and all liability and
damages, and from and against any and all suits, claims and demands of
every kind and nature, including reasonable attorneys' fees by or on
behalf of any person, firm, association or corporation arising out of or
based upon any accident, injury or damage, however occurring, which
shall or may happen in, on, at or about the Subleased Premises, and from
and against any matter or thing arising out of the condition,
maintenance, repair, alteration, use, occupation, or operation of the
Subleased Premises, except to the extent the same shall have been caused
by the negligent acts or omissions of Sublessor, its employees or
agents.
Page 8 of 28
6. ASSIGNMENT AND SUBLETTING.
a. Subtenant shall not assign this Sublease or Subtenant's
rights in and to the Subleased Premises or sublet all or any part of the
Subleased Premises without consent of the Overlandlord pursuant to the
Xxxxxxxxx. If this Sublease is assigned or if the Subleased Premises or
any part thereof is underlet or occupied by anyone other than the
Subtenant, Sublessor may collect rent from the assignee, undertenant or
occupant and apply the net amount collected to the rents herein
reserved, but no such assignment, underletting, occupancy or collection
shall be deemed a waiver of this covenant or the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Subtenant
from the further performance or observance by Subtenant of the covenants
herein contained. The consent to an assignment or underletting shall not
in anyway be construed to relieve Subtenant (or any assignee or
undertenant) from obtaining the express written consent of Sublessor to
any further assignment or underletting. Notwithstanding any assignment
or sublease which shall have been consented to by Sublessor, Subtenant
shall remain primarily liable on this Sublease and shall not be released
from performing and observing any of the terms, covenants and conditions
of this Sublease.
b. Any transfer of a 50% or greater interest in Subtenant
(whether stock, partnership interest or otherwise) shall be deemed to be
an assignment of this Sublease.
c. Every assignment hereunder is subject to the express
condition, and by accepting an assignment hereunder each assignee shall
be conclusively deemed to have agreed, that if this Sublease should be
terminated prior to the expiration date or if Sublessor should succeed
to Subtenant's estate in the Subleased Premises, then at Sublessor's
election, the assignee shall attorn to and recognize Sublessor as the
assignee's landlord and the assignee shall promptly execute and deliver
any instrument Sublessor may reasonably request to evidence such
attornment.
d. Subtenant shall furnish Sublessor with an executed
counterpart of any assignment made hereunder within ten (10) days after
the date of its execution. Subtenant shall remain fully liable for the
performance of all of Subtenant's obligations hereunder notwithstanding
any assignment provided for herein, and without limiting the generality
of the foregoing, shall remain fully responsible and liable to Sublessor
for all acts and omissions of any assignee or anyone claiming by,
through or under any assignee which shall be in violation of any of the
obligations of this Sublease and any such violation shall be deemed to
be a violation by Subtenant.
Page 9 of 28
e. Notwithstanding any assignment and assumption by the
assignee of the obligations of Subtenant hereunder, Subtenant herein
named, and each immediate or remote successor in interest of Subtenant
herein named, and any guarantor of this Sublease, shall remain liable
jointly and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Subtenant's obligations
hereunder, and, without limiting the generality of the foregoing, shall
remain fully and directly responsible and liable to Sublessor for all
acts and omissions on the part of any assignee subsequent to it in
violation of any of the obligations of this Sublease.
f. Notwithstanding anything to the contrary hereinabove set
forth, no assignment of this Sublease shall be binding upon Sublessor
unless the assignee shall execute and deliver to Sublessor an agreement,
whereby such assignee agrees, unconditionally, to be personally bound by
and to perform all of the obligations of Subtenant hereunder and further
expressly agrees that notwithstanding such assignment the provisions of
this Article shall continue to be binding upon such assignee with
respect to all future assignments and transfers. A failure or refusal of
such assignee to execute or deliver such an agreement shall not release
the assignee from its liability for the obligations of Subtenant
hereunder assumed by acceptance of the assignment of this Sublease.
g. If Sublessor shall decline to give its consent to any
proposed assignment, Subtenant shall indemnify, defend and hold harmless
Sublessor against and from any and all loss, liability, damages, costs
and expenses (including reasonable legal fees and disbursements)
resulting from any claims that may be made against Sublessor by the
proposed assignee or by any brokers or other persons claiming a
commission or similar compensation in connection with the proposed
assignment.
h. In the event that (i) Sublessor fails to exercise any of
its options under this Section and (ii) Subtenant fails to execute and
deliver the assignment or sublease to which Sublessor consented within
sixty (60) days after the giving of such consent, then, Subtenant shall
again comply with all of the provisions and conditions of this Section
before assigning this Sublease.
i. The consent by Sublessor to an assignment or to a
subletting shall not relieve Subtenant (or any successor thereto) from
obtaining the express written consent of Sublessor to any further
assignment or subletting.
7. USE AND OCCUPANCY.
Subtenant covenants and agrees to use the Subleased Premises
only for the uses permitted in the Xxxxxxxxx and for no other purpose.
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8. ANNUAL BASE RENT AND PAYMENT DATES.
a. Six months after the later of
(i) Commencement Date or delivery of the Subleased
Premises to Subtenant ("Free Rent Period") -
12/31/2001 $472,500 per annum
In the event a portion of the Subleased Premises is
delivered for Subtenant's possession prior to the
delivery of the remainder of the Subleased Premises
for Subtenant's possession, the Free Rent Period shall
be adjusted pro rata to reflect such staggered
delivery. Solely by way of example, if possession of
the 10th Floor is delivered to Subtenant 60 days after
receipt of Landlord's Consent while possession of the
11th Floor is delivered to Subtenant 90 days
thereafter, the Free Rent period shall expire for the
10th Floor eight months from said receipt and the 11th
Floor nine months from said receipt.
1/1/2002 - 12/31/2005 $535,500 per annum
1/1/2006 - 13/31/2008 $598,500 per annum
b. Subtenant shall pay to Sublessor the Base Rent in equal
monthly installments in advance on the first day of each and every
calendar month, commencing as stated in paragraph 8(a)(i) above. If the
Expiration Date occurs on a date other than the last day of a calendar
month, the Base Rent for such calendar month shall be pro rated.
c. (i) In addition to the Base Rent, Subtenant shall pay to
Sublessor, as additional rent (hereinafter referred to as "Additional
Rent"), without limitation or exception, all other sums of money as the
same shall become due and payable by Subtenant under this Sublease and
any specific Landlord charges imposed on Subtenant which may or may not
be billed to Sublessor (e.g. - overtime service charges).
(ii) In addition to the Base Rent and all other sums
specified herein, and as part of the total rent to be paid, Subtenant
shall pay Sublessor, as additional rent, without set-off or deduction,
the following Additional Rent:
(a) Taxes. If the Real Estate Taxes
applicable to the Building for any lease year during the term of this
lease shall exceed the Real Estate Taxes applicable to the Building for
real estate tax calendar year 1998 - 99 ("Base Lease Year"), then for
said lease year the Subtenant shall pay to the Sublessor as rent (in
addition to all other rent payable) 9.22% of the amount of such excess.
Page 11 of 28
The term "Real Estate Taxes" shall mean
all the real estate taxes and assessments, special, supplemental, or
otherwise, levied, assessed or imposed by federal, state or local
governments against or upon the buildings of which the Overleased
Premises forms a part and the land upon which the Building is located.
If at any time during the term of this Sublease the methods of taxation
prevailing at the commencement of the term hereof shall be altered so
that in lieu of or as an addition to or as a substitute for the whole or
any part of the taxes, assessments, levies, impositions or charges now
levied, assessed or imposed on real estate and the improvements thereon,
there shall be levied, assessed and imposed (i) a tax, assessment, levy,
imposition or charge wholly or partially as capital, levy, or otherwise
on the rents received thereof, or (ii) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon the
Overleased Premises and imposed upon Landlord, or (iii) a license fee
measured by the rents payable by Subtenant to Sublessor, or the part
thereof so measured or based, shall be deemed to be included
within the
term "Real Estate Taxes" for the purpose hereof. Only Landlord or
Sublessor may institute tax reduction or other proceedings to reduce the
assessed valuation of the land and/or Building.
Sublessor's failure during the sublease
term to prepare and deliver any of the foregoing tax bills, statements
or bills, or Sublessor's failure to make a demand, shall not in any way
cause Sublessor to forfeit or surrender its rights to collect any of the
foregoing items of additional rent which may have become due during the
term of this sublease. Subtenant's liability for the amounts due under
this Article shall survive the expiration of the term.
As of the Commencement Date, Sublessor
shall estimate Subtenant's annual pro rata share of Real Estate Taxes
and one-twelfth (1/12) of the amount so estimated shall be paid on the
first day of each calendar month in advance. Within one hundred twenty
(120) days after the end of each calendar year Sublessor shall furnish
Subtenant a statement in reasonable detail of the actual Real Estate
Taxes prepared in accordance with sound accounting practices and
thereupon there shall be an adjustment between Sublessor and Subtenant,
with payment to or repayment by Sublessor, as the case may require, to
the end that owner shall receive the entire amount of Tenant's annual
pro rata share for such period.
(b) Wage Rate. If the Wage Rate for any Operating Year
shall be greater than the Base Wage Rate, then Subtenant shall in the
case of such an increase pay to Sublessor as additional rent for the
Subleased Premises an amount equal to the product obtained by
multiplying the difference between the Wage Rate for such Operating Year
and the Base Wage Rate, by the Wage Rate Multiple. All capitalized terms
used in this paragraph shall have the meanings ascribed to them in the
Xxxxxxxxx as
Page 12 of 28
amended except that the Base Wage Rate shall be deemed to mean the Wage
Rate for the calendar year 1998, the Operating Year shall mean the
calendar year in which the term of this Sublease commences and each
subsequent calendar year in which occurs any portion of the term of this
Sublease, the Wage Rate Multiple shall equal 31,500 and Wage Rate as
used in this Sublease shall be exclusive of the monetary value or cost
of all payments or benefits of every nature and kind (including those
required to be paid by the employer directly to taxing authorities or
others because of the employment) including, but not limited to, social
security, unemployment and other similar taxes, holiday and vacation
pay, absent fund, birthdays, jury duty, medical checkup, relief time and
other paid time off, incentive pay, sick pay, accident, health and
welfare insurance programs, pension plans, guaranteed payment plans, and
supplemental unemployment benefit programs of a similar or dissimilar
nature, irrespective of whether they may be required by any Legal
Requirement or otherwise.
d. Subtenant shall pay all Base Rent in lawful money of the
United States by check drawn on a bank or trust company branch located
in the United States, delivered or mailed to the office of Sublessor, or
such other place as Sublessor may designate in writing, without any
setoff or deduction whatsoever, except that Subtenant shall pay the
first full monthly installment of Base Rent equal to $39,375.00 upon
execution hereof.
e. If Subtenant shall fail to pay when due any installment
or payment of Base Rent within ten (10) days after the date on which
such installment or payment is due, provided Subtenant has received at
least five (5) days' notice thereof (except that no such notice shall be
required more than once any lease year), Subtenant shall pay interest
thereon at the Interest Rate, as hereinafter defined, from the date when
such installment or payment shall have become due to the date of the
payment thereof, and such interest shall be deemed Additional Rent,
payable simultaneously with the installment or payment for which such
interest shall have accrued. For purposes of the Sublease, "Interest
Rate" shall mean a rate which is four (4) points over the then prime
interest rate as published in the Wall Street Journal.
9. ELECTRICITY, OTHER UTILITIES AND CLEANING.
a. To the extent required by the Xxxxxxxxx, Subtenant shall
pay for, at its own cost and expense, all cleaning services, and all
utilities for the Overleased Premises (including gas, air conditioning,
water, sewerage, hot water and heat, electricity on a direct meter with
the utility for the 11th Floor and 10th Floor with the exception of
1,617 rentable square feet which Subtenant agrees to pay on a submetered
basis pursuant to the terms of the Xxxxxxxxx as amended, light, power,
telephone and other similar services), including the cost of
installation and maintenance of meters and any additional items required
by the Subtenant from the date Subtenant takes delivery of the Subleased
Premises.
Page 13 of 28
b. Subtenant agrees to maintain, repair and replace when
reasonably necessary, at Subtenant's own cost and expense, the heating,
air conditioning, electric lighting, electrical, and plumbing equipment
serving the Subleased Premises exclusively (including light bulbs and
tubes). All heating and air conditioning equipment remains the property
of the Sublessor.
10. SIGNS.
Subject to the consent of the Landlord, Tenant shall have
the privilege of placing on the Subleased Premises such signs as it
deems necessary and proper in the conduct of its business, provided
Tenant pays all permit and license fees which may be required to be paid
for the erection and maintenance of any and all such signs, and provided
the signs are legally permitted to be installed. Tenant agrees to
exonerate, save harmless, protect, and indemnify the Sublessor and the
Landlord from and against any and all losses, damages, claims, suits, or
actions for any damage or injury to person or property caused by the
erection and maintenance of the signs or parts thereof, and insurance
coverage for the signs shall be included in the public liability policy,
which Tenant is required to furnish under paragraph 5 hereof.
11. PERMITS; COMPLIANCE WITH LAWS.
Subtenant covenants that Subtenant will not use or suffer
or permit any person to use the Subleased Premises for any unlawful
purpose and that it will obtain and maintain at its sole cost and
expense all licenses and permits from any and all governmental
authorities having jurisdiction over the Subleased Premises which may be
necessary for the conduct of Subtenant's business thereon. Subtenant
further covenants to comply with all applicable laws, resolutions,
codes, rules and regulations of any department, bureau, agency or any
governmental authority having jurisdiction over the operation,
occupancy, maintenance and use of the Subleased Premises for the purpose
set forth herein to the extent required of Sublessor under the Xxxxxxxxx
or arising from Subtenant's use. Subtenant will indemnify, hold harmless
and defend Sublessor (including the payment of Sublessor's reasonable
counsel fees and disbursements if Sublessor is required to appear in any
action or proceeding) from and against any claims, penalties, loss,
damage or expense imposed by reason of a violation of any applicable law
or the rules and regulations of governmental authorities having
jurisdiction thereof relating to Subtenant's use and occupancy of the
Subleased Premises.
Page 14 of 28
12. CONDITION OF SUBLEASED PREMISES.
a. Subtenant represents that Subtenant has made a thorough
examination and inspection of the Subleased Premises and is familiar
with the condition thereof. Subtenant acknowledges that this Sublease
has been made without any representations or warranties by Sublessor as
to the present or future condition of the Subleased Premises or the
appurtenances thereto or any improvements therein. It is further agreed
that Subtenant does and will accept the Subleased Premises in its "as
is" condition and state of repair as of the date hereof, subject to
reasonable wear and tear between the date of execution hereof and the
Commencement Date and Sublessor's normal moving out of the Subleased
Premises. Sublessor shall have no obligation to perform any work or
provide any materials therein. Notwithstanding the foregoing, Sublessor
shall deliver the Subleased Premises to Subtenant broom clean and
vacant.
13. ALTERATIONS OR IMPROVEMENTS.
a. Subtenant shall not make any alterations or improvements
to the Subleased Premises without the express prior written consent of
Sublessor and Landlord in accordance with the provisions of the
Xxxxxxxxx in each instance first obtained. Sublessor agrees not to
unreasonably withhold or delay its consent to any nonstructural
alterations if the consent of Landlord is first obtained or if such
consent is not required. All alterations or improvements shall be made,
if at all, at the sole cost and expense of Subtenant, and shall be made
solely in accordance with the provisions and requirements of the
Xxxxxxxxx, and with respect thereto: (i) all obligations of and all acts
or things to be performed, done or observed on "Tenant's" part
thereunder, shall be the obligations of and shall be performed, done and
observed by Subtenant; and (ii) all references contained therein to
"Landlord" shall be deemed to include and shall include Sublessor
hereunder.
b. Any personal property which may be removed without
damage to the Subleased Premises shall remain the property of Subtenant,
and, except as provided below, all other personal property and
alterations and improvements shall become the property of Sublessor at
the expiration of the term of this Sublease. At Sublessor's request,
Subtenant shall be obligated, at Subtenant's sole cost and expense, to
remove all or any part of Subtenant's movable personal property and all
or any part of the alterations and improvements made by Subtenant or for
its account, at the expiration or earlier termination of Sublease and to
restore the Subleased Premises to the condition existing as of the
commencement of occupancy by Subtenant of the Subleased Premises, except
for ordinary wear and tear, and except for alterations made with the
express prior written consent of Sublessor.
Page 15 of 28
14. BROKERS.
Each party warrants and represents to the other that each
party has not engaged and or dealt with any broker, finder or any person
acting in such capacity or similar capacity in connection with this
Sublease other than Xxxxxx Xxxxxxxx Company, Inc. and X.X. Xxxxx
Leasing, Inc. ("Broker"). This Sublease is consummated in reliance on
the foregoing representation, and each party agrees to indemnify, hold
harmless and defend the other from any and all losses, damages, costs,
expenses, claims and liabilities arising out of any inaccuracy of said
representations, including court costs and attorneys' fees and
disbursements. Sublessor agrees to pay Broker a commission pursuant to
separate agreement.
15. INDEMNIFICATION.
a. Subtenant agrees to indemnify, hold harmless and defend
Sublessor (including the payment of Sublessor's reasonable counsel fees
and disbursements) against and from all liabilities, obligations,
damages, penalties, claims, costs, charges, and expenses, which may be
imposed or asserted against Sublessor by reason of any of the following
occurring during the term hereof.
(i) Any wrongful act or omission by Subtenant or any
of its agents, contractors, servants, employees, licensees or invitees
arising out of Subtenant's use, occupancy, control, or management of the
Subleased or Demised Premises and any part thereof;
(ii) Any work or thing done by Subtenant in or about
the Subleased or Demised Premises or any part thereof, including, but
not limited to, work done pursuant to Article 13 hereof; or
(iii) Any failure on the part of Subtenant to perform
or comply with any of the covenants, agreements, terms or conditions
contained in this Sublease or the Xxxxxxxxx, on Subtenant's part to be
performed, after the expiration of any applicable notice and grace
periods.
b. In the event any action or proceeding is brought against
Sublessor by reason of any of the above, Subtenant upon written notice
from and requested by Sublessor shall, at Subtenant's sole cost and
expense, resist or defend any such action or proceeding, and shall pay
any judgment or perform any decree resulting therefrom which shall have
become final, provided that Sublessor will not settle any such action
without Subtenant's express prior written consent, provided that if such
consent is not forthcoming promptly after the request therefor,
Subtenant shall post a bond in the amount of the offered settlement.
Page 16 of 28
c. Sublessor agrees to indemnify, hold harmless and defend
Subtenant (including the payment of Subtenant's reasonable counsel fees
and disbursements) against and from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, which may be
imposed or asserted against Subtenant by reason of (i) any event
occurring prior to the term hereof or (ii) any failure of Sublessor to
make timely payment of rent and additional rent under the Xxxxxxxxx,
except to the extent that such failure results from Subtenant's failure
to pay rent or additional rent under this Sublease.
16. DEFAULT PROVISIONS AND REMEDIES.
a. If any one or more of the following events
(hereinafter referred to as "Events of Default" ) shall occur:
(i) If this Sublease or the estate of Subtenant
hereunder shall be transferred or assigned by Subtenant to any person,
firm corporation or other entity, whether by operation of law or
otherwise, except in a manner as may be herein expressly permitted; or
(ii) If default shall be made by Subtenant in the due
and punctual payment of any installment of Base Rent or any Additional
Rent payable under this Sublease within five (5) days after receipt of
notice that such Base Rent or Additional Rent is due; or
(iii) If (A) default shall be made by Subtenant in the
observance or performance of any covenant, agreement, term or condition,
other than those referred to in the foregoing subparagraphs (i) and (ii)
of this Section 16(a), and Subtenant shall fail to remedy such default
within ten (10) days after notice by Sublessor to Subtenant of such
default, unless (B) such default is of such a nature that it cannot be
completely remedied within such 10-day period, in which case it must be
remedied within such time after the date of the giving of said notice as
shall reasonably be necessary; or
(iv) If Subtenant shall abandon the Subleased Premises
or not perform its obligations hereunder; or
(v) If at any time during the term hereof, there shall
be filed by Subtenant in any court, pursuant to any statute, either of
the United States or any state, a petition in bankruptcy or insolvency,
or for the appointment of a receiver or Subtenant otherwise enters into
an arrangement under the United States Bankruptcy Act or under any law
of similar import; or
Page 17 of 28
(vi) If at any time during the term hereof, there
shall be filed against Subtenant or any assignee of Subtenant in any
court pursuant to any statute either of the United States or of any
state a petition in bankruptcy or insolvency, or for reorganization, or
for the appointment of a receiver or trustee of or for Subtenant's
property, and if within sixty (60) days after the commencement of any
such proceeding against Subtenant the same shall not have been stayed or
dismissed; or
(vii) If any default declared by the Landlord under
the Xxxxxxxxx as to which there is no grace period shall be due to any
act or omission of Subtenant.
In any such event, Sublessor may serve a written notice of
cancellation and termination of this Sublease, and upon the expiration
of five (5) days from the receipt or attempted delivery thereof, this
Sublease and the term hereof shall end and expire as fully and
completely as if the date of expiration of such five (5) day period were
the day herein definitely fixed for the end and expiration of this
Sublease and the term hereof, and Subtenant shall then quit or surrender
to Sublessor the Subleased Premises and each and every part thereof, but
Subtenant shall remain liable for damages and all other sums payable
pursuant to the provisions of Section 16(b) below.
b. If this Sublease and the term hereof shall expire and
terminate as provided in Section 16(a) above:
(i) Subtenant will quit and peacefully surrender the
Subleased Premises to Sublessor, and Sublessor, upon or at any time
after any such expiration or termination, may without further notice,
enter upon and re-enter the Subleased Premises and possess and repossess
itself thereof, by force, summary proceedings, ejectment or otherwise,
may dispossess Subtenant and remove Subtenant and all other persons and
property from the Subleased Premises and may have, hold and enjoy the
Subleased Premises and the right to receive all rental income of and
from the same.
(ii) At any time or from time to time after any such
expiration or termination, Sublessor may relet the Subleased Premises or
any part thereof, in the name of Sublessor or otherwise, for such term
or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Sublease) and
on such conditions (which may include concessions or free rent) as
Sublessor in its absolute discretion may determine, and Sublessor may
collect and receive the rent therefor.
Page 18 of 28
(iii) No such expiration or termination of this
Sublease shall relieve Subtenant of Subtenant's liability and
obligations which shall survive any such expiration or termination. In
case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Sublessor may re-let the Subleased Premises or any part
or parts thereof, and agrees to use its best efforts to do so, either in
the name of Sublessor or otherwise, for a term or terms, which may at
Sublessor's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this Sublease and
may grant concessions or free rent or charge a higher rental than that
in this Sublease, and/or (c) Subtenant or the legal representatives of
Subtenant shall also pay Sublessor as liquidated damages for the failure
of Subtenant to observe and perform said Subtenant's covenants herein
contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected
on account of the lease or leases of the Subleased Premises for each
month of the period which would otherwise have constituted the balance
of the term of this Sublease. The failure of Sublessor to re-let the
premises or any part or parts thereof shall not release or affect
Subtenant's liability for damages. In computing such liquidated damages
there shall be added to the said deficiency such reasonable expenses as
Sublessor may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping the
Subleased Premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly
installments by Subtenant on the rent day specified in this Sublease and
any suit brought to collect the amount of the deficiency for any month
shall not prejudice in any way the rights of Sublessor to collect the
deficiency of any subsequent month by a similar proceeding. Sublessor,
in putting the Subleased Premises in good order or preparing the same
for re-rental may, at Sublessor's option, make such alterations,
repairs, replacements, and/or decorations in the Subleased Premises as
Sublessor, in Sublessor's reasonable judgment, considers advisable and
necessary for the purpose of re-letting the demised premises, and the
making of such alterations, repairs, replacements, and/or decorations
shall not operate or be construed to release Subtenant from liability
hereunder as aforesaid. Sublessor shall in no event be liable in any way
whatsoever for failure to re-let the demised premises. Sublessor shall
in no event be liable in any way whatsoever for failure to re-let the
Subleased Premises, or in the event that the Subleased Premises are
re-let, for failure to collect the rent thereof under such re-letting,
and in no event shall Subtenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Subtenant to
Sublessor hereunder. In the event of a breach or threatened breach by
Subtenant or Sublessor of any of the covenants or provisions hereof,
Sublessor and Subtenant shall
Page 19 of 28
have the right of injunction and the right to invoke any remedy allowed
at law or in equity as if re-entry, summary proceedings and other
remedies were not herein provided for. Mention in this Sublease of any
particular remedy, shall not preclude Sublessor or Subtenant from any
other remedy, in law or in equity. Subtenant hereby expressly waives any
and all rights of redemption granted by or under any present or future
laws in the event of Subtenant being evicted or dispossessed for any
cause, or in the event of Sublessor obtaining possession of Subleased
Premises, by reason of the violation by Subtenant of any of the
covenants and conditions of this lease, or otherwise.
(iv) If Subtenant shall abandon the Subleased Premises
or not perform its obligations hereunder; or
(v) If at any time during the term hereof, there shall
be filed by Subtenant in any court, pursuant to any statute, either of
the United States or any state, a petition in bankruptcy or insolvency,
or for the appointment of a receiver or Subtenant otherwise enters into
an arrangement under the United States Bankruptcy Act or under any law
of similar import; or
(vi) If at any time during the term hereof, there
shall be filed against Subtenant or any assignee of Subtenant in any
court pursuant to any statute either of the United States or of any
state a petition in bankruptcy or insolvency, or for reorganization, or
for the appointment of a receiver or trustee of or for Subtenant's
property, and if within sixty (60) days after the commencement of any
such proceeding against Subtenant the same shall not have been stayed or
dismissed; or
(vii) If any default declared by the Landlord under
the Xxxxxxxxx as to which there is no grace period shall be due to any
act or omission of Subtenant.
In any such event, Sublessor may serve a written notice of
cancellation and termination of this Sublease, and upon the expiration
of five (5) days from the receipt or attempted delivery thereof, this
Sublease and the term hereof shall end and expire as fully and
completely as if the date of expiration of such five (5) day period were
the day herein definitely fixed for the end and expiration of this
Sublease and the term hereof, and Subtenant shall then quit or surrender
to Sublessor the Subleased Premises and each and every part thereof, but
Subtenant shall remain liable for damages and all other sums payable
pursuant to the provisions of Section 16(b) below.
b. If this Sublease and the term hereof shall expire and
terminate as provided in Section 16(a) above:
Page 20 of 28
(i) Subtenant will quit and peacefully surrender the
Subleased Premises to Sublessor, and Sublessor, upon or at any time
after any such expiration or termination, may without further notice,
enter upon and re-enter the Subleased Premises and possess and repossess
itself thereof, by force, summary proceedings, ejectment or otherwise,
may dispossess Subtenant and remove Subtenant and all other persons and
property from the Subleased Premises and may have, hold and enjoy the
Subleased Premises and the right to receive all rental income of and
from the same.
(ii) At any time or from time to time after any such
expiration or termination, Sublessor may relet the Subleased Premises or
any part thereof, in the name of Sublessor or otherwise, for such term
or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Sublease) and
on such conditions (which may include concessions or free rent) as
Sublessor in its absolute discretion may determine, and Sublessor may
collect and receive the rent therefor.
(iii) No such expiration or termination of this
Sublease shall relieve Subtenant of Subtenant's liability and
obligations which shall survive any such expiration or termination. In
case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Sublessor may re-let the Subleased Premises or any part
or parts thereof, and agrees to use its best efforts to do so, either in
the name of Sublessor or otherwise, for a term or terms, which may at
Sublessor's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this Sublease and
may grant concessions or free rent or charge a higher rental than that
in this Sublease, and/or (c) Subtenant or the legal representatives of
Subtenant shall also pay Sublessor as liquidated damages for the failure
of Subtenant to observe and perform said Subtenant's covenants herein
contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected
on account of the lease or leases of the Subleased Premises for each
month of the period which would otherwise have constituted the balance
of the term of this Sublease. The failure of Sublessor to re-let the
premises or any part or parts thereof shall not release or affect
Subtenant's liability for damages. In computing such liquidated damages
there shall be added to the said deficiency such reasonable expenses as
Sublessor may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping the
Subleased Premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly
installments by Subtenant on the rent day specified in this Sublease and
any
Page 21 of 28
suit brought to collect the amount of the deficiency for any month shall
not prejudice in any way the rights of Sublessor to collect the
deficiency of any subsequent month by a similar proceeding. Sublessor,
in putting the Subleased Premises in good order or preparing the same
for re-rental may, at Sublessor's option, make such alterations,
repairs, replacements, and/or decorations in the Subleased Premises as
Sublessor, in Sublessor's reasonable judgment, considers advisable and
necessary for the purpose of re-letting the demised premises, and the
making of such alterations, repairs, replacements, and/or decorations
shall not operate or be construed to release Subtenant from liability
hereunder as aforesaid. Sublessor shall in no event be liable in any way
whatsoever for failure to re-let the demised premises. Sublessor shall
in no event be liable in any way whatsoever for failure to re-let the
Subleased Premises, or in the event that the Subleased Premises are
re-let, for failure to collect the rent thereof under such re-letting,
and in no event shall Subtenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Subtenant to
Sublessor hereunder. In the event of a breach or threatened breach by
Subtenant or Sublessor of any of the covenants or provisions hereof,
Sublessor and Subtenant shall have the right of injunction and the right
to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in
this Sublease of any particular remedy, shall not preclude Sublessor or
Subtenant from any other remedy, in law or in equity. Subtenant hereby
expressly waives any and all rights of redemption granted by or under
any present or future laws in the event of Subtenant being evicted or
dispossessed for any cause, or in the event of Sublessor obtaining
possession of Subleased Premises, by reason of the violation by
Subtenant of any of the covenants and conditions of this lease, or
otherwise.
(iv) To the extent permitted by applicable law,
Subtenant hereby waives service of any notice of intention to re-enter
provided for in any statute, law or regulation, and the service of
notice of the institution of legal proceedings to that end. To the
extent permitted by applicable law, Sublessor and Subtenant hereby waive
trial by jury in any action, proceeding or counterclaim brought by
either against the other on any matter whatsoever arising out of or in
any way connected with this Sublease, the relationship of Sublessor and
Subtenant, Subtenant's use or occupancy of the Subleased Premises,
including any claim of injury or damage. The terms "enter", "re-enter",
"entry" and "reentry" as used in this Sublease are not restricted to
their technical, legal meanings. The provisions of this Section shall
survive the termination of this Sublease.
Page 22 of 28
(v) The failure of Sublessor or Subtenant, as the case
may be, to insist in any one or more instances upon the strict
performance of any one or more of the obligations of this Sublease, or
to exercise any election herein contained, shall not be construed as a
waiver or relinquishment for the future of the performance of such one
or more obligations of this Sublease or of the right to exercise such
election, but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission. No
covenant, agreement, term or condition of this Sublease to be performed
or complied with by Sublessor or Subtenant, as the case may be, and no
breach thereof, shall be waived, altered or modified, and no attempt
shall be effective to change, modify, waive, release, discharge,
terminate or effect an abandonment of this Sublease, in whole or in
part, unless such waiver, alteration, modification, charge, release,
discharge, termination, abandonment or executory agreement is in
writing, refers expressly to this Sublease, and is signed by the party
against whom enforcement thereof is sought.
(vi) In the event of any breach or threatened breach
by Subtenant of any of the covenants, agreements, terms or conditions
contained in this Sublease, Sublessor shall be entitled to enjoin such
breach or threatened breach and shall have the right to invoke any right
and remedy allowed at law or in equity or by statute or otherwise as
though re-entry, summary proceedings, and other remedies were not
provided for in this Sublease.
(vii) Each right and remedy of Sublessor provided for
in this Sublease or in the Xxxxxxxxx shall be cumulative and shall be in
addition to every other right or remedy provided for in this Sublease or
Xxxxxxxxx as now or hereafter existing at law or in equity or by statute
or otherwise, and the exercise or beginning of the exercise by Sublessor
of any one or more of the rights or remedies provided for in this
Sublease or in the Xxxxxxxxx or now or hereafter existing at law or in
equity or by statute otherwise, shall not preclude the simultaneous or
later exercise by Sublessor of any or all other rights or remedies
provided for in this Sublease or in the Xxxxxxxxx now or hereafter
existing at law or in equity or by statute or otherwise.
(viii) Subtenant hereby agrees that, in the event
Sublessor commences a summary proceeding for possession of the Subleased
Premises, Subtenant will not interpose any permissive counterclaim of
any nature or description whatsoever in such proceeding, except that
Subtenant shall not be estopped in such action from alleging any
affirmative defense Subtenant elects to claim.
Page 23 of 28
17. REPARIS.
Subtenant shall, throughout the term hereof, take good care
of the Subleased Premises and the fixtures, appurtenances and personal
property of Subtenant therein, and make all repairs thereto which would
otherwise be required of Sublessor under the Xxxxxxxxx after the date
hereof, ordinary wear and tear excepted. In addition, all damage or
injury to the Subleased Premises or the Building caused by or resulting
from the use of the Subleased Premises by Subtenant, Subtenant's
tenants, employees, invitees or licensees, shall be repaired promptly by
Subtenant at Subtenant's sole cost and expense, to the reasonable
satisfaction of Sublessor.
18. WAIVER.
Subtenant, on its own behalf and on behalf of all persons
claiming through or under Subtenant, including all creditors, does
hereby waive any and all rights and privileges, so far as is permitted
by law, which Subtenant and all such persons might otherwise have under
any present or future law (a) to redeem the Subleased Premises, (b) to
re-enter or repossess the Subleased Premises, or (c) to restore the
operation of this Sublease after Subtenant shall have been dispossessed
by a judgment or by warrant of any court or judge; or after any re-entry
by Sublessor, or after any expiration or termination of this Sublease
and the term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions
of this Sublease. The words "re-enter," "re-entry" and "re-entered" as
used in this Lease shall not be deemed to be restricted to their
technical legal meanings.
19. ANTICIPATORY BREACH.
In the event of any breach or threatened breach by
Subtenant or any persons claiming through or under Subtenant of any of
the agreements, terms, covenants or conditions contained in this
Sublease, Sublessor shall be entitled to enjoin such breach or
threatened breach and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise as if
re-entry, summary proceedings or other specific remedies were not
provided for in this Sublease.
20. NOTICES.
a. Any notice, statement, demand or other communication
required or permitted to be given, rendered or made by either party to
the other, pursuant to this Sublease or pursuant to any applicable law
or requirement of public authority, shall be in writing (whether or not
so stated
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elsewhere in this Sublease) and shall be given, rendered or made by
overnight courier services such as Federal Express, providing for a
receipt on delivery, or by certified or registered mail, return receipt
requested, addressed to the other party at the address hereinabove set
forth, and shall be deemed to have been given, rendered or made on the
second (2nd) business day following the day so mailed or sent by
overnight courier services, unless mailed outside of the State of New
York, in which case it shall be deemed to have been given, rendered or
made on the earlier of actual receipt, or the expiration of the normal
period of time for delivery of mail from the post office of origin to
the post office of destination. Either party may, by notice as
aforesaid, designate a different address or addresses for notice,
statements, demands or other communications intended for it.
b. If there occurs any interruption of registered mail
service lasting more than five (5) consecutive business days, notices
may be given by telegram, overnight courier service, or personal
delivery, but shall not be effective until personally received by an
executive officer of a party which is a corporation, or a managing
partner of a party which is a partnership or a principal of any other
entity.
21. END OF TERM.
Subtenant shall surrender the Subleased Premises to
Sublessor at the expiration or sooner termination of this Sublease in
the same order and condition as delivered to Subtenant, except for
reasonable wear and tear, damage by the elements and damages caused by
perils and condemnation excepted, and Subtenant shall remove all of its
property from the Subleased Premises. Sublessor may require Subtenant to
remove all or a portion of any structural alterations, improvements or
additions in and to the Subleased Premises made by Subtenant without
Sublessor's express prior written approval, to repair any damage caused
by such removal to Sublessor's satisfaction and to restore the Subleased
Premises to the condition existing as of the commencement of occupancy
by Subtenant of the Subleased Premises, excepting therefrom reasonable
wear and tear.
22. SECURITY.
Subtenant has deposited with Sublessor the sum of
$178,400.00 as security ("Security Deposit") for the faithful
performance and observance by Subtenant of the terms, provisions and
conditions of this Sublease; it is agreed that in the event Subtenant
defaults in respect of any of the terms; provisions and conditions of
this Sublease, including, but not limited to, the payment of rent and
additional rent, Sublessor may use, apply or retain the whole or any
part of the security so deposited to the extent required for the payment
of any rent and additional rent or any other sum as to which Subtenant
is in default or for any
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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 but not limited to, any damages
or deficiency in the re-letting of the Subleased Premises, whether such
damages or deficiency accrued before or after summary proceedings or
other re-entry by Sublessor. In the event that Subtenant shall fully and
faithfully comply with all of the terms, provisions, covenants and
conditions of this Sublease, Sublessor shall: (i) return a portion of
the Security Deposit to Sublessee equal to the sum of $89,250.00 not
later than July 1, 2003 and (ii) the security shall be returned to
Subtenant after the date fixed as the end of the Sublease and after
delivery of entire possession of the Subleased Premises to Sublessor. In
the event of a sale of the land and building or leasing of the building,
of which the Subleased Premises form a part, Sublessor shall have the
right to transfer the security to the vendee or lessee and Sublessor
shall thereupon be released by Subtenant from all liability for the
return of such security; and Subtenant agrees to look to the new
Sublessor solely for the return of said security, and it is agreed that
the provisions hereof shall apply to every transfer or assignment made
of the security to a new Sublessor. Subtenant further covenants that it
will not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Sublessor nor its
successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. In lieu of a
cash security deposit, Subtenant may deliver the Security Deposit to
Sublandlord in the form of a clean, irrevocable, non-documentary and
unconditional letter of credit in the amount of the Security Deposit
(the "Letter of Credit") issued by and drawable upon any commercial bank
which is a member of the New York Clearing House Association or other
bank satisfactory to Sublandlord, trust company, national banking
association or savings and loan association with offices for banking
purposes in the City of New York (the "Issuing Bank"), which has
outstanding unsecured, uninsured and unguaranteed), indebtedness, or
shall have issued a letter of credit or other credit facility that
constitutes the primary security for any outstanding indebtedness (which
is otherwise uninsured and unguaranteed, that is then rated, without
regard to qualification of such rating by symbols such as "+" or "-" or
numerical notation, "Aa" or better by Xxxxx'x Investors Service and "AA:
or better by Standard & Poor's Rating Service, and has combined capital,
surplus and undivided profits of not less than $500,000,000. The Letter
of Credit shall (a) name Sublandlord as beneficiary, (b) be in the
amount of the Security Deposit, (c) have a term of not less than one
year, (d) permit multiple drawings, (e) be fully transferable by
Sublandlord without the payment of any fees or charges by Sublandlord,
and (f) otherwise be in form and content satisfactory to Sublandlord. If
upon any transfer of the Letter of Credit, any fees or charges shall be
so imposed, then such fees or charges shall be payable solely by
Subtenant and the Letter of Credit shall so specify. The Letter
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of Credit shall provide that it shall be deemed automatically renewed,
without amendment, for consecutive periods of one year each thereafter
during the term of this sublease unless the Issuing Bank sends a notice
(the "Non-Renewal Notice") to Sublandlord by certified mail, return
receipt requested, not less than 45 days next preceding the then
expiration date of the Letter of Credit stating that the Issuing Bank
has elected not to renew the Letter of Credit. Sublandlord shall have
the right, upon receipt of the Non-Renewal Notice, to draw the full
amount of the Letter of Credit, by sight draft on the Issuing Bank, and
shall thereafter hold or apply the cash proceeds of the Letter of Credit
pursuant to the terms of this Article. The Letter of Credit shall state
that drafts drawn under and in compliance with the terms of the Letter
of Credit will be duly honored upon presentation to the Issuing Bank at
an office location in Manhattan. The Letter of Credit shall be subject
in all respects to the Uniform Customs and Practice for Documentary
Credits (1993 revision), International Chamber of Commerce Publication
No. 500.
23. MISCELLANEOUS.
a. Section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
b. This Agreement shall be interpreted and given effect in
accordance with the laws of the State of New York.
c. This Agreement expresses the whole agreement between the
parties, there being no representation, warranty or other agreement not
herein expressly set forth or provided for. No change, modification of
or addition to this Agreement shall be valid unless in writing and
signed by each of the parties hereto.
d. Each party hereto agrees that it will execute and
deliver such further instruments and will take such further action as
may be necessary to discharge or perform or carry out any of their
respective obligations and agreements hereunder. Each party hereto
represents to the other that each has full authority to enter into this
Sublease.
e. This Sublease shall not be recorded in the land records
of the County of New York.
f. Nothing contained in this Sublease shall be deemed or
construed to create any relationship between the parties hereto other
than sublandlord and subtenant, and the parties hereby acknowledge that
they are not, and shall not be deemed by this Sublease to be partners or
joint venturers.
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g. The incorporation of the Xxxxxxxxx in this Sublease is
intended to clarify the rights of Landlord to which this Sublease is
subject and the limitations imposed on Subtenant's use and occupancy of
the Demised Premises and not to establish rights or obligations or
Sublessor or Subtenant which are not provided for in this Sublease.
h. This Sublease is subject to the consent of the Landlord
pursuant to the terms of the Xxxxxxxxx of the terms of this Sublease and
Sublessee's plans for the initial alterations of the Subleased Premises
as set forth in the plans annexed hereto as Exhibit B and made part
hereof ("Landlord Consent"). In the event the conditions contemplated in
this paragraph are not met, Sublessor shall promptly return to Subtenant
any monies paid hereunder and this Sublease and the rights and
obligations of the parties hereunder shall be terminated. If Landlord
Consent is not received within 30 days from the date of this Sublease,
Subtenant may cancel this Sublease by notice given after the expiration
of such 30-day period and prior to the granting of such consent, in
which case Sublessor shall promptly return to Subtenant any monies paid
hereunder and this Sublease and the rights and obligations of the
parties hereunder shall be terminated.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands this day of July, 1998.
RSL COM U.S.A, INC.
By: /S/
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
COMPUTER OUTSOURCING SERVICES, INC.
By: /S/
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Chairman
EXHIBIT A
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Xxxxxxxxx
(see annexed Xxxxxxxxx)
EXHIBIT B
-----------
Sublessee's Plans
(See Annexed)
