EXHIBIT 10.3
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SUBLEASE AGREEMENT (this "Sublease") made this 22nd day of July,
1999 by and BETWEEN XXXXXXXXX.XXX., INC., a Delaware corporation having an
office at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Sublessor") and W12/14 WALL
ACQUISITION ASSOCIATES LLC, a New York limited liability company having an
office c/o Stellar Management Co., 000 Xxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx
("Sublessee").
STATEMENT OF FACTS
Pursuant to the lease, and the amendments thereto, described on
Exhibit "A" attached hereto and incorporated herein (collectively, the
"Lease"), Xxxxxx Trinity Associates, LLC ("Landlord") has leased to
Sublessor a portion of the 13th and the entire 14th floors (the "Premises")
in the building known as 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the
"Building").
Sublessor and Sublessee desire to consummate the subletting of a
portion of the Premises consisting of the entire 14th floor of the Building
(the "Subleased Premises"), upon the terms and conditions of this Sublease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEMISE; TERM; RENTAL:
Sublessor hereby leases to Sublessee and Sublessee herein hires from
Sublessor the Subleased Premises, for a term (the "Sublease Term") to
commence on a date (the "Sublease Commencement Date") that is the later of
(a) thirty (30) days after written notice from Sublessor that vacant
possession of the Subleased Premises will be delivered to Sublessee and (b)
the actual date when Sublessor delivers broom-clean vacant possession of
the Subleased Premises to Sublessee; and to expire on the date that is one
day prior to the expiration date of the Lease (the "Sublease Expiration
Date"), at the annual fixed rentals set forth on Schedule "1" attached
hereto and incorporated herein. Tenant shall pay all installments of rent
in advance, on the first (1st) day of each and every calendar month during
the Sublease Term. Notwithstanding the foregoing, if the Sublease
Commencement Date occurs on a date other than the first day of a calendar
month, the fixed rent payable hereunder for said month shall be
appropriately pro-rated.
2. SUBLETTING AND ASSIGNMENT:
(a) Notwithstanding the provisions of Article 16 of the
Initial Lease (as defined on Exhibit "A"), Sublessee may, without the
consent of Sublessor, freely assign this Sublease or sublet the Subleased
Premises in whole or in part, separately or in combinations, to such
persons or entities, at such rentals and on such terms and conditions as
Sublessee shall determine for any period or periods of time provided the
term of any such subletting does not extend beyond the Sublease Expiration
Date. No such subletting or assignment shall relieve Sublessee from its
obligations hereunder.
(b) (i) With respect to any further subletting by Sublessee
of all or any portion of the Subleased Premises (hereinafter collectively
called "Occupancy Leases" and individually an "Occupancy Lease"), Sublessor
agrees that, within five (5) days after written request of Sublessee for a
non-disturbance and attornment agreement accompanied by a copy of the
Occupancy Lease for which such agreement is requested, Sublessor will enter
into non-disturbance and attornment agreements with Sub-sublessees
(hereinafter called "Occupancy Tenants") provided that the pro-rata fixed
rent and additional rent payable under such Occupancy Lease is not less
than the fixed rent and additional rent payable under this Sublease.
(ii) Any such non-disturbance and attornment agreement shall provide
substantially as follows:
(A) So long as no default exists, nor any event has occurred, which
has continued to exist for such period of time (after notice, if any,
required by said Occupancy Lease) as would entitle the landlord under said
Occupancy Lease to terminate said Occupancy Lease, or would cause the
termination of said Occupancy Lease without any further action of said
landlord, or would entitle said landlord to dispossess said Occupancy
Tenant, said Occupancy Tenant shall not be joined as a party defendant in
any action or proceeding which may be instituted or taken by Sublessor for
the purpose of terminating this Sublease by reason of a default hereunder,
nor shall said Occupancy Tenant be evicted from the premises demised under
said Occupancy Lease, nor shall said Occupancy Tenant's leasehold estate
under said Occupancy Lease be terminated or disturbed, nor shall any of
said Occupancy Tenant's rights under said Occupancy Lease be affected in
any way by reason of any default under this Sublease, or any disaffirmance
or termination of this Sublease, provided, however, that Sublessor shall
not (i) be liable for any act or omission of any prior landlord under said
Occupancy Lease, or (ii) be subject to any offsets or defenses which said
Occupancy Tenant may have against any prior landlord under said Occupancy
Lease, or (iii) be bound by any rent or additional rent which said
Occupancy Tenant may have paid in advance for more than one month to any
prior landlord under said Occupancy Lease, or (iv) be bound by any
amendment or modification of said Occupancy Lease made without Sublessor's
prior written consent which consent Sublessor agrees not to unreasonably
withhold or delay; and
(B) In the event of the termination or expiration of this Sublease
for any reason, said Occupancy Tenant shall be bound to Sublessor under all
of the terms, covenants and conditions of said Occupancy Lease for the
balance of the term thereof remaining and any extensions or renewals
thereof which may be affected in accordance with any option therefor in
said Occupancy Lease, with the same force and effect as if Sublessor were
the landlord under said Occupancy Lease, said attomment to be effective and
self-operative without the execution of any further instruments upon the
termination or expiration of this Sublease; and said Occupancy Tenant shall
promptly execute and deliver any instrument Sublessor shall reasonably
request to evidence such attornment; and
(C) Said Occupancy Lease is, and shall at all times, continue to be
subject and subordinate, in each and every respect, to all rights, title
and interest of Sublessor under this Sublease.
(c) Sublessee and any assignee or further subtenant of
Sublessee shall be permitted to make alterations, decorations and
installations in the Subleased Premises or any part thereof in accordance
with the applicable provisions of the Lease and any such alterations,
decorations and installations in such space therein made by Subleseee
and/or any such assignee or subtenant may be removed, in whole or in part,
by Sublessee or by such assignee or subtenant, at its option, prior to or
upon the expiration or other termination of such further sublease or this
Sublease, provided that Sublessee or such assignee or subtenant, at its
expense, shall repair any damage and injury to such space so caused by such
removal. If Sublessee or any assignee or subtenant of Sublessee
contemplates making an "Alteration" (as defined in Article 6 of the Initial
Lease) as would require Landlord's approval under the Lease, Sublessor's
approval shall not be required.
(d) Upon the expiration or sooner termination of the Sublease
Term, Sublessor will accept the Sublet Premises in its then existing
condition.
3. INCORPORATION OF TERMS OF LEASE:
(a) Except as otherwise expressly provided in this Sublease
and except to the extent they are inapplicable to Sublessee or this
Sublease or are inconsistent with or modified by the provisions of this
Sublease, all of the terms, covenants, conditions and provisions of the
Lease are hereby incorporated in, and made a part of, this Sublease; and
such rights and obligations as are contained in the Lease are hereby
imposed upon the respective parties hereto, Sublessor herein being
substituted for the Landlord in said Lease, Sublessee herein being
substituted for the Tenant in said Lease and the Subleased Premises being
substituted for the Premises in said Lease; provided, however, that
Sublessor herein shall not in any event be liable to Sublessee for the
performance of any obligations which are the obligations of the Landlord
under the Lease, including without limitation, all obligations to provide
any services to Subtenant or to perform repairs or maintenance to the
Subleased Premises.
(b) Except as herein otherwise expressly provided in this
Sublease, Sublessee shall not be obligated to pay the fixed and additional
rent which Sublessor is obligated to pay as Tenant under the Lease;
(c) without limiting the generality of the foregoing the
subsections (a) and (b) for the purposes of this Sublease the following
provisions of the Lease are excluded from this Sublease: Sections 3.1, 4.1,
8.2, 9.1, 9.2, 13.3 and 18.3 and Articles 10, 19, 20, 30, 33, 40, 44, 45,
48 and 49 of the Initial Lease; the entire First Amendment (as defined in
Exhibit A); Sections 1, 4, 8 and 13 and Exhibit C of the Second Amendment
(as defined in Exhibit A); and the entire Third Amendment and Fourth
Amendment (both as defined in Exhibit A).
(d) For purposes of this Sublease, the provisions of the
Lease are subject to the following modifications:
(i) In all provisions of the Lease requiring the approval or
consent of the "Landlord", Sublessee shall be required to obtain only the
approval or consent of the Landlord and not Sublessor.
(ii) In all provisions of the Lease making reference to "Landlord's
cost" or words of similar effect, Landlord's cost shall mean the cost to
Landlord and not Sublessor.
(iii) This Sublease shall terminate automatically at the same time
that the Lease is terminated.
4. AS IS CONDITION:
Sublessee acknowledges that it has made a full and complete
inspection of the Subleased Premises, and agrees to accept same on the
Sublease Commencement Date in its then "as is" condition. Sublessee
acknowledges that neither Sublessor, nor Sublessor's agent, has made any
representations or promises in regard to the demised premises.
5. ESCALATIONS:
(a) Throughout the Sublease Term, Sublessee agrees to pay to
Sublessor, an amount equal to 71.85% of the amounts, if any, payable by
Sublessor to Landlord on account of Real Estate Taxes and Porters Wage
Escalation (as both terms are defined in the Lease). Additionally,
Sublessee shall be entitled to receive 71.85% of all credits to which
Sublessor shall be entitled as tenant under the Lease.
(b) The amounts payable by Sublessee and the credits to which
Sublessee shall be entitled under this Article 5 shall be payable by
Sublessee to Sublessor or credited to Sublessee, as the case may be, at the
same time and manner as Sublessor is required to pay such charges to
Landlord or receive such credits from Landlord, under the provisions of the
Lease. The capitalized terms used in this Article 5 have the same meanings
as set forth in Article 3 of the Lease. Any payments to be made by
Sublessee to Sublessor and any credits to which Sublessee shall be entitled
under the provisions of this Article 5 shall be appropriately pro-rated to
reflect (1) the Sublease Commencement Date, and (ii) the Sublease
Expiration Date, as same may be extended pursuant to the provisions of this
Sublease.
6. COMPLIANCE WITH LEASE:
Sublessor shall duly pay each installment of fixed and additional
rent under the terms of the Lease and will duly observe and perform all
terms and conditions of the Lease to the extent that such terms and
conditions do not expressly relate to the Subleased Premises and are not
provided in this Sublease to be observed or performed by Sublessee. The
provisions of Section 16.4.5 of the Lease are incorporated into this
Sublease by reference as if fully set forth herein.
7. BROKER:
Sublessee and Sublessor covenant, warrant and represent that there
was no broker, consultant or finder, except Newmark & Company Real Estate
Inc. and Colliers ABR Inc. (collectively, "Brokers"), instrumental in
consummating this Sublease and that no conversation or negotiations were
had with any broker, consultant or finder except Brokers, concerning the
subletting of the Premises. Sublessor and Sublessee each agrees to hold
harmless and indemnify the other against any claims for a brokerage
commission, consultation or finder's fee and/or expenses arising out of any
conversations or negotiations had by the indemnifying party with any
broker, consultant or finder except Brokers.
8. BREACH BY SUBLESSOR:
Anything in this Sublease to the contrary notwithstanding, if there
exists a breach by or of Sublessor of any of its obligations under this
Sublease and concurrently, a corresponding breach by the Landlord of its
obligations under the Lease exists, then and in such event, Sublessee's
sole remedy against Sublessor in the event of any such breach of obligation
under this Sublease shall be the right to pursue a claim in the name of
Sublessor against Landlord, and Sublessor agrees that it will at
Sublessee's expense, cooperate with Sublessee in the pursuit of such claim.
Sublessee shall defend, indemnify and save Sublessor harmless from and
against all costs, expenses, liabilities and damages (including reasonable
counsel fees) resulting from any claims or counterclaims that may be made
against Sublessor by Landlord in connection with or arising out of
Sublessee's pursuit of any claim against Landlord.
9. MODIFICATION OF LEASE:
Sublessor agrees that without Sublessee's prior written consent, it
will not make any modifications of the Lease which would result in an
increase of any obligations or liability, or diminish the rights, of
Sublessor as Tenant thereunder and, correspondingly, result in an increase
of any obligations or liability, or diminish the rights, of Sublessee
hereunder.
10. DIRECT PAYMENT TO LANDLORD; RIGHT OF OFFSET:
Provided and for so long as Landlord so agrees, Sublessee shall make
all payments due to Sublessor hereunder directly to Landlord to be credited
by Landlord against amounts due under the Lease from Sublessor, as tenant
thereunder, to Landlord for corresponding items and Sublessee shall be
entitled to receive directly from Landlord all credits due hereunder from
Sublessor to Sublessee.
11. INSURANCE:
In all insurance policies carried by Sublessee pursuant to the Lease
Sublessee shall name Sublessor and Landlord in the same capacity as the
Lease requires Landlord to be named in such policies.
12. BINDING EFFECT; AMENDMENTS:
This Sublease shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns and may not be cancelled,
modified or amended orally, but only by a writing signed by the parties
sought to be charged.
IN WITNESS WHEREOF, the parties have executed this Sublease as of
the day and year first above written.
"SUBLESSOR"
XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
"SUBLESSEE"
W12/14 WALL ACQUISITION
ASSOCIATES LLC
By: Stellar 14 Wall Associates LLC, its Manager
By: Stellar Promote LLC, its Manager
By: Xxxxxx 99 LLC, its Manager
By: /s/ Xxxxx Xxxxxx
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Xxxxxx Xxxxxx, Manager
EXHIBIT "A"
THE LEASE
Lease Agreement between OTR, an Ohio general partnership, as Landlord,
acting as the duly authorized nominee of the Board of the State Teachers
Retirement System of Ohio ("OTR"), predecessor-in-interest to Xxxxxx
Trinity Associates, LLC ("Landlord"), as landlord, and XXXXXXXXX.XXX LLC, a
Delaware limited liability company, Sublessor's predecessor-in-interest, as
tenant, dated as of August 14, 1996 (the "Initial Lease"), as amended by:
1. First Amendment of Lease between OTR and XXXXXXXXX.XXX LLC dated
as of March 25, 1997 (the "First Amendment");
2. Second Amendment of Lease between OTR and XXXXXXXXX.XXX LLC dated
as of April 13, 1997 (the "Second Amendment");
3. Third Amendment of Lease between Landlord and Sublessordated as of
January 22, 1999 (the "Third Amendment"); and
4. Fourth Amendment of Lease between Landlord and Sublessor dated as of
March 30, 1999.
SCHEDULE 1
0 XXXXXX XXXXXX, XXX XXXX, XXX XXXX
14TH FLOOR SUBLEASE RENTAL
FIXED ANNUAL FIXED MONTHLY
FROM THROUGH RENTAL RATE RENTAL RATE
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Sublease Commencement 31-Jul-99 $313,926.75 $26,160.56
Date
1-Aug-99 31-Jul-00 $330,941.75 $27,578.48
1-Aug-00 31-Jul-01 $347,956.75 $28,996.40
1-Aug-01 Sublease $364,971.75 $30,414.31
Expiration Date
