AGREEMENT OF SUBLEASE
between
BARCLAYS BANK PLC
Sub landlord
and
DVL, INC.
Sub tenant
Dated: as of August 1, 1998
Premises:
--------
Approximately 5,679 rentable
square feet on the 7th floor located at
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
AGREEMENT OF SUBLEASE, made as of the 1st day of
August, 1998, between BARCLAYS BANK PLC, a banking
corporation organized under the laws of England, having
an office at 000 Xxxxxxxx, Xxxx: Facilities Management
and Corporate Services, Xxx Xxxx, Xxx Xxxx 00000
("Sublandlord") and DVL, INC., a Delaware Corporation
having an office at 00 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxx
("Subtenant")
W I T N E S E T H:
- - - - - - - - -
WHEREAS, by Agreement of Lease (the "Xxxxxxxxx"),
dated as of February 9, 1988, between The Xxxxxxx-La
Cholla Joint Venture (as successor-in-interest to
Fidelity Service Corporation) ("OVERLANDLORD"), as
landlord, and Barclays Bank of New York, N.A. (as
predecessor-in-interest to Sublandlord), as tenant,
Overlandlord leased to Sublandlord certain premises (the
"ENTIRE PREMISES") including floors six (6) and seven (7)
of the building (the "BUILDING") known as 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, as more particularly
described in the Xxxxxxxxx; and
WHEREAS, Sublandlord desires to sublease to
Subtenant that portion of the Entire Premises consisting
of all of the rentable square feet on the 7th floor
containing approximately 5,679 rentable square feet (the
"Premises"), of the Building (as more particularly shown
on the plans attached as EXHIBIT "A") and Subtenant
desires to hire the Premises from Sublandlord on the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, it is mutually agreed as
follows:
1. SUBLEASING OF PREMISES. Sublandlord hereby
subleases to Subtenant, and Subtenant hereby hires from
Sublandlord, the Premises, upon and subject to the terms
and conditions hereinafter set forth.
2. TERM. The term (the "Term") of this Sublease
shall be deemed to have commenced on August 1, 1998 (the
"COMMENCEMENT DATE"), and shall terminate at 12:00
midnight on February 7, 2003 (the "EXPIRATION Date") , or
on such earlier date upon which the Term shall expire or
be canceled or terminated pursuant to any of the
conditions or covenants of this Sublease or pursuant to
law. Sublandlord represents that the Expiration Date of
the Xxxxxxxxx is February 8, 2003.
3. FIXED ANNUAL RENT AND ADDITIONAL RENT.
3.1 (i) Subtenant shall pay to Sublandlord, in
currency which at the time of payment is legal tender for
public and private debts in the United States of America,
as fixed annual rent ("FIXED ANNUAL RENT") during the
Term, an amount equal to TWO HUNDRED TWENTY-SEVEN
THOUSAND ONE HUNDRED SIXTY DOLLARS ($227,160) per annum,
payable in equal monthly installments of EIGHTEEN
THOUSAND NINE HUNDRED THIRTY DOLLARS ($18,930.00), for
the period commencing on the Commencement Date and ending
on the Expiration Date, both dates inclusive. Subtenant
shall pay to Sublandlord such monthly installments of
Fixed Annual Rent in advance on the first (1st) day of
each month during the Term. However, upon the execution
of this Sublease, Subtenant shall prepay to Sublandlord
an amount equal to a monthly installment of Fixed Rent
which shall be credited toward the first month of the
Term in which Fixed Rent shall become due.
(ii) So long as no default by Subtenant shall
have occurred and be continuing after notice by
Sublandlord under this Sublease, Subtenant shall be
entitled to concessions of Fixed Annual Rent only equal
to the monthly installments of Fixed Annual Rent that
would otherwise be due pursuant to subsection 3.1(i)
hereof for each of the first through third calendar
months of the Term. In all other respects, Subtenant s
obligations under this Sublease shall commence on the
Commencement Date and continue uninterrupted as provided
for herein.
3.2 (i) Under the terms of the Xxxxxxxxx, for
each Tax Year (as such term is defined in the Xxxxxxxxx)
during the Term, Sublandlord is required to pay to
Overlandlord a Tenant s Tax Payment (as such term is
defined in the Xxxxxxxxx) which amount, as well as the
amount of the Taxes (as such term is defined in the
Xxxxxxxxx) for the Tax Year, the estimated amount of
which is to be set forth on an Escalation Statement (as
such term is defined in the Xxxxxxxxx) which Overlandlord
is to submit to Sublandlord. To the extent that
Sublandlord is required to pay to Overlandlord a Tenant s
Tax Payment and the amount of the Taxes set forth on the
Escalation Statement for any Tax Year exceeds the Taxes
for the fiscal year July 1, 1998 to June 30, 1999
("SUBTENANT S BASE TAX"), Sublandlord shall submit a
statement ("SUBTENANT ESCALATION STATEMENT") to Subtenant
reflecting the amount of the Taxes due for such Tax Year,
and the amount which Subtenant shall pay to Sublandlord,
as Additional Rent (as hereinafter defined), which shall
be an amount ("SUBTENANT S TAX PAYMENT") equal to forty-
eight and 15/100 percent (48.15%) (such percentage shall
be hereinafter referred to as "SUBTENANT S TAX SHARE") of
Tenant s Tax Share of the amount by which Taxes for such
Tax Year exceed Subtenant s Base Tax. Sublandlord and
Subtenant agree that as of the date hereof, Subtenant s
Tax Share is 48.15%; provided however, that if, from time
to time, the number of rentable square feet comprising
the Entire Premises shall change, Subtenant s Tax Share
shall equal a percentage, expressed as a fraction, the
numerator of which shall be the number of rentable square
feet comprising the Premises, from time to time, and the
denominator of which shall be the number of rentable
square feet comprising the Entire Premises, from time to
time, as the same may be adjusted from time to time by
reason of a change in the number of rentable square feet
comprising (i) the Entire Premises pursuant to the
provisions of the Xxxxxxxxx or (ii) the Premises pursuant
to this Sublease. Subtenant s Tax Payment for each Tax
Year shall be due and payable in twelve (12) equal
monthly installments, on the first day of each calendar
month, based upon the Subtenant Escalation Statement
furnished to Subtenant. Sublandlord s failure to render
a Subtenant Escalation Statement during or with respect
to any Tax Year shall not prejudice Sublandlord s right
to render a Subtenant Escalation Statement during or with
respect to any subsequent Tax Year, and shall not
eliminate or reduce Subtenant s obligation to make
Subtenant s Tax Payments pursuant to this Section 3.2 for
such subsequent Tax Year. Upon receipt of a revised
Escalation Statement from Overlandlord, Sublandlord shall
(i) credit the excess, if any, of Subtenant s Tax Payment
over the amount set forth in the Escalation Statement
revised to reflect the actual Taxes for such Tax Year
against subsequent payments under this Section 3.2, or
(ii) Subtenant shall pay to Sublandlord, within twenty
(20) days after being furnished with a revised Subtenant
Escalation Statement, Subtenant s Tax Share of the
excess, if any, of the actual Taxes over the estimated
Taxes for such Tax Year, as the case may be. Sublandlord
shall not be responsible for any inaccuracy in the
Escalation Statement provided to it by Overlandlord or
for any inaccuracy in the Subtenant Escalation Statement
which is based on information provided by Overlandlord to
Sublandlord in the Escalation Statement, and except to
the extent as may be required under the provisions of
this Sublease, Sublandlord shall not be required to
contest any information contained in the Escalation
Statement. In the event that Subtenant requests that
Sublandlord contest the information contained in the
Escalation Statement and Sublandlord refuses to do so,
Subtenant may contest the information contained in the
Escalation Statement, pursuant to all terms and
conditions of Section 5.4 hereof. If, however,
Sublandlord does contest any information concerning the
Tenant s Tax Payment contained in the Escalation
Statement and is entitled to a refund in any amounts paid
in connection with the Escalation Statement, Sublandlord
shall refund to Subtenant the amount of Subtenant s Tax
Share of any such refund.
(ii) Subtenant shall not institute tax reduction
or other proceedings to reduce the assessed valuation of
the Land (as such term is defined in the Xxxxxxxxx) or
the Building, it being expressly understood and agreed
that only Overlandlord shall be eligible to institute
such tax reduction proceedings. Should any such tax
reduction proceedings be successful and a rebate or a
credit is obtained (which rebate or credit shall reflect
the fact that Overlandlord and Sublandlord shall be
entitled to deduct therefrom its respective reasonable
costs and expenses, including, without limitation,
reasonable appraisal accounting and legal fees in
connection therewith) for any Tax Year for which
Subtenant has paid installments of Subtenant s Tax
Payment, Sublandlord, to the extent it shall receive its
share of such rebate or credit, either by payment or a
credit against rental payments under the Xxxxxxxxx, shall
either pay to Subtenant, or credit to Subtenant
(whichever Sublandlord receives under the Xxxxxxxxx)
against the next installments of Fixed Annual Rent and
payments of Additional Rent payable under this Sublease,
an amount equal to Subtenant s Tax Share of any such
rebate or credit (which amount shall not exceed the
amount paid by Subtenant as Subtenant s Tax Payment for
the Tax Year with respect to which such rebate or credit
is obtained) for which Sublandlord shall receive a refund
or credit from Overlandlord.
3.3 Under the terms of the Xxxxxxxxx, for each
Operating Year (as such term is defined in the Xxxxxxxxx)
during the Term, Sublandlord is required to pay to
Overlandlord a Tenant s Expense Payment (as such term is
defined in the Xxxxxxxxx) the estimated amount of which
for the Operating Year, is to be set forth on an
Escalation Statement which Overlandlord. is to submit to
Sublandlord. To the extent that Sublandlord is required
to pay to Overlandlord a Tenant s Expense Payment and the
amount of the Expenses set forth on the Escalation
Statement for any Operating Year exceeds the Expenses for
the calendar year 1999 ("SUBTENANT S BASE EXPENSE
FACTOR"), Sublandlord shall submit a statement
("SUBTENANT ESCALATION STATEMENT") to Subtenant
reflecting the amount of the Expenses due for such
Operating Year, and the amount which Subtenant shall pay
to Sublandlord as Additional Rent (as hereinafter
defined), which shall be an amount ("SUBTENANT S EXPENSE
PAYMENT") equal to forty-eight and 15/100 percent
(48.15%) (such percentage shall be hereinafter referred
to as "SUBTENANT S EXPENSE SHARE") of Tenant s Expense
Share of the amount by which the Expenses for such
Operating Year exceed Subtenant s Base Expense Factor.
Sublandlord and Subtenant agree that as of the date
hereof, Subtenant s Expense Share is 48.15%; provided
however, that if, from time to time, the number of
rentable square feet comprising the Entire Premises shall
change, Subtenant s Expense Share shall equal a
percentage, expressed as a fraction, the numerator of
which shall be the number of rentable square feet
comprising the Premises, from time to time, and the
denominator of which shall be the number of rentable
square feet comprising the Entire Premises, from time to
time, as the same may be~adjusted from time to time by
reason of a change in the number of rentable square feet
comprising (i) the Entire Premises pursuant to the
provisions of the Xxxxxxxxx or (ii) the Premises pursuant
to this Sublease. Subtenant s Expense Payment for each
Operating Year shall be due and payable in twelve (12)
equal monthly installments, on the first day of each
calendar month, based upon the Subtenant Escalation
Statement furnished to Subtenant. Sublandlord s failure
to render a Subtenant Escalation Statement during or with
respect to any Operating Year shall not prejudice
Sublandlord s right to render a Subtenant Escalation
Statement during or with respect to any subsequent
Operating Year, and shall not eliminate or reduce
Subtenant s obligation to make Subtenant s Expense
Payments pursuant to this Section 3.3 for such subsequent
Operating Year. Upon receipt of a revised Escalation
Statement from Overlandlord, Sublandlord shall (i) credit
the excess, if any, of Subtenant s Expense Payment over
the amount set forth in the Escalation Statement revised
to reflect the actual Expenses for such Operating Year
against subsequent payments under this Section 3.3, or
(ii) Subtenant shall pay to Sublandlord, within twenty
(20) days after being furnished with a revised Subtenant
Escalation Statement, Subtenant s Expense Share of the
excess, if any, of the actual Expenses over the estimated
Expenses for such Operating Year, as the case may be.
Sublandlord shall not be responsible for any inaccuracy
in the Escalation Statement provided to it by
Overlandlord or for any inaccuracy in the Subtenant
Escalation Statement which is based on information
provided by Overlandlord to Sublandlord in the Escalation
Statement, and except to the extent as may be required
under the provisions of this Sublease, Sublandlord shall
not be required to contest any information contained in
the Escalation Statement. In the event that Subtenant
requests that Sublandlord contest the information
contained in the Escalation Statement and Sublandlord
refuses to do so, Subtenant may contest the information
contained in the Escalation Statement, pursuant to all
terms and conditions of Section 5.4 hereof. If, however,
Sublandlord does contest any information concerning the
Tenant s Expense Payment contained in the Escalation
Statement and is entitled to a refund in any amounts paid
in connection with the Escalation Statement, Sublandlord
shall refund to Subtenant the amount of Subtenant s
Expense Share of any such refund.
3.4 If, pursuant to Section 3.2 (i) hereof,
Subtenant s Tax Share or Subtenant s Expense Share shall
change during a Tax Year or an Operating Year, as the
case may be, then the amount of Subtenant s Tax Payment
or Subtenant s Expense Payment for such Tax Year or
Operating Year, as the case may be, shall be adjusted to
reflect such change in Subtenant s Tax Share or
Subtenant s Expense Share.
3.5 In addition to the foregoing, Subtenant shall
pay to Sublandlord, as Additional Rent, upon the
rendition to Subtenant of a xxxx therefor, one hundred
percent (100%) of all costs, charges and sums charged
against Sublandlord under the Xxxxxxxxx allocable solely
to the Premises not otherwise expressly provided for
pursuant to Sections 3.3 and 3.4 or otherwise herein.
3.6 (a) All Fixed Annual Rent, Additional Rent
and all other costs, charges and sums payable by
Subtenant hereunder (collectively, "Rental"), shall
constitute rent under this Sublease, and except as
otherwise set forth herein, shall be payable to
Sublandlord on the first day of each calendar month of
the Term, and shall be paid to Sublandlord at its address
as set forth in Article 14 hereof, unless Sublandlord
shall otherwise so direct in writing.
(b) If Sublandlord defaults in the payment of
any rent it owes to Overlandlord under the Xxxxxxxxx,
upon request of Overlandlord, Subtenant shall pay any
Fixed Annual Rent or Additional Rent it owes under the
Sublease directly to Overlandlord; provided, however, the
receipt of any sums by Overlandlord from Subtenant shall
not be deemed to release Sublandlord from its obligations
under the Xxxxxxxxx, nor shall such collection be deemed
to create a direct tenancy between Overlandlord and
Subtenant.
3.7 Subtenant shall promptly pay the Rental
as and when the same shall become due and payable without
set off or deduction of any kind whatsoever (except as
otherwise provided in this Sublease), and, in the event
of Subtenant s failure to pay the same when due (subject
to any grace periods provided herein), Sublandlord shall
have all of the rights and remedies provided for herein
or at law or in equity, in the case of non-payment of
rent. It is expressly agreed and understood that
Subtenant s obligation to pay Rental shall commence on
the Commencement Date (subject to the provisions of
Section 3.1(ii)); PROVIDED, however, that in the event
that the Commencement Date is not the first day of a
calendar month, Rental for the first month of the Term
shall be prorated accordingly.
3.8 Sublandlord s failure during the Term to
prepare and deliver any statements or bills required to
be delivered to Subtenant hereunder, or Sublandlord s
failure to make a demand under this Article 3 or under
any other provisions of this Sublease shall not in any
way be deemed to be a waiver of, or cause Sublandlord to
forfeit or surrender its rights to collect any Additional
Rent which may have become due pursuant to this Article
3 during the Term. Subtenant s liability for Fixed Annual
Rent and Additional Rent due under this Article 3
accruing during the Term, and Sublandlord s obligation to
refund overpayments of or adjustments to Fixed Annual
Rent or Additional Rent paid to it by Subtenant, shall
survive the expiration or sooner termination of this
Sublease. Notwithstanding the foregoing, Subtenant shall
have no obligations to make any payments under this
Article 3 if Sublandlord has not first requested such
payment by the third anniversary following the Expiration
Date.
3.9 Except as otherwise provided herein, in no
event shall any adjustment of any payments payable by
Subtenant hereunder result in a decrease in Fixed Annual
Rent, nor shall any adjustment of Subtenant s Operating
Payment result in a decrease in Subtenant s Tax Payment,
nor shall any adjustment of Subtenant s Tax Payment
result in a decrease in Subtenant s Operating Payment.
Accordingly, the payment of (i) Subtenant s Operating
Payment under this Article 3 is an obligation
supplemental to Subtenant s obligations to pay Fixed
Annual Rent and Subtenant s Tax Payment and (ii)
Subtenant s Tax Payment under this Article 3 is an
obligation supplemental to Subtenant s obligations to pay
Fixed Annual Rent and Subtenant s Operating Payment.
3.10 For purposes of this Sublease, the term
"ADDITIONAL RENT" shall include, without limitation,
individually and collectively, Subtenant s Tax Payment
and Subtenant s Operating Payment.
4. ELECTRICITY. The Premises shall be directly
metered as provided in Article 43 of the Xxxxxxxxx.
5. SUBORDINATION TO AND INCORPORATION OF THE
XXXXXXXXX.
5.1 This Sublease is in all respects subject
and subordinate to the terms, conditions and covenants of
the Xxxxxxxxx, and to all matters to which the Xxxxxxxxx
is subject and subordinate. Sublandlord represents that
a true and complete copy of the Xxxxxxxxx is annexed to
this Sublease as Exhibit B. In the event of termination,
re- entry or dispossession by the Overlandlord under the
Xxxxxxxxx, Overlandlord, may, at its option, take over
all of the right, title and interest of Sublandlord under
this Sublease, and Subtenant shall, at Overlandlord s
option, attorn to Overlandlord pursuant to the provisions
of this Sublease, except that Overlandlord shall not (i)
be liable for any previous act or omission of Sublandlord
under this Sublease, (ii) be subject to any offset, not
expressly provided in this Sublease, which theretofore
accrued to Subtenant against Sublandlord, (iii) be bound
by any previous modification of this Sublease (as to
which Overlandlord has not previously consented) or by
any previous prepayment of more than one month s rent,
(iv) be bound by any covenant to undertake or complete
any construction of the Premises or any portion thereof,
and (v) be bound by any obligation to make any payment to
or on behalf of Subtenant. Subtenant shall indemnify
Sublandlord for, and shall hold it harmless from and
against, any and all losses, damages, penalties,
liabilities, costs and expenses, including, without
limitation, reasonable attorneys fees and disbursements,
which may be sustained or incurred by Sublandlord by
reason of Subtenant s failure to keep, observe or perform
any of the terms, provisions, covenants, conditions and
obligations on Sublandlord s part to be kept, observed or
performed under the Xxxxxxxxx with respect to the
Premises to the extent same shall have been incorporated
herein (provided, however, that Subtenant s obligations
to pay any sums of money shall be solely pursuant to this
Sublease), or otherwise arising out of or with respect to
Subtenant s use and occupancy of the Premises from and
after the Commencement Date in violation of the terms of
this Sublease. Sublandlord shall indemnify Subtenant for,
and shall hold it harmless from and against, any and all
losses, damages, penalties, liabilities, costs and
expenses, including, without limitation, reasonable
attorneys fees and disbursements, which may be sustained
or incurred by Subtenant by reason of Sublandlord s
failure to keep, observe or perform any of the terms,
provisions, covenants, conditions and obligations on
Sublandlord s part to be kept, observed or performed
under the Xxxxxxxxx with respect to the Premises to the
extent same shall have been incorporated herein.
5.2 Except as otherwise expressly provided in this
Sublease, the terms, covenants, provisions and conditions
of the Xxxxxxxxx are incorporated herein by reference
MUTATIS MUTANDIS so that (except to the extent that they
are inapplicable to, inconsistent with, or are modified
by the provisions of this Sublease) for the purpose of
incorporation by reference, each and every term,
covenant, agreement and provision and condition of the
Xxxxxxxxx binding upon the tenant thereunder shall, in
respect of this Sublease, bind the Subtenant with the
same force and effect as if such terms, covenants,
provisions and conditions were completely set forth in
this Sublease, including, without limitation, all of the
default provisions set forth in the Xxxxxxxxx. It is
specifically acknowledged that (i) none of the rights of
the tenant under the Xxxxxxxxx shall inure to the benefit
of the Subtenant except to the extent expressly set
forth in this Sublease and (ii) all of the rights of the
landlord under the Xxxxxxxxx shall inure to the benefit
of Sublandlord. Notwithstanding anything contained herein
to the contrary, Subtenant has no right to exercise any
expansion or renewal rights or grant any waivers. The
following provisions of the Xxxxxxxxx shall not be
incorporated into this Sublease: Article 37; Sections
38.01.A. (a) and (d) ; Sections 38.02.A. (a) and (c);
Section 46.01; Section 47.01; Section 50.01; Section
50.02; Section 50.03; Section 53.01; Article 61; Article
62; Article 63; Article 64; Article 65; Article 66;
Article 67 and Schedule C.
5.3 All terms, covenants, conditions and
provisions of the Xxxxxxxxx, except as provided in
Section 5.2 hereof, are hereby incorporated in this
Sublease with the same force and effect as if set forth
in full herein. For this purpose, wherever the term
"Landlord", "Tenant", "this lease" or "Demised Premises"
appear in the Xxxxxxxxx, the same shall be deemed to
refer in this Sublease to "Sublandlord", "Subtenant",
"this Sublease" and "Premises", respectively.
5.4 Notwithstanding anything to the contrary
contained in this Sublease, Subtenant may exercise
Sublandlord s rights as tenant under the Xxxxxxxxx to
enforce the performance by Overlandlord of the building
service or maintenance obligations or any other
obligations owed by Overlandlord which benefit Subtenant
under the Sublease. If Overlandlord refuses to recognize
that Subtenant is thus subrogated to Sublandlord s
rights, upon Subtenant s request, Sublandlord will use
reasonable efforts to enforce its rights under the
Xxxxxxxxx for Subtenant s benefit (including the giving
of notices to Overlandlord). Subtenant will reimburse
Sublandlord for reasonable fees and costs incurred in
connection with the enforcement of such rights.
Notwithstanding the foregoing, Sublandlord shall have no
obligation to commence any legal proceeding to obtain any
relief sought by Subtenant by reason of Overlandlord s
breach of its obligations under the Sublease; provided,
however, that Sublandlord shall sign, to the extent
Sublandlord s signature is necessary, such papers as are
reasonably required to enable Subtenant to proceed in
Sublandlord s name, in any legal proceeding to enforce
Sublandlord s obligations under the Xxxxxxxxx. Subtenant
shall indemnify Sublandlord (and hold Sublandlord
harmless) from and against any and all loss, cost,
liability, judgment, damage or expense (including
reasonable fees and costs) which Sublandlord incurs, or
which may be asserted against Sublandlord, by reason of
any such legal proceeding. Subtenant agrees to provide
Sublandlord with additional adequate security, reasonably
requested by Sublandlord, to cover the costs involved
with such legal proceedings. This Section shall survive
the expiration or earlier termination of this Sublease.
6. USE; SIGNAGE. Subtenant shall use and occupy
the Premises for executive and general offices, and not
in contravention with Article 45 of the Xxxxxxxxx.
Subject to the provisions of the Xxxxxxxxx, Subtenant
shall be permitted to have its name displayed on exterior
doors of the Premises and in the 7th floor elevator
lobby, the location, size and design of which signage
shall be subject to Sublandlord s approval. Subtenant is
entitled to 48.15% (or a percentage equal to Subtenant s
Expense Share) of the number of Sublandlord s listings in
the Building lobby directory.
7. COVENANTS WITH RESPECT TO THE XXXXXXXXX.
7.1 (i) Subtenant shall not do anything
that would constitute a default under the terms of the
Xxxxxxxxx or omit to do anything that Subtenant is
obligated to do under the terms of this Sublease so as to
cause there to be a default under the Xxxxxxxxx.
(ii) Sublandlord shall not do anything
that would constitute a default under the terms of the
Xxxxxxxxx or omit to do anything that Sublandlord is
obligated to do under the terms of the Xxxxxxxxx (and
Subtenant is not solely obligated to do under the terms
of this Sublease) so as to cause a default under the
Xxxxxxxxx. Sublandlord agrees that it shall not consent
to any modification or amendment of the Xxxxxxxxx which
would have a material adverse effect on the rights or
obligations of Subtenant under this Sublease, unless it
obtains the prior consent of Subtenant to such
modification or amendment.
(iii) Sublandlord covenants and agrees
that (a) it shall not agree to shorten the term of the
Xxxxxxxxx with respect to the Premises or voluntarily
surrender its interest as tenant in and to the Xxxxxxxxx
with respect to the Premises without the prior consent of
Subtenant, except in the event of a casualty or
condemnation and (b) if the Xxxxxxxxx is terminated by
reason of a default by Overlandlord under any mortgage,
and as a result thereof, Sublandlord may be entitled to
a new lease for the Premises (the "NEW LEASE") from a
mortgagee, Sublandlord shall be under no obligation to
enter into such New Lease.
7.2 The time limits set forth in the Xxxxxxxxx
for the giving of notices, making demands, performance of
any act, condition or covenant, or the exercise of any
right, remedy or option, are changed for the purpose of
this Sublease, by lengthening or shortening the same in
each instance, as appropriate, so that notices may be
given, demands made, or any act, condition or covenant
performed, or any right, remedy or option hereunder
exercised, by Sublandlord or Subtenant, as the case may
be, (and each party covenants that it will do so) within
three (3) days prior to the expiration of the time limit,
taking into account the maximum grace period, if any,
relating thereto contained in the Xxxxxxxxx. Each party
shall promptly deliver to the other party copies of all
notices, requests or demands which relate to the Premises
or the use or occupancy thereof after receipt of same
from Overlandlord.
8. Services and Repairs.
8.1 Notwithstanding anything to the contrary
contained in this Sublease or the Xxxxxxxxx (except to
the extent provided in Section 16.1 hereof), Sublandlord
shall not be required to provide any of the services that
Overlandlord has agreed to provide, whether or not
specified in the Xxxxxxxxx or required by law, or make
any of the repairs or restorations that Overlandlord has
agreed to make pursuant to the Xxxxxxxxx or is required
to make by law, or comply with any laws or requirements
of any governmental authorities, or take any other action
that Overlandlord has agreed to provide, furnish, make,
comply with, or take, or cause to be provided furnished,
made, complied with or taken under the Xxxxxxxxx, but
Sublandlord agrees to use all diligent efforts to obtain
the same from Overlandlord (provided, however, that
Sublandlord shall not be obligated to use such efforts or
take any action which might give rise to a default under
the Xxxxxxxxx), and Subtenant shall rely upon, and look
solely to, Overlandlord for the providing, furnishing or
making thereof or compliance therewith. The costs
incurred in obtaining the foregoing shall be apportioned
between Sublandlord and Subtenant to the extent each
party benefits from the same. Sublandlord agrees that it
shall promptly request from Overlandlord any additional
services requested by Subtenant that Overlandlord is
obligated to furnish pursuant to the Xxxxxxxxx and it
shall use diligent efforts, at Subtenant s sole cost and
expense, to obtain the same from Overlandlord on
Subtenant s behalf. If Overlandlord shall default in the
performance of any of its obligations under the Xxxxxxxxx
Sublandlord shall, upon request of Subtenant, timely
institute and diligently prosecute any action or
proceeding which Subtenant, in its reasonable judgment,
deems meritorious, in order to have Overlandlord make
such repairs, provide such services or comply with any
other obligation of Overlandlord under the Xxxxxxxxx or
as required by law provided that the costs incurred in
and the benefits derived from obtaining the foregoing
shall be apportioned between Sublandlord and Subtenant to
the extent each party benefits from the same. Sublandlord
shall, at the request of Subtenant, enforce any
guarantees or warranties made by Overlandlord to
Sublandlord under the Xxxxxxxxx with respect to the
Premises, provided that the costs incurred in and the
benefits derived from enforcing such guaranties shall be
apportioned between Sublandlord and Subtenant to the
extent each party benefits from the same. Subtenant shall
indemnify and hold harmless Sublandlord from and against
any and all such claims arising from or in connection
with such request, action or proceeding. This indemnity
and hold harmless agreement shall include indemnity from
and against any and all liability, fines, suits, demands,
costs and expenses of any kind or nature, including,
without limitation, reasonable attorneys fees and
disbursements, incurred in connection with any such
claim, action or proceeding brought thereon. Provided
that Sublandlord has otherwise complied with the terms
and provisions of this Section 8.1, Subtenant shall not
make any claim against Sublandlord for any damage which
may arise, nor shall Subtenant s obligations hereunder be
diminished, by reason of (i) the failure of Overlandlord
to keep, observe or perform any of its obligations
pursuant to the Xxxxxxxxx unless such failure is due to
Sublandlord s negligence, willful misconduct or default
under the Xxxxxxxxx, or (ii) the acts or omissions of
Overlandlord or any of its agents, contractors, servants,
employees, invitees or licensees. The provisions of this
Article 8 shall survive the expiration or earlier
termination of the Term hereof.
9. CONSENTS.
9.1 Sublandlord agrees that whenever its
consent or approval is required hereunder, or where
something must be done to Sublandlord s satisfaction, it
shall not unreasonably withhold or delay such consent or
approval; provided, however, that whenever the consent or
approval of Overlandlord, the lessor under a superior
lease, or the mortgagee under a mortgage, as the case may
be, is also required pursuant to the terms of the
Xxxxxxxxx if Overlandlord, the lessor under a superior
lease, or the mortgagee under a mortgage shall withhold
its consent or approval for any reason whatsoever,
Sublandlord shall not be deemed to be acting unreasonably
if it shall also withhold its consent or approval. If
Overlandlord shall withhold its consent or approval in
connection with this Sublease or the Premises in any
instance where, under the Xxxxxxxxx, the consent or
approval of Overlandlord may not be unreasonably
withheld, Sublandlord, upon the request and at the
expense of Subtenant, shall either (i) timely institute
and diligently prosecute any action or proceeding which
Subtenant, in its reasonable judgment, deems meritorious,
in order to dispute such action by Overlandlord or (ii)
permit Subtenant, to the extent allowable under the
Xxxxxxxxx, to institute and prosecute such action or
proceeding in the name of Sublandlord, provided that
Subtenant shall keep Sublandlord informed of its actions
and shall not take any action which might give rise to a
default under the Xxxxxxxxx. Subtenant shall indemnify
and hold harmless Sublandlord from and against any and
all such claims arising from or in connection with such
request, action or proceeding.
9.2 If Subtenant shall request Sublandlord s
consent to or approval of any matter hereunder with
respect to which Sublandlord has expressly agreed herein
that its consent or its approval shall not be
unreasonably withheld, and Sublandlord shall fail or
refuse to give such consent or approval, and Subtenant
shall dispute the reasonableness of Sublandlord s refusal
to give such consent or approval, such dispute shall be
finally determined by arbitration in The City of New York
in accordance with the following provisions of this
Section. Within ten business days following the giving of
any notice by Subtenant to Sublandlord stating that it
wishes such dispute to be so determined, Sublandlord and
Subtenant shall each give notice to the other setting
forth the name and address of an arbitrator designated by
each party giving such notice. If either party shall fail
to give notice of such designation within said ten
business days, then the arbitrator chosen by the other
party shall make the determination of Sublandlord s
reasonableness or unreasonableness alone in accordance
with the provisions stated below, except as such
provisions relate to the number of arbitrators. The two
arbitrators shall designate a third arbitrator. If the
two arbitrators shall fail to agree upon the designation
of a third arbitrator within five business days after the
designation of the second arbitrator, then either party
may apply to the New York office of the American
Arbitration Association for the designation of such third
arbitrator. All arbitrators shall be persons who shall
have had at least fifteen years of continuous experience
in the practice of commercial real estate law in the
Borough of Manhattan, The City of New York and who are
not acting and have not have acted as legal counsel for
either party to such dispute. The three arbitrators shall
conduct such hearings as they deem appropriate, making
their determination in writing and giving notice to
Sublandlord and Subtenant of their determination as soon
as practicable, and if possible, within five business
days after the designation of the third arbitrator; the
concurrence of any two of said arbitrators shall be
binding upon Sublandlord and Subtenant, or, in the event
no two of the arbitrators shall render a concurrent
determination, then the determination of the third
arbitrator designated shall be binding upon Sublandlord
and Subtenant. The determination of such arbitrators
shall be limited to the following issues: first, whether
Sublandlord was reasonable or unreasonable in failing to
grant the consent or approval in question and, second, if
the determination on the first issue is that Sublandlord
was unreasonable, whether Sublandlord acted maliciously
or in bad faith in failing to grant such consent or
approval. Without limiting the generality of the
immediately preceding sentence, the arbitrators shall not
have the power to award compensatory, consequential,
punitive or other damages to any party. Judgment upon any
determination rendered in any arbitration held pursuant
to this Section shall be final and binding upon
Sublandlord and Subtenant, whether or not a judgment
shall be entered in any court. Each party shall pay its
own counsel fees and expenses, if any, in connection with
any arbitration under this Section, including the
expenses and fees of any arbitrator selected by it in
accordance with the provisions of this Section, and the
parties shall share all other expenses and fees of any
such arbitration. The arbitrators shall be bound by the
provisions of this Sublease, and shall not add to,
subtract from or otherwise modify such provisions. If the
determination shall be adverse to Sublandlord,
Sublandlord, nevertheless, shall not be liable to
Subtenant for a breach of Sublandlord s covenant not to
unreasonably withhold such consent or approval, and
Subtenant s sole remedy in such event shall be (i) the
granting of consent or approval by Sublandlord with
respect to such request under this Sublease and (ii) the
payment by Sublandlord of Subtenant s reasonable
attorneys fees in obtaining such determination.
Notwithstanding the preceding sentence, if the
arbitration described above shall have finally determined
that Sublandlord shall have maliciously or otherwise in
bad faith withheld any such consent or approval,
Subtenant may seek compensatory damages against
Sublandlord. Any such action for damages against
Sublandlord shall be determined in a separate proceeding
by a court of competent jurisdiction. Except in the case
of a determination by the arbitration that Landlord
withheld consent with malice or in bad faith as described
above, Sublandlord shall have no liability for damages to
Subtenant for Sublandlord s refusal or failure to give
such consent or approval. The remedy provided in this
Section is exclusive with respect to the subject matter
thereof and, as a material inducement to Sublandlord to
agree to act reasonably to the extent expressly provided
herein, Subtenant expressly waives any other remedies,
judicial or otherwise.
10. Termination of Xxxxxxxxx. If the Xxxxxxxxx
is terminated by Overlandlord pursuant to the terms
thereof with respect to all or any portion of the
Premises prior to the Expiration Date for any reason
whatsoever, including, without limitation, by reason of
casualty or condemnation, this Sublease shall thereupon
terminate with respect to any corresponding portion of
the Premises, and (unless such termination of the
Xxxxxxxxx shall be as a result of Sublandlord s default
thereunder or a voluntary surrender of the Premises,
other than a surrender of the Premises permitted under
the Xxxxxxxxx with respect to a termination of the
Xxxxxxxxx by reason of casualty to or condemnation of the
Premises or the Building) Sublandlord shall not be liable
to Subtenant by reason thereof. In the event of such
termination, Sublandlord shall return to Subtenant the
Security Deposit and that portion of the Rental paid in
advance by Subtenant with respect to such portion of the
Premises, if any, prorated as of the date of such
termination.
11. SUBLEASE, NOT ASSIGNMENT. Notwithstanding
anything contained herein, this Sublease shall be deemed
to be a sublease of the Premises and not an assignment,
in whole or in part, of Sublandlord s interest in the
Xxxxxxxxx.
12. DAMAGE, DESTRUCTION, FIRE AND OTHER CASUALTY;
CONDEMNATION. Notwithstanding anything to the contrary
contained in this Sublease or in the Xxxxxxxxx
incorporated herein by reference, Subtenant shall not
have the right to terminate this Sublease as to all or
any part of the Premises, or be entitled to an abatement
of Fixed Annual Rent, Additional Rent or any other item
of Rental, by reason of a casualty or condemnation
affecting the Premises unless Sublandlord is entitled to
terminate the Xxxxxxxxx or is entitled to a corresponding
abatement with respect to its corresponding obligation
under the Xxxxxxxxx. If Sublandlord is entitled to
terminate the Xxxxxxxxx for all or any portion of the
Premises by reason of casualty or condemnation, Subtenant
may terminate this Sublease as to any corresponding part
of the Premises by written notice to Sublandlord given at
least five (5) business days prior to the date(s)
Sublandlord is required to give notice to Overlandlord of
such termination under the terms of the Xxxxxxxxx.
13. NO WAIVERS. Failure by Sublandlord or
Subtenant in any instance to insist upon the strict
performance of any one or more of the obligations of the
other party under this Sublease, or to exercise any
election herein contained, shall in no manner be or be
deemed to be a waiver of any defaults or breaches
hereunder or of any rights and remedies by reason of such
defaults or breaches, or a waiver or relinquishment for
the future of the requirement of strict performance of
any and all obligations hereunder. Further, no payment by
Subtenant or receipt by Sublandlord of a lesser amount
than the correct amount or manner of payment of Rental
due hereunder shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be
deemed to effect or evidence an accord and satisfaction,
and Sublandlord may accept any checks or payments as made
without prejudice to Sublandlord s right to recover the
balance or pursue any other remedy in this Sublease or
otherwise provided at law or equity.
14. NOTICES. Any notice, statement, demand,
consent, approval, advice 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
(collectively, "COMMUNICATIONS") shall be in writing and
shall be deemed to have been properly given, rendered or
made only if sent by personal delivery, receipted by the
party to whom addressed, or registered or certified mail,
return receipt requested, posted in a United States post
office station in the continental United States,
addressed (i) to Sublandlord at its address first above
written, and (ii) to Subtenant at the address set forth
on the first page of this Sublease (Attn: General
Counsel) until Subtenant shall have moved into the
Premises, and thereafter, at the Premises. All such
communications shall be deemed to have been given,
rendered or made when delivered and receipted by the
party to whom addressed, in the case of personal
delivery, or three (3) days after the day so mailed.
Either party may, by notice as aforesaid actually
received, designate a different address or addresses for
communications intended for it.
15. BROKER. Subtenant and Sublandlord each
covenants, warrants and represents to the other that each
has had no dealings, conversations or negotiations with
any broker concerning the execution and delivery of this
Sublease other than Xxxxxxx & Wakefield ( the "Broker")
. Subtenant and Sublandlord each agrees to indemnify and
hold each other harmless from and against any and all
claims made by any broker or other party (other than the
Broker with respect to Subtenant s indemnity to
Sublandlord) for any brokerage commissions, finder s fee
or similar compensation and all costs, expenses and
liabilities in connection therewith, including, without
limitation, any liability to Overlandlord arising out of,
or in connection with, the Consent (as hereinafter
defined), and reasonable attorneys fees and
disbursements, arising out of any claim of or liability
to any broker or such other party who shall claim to have
dealt solely with such indemnifying party in connection
with this transaction (other than the Broker).
Sublandlord shall pay any brokerage commissions due the
Broker in connection with this transaction pursuant to a
separate agreement between Sublandlord and Broker. The
provisions of this Article 15 shall survive the
expiration or earlier termination of the Term hereof.
16. CONDITION OF THE PREMISES; SUBLANDLORD WORK.
16.1 Sublandlord has not made and does not
make any representations or warranties as to the physical
condition of the Premises, the use to which the Premises
may be put, or any other matter or thing affecting or
relating to the Premises, except as specifically set
forth in this Sublease. Sublandlord shall have no
obligation whatsoever to alter, improve, decorate or
otherwise prepare the Premises for Subtenant s occupancy.
Sublandlord shall deliver the Premises on the
Commencement Date in broom clean condition, and
Sublandlord s furnishings, fixtures and equipment (in
current "as-is" condition) shall remain for Subtenant s
use, (which, as long as no Event of Default has occurred
hereunder, shall be retained by Subtenant upon the
expiration of this Sublease) which Subtenant covenants
and agrees to maintain in good order and condition
throughout the Term.
16.2 The indemnity in Section 8 hereof shall
not apply to any efforts by Subtenant to require
Overlandlord to remedy any problems in connection with
the air conditioning system.
16.3 Sublandlord shall not be liable for any
cost in connection with remedying any problems in
connection with the air conditioning system or the
security system for the premises.
16.4 Upon the Expiration Date or earlier
termination of the Term, Subtenant shall quit and
surrender the Premises "broom-clean" to Sublandlord in
good order and repair, except for ordinary wear and tear
and such damage or destruction as Overlandlord or
Sublandlord is required to repair or restore under the
Xxxxxxxxx or this Sublease. Notwithstanding anything to
the contrary contained in this Sublease or in Article 3
of the Xxxxxxxxx, Subtenant shall not be obligated to
remove any leasehold improvements in the Premises
existing on the Commencement Date or to restore the
Premises to its condition prior to the Commencement Date.
16.5 Upon the Expiration Date or earlier
termination of the Term, Subtenant shall either (i)
remove any Alterations (as defined herein) made by
Subtenant or (ii) reimburse Sublandlord for the
incremental cost to Sublandlord for the removal of any of
Subtenant s Alterations which Overlandlord requires,
pursuant to the Xxxxxxxxx, to be removed by Sublandlord
upon its surrender of the Entire Premises. The provisions
of this subsection 16.5 shall survive the expiration of
this Sublease.
16.6 If the Premises are not surrendered upon
the termination of this Sublease, Subtenant hereby
indemnifies Sublandlord and holds Sublandlord harmless
against any loss and/or liability resulting from delay by
Subtenant in so surrendering the Premises, including,
without limitation, any claims made by any succeeding
tenant or prospective tenant founded-upon such delay, or
any loss of a prospective tenancy relating to such delay.
16.7 In the event Subtenant remains in
possession of the Premises after the termination of this
Sublease without the execution of a new sublease,
Subtenant, at the option of Sublandlord, may be deemed to
be occupying the Premises as a tenant from month-to-
month, at a monthly rental equal to three (3) times the
Rental payable during the last month of the Term, subject
to all other terms of the Sublease insofar as the same
are applicable to a month-to month tenancy.
17. CONSENT OF OVERLANDLORD TO THIS SUBLEASE.
Subtenant hereby acknowledges and agrees that this
Sublease is subject to and conditioned upon Sublandlord
obtaining the written consent (the "CONSENT") of
Overlandlord as provided in the Xxxxxxxxx. Such Consent
shall not be deemed or construed to modify, amend or
affect the terms and provisions of the Xxxxxxxxx or
Sublandlord s obligations thereunder, which obligations
shall continue as if the Sublease had not been made.
Promptly following the execution and delivery of this
Sublease by Sublandlord and Subtenant, Sublandlord shall
submit this Sublease to Overlandlord. It is expressly
understood and agreed that notwithstanding anything to
the contrary contained herein, this Sublease shall not be
valid, nor shall Subtenant take possession of the
Premises or any part thereof, until an executed
counterpart of this Sublease has been delivered to
Overlandlord, and Overlandlord has delivered its Consent
thereto. Subtenant hereby agrees that it shall cooperate
in good faith with Sublandlord and shall comply with any
reasonable requests made of Subtenant by Sublandlord or
Overlandlord in the procurement of the Consent. In no
event shall Sublandlord or Subtenant be obligated to make
any payment to Overlandlord in order to obtain the
Consent or the consent to any provision hereof, other
than as expressly set forth in the Xxxxxxxxx. In the
event that Overlandlord shall not have executed and
delivered the Consent within thirty (30) days after the
date of this Sublease, either party shall have the right
to cancel this Sublease by written notice given to the
other at any time thereafter prior to the execution and
delivery of the Consent, and with the giving of such
notice this Sublease shall be deemed canceled and of no
further force or effect and neither party shall have any
liability or obligation to the other in respect thereof
except that Sublandlord shall return to Subtenant the
first month s rent and the Security Deposit.
18. ASSIGNMENT, SUBLETTING AND MORTGAGING.
18.1 Subtenant shall not further assign,
sell, transfer (whether by operation or law or
otherwise), pledge, mortgage or otherwise encumber this
Sublease or any portion of its interest in the Premises,
nor sublet all or any portion of the Premises or permit
any other person or entity to use or occupy all or any
portion of the Premises without the consent of both
Sublandlord and Overlandlord, and in accordance with the
provisions of the Xxxxxxxxx.
18.2 Subtenant shall not enter into any
license, concession or other agreement which provides for
rental or any other payments for use, occupancy or
utilization of the Premises or any portion thereof based
in whole or in part on the net income or profits derived
by any person from the Premises or such portion.
19. SECURITY DEPOSIT. Upon the execution
of this Sublease, Subtenant shall deposit with
Sublandlord an amount equal to three (3) months Fixed
Rent ($56,790.00), as security (the "Security") 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
Rental, Sublandlord may use, apply or retain the whole
or any part of the Security to the extent required for
the payment of any Rental or any other sum as to which
Subtenant is in default or for any sum which Sublandlord
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 Premises, whether such damages or
deficiency accrued before or after summary proceedings or
other re-entry by Sublandlord. In the event that
Subtenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of the
Sublease, 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 Premises to
Sublandlord. Subtenant further covenants that it will
not assign or encumber or attempt to assign or encumber
the Security and that neither Sublandlord nor its
successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or
attempted encumbrance. In the event Sublandlord applies
or retains any portion or all of the Security deposited,
Subtenant shall forthwith fully restore the amount so
applied or retained.
20. ALTERATIONS AND MAINTENANCE.
20.1 Subtenant shall not make any
alterations, installations, improvements, additions,
decorations, replacements or other physical changes
(collectively, "ALTERATIONS") in or about the Premises
without the prior consent of Sublandlord as required in
accordance with Articles 3 and 57 of the Xxxxxxxxx.
20.2 Subtenant shall take good care of
and maintain in good order and condition the Premises and
the equipment and the fixtures and the appurtenances
therein, subject to reasonable wear and tear. The
foregoing sentence shall not be deemed to otherwise
affect the Subtenant s maintenance obligations set forth
in Article 4 of the Xxxxxxxxx, which provisions have been
incorporated herein pursuant to Section 5.2 hereof.
21. MISCELLANEOUS.
21.1 This Sublease contains the entire
agreement between the parties and all prior negotiations
and agreements are merged in this Sublease. Any agreement
hereafter made shall be ineffective to change, modify or
discharge this Sublease in whole or in part unless such
agreement is in writing and signed by the parties hereto.
No provision of this Sublease shall be deemed to have
been waived by Sublandlord or Subtenant unless such
waiver be in writing and signed by Sublandlord or
Subtenant, as the case may be. The covenants and
agreements contained in this Sublease shall bind and
inure to the benefit of Sublandlord and Subtenant and
their respective permitted successors and assigns.
21.2 In the event that any provision of this
Sublease shall be held to be invalid or unenforceable in
any respect, the validity, legality or enforceability of
the remaining provisions of this Sublease shall be
unaffected thereby.
21.3 The paragraph headings appearing herein
are for purpose of convenience only and are not deemed to
be a part of this Sublease.
21.4 This Sublease is offered to Subtenant
for signature with the express understanding and
agreement that this Sublease shall not be binding upon
Sublandlord unless and until Sublandlord shall have
executed and delivered a fully executed copy of this
Sublease to Subtenant.
21.5 All insurance obtained by Subtenant
shall name Sublandlord, and such other parties as may be
required in accordance with the Xxxxxxxxx, as additional
named insureds as their interests may appear.
21.6 This Sublease shall be governed by,
and construed in accordance with, the laws of the State
of New York.
21.7 Sublandlord represents that to the
best of its knowledge, neither Overlandlord nor
Sublandlord is in default under the Xxxxxxxxx, that the
Xxxxxxxxx is in full force and effect and that
Sublandlord has not been notified that Overlandlord is in
default under any mortgage or other agreement affecting
the Building.
21.8 If Millennium Financial Services,
Inc. shall fail to observe and perform any provisions of
any other sublease with Sublandlord for space in the
Building, where such failure continues beyond any grace
period set forth in such other sublease for the remedying
of such failure, then in such event, Sublandlord may at
any time thereafter give notice to Subtenant stating that
this Sublease and the Sublease Term shall automatically
expire and terminate on the date specified in such
notice, whereupon this Sublease and the Sublease Term and
all rights of Subtenant under this Sublease shall
automatically expire and terminate and Subtenant shall
then quit and surrender the Premises to Sublandlord.
IN WITNESS WHEREOF, the parties hereto have
duly executed this Agreement of Sublease as of the day
and year first above written.
BARCLAYS BANK PLC,
Sublandlord
By:
------------------------------
Name:
Title:
DVL, INC.
Subtenant
By:
------------------------------
Name:
Title:
EXHIBIT "A"
Plan
TABLE OF CONTENTS
Page
----
1. Subleasing of Premises........................1
2. Term..........................................1
3. Fixed Annual Rent and Additional Rent.........1
4. Electricity...................................6
5. Subordination to and Incorporation
of the Xxxxxxxxx.............................6
6. Use; Signage..................................7
7. Covenants with Respect to the Xxxxxxxxx.......8
8. Services and Repairs..........................8
9. Consents......................................9
10. Termination of Xxxxxxxxx.....................11
11. Sublease, Not Assignment.....................11
12. Damage, Destruction, Fire and Other Casualty;
Condemnation................................11
13. No Waivers...................................12
14. Notices......................................12
15. Broker.......................................12
16. Condition of the Premises; Sublandlord Work..13
17. Consent of Overlandlord to this Sublease.....14
18. Assignment, Subletting and Mortgaging........14
19. Security Deposit.............................15
20. Alterations and Maintenance..................15
16. Miscellaneous................................15
-i-
