[Sublease of Entire Premises]
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Exhibit 10.8
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is made and entered into this __
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day of _________, 2001, by and between PITNEY XXXXX INC., a Delaware corporation
("Sublandlord") and PITNEY XXXXX OFFICE SYSTEMS, INC., a Delaware corporation
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("Subtenant").
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1. BASIC SUBLEASE PROVISIONS.
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A. Property Address: See Exhibit A, line 1(A).
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B. Prime Landlord: See Exhibit A, line 1(B).
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C. Prime Landlord's Address (for notices): See Exhibit A, line 1(C).
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D. Identification of Prime Lease and all amendments thereto: See
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Exhibit A, line 1(D).
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E. Estimated Minimum Rent: See Exhibit A, line 1(E).
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F. Expiration Date of Prime Lease: See Exhibit A, line 1(F).
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G. Description of the Premises: See Exhibit A, line 1(G).
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H. Subtenant's Address for notices:
Pitney Xxxxx Office Systems, Inc.
Attn: Lease Administration
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
with a copy to:
Pitney Xxxxx Office Systems, Inc.
Attn: Xxxx X. Xxxxx, Esq.
General Counsel
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
I. Sublandlord's Address for notices:
XXX 0000
Attn: Manager, National Leasing & Asset Management
Pitney Xxxxx Inc.
0 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
with a copy to:
Xxxxxxxx Xxxx Company
Attn: Pitney Xxxxx Lease Administration
0000 000xx Xxxxxx, X.X.
Xxxxxxxx, XX 00000-0000
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J. Sublandlord's Address for Payment of Estimated Minimum Rent:
Chase Manhattan Bank
ABA #:000000000
Account Name: Pitney Xxxxx Inc.
Account #: 9104010567
Reference: 5301400-1404199
K. Commencement Date: The date of the distribution of 100% of the
issued and outstanding shares of Subtenant's common stock to Sublandlord's
shareholders.
2. PRIME LEASE. Sublandlord is the tenant under that certain Lease Agreement
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referenced in Line 1(D) of Exhibit A attached hereto (as same may be amended,
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the "Prime Lease") with Prime Landlord for the lease of that certain premises
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described therein (the "Premises"). Sublandlord represents and warrants that
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the Prime Lease delivered to Subtenant is a true and correct copy of the Prime
Lease; Subtenant acknowledges receipt thereof.
3. SUBLEASE. Sublandlord, for and in consideration of the rents hereunder
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and of the covenants and agreements herein contained on the part of Subtenant to
be performed, hereby subleases to Subtenant, and Subtenant accepts from
Sublandlord, all of the Premises, which subleased space is also more
particularly described in Section 1(G).
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4. TERM. The term of this Sublease (the "Term") shall commence on the
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Commencement Date and shall expire on the earlier of: (i) the date (the
"Expiration Date") that is five (5) business days prior to the Expiration Date
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of the Prime Lease as specified in Section 1(F); or (ii) the expiration or
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sooner termination of the Prime Lease, unless sooner terminated as otherwise
provided elsewhere in this Sublease. Subtenant shall have no obligation to pay
Rent (as defined in Section 7) with respect to any period not within the Term.
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5. POSSESSION. Subtenant has inspected the Premises and the building of
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which the Premises are a part (the "Building") and hereby accepts the same "as
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is," without any warranties, representations or obligations (either express or
implied) on the part of Sublandlord or Prime Landlord to perform any fit-ups,
maintenance, alterations, improvements, replacements, repairs, work or other
services thereto, except as specifically set forth in Section 15. Subtenant's
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initial occupancy of the Premises shall be deemed acknowledgments by Subtenant
that the Premises are in good and tenantable order and that Subtenant accepts
the Premises.
6. SUBTENANT'S USE. Subject to the limitations on use set forth in the Prime
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Lease and Legal Requirements (as defined below), the Premises shall be used and
occupied only for the uses permitted under the Prime Lease, and for no other
uses. As used herein, "Legal Requirements" shall mean every statute, law
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(including, without limitation, the Americans with Disabilities Act of 1990,
ordinance, code, regulation, order, permit, approval, license, judgment,
restriction or rule of any federal, state, county, municipal or local government
and all departments, commissions, boards, bureaus and offices thereof having or
claiming jurisdiction over the Property (a "Governmental Authority") or other
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public or quasi-public body, agency, court, department, bureau or authority
having jurisdiction over the subject matter.
7. RENT.
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A. ESTIMATED MINIMUM RENT. Beginning on the Commencement Date, Subtenant
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shall pay Estimated Minimum Rent to Sublandlord via electronic funds transfer at
the address specified in
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Section 1(K), or to such other payee or at such other address as may be
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designated by notice in writing from Sublandlord to Subtenant, without prior
demand therefor and without any deduction or offset whatsoever. Estimated
Minimum Rent for each calendar month shall be paid in equal monthly installments
in advance on the day that is three (3) business days prior to the first day of
each calendar month of the Term, except that the first installment of Estimated
Minimum Rent shall be paid by Subtenant to Sublandlord on or prior to the
Commencement Date.
B. ADDITIONAL RENT.
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(i) Operating Expenses. If and to the extent that Sublandlord is
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obligated to pay additional rent under the Prime Lease, whether such additional
rent is to reimburse Prime Landlord for taxes, operating expenses, common area
maintenance charges, insurance or other expenses incurred by Prime Landlord in
connection with the Premises, the Building or the property or project of which
the Building is a part (the "Property"), Subtenant shall pay to Sublandlord one
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hundred percent (100%) of such additional rent (to the extent such additional
rent is attributable to events occurring during the Term) (collectively,
"Operating Expenses"), payable in accordance with this Section. Prior to the
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Commencement Date, Sublandlord shall send to Subtenant a statement showing the
estimated Operating Expenses for the current period for which Operating Expenses
are due under the Prime Lease. At the same time and in the same manner as
monthly installments of Estimated Minimum Rent are due, Subtenant shall pay to
Sublandlord 100% of the monthly installments of estimated Operating Expenses as
shown on such statement. Promptly after receipt of a new xxxx from Prime
Landlord for estimated Operating Expenses, if any, Sublandlord shall provide to
Subtenant a copy of such xxxx showing revised amounts for estimated Operating
Expenses, which new xxxx may cover periods prior to the date of the new xxxx to
the extent Sublandlord is responsible for the payment thereof under the terms of
the Prime Lease; from and after receipt of such new xxxx, Subtenant shall pay to
Sublandlord 100% of the estimated monthly installments of Operating Expenses and
retroactive payments, if any, as shown thereon. Unless and until Subtenant
receives a new xxxx for estimated Operating Expenses, Subtenant shall continue
to pay each month the monthly installments of estimated Operating Expenses as
shown on the most recent xxxx. Promptly after receipt of a reconciliation
statement from Prime Landlord with respect to Operating Expenses, Sublandlord
shall provide Subtenant with a copy of such statement. If the reconciliation
statement shows that Subtenant overpaid Operating Expenses, then upon receipt by
Sublandlord from Prime Landlord of such overpayment amount or a credit therefor,
Subtenant shall receive payment of such overpayment amount or, if Sublandlord
receives a credit, then a credit against the next installment of Estimated
Minimum Rent in the amount of the overpayment; if the statement shows an
underpayment of Operating Expenses, Subtenant shall pay to Sublandlord the full
amount of the underpayment within five (5) business days. If Sublandlord audits
Operating Expenses and such audit results in a cash payment or credit from Prime
Landlord, Subtenant shall receive from Sublandlord a cash payment or credit,
respectively, in the same amount less any administrative fee or charge incurred
by Sublandlord in connection with the audit.
(ii) Extraordinary Expenses. Subtenant shall reimburse Sublandlord for
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any and all other reasonable expenses incurred or payable by Sublandlord in
connection with the leasing of the Premises, regardless of the payee for such
expenses, and Subtenant shall pay such expenses as additional rent hereunder.
Any expense incurred by Sublandlord pursuant to the Prime Lease shall be deemed
a reasonable expense. Sublandlord shall send a xxxx to Subtenant for such
additional rent, which xxxx shall be accompanied by a copy of the invoice from
the payee if readily available. Such payment shall be due from Subtenant to
Sublandlord no fewer than three (3) business days prior to the date upon which
Sublandlord's payment of such additional rent is due from Sublandlord, provided
Subtenant shall have been billed therefor at least five (5) business days prior
to such due date, or, if Subtenant shall have been billed less than five (5)
business days prior to such due date, such payment shall be due within three (3)
business days.
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(iii) Administrative Fee. At the same time and in the same manner as
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Estimated Minimum Rent is payable hereunder, Subtenant shall pay Sublandlord as
additional rent a monthly administrative fee equal to one percent (1%) of the
total Rent payable for such month.
(iv) Interest. All Rent payments not received by Sublandlord when due
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shall bear interest at the rate equal to the lesser of: the prime rate as
announced from time to time by Chase Manhattan Bank or its successor plus (x)
with respect to Rent payments made within five (5) business days after the date
due, 2% per annum and (y) with respect to Rent payments made over five (5)
business days after the date due, 4% per annum; or (ii) the highest rate
permitted under applicable law, until payment is received by Sublandlord.
C. RENT; DIRECT PASS-THROUGH. All charges, costs and sums required to be
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paid by Subtenant to Sublandlord under this Sublease, including without
limitation all payments due from Subtenant under Section 7(B), shall be deemed
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"Additional Rent." Estimated Minimum Rent and Additional Rent shall
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collectively be referred to herein as "Rent." All Rent payable by Subtenant
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hereunder shall be made without any deduction or offset whatsoever and shall be
made to Sublandlord via electronic funds transfer. Subtenant's covenant to pay
Rent shall be independent of every other covenant in this Sublease. It is the
intent of the parties hereto that this Sublease shall provide for a direct pass-
through to Subtenant of all rents payable by Sublandlord under the Prime Lease.
Notwithstanding anything to the contrary herein, if there is a discrepancy
between Estimated Minimum Rent as shown on Exhibit A and the actual base or
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minimum rent payable by Sublandlord under the Prime Lease, either party, upon
presentation to the other of reasonable supporting documentation, shall have the
right to revise the Estimated Minimum Rent amounts listed on Exhibit A to
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reflect the actual amounts due and Subtenant shall pay to Sublandlord, as
Additional Rent, any deficiency resulting from the discrepancy and, as
applicable, Sublandlord shall refund to Subtenant any overpayment, less any
administrative fees incurred by Sublandlord in connection therewith.
8. SUBTENANT'S OBLIGATIONS. Subtenant shall be responsible for, and shall
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pay the following prior to the due date:
A. Except to the extent Prime Landlord provides utilities to the Premises
pursuant to the Prime Lease, all utility consumption costs, including without
limitation, electric, water, sewer, telephone and other charges incurred in
connection with providing utility services to the Premises. As of the
Commencement Date, Subtenant shall cause all such utilities to be billed
directly to and in Subtenant's name. Subtenant shall hold Sublandlord harmless
from all costs or expenses Sublandlord may incur from Subtenant's failure to pay
utility bills or to perform any of its obligations with respect to the purchase
of utilities.
B. All maintenance, repairs and replacements as to the Premises and its
equipment, to the extent Sublandlord is obligated to perform the same under the
Prime Lease.
9. QUIET ENJOYMENT. Sublandlord represents that it has full power and
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authority to enter into this Sublease, subject to the consent of Prime Landlord,
if required under the Prime Lease. So long as Subtenant is not in default in
the performance of its covenants and agreements in this Sublease beyond the
expiration of any applicable notice and cure period, Subtenant's quiet and
peaceable enjoyment of the Premises shall not be disturbed or interfered with by
Sublandlord, or by any person claiming by, through, or under Sublandlord, but
subject to the terms of the Prime Lease and this Sublease, and to Sublandlord's
rights thereunder and hereunder.
10. SUBTENANT'S INSURANCE. Subtenant shall procure and maintain, at its own
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cost and expense, such liability insurance as is required to be carried by
Sublandlord under the Prime Lease,
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[Sublease of Entire Premises]
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naming as additional insureds Sublandlord, Prime Landlord and any others
required by Prime Landlord, and such property insurance as is required to be
carried by Sublandlord under the Prime Lease to the extent such property
insurance pertains to the Premises. If the Prime Lease requires Sublandlord to
insure leasehold improvements or alterations, then Subtenant shall insure such
leasehold improvements that are located in the Premises, as well as alterations
in the Premises made by Subtenant. Subtenant shall furnish to Sublandlord a
certificate of Subtenant's insurance required hereunder not later than ten (10)
days prior to the Commencement Date and new certificates annually thereafter,
but in no event less than thirty (30) days prior to the expiration of the
current certificate. Each party hereby waives claims against the other for
property damage provided such waiver shall not invalidate the waiving party's
property insurance; each party shall obtain from its insurance carrier a waiver
of its right of subrogation. Subtenant hereby waives claims against Prime
Landlord and Sublandlord for property damage to the Premises or its contents if
and to the extent that Sublandlord waives such claims against Prime Landlord
under the Prime Lease. Subtenant shall obtain, for the benefit of Prime Landlord
and Sublandlord, such waivers of subrogation rights from its insurer as are
required of Sublandlord under the Prime Lease. Sublandlord shall continue to
comply with its obligations under the Prime Lease with respect to maintaining
insurance.
11. ASSIGNMENT OR SUBLETTING.
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A. Subject to Prime Landlord's consent if required under the Prime Lease,
Subtenant shall have the right with Sublandlord's prior consent, which consent
shall not be unreasonably withheld, conditioned or delayed except as set forth
below in this Section 11, to: (i) assign, convey, mortgage, hypothecate, pledge,
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encumber or otherwise transfer, voluntarily, involuntarily, by operation of law
or otherwise, this Sublease or any interest hereunder; (ii) allow any transfer
thereof or any lien upon Subtenant's interest by operation of law or otherwise;
(iii) further sublet the Premises or any part thereof; (iv) list the Premises or
any part thereof as available for assignment or sublease with any broker or
agent or otherwise advertise, post, communicate or solicit prospective assignees
or subtenants through any direct or indirect means; or (v) permit the occupancy
of the Premises or any part thereof by anyone other than Subtenant (any action
described in clauses (i) through (v) above is referred to herein as a "Transfer"
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and the transferee of a Transfer is a "Transferee"). The following shall each
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be deemed a Transfer for purposes of this Section: (a) any transfer (or sequence
of related transfers resulting, in the aggregate, in the transfer) of 50% or
more of the beneficial ownership of Subtenant; (b) any dissolution, merger,
consolidation or other reorganization of Subtenant; and (c) the sale of 50% or
more in the aggregate of the value of the assets of Subtenant. Notwithstanding
the foregoing, Subtenant may collaterally assign, without further consent of
Sublandlord, its interest in this Sublease to secure its senior credit
facilities.
B. Any Transfer consummated without Sublandlord's consent shall be deemed
void ab initio and the Transferee shall acquire no rights and neither
Sublandlord nor Prime Landlord shall recognize any such transfer.
C. In no event shall Sublandlord be obligated to consider a consent to
any proposed Transfer if a Subtenant Event of Default (as defined in Section 24)
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then exists under this Sublease, or a fact or condition exists, which but for
the giving of notice or the passage of time would constitute a Subtenant Event
of Default. Notwithstanding anything to the contrary herein, Sublandlord shall
not, under any circumstances, be obligated to consent to any Transfer by Tenant
and Sublandlord's withholding of consent shall be deemed reasonable if: (i)
Prime Landlord's consent to such Transfer is required under the Prime Lease and
Prime Landlord does not consent to such Transfer; or (ii) the proposed Transfer
is not permitted under the Prime Lease. Sublandlord shall have the right to
require any proposed Transferee to deposit two (2) months' Rent as a security
deposit with Sublandlord as a condition to the effectiveness of such proposed
Transfer. Without limiting the generality of the foregoing, it shall be deemed
reasonable for Sublandlord to deny consent if:
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(1) The financial strength of the proposed Transferee, both in terms of
net worth and in terms of reasonably anticipated cash flow over the Term, is
less than Subtenant's financial strength as of the Commencement Date; or
(2) The proposed Transferee is of a character and engaged in a business
such as are not in keeping with the standards of Prime Landlord with respect to
the Building and its occupancy.
D. Unless otherwise agreed in writing by Sublandlord, no Transfer
whatsoever shall release Subtenant from Subtenant's obligations and liabilities
under this Sublease or alter the primary liability of Subtenant to pay all Rent
and to perform all obligations to be paid and performed by Subtenant as required
under this Sublease. No Transfer shall amend or modify this Sublease in any
respect, and every Transfer shall be subject and subordinate to this Sublease
and the Prime Lease. The acceptance of rent by Sublandlord from any other person
or entity shall not be deemed a waiver by Sublandlord of any provision of this
Sublease. Consent to one Transfer shall not be deemed consent to any subsequent
Transfer. Subtenant shall pay to Sublandlord all reasonable costs and shall
reimburse Sublandlord for all reasonable expenses incurred by Sublandlord in
connection with any Transfer requested by Subtenant. If any Transferee of
Subtenant defaults in the performance of any obligation to be performed by
Subtenant under this Sublease, Sublandlord may proceed directly against
Subtenant without the necessity of exhausting remedies against such Transferee.
12. OPTIONS PERSONAL TO SUBLANDLORD. Sublandlord expressly reserves, and
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does not grant to Subtenant under this Sublease, any and all options of
Sublandlord under the Prime Lease to: (i) expand the area of the Premises; (ii)
renew or extend the term of the Prime Lease; or (iii) purchase all or any part
of the Property if Sublandlord remains liable under the Prime Lease and this
Sublease, and all similar rights of Sublandlord. Subtenant shall, however, have
the right to exercise any option of Sublandlord to: (a) reduce the area of the
Premises provided Sublandlord incurs no costs in connection therewith and is
released from liability under the Prime Lease and this Sublease with respect to
the vacated area; and (b) terminate the Prime Lease provided Sublandlord incurs
no costs in connection therewith and is released from liability under the Prime
Lease and this Sublease. If Sublandlord notifies Subtenant in writing that it
does not wish to exercise any such option under the Prime Lease and Prime
Landlord agrees in writing to release Sublandlord from all liability under the
Prime Lease, then effective as of such release of Sublandlord, this Sublease
shall include the grant of such option subject to the terms of the Prime Lease.
13. RULES. Subtenant shall comply with all rules and regulations that Prime
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Landlord has made or may hereafter from time to time make for the Building in
accordance with the Prime Lease. Sublandlord shall not be liable in any way for
damage caused by the non-observance by any of the other tenants of the Building
of such similar covenants in their leases or of such rules and regulations.
14. CONFLICT IN TERMS. If any provision of this Sublease (express or
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implied) shall be in conflict with the terms of the Prime Lease, the terms of
this Sublease shall control except to the extent a default under the Prime Lease
would result therefrom.
15. REPAIRS; COMPLIANCE. Subtenant shall promptly pay for the repairs set
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forth in Section 8(B). Subtenant shall, at Subtenant's expense, comply with all
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Legal Requirements and the requirements of all insurance bodies and their fire
prevention engineers at any time in force, applicable to the Premises or to
Subtenant's particular use or manner of use thereof, except that Subtenant shall
not hereby be under any obligation to comply with any law, ordinance, rule or
regulation requiring any structural alteration of or in connection with the
Premises, unless such alteration is required by reason of: (i) Subtenant's
particular use or manner of use of the Premises; (ii) a condition that has been
created by or at the sufferance of Subtenant; or (iii) a breach of any of
Subtenant's covenants and agreements hereunder, or
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[Sublease of Entire Premises]
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such alteration is required to be performed by Sublandlord under the Prime
Lease. As used herein "structure" or "structural" shall have the definition
ascribed to it in the Prime Lease or if no specific definition is given therein
"structure" or "structural" shall mean that portion of the Building that is
integral to the integrity of the Building as an existing enclosed unit and
shall, in any event, include footings, foundation, outside walls, skeleton,
bearing columns and interior bearing walls, floor slabs, roof and roofing
system. Notwithstanding the foregoing, if the Prime Lease imposes greater
obligations on Sublandlord with respect to the foregoing, then Subtenant shall
also comply with such provisions of the Prime Lease as if Subtenant were named
therein in lieu of Sublandlord.
16. FIRE OR CASUALTY OR EMINENT DOMAIN. In the event of a fire or other
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casualty affecting the Building or the Premises, or of a taking of all or a part
of the Building or Premises under the power of eminent domain, Sublandlord shall
have the right to exercise any right that may have the effect of terminating the
Prime Lease, provided when Sublandlord sends its notice to Prime Landlord
exercising such right, Sublandlord simultaneously sends a copy thereof to
Subtenant and, provided further, Sublandlord shall exercise such right if
requested in writing to do so by Subtenant promptly after the casualty. If
Sublandlord is entitled, under the Prime Lease, to a rent abatement as a result
of a fire or other casualty or as a result of a taking under the power of
eminent domain, then Subtenant shall be entitled to such rent abatement. If the
Prime Lease imposes on Sublandlord the obligation to repair or restore leasehold
improvements or alterations, Subtenant shall be responsible for repair or
restoration of such leasehold improvements or alterations to the extent required
of Sublandlord in the Prime Lease.
17. ALTERATIONS. Subtenant shall not make any alterations in or additions to
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the Premises ("Alterations") if to do so would constitute a default under the
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Prime Lease or if the Alteration is required to be removed at the end of the
term of the Prime Lease pursuant to the terms thereof (in either case, a
"Prohibited Alteration"). If Subtenant wishes to make an Alteration that is not
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a Prohibited Alteration, Sublandlord's consent thereto shall nonetheless be
required, which consent shall not be unreasonably withheld, and if Sublandlord
consents thereto, Sublandlord shall use reasonable efforts to obtain the consent
of Prime Landlord if such consent is required under the Prime Lease. Subtenant
shall provide Sublandlord with a copy of the architectural plans for any
requested Alteration for Sublandlord's review and consent; provided, however,
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Sublandlord's consent to an Alteration shall in no way be construed as an
approval of the suitability of the plans therefor for construction. If
Alterations by Subtenant are permitted or consented to as required herein,
Subtenant shall comply with all of the covenants of Sublandlord contained in the
Prime Lease pertaining to the performance of such Alterations. In addition,
Subtenant shall indemnify, defend and hold harmless Sublandlord against
liability, loss, cost, damage, liens and expense imposed on Sublandlord arising
out of the performance of Alterations by Subtenant, including without limitation
Sublandlord's expenses incurred in connection with the review of Subtenant's
plans.
18. SURRENDER. Upon the expiration of this Sublease, or upon the termination
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of Subtenant's right to possession of the Premises, Subtenant shall at once
surrender and deliver up the Premises, together with all improvements thereon
and Alterations thereto, to Sublandlord in good condition and repair, reasonable
wear and tear excepted, and in any event in at least the condition required
under the Prime Lease; conditions existing because of Subtenant's failure to
perform maintenance, repairs or replacements as required of Subtenant under this
Sublease shall not be deemed "reasonable wear and tear." Subtenant shall
surrender to Sublandlord all keys to the Premises and make known to Sublandlord
the combination of all combination locks that Subtenant is permitted to leave on
the Premises. All Alterations in or upon the Premises made by Subtenant shall
become a part of and shall remain upon the Premises upon such termination
without compensation, allowance or credit to Subtenant. Subtenant shall also
remove any improvements to the Premises, or portions thereof, that Prime
Landlord may require Sublandlord to remove pursuant to the terms of the Prime
Lease. Further, Subtenant shall remove any telephone, computer or similar
cabling or wiring installed in the Building by or on behalf of Sublandlord
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or Subtenant to the extent required by the Prime Lease. Subtenant shall restore
the Premises to their condition prior to the making of such Alteration if
required under the Prime Lease, repairing any damage occasioned by such removal
or restoration to Sublandlord's satisfaction on or prior to the end of the Term.
If Prime Landlord requires removal of any improvements to the Premises, or
portions thereof, and Subtenant does not make such removal in accordance with
this Section, Sublandlord may remove the same (and repair any damage occasioned
thereby), and dispose thereof, or at its election, warehouse the same. Subtenant
shall pay the costs of such removal, repair and warehousing on demand.
19. REMOVAL OF SUBTENANT'S PROPERTY. Upon the expiration or earlier
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termination of this Sublease, Subtenant shall remove Subtenant's articles of
personal property incident to Subtenant's business (collectively, "Trade
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Fixtures"); provided, however, Subtenant shall repair any injury or damage to
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the Premises that may result from such removal and shall restore the Premises to
the same condition as prior to the commencement of the Prime Lease to
Sublandlord's satisfaction on or prior to the end of the Term. If Subtenant
does not remove Subtenant's Trade Fixtures from the Premises prior to the
expiration or earlier termination of the Term, Sublandlord may, at its option,
remove the same (and repair any damage occasioned thereby and restore the
Premises as aforesaid) and dispose thereof or warehouse the same, and Subtenant
shall pay the cost of such removal, repair, restoration or warehousing to
Sublandlord on demand, or Sublandlord may treat Trade Fixtures as having been
conveyed to Sublandlord with this Sublease as a xxxx of sale, without further
payment or credit by Sublandlord to Subtenant.
20. HOLDING OVER. Subtenant shall have no right to occupy the Premises or
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any portion thereof after the expiration of this Sublease or after termination
of this Sublease or Subtenant's right to possession in consequence of a
Subtenant Event of Default. If Subtenant or any party claiming by, through or
under Subtenant holds over, Sublandlord may exercise any and all remedies
available to it at law or in equity to recover possession of the Premises and to
recover damages, including without limitation, damages payable by Sublandlord to
Prime Landlord by reason of such holdover. For each and every month or partial
month that Subtenant or any party claiming by, through or under Subtenant
remains in occupancy of all or any portion of the Premises after the expiration
of this Sublease or after termination of this Sublease or Subtenant's right to
possession, Subtenant shall pay, as minimum damages and not as a penalty,
monthly rental at a rate equal to double the rate of Estimated Minimum Rent and
Additional Rent payable by Subtenant hereunder immediately prior to the
expiration or other termination of this Sublease or of Subtenant's right to
possession. The acceptance by Sublandlord of any lesser sum shall be construed
as payment on account and not in satisfaction of damages for such holding over.
If Subtenant fails to surrender the Subtenant Space upon the expiration or
termination of this Sublease, Subtenant shall indemnify, defend and hold
harmless Sublandlord from all costs, loss, expense or liability, including
without limitation, claims made by Prime Landlord, claims made by any succeeding
tenant and real estate brokers' claims and attorneys' fees. No acceptance by
Sublandlord of any Rent during or for any period following the expiration or
termination of this Sublease shall operate or be construed as an extension or
renewal of this Sublease.
21. ENCUMBERING TITLE. Subtenant shall not do any act that shall in any way
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encumber the title of Prime Landlord in and to the Building or the Property, nor
shall the interest or estate of Prime Landlord or Sublandlord be in any way
subject to any claim by way of lien or encumbrance, whether by operation of law
by virtue of any express or implied contract by Subtenant, or by reason of any
other act or omission of Subtenant. Any claim to, or lien upon, the Premises,
the Building or the Property arising from any act or omission of Subtenant shall
accrue only against the subleasehold estate of Subtenant and shall be subject
and subordinate to the paramount title and rights of Prime Landlord in and to
the Building and the Property and the interest of Sublandlord in the Premises.
Without limiting the generality of the foregoing, Subtenant shall not permit the
Premises, the Building or the Property to become subject to any mechanics',
laborers' or materialmen's lien on account of labor or material furnished to
Subtenant or claimed to have been furnished to Subtenant in connection with work
of any character performed or
-8-
[Sublease of Entire Premises]
-----------------------------
claimed to have been performed on the Premises by, or at the direction or
sufferance of, Subtenant; provided, however, if so permitted to Sublandlord
-------- -------
under the Prime Lease, Subtenant shall have the right to contest in good faith
and with reasonable diligence, the validity of any such lien or claimed lien if
Subtenant shall give to Prime Landlord and Sublandlord such security as may be
deemed satisfactory to them to assure payment thereof and to prevent any sale,
foreclosure, or forfeiture of the Premises, the Building or the Property by
reason of nonpayment thereof; provided, further, on final determination of the
-------- -------
lien or claim of lien, Subtenant shall immediately pay any judgment rendered,
with all proper costs and charges, and shall have the lien released and any
judgment satisfied.
22. INDEMNITY. Subtenant shall indemnify Sublandlord and hold Sublandlord
---------
harmless from all losses, damages, liabilities and expenses that Sublandlord may
incur, or for which Sublandlord may be liable to Prime Landlord, arising from
the acts or omissions of Subtenant that are the subject matter of any indemnity
or hold harmless of Sublandlord to Prime Landlord under the Prime Lease.
23. SUBLANDLORD'S RIGHT TO ACCESS. Sublandlord reserves the right, on
-----------------------------
reasonable prior notice, to inspect the Premises, or to exhibit the Premises to
persons having a legitimate interest at any time during the Term. Sublandlord
further reserves Prime Landlord's right of access to the Premises to the extent,
if any, reserved by Prime Landlord under the Prime Lease.
24. DEFAULTS. Any one or more of the following events shall be considered a
--------
"Subtenant Event of Default" hereunder:
--------------------------
A. If Subtenant shall default in any payment of Rent required to be made
by Subtenant hereunder when due as herein provided and such default shall
continue for five (5) days after the date such payment became due and
payable; or
B. If Subtenant shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed against Subtenant
asking reorganization of Subtenant under the federal bankruptcy laws as now or
hereafter amended, or under the laws of any state, shall be entered, and any
such decree or judgment or order shall not have been vacated or stayed or set
aside within sixty (60) days from the date of the entry or granting thereof; or
C. Subtenant shall file, or admit the jurisdiction of the court and the
material allegations contained in, any petition in bankruptcy, or any petition
pursuant or purporting to be pursuant to the federal bankruptcy laws now or
hereafter amended, or Subtenant shall institute any proceedings for relief of
Subtenant under any bankruptcy or insolvency laws or any laws relating to the
relief of debtors, readjustment of indebtedness, reorganization, arrangements,
composition or extension; or
D. If Subtenant shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Subtenant or any
of the property of Subtenant; or
E. If Subtenant shall admit in writing its inability to pay its debts as
they become due; or
F. If the Premises are levied on by any revenue officer or similar officer
with respect to any amount owing by Subtenant; or
G. If a decree or order appointing a receiver of the property of Subtenant
shall be made and such decree or order shall not have been vacated, stayed or
set aside within sixty (60) days from the date of entry or granting thereof; or
H. If Subtenant shall abandon the Subleased Premises during the Term
hereof and shall not
-9-
[Sublease of Entire Premises]
-----------------------------
have provided reasonable additional security and other necessary measures to
preserve and protect the Premises; or
I. If Subtenant shall default in securing insurance or in providing
evidence of insurance as set forth in Section 10 of this Sublease or shall
----------
default with respect to lien claims as set forth in Section 21 of this Sublease
----------
and either such default shall continue for five (5) days after notice thereof in
writing to Subtenant; or
J. If Subtenant shall, by its act or omission to act, cause a default
under the Prime Lease and such default shall not be cured within the time, if
any, permitted for such cure under the Prime Lease; or
K. If Subtenant shall default in any of the other covenants and agreements
herein contained to be kept, observed and performed by Subtenant, and such
default shall continue for thirty (30) days after notice thereof in writing to
Subtenant, or if such default is of a nature that it cannot be completely
remedied within such thirty (30)-day period, if Subtenant does not promptly
institute and thereafter diligently prosecute to completion all steps necessary
to remedy the default after receipt of notice thereof.
25. SUBLANDLORD REMEDIES. Upon the occurrence of any one or more Events of
--------------------
Default, Sublandlord shall have the right to: (i) exercise any remedy against
Subtenant that Prime Landlord may exercise for an event of default by
Sublandlord beyond the expiration of any applicable notice and cure period under
the Prime Lease; and (ii) pursue all available remedies in equity or at law.
26. SUBLANDLORD DEFAULT; SUBTENANT REMEDIES.
---------------------------------------
A. Any one or more of the following events shall be considered a
"Sublandlord Event of Default" hereunder:
----------------------------
1. If Sublandlord shall, by its act or omission to act, cause a default
under the Prime Lease and such default shall not be cured within the time, if
any, permitted for such cure under the Prime Lease; or
2. If Sublandlord shall default in any of the other covenants and
agreements herein contained to be kept, observed and performed by Sublandlord,
and such default shall continue for thirty (30) days after notice thereof in
writing to Sublandlord, or if such default is of a nature that it cannot be
completely remedied within such thirty (30)-day period, if Sublandlord does not
promptly institute and thereafter diligently prosecute to completion all steps
necessary to remedy the default after receipt of notice thereof.
B. Upon the occurrence of any one or more Sublandlord Events of Default,
Subtenant shall have the right to: (i) exercise any remedy against Sublandlord
that Sublandlord may exercise for an event of default by Prime Landlord beyond
the expiration of any applicable notice and cure period under the Prime Lease;
and (ii) pursue all available remedies in equity or at law.
27. NOTICES AND CONSENTS. All notices, demands, requests, consents or
--------------------
approvals that may or are required to be given by either party to the other
shall be in writing and shall be deemed given when actually received by the
other party, if: (i) served personally; (ii) sent by nationally-recognized
overnight courier with return receipt; or (iii) sent by United States registered
or certified mail, postage prepaid, return receipt requested and, if to
Subtenant, addressed to Subtenant at the address specified in Section 1(I) or at
------------
such other place as Subtenant may from time to time designate by notice in
writing to Sublandlord, or if to Sublandlord, addressed to Sublandlord at the
address specified in Section 1(J) or at such other place as Sublandlord may from
------------
time to time designate by notice in writing to Subtenant.
-10-
[Sublease of Entire Premises]
-----------------------------
Notwithstanding the foregoing, rejection or other refusal to accept a notice,
request or demand, or the inability to deliver because of a changed address of
which no notice was given, shall be deemed to be actual receipt thereof. Each of
Subtenant and Sublandlord shall promptly deliver to the other a copy of each
notice, demand, request, consent or approval to or from Prime Landlord.
28. RELATIONSHIP BETWEEN PRIME LEASE AND THIS SUBLEASE. This Sublease and
--------------------------------------------------
all the rights of parties hereunder are subject and subordinate to the Prime
Lease. Each party shall not, by its act or omission to act, cause a default
under the Prime Lease. In furtherance of the foregoing, the parties hereby
confirm, each to the other, that it is not practical in this Sublease to
enumerate all of the rights and obligations of the various parties under the
Prime Lease and specifically to allocate those rights and obligations in this
Sublease. Accordingly, in order to afford to Subtenant the benefits of this
Sublease and of those provisions of the Prime Lease that by their nature are
intended to benefit the party in possession of the Premises, and in order to
protect Sublandlord against a default by Subtenant that might cause a default or
event of default by Sublandlord under the Prime Lease:
A. Provided Subtenant shall timely pay all Rent when and as due under this
Sublease, Sublandlord shall pay, when and as due, all Estimated Minimum Rent,
additional rent and other charges payable by Sublandlord to Prime Landlord under
the Prime Lease;
B. Except as otherwise expressly provided herein, Sublandlord shall perform
its covenants and obligations under the Prime Lease that do not require for
their performance possession of the Premises and that are not otherwise to be
performed hereunder by Subtenant on behalf of Sublandlord. For example,
Sublandlord shall at all times keep in full force and effect all insurance
required of Sublandlord as tenant under the Prime Lease.
C. Except as otherwise expressly provided herein, Subtenant shall perform
all affirmative covenants and shall refrain from performing any act that is
prohibited by the negative covenants of the Prime Lease, where the obligation to
perform or refrain from performing is by its nature imposed upon the party in
possession of the Premises. If possible, Subtenant shall perform such
affirmative covenants that are also covenants of Sublandlord under the Prime
Lease at least five (5) business days prior to the date when Sublandlord's
performance is required under the Prime Lease. Sublandlord shall have the right,
but not the obligation, to enter the Premises to cure any default by Subtenant
under this Section.
D. Sublandlord grants to Subtenant the right to receive all of the services
and benefits with respect to the Premises that are to be provided by Prime
Landlord under the Prime Lease. Sublandlord shall have no duty to perform any
obligations of Prime Landlord that are, by their nature, the obligation of an
owner or manager of real property. For example, Sublandlord shall not be
required to provide the services or repairs that Prime Landlord is required to
provide under the Prime Lease. Sublandlord shall have no responsibility for or
be liable to Subtenant for any default, failure or delay on the part of Prime
Landlord in the performance or observance by Prime Landlord of any of its
obligations under the Prime Lease, nor shall such default by Prime Landlord
affect this Sublease or waive or defer the performance of any of Subtenant's
obligations hereunder except to the extent that such default by Prime Landlord
excuses performance by Sublandlord under the Prime Lease.
29. PRIME LANDLORD'S CONSENT. This Sublease and the obligations of the
------------------------
parties hereunder are expressly conditioned upon Sublandlord's obtaining prior
written consent hereto by Prime Landlord, if such written consent is required
under the Prime Lease. Sublandlord shall use commercially reasonable efforts to
obtain such consent. Subtenant shall promptly deliver to Sublandlord any
information reasonably requested by Prime Landlord (in connection with Prime
Landlord's approval of this Sublease) with respect to the nature and operation
of Subtenant's business and/or the financial condition of Subtenant. This
Sublease and Prime Landlord's consent hereto shall not: (a) create privity of
contract
-11-
[Sublease of Entire Premises]
-----------------------------
between Prime Landlord and Subtenant; (b) be deemed to have amended the Prime
Lease in any regard (unless Prime Landlord shall have expressly agreed in
writing to such amendment); or (c) be construed as a waiver of Prime Landlord's
right to consent to any assignment of the Prime Lease by Sublandlord or any
further subletting of the Premises, or as a waiver of Prime Landlord's right to
consent to any assignment by Subtenant of this Sublease or any sub-subletting of
the Premises or any part thereof. If Prime Landlord's consent to this Sublease
is required pursuant to the Prime Lease, and if Sublandlord reasonably believes
that Sublandlord will be placed in default of the Prime Lease by Prime Landlord
because of the existence of this Sublease, then Sublandlord shall have the right
to terminate immediately this Sublease by giving written notice thereof to
Subtenant at any time thereafter, but before Prime Landlord grants such consent.
30. BROKERAGE. Each party warrants to the other that it has had no dealings
---------
with any broker or agent in connection with this Sublease and covenants to hold
harmless and indemnify the other party from and against any and all costs
(including reasonable attorneys' fees), expense or liability for any
compensation, commissions and charges claimed by any broker or agent with
respect to this Sublease or the negotiation thereof on behalf of such party.
31. FORCE MAJEURE. Neither party shall be deemed in default with respect to
-------------
any of the terms, covenants and conditions of this Sublease if such party's
failure to timely perform is due in whole or in part to any strike, lockout,
labor trouble (whether legal or illegal), civil disorder, failure of power,
restrictive governmental laws and regulations, riots, insurrections, war,
shortages, accidents, casualties, acts of God, acts caused directly by the other
party or its agents, employees and invitees or any other cause beyond the
reasonable control of a party other than an insufficiency of funds. This
Section shall not be applicable, however, if the failure to perform timely
creates a default under the Prime Lease.
32. PARKING. Subtenant shall have the same parking rights granted to
-------
Sublandlord under the Prime Lease, if any, subject to the terms of the Prime
Lease.
33. SIGNAGE. Subtenant shall have the same signage rights granted to
-------
Sublandlord under the Prime Lease, if any, subject to the terms of the Prime
Lease. Subtenant shall, subject to the Prime Lease, modify all signage at the
Building identifying Subtenant, if any, so as to comply with Legal Requirements,
including without limitation, the termination of any licensing contracts with
Sublandlord.
34. COOPERATION; ARBITRATION.
------------------------
A. Each party hereto covenants to use commercially reasonable efforts to
cooperate with the other party and act in good faith in connection with this
Sublease. The parties hereto shall not have been deemed to have agreed to the
resolution of any dispute arising out this Sublease by arbitration unless
resolution in such manner is required by the terms of the Prime Lease or shall
have been specifically provided for in this Sublease. Disputes under the
following sections of this Sublease shall be resolved by arbitration: 11 and 16.
Every dispute between the parties that is expressly provided in this Sublease to
be resolved by arbitration shall be resolved in the manner provided in this
Section.
B. The party requesting arbitration shall do so by giving notice to that
effect to the other party, and the parties shall have ten (10) days within which
to select one mutually agreeable arbitrator. If the parties fail to agree on
one arbitrator within the ten (10)-day period, either party may promptly request
the American Arbitration Association (the "Association") to appoint one (1)
-----------
arbitrator for the matter, and, in the absence of an identifiable conflict of
interest or demonstrable bias, the Association's selection shall be binding upon
Sublandlord and Subtenant. The Association shall appoint as arbitrator an
individual with the following qualifications: at least ten (10) years'
experience in the business of commercial real estate (which experience shall be
deemed by the Association to be relevant to the pending dispute
-12-
[Sublease of Entire Premises]
-----------------------------
between Sublandlord and Subtenant) and never been a direct or indirect employee
or agent of either Sublandlord or Subtenant.
C. The arbitration shall be conducted in accordance with the provisions
hereof and to the extent consistent with this Section, in accordance with the
then-prevailing commercial rules of the Association in the locality in which the
Premises are located. The arbitrator shall have the right to retain and consult
experts and competent authorities skilled in arbitration. The arbitrator shall
render his or her decision and award within 30 days after the final hearing.
Such decision and award shall be in writing and counterpart copies thereof shall
be delivered to each of the parties.
D. The expenses of arbitration shall be apportioned between the parties by
the arbitrator, including counsel fees, audit costs, experts and presentations
of proof. The arbitrator may, however, determine that the unsuccessful party
shall pay all of such costs, including all costs incurred by the successful
party.
35. ENVIRONMENTAL OBLIGATIONS OF SUBTENANT. Subtenant covenants that no
--------------------------------------
Hazardous Materials (as defined below) will be brought onto or stored or used in
the Premises by Subtenant or Subtenant's employees, agents, contractors and
invitees (collectively, "Subtenant's Representatives"), except in compliance
---------------------------
with all Legal Requirements. Subtenant shall hold harmless, indemnify and
defend Sublandlord from and against any Environmental Damages (as defined below)
resulting from events occurring on or about the Property caused by Subtenant or
Subtenant's Representatives. "Hazardous Materials" shall mean any hazardous or
-------------------
toxic substance, material or waste (including constituents thereof) that is or
becomes regulated by one or more Governmental Authorities. The words "Hazardous
---------
Materials" include, without limitation: (i) any material or substance listed or
---------
defined as a "hazardous waste," "extremely hazardous waste," "restricted
hazardous waste," "hazardous substance" or "toxic substance" under any Legal
Requirement; (ii) petroleum and its byproducts; (iii) asbestos, radon gas and
urea formaldehyde foam insulation; (iv) polychlorinated biphenyl; (v) any
substance designated as a hazardous or toxic waste or substance (or words of
similar import) pursuant to the Federal Water Pollution Control Act, as amended
(33 U.S.C. (S)1317), the Federal Resource Conservation and Recovery Act, as
amended (42 U.S.C. (S)6903), the Comprehensive Environmental Response,
Compensation and Liability Act, as amended (42 U.S.C. (S)(S)9601 et seq.), the
Toxic Substances Control Act, as amended (15 U.S.C. (S)(S)2601 et seq.), or the
Hazardous Materials Transportation Act, as amended (49 U.S.C. (S)(S)1801 et
seq.); or (vi) any other chemical, material, gas or substance, the exposure to
or release of which is or may hereafter be prohibited, limited or regulated by
any governmental or quasi-governmental entity having jurisdiction over the
Property or the operations or activity at the Property, or any chemical,
material, gas or substance that does or may pose a hazard to the health or
safety of the occupants of the Property or the occupants of property adjacent to
the Property. "Environmental Damages" shall mean all claims, judgments, damages
---------------------
(including punitive damages), losses, penalties, fines, liabilities (including
strict liability), encumbrances and liens, and any other costs and expenses,
resulting from the existence on or in, or release to, the ground or air, of
Hazardous Materials in violation of, or alleged to be in violation of, the Legal
Requirements applicable thereto, including any attorneys' fees, disbursements,
consultant's fees and other costs resulting from: (i) investigation and defense
of any alleged claim; (ii) directive of any Governmental Authorities, whether
or not the claims or directives are groundless, false or fraudulent, or are
ultimately defeated; and (iii) any settlement or judgment.
36. MISCELLANEOUS.
-------------
A. BUSINESS DAYS. As herein, the term "business days" shall mean all days
------------- -------------
except Saturdays, Sundays and any day that national banks operating in the State
of Connecticut are required or are authorized to close.
-13-
[Sublease of Entire Premises]
-----------------------------
B. SUCCESSORS. The terms, covenants and conditions contained in this
----------
Sublease shall bind and benefit the successors and assigns of the parties with
the same effect as if mentioned in each instance where a party is named or
referred to, except that no violation of the provisions of Section 11 shall
----------
operate to vest any rights in any successor or assignee or Subtenant.
C. ENTIRE AGREEMENT AND AMENDMENTS. This Sublease contains the entire
-------------------------------
agreement between the parties, and all prior negotiations and agreements are
merged in this Sublease. This Sublease may not be changed, modified or
discharged, in whole or in part, except by a written instrument executed by the
party against whom enforcement of the change, modification or discharge is
sought.
D. GOVERNING LAW. This Sublease shall be governed in all respects by the
-------------
laws of the State or Commonwealth in which the Premises are located.
E. SEPARABILITY. If any term or provision of this Sublease or any
------------
application thereof shall be invalid or unenforceable, the remainder of this
Sublease and any other application of such term shall not be affected thereby.
F. NOTICE OF LEASE. This Sublease shall not be filed on the public
---------------
record.
G. COUNTERPARTS. This Sublease may be executed in any number of
------------
counterparts, each of which upon execution and delivery shall be considered an
original for all purposes; provided, however, all such counterparts shall,
-------- -------
together, upon execution and delivery, constitute one and the same instrument.
H. CUMULATIVE REMEDIES; WAIVER. All of the remedies given to a party in
---------------------------
this Sublease in the event of default by the other party are in addition to all
other rights or remedies to which the first party may be entitled at law or in
equity; all such remedies shall be deemed cumulative and the election of one
shall not be deemed a waiver of any other or further rights or remedies. The
failure of either party to insist in any one or more instances upon the strict
performance of any one or more of the agreements, terms, covenants, conditions
or obligations of this Sublease, or to exercise any right, remedy or election
herein contained, shall not be construed as a waiver or relinquishment of 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,
whether of a similar nature or otherwise.
I. AMBIGUITIES. Any rule of construction to the effect that any
-----------
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Sublease or any amendments or exhibits hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-14-
[Sublease of Entire Premises]
-----------------------------
IN WITNESS WHEREOF Sublandlord and Subtenant have duly executed this
Sublease as of the day and year first above written.
Sublandlord:
PITNEY XXXXX INC.
By:
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President, Real Estate and
Administration
Subtenant:
PITNEY XXXXX OFFICE SYSTEMS, INC.
By:
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
-15-
[Sublease of Entire Premises]
-----------------------------
STATE OF ________________)
) ss:
COUNTY OF _______________)
The foregoing instrument was acknowledged before me this __ day of
_________, 2001, by Xxxx Xxxxxxxxx, Vice President, Real Estate and
Administration of Pitney Xxxxx Inc., a Delaware corporation, on behalf of the
corporation.
_____________________________________
Notary Public
My Commission Expires:
STATE OF )
) ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this __ day of
_________, 2001, by Xxxx X. Xxxxx, Vice President of Pitney Xxxxx Office
Systems, Inc., a Delaware corporation, on behalf of the corporation.
_____________________________________
Notary Public
My Commission Expires:
-16-
[Sublease of Entire Premises]
-----------------------------
EXHIBIT A TO SUBLEASE AGREEMENT
-------------------------------
1.A. Property Address:
----------------
1.B. Prime Landlord:
--------------
1.C. Prime Landlord's Notice Address:
-------------------------------
1.D. Identification of Prime Lease and all Amendments thereto:
--------------------------------------------------------
1.E. Estimated Minimum Rent: Annual Monthly
---------------------- ------ -------
1.F. Expiration Date of Prime Lease:
------------------------------
1.G. Description of the Premises:
---------------------------
-17-
