EXHIBIT 10.12
SUBLEASE, MADE AS OF SEPTEMBER 1, 1995
BETWEEN VICON INDUSTRIES, INC., AS SUBLESSOR,
AND NEW YORK BLOOD CENTER, INC., AS SUBLESSEE
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TABLE OF CONTENTS
Page
1. Demise of Subleased Premises; Term; etc........................ 1
2. Cafeteria...................................................... 2
3. Rent; Rent-Concession; etc..................................... 2
4. Real Estate Tax and Utility Cost Escalations................... 4
5. [Intentionally Omitted]........................................ 6
6. Use of Subleased Premises/Parking.............................. 6
7. Services Provided By Sublessor................................. 7
8. Subordination to Overlease, etc................................ 8
9. Sublessor's Rights, etc........................................ 9
10. One Time Renewal Option........................................ 9
11. [Intentionally Omitted]........................................ 10
12. Broker......................................................... 10
13. [Intentionally Omitted]........................................ 10
14. Indemnification................................................ 10
15. Insurance...................................................... 11
16. Casualty....................................................... 11
17. Condemnation................................................... 12
18. Notice, etc.................................................... 12
19. Attornment With Respect to Overlease........................... 13
20. Quiet Enjoyment................................................ 14
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Page
21. Assignment and Subletting...................................... 14
22. [Intentionally Omitted]........................................ 16
23. Additional Covenants Required by Overlease..................... 16
24. Signs.......................................................... 17
25. Alterations.................................................... 17
26. [Intentionally Omitted]........................................ 18
27. Care of the Premises........................................... 18
28. Environmental Hazards.......................................... 19
29. Miscellaneous.................................................. 19
30. Early Termination.............................................. 21
31. [Intentionally omitted]........................................ 22
32. The Americans With Disabilities Act............................ 22
33. Counterparts......................................................... 23
EXHIBIT A Diagram of Subleased Premises............................ 24
EXHIBIT B Diagram of Corridor to Cafeteria......................... 25
EXHIBIT C Overlease (Including Amendments)......................... 26
EXHIBIT D Driveway Construction by Sublessee....................... 27
007326/13000/180.6
SUBLEASE, MADE AS OF SEPTEMBER 1, 1995
BETWEEN VICON INDUSTRIES, INC., AS SUBLESSOR,
AND NEW YORK BLOOD CENTER, INC., AS SUBLESSEE
SUBLEASE, made as of September 1, 1995, by and between Vicon
Industries, Inc. ("Sublessor"), a New York corporation with offices at 525 Broad
Hollow Road, Melville, New York 11747, and New York Blood Center, Inc.
("Sublessee"), a New York not-for-profit corporation with offices at 310 East
67th Street, New York, New York 10021.
WITNESSETH:
WHEREAS, Sublessor is the tenant under an agreement of lease, dated
January 19, 1988, between Allan V. Rose and Suffolk County Industrial
Development Agency, as landlord, the landlord's interest in which is now held by
Allan V. Rose (hereinafter referred to as "Landlord"), and Sublessor as tenant,
for the land and building known as 525 Broad Hollow Road, Melville, New York
11747 (collectively the "Premises") and amendments dated as of July 18, 1990,
July 18, 1990 (letter agreement) and January 1, 1993 (the "Overlease"); and
WHEREAS, Sublessor desires to sublease a portion of the Premises to
Sublessee; and
WHEREAS, Sublessee desires to sublease a portion of the Premises from
Sublessor;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions hereinafter set forth, the parties agree as follows:
1. Demise of Subleased Premises; Term; etc.
Sublessor hereby sublets to Sublessee and Sublessee subleases from
Sublessor that portion of the Premises (hereinafter referred to as the
"Subleased Premises") consisting of approximately 28,239.4 square feet in the
building (the "Building") known as 525 Broad Hollow Road, Melville, New York, as
shown on the diagrams annexed hereto as Exhibit A, for a term of 1 year and 6
months, which term shall commence on September 1, 1995 (the "Commencement Date")
and terminate on February 28, 1997 (subject to Sublessee's one-time option to
extend set forth in Par. 10). In addition, to the extent that Sublessee has
previously installed or is permitted to install HVAC or other equipment or
facilities that service the Subleased Premises, but are located outside of the
Subleased Premises, Sublessee shall also , during the term of this Sublease,
have the right to maintain such equipment or facilities and shall have a right
of access over and through the Premises outside of the Subleased Premises
1
to the extent reasonably required for the maintenance, servicing and repair of
such equipment or facilities.
Sublessee shall, upon Sublessor's request, give Sublessor a letter
acknowledging that Sublessee has accepted possession of the Subleased Premises.
2. Cafeteria.
(a) So long as Sublessee is not in default under this Lease,
it may utilize the cafeteria maintained by Sublessor at the Premises, as a
lunch area for Sublessee's employees employed at the Subleased Premises,
in common with the employees of the Sublessor and of any other subtenant,
subject to such reasonable restrictions as Sublessor may impose. If
Sublessor shall discontinue maintenance of a cafeteria at the Premises,
all rights and obligations of Sublessor and Sublessee under this
subparagraph shall terminate as of the date of such discontinuance.
(b) Sublessee has constructed a corridor (the "Corridor")
within the Building, connecting the Subleased Premises to the cafeteria,
in the location shown on Exhibit B annexed hereto. The Corridor is not
included in the Subleased Premises and may be used both by Sublessee's
employees and by Sublessor's employees and invitees, subject to
Sublessor's right to inspect and show as provided herein (through
incorporation of the Overlease). Sublessee shall be responsible for
maintaining the Corridor in good repair and condition and in compliance
with all laws, orders, and regulations of all governmental bodies.
3. Rent; Rent-Concession; etc.
(a) Sublessee shall pay to Sublessor the base rent as
hereinafter provided. Commencing September 1, 1995 and ending February 28,
1997 the annual base rent for the Subleased Premises shall be $416,531.15
per annum ($34,710.93 per month), subject to adjustment as hereinafter
provided. Such base rent was computed by multiplying the Leasable Area
(hereinafter defined) by $14.75 per square foot. The "Leasable Area" means
the gross square footage of the Subleased Premises measured to a point
halfway through each of the perimeter walls of the Subleased Premises.
Sublessee may, on or before September 1, 1995, at Sublessee's expense,
review Sublessor's measurements of the Subleased Premises and, if
Sublessor's determination that the Leasable Area is 28,239.4 square feet
is wrong, the base rent shall be appropriately adjusted. In the event
Sublessee fails to object to Sublessor's measurements by September 1,
1995, Sublessor's measurements shall be deemed binding.
(b) Such base rent shall be paid in equal monthly installments
on the first day of each month during the term of this Lease, in legal
tender of the United States at the office of Sublessor at the Premises,
without any setoff, abatement, or
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deduction whatsoever (except as set forth in Paragraphs 16 and 17 hereof);
provided that the foregoing shall not be deemed a waiver by Sublessee of
any claim against Sublessor based on Sublessor's breach of this Sublease,
which claim(s) may be asserted by Sublessee in any separate action or
proceeding. Sublessee shall pay the first month's base rent upon the
Commencement Date of this Sublease.
(c) [Intentionally omitted]
(d) If Sublessee shall fail to pay (by delivery to and receipt
by Sublessor of a good check for the requisite amount) all or any part of
any installment of rent or additional rent for more than ten days after
the same shall have become due and payable hereunder, Sublessee shall pay
as additional rent hereunder to Sublessor (1) a one-time late charge with
respect to such default equal to four cents for each dollar of the amount
of such rent and additional rent which shall not have been paid to
Sublessor within such ten days and (ii) in the event such default shall
continue for a period in excess of one month, then, in addition to such
late charge, interest on such overdue amount at the prime rate, currently
denominated as the "base rate", of Citibank, N.A. in New York, New York
from that date one month after the due date thereof until the date
Sublessor is paid in full. If Sublessee pays any rent or other charge with
a check that is, for any reason, refused for payment by the bank on which
it is drawn, Sublessee shall pay Sublessor a $50 service charge. The late
charge, interest, and service charge described above shall be payable (A)
within 10 days after demand and (B) without prejudice to any of
Sublessor's rights and remedies hereunder, at law or in equity, for
nonpayment of rent or other sums, but shall be in addition to any such
rights and remedies. No failure by Sublessor to insist upon the strict
performance by Sublessee of Sublessee's obligations to pay late charges,
interest, and service charges as provided in this subparagraph shall
constitute a waiver by Sublessor of its right to enforce the provisions of
this subparagraph in any such instance or in any instance thereafter
occurring.
(e) Any costs or expenses incurred by Sublessor to cure any
default by Sublessee under this Lease which was not cured within the
applicable cure period (except that in an emergency Sublessor shall not be
required to wait for the expiration of the cure period), excluding
attorneys' fees, shall be paid by Sublessee to Sublessor within 10 days
after Sublessor makes demand therefor and shall be treated in all respects
as rent. Any default by Sublessee in the payment of such damages, costs or
expenses shall be treated as a default in the payment of rent, and
Sublessor shall have the same remedies with respect thereto as it has with
respect to any default in payment of rent.
(f) Sublessee's obligations to make payments of additional
rent allocable to the term of this Sublease which are billed after the
expiration of the term of this Sublease, shall survive the expiration or
sooner termination of this Sublease.
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4. Real Estate Tax and Utility Cost Escalations.
(a) For the purposes of this Sublease the following terms
shall have the following meanings:
(i) "Real Estate Taxes" shall mean all "Impositions" (as
defined in section 4.1(A) of the Overlease).
(ii) "Tax Year" shall mean each 12-month fiscal period
commencing December 1 and ending November 30, any portion of which
occurs during the term of this Sublease.
(iii) "Base Tax Year" shall mean the Tax Year
commencing December 1, 1994 and expiring November 30, 1995.
(iv) "Subsequent Year" shall mean (A) with respect to
Real Estate Taxes, each Tax Year (or any portion thereof) commencing
within the term of this Lease which shall be subsequent to the Base
Tax Year; and (B) with respect to Utility Cost (hereinafter
defined), the 1995 calendar year and each subsequent calendar year
which commences during the term of this Sublease.
(v) "Sublessee's Proportionate Share" shall mean
26.148%, the percentage obtained by dividing the Leasable Area by
108,000 (the Leasable Area of the Building). Sublessee may, on or
before September 1, 1995, at Sublessee's expense, review such
measurements and give Sublessor notice of any discrepancy between
Sublessor's and Sublessee's measurements.
(vi) "Utility Cost" shall mean Sublessor's cost for all
fuel (including, but not limited to, oil, gas, steam and coal but
excluding electricity) delivered to the Building.
(vii) "Base Utility Cost" shall mean Sublessor's
Utility Cost for the 1995 calendar year.
(b) If in any Subsequent Year, Real Estate Taxes payable
during such Subsequent Year shall be greater than Real Estate Taxes
payable during the Base Tax Year for any reason whatsoever (including but
not limited to increases in the tax rates and/or the assessed valuation of
the Building, and increases in assessed valuation by reason of
improvements made to the Premises or any part thereof), foreseen or
unforeseen, then Sublessee shall pay Sublessor as additional rent, an
amount (hereinafter called "Sublessee's Tax Payment") equal to Sublessee's
Proportionate Share of such increase. Such additional rent shall be paid
by Sublessee notwithstanding the fact that Sublessee may be exempt, in
whole or in part, from the
007326/13000/180.6
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payment of any Real Estate Taxes by reason of Sublessee's diplomatic
charitable, or otherwise tax exempt status, or for any other reason
whatsoever. Sublessor shall furnish Sublessee with a statement setting
forth the amount of Real Estate Taxes and Sublessee's Tax Payment payable
for such Subsequent Year, and Sublessee shall pay Sublessee's Tax Payment
in one lump sum within fifteen (15) days of the furnishing of such
statement, but shall not in any event be required to pay Sublessee's Tax
Payment more than five (5) days before the commencement of the Tax Year.
(c) If the Utility Cost payable for any Subsequent Year (any
part or all of which falls within the term of this Sublease) shall
represent an increase above the Base Utility Cost, then Sublessee shall
pay Sublessor as additional rent for such Subsequent Year Sublessee's
Proportionate Share of such increase in one lump sum within 15 days after
Sublessor furnishes to Sublessee a statement of the amount due.
(d) (i) Any statement sent to Sublessee with respect to Real
Estate Taxes shall be binding upon Sublessee unless, within thirty (30)
days after such statement is sent, Sublessee shall send a written notice
to Sublessor objecting to such statement and specifying the respects in
which such statement is claimed to be incorrect. Any statement sent to
Sublessee with respect to Utility Cost shall be binding upon Sublessee
unless, within 30 days after such statement is sent, Sublessee shall
request copies of the fuel bills supporting the Utility Cost computation
(to the extent not previously furnished) and unless, within 30 days after
delivery of copies of such bills, Sublessee shall send written notice to
Sublessor objecting to such statement and specifying the respects in which
such statement is claimed to be incorrect. Pending the determination of
any such dispute Sublessee shall pay all additional rent shown on such
statement, and such payment and acceptance shall be without prejudice to
Sublessee's position.
(ii) Real Estate Tax and Utility Cost escalations shall
be appropriately prorated for any partial Subsequent Year. Any
additional rent due under this Paragraph 4 shall be collectible by
Sublessor in the same manner as the base rent, and Sublessor shall
have all rights with respect thereto as it has with respect to the
base rent.
(iii) If, after Sublessee shall have paid
Sublessee's Proportionate Share of any increase in Real Estate Taxes
with respect to any Subsequent Year, Sublessor shall receive a
refund of any portion of the Real Estate Taxes paid with respect to
such Subsequent Year as a result of a reduction in such Real Estate
Taxes by final determination of legal proceedings, settlement or
otherwise, Sublessor shall promptly, after receiving such refund,
pay Sublessee its Proportionate Share of such refund after deducting
from such refund the expenses (including but not limited to
attorneys' fees, expert's fees and disbursements) incurred by
Sublessor in
007326/13000/180.6
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connection with any application or proceeding to reduce the assessed
valuation of the Premises for such Subsequent Year.
(e) Notwithstanding the foregoing or any other provision of
this Sublease, Sublessor specifically waives its right to collect the Real
Estate Tax escalation for the tax year commencing December 1, 1994 and
ending November 30, 1995 and to collect the Utility Cost escalation for
the 1995 calendar year. The parties confirm that Sublessee's Proportional
Share is 26.148%.
5. [Intentionally Omitted]
6. Use of Subleased Premises/Parking.
(a) Sublessee shall use and occupy the Subleased Premises for
(i) office use and (ii) incidental to such office use, for storage of
supplies (but not for storage of blood or blood products or medical waste
except as hereinafter specifically provided) and for telephone
solicitations and (iii) to collect blood from donors provided that no more
than 13.5% of the Leasable Area shall be used for blood collection; and
for no other purpose. Without limiting the foregoing, except as provided
below, Sublessee agrees that it shall not use the Subleased Premises as a
laboratory to process blood or blood products or to store blood or blood
products or medical waste (hereinafter defined) or for any pornographic
purposes or any sort of commercial sex establishment.
(b) Notwithstanding the provisions of Par. 6(a) or any other
provision of this Sublease, Sublessee shall have the right to use an area
of 3,964 square feet, as identified on Exhibit A (the "Option Area"), for:
(i) the purposes described in subpar. (a) above and (ii) in addition, as a
laboratory to process blood or blood products or to store blood or blood
products and, further, as a "stat" lab for emergency testing of blood, it
being agreed that the uses listed in this clause (ii) may not be operated
in any portion of the Subleased Premises outside of the Option Area.
(c) Sublessor shall assign 155 parking spaces in the parking
lot around the Building for Sublessee's use, and Sublessee shall clearly
mark such spaces for its use. Sublessee's employees and invitees shall not
use other parking spaces on the Premises. In the event that the volume of
traffic through the parking lot on the Premises or the streets or
intersections bordering the Premises is increased (or claimed to be
increased by any government authority) by reason of Sublessee's use of the
Subleased Premises (for example, if the volume of the traffic increases by
reason of Sublessee's donor collection activities) and if the Town of
Huntington or any other federal, state, municipal, county, or local
government, department, commission, board or agency, makes any objection
or issues any direction with respect to such condition, then Sublessee, at
its own cost and expense, shall comply with any such direction and shall
be responsible for removing any such objection and shall be
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responsible for any costs or penalties that are imposed on the Building,
the Premises, Landlord, Sublessor or Sublessee with respect to such
matters, which payment(s) shall be deemed additional rent hereunder.
7. Services Provided By Sublessor.
(a) As long as Sublessee is not in default, Sublessor will
provide (i) heat to the Subleased Premises when and as required by law on
business days,from 7 a.m. to 7 p.m. and on Saturdays from 8 a.m. to 1 p.m.
(collectively, "Business Hours"); (ii) parking lot snow removal; and (iii)
water as required up to the amount that would be required for executive
lavatory purposes but, if Sublessee uses or consumes water beyond
executive lavatory use, Sublessor may install a water meter at Sublessee's
expense which Sublessee shall thereafter maintain at Sublessee's expense
in good working order and repair for the purpose of measuring such water
consumption and Sublessee shall pay for water consumed as shown on said
meter as additional rent as and when bills are rendered; and (iv)
groundskeeping. Sublessor may interrupt such services when necessary by
reason of accident or for repairs, alterations, replacements or
improvements necessary or desirable in Sublessor's judgment so long as
reasonably required therefor or by reason of strike or labor troubles or
any cause whatsoever beyond Sublessor's sole control.
(b) Sublessor shall service the HVAC system serving the
Subleased Premises on a routine basis by starting the equipment in the
spring, providing regular service and maintenance inspections, installing
filters as needed, and shutting down the system for the winter. Sublessor
shall make routine, minor repairs to the system as part of such service.
Sublessee, however, shall be responsible for making all other necessary
repairs and replacements.
(c) (i) Sublessee shall obtain electric service, at its own
cost and expense, directly from the utility servicing the Building.
(ii) [Intentionally Omitted]
(iii) Sublessee's use of electric current in the
Subleased Premises shall not at any time exceed the capacity of any
of the electrical conductors and equipment in or otherwise serving
the Subleased Premises. In order to ensure that such capacity is not
exceeded and to avert possible adverse effect upon the Building's
electric service, Sublessee shall not without Sublessor's prior
written consent, which consent shall not be unreasonably withheld,
in each instance, connect any additional electrical fixtures,
appliances or equipment (other than lamps, typewriters, and other
electrical equipment with electric consumption equivalent to that of
standard office machines) to the Building's electric distribution
system or make any alteration or addition to the electrical system
of the Subleased Premises. Should
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Sublessor grant such consent and if additional risers or equipment
shall be required therefor, same shall be installed by the
Sublessor, and the cost thereof shall be paid by Sublessee.
Sublessor shall not be liable in any way to Sublessee for any
failure or defect in supply or character of electric current
furnished to the Subleased Premises (other than such as may result
from Sublessor's gross negligence or wrongful act or wrongful
omission), including but not limited to any failure or defect in the
supply or character of electric service furnished to the Subleased
Premises by reason of any requirement, act or omission of the
utility serving the Building.
(iv) [Intentionally Omitted]
8. Subordination to Overlease, etc.
(a) Except as hereinafter otherwise provided, this Sublease is
expressly subject and subordinate to the covenants, terms and conditions
of the Overlease and the rights of the landlord thereunder and to the lien
of any mortgages which may now or hereafter encumber or otherwise affect
the real estate of which the Subleased Premises form a part. Sublessee
hereby acknowledges and represents that it has read the Overlease and is
familiar with all of the provisions thereof. A copy of the Overlease, with
certain provisions deleted, is annexed hereto as Exhibit C.
(b) Except as set forth in subparagraph (d) below and except
to the extent that such terms are inconsistent with the terms of this
Sublease, Sublessee shall be bound by and comply with all of the terms,
covenants and conditions to be observed and performed by the tenant under
the Overlease, as they relate to the Subleased Premises and to the term of
this Sublease, and Sublessee shall not do or permit to be done any act or
thing, or create or permit to be created any condition, which may
constitute a breach, default or violation of any of the terms, covenants
or conditions of the Overlease, or which may render Sublessor liable for
any charge or expense thereunder.
(c) Sublessor shall have the same rights and remedies with
respect to this Sublease and Sublessee as the Landlord has with respect to
the Overlease and the tenant thereunder as though such rights and remedies
set forth in the Overlease in favor of Landlord were set forth in this
Sublease in favor of Sublessor, including without limiting the foregoing
all of the rights and remedies provided in the Overlease for non-payment
of rent and the right to cure defaults of Sublessee. Except as herein
provided, all of the terms, covenants and conditions of the Overlease are
incorporated herein with the same force and effect as if herein set forth
in full and the rights and obligations contained in the Overlease are
hereby imposed on the respective parties hereto. References in the
Overlease to "Landlord" or "Sublessor", to "Tenant", to "Lease", and to
"premises" or "demised premises" are deemed to refer to Sublessor,
Sublessee, this Sublease and the Subleased Premises, respectively; any
references to
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Base Rent or Fixed Net Rent in the Overlease shall be deemed to be to the
rent payable hereunder, and references to the expiration date of the
Overlease shall be deemed made to the expiration date of this Sublease;
and where the sense of the text requires it, references to specific
paragraphs and terms in the Overlease shall be deemed made to the
corresponding paragraph and terms hereunder. Without limiting the
foregoing, Article 16 (Default Provisions) of the Overlease, including the
cure periods set forth therein, shall become a part of this Sublease as
provided above, with the following modifications: (i) Section 16.1(d) is
modified to delete the words "for five days after written notice thereof
from Landlord" and to substitute therefor the following language: "for ten
days after the due date thereof"; and (ii) all references in the last
paragraph of Section 16.1 to "three (3) days" shall be changed to "five
(5) days" unless such extension of time would cause Sublessor to be in
breach of the Overlease.
(d) The following Articles and sections contained in the
Overlease shall not be deemed incorporated in this Sublease (except as
herein specifically provided): 1; 2; 4 (except to the extent such
Impositions are payable by Sublessee as part of Real Estate Tax
escalation); 5; the first sentence of 6.1; 6.2; 6.4; 7; 8; the first
sentence of 11.1; 11.2; 11.3; 12.1(b), (d) and (e) (except to the extent
payable as part of escalations and additional rent hereunder); the second
sentence of 12.3; 13; 14; 19.3; 20 (except to the extent noted in Par. 21
of this Sublease); 22; 23; 24; 28; 32; 37 and 40; Amendment dated July 18,
1990; Amendment dated July 18, 1990 (letter agreement); and Amendment
dated as of January 1, 1993. Notwithstanding anything to the contrary
contained in Article 10 of the Overlease, Sublessee shall not be required
to discharge any lien, encumbrance or charge against the Premises created
by or imposed on account of Sublessor or Overlandlord.
9. Sublessor's Rights, etc.
Except with respect to those obligations of Sublessor specifically
set forth in this Sublease, Sublessor does not undertake any obligation to
perform the terms, covenants and conditions contained in the Overlease on the
Landlord's part to be performed thereunder.
10. One Time Renewal Option.
If Sublessee is not then in default beyond any notice and grace
period provided for in this Sublease, Sublessee may renew this Sublease upon all
of the terms, covenants and conditions set forth herein for an additional term
of 11 months commencing March 1, 1997 and ending on January 30, 1998, by written
notice of such renewal delivered to Sublessor no later than October 31, 1996. In
the event this Sublease is timely renewed as provided in this Paragraph, the
base rent payable during the first year of the renewal term shall be $416,531.15
per annum ($34,710.93 per month). During such extended term Sublessee shall,
among other things, continue to pay Real Estate/Tax and Utility Cost escalations
utilizing the same Base Tax Year and Base Utility Cost set forth in Paragraph 4.
This
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Paragraph 10 shall be deemed void and of no further force or effect if Sublessee
or Sublessor exercises any right to cancel this Sublease, including under
Paragraphs 16, 17 and 30. Time is of the essence with respect to the date by
which Sublessee is to give Sublessor notice hereunder.
11. [Intentionally Omitted]
12. Broker.
Sublessee represents and warrants to Sublessor that it has had no
dealings or communications with any broker or agent in connection with this
Sublease. Sublessee dealt with Cooperman Associates in connection with a prior
sublease between the parties for a portion of the Subleased Premises. Sublessee
agrees to indemnify and hold Sublessor harmless from and against any and all
costs, expenses (including reasonable attorneys' fees and disbursements) and
liabilities for any compensation, commissions or charges claimed by any broker
or agent with whom Sublessee has dealt with respect to this Sublease. The
foregoing indemnity does not extend to Cooperman Associates, except to the
extent Cooperman Associates may make a claim based on dealings or communications
Sublessee has had with Cooperman Associates with respect to this Sublease.
Sublessor agrees to indemnify and hold Sublessee harmless from and against any
and all costs, expenses (including reasonable attorneys' fees and disbursements)
and liabilities for any compensation, commissions or charges claimed by (a) any
broker or agent with whom Sublessor, but not Sublessee, has dealt with respect
to this Sublease, and (b) Cooperman Associates (except to the extent Cooperman
Associates may make a claim based on dealings or communications Sublessee has
had with Cooperman Associates with respect to this Sublease).
13. [Intentionally Omitted]
14. Indemnification.
Sublessee hereby agrees to indemnify and hold Sublessor harmless
from and against any and all losses, liabilities, damages and expenses
(including reasonable attorneys' fees and disbursements) for which Sublessor
shall not be reimbursed by insurance, which Sublessor may suffer or incur (i) in
connection with Sublessee's breach of this Sublease and/or failure to comply
with the applicable terms and conditions of the Overlease, or (ii) arising out
of damage or injury to persons or property in the Subleased Premises or on the
driveway constructed by Sublessee pursuant to Par. 25(b) during the term of this
Sublease, unless injury or damage is caused by the negligence of Sublessor, its
agents, servants, employees or invitees. Sublessor hereby agrees to indemnify
and hold Sublessee harmless from and against any and all losses, liabilities,
damages and expenses (including reasonable attorneys' fees and disbursements)
for which Sublessee shall not be reimbursed by insurance, which Sublessee may
suffer or incur (i) in connection with Sublessor's breach of this Sublease or
(ii) arising out of damage or injury to persons or property occurring on the
Premises, but outside of the Subleased Premises or such driveway unless such
injury or
007326/13000/180.6
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damage is caused by the negligence of Sublessee, its agents, servants, employees
or invitees. The provisions of this Paragraph and Sublessee's and Sublessor's
obligations hereunder shall survive the expiration or other termination of this
Sublease.
15. Insurance.
During the term of this Sublease, Sublessee shall maintain in full
force and effect the comprehensive public liability insurance required by the
Overlease, except that such policy shall be in a combined single limit of
$2,000,000. Sublessor and Landlord shall be named as additional insured on such
policy, in addition to those persons and entities required to be named as
insured and additional insured under the Overlease. Such policy shall not be
cancelable with respect to Sublessor or Landlord, except upon at least ten days
prior written notice to Sublessor and the Landlord under the Overlease. Two
duplicate originals or certificates of such policies shall be delivered to
Sublessor, together with proof of payment of the premiums thereon, upon the
commencement date of this Sublease and, thereafter, at least thirty days before
each expiration thereof, two duplicate originals or certificates of the renewals
or replacements of such policies shall be delivered to Sublessor. Nothing
contained in this paragraph shall be deemed to limit in any way the
indemnification provisions of Paragraph 14.
16. Casualty.
(a) If the Subleased Premises shall be partially damaged by
fire or other insured casualty, the damages shall be repaired by and at
the expense of Sublessor and the base rent shall be abated from the day
following the casualty until the date such repairs are substantially
completed according to the part of the Subleased Premises which are
untenantable. Notwithstanding the foregoing, Sublessor may terminate this
Sublease upon notice to Sublessee given within ninety (90) days following
the date of such casualty and upon the date specified in such notice,
which date shall be not less than one hundred twenty (120) days nor more
than one hundred fifty (150) days following the giving of such notice,
this Sublease shall terminate and Sublessee shall vacate and surrender the
Subleased Premises to Sublessor.
(b) If this Sublease shall not be terminated as provided above
in subparagraph (a), Sublessor shall proceed with the restoration of the
Subleased Premises, provided that Sublessor's restoration obligations
shall be subject to building and zoning laws then in effect. Sublessor
shall make such repairs with reasonable expedition, subject to delays due
to adjustment of insurance claims, availability of materials, labor
troubles and other causes beyond Sublessor's reasonable control. Sublessee
shall cooperate with Sublessor's restoration by removing from the
Subleased Premises, as promptly as reasonably possible, all of Sublessee's
salvageable and movable equipment, furniture and other property. If
Sublessor shall restore the Subleased Premises, Sublessee shall diligently
repair, restore and redecorate the Subleased Premises and re-open for
business from the Subleased Premises, promptly
007326/13000/180.6
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following notice of restoration, in a manner and to the condition existing
prior to the occurrence of such casualty, except to the extent that
Sublessor is obligated to make such repairs as provided above.
(c) In the event of a casualty not caused by Sublessee,
Sublessee's agents, employees, servants, invitees or contractors,
Sublessee may, if Sublessor fails to substantially complete restoration of
the Subleased Premise within 5 months of the date of the casualty, give
Sublessor 30 days' notice of intent to terminate and, if substantial
restoration of the Subleased Premises has not been effected within such
30- day period, then this Sublease shall terminate effective 30 days after
such notice of termination is given to Sublessor.
17. Condemnation.
If "materially all" (as such term is defined in Article 14 of the
Overlease) of the Premises or if any portion of the Subleased Premises such that
Sublessee shall no longer be able to operate its business at the Subleased
Premises shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, then and in such event, the term of this Sublease
shall cease and terminate from the date of title vesting in such proceeding. If
a portion of the Subleased Premises is so acquired or condemned and Sublessee
shall notify Sublessor within 30 days of having learned of such event that
Sublessee is able to continue to operate its business in the remaining portion
of the Subleased Premises, then, this Sublease shall continue as to such portion
and the base rent shall be proportionately abated. Sublessee shall be entitled
to any portion of an award made to Sublessee for the value of Sublessee's trade
fixtures and moving expenses provided such award does not diminish Sublessor's
or Overlandlord's award. As between Sublessor and Sublessee, all compensation
awarded for the taking of the Building, the Premises, the fee and the leasehold
shall belong to and be the property of the Sublessor, and Sublessee shall not be
entitled to any damages for the unexpired portion of the term of this Sublease
or injury to its subleasehold interest.
18. Notice, etc.
Any notice, demand, consent or other communication which, under the
terms of this Sublease, must or may be given or made by the parties hereto,
shall be in writing to be effective and shall be given or made by mailing the
same by registered or certified mail, return receipt requested, addressed to the
party for whom intended at its address as set forth on the first page of this
Sublease. Either party may designate such new or other addresses to which such
communications thereafter shall be given, made or mailed by notice given to the
other party in the manner prescribed herein. Any such communication shall be
deemed given or served, as the case may be, on the date of the posting thereof.
Notwithstanding the foregoing, Sublessor may deliver any bill to Sublessee by
leaving such bill at the Subleased Premises and such bill shall be deemed given
on the date of delivery.
007326/13000/180.6
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19. Attornment With Respect to Overlease.
Sublessee recognizes and acknowledges that the Sublessor hereunder
is the tenant under the Overlease. The Sublessee covenants and agrees that if
the leasehold estate of the Sublessor (as tenant under the Overlease) is
terminated or surrendered for any reason whatsoever including, without
limitation pursuant to Article 30, it will attorn to the Landlord under the
Overlease, upon the request of the Landlord, or any successor thereto, as the
case may be, and will recognize such landlord or such successor, as the case may
be, as the Sublessee's landlord under this Sublease. The Sublessee agrees to
execute and deliver at any time and from time to time, upon the request of the
Sublessor or of the landlord under the Overlease or any successor thereto, as
the case may be, any instrument which may be necessary or appropriate to
evidence such attornment. If the leasehold estate of the Sublessor as tenant
under the Overlease is terminated or surrendered, the Sublessee covenants and
agrees upon request of the landlord under the Overlease or any successor thereto
to enter into a lease with such landlord under the Overlease or any successor
thereto on the same terms and conditions as this Sublease, except as hereinafter
set forth. The Sublessee further waives the provision of any statute or rule of
law now or hereafter in effect which may give or purport to give the Sublessee
any right of election to terminate this Sublease or to surrender possession of
the Subleased Premises in the event of the termination or surrender of the
Overlease and agrees that this Sublease shall not be affected in any way
whatsoever thereby. If the Overlease terminates for any reason and Sublessee
becomes the direct tenant of the landlord under the Overlease, such landlord
shall not be (i) liable for any previous act or omission of Sublessor under this
Sublease, (ii) subject to any credit, offset, claim, counterclaim, demand or
defense which Sublessee may have against Sublessor, (iii) bound by any previous
modification of this Sublease that was not consented to by Landlord or that is
inconsistent with this Sublease or the Consent to Sublease, among Landlord,
Sublessor and Sublessee, dated as of the date hereof (the "Consent"), or by any
previous prepayment of more than one month's rent, (iv) bound by any covenant of
Sublessor to undertake or complete any construction of the Subleased Premises or
any portion thereof, (v) required to account for any security deposit of the
Sublessee other than any security deposit actually delivered to Landlord by
Sublessor, (vi) bound by any obligation to make any payment to Sublessee or
grant any credits, except for services, repairs, maintenance and restoration
provided for under this Sublease to be performed after the date of Sublessee's
attornment to Landlord, (vii) responsible for any monies owing by Landlord to
the credit of Sublessor, (viii) required to remove any person occupying the
Subleased Premises or any part thereof, (ix) required to afford Sublessee any
cafeteria rights or access rights through the corridor as defined in Paragraph 2
of this Sublease (and such Paragraph shall be deemed deleted and Landlord shall
have the right to eliminate such Cafeteria and corridor), and (x) required to
provide any parking for Sublessee's use, except for providing the spaces set
forth in the Consent. Further, if the Overlease is terminated for any reason and
this Sublease becomes a direct lease pursuant to the terms of this Sublease or
the Consent, this Sublease shall be deemed modified from the date of such
termination as provided in the Consent, which modifications shall include
Landlord's right to terminate the direct lease upon 120 days notice.
007326/13000/180.6
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20. Quiet Enjoyment.
Sublessor covenants and agrees with Sublessee that upon Sublessee
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions on Sublessee's part to be observed and performed,
giving regard to any cure periods provided herein, Sublessee may peaceably and
quietly enjoy the premises hereby demised, subject, nevertheless, to the terms,
and conditions of this Sublease.
21. Assignment and Subletting.
(a) Sublessee shall not assign this Sublease or sublet all or
any part of the Subleased Premises or grant any concessions or licenses in
respect thereof or in any way encumber Sublessee's interest in this
Sublease or the Subleased Premises without the written consent of
Sublessor and Landlord, subject to the provisions of this Par. 21.
(b) Sublessor covenants and agrees that it will not
unreasonably withhold its consent to Sublessee's assignment of this
Sublease or subletting of all or part of the Subleased Premises to any
other person, firm, or corporation, provided such assignee or subtenant
shall use and occupy the Subleased Premises for offices and not for
storage of blood or blood products or medical wastes, or to collect blood
from donors, or as a laboratory to process blood or blood products or as a
"stat" lab for emergency testing of blood. Notwithstanding the foregoing,
if such assignment or sublet is proposed to be made to an affiliate of New
York Blood Center, Inc, (an affiliate being any person or entity
controlling, controlled by or under common control with New York Blood
Center, Inc.), such assignee or subtenant may use the Subleased Premises
for the uses described in Paragraph 6 of this Sublease. At the time of
such assignment and/or sublet, this Sublease must be in full force and
effect without any breach or default thereunder on the part of the
Sublessee which is not cured in the applicable time period. A copy of the
assignment and the original assumption agreement or sublease (both in form
and content satisfactory to Sublessor), fully executed and acknowledged by
the assignee and/or sublessee shall be delivered to Sublessor within ten
(10) days from the date of execution of such assignment or sublease. In
the event of an assignment or sublet, Sublessee shall remain liable for
the performance of all of the terms, covenants and conditions of this
Sublease, including the payment of base rent and additional rent. Any such
sublet or assignment shall be subject to consent of Landlord, subject to
the provisions of the Consent.
(c) Notwithstanding anything contained in this Sublease to the
contrary and notwithstanding any consent by Sublessor to any assignment or
sublease of the Subleased Premises, no assignee or subtenant who enters
into such an assignment or sublease, shall further assign this Sublease or
further sublet all or part of the Subleased Premises or assign any
subsublease of the Subleased Premises
007326/13000/180.6
14
without the prior written consent of Sublessor in each such case, which
consent Sublessor in its sole discretion may withhold.
(d) Notwithstanding anything to the contrary set forth in this
Paragraph 21, or elsewhere in this Sublease, in the event Sublessee
requests Sublessor's consent to a sublease of all of the Subleased
Premises or to an assignment of the Sublease as set forth in subparagraph
(b), then Sublessor shall have the right to cancel and terminate the
Sublease, as of a date chosen by Sublessor, no earlier than two (2) months
and no later than four (4) months after the date of Sublessee's
notification to Sublessor of Sublessee's request to sublease or assign. If
Sublessor exercises its option to terminate this Sublease, then this
Sublease shall cease and terminate on the date set forth by Sublessor in
its notice without any further liability on the part of either party to
the other, except for accrued obligations to the date of termination.
Sublessor's right to cancel shall not apply to a request to sublet or
assign to an affiliate of Sublessee, provided that the permitted uses
under the Sublease shall remain the same.
(e) In the event of an assignment of this Sublease or sublet
of more than 30% of the Subleased Premises consented to by Sublessor, 75%
of any Net Profit for each calendar year shall be paid quarterly to
Sublessor. "Net Profit" for any calendar year shall mean the amount by
which "Gross Receipts" actually paid to Sublessee in connection with any
and all sublettings or assignments exceed "Gross Expenses" of Sublessee
with respect to the portion of the Subleased Premises so sublet (or the
entire Subleased Premises if the Sublease is assigned) for such calendar
year, such apportionment to be made on the basis of the percentage of the
actual net usable square footage of the Subleased Premises. "Gross
Receipts" of Sublessee shall mean all rentals and any other sums paid to
Sublessee including, without limitation of the foregoing, rent and
additional rent, sums paid to acquire the Sublease or subsublease, fixture
fees, electricity charges, "key money", and any other consideration paid
by any subtenant or assignee to Sublessee during the calendar year in
question. "Gross Expenses" of Sublessee with respect to the Subleased
Premises for any calendar year shall mean all rent, additional rent, and
other sums payable by Sublessee to Sublessor under the Sublease for such
calendar year and shall not include any other expenditures paid or
incurred by Sublessee except customary brokerage fees and reasonable
attorneys' fees actually paid by Sublessee in connection with such
subletting or assignment.
Within thirty (30) days after the end of each quarter of
each calendar year of the Sublease, Sublessee shall deliver to Sublessor a
statement sworn to by an officer of Sublessee setting forth the Gross
Receipts and Gross Expenses for such quarter and the computation of the
Net Profit, if any, for such quarter, together with any payment for any
Net Profit which may be due hereunder. In the event any such statement
intentionally contains an untrue statement or intentionally fails to
include a complete statement of Gross Receipts, Sublessee shall be deemed
to be in
007326/13000/180.6
15
material default of this Sublease and Sublessor shall be entitled to
terminate this Sublease in addition to exercising any other remedy
available to it in law or in equity. For the period of two (2) years after
any statement required by this Paragraph 21 has been sent by Sublessee to
Sublessor, Sublessor shall have the opportunity to examine the books of
Sublessee in order to determine the accuracy of such statements).
(f) A form of transfer or conveyance that would be deemed an
assignment or sublease under the Overlease shall be deemed an assignment
or sublet hereunder and subject to the terms hereof. In addition, any
transfer, by operation of law or otherwise, of Sublessee's (or any
subtenant's or assignee's) interest in this Sublease or the Subleased
Premises (in whole or in part) or of a 50% or greater interest in
Sublessee (whether stock, partnership interest, or otherwise) shall be
deemed an assignment of this Sublease and subject to the provisions
hereof. It is understood and agreed that if Sublessee is a corporation, a
transfer by the corporation or any shareholders) thereof of a majority of
the issued or outstanding capital stock of Sublessee, however accomplished
(including a transfer accomplished by the corporation's issuance of shares
in an amount greater than 50% of the outstanding shares), and whether in a
single transaction or in a series of related or unrelated transactions,
shall be deemed an assignment of this Sublease requiring Sublessor's
consent.
22. [Intentionally Omitted]
23. Additional Covenants Required by Overlease.
(a) Sublessee shall remove reasonably promptly after notice
all liens which might affect the landlord under the Overlease's fee estate
in the Premises or any portion thereof as a result of any changes,
alterations, new construction, renovation, demolition or remodeling of the
Building or any portion thereof made, or claimed to have been made, at the
request of Sublessee.
(b) The landlord under the Overlease shall be permitted entry
to the Subleased Premises for the purposes and at the times set forth in
Article 9 of the Overlease.
(c) Sublessor shall remove or otherwise discharge any
mechanics liens placed against the Premises by reason of a claim against
Sublessor in accordance with its obligations as tenant under the
Overlease.
The foregoing Subpar. (c) shall not be deemed to eliminate any
obligation of Sublessee to Sublessor under this Sublease (including by
reason of the incorporation of the terms of the Overlease) to remove any
mechanics liens.
007326/13000/180.6
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24. Signs.
Sublessee may continue to maintain the existing sign on the exterior
of the Building by the entrance to the Subleased Premises and may install one
additional sign on the monument located in front of the Building and one sign on
the west wall of the Building (in the southwest corner). Sublessor shall
cooperate with Sublessee and, if necessary, join in any application for a sign
permit, at Sublessee's expense. Such signs shall only contain the name of the
Sublessee (and/or any permitted assignees or sub-sublessee). Sublessee shall
obtain all permits, certificates and licenses required for the installation of
each sign installed by Sublessee; shall comply with all present and future laws,
orders and regulations of all state, federal, municipal, county, and local
governments, departments, commissions and boards and any direction of any public
officer pursuant to law with respect to such sign(s); and shall pay all fees,
including but not limited to any annual permit fees, required to be paid in
connection with such sign(s).
25. Alterations.
(a) Sublessee shall make no changes in or to the Subleased
Premises of any nature without the prior consent of Landlord and
Sublessor. Sublessee shall furnish Sublessor and Landlord with detailed
plans and specifications covering all proposed changes. Sublessor agrees
not to unreasonably withhold its consent to any such changes to the
Subleased Premises which are non-structural and which do not affect
utility services or plumbing and electrical lines in or to the interior of
the Subleased Premises; provided Sublessee complies with the provisions of
Section 11.1(a)-(h) and 11.3 of Article 11 of the Overlease. Sublessor's
consent shall be granted or denied within 5 working days of receipt of
such plans and specifications. Sublessee shall use contractors and
mechanics first approved by Sublessor, and Sublessor shall grant or deny
such approval within 3 working days after receipt of Sublessee's request.
If any mechanic's lien is filed against the Subleased Premises or the
Building for work claimed to have been done for or materials furnished to
Sublessee, whether or not done pursuant to this Paragraph, the same shall
be discharged by Sublessee within ten days thereafter at Sublessee's
expense by filing the bond required by law or otherwise. All improvements,
alterations and additions to the Subleased Premises and all fixtures,
panelling, partitions, railings and like installations, installed in the
Subleased Premises at any time, either by Sublessee or by Sublessor on
Sublessee's behalf, shall, upon installation, become the property of
Sublessor and shall remain upon and be surrendered with the Subleased
Premises. Nothing in this Paragraph shall be construed to give Sublessor
title to or to prevent Sublessee's removal of trade fixtures, moveable
office furniture and equipment, but upon removal of any such from the
Subleased Premises or upon removal of such other installations as may be
required by Sublessor, Sublessee shall immediately and at its expense,
repair and restore the Subleased Premises to the condition existing prior
to installation and repair any damage to the Subleased Premises or the
Building due to such removal. All property permitted or required to be
removed by Sublessee
007326/13000/180.6
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at the end of the term remaining in the Subleased Premises after
Sublessee's removal shall be deemed abandoned and may, at the election of
Sublessor, either be retained as Sublessor's property or removed from the
Subleased Premises by Sublessor, at Sublessee's expense.
(b) Sublessee has built, at Sublessee's sole cost and expense,
a driveway from the property owned by Sublessee adjacent to the Premises
(the "Adjacent Building") to the parking lot on the Premises in the
location indicated on Exhibit D annexed hereto. Sublessee shall remove
such driveway and shall restore the Premises to their original condition
existing prior to the construction of such driveway upon the earlier to
occur of the following: (a) the expiration or sooner termination of the
term of this Sublease (as such term may be extended or shortened pursuant
to the terms of this Sublease), or (b) the date Sublessee discontinues
conducting its blood bank operations from the Adjacent Building. Sublessee
shall be solely responsible for and shall maintain and keep such driveway
in good order and repair, shall be responsible for snow and ice removal,
and shall comply with all present and future laws, orders and regulations
of all state, federal, municipal, county, and local governments,
departments, commissions and boards and any direction of any public
officer pursuant to law with respect to such driveway and shall discharge
any violation, order or duty upon Sublessor, Landlord or Sublessee with
respect to the driveway.
26. [Intentionally Omitted]
27. Care of the Premises.
Sublessor shall maintain and repair the exterior of, grounds and the
public portions of the Building. Sublessee shall throughout the term of this
Sublease take good care of the Subleased Premises, including the bathrooms and
lavatory facilities and the windows and window frames and the fixtures and
appurtenances therein; and shall at Sublessee's sole cost and expenses promptly
make all repairs thereto and to the Building, whether structural or
non-structural in nature, caused by or resulting from the negligence or improper
conduct of Sublessee, Sublessee's servants, employees, invitees, or licensees.
Further, Sublessee shall, at Sublessee's sole cost and expense, promptly comply
with all present and future laws, orders and regulations of all state, federal,
municipal and local governments, departments, commissions and boards and
direction of any public officer pursuant to law, and all orders, rules and
regulations of the New York Board of Fire Underwriters or the Insurance Services
Office or any similar body which shall impose any order, violation or duty upon
Sublessor, Landlord or Sublessee with respect to the Subleased Premises, or with
respect to the Building if arising out of Sublessee's use or manner of use of
the Building; provided that nothing herein shall require Sublessee to make
structural repairs or alterations unless Sublessee has by its manner of use of
the Subleased Premises or method of operation therein violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
007326/13000/180.6
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28. Environmental Hazards.
(a) Sublessee shall not store, use, sell, or bring onto, the
Premises any Ultra Hazardous Material (hereinafter defined) in violation
of any environmental laws or regulations imposed by any competent
Governmental Authority. As used herein, the term "Ultra Hazardous
Material" shall be as defined in 42 U.S.C. 9601 et seq., as amended from
time to time, and any hazardous material or toxic waste the use, sale or
storage of which may make Sublessor, Landlord, or Sublessee liable to
remove same from the Premises in accordance with any applicable
environmental clean-up law. In the event any Ultra Hazardous Material is
used, sold or stored by Sublessee on the Premises, Sublessee shall remove
same and make the Premises clean of same within twenty (20) days after
notice from Sublessor or if such removal and clean-up shall require more
than twenty (20) days, Sublessee shall commence such work within twenty
(20) days and thereafter expeditiously and without interruption complete
same. Failure to remove and/or clean up same within said twenty (20) day
period (as same may be extended pursuant to the preceding sentence) shall
be deemed a default of this Sublease giving Sublessor the same remedies as
for nonpayment of Rent. In the event Sublessee fails to comply with the
obligations of this Paragraph 28, Sublessor shall have the right, in
accordance with the provisions of this Sublease, to remove same and clean
up the Premises at Sublessee's cost and expense, and Sublessee shall, upon
demand, reimburse Sublessor for such cost, together with interest at the
Interest Rate (as such term is defined in Section 2.7 of the Overlease).
Sublessee's obligation to reimburse Sublessor pursuant to this Paragraph
28 shall survive the expiration or sooner termination of this Sublease.
(b) A provision identical with the provisions of this
Paragraph 28 running for the benefit of Sublessor and Landlord shall be
included in each subsublease by Sublessee, and the failure of Sublessee to
include such a provision shall be deemed a default of this Sublease.
29. Miscellaneous.
(a) This Sublease may not be changed or terminated orally, but
only by an agreement in writing signed by both parties hereto.
(b) This Sublease constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and all other
representations and understandings have been merged herein.
(c) The covenants, conditions and terms of this Sublease shall
bind and inure to the benefit of both parties hereto, their successors and
permitted assigns.
007326/13000/180.6
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(d) In case of any conflict or inconsistency between the
provisions of the Overlease and those of this Sublease, the provisions
hereof, as between Sublessor and Sublessee, shall control.
(e) This Sublease shall be governed by and construed in
accordance with the laws of the State of New York. If any provision of
this Sublease or the application thereof to any person or circumstances,
shall to any extent be invalid or unenforceable, such provision shall be
adjusted rather than voided, if possible, in order to achieve the intent
of the parties to the extent possible; and, in any event, all other
provisions of this Sublease shall be deemed valid and enforceable to their
full extent.
(f) Whenever provision is made in this Sublease for the
consent or approval of the Sublessor, the Sublessor shall not capriciously
or without reasonable cause refuse to grant such consent or approval and
failure to disapprove within thirty (30) days after receipt of a written
request for approval or consent shall be deemed an approval or consent, as
the case may be. The foregoing provision shall not apply to requests for
the approval of Sublessor with respect to proposed structural
improvements, alterations, additions or repairs.
(g) Except as provided in the next sentence, Sublessee shall
not permit any medical waste to be stored or disposed of at the Subleased
Premises. Sublessee may store blood in the Subleased Premises in cold
storage units occupying no more than 1000 square feet within the Option
Area, provided Sublessee complies with all applicable governmental laws,
ordinances, rules and regulations. Sublessee shall furnish all equipment,
labor, utilities and supplies required for the generation, custody, and
disposal of medical waste at the Subleased Premises, including boxes,
labels and manifests and shall promptly remove from the Subleased Premises
and the Premises all medical wastes generated at the Subleased Premises.
Sublessee shall comply with all applicable governmental laws, ordinances,
rules, regulations and orders of any federal, state, county or local
government, governmental agency, department, board or authority imposed
with respect to any medical waste generated at the Subleased Premises (the
"Medical Waste Regulations") and shall pay any fines, penalties or other
charges levied against Sublessee, Landlord, Sublessor, the Building or the
Premises as a result of Sublessee's failure to handle, remove, transport
or dispose of medical waste in compliance with the Medical Waste
Regulations. Sublessee shall initiate, maintain and supervise all
appropriate safety precautions and programs in connection with the
custody, transport and proper disposal of medical wastes; and shall take
all reasonable precautions to prevent damage, injury or loss to any
persons or property in connection with its generation of, custody,
transport and disposal of medical wastes. The term "medical wastes" shall
mean blood, blood products, and any wastes or other substance which may
cause an infectious disease or reasonably be suspected of harboring
pathogenic organisms, including any wastes described as medical wastes by
any appropriate federal, state, or local statutory or
007326/13000/180.6
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regulatory authorities. Sublessee agrees to indemnify and hold harmless
Sublessor and Landlord against and from all liabilities, claims, damages,
loss, costs and expenses, including reasonable attorneys' fees, arising
out of any breach by Sublessee of its obligations under this Subparagraph
(g).
(h) In any action or proceeding for breach of this Sublease or
for holdover or dispossess proceedings, the party which does not prevail
shall pay the other party's reasonable attorneys' fees.
Sublessor shall provide up to two persons designated by Sublessee
with keys and security codes to Sublessor's phone room so that Sublessee shall
have telephone use after Sublessor's normal business hours. Sublessee shall be
responsible for the security of the Building when using the phone room after
normal business hours. Sublessee shall indemnify, defend and hold Sublessor and
Landlord harmless from and against all claims, loss, damages, cost and expense
Sublessor may incur by reason of such after-hours access, including, but not
limited to (a) any loss or damage to property and (b) any injury or death
occurring in or about the Building in connection with such after-hours use of
the phone room.
30. Early Termination.
Sublessee has been advised that Sublessor has granted the Landlord
and Landlord's affiliate the right, upon 180 days prior notice, to require
Sublessor to terminate and/or vacate the Premises, pursuant to a sublease with
AVR Mart, Inc. and/or a consent and release agreement, dated as of January 1,
1993 (collectively and individually, the "Release Agreement"). In the event
Sublessor receives such notice under the Release Agreement and such notice to
Sublessor requires by its terms that Sublessor give notice to Sublessee that
Sublessee is required to vacate the Subleased Premises, than Sublessor shall
give such notice to Sublessee (accompanied by a copy of the AVR Mart, Inc.'s or
Landlord's notice to Sublessor) and, upon receipt of such notice, Sublessee
shall vacate the Subleased Premises, leaving the Subleased Premises vacant,
broom clean, with all personal property and trade fixtures removed and otherwise
complying with its obligations under this Sublease (including but not limited to
Art. 25(b)) as of the end of the term of this Sublease or earlier termination,
upon the earlier of: (a) that date 150 days after a copy of such notice is given
to Sublessee, or (b) the end of the term of this Sublease (or the end of the
renewal term, if Sublessee has exercised its renewal option prior to the date
such notice is given to Sublessee). The renewal option contained in Article 10
of this Sublease shall be deemed void and of no further force and effect if this
Sublease is so terminated prior to exercise of the renewal option. If Sublessee
fails to timely vacate the Subleased Premises as set forth above, Sublessor may
be exposed to substantial damages, including but not limited to liability to
Landlord for the payment of rent for the balance of the term of the Overlease
(as if the Overlease had not been terminated). Accordingly, Sublessee agrees to
indemnify and hold Sublessor harmless from and against all claims, loss,
damages, liability, and costs Sublessor may incur, including but not limited to
reasonable attorneys' fees and consequential damages, by reason of Sublessee's
failure to timely vacate. Such indemnity shall not apply and
007326/13000/180.6
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Sublessee shall not be liable to Sublessor to the extent Sublessor's damages are
caused by its own failure to timely vacate. Notwithstanding the foregoing,
Sublessee acknowledges that Sublessor shall have the right to negotiate with the
Landlord under the Overlease to shorten the 180 day period for vacating the
Premises. Sublessee agrees that if Sublessor and Landlord enter into an
agreement to shorten such period, the 150 day period provided in this Paragraph
shall be correspondingly shortened on a day for day basis, to the extent that it
is applicable; provided that, in no event shall Sublessee have less than 120
days after notice to vacate the Subleased Premises. Sublessor shall promptly and
continually advise Sublessee of any discussions between Sublessor and the
Landlord regarding any such proposed agreement, provided that the failure of
Sublessor to do so shall not invalidate any notice that complies with the
foregoing requirements. If Sublessor receives any consideration from Landlord in
connection with such a shortening of the period for vacating including, without
limitation, any payment, rebate or credit, Sublessor shall share such
consideration with Sublessee based on Sublessee's Proportionate Share. If the
notice to Sublessor under the Release Agreement (described in the second
sentence of this paragraph 30) is given and does not require Sublessor to give
such notice to Sublessee, then, upon termination of the Overlease, the Sublease
shall become a direct lease pursuant to Article 19 of the Sublease and the
Consent and subject to Landlord's right to terminate the lease upon 120 days
notice.
31. [Intentionally omitted]
32. The Americans With Disabilities Act.
The Americans with Disabilities Act of 1990, together with the rules
and regulations promulgated thereunder, as such law, rules and regulations may
now or hereafter be amended or restated, are hereinafter referred to as the
"ADA". If the Subleased Premises or any portion thereof are used by Sublessee,
its subtenants, successors and/or assigns as a "place of public accommodation,"
as such term is defined in the ADA, Sublessee shall (a) comply with all present
and future requirements of the ADA as they relate to the Subleased Premises,
whether or not such compliance requires structural or non-structural alterations
to be made; and (b) reimburse Sublessor for all costs Sublessor may incur to
bring the common areas of the Premises into compliance with all present and
future requirements of the ADA; and (c) indemnify and hold harmless Sublessor
from and against all claims, actions, costs, damages, penalties, losses and
liabilities Sublessor may incur by reason of any action or proceeding instituted
against Sublessor and/or Sublessee by reason of the use of all or part of the
Subleased Premises as a place of public accommodation. If, at the time any claim
or demand is made by Sublessor upon Sublessee under this Paragraph, other space
in the Building is also used as a place of public accommodation, Sublessee
shall, with respect to its liability under clause (b), be responsible only for
its share of such costs. Such share shall equal a fraction, the numerator of
which is the leasable area of the Subleased Premises and the denominator of
which is the sum of the leasable areas of the Subleased Premises and of the
other space used as a place of public accommodation. All changes, alterations,
additions, improvements, and repairs made by Sublessee to the Subleased Premises
shall be performed in compliance with all applicable requirements of the ADA.
007326/13000/180.6
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33. Counterparts.
This Sublease may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Sublease as of
the day and year first above written.
VICON INDUSTRIES, INC.
By:_________________________________
NEW YORK BLOOD CENTER, INC.
By:_________________________________
007326/13000/180.6
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EXHIBIT A
Diagram of Subleased Premises
007326/13000/180.6
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EXHIBIT B
Diagram of Corridor to Cafeteria
007326/13000/180.6
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EXHIBIT C
Overlease (Including Amendments)
007326/13000/180.6
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EXHIBIT D
Driveway Construction by Sublessee
007326/13000/180.6
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