Exhibit 2.7
AGREEMENT OF SUBLEASE
BETWEEN
IMS HEALTH INC.
SUBLANDLORD
AND
--------------------------------
SUBTENANT
TABLE OF CONTENTS
1. Subleased Premises: Term..............................................1
2. Subordination.........................................................1
3. Obligations under Overlease...........................................2
4. Rights Reserved to Sublandlord........................................2
5. Remedies..............................................................3
6. Termination of Overlease..............................................3
7. Rent..................................................................4
8. Condition of Subleased Premises.......................................6
9. Exclusions from Overlease.............................................6
10. Services, Utilities, Maintenance and Repairs..........................6
11. Additional Services...................................................7
12. Use of Premises.......................................................7
13. Care of Premises......................................................7
14. Environmental Matters.................................................7
15. Compliance with Laws..................................................8
16. Alterations...........................................................8
17. Assignment and Subletting............................................10
18. Indemnity............................................................11
19. Insurance............................................................12
20. Damage; Destruction; Condemnation....................................14
21. Estoppel Certificate.................................................15
22. Rules and Regulations................................................15
23. Tax on Tenant's Personal Property....................................15
24. Arbitration..........................................................15
25. Severability.........................................................15
26. Time of Essence......................................................16
27. Captions.............................................................16
28. Incorporation of Prior Agreements....................................16
29. Notices: Payments....................................................16
30. Broker...............................................................16
31. Termination..........................................................17
32. Waivers..............................................................17
33. Recording............................................................17
34. Holding Over.........................................................17
35. Cumulative Remedies..................................................18
36. Covenants and Conditions.............................................18
37. Choice of Law........................................................18
38. Attorneys' Fees......................................................18
39. Sublandlord's Access.................................................18
40. Merger...............................................................18
41. Corporate Authority..................................................18
42. Inurement............................................................19
43. Demising Walls.......................................................19
44. No Violation of Overlease............................................19
45. Quiet Enioyment......................................................20
46. Consents and Approvals...............................................20
47. Force Majeure........................................................20
48. Damages..............................................................20
49. Shared Space and Equipment...........................................20
50. Subtenant's Access...................................................22
51. Provider/Recipient Services Agreement................................22
52. Parking..............................................................22
53. Competitors..........................................................23
54. Amendments...........................................................24
EXHIBITS
Schedule A Floor Plan--Subleased Premises
Schedule A-1 Shared Space Not Shown on Schedule A
Schedule A-2 Shared Equipment
Schedule B Overlease
Schedule C Provider/Recipient Services Agreement
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[Location]
SUBLEASE
THIS SUBLEASE, made and entered into as of the date set forth below by
and between IMS HEALTH INC., a Delaware corporation, having an office at 200
Nyala Farms, Westport, Connecticut 06880, Attention: Director of Global Real
Estate (the "Sublandlord") and _________________________________, a
_______________ corporation, having an office at 3445 Peachtree Road, N.E.,
Suite 1400, Atlanta, Georgia 30326 Attention: ______________ (the "Subtenant").
WITNESSETH:
WHEREAS, Sublandlord, by [LIST NAME AND DATES OF OVERLEASE AND ADDENDA]
(the "Overlease"), leased from [NAME OF OVERLANDLORD WITH A DESCRIPTION OF ANY
SUCCESSIONS] (the "Overlandlord") certain space (the "Overleased Premises") of
the building located at [LIST BUILDING ADDRESS] (the "Building"), such
Overleased Premises being more particularly described in the Overlease (a copy
of which is either attached hereto as SCHEDULE B and made a part hereof or
because of the voluminous nature of the Overlease has been identified on
SCHEDULE B as having been delivered to Subtenant under separate cover); and
WHEREAS, Subtenant and Sublandlord are affiliates;
WHEREAS, Subtenant, as assignee of _____________________, an affiliate
of Subtenant, presently subleases from Sublandlord a certain portion of the
Overleased Premises; and
WHEREAS, Sublandlord and Subtenant desire to enter into this Sublease
to set forth in writing the terms and conditions upon which Subtenant shall
continue to sublease from Sublandlord such portion of the Overleased Premises;
NOW, THEREFORE, Sublandlord and Subtenant mutually agree as follows:
1. SUBLEASED PREMISES: TERM
Sublandlord hereby subleases to Subtenant, and Subtenant hereby
subleases from Sublandlord, _________ square feet of space in the Overleased
Premises, such space being more particularly shown outlined on SCHEDULE A
attached hereto and made a part hereof (the "Subleased Premises"), for a term
(the "Sublease Term") commencing on the date set forth on the signature page
hereto (the "Commencement Date") and expiring on ____________, ____(the
"Expiration Date") unless terminated earlier according to the terms hereof.
2. SUBORDINATION
This Sublease is hereby expressly made subject and subordinate to the
Overlease and shall be upon the same terms, covenants and conditions provided in
the Overlease as applicable to the Subleased Premises (except such as by their
nature are inapplicable to, contradicted by, or inconsistent with, this
Sublease). Subtenant acknowledges receipt of a copy of the Overlease. Subtenant
acknowledges that its possession and use of the Subleased Premises shall at all
times
be subject to the rights of Overlandlord set forth in the Overlease. Sublandlord
shall have no liability to Subtenant for any acts of the Overlandlord pursuant
to the Overlease. Except as otherwise expressly provided in this Sublease, the
provisions of the Overlease are deemed included herein and made a part hereof
("Sublandlord" being substituted for "Landlord" or "Lessor"; "Subtenant" being
substituted for "Tenant" or "Lessee"; "Subleased Premises" being substituted for
"Premises" or "Demised Premises"). Notwithstanding the foregoing, no
representation or warranty made or given by the Overlandlord in the Overlease
shall be deemed to be made or given by Sublandlord in this Sublease. In the
event of any inconsistency between the provisions of this Sublease and the
provisions of the Overlease as incorporated herein, the provisions of this
Sublease shall control as between Sublandlord and Subtenant.
3. OBLIGATIONS UNDER OVERLEASE
For the purposes of this Sublease only, Subtenant hereby assumes all of
the responsibilities and obligations to be performed on the part of Sublandlord
as tenant under the Overlease with respect to the Subleased Premises for the
entire Sublease Term (other than those provisions of the Overlease specifically
excluded from this Sublease and the obligations to pay rent and additional rent
and other amounts which are governed by this Sublease). Subtenant covenants and
agrees not to do, permit or allow any act which would, might, or does violate,
or constitute a breach of or a default under the Overlease or which would,
might, or does make Sublandlord liable for any damages, claim or penalty under
the Overlease.
4. RIGHTS RESERVED TO SUBLANDLORD
Any and all rights or options in the Overlease relating directly or
indirectly to expansion, renewal, extension, first refusal, first offer, first
negotiation, cancellation (wherever in the Overlease such rights may arise
including provisions relating to casualty and condemnation), early termination,
and other similar rights are reserved to the Sublandlord (without any obligation
to exercise any such rights or options) and may not be exercised by Subtenant.
Except as otherwise specifically set forth in this Sublease, any right in the
Overlease for Sublandlord to contest property taxes with the authority imposing
the taxes is reserved solely to Sublandlord without any obligation to exercise
any such right. Any rights to signage, or to determine the name of the Building
or similar rights, are reserved to Sublandlord. In addition to the rights set
forth in the preceding sentences, upon Subtenant's breach of any of the terms,
covenants or agreements of the Overlease, Sublandlord may give written notice to
Subtenant specifying such breach or breaches and stating this Sublease and the
Sublease Term shall expire and terminate thirty (30) days after giving of such
notice unless Subtenant cures such default within such thirty (30) day period.
Upon any such termination of this Sublease, Subtenant shall quit and peacefully
surrender the Subleased Premises to Sublandlord, and Sublandlord or
Sublandlord's agents or employees, upon such termination may immediately or at
any time thereafter, without further notice, enter upon and re-enter the
Subleased Premises, by force, summary proceedings, ejectment or otherwise, and
may dispossess Subtenant and remove Subtenant and all other persons and property
from the Subleased Premises. Subtenant hereby waives the service of any notice
of intention to re-enter or to institute legal proceedings to that end which may
otherwise be required to be given under any present or future law. If this
Sublease is terminated and/or Sublandlord re-enters, as provided in this
Article, Subtenant shall pay to Sublandlord as damages
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a sum equal to the actual damages incurred by Sublandlord as a result of
Subtenant's breach (material or non-material).
5. REMEDIES
Upon any breach of any of the terms, covenants, or agreements to be
performed or observed under this Sublease by Subtenant, Sublandlord may exercise
any of the rights given to the Overlandlord under the Overlease, provided that
in the event Subtenant breaches any provision of the Overlease, then any notice
and grace periods provided in the Overlease shall for the purposes of this
Sublease be decreased by twenty-five percent (25%). The exercise of any such
remedies shall not be in derogation of, but shall in addition to, any other
remedies available to Sublandlord. Subtenant shall have only the remedies
provided in this Sublease in the event of a default by Sublandlord and shall not
be entitled to any self-help, abatement of rent or termination rights unless
specifically provided in this Sublease.
6. TERMINATION OF OVERLEASE
In the event the Overlease is terminated pursuant to its terms prior to
the expiration of the term of this Sublease, this Sublease shall automatically
cease and terminate as of the date upon which the Overlease is terminated. If
such early termination is due to Sublandlord's negotiations with the
Overlandlord as a result of Sublandlord's decision to seek any early
termination, Sublandlord will give notice to Subtenant of such early termination
and Subtenant shall be given a reasonable time after such notice (not to exceed
six (6) months, but in no event later than such negotiated early termination
date) to vacate the Subleased Premises. Sublandlord will give Subtenant prompt
notice that the Sublandlord and Overlandlord have entered any such negotiation.
In the event of such negotiated early termination, except to the extent such
early termination benefits the Subtenant, Sublandlord shall reimburse Subtenant
for Subtenant's actual moving expenses and the amortized cost of any
consented-to Alterations (as hereinafter defined) made at Subtenant's expense.
Upon any termination of the Overlease and resulting termination of this
Sublease, all rent due hereunder shall be prorated from the first day of the
month of termination, and neither party shall have any further obligation or
liability to the other arising out of this Sublease except for the payment by
Subtenant of such amounts of rent as so prorated and any other amounts accrued
to the date of termination, and neither party shall have any further obligation
or liability to the other arising out of this Sublease after such termination
except for (i) Subtenant's obligation to vacate the Subleased Premises and to
pay such amounts of rent as so prorated and any other amounts accrued to the
date of termination; (ii) Sublandlord's obligation to refund the Subtenant all
prepaid rent covering any period which will occur after such termination; (iii)
the payment by Sublandlord to Subtenant of any amounts due pursuant to this
Article; and (iv) any obligation which is expressly intended to survive
termination whether directly herein or pursuant to provisions of the Overlease
incorporated herein by reference. The provisions of this Article shall survive
the termination of this Sublease.
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7. RENT
(a) BASE RENT
Subtenant shall pay Sublandlord as the annual base rent ("Base Rent")
during the Sublease Term ______% of the annual base rent then payable by
Sublandlord to Overlandlord pursuant to the Overlease. The Base Rent shall be
payable in equal monthly installments in advance on the first day of each
calendar month during the Sublease Term (subject to the provisions of
Paragraph (c) below), without demand, deduction, set-off or abatement
whatsoever, said payments of Base Rent to be made directly to Sublandlord at
the address set forth in this Sublease, or at such other address as
Sublandlord may hereafter designate by written notice to Subtenant. The Base
Rent initially payable hereunder shall be in the amount of
_______________________ Dollars ($__________) per month, and the first such
monthly payment will be paid upon the execution of this Sublease.
(b) ADDITIONAL RENT
(i) In addition to the Base Rent hereinabove reserved,
Subtenant shall pay Sublandlord as additional rent for the period beginning with
the Commencement Date and during the entire Sublease Term an amount equal to
_____% ("Subtenant's Proportionate Share") of all amounts and charges that are
attributable to the use and occupancy of the Overleased Premises, including,
without limitation, payments with respect to operating expenses, electric
current costs, insurance and taxes, payable by Sublandlord to Overlandlord
pursuant to the Overlease to the extent such amounts are charged to Sublandlord
as tenant under the Overlease. All such amounts of additional rent shall be
payable after they are billed to Sublandlord, and Subtenant shall pay such
amounts to Sublandlord within the same period of time as payment is required by
Sublandlord as tenant under the Overlease. Any statement from Overlandlord for
such amounts pursuant to the Overlease shall be conclusive upon Subtenant. The
obligations of Subtenant hereunder shall survive the Expiration Date or earlier
termination of this Sublease and shall include amounts payable for the entire
Sublease Term even if not billed by Overlandlord or Sublandlord prior to the
Expiration Date or earlier termination. Notwithstanding anything contained in
this Article, at any time during the Sublease Term, the Sublandlord based on the
Overlandlord's statement, if any, or based on Sublandlord's estimates of
Subtenant's Proportionate Share based on the amounts payable in the prior
Sublease Year and reasonable projections for the current Sublease Year, may
estimate the amount of Subtenant's Proportionate Share for any subsequent
Sublease Year and require Subtenant to pay one-twelfth (1/12) of such annual
estimate each month at the same time Base Rent payments are due. At the end of
each Sublease Year, or sooner at the Sublandlord's election, such estimated
payments shall be compared to the actual amount paid for such Sublease Year and
any overpayment will be applied to the Rent next due, and any underpayment will
be due with the Rent next due, and the Subtenant's Proportionate Share for the
twelve-month period immediately following shall again be estimated by
Sublandlord based on current costs and estimates and one-twelfth (1/12) thereof
shall be payable each month for the following year, until adjusted again
pursuant to this Article. Sublandlord and Subtenant acknowledge that Subtenant
has been occupying the Subleased Premises prior to the Commencement Date, and
Subtenant agrees that it is and shall remain responsible for payment of all
amounts and charges that are attributable to the use and occupancy
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of the Subleased Premises for the period prior to the Commencement Date during
which Subtenant has been occupying the Subleased Premises.
(ii) Subtenant covenants and agrees to pay any fees,
expenses, and other charges assessed by Overlandlord pursuant to the Overlease
resulting from Subtenant's use and occupancy of the Subleased Premises,
including any additional services provided by the Overlandlord at the Subleased
Premises, and any amounts payable because of Subtenant's acts or negligence.
(iii) Any and all payments required to be made by Subtenant
to Sublandlord under this Sublease other than Base Rent shall be called
"Additional Rent." All Base Rent, Additional Rent and all other costs, charges
and sums payable by Subtenant hereunder (collectively "Rent") shall constitute
rent under this Sublease. Subtenant shall promptly pay the Rent as and when the
same shall become due and payable without set-off or deduction, and, in the
event of Subtenant's failure to pay the same when due, Sublandlord shall have
all of the rights and remedies provided for in this Sublease, or at law or in
equity, for non-payment of Rent.
(iv) If the Subleased Premises constitute more than 50% of
the Overleased Premises and the Overlease permits the tenant under the Overlease
to audit the Overlandlord's books and records or to contest real estate taxes,
upon the request of the Subtenant, Sublandlord will enforce its rights in
accordance with the provisions of the Overlease provided that Subtenant shall be
liable for all costs incurred as a result thereof and shall indemnify
Sublandlord against and hold Sublandlord harmless from any and all such costs.
Any such costs shall be deemed Additional Rent and shall be paid by Subtenant
within the time period set forth in the Overlease. After deducting such costs,
any resulting refund will be pro-rated between Sublandlord and Subtenant based
on Subtenant's Proportionate Share.
(c) DATE OF PAYMENT
The parties agree that payments which are regular periodic payments of
Rent hereunder are expected to be available to Sublandlord on the first day of
the month. Accordingly, if Subtenant elects to pay Rent by check, rather than by
wire transfer on the first day of the month, Subtenant shall remit such Rent
payment six days before the first day of the month for which it is due.
(d) INTEREST ON PAST DUE OBLIGATIONS
Except as expressly herein provided to the contrary, any amount due
Sublandlord not paid when due shall bear interest from the due date at the
maximum rate per annum allowable at the time of breach. Payment of such interest
shall not excuse or cure any default by Subtenant under this Sublease.
(e) LATE CHARGE
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In addition to any interest charges on unpaid balances, Subtenant shall
pay a late charge equal to ten percent (10%) of any amount remaining unpaid on
the eleventh day after the due date.
8. CONDITION OF SUBLEASED PREMISES
Subtenant represents that it has made a thorough examination and
inspection of the Subleased Premises and is familiar with the condition of such
Subleased Premises, and Subtenant agrees to accept the Subleased Premises in its
"AS IS" condition, as of the date of this Sublease. Subtenant agrees that it
enters into this Sublease without any representations or warranties by
Sublandlord, its agents, representatives, servants or employees, or any other
person, as to the condition or use by Subtenant of the Subleased Premises.
Subtenant understands and agrees that Sublandlord shall not be required or
obligated to make any repairs, alterations or improvements for Subtenant in
connection with the Subleased Premises, including, without limitation, painting,
finishing, plastering or decorating. Subtenant acknowledges that neither
Sublandlord nor anyone acting for or on behalf of Sublandlord has made any
covenant; warranty or representation to Subtenant about the Subleased Premises
or their suitability for the use to which Subtenant intends to put them.
9. EXCLUSIONS FROM OVERLEASE
All provisions of the Overlease which set forth rights which are by
their nature applicable only to Sublandlord, reserved elsewhere herein for the
exclusive benefit of Sublandlord (e.g. the exclusions set forth in Section 4 of
this Sublease) or have heretofore been fully utilized or exhausted by
Sublandlord and generally not available for further assignment shall be
expressly excluded from this Sublease and shall not apply or be available to
Subtenant. By way of illustration but without intending to limit the generality
of the foregoing, the rights and benefits under this Sublease not available to
Subtenant include those relating to signage, Overlandlord's provision of tenant
improvements work and allowances, dates of possession and occupancy.
10. SERVICES, UTILITIES, MAINTENANCE AND REPAIRS
Subtenant acknowledges and agrees that Sublandlord shall have no
obligation whatsoever for maintenance or repair of the Subleased Premises or to
provide any utilities or other services described in the Overlease. Subtenant
shall receive directly from the Overlandlord all services and utilities and the
performance of all obligations which the Overlandlord is required to provide in
and for the benefit of the Subleased Premises, and Subtenant agrees that it
shall look solely to the Overlandlord and not to Sublandlord for all services
required to be provided at the Subleased Premises, and for the performance of
all obligations required to be performed by Overlandlord with respect to the
Subleased Premises. Sublandlord shall have no liability whatsoever for any
failure, inadequacy or defect in the character or supply of any such utility or
service, or in the event that Overlandlord fails to furnish any such services or
to perform any such obligations during the Sublease Term unless Overlandlord's
failure to deliver any service or perform any obligation is due to the gross
active negligence or willful misconduct of Sublandlord. Any such liability shall
be limited to damages actually sustained by Subtenant as a result of
Sublandlord's gross active negligence or willful misconduct, and shall only
arise if Subtenant gives Sublandlord prompt notice of Overlandlord's failure. At
Subtenant's cost and expense,
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Sublandlord shall use reasonable efforts to enforce the performance by
Overlandlord of its obligations under the Overlease which affect Subtenant's
occupancy or use of the Subleased Premises and to cause Overlandlord to provide
and furnish such services, utilities, and repairs to the Subleased Premises
throughout the Sublease Term. Nothing herein shall be deemed to authorize
Subtenant to deal directly with the Overlandlord without the prior written
consent of Sublandlord. To the extent Sublandlord receives an abatement of rent
as a result of the Overlandlord failing to provide services, Subtenant shall
receive a proportionate rent abatement to the extent such failure by
Overlandlord affects the Subleased Premises.
11. ADDITIONAL SERVICES
Any service required or requested by Subtenant which is billed to
Sublandlord or Subtenant by Overlandlord shall be paid in full by Subtenant
promptly upon receipt of a written statement therefor, including but not limited
to alteration fees, charges for overtime services for HVAC and heating, and any
other fees or expenses that Overlandlord is entitled to be paid under the
Overlease.
12. USE OF PREMISES
Subtenant may use and occupy the Subleased Premises for those uses
permitted by the Overlease only and shall not use the Subleased Premises for any
use or purpose which would violate the Overlease. Subtenant shall not change its
use of the Subleased Premises without the prior written consent of the
Sublandlord and Overlandlord. Notwithstanding anything contained in this
Sublease to the contrary, Subtenant assumes all responsibility regarding the
Occupational Safety Health Act, and any successor or similar act in effect in
the jurisdiction in which the Subleased Premises are located, for the legal use
or adaptability of the Subleased Premises and the conformity of the use of the
Subleased Premises by Subtenant to any such law during the Sublease Term.
13. CARE OF PREMISES
Subtenant shall, at its expense, take good care of the Subleased
Premises and the appurtenances therein and properly maintain and make all
repairs and capital replacements thereto, as and when needed, and shall preserve
the Subleased Premises in good order and condition, all as required of the
tenant pursuant to the terms of the Overlease.
14. ENVIRONMENTAL MATTERS
Subtenant shall not generate, store, transport, treat, dispose of or
use in the Subleased Premises or elsewhere in the Building, or the property on
which it stands or which surrounds or abuts the Building, any hazardous or toxic
substances or wastes as defined under any applicable laws, rules, or regulations
applicable to the Subleased Premises or Subtenant, except that if the Subleased
Premises are in an office building, Subtenant's use of cleaning supplies,
copying fluids, other office and maintenance supplies and other substances
normally and customarily used by tenants of space similar to the Subleased
Premises shall not be deemed a violation of this Article if such use is in
compliance with all legal requirements and Board of Fire Underwriters
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requirements (or their functional equivalent in the jurisdiction in which the
Subleased Premises are located), and the terms of this Sublease and the
Overlease.
15. COMPLIANCE WITH LAWS
In addition to any obligations under the Overlease, Subtenant, at its
own cost and expense, shall (insofar as the following relate to the specific
manner in which Subtenant uses the Subleased Premises) (a) promptly comply with
all statutes, ordinances, rules, orders, regulations and requirements of (i) if
the Subleased Premises are located within the United States, the Federal, State
and municipal governments (and any political subdivision thereof) and of any and
all their departments and bureaus including, without limitation, the Americans
with Disabilities Act, and all laws relating to environmental matters and (ii)
if the Subleased Premises are located outside of the United States, all laws and
legal requirements of the applicable jurisdiction applicable to the Subtenant
and the Subleased Premises including all laws relating to environmental matters;
(b) promptly correct, prevent, and abate nuisances, violations or other
grievances, in, upon or affecting the Subleased Premises; and (c) promptly
comply with and execute all rules, orders and regulations of the Board of Fire
Underwriters for the prevention of fires (or their functional equivalent in the
jurisdiction in which the Subleased Premises are located). All of the foregoing
set forth in (a), (b) and (c) above are collectively referred to as "Legal
Requirements."
If Subtenant shall fail or neglect to comply with the aforesaid Legal
Requirements, or if Subtenant shall fail or neglect to make any repairs or
perform any maintenance which it is required to make or perform under the terms
of this Sublease, and if such breach continues for a period of thirty (30) days
after notice from Overlandlord or Sublandlord regarding same, or, if the breach
cannot be cured within thirty (30) days, and Subtenant has not begun to cure the
breach within such period and does not thereafter diligently prosecute the cure
to completion within ninety (90) days, then Sublandlord or its agents may (but
shall not be obligated to) enter the Subleased Premises and take such actions as
necessary to cure the breach and comply with any and all of the said Legal
Requirements, at the cost and expense of Subtenant; and, in case of Subtenant's
failure to pay therefor, the said cost and expense, together with interest
thereon, shall be deemed Additional Rent and be due and payable with the next
monthly installment of Rent.
Notwithstanding the foregoing, if Subtenant fails to comply with any
Legal Requirements, and the Overlease or the law or regulation requires
compliance in a shorter period of time than is permitted by the foregoing,
Subtenant shall comply within such shorter time period. In the event that
Subtenant's obligation to comply with Legal Requirements requires any
"Alterations" (as hereafter defined), then such Alterations shall be made in
accordance with the provisions contained elsewhere in this Sublease, including
any requirement for Sublandlord's or Overlandlord's consent.
Nothing contained in this Article shall relieve Subtenant of the
obligation to comply with laws to the same extent as Sublandlord is required as
the tenant under the Overlease.
16. ALTERATIONS
(a) CONSENT REQUIRED
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Subtenant shall make no alterations, additions, installations or
improvements of any kind ("Alterations") to the Subleased Premises without the
prior written consent of Sublandlord and such consent of the Overlandlord as the
Overlease requires. Any alterations made to the Subleased Premises with consent
shall be at the sole cost and expense of the Subtenant. Any and all approved
Alterations shall be made in conformity with the applicable terms and conditions
of the Overlease and all Legal Requirements. Subtenant shall submit its proposed
Alterations simultaneously to Overlandlord (if required by the Overlease) and
Sublandlord for consent subject to the provisions of the Overlease. If any fees
are charged by Overlandlord in connection with Overlandlord's review of
Subtenant's proposed Alterations, all such fees shall be paid by Subtenant and
Sublandlord shall have no liability whatsoever therefor. Nothing contained
herein shall be deemed to permit Subtenant to make any alterations, additions,
installations or improvements if the Overlease prohibits same.
(b) INSURANCE
Any insurance required to be maintained pursuant to the Overlease by
the tenant thereunder with respect to any Alterations shall be maintained by
Subtenant in connection with any Alterations permitted hereunder and shall name
Sublandlord and Overlandlord as insured parties thereunder.
(c) SUBTENANT'S COST
All Alterations to be made pursuant to this Article shall be made or
contracted for by Subtenant, subject to the terms of the Overlease, and shall be
performed at Subtenant's sole cost and expense, lien free and in accordance with
the applicable provisions of the Overlease. Subtenant agrees to indemnify and
hold Sublandlord harmless from and against any and all claims that may be made
against Sublandlord arising out of or in connection with the construction or
installation of any Alterations except to the extent such claims result from the
gross active negligence or willful misconduct of Sublandlord or any of its
employees or agents.
(d) COMPLIANCE WITH LAW
Subtenant agrees to file, as required by law, any plans submitted in
connection with any Alterations, and to comply with all applicable laws and
regulations in connection with the Alterations.
(e) REMOVAL
Notwithstanding anything contained in this Article to the contrary, if
at the time that any Alterations are consented to, Sublandlord or Overlandlord
advises Subtenant that removal and restoration will be required, or if such
removal or restoration is required by the terms of the Overlease, Subtenant
shall be required to remove such Alterations on the Expiration Date or earlier
termination of the Sublease Term and, at its expense, repair and restore the
Subleased Premises to the condition existing prior to installation thereof, and
repair any damage to the Subleased Premises or the Building due to such removal.
Except as otherwise provided in the Overlease or this Sublease, all Alterations
installed in the Subleased Premises at any time shall become the property of
Sublandlord and shall remain upon and be surrendered with the
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Subleased Premises. Nothing contain led in this Article shall be construed as
prohibiting Subtenant form removing its furniture, furnishings, movable trade
fixtures and other personal property from the Subleased Premises, provided same
does not violate the terms of the Overlease.
17. ASSIGNMENT AND SUBLETTING
(a) CONSENT REQUIRED
Subtenant shall not voluntarily or by operation of law or otherwise,
assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or any
part of Subtenant's interest in this Sublease or in the Subleased Premises,
without the prior written consent of Overlandlord if required by the Overlease,
and the prior written consent of the Sublandlord which shall not be unreasonably
withheld or delayed subject to any rights of recapture contained in the
Overlease or this Sublease. Notwithstanding the foregoing, Sublandlord may
condition its consent on, among other things, Subtenant constructing Demising
Walls (as hereinafter defined) between the Overleased Premises and the Subleased
Premises. In addition, Sublandlord and Subtenant agree that no sub-subtenant or
assignee of Subtenant shall be permitted access to or use of any of the "Shared
Space and Equipment" described in Section 49 of this Sublease or entitled to
receive any of the services described in Section 52 of this Sublease. In
addition, it shall not be deemed unreasonable if Sublandlord denies consent to
any assignment or sublet to any entity which is a competitor of Sublandlord or
any entity which is an affiliate or under common control of any entity which is
a competitor of Sublandlord. Any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void, and shall
constitute a breach of this Sublease. No consent to any assignment or sublease
shall be deemed a consent to any further or future assignment or subletting. Any
amounts payable by any permitted assignee pursuant to such assignment, or by any
permitted subtenant pursuant to such sublease, in excess of the Rent payable
under this Sublease shall be paid to the Sublandlord.
(b) TRANSFER OF CONTROL
Any transfer, by operation of law or otherwise, of the interest of
Subtenant in this Sublease (in whole of in part) or of a fifty percent (50%) or
greater interest in Subtenant (whether stock, partnership interest or otherwise)
shall be deemed an assignment of this Sublease within the meaning of this
Article. The issuance of shares of such stock to other than the shareholders of
Subtenant existing as of the date of this Sublease and their heirs,
distributees, successors and assigns shall be deemed to be a transfer of such
stock for the purposes of this Article. If there has been a previous transfer of
less than a fifty percent (50%) interest in Subtenant, any other transfers of an
interest in Subtenant which have the cumulative effect of causing fifty (50%) or
more of the interest in Subtenant to be transferred shall be deemed an
assignment of the interest of Subtenant in this Sublease within the meaning of
this Article. Notwithstanding the foregoing, the provisions of this paragraph
shall not apply to the sale of shares through any recognized stock exchange or
the over-the-counter market by persons who are not officers, directors or 10% or
greater stockholders of Subtenant (within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended), unless such a sale is made in
connection with, results in, or is the result of, any merger, consolidation,
tender or exchange offer, or other activity involving the acquisition of control
of Subtenant by another person,
10
corporation or legal entity. All references to "Subtenant" in this paragraph
shall also be deemed to refer to any immediate or remote subtenant or assignee
of Subtenant.
(c) PAYMENT PURSUANT TO OVERLEASE
If any assignment or sublease is consented to by the Sublandlord,
Subtenant shall pay to Sublandlord any amount required to be paid to the
Overlandlord pursuant to the Overlease as a result of such assignment or
sublease.
(d) NO RELEASE
Regardless of any consent by Sublandlord, no subletting or assignment
shall release Subtenant of Subtenant's obligations, or alter the primary
liability of Subtenant to pay the Rent and Additional Rent, and to perform all
other obligations to be performed by Subtenant hereunder. The acceptance of rent
by Sublandlord from any other person shall not be deemed a waiver by Sublandlord
of any provision hereof. In the event of default by any assignee of Subtenant or
any successor of Subtenant in the performance of any of the terms hereof,
Sublandlord may proceed directly against Subtenant without the necessity of
exhausting remedies against said assignee or successor.
(e) RIGHT TO RECAPTURE
Notwithstanding anything in this Article to the contrary, in the event
that Subtenant desires to assign this Sublease or sublet all or any part of the
Subleased Premises, Subtenant shall notify Sublandlord of the terms and
conditions of such sublease or assignment in writing not less than thirty (30)
days prior to the effective date of any such sublease or assignment. Sublandlord
shall have the option exercisable in writing within fifteen (15) business days
of receipt of Subtenant's notice to recapture the Subleased Premises or so much
thereof as the Subtenant seeks to sublet.
(f) FEES
In the event Subtenant shall assign or sublet the Subleased Premises or
request the consent of Sublandlord to any assignment or subletting, or if
Subtenant shall request the consent of Sublandlord for any act that Subtenant
proposes to do, then Subtenant shall pay reasonable attorney's fees incurred by
Sublandlord in connection therewith, together with any fees Sublandlord is
required to pay pursuant to the Overlease.
18. INDEMNITY
Subtenant shall indemnify and hold harmless Sublandlord and the
Overlandlord and each of their agents, employees, or invitees (collectively,
"Agents") from and against any and all claims, suits, demands, damages,
judgments, costs and expenses (collectively, "Claims") arising from (i)
Subtenant's use of the Subleased Premises or any other part of the Building,
(ii) the conduct of Subtenant's business, or any activity, work or thing done,
permitted or suffered by Subtenant in or about the Subleased Premises or
elsewhere in the Building, unless such Claims are solely caused by or arise
solely from the gross active negligence or willful misconduct of
11
Sublandlord or its Agents, (iii) any breach or default in the performance of any
obligation on Subtenant's part to be performed under the terms of this Sublease,
or (iv) any negligence of Subtenant or any of Subtenant's Agents. Subtenant
shall further indemnify and hold harmless the Sublandlord and/or the
Overlandlord (as the case may be) from and against all costs, attorneys' fees,
expenses and liabilities incurred in the defense of any such Claim or any action
or proceeding brought thereon. Subtenant agrees that should any action or
proceeding be brought against Sublandlord or the Overlandlord by reason of any
such Claim, upon notice from Sublandlord or the Overlandlord, Subtenant shall
defend the same at Subtenant's expense by counsel reasonably satisfactory to
Sublandlord or, if applicable, satisfactory to the Overlandlord.
As a material part of the consideration to Sublandlord, Subtenant
hereby assumes all risk of damage to property or injury to persons, in, upon or
about the Subleased Premises arising from any cause except to the extent same
results from the gross active negligence or willful misconduct of Sublandlord or
its Agents, and Subtenant hereby agrees that Sublandlord shall not be liable
for:
(a) injury to Subtenant's business; or
(b) any loss of income therefrom; or
(c) damage to the goods, wares, merchandise or other
property of Subtenant; or
(d) injury to any person in or about the Subleased
Premises or elsewhere in the Building, caused by or resulting from fire, steam,
electricity, gas, water or rain, or the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures, or from any other cause, whether or not the said damage or
injury results from conditions arising upon the Subleased Premises or upon other
portions of the Building, or from other sources or places, and regardless of
whether the cause of such damage or injury or the means of repairing the same is
inaccessible to Subtenant. Sublandlord shall not be liable for any damages
arising from any act, omission or negligence of the Overlandlord or any tenant
of the Building.
In the event that the Overlease has indemnification provisions which
require the Sublandlord to indemnify the Overlandlord and said indemnification
provision is invoked by the Overlandlord, then Subtenant shall indemnify
Sublandlord pursuant to the provisions of the Overlease if the claim for
indemnification relates to the acts or omissions of the Subtenant, or to the
Subleased Premises, or to any use of the Subleased Premises, common areas or
other areas by the Subtenant.
19. INSURANCE
(a) REQUIRED INSURANCE
Sublandlord shall have no obligation to provide insurance as imposed
upon the Overlandlord pursuant to the Overlease. Subtenant acknowledges and
agrees that the Sublandlord shall not be responsible or liable to Subtenant for
any loss or damage at the
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Subleased Premises or elsewhere in the Building except to the extent resulting
from the gross active negligence or willful misconduct of Sublandlord or its
Agents, subject to the waiver of subrogation herein contained, and that
Overlandlord's liability shall be subject to the terms of the Overlease.
Subtenant covenants to provide on or before the Commencement Date and
to keep in full force and effect during the Sublease Term at its own cost and
expense, insurance coverage and policies identical to those required of the
tenant in the Overlease, naming Sublandlord and Overlandlord as additional
insureds, but in no event shall Subtenant maintain less than the following
insurance coverages:
(i) a policy of commercial general liability and property
damage insurance with a broad form contractual liability endorsement under which
Subtenant is named as the insured, and Sublandlord and the Overlandlord (if
required by the Overlease) are named as additional insureds. Such policy shall
contain a provision that the policy shall be non-cancelable with respect to
Sublandlord unless thirty (30) days' prior written notice shall have been given
to Sublandlord by certified mail, return receipt requested, which notice shall
contain the policy number and the names of the insured and additional insured.
The minimum limits of liability shall be a combined single limit with respect to
each occurrence in an amount of not less than $5,000,000 for injury (or death)
and damage to property;
(ii) fire and extended coverage insurance in an amount
adequate to cover the full cost of replacement of Subtenant's Alterations and
all tenant finish improvements, personal property, furnishings and equipment
located in or on the Subleased Premises.
All insurance required to be carried by Subtenant pursuant to the terms
of this Sublease shall be primary and not contributory and shall be effected
under valid and enforceable policies issued by reputable and independent
insurers permitted to do business in the State where the Building is located,
and rated in Best's Insurance Guide, or any successor thereto (or if there be
none, an organization having a national reputation) as having a general
policyholder rating of A-XIII or better. If the Building is not located in the
United States, Subtenant shall maintain the equivalent of the above described
insurance to the extent available.
Sublandlord shall keep in full force and effect throughout the Sublease
Term all insurance policies required of Sublandlord under the Overlease.
(b) WAIVER OF SUBROGATION
Sublandlord and Subtenant shall each endeavor to secure an appropriate
clause in, or an endorsement upon, each fire or extended coverage insurance
policy obtained by it and covering the Overleased Premises, the Subleased
Premises or the personal property, fixtures and equipment located therein or
thereon, pursuant to which the respective insurance companies waive subrogation
or permit the insured prior to any loss, to agree with a third party to waive
any claim it might have against said third party. The waiver of subrogation or
permission for waiver of any claim hereinbefore referred to shall extend to the
agents of each party and its employees and, in the case of Subtenant, shall also
extend to all other persons and entities occupying or using the Subleased
Premises in accordance with the terms of this Sublease. [IF AND TO THE
13
EXTENT THAT SUCH WAIVER OR PERMISSION CAN BE OBTAINED ONLY UPON PAYMENT OF AN
ADDITIONAL CHARGE, THEN THE PARTY BENEFITING FROM THE WAIVER OR PERMISSION SHALL
PAY SUCH CHARGE UPON DEMAND.]
In the event either party's insurer shall refuse to permit such waiver
or agreement even with an additional charge, then, so long as the addition of
the other party as a named insured is permitted and does not reduce the amount
recoverable by the insuring party or otherwise adversely affect the insurance
coverage, the insuring party shall add the other party as an insured, provided
the other party shall pay any increased premium or other charge therefor.
So long as the applicable insurance policy includes the waiver of
subrogation or agreement to waive liability referred to in the foregoing
provisions of this Article, and insofar as may be permitted by the terms of the
insurance policies carried by it, each party hereby waives and releases the
other of and from any and all rights of recovery, claims, actions, or causes of
action against each other or their agents, officers, partners, representatives,
employees, servants, and invitees for any loss or damage that may occur to the
Subleased Premises, the Overleased Premises, the Building, improvements or
fixtures therein or thereon, or any personal property within the Subleased
Premises, Overleased Premises, or elsewhere in the Building, from any cause
whatsoever which would be covered by any insurance required to be carried by
Subtenant or Sublandlord pursuant to this Sublease or the Overlease, or which
actually is insured against under the terms of an all-risk fire and extended
coverage insurance policy, regardless of cause or origin, including the
negligence of Sublandlord or Subtenant or their agents, officers, partners,
representatives, servants, employees, or invitees, occurring during the Sublease
Term.
20. DAMAGE; DESTRUCTION; CONDEMNATION
Sublandlord shall not be required to perform any obligation of the
Overlandlord pursuant to the Overlease as it relates to rebuilding or repair of
the Building (including the Subleased Premises) in the event of damage,
destruction or condemnation of any part or all of the Building.
If the Subleased Premises shall be damaged by fire or other casualty or
be condemned or taken in any manner for a public or quasi-public use, Subtenant
agrees that in no event shall it be the obligation of Sublandlord to repair,
restore or rebuild the Subleased Premises. Nothing contained in this Sublease
shall limit or impair any right of Sublandlord to terminate the Overlease
pursuant to the provisions of the Overlease in the event of any damage by fire
or other casualty or condemnation.
In the event of casualty or condemnation, if the Overlease is
terminated with respect to the Subleased Premises pursuant to the provisions of
the Overlease, this Sublease shall automatically terminate at the same time and
Subtenant shall have no claim against Sublandlord or Overlandlord for the loss
of its subleasehold interest or any of Subtenant's property. If the Overlease is
not terminated with respect to the Subleased Premises upon the occurrence of a
casualty or condemnation, the provisions of the Overlease with respect to
casualty or condemnation shall apply to this Sublease and the Subleased
Premises, subject to the provisions of this Article. In the event of any
condemnation of the Overleased Premises, all awards and compensation, or
proceeds payable to Sublandlord pursuant to the Overlease shall be the property
of Sublandlord. No part of any condemnation awards, compensation or proceeds
shall
14
be payable to Subtenant, provided that to the extent same does not violate the
Overlease or adversely affect Sublandlord's or Overlandlord's award, Subtenant
may institute a separate action for a claim to a separate award with respect to
the value of leasehold improvements it has paid for, and for any of its personal
property. Condemnation shall include a deed or conveyance in lieu of
condemnation. Any election right or option in the Overlease with respect to
restoration of the Subleased Premises or the Building or termination of the
Overlease in connection with casualty or condemnation is expressly reserved to
Sublandlord to exercise or not exercise in its sole discretion.
21. ESTOPPEL CERTIFICATE
Subtenant shall at any time upon not less than thirty (30) days' prior
written notice from Sublandlord, execute, acknowledge and deliver to Sublandlord
a statement in writing (i) certifying that this Sublease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Sublease, as so modified, is in full force and effect);
(ii) the date to which the rent and other charges are paid in advance, if any;
and (iii) acknowledging that there are not, to Subtenant's knowledge, any
uncured defaults on the part of Sublandlord hereunder, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied upon
by any prospective assignee or mortgagee of the Subleased Premises.
22. RULES AND REGULATIONS
Subtenant shall faithfully observe and comply with all rules and
regulations described in or annexed to the Overlease, as amended from time to
time.
23. TAX ON TENANT'S PERSONAL PROPERTY
Subtenant shall pay all taxes levied or assessed upon Subtenant's
property and, upon Sublandlord's request, shall deliver satisfactory evidence of
such payment to Sublandlord.
24. ARBITRATION
Any dispute arising out of this Sublease shall at the option of either
party be settled by arbitration. Within ten (10) days after either party shall
have requested arbitration in writing, the parties shall agree on an impartial
arbitrator, and failing agreement, such arbitrator shall be selected by the
American Arbitration Association at the request of either party. The arbitration
shall be conducted in accordance with the then current rules of the American
Arbitration Association, and judgment upon the award granted by the arbitrator
may be entered in any court having jurisdiction thereof. Fees, costs and
expenses of the arbitrator shall be borne by the party against whom the
arbitration shall be determined, or in such proportions as the arbitrator shall
designate.
25. SEVERABILITY
The invalidity of any provision of this Sublease as determined by a
court of competent jurisdiction shall in no way affect the validity of any other
provision hereof.
15
26. TIME OF ESSENCE
Time is of the essence.
27. CAPTIONS
Captions of Articles or Subdivisions thereof are not a part hereof.
28. INCORPORATION OF PRIOR AGREEMENTS
Except as provided in the Provider/Recipient Services Agreement
referred to in Article 51 of this Sublease, this Sublease contains all
agreements of the parties with respect to the terms of the sublease of the
Subleased Premises between the parties. No prior agreement or understanding
pertaining to any such matter shall be effective.
29. NOTICES: PAYMENTS
All notices or demands given or required to be given hereunder shall be
in writing and shall be sent by overnight courier, or by certified or registered
mail, return receipt requested, addressed to the parties' addresses set forth in
the first paragraph hereof or to such other address as either party may specify
in writing delivered in accordance with this Article. Any such notice so given
shall be deemed given and shall be effective one (1) day after it is delivered
to the overnight courier, or two (2) days after it is deposited with the U.S.
Postal Service, unless otherwise specified herein. [BOB, DO WE NEED TO ADD OTHER
NOTICE RECIPIENTS?]
It is understood and agreed that unless specifically modified by this
Sublease, Sublandlord shall be entitled to the length of notice required to be
given to the Overlandlord under the Overlease plus five (5) days and shall be
entitled to give Subtenant the amount of notice required to be given tenant
under the Overlease less five (5) days. If a notice period in the Overlease is
less than ten (10) days, then one-half of the applicable notice period pursuant
to the Overlease shall be substituted for five (5) days in the preceding
sentence.
All payments to be made to Sublandlord pursuant to this Sublease
(including, without limitation, Rent) shall be sent to Sublandlord at
Sublandlord's address set forth in the first paragraph hereof [BUT TO THE
ATTENTION OF ____________________], or at such other address as Sublandlord may
hereafter designate in writing delivered in accordance with this Article.
30. BROKER
Sublandlord and Subtenant warrant and represent to each other that it
has dealt with no broker or real estate agent and made no agreement or created
any liability with respect to this Sublease and/or the Subleased Premises in
connection with the payment of brokerage or other commissions to anyone, and
each agrees to indemnify, defend and hold the other harmless from and against
all liability, cost, or expense arising out of the claims of any other broker or
real estate agent claiming by, through or under such indemnifying part for a
commission in connection with this Sublease and/or the transaction contemplated
by this Sublease.
16
31. TERMINATION
Upon the expiration or other termination of the term of this Sublease,
Subtenant covenants and agrees that it shall quit and surrender the Subleased
Premises in the condition existing as of the earlier of the Commencement Date or
the date Subtenant, or the affiliate of Subtenant which assigned its interest in
the Subleased Premises to Subtenant referenced in the first Recital paragraph of
this Sublease, first took occupancy of all or any portion of the Subleased
Premises (the "Initial Occupancy Date"), subject to the terms of this Sublease,
shall remove all of Subtenant's personal property therefrom (except such items,
including, without limitation, such fixtures, equipment, office furniture and
systems, improvements and Alterations, which are owned by Sublandlord and/or
required to remain a part of the Overleased Premises pursuant to the terms of
the Overlease or required to remain a part of the Subleased Premises pursuant to
this Sublease, which items Subtenant shall not remove from the Subleased
Premises), and shall make any repairs or restorations required by reason of such
removal to put the Subleased Premises in the condition existing as of the
Initial Occupancy Date, subject to the terms of this Sublease. If for any reason
the Overlease is terminated prior to the Expiration Date of this Sublease, this
Sublease shall thereupon terminate, the date of such termination shall for all
purposes be deemed the Expiration Date hereof, and Sublandlord shall not be
liable in any way whatsoever to Subtenant by reason thereof, except as
specifically set forth in this Sublease.
32. WAIVERS
No waiver by Sublandlord of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Subtenant of
the same or any other provision. The consent by Sublandlord to, or approval by
Sublandlord of, any act shall not be deemed to render unnecessary obtaining
subsequent consent or approval from Sublandlord for any subsequent act by
Subtenant. The acceptance of rent hereunder by Sublandlord shall not be a waiver
of any preceding breach by Subtenant of any provision hereof, regardless of
knowledge by Sublandlord of such preceding breach at the time of acceptance of
such rent.
33. RECORDING
Subtenant shall not record this Sublease, and such recording shall, at
the option of Sublandlord, constitute a non-curable default of Subtenant
hereunder.
34. HOLDING OVER
Subtenant shall have no right to hold over at the Subleased Premises
beyond the Expiration Date or earlier termination of this Sublease. If Subtenant
remains in possession after the expiration or earlier termination of the
Sublease Term without the express written consent of Sublandlord, such occupancy
shall, at the Sublandlord's option, be deemed an act of trespass, and Subtenant
shall pay as liquidated damages (and not as rent) (i) an amount equal to two (2)
times the Base Rent in effect at the time of the expiration or termination of
this Sublease, prorated on a daily basis for each such day of continued
occupancy; (ii) all amounts payable by Sublandlord to Overlandlord as a result
of such holdover including consequential damages payable to Overlandlord; and
(iii) all other charges payable hereunder. Subtenant hereby agrees to indemnify
Sublandlord against and hold Sublandlord harmless from all costs and damages
17
incurred as a result of such holdover, including but not limited to all amounts
payable by Sublandlord to the Overlandlord pursuant to the Overlease as a result
of such continued occupancy by Subtenant. Nothing herein shall be deemed to
limit Sublandlord's rights to forcibly evict Subtenant, or to limit any other
rights or remedies available to Sublandlord. No receipt of money by Sublandlord
from Subtenant after expiration or termination of this Sublease shall reinstate
or extend this Sublease.
35. CUMULATIVE REMEDIES
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
36. COVENANTS AND CONDITIONS
Each provision of this Sublease performable by Subtenant shall be
deemed both a covenant and a condition.
37. CHOICE OF LAW
This Sublease shall be governed by the laws of _______________________.
38. ATTORNEYS' FEES
In the event Sublandlord, without any fault on its part, is a party to
any litigation commenced by or against Subtenant or by or against any parties in
possession of the Subleased Premises or any part thereof claiming under
Subtenant, Subtenant shall pay, as additional rent, all costs including, without
implied limitation, reasonable attorneys' fees incurred by or imposed by or upon
Sublandlord in connection with such litigation. Subtenant shall also pay all
cash costs and fees incurred by Sublandlord in connection with the enforcement
by Sublandlord of any obligations of Subtenant under this Sublease.
39. SUBLANDLORD'S ACCESS
Sublandlord and its agents shall have the right to enter the Subleased
Premises at reasonable times for the purpose of inspecting the same or showing
the same to prospective assignees, lenders, or lessees.
40. MERGER
The voluntary or other surrender of this Sublease by Subtenant, or a
mutual cancellation thereof, or a termination by Sublandlord, shall not work a
merger, and shall, at the option of Sublandlord, terminate all of any existing
subtenancies or may, at the option of the Sublandlord, operate as an assignment
to Sublandlord of any or all of such subtenancies.
41. CORPORATE AUTHORITY
Each individual executing this Sublease on behalf of Subtenant
represents and warrants that he or she is duly authorized to execute and deliver
this Sublease on behalf of Subtenant.
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42. INUREMENT
The covenants, agreements, terms, provisions and conditions of this
Sublease shall bind and inure to the benefit of Sublandlord and its successors
and assigns and Subtenant and its permitted successors and assigns with the same
force and effect as if mentioned in each instance where a party hereto is named
or referred to, except that no violation of the assignment and subletting
provisions of this Sublease shall operate to vest any rights in any successor,
assignee or legal representative of Subtenant.
43. DEMISING WALLS
In the event there are no demising walls separating the Subleased
Premises from the Overleased Premises ("Demising Walls"), if such Demising Walls
are required by the Overlease or any Legal Requirements, Sublandlord shall
construct same and Subtenant shall pay to Sublandlord upon demand Subtenant's
Proportionate Share of all cost incurred by Sublandlord in connection with the
design, construction and permitting of Demising Wall. Notwithstanding the
foregoing, if the cost of constructing Demising Walls which are required by the
Overlease or any Legal Requirements is deemed by either party to be an excessive
economic burden to such party based on the relation of such cost to the size of
the Subleased Premises or the rental amounts provided for in this Sublease, such
party may so notify the other party, and if such other party does not elect to
pay the entire cost of the Demising Walls, this Sublease shall terminate within
sixty (60) days of such notice. Nothing in the preceding sentence shall relieve
Subtenant of the obligation to pay for the entire cost of Demising Walls if same
are required as a condition to Sublandlord's consent to any assignment or
subletting of this Sublease or the Subleased Premises by Subtenant. [BOB, LET'S
DISCUSS THIS PROVISION.]
If such Demising Walls are not required by the Overlease or Legal
Requirements, either party may elect at its sole expense to have such Demising
Walls constructed in compliance with the Overlease and applicable laws provided
such Demising Walls are constructed entirely within the Subleased Premises and
the construction thereof, if by Subtenant, does not adversely affect the
remainder of the Overleased Premises, and, if by Sublandlord, does not adversely
affect the Subleased Premises. Any such construction shall be done subject to
the terms of the Overlease, including any consent requirements, and in
accordance with applicable law.
In the event that no such Demising Walls presently exist or are
constructed, Subtenant agrees not to unreasonably interfere with the use of the
Overleased Premises by Sublandlord or its affiliates, or any other subtenants of
Sublandlord, and Sublandlord agrees not to unreasonably interfere with use of
the Subleased Premises by Subtenant.
44. NO VIOLATION OF OVERLEASE
So long as Subtenant timely performs its obligations under this
Sublease, Sublandlord shall not do, permit to be done or neglect to do any thing
that would be a violation or breach of the Overlease or cause the Overlease to
be terminated, provided that nothing contained in this Article shall be deemed
to prohibit Sublandlord from terminating the Overlease prior to the expiration
of the Sublease Term, subject to the provisions of this Sublease. Sublandlord
shall pay rent and additional rent to the Overlandlord as provided in the
Overlease and shall comply
19
with all its material obligations under the Overlease. Sublandlord shall provide
Subtenant with copies of any written notices of default which Sublandlord
receives from the Overlandlord pursuant to the Overlease.
45. QUIET ENIOYMENT
Subject to the provisions of the Overlease and this Sublease,
Sublandlord covenants that Subtenant, on paying the rent and any other sums due
hereunder and performing all the terms, covenants and conditions of this
Sublease, shall and may peacefully and quietly have, hold and enjoy the
Subleased Premises for the term of this Sublease, free from any hindrance,
ejection or molestation by Sublandlord.
46. CONSENTS AND APPROVALS
Sublandlord shall not be liable for any damages if Sublandlord
withholds or delays any consent or approval required by Subtenant, and as to any
consent or approval which the Sublandlord has specifically agreed in this
Sublease not to unreasonably withhold or delay, Subtenant shall have only the
remedy of specific performance or injunction. Subtenant shall indemnify and hold
Sublandlord harmless from and defend Sublandlord against any and all claims or
liability (including, without limitation, the claim of or liability to any
proposed assignee or subtenant or any broker) for Sublandlord's refusal to
consent.
47. FORCE MAJEURE
This Sublease and the obligation of Subtenant to pay Base Rent and
Additional Rent hereunder and perform all of the other covenants and agreements
hereunder on the part of Subtenant to be performed shall in no way be affected,
impaired or excused, except as expressly provided in this Sublease, because
Sublandlord is unable to fulfill any of its obligations under this Sublease by
reason of strikes or labor troubles or by accident, adjustment of insurance or
by any cause whatsoever reasonably beyond Sublandlord's control, including but
not limited to, governmental pre-emption in connection with a national
emergency, or by reason of any law or requirement of any governmental authority,
or by reason of the conditions of supply and demand which have been or are
affected by war or other emergency (but not including Sublandlord's lack of
funds or financial inability to perform except to the extent of Subtenant's
failure to pay amounts due hereunder). Sublandlord shall use reasonable efforts
to effect performance when and as soon as possible.
48. DAMAGES
Except as expressly provided in this Sublease to the contrary, under no
circumstances shall either party be liable to the other party for any special,
incidental, indirect, consequential or punitive damages (collectively,
"Exceptional Damages") unless such Exceptional Damages arise out of or are
related to a claim by a third party, including the Overlandlord.
49. SHARED SPACE AND EQUIPMENT
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If the parties intend that Subtenant shall be permitted to use, in
common with others, certain space within the Overleased Premises and/or certain
equipment within the Overleased Premises, then such shared space is indicated on
SCHEDULE A as "Shared Space," or reflected on SCHEDULE A-1 attached hereto, and
such equipment is reflected on SCHEDULE A-2 attached hereto. If no such shared
space or equipment is reflected on any such Schedule, and if no SCHEDULE A-1 or
SCHEDULE A-2 is attached, the provisions of this Article shall be inoperative.
Such shared space and shared equipment are herein individually and collectively
referred to as "Shared Space and Equipment."
Sublandlord hereby grants to Subtenant a right to the nonexclusive use
of the Shared Space and Equipment. Subtenant shall use each component of the
Shared Space and Equipment only in such a manner and for such purposes as are
customary and reasonable for the particular Shared Space and Equipment at issue,
and all uses of any of the Shared Space and Equipment shall at all times be in
accordance with any rules or regulations which Sublandlord may promulgate at any
time or from time to time with respect to the Shared Space and Equipment. In the
event Subtenant shall use any of the Shared Space and Equipment in a manner or
for a purpose not consistent with the foregoing provisions of this Article, all
rights granted to Subtenant under this Article shall cease and terminate. In
addition to the foregoing, all uses of any of the Shared Space and Equipment
shall be reasonably consistent with the uses in connection with the occupancy of
the Subleased Premises immediately prior to the Commencement Date ("Prior
Uses"), and in the event Subtenant shall use any of the Shared Space and
Equipment in a manner or for a purpose not reasonably consistent with the Prior
Uses, Sublandlord shall provide notice to Subtenant indicating such inconsistent
use and Subtenant shall have thirty (30) days after receipt of said notice to
correct, stop or terminate such inconsistent use, and if said inconsistent use
is not corrected, stopped or terminated within said thirty (30) day period, all
rights granted to Subtenant under this Article shall cease and terminate.
Subtenant's nonexclusive right to use the Shared Space and Equipment shall
continue throughout the Sublease Term provided that Subtenant is the subtenant
under this Sublease and Subtenant's use is consistent in all respects with this
Article. In connection with Subtenant's use of any of the Shared Space and
Equipment, Subtenant shall not interfere in any way with the access to, or use
of, any of the Shared Space and Equipment by Sublandlord, its employees,
invitees, or other subtenants, and in the event Subtenant does so interfere, all
rights granted to Subtenant under this Article shall cease and terminate. The
obligations of Subtenant set forth in this Sublease with respect to
comprehensive general public liability and property damage insurance shall be
applicable to the Shared Space and Equipment. Sublandlord shall have no
obligations whatsoever with respect to any of the Shared Space and Equipment (or
the maintenance thereof) or any services or benefits (or the interruption or
curtailment thereof) which Subtenant may enjoy, or which Subtenant seeks to
enjoy, in connection with its use of the Shared Space and Equipment, and
Sublandlord makes no representation or warranty with respect to any of said
Shared Space and Equipment. Sublandlord shall have no liability whatsoever with
respect to any claim arising in connection with Subtenant's use of the Shared
Space and Equipment, and Subtenant shall indemnify and hold harmless Sublandlord
and its agents and employees, from and against any and all claims, damages,
judgments, suits, demands, costs and expenses arising from or in connection with
Subtenant's (or its agents', employees' or invitees') use of the Shared Space
and Equipment unless such claims, judgments, suits, demands, costs and expenses
are solely caused by or arise solely from the active negligence of or willful
misconduct of Sublandlord. The Shared Space and Equipment contained therein are
part of the Overleased
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Premises and should in no way be considered part of the Subleased Premises,
notwithstanding the fact that they may be included on Schedule A. Sublandlord's
rights with respect to Shared Space and Equipment shall at all times be subject
to the rights of the Overlandlord set forth in the Overlease, and Subtenant
shall not use the Shared Space and Equipment for any use or purpose which would
violate the Overlease.
Notwithstanding anything herein to the contrary:
(a) Sublandlord shall have obligation to maintain, repair
or replace Shared Equipment and Sublandlord may remove or render inoperable any
Shared Equipment which Sublandlord deems no longer useful or necessary in the
operation of Sublandlord's business; and
(b) Subtenant's rights to utilize the Shared Space shall
terminate with respect to any Shared Space which Sublandlord reconfigures for a
different use in the ordinary course of its business and such reconfigured space
shall no longer be deemed Shared Space hereunder; provided however, if as a
result of such reconfiguration, new space in the proximity of the reconfigured
former Shared Space is reconfigured for the same use as the reconfigured former
Shared Space, Sublandlord shall make such new space available to Subtenant as
Shared Space hereunder.
50. SUBTENANT'S ACCESS
To the extent that the only reasonable means of access to the Subleased
Premises or the Shared Space and Equipment is through the premises occupied by
Sublandlord or any of Sublandlord's affiliates (the "Sublandlord's Premises"),
Subtenant and its agents and employees shall have the right to enter upon
Sublandlord's Premises for the sole purpose of gaining access to the Subleased
Premises or the Shared Space and Equipment. Subtenant shall exercise the right
granted under this Article only at reasonable times and in a reasonable manner,
and Subtenant's (and its agents' and employees') right to enter upon
Sublandlord's Premises as granted in this Article shall be subject to, and will
be exercised in accordance with, any reasonable rules and regulations which
Sublandlord may promulgate at any time or from time to time during the Sublease
Term.
51. PROVIDER/RECIPIENT SERVICES AGREEMENT
Any services in excess of those provided for in this Sublease which the
Sublandlord shall be providing to the Subtenant shall be the subject of a
Provider/Recipient Services Agreement substantially in the form annexed as
SCHEDULE C to be executed by the parties thereto.
Access by Subtenant to any part of the Overleased Premises other than
the Subleased Premises in connection with the Provider/Recipient Services
Agreement (such space hereinafter referred to as the "PRSA Space") shall be
governed by the terms of Provider/Recipient Services Agreement. In no event will
any part of the PRSA Space be deemed a part of the Subleased Premises.
52. PARKING
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Subtenant shall be permitted to use its proportionate share of such
parking spaces as are made available to the Sublandlord pursuant to the
Overlease (exclusive of any reserved spaces), provided that if Sublandlord is
charged for any such parking, Subtenant shall pay the actual cost charged to
Sublandlord for any parking spaces used by Subtenant pursuant to this Article.
53. COMPETITORS
(a) DEFINITION
For purposes of this Lease an entity shall be deemed a competitor of
Sublandlord if it engages to any substantial degree in a similar business that
competes with the Sublandlord. For purposes of this Lease an entity shall be
deemed a competitor of Subtenant if it engages to any substantial degree in a
similar business that competes with the Subtenant.
(b) CONFIDENTIALITY
In order to protect the trade secrets and confidential information of
the Subtenant, and to protect the security of the Subleased Premises,
Sublandlord agrees that it shall not sublease any part of the Overleased
Premises to any entity which at the time such Sublease is entered into would be
deemed a competitor of the Subtenant, unless Sublandlord at its sole cost takes
all measures reasonably necessary to maintain the security and confidentiality
of the Subtenant, including erecting demising walls as reasonably necessary, in
light of the presence of such competitor in the Overleased Premises.
Further, the provisions of Article 18, paragraph (a) are modified to
provide that if Subtenant at its sole cost takes all measures reasonably
necessary to maintain the security and confidentiality of the Sublandlord,
including constructing demising walls if so required by the Sublandlord as a
condition to consent, Sublandlord will not unreasonably withhold or delay its
consent solely on the basis of such proposed sub-subtenant or assignee being a
competitor of the Sublandlord or an affiliate of or under common control with a
competitor of Sublandlord.
(c) PRESENCE OF CLIENTS OR AFFILIATES
It is understood that Subtenant may have clients or affiliates which
are competitors of the Sublandlord. Nothing shall prevent Subtenant from
providing its normal business services to such clients at the Subleased Premises
or from permitting such clients or any employees of affiliates of the Subtenant
to visit the Subleased Premises in the normal course of business in their
capacity as clients or as employees of an affiliate, provided Subtenant at its
sole cost, takes all measures reasonably necessary to safeguard the security and
confidentiality of Sublandlord.
Similarly it is understood that Sublandlord may have clients or
affiliates which are competitors of the Subtenant. Nothing shall prevent
Sublandlord from providing its normal business services to such clients at the
Overleased Premises or from permitting such clients or any employees of
affiliates of the Sublandlord to visit the Overleased Premises in the normal
course of business in their capacity as clients or as employees of an affiliate,
provided Sublandlord at its sole cost, takes all measures reasonably necessary
to safeguard the security and confidentiality of Subtenant.
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54. AMENDMENTS
This Sublease may be modified only in writing, signed by the parties in
interest at the time of the modification.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the 1st day of June, 1996.
SUBLANDLORD:
WITNESS:
IMS HEALTH INC.
_______________________________ BY: ____________________________________
NAME:
NAME: _________________________________
TITLE: ______________________________
SUBTENANT:
WITNESS:
________________________________________
_______________________________ BY: ____________________________________
NAME:
NAME: _________________________________
TITLE: ______________________________
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