Exhibit 10.1.10
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SUBLEASE
BETWEEN
OVERSEAS PARTNERS, INC.,
SUBLANDLORD
AND
EMCO MOTOR HOLDINGS, INC.,
SUBTENANT
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August __, 1994
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TABLE OF CONTENTS
Page
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1. PREMISES AND TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. POSSESSION; FURNITURE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. CERTAIN OBLIGATIONS RELATED TO PREMISES . . . . . . . . . . . . . . . . . 5
7. INCORPORATION BY REFERENCE. . . . . . . . . . . . . . . . . . . . . . . . 6
8. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
12. ATTORNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
13. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . .10
14. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
15. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
16. CONFLICT OR INCONSISTENCY . . . . . . . . . . . . . . . . . . . . . . . .12
17. LANDLORD'S CONSENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .12
18. FINANCIAL STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . .13
19. SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
20. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
21. WAIVERS; CONSENT TO JURISDICTION. . . . . . . . . . . . . . . . . . . . .15
22. TERMINATION OF SUBLEASE . . . . . . . . . . . . . . . . . . . . . . . . .16
23. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
(i)
EXHIBITS
Exhibit A - Lease
Exhibit B - Premises
Exhibit C - Office Items
Exhibit D - Financial Statements
Exhibit E - Escrow Agreement
(ii)
SUBLEASE
SUBLEASE made as of the _____ day of
August, 1994, between OVERSEAS PARTNERS,
INC., a New York corporation with offices at
375 Park Avenue, New York, New York 10152
(the "Sublandlord") and EMCO MOTOR HOLDINGS,
INC., a Delaware corporation with offices at
585 Route 440, Jersey City, New Jersey 07304
(the "Subtenant").
W I T N E S S E T H:
Sublandlord, as tenant, and Teachers Insurance and Annuity Association
of America ("Landlord"), as landlord, entered into a Lease, originally dated
January 5, 1990 (a true and complete copy of the Lease, including all Riders
thereto and the Extension and Modification Agreement dated July 13, 1993 (the
"Modification Agreement"), between Landlord and Sublandlord, and all Riders
thereto (in all cases except for the deletion of certain financial provisions
and those provisions not incorporated herein by reference) being attached hereto
as Exhibit A and being sometimes collectively referred to herein as the
"Lease"), whereby Landlord demised to Sublandlord premises situated on the 22nd
floor of the building (the "Building") commonly known as 375 Park Avenue, in the
Borough of Manhattan, City and State of New York, as commonly known as Suite
2201 and shown cross-hatched on the plan attached to the Lease (the "Premises").
Attached hereto as Exhibit A is a true, correct and complete copy of the Lease
(except for the deletion of certain financial provisions not incorporated herein
by reference), and there are no other agreements between Landlord and
Sublandlord relating to the Premises.
Sublandlord desires to sublease to Subtenant and Subtenant desires to
sublease from Sublandlord the Premises.
ACCORDINGLY, in consideration of the mutual covenants hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby expressly acknowledged, the parties hereto hereby agree as
follows:
1. PREMISES AND TERM. Subject to the terms and conditions set forth
herein, and the prior consent of Landlord (as provided in Section 17 hereof),
Sublandlord hereby subleases to Subtenant and Subtenant hereby hires and takes
from Sublandlord the Premises. The term (the "Term") of this Sublease will
commence (the "Commencement Date") on September 1, 1994; PROVIDED, HOWEVER, that
if Sublandlord is able to deliver possession of the Premises to Subtenant prior
to September 1,
1994, the Commencement Date shall be the later of (a) the date which is five (5)
business days after the date Sublandlord notifies Subtenant that it is prepared
to so deliver possession of the Premises and (b) the date Sublandlord so
delivers possession of the Premises to Subtenant. The Term shall end on June
29, 2000, or on such earlier date upon which the Term expires pursuant to any of
the conditions of limitation or other provisions of this Sublease, or pursuant
to law (the "Expiration Date").
2. USE. The Premises shall be used solely by Subtenant for
executive, administrative and general offices, subject to the provisions of the
Lease.
3. POSSESSION; FURNITURE. (a) Subtenant's obligation to perform
each and every one of the covenants, terms, conditions and agreements contained
in the Lease and incorporated herein pursuant to the terms hereof shall commence
on the Commencement Date. In the event that Sublandlord is delayed or prevented
from delivering possession of the Premises to Subtenant by reasons of acts of
God or any cause whatsoever beyond Sublandlord's reasonable control, neither
party hereto shall be liable to the other party for consequential damages. If
for any reason Sublandlord has not delivered possession of the Premises to
Subtenant on or before October 15, 1994, Subtenant may cancel this Sublease by
notice to Sublandlord and, except as otherwise specified herein, neither party
shall have any further liability to the other party hereunder and any advance
rentals or security deposited by Subtenant with Sublandlord or the Escrow Agent
(as hereinafter defined) shall be returned to Subtenant.
(b) Subtenant acknowledges that it has inspected the Premises and
agrees to take the Premises on an "as-is" basis on the date hereof and further
agrees that Sublandlord shall not be obligated to make any repairs or
alterations whatsoever in or to the Premises. Notwithstanding the foregoing,
prior to the Commencement Date, Sublandlord shall have the Premises cleaned
thoroughly at its sole expense.
(c) The Sublease of the Premises shall include the use of all
furniture (the "Furniture") located in the premises on the date hereof, which
items are listed on Exhibit C attached hereto. In connection therewith,
Subtenant shall be responsible, at its sole cost and expense, for the
maintenance and repair of the Furniture and Subtenant agrees not to remove any
of the Furniture from the Premises without the prior written consent of
Sublandlord. In the event that Subtenant desires to no longer use a piece of
Furniture, it shall so notify Sublandlord in writing. If Sublandlord elects not
to take back such piece of Furniture within ten (10) days after receipt of such
notice, Subtenant shall have the right to sell such piece of Furniture, and the
proceeds of such sale shall be paid to Sublandlord.
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4. RENT. During the Term, Subtenant shall pay to Sublandlord,
exclusive of any amounts for electricity, taxes and any other amounts which
Subtenant is obligated to pay hereunder, Basic Rent, without any notice or
demand and without any reduction, abatement, counterclaim, set off or deduction
of any amount whatsoever, in the aggregate amount of $198,932 per annum for the
period commencing on the Commencement Date to and including the Expiration Date,
payable in equal monthly installments in advance on the 1st day of each month
during the Term to Sublandlord at its offices in lawful money of the United
States which shall be legal tender for payment of all debts, public and private,
at the time of payment. Basic Rent of $16,577.67 for the first month of the
Term shall be paid on the Commencement Date. In the event that the Commencement
Date is any date other than the first day of a month, the Basic Rent for the
second month of the Term shall be appropriately prorated.
5. ADDITIONAL RENT. (a) Subtenant shall also pay to Sublandlord,
as additional rent, all Additional Rent (as defined in the Modification
Agreement) payable from and after the Commencement Date by Sublandlord under the
Lease or otherwise payable in respect of the Premises, including, without
limitation, the amounts due under Article 12 of the Lease (as amended by Rider 4
and Paragraph 3 of the Modification Agreement) and Articles 6 and 17 of the
Modification Agreement, PROVIDED THAT Sublandlord shall pay under the Lease that
amount of additional rent which is imposed prior to the Commencement Date, and
Subtenant shall not be obligated to pay as additional rent those amounts charged
to Sublandlord under the Lease prior to the Commencement Date, and PROVIDED
FURTHER THAT, for purposes solely of calculating the amount owed by Subtenant as
additional rent under this Section 5, Article 17 of the Prime Lease shall be
deemed to be amended to read as follows:
(i) The definition of "Base Tax Factor" shall be deemed amended
to mean the Taxes payable for the Tax Year beginning July 1, 1994; and
(ii) The definition of "Base Operating Factor" shall be deemed
amended to mean the average of the Operating Expenses incurred with respect
to the two operating years beginning January 1, 1994 and concluding
December 31, 1995.
(b) Subtenant and Sublandlord agree that commencing January 1, 1995,
and thereafter until such time as Sublandlord has determined the average of the
Operating Expenses incurred for the operating years commencing January 1, 1994
and concluding December 31, 1995, Subtenant shall, subject to the following
sentence, make the payments required under this Section 5 on the basis of the
average of the Operating Expenses for the operating year commencing January 1,
1994 and concluding December 31, 1994 and the estimated Operating Expenses for
calendar 1995 as shown in Landlord's Operating Statement pursuant to the
following sentence. The parties agree that in connection therewith,
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Subtenant will not be required to make payments hereunder until Landlord has
delivered to Sublandlord (and Sublandlord has sent copies to Subtenant)
Landlord's Operating Statement (as defined in the Lease) setting forth its
statement of Tenant's Projected Operating Share (as defined in the Lease) for
1995. Thereafter, once the Sublandlord has determined the average of the
Operating Expenses Incurred for the two operating years commencing January 1,
1994 and expiring December 31, 1995, it will so notify Subtenant. In the event
that such average amount is greater than the amount Subtenant theretofore paid
based upon the Base Operating Factor being the Operating Expenses Incurred in
the operating year beginning January 1, 1994, Subtenant shall, within five (5)
days of receipt of Sublandlord's notice, remit to Sublandlord an amount equal to
the amount so owing by Subtenant. In the event that such average amount is less
than the amount Subtenant theretofore paid based upon the Base Operating Factor
being the Operating Expenses Incurred in the operating year beginning January 1,
1994, Sublandlord shall, concurrently with the delivery of its notice to
Subtenant, remit to Subtenant an amount equal to the amount theretofore overpaid
by Subtenant.
(c) The amounts payable by Tenant under this Section 5 as additional
rent shall be prorated from the Commencement Date of the Term if such amounts
are payable in respect both to periods prior to the Commencement Date and to
periods thereafter.
(d) The additional rent shall be payable by Subtenant within ten (10)
days after the delivery to Subtenant of a copy of any statement under the Lease
from Landlord to Sublandlord (including any statement delivered after the
expiration of the Term or other termination of this Sublease). Sublandlord
shall have the same remedies for a default in the payment of additional rent as
are provided under this Sublease for default in the payment of Basic Rent.
(e) In the event this Sublease shall expire or terminate on a date
other than the last day of a calendar year, any payment of additional rent to
which Sublandlord is entitled, with respect to the calendar year in which this
Sublease expires or terminates, shall be apportioned and prorated.
(f) If Sublandlord receives any refund or credit pursuant to the
terms of the Lease which relates to the Premises during the Term, Sublandlord
shall credit to Subtenant against the next installment of Basic Rent or any
other charge due hereunder that portion of such refund or credit which relates
to overpayments by Subtenant under this Section 5.
(g) Subtenant shall pay Sublandlord all other amounts payable by
Sublandlord to Landlord during the Term with respect to the Premises and
Subtenant's use thereof, including, without limitation, all amounts payable for
(i) lamps, starters and ballasts (including replacements thereof) used in
lighting fixtures in the Premises pursuant to the Lease, (ii) steam and
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water other than that used for normal drinking, lavatory, cleaning, dishwashing
and toilet facilities as specified in the Lease, (iii) additional cleaning,
elevator, rubbish removal or HVAC pursuant to the Lease and (iv) any fee, charge
or amount incurred in connection with obtaining the consent or approval of
Landlord to any matter.
(h) All costs, charges, fees, amounts and sums payable by Subtenant
to Sublandlord or incurred by Sublandlord and due and payable by Subtenant to
Sublandlord hereunder or under the Lease as incorporated herein by reference
shall be due and payable as additional rent under this Sublease.
(i) Unless and until Subtenant shall default beyond any applicable
grace period provided for herein in the payment of the Basic Rent or additional
rent provided for in this Sublease, Subtenant may pay the Basic Rent and
additional rent by unendorsed checks payable to Sublandlord, subject to
collection. From and after any such monetary default until the same shall be
cured, Sublandlord may, at any time thereafter, require Subtenant to pay the
Basic Rent and additional rent by unendorsed certified or official bank check
drawn on a bank or trust company which is a member of the New York Clearinghouse
Association.
(j) In addition to all other amounts payable hereunder, Subtenant
shall pay to Sublandlord the aggregate amount of $14,556 per year for
electricity (the "Electric Charge"). The Electric Charge shall be payable,
without any notice or demand and without any reduction, abatement, counterclaim,
set-off or deduction of any amount, in equal monthly installments of $1,213 in
advance on the first day of each month during the Term, together with the Basic
Rent for such month. Sublandlord represents to Subtenant that the current
Electrical Inclusion Amount (as defined in the Lease) is $14,556, and
Sublandlord has not received any written notice indicating a change in such
amount. However, the parties hereto acknowledge that the Electric Charge shall
be subject to increase or decrease in accordance with the terms and provisions
of the Lease, but that it is the intent of the parties that the Electric Charge
shall equal the Electrical Inclusion Amount.
6. CERTAIN OBLIGATIONS RELATED TO PREMISES. It is the intent of
Sublandlord and Subtenant that during the Term of this Sublease, that between
Sublandlord and Subtenant, Subtenant shall bear all of the costs and expenses
relating to the Premises which are attributable to facts and circumstances first
occurring during the Term and Sublandlord shall bear all the costs and expenses
relating to the Premises which are attributable to any period before or after
the Term, whether such costs and expenses arise under the Lease or otherwise, so
that Sublandlord is reimbursed or held harmless by Subtenant from and against
all such costs and expenses.
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7. INCORPORATION BY REFERENCE. To the extent not otherwise
inconsistent with the terms, covenants, conditions and provisions specified in
this Sublease, the terms, covenants, conditions and provisions of the Lease are
incorporated herein by reference as though fully set forth herein in full on the
following understandings:
(a) The term "Landlord", as used therein, shall refer to Sublandlord
hereunder, its successors and assigns, and the term "Tenant", as used therein,
shall refer to Subtenant hereunder, and provided appropriate consents are
obtained from Landlord pursuant to the Lease, its successors and assigns.
(b) In any case where Landlord reserves the right or remedy to enter
the Premises, such right or remedy shall inure to the benefit of Landlord as
well as to Sublandlord.
(c) Subtenant acknowledges that Sublandlord is not in a position, nor
shall it be required, to furnish to Subtenant during the Term any water, heat,
electricity, air conditioning, light, power or any other work, facilities,
utilities, materials or services of any kind or nature whatsoever. The
performance by Landlord of its obligations under the Lease shall, for all
purposes of this Sublease, be deemed to be the performance of such obligations
by Sublandlord, and Sublandlord's obligations herein shall be limited to the
extent to which such obligations are performed by Landlord under the Lease. As
set forth in Subparagraph (k) below, Sublandlord shall use reasonable efforts to
request Landlord to perform its obligations under the Lease.
(d) Except as set forth in subparagraph (k) below, Sublandlord's sole
obligation to provide work, services, repairs and restoration or the performance
of other obligations required of Landlord under the Lease, shall be (i) limited
to the extent to which such obligations are performed by Landlord under the
Lease and (ii) to request the same, on the basis of a prior request in writing
by Subtenant, and to use its reasonable efforts, without expending any funds, to
obtain the same from Landlord. The performance by Landlord of its obligations
under the Lease shall, for all purposes hereunder, be deemed to be the
performance of such obligations by Sublandlord under the Lease as incorporated
herein by reference. Sublandlord shall not be liable for any default by
Landlord under any of the provisions of the Lease or for any damages arising out
of any such default.
(e) Subtenant shall perform and comply with all of the terms,
provisions, covenants and conditions of the Lease with respect to the Premises.
Subtenant covenants and agrees that it will not do or suffer or permit anything
to be done or omit to do anything which Subtenant is obligated to do under the
terms of this Sublease which would result in a default under or cause the Lease
to be terminated. Subtenant will indemnify Sublandlord and hold Sublandlord
harmless from any loss or liability and for all costs and expenses, including
reasonable attorneys fees, arising
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out of, by reason of, or resulting from, Subtenant's failure to so perform or
observe any of the covenants, terms, conditions and agreements of the Lease.
(f) Whenever any provision of the Lease which has been incorporated
herein by reference requires Sublandlord, as tenant under the Lease, to take any
action within a certain period of time after notice from Landlord, then, upon
notice from Sublandlord to Subtenant, Subtenant shall take such action within
five (5) days prior to the ending of such period of time or, if such time period
is less than ten (10) days, one-half the number of days in such time period (it
being understood that if the number of days is odd, the extra day shall be
allocated to Subtenant).
(g) In all provisions of the Lease requiring the approval or consent
of Landlord, Subtenant shall be required to obtain the approval or consent of
both Landlord and Sublandlord. In each instance where the approval or consent
of Landlord has been obtained by Subtenant, Sublandlord shall not unreasonably
withhold or delay its approval or consent. Sublandlord's withholding of its
approval or consent shall be deemed to be reasonable if the matter to which
consent or approval is requested (i) increases Sublandlord's costs under the
Lease in any manner and Subtenant does not agree to bear the cost thereof, or
(ii) is likely, in Sublandlord's reasonable judgment, to create a default under
the Lease.
(h) Whenever any provision of the Lease requires Landlord to give
notice to Sublandlord thereunder and such provision has been incorporated herein
by reference (thus requiring Sublandlord to give such notice to Subtenant), such
notice by Sublandlord to Subtenant shall for all purposes hereunder be deemed
timely given if given to Subtenant within five (5) days after receipt by
Sublandlord of such notice from Landlord; provided, that if the matter to which
such notice relates requires action within less than ten (10) days, Sublandlord
shall promptly give a copy of such notice to Subtenant by facsimile
transmission.
(i) To the extent that the provisions of the Lease may conflict or be
inconsistent with the provisions of this Sublease, whether or not such
inconsistency is expressly noted herein, the provisions of this Sublease shall
prevail. Subtenant expressly acknowledges and agrees that in no event
whatsoever shall Sublandlord have any obligations of any nature under this
Sublease or otherwise with respect to work, repairs or services or otherwise
relating to the Premises or this Sublease to be performed by Landlord under the
Lease and all such work, repairs and services to be made and furnished pursuant
to any provision of this Sublease, will in fact be furnished by the Landlord and
not by Sublandlord. Sublandlord shall in no event be liable to Subtenant nor
shall Subtenant's obligations hereunder be impaired or the performance thereof
excused because of any failure or
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delay on Sublandlord's part or on Landlord's part in furnishing any such work or
services or in making any of such repairs. If Landlord shall default in the
performance of any of its covenants, agreements or obligations under the Lease
or if Landlord shall breach any of its representations or warranties under the
Lease, Sublandlord shall have no liability in connection therewith and Subtenant
shall only have the right, at Subtenant's sole cost and expense, but in the name
of Sublandlord, to make demand or institute any appropriate action or proceeding
against Landlord in connection therewith. Subtenant will pay and will indemnify
and hold Sublandlord harmless against any and all loss or liability arising out
of, and for all costs and expenses, including attorneys' fees, incurred in the
prosecution of any proceedings or actions so taken by Subtenant.
(j) Sublandlord shall have under this Sublease as to Subtenant all
rights possessed by Landlord against Sublandlord as tenant under the Lease.
(k) In addition to the foregoing, Sublandlord shall (i) cooperate
with Subtenant in seeking to exercise Sublandlord's rights under the Lease and
to obtain the performance by Landlord of its obligations under the Lease and
(ii) use reasonable efforts to cause Landlord to perform under the Lease.
Subtenant shall have the right to take any action against Landlord in its own
name and for that purpose and only to such extent all the rights of Sublandlord
under the Lease are hereby assigned to Subtenant, and Subtenant shall be
subrogated to such rights. If any action against Landlord in Subtenant's name
shall be barred by reason of lack of privity, nonassignability or otherwise,
Sublandlord shall permit Subtenant to take such action in Sublandlord's name;
provided that Subtenant shall indemnify and hold Sublandlord harmless against
all liability, loss or damage which Sublandlord may incur by reason of such
action and that copies of all papers and notices of all proceedings shall be
given to Sublandlord. If Subtenant receives an abatement or diminution of rent
or any other amount payable in respect to the Premises, Subtenant shall be
entitled, after deducting from such amount all expenses incurred by Subtenant in
connection therewith, to apply the same to the Basic Rent.
(l) Notwithstanding the foregoing, the following Articles of the
Lease and Modification Agreement shall be omitted from this Sublease and shall
not be deemed a part hereof: (i) Articles 11, 23, 25, 27, 33 and Riders 1, 3 and
9 and Paragraph 15 of Rider 6 of the original Lease, (ii) Paragraphs 2, 3, 6 and
9 of the Modification and (iii) Sections 7.01 and 18.05 and Articles 8, 11 and
15 of the Rider to the Modification.
8. INSURANCE. On or before the Commencement Date and so long as
this Sublease remains in effect, Subtenant, at its sole expense, will maintain
with insurers approved by Sublandlord, all insurance required under the Lease.
All such
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insurance policies shall name Landlord and Sublandlord as additional named
insureds. Policies or certificates evidencing the issuance of insurance
required to be maintained pursuant to this Paragraph 8 shall be delivered by
Subtenant to Sublandlord simultaneously herewith and shall provide that no
cancellation thereof shall be effective until at least twenty (20) days after
receipt by Landlord and Sublandlord of written notice thereof.
9. ALTERATIONS. Subtenant shall not make any alterations,
improvements or installations in and to the Premises without the prior written
consent of each of Sublandlord and Landlord; PROVIDED, that where the consent of
Landlord has been obtained by Subtenant, Sublandlord shall not unreasonably
withhold its consent. All alterations and improvements in and to the Premises
made either prior to or during the Term shall be and remain the property of
Sublandlord or Landlord, as the case may be, and shall remain upon and be
surrendered with the Premises as part thereof at the end of the Term.
10 NOTICE. All notices or other communications which are required
hereunder or otherwise delivered in connection herewith shall be in writing and
shall be deemed to have been duly given if personally delivered or if sent by
nationally-recognized overnight courier, by telecopy, or by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to Sublandlord, to:
c/o O'Sullivan Graev & Karabell
30 Rockefeller Plaza
New York, New York 10112
Attention: Jeffrey S. Held, Esq.
Facsimile: (212) 408-2420
Telephone: (212) 408-2400;
if to Subtenant, to:
(a) prior to Commencement Date:
585 Route 440
Jersey City, New Jersey 07304
Attention: Arthur Rawl
Facsimile: (201) 434-2772
Telephone: (201) 433-9297
(b) after Commencement Date:
375 Park Avenue
Suite 2201
New York, NY 10152
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with a copy to:
Morrison & Foerster
1290 Avenue of the Americas
41st Floor
New York, New York 10104
Attention: Andrew Weiner, Esq.
Facsimile: (212) 468-7900
Telephone: (212) 468-8122.
11. SUBORDINATION. This Sublease and all of Subtenant's rights
hereunder are and shall remain in all respects subject and subordinate to all of
the terms and provisions of the Lease. The foregoing provision shall be self-
operative and no further instrument of subordination shall be necessary to
effectuate such provision unless required by Landlord or Sublandlord, in which
event Subtenant shall, upon demand by Landlord or Sublandlord at any time and
from time to time, execute, acknowledge and deliver to Sublandlord and Landlord
any and all instruments that Sublandlord or Landlord may reasonably require to
confirm such subordination of this Sublease and the rights of Subtenant
hereunder.
12. ATTORNMENT. If (a) the Lease should be terminated prior to the
Expiration Date or (b) Landlord should succeed to Sublandlord's estate in the
Premises, then, at Landlord's election, or, at the joint election of Sublandlord
and Landlord, Subtenant shall attorn to and recognize Landlord as Sublandlord
under this Sublease and Subtenant shall promptly execute and deliver any
instrument to Landlord which Landlord may require to reasonably evidence such
attornment, whereupon Sublandlord shall be released from any and all obligations
and liability hereunder, except if such termination or succession in interest is
due to Sublandlord's default. If the term of the Lease is terminated for any
reason prior to the Expiration Date and Landlord shall not elect to have
Subtenant so attorn, this Sublease shall thereupon be terminated ipso facto
without any liability of Sublandlord to Subtenant by reason of such early
termination, except if such termination is due to Sublandlord's default.
References in this Sublease to the "termination" of this Sublease shall include
the Expiration Date and any earlier termination thereof pursuant to the
provisions of this Sublease, the Lease or by law. Any liability of Subtenant to
make any payment under this Sublease which shall have accrued prior to the
termination of this Sublease, shall survive the termination of this Sublease.
13. ASSIGNMENT AND SUBLETTING. (a) Subtenant shall not assign,
mortgage, pledge or otherwise encumber this Sublease (whether by operation of
law or otherwise), nor sublet the Premises or any part thereof, except in
accordance with this Section 13.
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(b) Subject in each instance to the provisions and requirements of
the Lease and the consent of Landlord (if required under the Lease), Subtenant
shall have the right to sublease the Premises or assign this Sublease to the
sole stockholder or a wholly owned subsidiary of Subtenant or to an Affiliate
(as hereinafter defined) of Subtenant; PROVIDED, HOWEVER, that no such
assignment or sublease shall in any respect release Subtenant from its
obligations under this Sublease. As used herein, "Affiliate" shall mean any
person or entity, directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Subtenant.
(c) Subject in each instance to the provisions and requirements of
the Lease, and the consent of both Landlord (if required under the Lease) and
Sublandlord (which shall not be unreasonably withheld), Subtenant shall have the
right to assign this Sublease or sublease the Premises to a third party that is
not an Affiliate of Subtenant, PROVIDED that any profits to be received from
Subtenant in connection with such an assignment or sublease (after deducting the
reasonable expenses incurred by Subtenant for brokerage fees and preparing the
Premises for such assignment or sublease) shall be split equally between
Sublandlord and Subtenant and shall be paid to Sublandlord immediately upon
receipt by Subtenant, PROVIDED, HOWEVER, that a public offering of equity
securities by Subtenant shall not be deemed to be an assignment of the Sublease
if, after such public offering, the party in control (as such term is defined in
rule 405 promulgated under the Securities Act of 1933, as amended) of the
Subtenant immediately prior to such public offering, either (a) continues to
control the Subtenant, or (b) holds a greater percentage of the outstanding
voting power of the Subtenant than any other shareholder of such Subtenant. No
such assignment or sublease shall in any respect release Subtenant from its
obligations under this Sublease. In the event Subtenant notifies Sublandlord in
writing (the "Section 13 Notice") of its desire to assign this Sublease or
sublease the Premises in accordance with this Section 13(c), Sublandlord shall
notify Subtenant of its decision to grant or withhold consent thereto within ten
(10) Business Days after receipt of (i) the Section 13 Notice and (ii) all
information reasonably requested by Sublandlord in connection with such proposed
assignment or subletting. In the event Sublandlord fails to respond to
Subtenant during such ten (10) Business Day period, such proposed assignment or
subletting shall be deemed approved. Sublandlord's failure to grant its consent
to a proposed assignment or subleasing based solely on the financial condition
of the proposed assignee or sublessee shall be deemed unreasonable if, and only
if, (x) Subtenant remains liable to Sublandlord for all of its obligations under
this Sublease and (y) Subtenant has a net worth at the time of such proposed
assignment equal to or greater than its net worth as of the date hereof.
- 11 -
14. BROKERS. Each of Subtenant and Sublandlord represents and
warrants that it has dealt with no broker in connection with this Sublease or
the Premises other than Walker, Malloy & Company, Inc., the brokerage affiliate
of Quinlan & Field (the "Broker") and Cushman & Wakefield, Inc. Subtenant shall
indemnify and hold Sublandlord harmless against brokerage fees and any claims,
costs and expenses, including attorneys' fees, incurred by Sublandlord if the
foregoing representation and warranty of Subtenant is not true and Sublandlord
shall indemnify and hold Subtenant harmless against brokerage fees and any
claims, costs and expenses, including attorneys' fees, incurred by Subtenant if
the foregoing representation and warranty of Sublandlord is not true.
Sublandlord shall pay the commission owing to the Broker pursuant to a separate
agreement between Sublandlord and the Broker.
15. INDEMNIFICATION. (a) Subtenant shall indemnify and hold
Sublandlord harmless from and against any and all liability (statutory or
otherwise), claim, suit, demand, damage, judgment, cost, interest and expense,
including, but not limited to, attorneys' fees and charges, which Sublandlord
may incur or pay out, by reason of, or resulting from any breach by Subtenant of
any provision of or representation or warranty contained in, this Sublease or of
the Lease as incorporated herein by reference, or default on the part of
Subtenant hereunder or under the Lease as incorporated herein by reference, or
by reason of any injuries to person or property occurring in, on or about the
Premises, regardless of the cause thereof.
(b) Sublandlord shall indemnify and hold Subtenant harmless fromand
against any and all liability (statutory or otherwise), claim, suit, demand,
damage, judgment, cost, interest and expense, including, but not limited to,
attorneys' fees and charges, which Subtenant may incur or pay out, by reason of,
or resulting from any breach by Sublandlord of any provision of or
representation or warranty contained in, this Sublease or of the Lease as
incorporated herein by reference, or default on the part of Sublandlord
hereunder or under the Lease or resulting from any facts or circumstances first
occurring prior to the Commencement Date.
16. CONFLICT OR INCONSISTENCY. In case of any conflict or
inconsistency between the provisions of the Lease and those of the Sublease, the
provisions of this Sublease shall, as between Sublandlord and Subtenant,
control.
17. LANDLORD'S CONSENT. This Sublease is expressly conditioned upon
Landlord's consent in writing to the same. Sublandlord shall promptly request
Landlord's approval in writing of this Sublease. If Landlord has not signed and
delivered the Consent within thirty (30) days from the date of this Sublease,
either Subtenant or Sublandlord may within thirty (30) days thereafter and prior
to Landlord's signing and delivering the Consent, give written notice to the
other party hereto canceling
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and terminating this Sublease on a date designated in such notice not less than
seven (7) nor more than fourteen (14) days from the date it is given. If,
during the period from the date of the notice to the date designated therein for
cancellation of this Sublease, Sublandlord shall obtain the Consent and shall
deliver a fully executed (except for the signature of Subtenant) duplicate
original of the Consent to Subtenant, then the notice shall be null and void and
the Sublease shall remain in effect. If this Sublease is canceled pursuant to
the provisions of this Section, Subtenant shall have no right or interest in the
Premises and, except as otherwise specified herein, neither party shall have any
further liability to the other hereunder and any advance rentals or security
deposited by Subtenant with Sublandlord shall be returned to Subtenant.
Sublandlord shall submit a request for consent to this Sublease to Landlord with
all required documentation within ten (10) business days after the date hereof.
In connection therewith, Subtenant shall provide Landlord with all information
requested by Landlord in connection with such consent.
18. FINANCIAL STATEMENTS. (a) Subtenant acknowledges that attached
hereto as Exhibit D are true, correct and complete copies of each of the
following financial statements:
(i) the audited balance sheet of Subtenant as at December 31,
1993 and the related audited statements of results of operations, retained
earnings and cash flow for the fiscal year then ended, together with all
notes thereto, accompanied by the unqualified report thereon of Coopers &
Lybrand, Subtenant's independent public accountants (the "Accountants");
and
(ii) the unaudited balance sheet of the Subtenant as at March 31,
1994 and the related statements of results of operations, retained earnings
and cash flow for the three (3) month period then ended, prepared and
certified by the chief financial officer of Subtenant.
Subtenant represents and warrants that all such financial statements
are true, correct and complete in all respects, were prepared in accordance with
the books and records of Subtenant, fairly present the financial position of
Subtenant at and as of the dates indicated and fairly present the results of
operations, retained earnings and cash flow of Subtenant for the periods
indicated and were prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the periods covered hereby
and in accordance with historical practice.
(b) During the Term, Subtenant shall provide Sublandlord with the
following financial statements (collectively, the "Financial Statements"):
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(i) within 120 days after the end of each of its fiscal years, a
balance sheet of Subtenant as at the end of such fiscal year and statements
of results of operations, retained earnings and cash flow for such year,
all in reasonable detail and certified by the Accountants or another firm
of certified public accountants reasonably acceptable to Sublandlord; and
(ii) within 45 days after the end of each quarter, a condensed
balance sheet of Subtenant as at the last day of such quarterly period,
together with condensed statements of results of operations, retained
earnings and cash flow for such quarter, together with corresponding
cumulative condensed statements from the first day of the current year to
the last day of such quarter, all certified by the chief financial officer
of Subtenant.
All of the Financial Statements will be prepared in accordance with GAAP on a
basis consistent with historical practice.
19. SECURITY. Simultaneously with the execution of this Sublease,
Subtenant is depositing with O'Sullivan Graev & Karabell ("Escrow Agent") a
security deposit in the sum of FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00)
(the "Security Deposit"). The Security Deposit will be held by Escrow Agent
pursuant to the terms of an Escrow Agreement among Sublandlord, Subtenant and
Escrow Agent, in the form of Exhibit E attached hereto, with the intent being
that the Security Deposit will be released to Sublandlord upon execution and
delivery by Landlord of its consent to this Sublease. If at any time during the
Term Subtenant's net worth (as determined in a manner consistent with
Subtenant's principal financial statements), as reflected on any Financial
Statement, is less than Twenty Million Dollars ($20,000,000), Subtenant shall
within five (5) business days after notice from Sublandlord deposit additional
funds with Sublandlord (or, if applicable, Escrow Agent) sufficient to increase
the Security Deposit to One Hundred Thousand and 00/100 Dollars ($100,000.00).
The Security Deposit is security for the faithful performance and
observance by Subtenant of all of the terms, covenants and conditions of this
Sublease on Subtenant's part to be performed and observed and payment of any and
all other damages for which Subtenant shall be liable by reason of any act or
omission contrary to any of said terms, covenants and conditions. Sublandlord
may use, apply or retain the whole or any part of the Security Deposit for any
Basic Rent, additional rent and any other sums as to which Subtenant may be in
default hereunder beyond any applicable grace period and for any sum which
Sublandlord may expend or may be required to expend by reason of Subtenant's
default in respect of any of the terms, covenants and conditions of this
Sublease, including, without limiting the generality of the foregoing, any and
all damages and deficiencies in the reletting of the Premises, whether such
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damages or deficiencies shall accrue before or after summary proceedings or
other re-entry by Sublandlord, whereupon Subtenant, after notice from
Sublandlord, shall cause an additional cash deposit to be deposited with
Sublandlord so that the Security Deposit at all times during the Term hereof
shall always remain in the amount specified in this Section 19. The parties
acknowledge that Sublandlord's use or retainage of all or any portion of the
Security Deposit shall in no way be an exclusive remedy and Sublandlord shall
have in all instances the right to seek all other remedies available at law or
equity. In the event that Subtenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this Sublease, the
Security Deposit, or so much thereof as shall not have been applied by
Sublandlord as aforesaid, shall be returned to Subtenant within five (5)
business days after the Expiration Date. The Security Deposit shall be
maintained in an interest bearing account and Subtenant shall be entitled to all
interest earned thereon less the deduction for administrative expenses permitted
pursuant to Section 7-103 of the General Obligations Law. In the event of an
assignment by Sublandlord of its interest under the Lease and an assumption by
the assignee of all of the obligations of Sublandlord under the Lease,
Sublandlord shall have the right to transfer the Security Deposit to the
assignee, and Sublandlord shall thereupon be released by Subtenant from all
liability for the return of such Security Deposit. In such event, Subtenant
shall look solely to such assignee for the return of the Security Deposit. The
foregoing provisions shall apply to every transfer or assignment made of the
Security Deposit. Subtenant covenants that it will not assign or encumber, or
attempt to assign or encumber, the Security Deposit, and that neither
Sublandlord, nor its successors and assigns, shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
20. QUIET ENJOYMENT. If, and so long as, Subtenant pays all of the
rent and additional rent due under this Sublease, and keeps, observes and
performs each and every covenant, agreement, term, provision and condition
herein contained or contained in the Lease as incorporated herein, on the part
of Subtenant to be kept, observed and performed, Sublandlord covenants that
Subtenant shall quietly enjoy the Premises without hindrance or molestation by
Sublandlord, subject, however, to the covenants, agreements, terms, provisions
and conditions of this Sublease and the Lease.
21. WAIVERS; CONSENT TO JURISDICTION. Each of Subtenant and
Sublandlord (a) waives any right to a trial by jury in any action to enforce or
defend any matter arising from or related to this Sublease; (b) irrevocably
submits to the jurisdiction of any State or Federal Court located in New York
County, New York, over any action or proceeding to enforce or defend any matter
arising from or relating to this Sublease; (c) irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of
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any such action or proceeding; (d) agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law; and
(e) agrees not to institute any legal action or proceeding against the other
party hereto or any of such other party's stockholders, partners, officers,
directors, employees, agents, representatives or property, concerning any matter
arising out of or relating to this Sublease in any court other than one located
in New York County, New York. Each of Subtenant and Sublandlord waives personal
service of the summons and complaint, or other process or papers issued in any
action or proceeding to enforce or defend any matter arising from or related to
this Sublease, and agrees that service of such summons and complaint, or other
process or papers may be made by registered or certified mail addressed to such
party at the address of such party set forth above.
22. TERMINATION OF SUBLEASE. (a) Subtenant shall quit and surrender
the Premises and the Furniture on or before the end of the Term, broom clean, in
good order and condition, ordinary wear and tear, damage and casualty (other
than a casualty caused by the negligence or misconduct of Subtenant or its
employees; agents or representatives) excepted and shall repair any damage
caused by the removal of any of Subtenant's property.
(b) Subtenant acknowledges that possession of the Premises and the
Furniture must be surrendered to Sublandlord at the expiration or sooner
termination of the Term of this Sublease by operation of law or otherwise.
Subtenant agrees to indemnify and save Sublandlord harmless against all costs,
claims, loss or liability of any nature whatsoever (including, without
limitation, reasonable fees and disbursements of attorneys) resulting from, or
arising out of, delay by Subtenant in so surrendering the Premises and
Furniture. Nothing herein contained shall be deemed to permit Subtenant to
retain possession of the Premises or the Furniture after the expiration or
sooner termination of the Term.
23. MISCELLANEOUS. (a) Sublandlord and Subtenant each represent and
warrant to the other that each person executing this Sublease on its behalf is
duly authorized to so execute this Sublease.
(b) This Sublease cannot be waived, modified, terminated or canceled
except by an agreement in writing signed by the party to be charged.
(c) The exercise, validity, construction, operation and effect of the
terms and provisions of this Sublease shall be determined and enforced in
accordance with the laws of the State of New York.
- 16 -
(d) The captions in this Sublease and the table of contents are
inserted only as a matter of convenience and shall not define, limit, extend or
describe the scope of this Sublease or affect the construction hereof.
(e) If any of the provisions of this Sublease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Sublease, or the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected thereby, and
every provision of this Sublease shall be valid and enforceable to the fullest
extent permitted by law.
(f) This Sublease shall be binding upon and inure to the benefit of
Sublandlord, its successors and assigns. It shall also be binding upon, and
inure to the benefit of Subtenant. It is not assignable by Subtenant, except in
accordance with the provisions of the Lease and this Sublease, and, if
appropriate consents to any assignment are obtained under the Lease and this
Sublease, it shall be binding upon the assignee as to whom such consents are
obtained. Sublandlord shall not assign this Sublease (it being understood that
any event which would constitute an assignment by the tenant under the Lease
shall constitute an assignment by Sublandlord hereunder) unless the assignee
assumes all of the obligations of Sublandlord under this Sublease and in no
event shall Sublandlord be deemed to be released from its obligations hereunder
in connection with any assignment. No partner, shareholder, director or officer
of Sublandlord, or of any partner or shareholder of Sublandlord (collectively,
the "Parties") shall be liable for the performance of Sublandlord's obligations
under this Sublease. Subtenant shall look solely to Sublandlord to enforce
Sublandlord's obligations hereunder and shall not seek any damages against any
of the Parties.
(g) Each right and remedy of Sublandlord under this Sublease is
cumulative and in addition to every other right and remedy of Sublandlord under
this Sublease now or hereafter existing at law or in equity, by statute or
otherwise.
(h) No surrender of possession of the Premises or of any part thereof
or of any remainder of the Term of this Sublease shall release Subtenant from
any of its obligations hereunder unless accepted by Sublandlord in writing.
(i) The receipt and retention by Sublandlord of Basic Rent or
additional rent from anyone other than Subtenant shall not be deemed a waiver of
the breach by Subtenant of any covenant, term, condition or agreement herein
contained, or the acceptance of such other person as a tenant, or a release of
Subtenant from the further keeping, observance or performance by Subtenant of
the covenants, terms, conditions and agreements herein contained. The receipt
and retention by Sublandlord of
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Basic Rent or additional rent with knowledge of the breach of any covenant,
term, condition or agreement herein contained shall not be deemed a waiver of
such breach.
(j) In addition to all other remedies provided for herein and in
equity or by law, if Subtenant shall default (beyond any applicable grace
period) in the observance or performance of any term, covenant, condition or
agreement on Subtenant's part to be observed or performed under or by virtue of
any of the terms or provisions of this Sublease, including any provisions of the
Lease incorporated herein by reference, Sublandlord shall have the right, but
not the obligation, to perform the same for the account of Subtenant, and if
Sublandlord makes any expenditures or incurs any obligations for the payment of
money in connection therewith, including, without limitation, reasonable
attorneys' fees, such sums paid or obligations incurred, with interest at 10%
per annum, shall be paid by Subtenant to Sublandlord within five (5) days of
rendition of a bill or statement to Subtenant therefor.
(k) This Sublease contains all of the covenants, agreements, terms,
conditions and understandings relating to the leasing of the Premises to
Subtenant and Sublandlord's obligations in connection therewith and neither
Sublandlord nor any agent or representative of Sublandlord has made or is
making, and Subtenant in executing and delivering this Sublease is not relying
upon, any warranties, representations, promises or statements whatsoever. All
understandings and agreements, if any, heretofore had between the parties are
merged in this Sublease, which alone fully and completely expresses the
agreement of the parties.
* * *
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IN WITNESS WHEREOF, this Sublease has been duly executed as of the day
and year first hereinabove written.
SUBLANDLORD
OVERSEAS PARTNERS, INC.
By: /s/ Illegible
----------------------
SUBTENANT
EMCO MOTOR HOLDINGS, INC.
By: /s/ E.P. Mager
----------------------
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Overseas Partners, Inc.
375 Park Avenue
New York, New York 10152
August ___, 1994
Emco Motor Holdings, Inc.
585 Route 440
Jersey City, New Jersey 07304
Ladies and Gentlemen:
Reference is made to that certain Sublease dated as of August _, 1994
(the "Sublease") between Overseas Partners, Inc. ("Sublandlord") and Emco
Holdings, Inc. ("Subtenant"). Sublandlord and Subtenant hereby agree that the
Sublease is hereby amended as follows:
(a) The phrase "September 1, 1994" in the second sentence of
Section 1 of the Sublease is hereby deleted and the following is hereby
substituted therefor: "the later of (a) September 1, 1994, (b) the date on
which Landlord's consent is obtained pursuant to Section 17 hereof and (c)
the date Sublandlord delivers possession of the Premises to Subtenant".
As amended hereby, the Sublease is ratified and confirmed in all
respects.
Very truly yours,
OVERSEAS PARTNERS, INC.
By:
------------------------
Name
President
------------------------
Title
Agreed & Accepted:
EMCO MOTOR HOLDINGS, INC.
By: __________________________
Name
__________________________
Title