EXHIBIT 10(X)
THIRD TIER SUBLEASE
BETWEEN,
UNITEL VIDEO, INC.,
AS THIRD TIER SUBLESSOR
AND
PHOTO-MAGNETIC SOUND STUDIOS INC.,
AS THIRD TIER SUBLESSEE
PREMISES: A PORTION OF THE 10TH FLOOR
217 - 223 EAST 43RD STREET/
214 - 226 EAST 44TH STREET
NEW YORK, NEW YORK
TABLE OF CONTENTS
ARTICLE PAGE
1 . . . . . . . . . . . . . . . . . . . . . . . . . . .Demised Premises 2
2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Term 2
3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Rent 3
4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use 5
5.. . . . . . . . . Major Ground Lease, Prime Sublease and Sub-sublease 5
6.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Service 7
7.. . . . . . . .Utility Services and ElectricEnergy Charge Adjustments 7
8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Fixtures 8
9.. . . . . . . . . . . . . . . . . . . . . . . Alterations and Repairs 8
10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance 10
11. . . . . . . . . . . . . . . Assignment, Subletting and Encumbrances 10
12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Default 11
13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Bankruptcy 14
14. . . . . . . . . . . . . . . . . . . . . . . . . . . Indemnification 15
15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time Limits 16
16. . . . . . . . . . . . . . . . . . . . . . . . . Remedies Cumulative 16
17. . . . . . . . . . . . . . . . . . . . . . Casualty and Condemnation 16
18. . . . . . . . . . . . . . . . . . . . . . . . . . . Quiet Enjoyment 17
19. . . . . . . . . . . . . . . . . . . Release of Third Tier Sublessor 17
20. . . . . . . . . . . . . . . . . . . . . . . . Surrender of Premises 17
21. . . . . . . . . . . . . . . . . . . . . . . . Estoppel Certificates 17
22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Security 17
23. . . . . . . . . . . . . . . . . . . . . . . . . .Access to Premises 18
24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notices 18
25. . . . . Groundlessor's, Prime Sublessor's and Sub-sublessor's
Consents Required 18
26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Broker 18
27. . . . . . . . . . . . . . Waiver of Rights to Jury and Counterclaim 19
28. . . . . . . . . . . . . Third Tier Sublessor's Inability to Perform 19
29. . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous 19
THIRD TIER SUBLEASE
THIRD TIER SUBLEASE (this "SUB-SUBLEASE"), dated as of May __, 1996,
between UNITEL VIDEO, INC., a Delaware corporation ("THIRD TIER SUBLESSOR")
having an office at 555 West 57th Street, New York, New York 10019, Attention:
General Counsel, and PHOTO-MAGNETIC SOUND STUDIOS INC., a New York corporation
("THIRD TIER SUBLESSEE") having an office at 222 East 44th Street, New York, New
York 10017.
W I T N E S S E T H:
WHEREAS, by Agreement of Lease, dated as of January 1, 1959, between
Webb & Knapp, Inc. and Carl E. Siegesmund, as landlord, and 43rd St. Estates
Corp. ("PRIME SUBLESSOR"), as tenant, as modified by a letter agreement, dated
August 16, 1961, between Greenpoint Terminal Warehouse, Inc. ("GROUNDLESSOR";
successor by conveyance from Webb & Knapp, Inc. and Carl E. Siegesmund) and
Prime Sublessor, as modified by a Modification of Lease, dated as of September
13, 1961, between Groundlessor and Prime Sublessor, as modified by a
Modification of Lease, dated as of December 20, 1961, between Groundlessor and
Prime Sublessor, as modified (along with a related lease) by an Agreement, dated
January 23, 1963, among Groundlessor, Prime Sublessor and URN Realty Corp., as
modified (along with a related lease) by an Agreement, dated January 29, 1964,
among Groundlessor, Prime Sublessor and URN Realty Corp., and as modified by
Agreement, dated May 10, 1966, among Groundlessor, Prime Sublessor, and Victor
Whitehorn, as leasehold mortgagee (such Agreement of Lease, as so modified, is
the "MAJOR GROUND LEASE");
WHEREAS, by Agreement of Lease, dated August 15, 1961, between Prime
Sublessor, as landlord, and MPO Videotronics, Inc. ("MPO"), as tenant, as
amended by a letter agreement, dated August 31, 1961, between Groundlessor and
MPO (affecting the fourth to the seventh floors) and a letter agreement, dated
December 29, 1961, between Prime Sublessor and MPO, as modified by an Agreement
of Modification of Lease, dated May 31, 1962, between Prime Sublessor and MPO,
as assigned (as indicated in a subsequent lease amendment) by MPO to MPO Grand
Central Studios, Inc. ("MPO GRAND"), as amended by a First (sic) Amendment of
Agreement of Lease, dated July 20, 1970, between Prime Sublessor and MPO Grand,
as amended by a Second (sic) Amendment, dated as of November 26, 1973, between
Prime Sublessor and MPO Grand, as amended by an Amendment of Lease, dated as of
January 1, 1982, between Prime Sublessor and Columbia Pictures Industries, Inc.
("COLUMBIA PICTURES"; successor in interest to MPO Grand) (such Agreement of
Lease, as so amended, modified and assigned, is the "PRIME SUBLEASE");
WHEREAS, by Sublease Agreement, effective as of January 1, 1982,
between Columbia Pictures, as landlord, and Bell & Howell/Columbia Pictures
Video Services, as tenant, as assigned and assumed pursuant to an Assignment of
Sublease Acceptance of Assignment, dated December 12, 1984, between Bell &
Howell/Columbia Pictures Video Services and Scanline Communications, as
supplemented by that certain inter-office memorandum, dated May 28, 1985, as
amended by extension letter dated April 3, 1989 from Columbia Pictures to
Scanline Communications, and as assigned and assumed pursuant to an Assignment,
Assumption and
Acceptance of Lease, dated as of May 5, 1992, between Scanline Communications
and Third Tier Sublessor (such Sublease Agreement, as so assigned, assumed,
extended and amended, is the "SUB-SUBLEASE"), Sony Pictures Entertainment,
Inc. ("SUB-SUBLESSOR"; successor in interest to Columbia Pictures) leased to
Third Tier Sublessor 34,359.40 square feet consisting of: the entire seventh
floor consisting of 13,127 square feet; the entire eighth floor consisting of
8,060 square feet; a 3,194.50 square foot portion of the basement; a 5,839.90
square foot portion of the fourth floor; and a 4,138 square foot portion of
the tenth floor; all in the building ("BUILDING") known as and located at
217-223 East 43rd Street/214-226 East 44th Street, New York, New York; and
WHEREAS, Third Tier Sublessor desires to sublet to Third Tier
Sublessee, and Third Tier Sublessee desires to hire from Third Tier Sublessor, a
portion of the premises demised under the Sublease upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
provided, Third Tier Sublessor and Third Tier Sublessee hereby agree as follows:
1. DEMISED PREMISES.
1.01 Third Tier Sublessor hereby sublets to Third Tier Sublessee, and
Third Tier Sublessee hereby sublets and hires from Third Tier Sublessor, the
premises (the "PREMISES") comprising a portion of the 10th Floor (comprising
approximately 4,138 square feet) in the Building as designated by cross-hatching
on the floor plan annexed to this Third Tier Sublease as EXHIBIT A-1 and hereby
incorporated in and made a part of this Third Tier Sublease by reference, for
the term hereinafter stated and for the Rent hereinafter reserved (as
hereinafter defined), subject to all of the terms and provisions hereinafter
provided or incorporated in this Third Tier Sublease by reference.
1.02 Third Tier Sublessee agrees to accept the phase I space (the
"PHASE I SPACE") comprising approximately 1,052 square feet of the Premises, as
designated by cross-hatching on the floor plan annexed to this Third Tier
Sublease as EXHIBIT A-2 and hereby incorporated in and made a part of this Third
Tier Sublease by reference, on the Commencement Date (as hereinafter defined) in
its then condition and Third Tier Sublessor shall not be obligated to perform
any work or furnish any materials in, to or about the Phase I Space in order to
prepare the Phase I Space for occupancy by Third Tier Sublessee or otherwise.
Third Tier Sublessee agrees to accept the phase II space (the "PHASE II SPACE")
comprising approximately 3,086 square feet of the Premises, as designated by
cross-hatching on the floor plan annexed to this Third Tier Sublease as Exhibit
A-3 and hereby incorporated in and made a part of this Third Tier Sublease by
reference, on earlier to occur of (i) August 31, 1996 and (ii) five (5) days
after the delivery of possession of the Phase II Space by Third Tier Sublessor
to Third Tier Sublessee (such earlier date is the "PHASE II COMMENCEMENT DATE")
in its then condition and Third Tier Sublessor shall not be obligated to perform
any work or furnish any materials in, to or about the Phase II Space in order to
prepare the Phase II Space for occupancy by Third Tier Sublessee or otherwise.
Third Tier Sublessee hereby releases Third Tier Sublessor from any and all
liability resulting from (A) any latent or patent defects in the Premises,
(B) the failure of the Premises to comply with any legal requirements applicable
thereto or (C) the status of the title to the Premises. Third Tier Sublessee
acknowledges that Third Tier Sublessor has made no statements, representations,
covenants or warranties with respect to (x) the condition or manner of
construction of the Building or any improvements constructed in the Premises,
(y) the uses or purposes for which the Premises may be lawfully occupied, or (z)
any encumbrances, covenants, restrictions or agreements affecting title to the
Premises. Third Tier Sublessee also agrees that, in executing this Third Tier
Sublease, it has not relied upon or been induced by any statements,
representations, covenants or warranties of any person other than those, if any,
set forth expressly in this Third Tier Sublease. Third Tier Sublessee has
relied solely on such statements, representations, covenants and warranties, if
any, as are expressly made herein and on such investigations, examinations and
inspections as Third Tier Sublessee has chosen to make or has made.
1.03 Any and all alterations to, work to be performed in or materials
to be supplied for the Premises shall be made, performed and supplied at the
sole cost and expense of Third Tier Sublessee and in conformance with all of the
terms and provisions of this Third Tier Sublease, the Major Ground Lease, the
Prime Sublease and the Sub-sublease.
2. TERM.
2.01 The term ("TERM") of this Third Tier Sublease shall commence five
(5) days after Third Tier Sublessor notifies Third Tier Sublessee that Sub-
sublessor has consented to this Third Tier Sublease ("COMMENCEMENT DATE") and,
unless earlier terminated as herein provided, shall expire on December 30, 1999
("EXPIRATION DATE"). Notwithstanding the foregoing, if prior to the
Commencement Date Third Tier Sublessee takes possession of or causes the
commencement of any work or the moving of any property in, into or about the
Premises, the date upon which Third Tier Sublessee took or caused to be taken
any such action shall be deemed to be the Commencement Date under this Third
Tier Sublease.
2.02 After Third Tier Sublessor shall have determined the Commencement
Date, Third Tier Sublessor and Third Tier Sublessee shall, upon the request of
either of them, execute a statement prepared by Third Tier Sublessor, in
recordable form, setting forth such date. Any failure of Third Tier Sublessee
to execute such statement shall not affect Third Tier Sublessor's determination
of the Commencement Date.
2.03 If the term of the Sub-sublease is terminated for any reason
prior to the Expiration Date, this Third Tier Sublease shall thereupon be
terminated ipso facto without any liability of Third Tier Sublessor to Third
Tier Sublessee by reason of such early termination. References in this Third
Tier Sublease to the "termination" of this Third Tier Sublease include the
stated expiration of the Term and any earlier termination thereof pursuant to
the provisions of this Third Tier Sublease, the Major Ground Lease, the Prime
Sublease, the Sub-sublease or by law. Except as otherwise expressly provided in
this Third Tier Sublease with respect to those obligations of Third Tier
Sublessee which by their nature or under the circumstances can only be, or under
the
provisions of this Third Tier Sublease may be, performed after the
termination of this Third Tier Sublease, the Term and estate granted hereby
shall end at noon on the date of termination of this Third Tier Sublease as
if such date were the Expiration Date, and neither party shall have any
further obligation or liability to the other after such termination.
Notwithstanding the foregoing, any liability of Third Tier Sublessee to make
any payment under this Third Tier Sublease, whether of Fixed Rent, Additional
Rent (both as hereinafter defined) or otherwise, which shall have accrued
prior to the termination of this Third Tier Sublease, shall survive the
termination of this Third Tier Sublease.
2.04 Third Tier Sublessee waives the right to recover any damages
which may result from Third Tier Sublessor's failure to deliver possession of
(i) the Phase I Space on the Commencement Date or (ii) the Phase II Space on the
Phase II Commencement Date. If Third Tier Sublessor shall be unable to give
possession of either the Phase I Space or the Phase II Space on such respective
scheduled dates, and provided Third Tier Sublessee is not responsible for such
inability to give possession, the applicable Fixed Rent and Additional Rent
reserved and covenanted to be paid herein shall not commence until the date on
which Third Tier Sublessor shall be able to give possession of the Phase I Space
or the Phase II Space, as the case may be, to Third Tier Sublessee, and no such
failure to give possession on such respective scheduled date shall in any wise
affect the validity of this Third Tier Sublease or the obligations of Third Tier
Sublessee hereunder or give rise to any claim for damages by Third Tier
Sublessee or claim for rescission of this Third Tier Sublease, nor shall the
same in any way be construed to extend the Term. If permission is given to
Third Tier Sublessee to enter into the possession of the Premises, Third Tier
Sublessee covenants and agrees that such occupancy shall be deemed to be under
all the terms, covenants, conditions and provisions of this Third Tier Sublease,
including the covenant to pay Rent.
2.05 The parties agree that this Article 2 constitutes an express
provision as to the time at which Third Tier Sublessor shall deliver possession
of the Phase I Space and the Phase II Space to Third Tier Sublessee, and Third
Tier Sublessee hereby waives any rights to rescind this Third Tier Sublease
which Third Tier Sublessee might otherwise have pursuant to Section 223-a of the
Real Property Law of the State of New York or any other law of like import now
or hereafter in force.
3. RENT.
3.01 The rent ("RENT") reserved for the Term under this Third Tier
Sublease shall consist of the following:
(i) annual fixed rent ("FIXED RENT") in the amount of (A)
Seventeen Thousand Eight Hundred Eighty-four ($17,884) Dollars for the period
beginning on the Commencement Date and ending on the day immediately preceding
the Phase II Commencement Date, and (B) Seventy Thousand Three Hundred Forty-six
($70,346) Dollars for the period beginning on the Phase II Commencement Date
and ending on December 30, 1999, which shall be
payable in advance, in equal monthly installments of, respectively, $1,490.33
and $5,862.17 each. The first installment of Fixed Rent shall be payable by
Third Tier Sublessee upon the execution of this Third Tier Sublease and the
second and subsequent installments shall be payable on the first (1st) day of
the first month following the Commencement Date and subsequent months,
respectively, of the Term. If the Commencement Date shall be a date other
than the first day of a calendar month, the second installment of Fixed Rent
(but no other installment) payable by Third Tier Sublessee hereunder shall be
reduced to an amount which bears the same ratio to the first installment of
Fixed Rent payable hereunder as the number of days from and including the
Commencement Date to the end of the calendar month in which the Commencement
Date occurs bears to the total number of days in such calendar month. If the
Phase II Commencement Date shall be a date other than the first day of a
calendar month, the first installment of First Rent (but no other
installment) payable by Third Tier Sublessee hereunder after the Phase II
Commencement Date shall be increased to an amount equal to the sum of (1)
$5,862.17 and (2) $4,371.84 multiplied by a fraction, the numerator of which
is the number of days from and including the Phase II Commencement Date to
the end of the calendar month in which the Phase II Commencement Date
occurred, and the denominator of which is the number of days in such calendar
month; and
(ii) additional rent ("ADDITIONAL RENT") in an amount equal to
the sum of (A) (1) 3.06% for the period commencing on the Commencement Date and
ending on the day immediately preceding the Phase II Commencement Date and (2)
12.04% for the period commencing on the Phase II Commencement Date and ending on
December 30, 1999, of any and all sums of money, other than the annual fixed
rental ("UNDERLYING FIXED RENT") of $191,359.92 under the Sub-sublease, which is
or may become payable by Third Tier Sublessor to Sub-sublessor under the Sub-
sublease ("UNDERLYING ADDITIONAL RENT"); (B) any and all other sums payable by
Third Tier Sublessee to Third Tier Sublessor hereunder; and (C) any and all
charges of Sub-sublessor under the Sub-sublease for overtime, additional
services or any other matter relating to the Premises, or arising out of Third
Tier Sublessee's failure to perform its obligations hereunder. Additional Rent
shall be payable by Third Tier Sublessee on the date fifteen (15) days before
the date on which the corresponding Underlying Additional Rent is payable to
Sub-sublessor under the Sub-sublease. All other Additional Rent shall be
payable upon demand. Third Tier Sublessor shall have the same remedies with
respect to any default by Third Tier Sublessee in the payment of Additional Rent
as are provided in this Third Tier Sublease, the Sub-sublease or applicable law
with respect to any nonpayment of rent.
3.02 The Fixed Rent and, except as otherwise specifically provided in
this Third Tier Sublease, the Additional Rent, shall be paid by Third Tier
Sublessee at the office of Third Tier Sublessor set forth above or such other
place as Third Tier Sublessor may designate, without prior notice or demand
therefor and without any abatement, deduction or setoff. Third Tier Sublessor
may at any time and from time to time by notice direct Third Tier Sublessee to
pay all or any portion of the Fixed Rent or Additional Rent on Third Tier
Sublessor's behalf directly to the Sub-sublessor at such address as Third Tier
Sublessor may at any time and from time to time direct.
3.03 Third Tier Sublessee shall pay all Rent when due, in lawful money
of the United States which shall be legal tender for the payment of all debts,
public and private, at the time of payment. All sums due and payable as Rent
shall from and after the due date bear interest at four percent (4%) above the
base rate charged by Citibank, N.A. (or any successor thereto) ("PRIME RATE"),
from time to time, but in no event in excess of the maximum legal rate of
interest permitted from time to time under law to be charged, provided, however,
that no further interest shall be payable upon such interest. All interest
accrued under this subsection as hereinabove provided shall be deemed to be
Additional Rent payable hereunder and due at such time or times as the Rent with
respect to which such interest shall have accrued shall be payable under this
Third Tier Sublease.
3.04 If all or any portion of the Rent shall be or become
uncollectible, reduced, or required to be refunded because of any Legal
Requirements (as herein defined), Third Tier Sublessee shall enter into such
agreement(s) and take such other steps (without additional expense to Third Tier
Sublessee) as Third Tier Sublessor may request and as may be legally permissible
to permit Third Tier Sublessor to collect the maximum Rent which from time to
time during the continuance of such legal rent restriction may be legally
permissible (and not in excess of the amounts reserved therefor under this Third
Tier Sublease). Upon the termination of such legal rent restriction, (i) the
Rent shall become and thereafter be payable in accordance with the amounts
reserved herein for the periods following such termination, and (ii) Third Tier
Sublessee shall pay to Third Tier Sublessor, to the maximum extent legally
permissible, an amount equal to (A) the Rent which would have been paid pursuant
to this Third Tier Sublease but for such legal rent restriction, less (B) the
Rent paid by Third Tier Sublessee during the period such legal rent restriction
was in effect.
3.05 Third Tier Sublessee acknowledges that the late payment by Third
Tier Sublessee to Third Tier Sublessor of Rent and other sums due hereunder and
the failure to deliver on time items required to be delivered will cause Third
Tier Sublessor to incur costs not contemplated by this Third Tier Sublease, the
exact amount of which will be extremely difficult to ascertain. Such costs may
include, but are not limited to, administrative, processing and accounting
charges, and late charges which may be imposed on Third Tier Sublessor.
Accordingly, if any sum due from Third Tier Sublessee or any item due from Third
Tier Sublessee hereunder shall not be received by Third Tier Sublessor or Third
Tier Sublessor's designee within five (5) days after the date due, Third Tier
Sublessee shall pay to Third Tier Sublessor, in addition to any interest on
delinquent amounts provided above, a late charge equal to the greater of two
percent (2%) of the delinquent amount or $100.00, as liquidated damages. The
parties agree that such late charge represents a fair and reasonable estimate of
the costs Third Tier Sublessor will incur by reason of late payment or late
delivery by Third Tier Sublessee. Acceptance of such late charge shall not
constitute a waiver of Third Tier Sublessee's default with respect to such
overdue amount or other item, nor prevent Third Tier Sublessor from exercising
any other rights and remedies granted hereunder or by law to Third Tier
Sublessor.
4. USE.
4.01 Third Tier Sublessee shall occupy and use the Premises only for
such purposes as are permitted under the terms and provisions of the Sub-
sublease and for no other purpose, and in all respects only as permitted under
the terms and provisions of this Third Tier Sublease, the Major Ground Lease,
the Prime Sublease and the Sub-sublease, including, without limiting the
generality of the foregoing, the rules and regulations, if any, under the Major
Ground Lease, the Prime Sublease, the Sub-sublease, and any and all laws,
statutes, ordinances, orders, regulations and requirements of all federal, state
and local governmental, public or quasi-public authorities, whether now or
hereafter in effect, which may be applicable to or in any way affect the
Building or the Premises or any part thereof and all requirements, obligations
and conditions of all instruments of record on the date of this Third Tier
Sublease affecting the Building or the Premises (collectively, "LEGAL
REQUIREMENTS").
4.02 Third Tier Sublessee shall not, without the prior consent of
Third Tier Sublessor, Sub-sublessor, Prime Sublessor and Groundlessor do or
permit anything to be done which may result in a violation of the terms of this
Third Tier Sublease, the Sub-sublease, the Prime Sublease or the Major Ground
Lease or which may make Third Tier Sublessor liable for any damages, claims,
fines, penalties, costs or expenses thereunder.
5. MAJOR GROUND LEASE, PRIME SUBLEASE AND SUB-SUBLEASE.
5.01 This Third Tier Sublease and all of Third Tier Sublessee's rights
hereunder are and shall remain in all respects subject and subordinate to
(i) all of the terms and provisions of the Major Ground Lease, the Prime
Sublease and the Sub-sublease, substantially true and complete copies of which
have been delivered to and carefully examined by Third Tier Sublessee and are
attached hereto as, respectively, EXHIBIT B-1, EXHIBIT B-2 and EXHIBIT B-3,
(ii) any and all amendments to the Major Ground Lease, the Prime Sublease and
the Sub-sublease, or supplemental agreements relating to any of the same
hereafter made, except for any such amendments to or supplemental agreements
relating to the Sub-sublease between Sub-sublessor and Third Tier Sublessor
which contravene any express rights granted to Third Tier Sublessee hereunder,
and (iii) any and all matters to which the tenancy of Third Tier Sublessor, as
tenant under the Sub-sublease, is or may be subordinate. Third Tier Sublessee
shall in no case have any rights under this Third Tier Sublease greater than
Third Tier Sublessor's rights as tenant under the Sub-sublease. The foregoing
provisions shall be self-operative and no further instrument of subordination
shall be necessary to effectuate such provisions unless required by
Groundlessor, Prime Sublessor, Sub-sublessor or Third Tier Sublessor, in which
event Third Tier Sublessee shall, upon demand by Groundlessor, Prime Sublessor,
Sub-sublessor or Third Tier Sublessor at any time and from time to time,
execute, acknowledge and deliver to Third Tier Sublessor, Sub-sublessor, Prime
Sublessor and Groundlessor any and all instruments that Third Tier Sublessor,
Sub-sublessor, Prime Sublessor or Groundlessor, in the sole discretion of any of
them, may deem necessary or proper to confirm such subordination of this Third
Tier Sublease, and the rights of Third Tier Sublessee hereunder. If Third Tier
Sublessee shall fail to execute, acknowledge and/or deliver any such instrument
of subordination within ten (10) days after Groundlessor's, Prime Sublessor's,
Sub-sublessor's or Third Tier Sublessor's demand therefor, Third Tier Sublessor,
in addition to any other remedies provided under this Third Tier Sublease, the
Sub-sublease, the Prime Sublease, the Major Ground Lease and applicable law, may
execute, acknowledge and deliver such instrument, as Third Tier Sublessee's
attorney-in-fact. Third Tier Sublessee hereby irrevocably constitutes and
appoints Third Tier Sublessor as Third Tier Sublessee's proper and lawful
attorney-in-fact for such purpose, such appointment being coupled with an
interest.
5.02 Third Tier Sublessee shall observe and perform, (i) for the
benefit of Sub-sublessor and Third Tier Sublessor, each and every term,
covenant, condition and agreement of the Sub-sublease, which Third Tier
Sublessor is required to observe or perform with respect to the Premises as
tenant under the Sub-sublease, except for the covenants of Third Tier Sublessor
to pay Sub-sublessor the Underlying Fixed Rent and Underlying Additional Rent,
(ii) for the benefit of Prime Sublessor, Sub-sublessor and Third Tier Sublessor,
each and every term, covenant, condition and agreement of the Prime Sublease
which Third Tier Sublessor is required to observe or perform with respect to the
Premises as tenant under the Sub-sublease and (iii) for the benefit of
Groundlessor, Prime Sublessor, Sub-sublessor and Third Tier Sublessor, each and
every term, covenant, condition and agreement of the Major Ground Lease which
Third Tier Sublessor is required to observe or perform with respect to the
Premises as tenant under the Sub-sublease.
Except as otherwise specifically provided in this Third Tier Sublease, all of
the terms, covenants, conditions and agreements which Third Tier Sublessor is
required to observe or perform with respect to the Premises under the Major
Ground Lease, the Prime Sublease and the Sub-sublease are hereby incorporated
herein by reference and deemed to constitute terms, covenants, conditions and
agreements which Third Tier Sublessee is required to observe and perform
under this Third Tier Sublease as if set forth herein at length, mutatis
mutandis; Third Tier Sublessor may exercise and shall be entitled to all of
the rights, powers, privileges and remedies reserved to (x) Groundlessor
under the Major Ground Lease, (y) Prime Sublessor under the Prime Sublease
and (z) Sub-sublessor under the Sub-sublease to the same extent as if fully
set forth herein at length, including, without limitation, all releases from
liability to, respectively, Groundlessor, Prime Sublessor and Sub-sublessor
thereunder and all rights and remedies arising out of, or with respect to,
any default by Third Tier Sublessee in payment of Rent hereunder or the
observance or performance of the terms, covenants, conditions and agreements
of this Third Tier Sublease, the Sub-sublease, the Prime Sublease and the
Major Ground Lease (except as specifically provided herein). Notwithstanding
the foregoing, any inconsistencies between the terms of this Third Tier
Sublease, the Sub-sublease, the Prime Sublease and the Major Ground Lease
which shall result from the foregoing incorporation shall be resolved in
favor of this Third Tier Sublease, provided, however, that if such
construction of terms would cause Third Tier Sublessor to be in default under
the terms of the Sub-sublease, the Prime Sublease and/or the Major Ground
Lease, then such inconsistency shall be resolved in favor of the superior
lease out of the Sub-sublease, the Prime Sublease and the Major Ground Lease
under which Third Tier Sublessor would be in default by such construction of
terms.
5.03 Third Tier Sublessee hereby assumes Third Tier Sublessor's
obligations to perform and makes itself personally liable to Sub-sublessor,
Prime Sublessor and Groundlessor for the performance of, all of the terms,
covenants, conditions and agreements to be performed or observed during the Term
on the part of Third Tier Sublessor under, respectively, the Sub-sublease, the
Prime Sublease and the Major Ground Lease with respect to the Premises, except
as herein provided. Third Tier Sublessee shall, promptly upon the request of
Third Tier Sublessor, Sub-sublessor, Prime Sublessor and/or Groundlessor,
execute, acknowledge and deliver to Third Tier Sublessor, Sub-sublessor, Prime
Sublessor and/or Groundlessor, as the case may be, an instrument confirming the
foregoing undertaking in form and content satisfactory to the party or parties
making such request in form suitable for recording.
5.04 Nothing contained in this Article 5 is intended or shall be
construed to confer upon Third Tier Sublessee any rights, powers, privileges or
remedies which are not specifically conferred upon Third Tier Sublessee under
the terms and provisions of this Third Tier Sublease, and, unless specifically
provided otherwise herein, none of the rights, powers, privileges or remedies of
(x) Third Tier Sublessor as tenant under the Sub-sublease, including, without
limitation, the options to review and the right of first refusal contained in,
respectively, paragraphs 6 and 7 of the Sub-sublease, (y) Sub-sublessor as
tenant under the Prime Sublease, and (z) Prime Sublessor as tenant under the
Major Ground Lease shall inure to the benefit of Third Tier Sublessee hereunder.
5.05 If Third Tier Sublessee shall at any time fail to make any
payment or perform any act on its part to be made or performed hereunder, then
Third Tier Sublessor, after two (2) days' notice to Third Tier Sublessee (or, in
case of any emergency, on such notice, or without notice, as may be reasonable
under the circumstances) and without waiving, or releasing Third Tier Sublessee
from, any obligation of Third Tier Sublessee hereunder, may (but shall not be
required to) make any payment or perform any act on Third Tier Sublessee's part
to be made or performed as in this Third Tier Sublease provided, and may enter
upon the Premises for the purpose thereof and take all such action thereon as
may be necessary therefor. Third Tier Sublessee shall pay to Third Tier
Sublessor, upon demand, the amount of all costs and expenses incurred by Third
Tier Sublessor in the payment or performance of any such obligations of Third
Tier Sublessee.
6. SERVICE.
6.01 Except as otherwise specifically provided in this Third Tier
Sublease, Third Tier Sublessee shall be entitled during the Term to receive all
services, utilities, repairs and facilities which (x) Sub-sublessor is required
to provide pursuant to the Sub-sublease, (y) Prime Sublessor is required to
provide pursuant to the Prime Sublease and (z) Groundlessor is required to
provide pursuant to the Major Ground Lease, insofar as such services, utilities,
repairs and facilities pertain to the Premises. Third Tier Sublessor shall have
no liability of any nature whatsoever to Third Tier Sublessee as a consequence
of the failure or delay on the part of (x) Sub-sublessor in performing any or
all of its obligations under the Sub-sublease, (y) Prime Sublessor in performing
any or all of its obligations under the Prime Sublease and (z) Groundlessor in
performing any or all of its obligations under the Major Ground Lease,
including, without limiting the generality of the foregoing, any action or
omission by, respectively, Sub-sublessor, Prime Sublessor and/or Groundlessor
which results in a breach of the covenant of quiet enjoyment set forth in,
respectively, the Sub-sublease, the Prime Sublease and/or the Major Ground
Lease, and, under no circumstances shall Third Tier Sublessee have any right to
require or obtain the performance by Third Tier Sublessor of any obligations of
Sub-sublessor, Prime Sublessor and/or Groundlessor under, respectively, the Sub-
sublease, the Prime Sublease and/or the Major Ground Lease or otherwise. Third
Tier Sublessee's obligations under this Third Tier Sublease shall not be
impaired, nor shall the performance thereof be excused, because of any failure
or delay on the part of Sub-sublessor, Prime Sublessor and/or Groundlessor in
performing its obligations under, respectively, the Sub-sublease, the Prime
Sublease and/or the Major Ground Lease.
6.02 If at any time during the Term (x) Sub-sublessor shall default in
any of its obligations under the Sub-sublease, (y) Prime Sublessor shall default
in any of its obligations under the Prime Sublease or (z) Groundlessor shall
default in any of its obligations under the Major Ground Lease, to furnish
facilities, services or utilities or to make repairs to the Premises, then, upon
Third Tier Sublessor's receipt of a written notice from Third Tier Sublessee
specifying such default, Third Tier Sublessor shall, at Third Tier Sublessee's
sole cost and expense, use its reasonable efforts to cause Sub-sublessor, Prime
Sublessor or Groundlessor, as the case may be, to cure such default. Any action
or proceeding instituted by Third Tier Sublessor against Sub-
sublessor, Prime Sublessor or Groundlessor, as the case may be, to enforce
such rights shall be conducted at the expense of Third Tier Sublessee,
provided, however, that Third Tier Sublessor shall bear its fair share of
such expense to the extent such action or proceeding does not relate to the
Premises.
7. UTILITY SERVICES AND ELECTRIC
ENERGY CHARGE ADJUSTMENTS.
7.01 Electric energy will be furnished to the Premises through
presently existing electrical facilities in accordance with Article 6 above for
Third Tier Sublessee's reasonable use of such lighting and other electrical
fixtures, appliances and equipment presently existing in the Premises or as
Third Tier Sublessor may permit Third Tier Sublessee to install in the Premises.
7.02 Third Tier Sublessee shall pay all charges, surcharges and other
fees (however denominated) for gas, electricity, telephone and other utility
services used in the Premises during the Term.
8. FIXTURES.
8.01 All movable property, furniture, furnishings and trade fixtures
furnished by or at the sole expense of Third Tier Sublessee ("THIRD TIER
SUBLESSEE'S PROPERTY"), other than those affixed to the Premises so that they
cannot be removed without damage and other than those replacing an item
theretofore furnished and paid for by Third Tier Sublessor or Sub-sublessor or
for which Third Tier Sublessee has received a credit, shall remain the property
of Third Tier Sublessee, and may, unless prohibited pursuant to the Sub-
sublease, be removed by Third Tier Sublessee from time to time prior to the
termination of this Third Tier Sublease.
8.02 All Alterations (as hereinafter defined) made by either party,
including all paneling, decorations, partitions, railings, mezzanine floors,
carpeting, galleries and the like, affixed to the Premises shall become the
property of Third Tier Sublessor or Sub-sublessor and shall be surrendered with
the Premises upon the termination of this Third Tier Sublease. Notwithstanding
the foregoing, Third Tier Sublessor may elect to require Third Tier Sublessee to
remove any Alterations made to the Premises including, without limitation, any
Alteration constructed or installed by Third Tier Sublessee, on behalf of Third
Tier Sublessee or at Third Tier Sublessee's request, at Third Tier Sublessee's
expense, by giving written notice to Third Tier Sublessee not later than five
(5) days prior to the date set forth herein for the termination of this Third
Tier Sublease.
8.03 In any case where Third Tier Sublessee removes any of Third Tier
Sublessee's Property or any Alterations, Third Tier Sublessee shall repair all
damages caused by said removal and shall restore the Premises to good order,
repair and condition. Upon failure of Third Tier Sublessee to do so, Third Tier
Sublessor may repair such damage and restore the Premises to good order, repair
and condition at Third Tier Sublessee's sole expense, and Third Tier Sublessee
shall reimburse Third Tier Sublessor therefor upon demand.
8.04 Notwithstanding anything herein to the contrary, upon Third Tier
Sublessee's failure to remove any of the Third Tier Sublessee's Property or any
Alterations in accordance with subsections 8.01 and 8.02 above, or upon the
termination of this Third Tier Sublease prior to the date set forth herein for
such termination, Sub-sublessor or Third Tier Sublessor may, at Third Tier
Sublessee's expense, (i) remove all such property and Alterations described in
subsections 8.01 and 8.02 above, (ii) cause the same to be placed in storage or
otherwise disposed of, and (iii) repair any damage caused by said removal and
restore the Premises to good order, repair and condition. Third Tier Sublessee
shall reimburse Third Tier Sublessor for all of the aforesaid expenses upon
demand.
8.05 Notwithstanding anything herein to the contrary, any items of
Third Tier Sublessee's Property or any Alterations not removed by Third Tier
Sublessee may, at the election of Third Tier Sublessor, be deemed to have been
abandoned by Third Tier Sublessee, and Third Tier Sublessor may retain and
dispose of said items at Third Tier Sublessee's cost and expense without any
liability to Third Tier Sublessee and without accounting to Third Tier Sublessee
for the proceeds thereof.
8.06 The provisions of this Article 8 shall survive the termination of
this Third Tier Sublease.
9. ALTERATIONS AND REPAIRS.
9.01 Third Tier Sublessee shall make no alterations, installations,
additions or improvements (collectively, "ALTERATIONS") in or about the Premises
without the prior written consent of Third Tier Sublessor in each instance. Any
Alterations in or about the Premises shall be performed by Third Tier Sublessee,
at its sole cost and expense, and in compliance with the following requirements:
(a) Third Tier Sublessee, at its sole expense, shall comply with all
of the provisions of this Third Tier Sublease, the Sub-sublease, the Prime
Sublease and the Major Ground Lease pertaining to the making of Alterations,
including, without limiting the generality of the foregoing, the provisions
requiring the prior written consent of Sub-sublessor, Prime Sublessor and
Groundlessor before any Alterations may be made in or about the Premises;
(b) Third Tier Sublessee shall submit to Third Tier Sublessor, for
its prior written approval, plans and specifications for such proposed
Alterations, together with the name of the proposed contractor and all proposed
subcontractors, and all other documentation required to be submitted by Third
Tier Sublessor to (x) Sub-sublessor under the Sub-sublease, (y) Prime Sublessor
under the Prime Sublease and (z) Groundlessor under the Major Ground Lease in
respect of such Alterations;
(c) Prior to the commencement of any Alteration, Third Tier
Sublessee, at its sole expense, shall deliver to Third Tier Sublessor either
(i) a performance bond and a labor and materials bond (issued by a surety
company satisfactory to Third Tier Sublessor and licensed to do business in New
York State), each in the amount equal to 150% of the estimated cost of such
Alteration and otherwise in form satisfactory to Third Tier Sublessor and/or
(ii) such other security as shall be satisfactory to Third Tier Sublessor;
(d) Prior to the commencement of any Alteration, Third Tier Sublessee
shall furnish Third Tier Sublessor with certificates of insurance as shall be
reasonably satisfactory to Third Tier Sublessor, as to coverage and insurer (who
shall be licensed to do business in the State of New York), including, but not
limited to, liability, property damage, and workmen's compensation insurance to
protect Third Tier Sublessor, Sub-sublessor, Prime Sublessor, Groundlessor and
Third Tier Sublessee during the period of the performance of such Alteration;
(e) All such Alterations shall be performed in a good and workmanlike
manner and in compliance with all Legal Requirements and with all requirements
of any insurance policies affecting the Premises or the Building and so as to
cause as little interference as possible with Groundlessor's, Prime Sublessor's,
Sub-sublessor's or Third Tier Sublessor's, or the sublessee's of any of them,
use, occupancy and enjoyment of the Building or the premises of which the
Premises are a part; and
(f) Third Tier Sublessee, at its sole expense, shall obtain all
municipal and other governmental licenses, permits, authorizations, approvals,
and certificates required in connection with such Alteration.
9.02 Third Tier Sublessor shall have no obligations whatsoever to make
any repairs or Alterations in or to the Premises, any systems serving the
Premises, or any equipment, fixtures or furnishings in the Premises, or to
comply with any violations of law with respect thereto, or to restore the
Premises in the event of a fire or other casualty therein or to perform any
other duty with respect to the Premises which (x) Sub-sublessor is required to
perform under the Sub-sublease, (y) Prime Sublessor is required to perform under
the Prime Sublease and (z) Groundlessor is required to perform under the Major
Ground Lease. Third Tier Sublessee shall look solely to Sub-sublessor, Prime
Sublessor and Groundlessor for the making of any and all repairs in the Premises
and the performance of any and all such other work and responsibilities and only
to the extent required by the terms of, respectively, the Sub-sublease, the
Prime Sublease and the Major Ground Lease.
9.03 Third Tier Sublessee will not create or permit to be created or
to remain, and will discharge, any lien, encumbrance or charge (levied on
account of any tax payable by Third Tier
Sublessee or any mechanic's or materialman's lien by reason of work, labor,
services or materials supplied or claimed to be supplied to Third Tier
Sublessee, or anyone else in the Premises, or any part thereof, or otherwise)
which might be or become a lien, encumbrance or charge upon the Building, the
Premises or any part thereof or the income therefrom. If any such mechanic's
or materialman's lien shall at any time be filed against the Building, the
Premises or any part thereof, Third Tier Sublessee, within fifteen (15) days
after notice of the filing thereof, will cause the same to be discharged of
record by payment, deposit, bond, order of a court of competent jurisdiction
or otherwise.
10. INSURANCE.
10.01 Third Tier Sublessee, at Third Tier Sublessee's sole
expense, shall maintain for the benefit of Third Tier Sublessor, Sub-sublessor,
Prime Sublessor and Groundlessor such policies of insurance required by the Sub-
sublease, the Prime Sublease and/or the Major Ground Lease with respect to the
Premises which shall be reasonably satisfactory to Third Tier Sublessor as to
coverage and insurer (who shall be licensed to do business in the State of New
York) provided that such insurance shall at a minimum include comprehensive
general liability insurance with an aggregate liability amount, on an occurrence
basis, of not less than $3,000,000 combined single limit, protecting and
indemnifying Third Tier Sublessor, Sub-sublessor, Prime Sublessor, Groundlessor
and Third Tier Sublessee against any and all claims and liabilities for injury
or damage to persons or property, occurring upon in or about the Premises, and
the public portions of the Building, caused by or resulting from or in
connection with any act or omission of Third Tier Sublessee, Third Tier
Sublessee's employees, agents or invitees.
10.02 Nothing contained in this Third Tier Sublease shall relieve
Third Tier Sublessee from any liability as a result of damage from fire or other
casualty, but each party shall look first to any insurance in its favor before
making any claim against the other party for recovery for loss or damage
resulting from fire or other casualty. To the extent that such insurance is in
force and collectible and to the extent permitted by law, Third Tier Sublessor
and Third Tier Sublessee each hereby releases and waives all right to recovery
against the other or anyone claiming through or under the other by way of
subrogation or otherwise. The foregoing release and waiver shall be in force
only if the insurance policies of Third Tier Sublessor and Third Tier Sublessee
provide that such release or waiver does not invalidate the insurance; and each
party agrees to use its best efforts to include such a provision in its
applicable insurance policies. If the inclusion of said provision would involve
an additional expense, the party requiring such provision to be inserted in the
other's policy shall pay the cost thereof, unless it elects to waive such
requirement.
11. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES.
11.01 Third Tier Sublessee shall not, either voluntarily or by
operation of law, assign, sell, encumber, pledge or otherwise transfer all or
any part of Third Tier Sublessee's leasehold estate hereunder, or permit the
Premises to be occupied by anyone other than Third Tier Sublessee or Third Tier
Sublessee's employees, or sublet the Premises or any portion thereof,
without Third Tier Sublessor's, Sub-sublessor's, Prime Sublessor's and
Groundlessor's prior written consent in each instance. If Third Tier
Sublessee is a corporation or is an unincorporated association or
partnership, the transfer, issuance, assignment or hypothecation of any stock
or interest in such corporation, association or partnership in the aggregate
in excess of twenty-five percent (25%) shall be deemed an assignment within
the meaning and provisions of this Article. Any consent by Third Tier
Sublessor, Sub-sublessor, Prime Sublessor and Groundlessor as hereinabove
required shall not excuse Third Tier Sublessee from its obligation to obtain
the express written consent of Third Tier Sublessor, Sub-sublessor, Prime
Sublessor and Groundlessor to any further action or matter with respect to
which the consent of Third Tier Sublessor, Sub-sublessor, Prime Sublessor and
Groundlessor is hereinabove required. If Third Tier Sublessor,
Sub-sublessor, Prime Sublessor and Groundlessor consent to an assignment of
this Third Tier Sublease or a subletting of the Premises, no such assignment
or subletting shall be, or be deemed to be, effective until the following
conditions have been met:
(i) in the case of an assignment, the assignee shall have
assumed in writing, directly for the benefit of Third Tier Sublessor, all of the
obligations of Third Tier Sublessee hereunder and Third Tier Sublessor shall
have been furnished, prior to the effective date of such assignment, with a
duplicate original of the agreement of assignment and assumption, in form and
substance satisfactory to Third Tier Sublessor; and
(ii) in the case of subletting, Third Tier Sublessor shall have
been furnished with a duplicate original of the sublease, prior to the
commencement of the term of such sublease, which sublease shall (a) be in form
and substance satisfactory to Third Tier Sublessor; (b) be subject and
subordinate to all of the terms, covenants and conditions of this Third Tier
Sublease, the Sub-sublease, the Prime Sublease and the Major Ground Lease; and
(c) restrict the right of the subtenant thereunder to assign such sublease or
further sublet its subleased premises without the prior written consent of Third
Tier Sublessor, Sub-sublessor, Prime Sublessor and Groundlessor in each
instance.
Notwithstanding Third Tier Sublessor's, Sub-sublessor's, Prime Sublessor's and
Groundlessor's consent to any such assignment or subletting, the provisions of
this subsection shall be applicable to each and every subsequent assignment or
subletting, and Third Tier Sublessee shall not be released from any of its
obligations hereunder.
11.02 If this Third Tier Sublease be assigned or if the Premises
or any part thereof be further sublet or occupied by anybody other than Third
Tier Sublessee, Third Tier Sublessor may, after default by Third Tier Sublessee,
collect rent from the assignee, subtenant or occupant, and apply the net amount
collected to the Fixed Rent, Additional Rent and other charges herein reserved,
but no such assignment, subletting, occupancy or collection shall be deemed a
waiver of Third Tier Sublessee's covenants under this Article 11, or the
acceptance by Third Tier Sublessor of the assignee, subtenant or occupant as
tenant hereunder or a release of Third Tier Sublessee from the further
performance by Third Tier Sublessee of any of the terms, covenants and
conditions of this Third Tier Sublease on the part of Third Tier Sublessee to be
performed hereunder.
11.03 Third Tier Sublessee shall pay on demand the costs and
expenses incurred by Third Tier Sublessor, Sub-sublessor, Prime Sublessor and
Groundlessor, including, without limitation, architect, engineer and attorneys'
fees and disbursements, and a reasonable administrative fee, in connection with
any proposed or actual assignment of this Third Tier Sublease or subletting of
the Premises, or any part thereof, and the review and/or preparation of
documents in connection therewith.
12. DEFAULT.
12.01 This Third Tier Sublease and the Term and estate hereby
granted are subject to the following limitations as modified by the provisions
of Article 15 below:
(a) if Third Tier Sublessee shall fail to pay when due any Rent or
any other sum or amount Third Tier Sublessee may be required to pay hereunder;
or
(b) if Third Tier Sublessee shall default in the observance or
performance of any term, covenant or condition of this Third Tier Sublease on
Third Tier Sublessee's part to be observed, performed or complied with (other
than the payment of Fixed Rent and Additional Rent and other amounts payable
hereunder) and Third Tier Sublessee shall fail to remedy such default within ten
(10) days thereafter, or, if such default is of such a nature that for reasons
beyond Third Tier Sublessee's control it cannot be completely remedied within
said period of ten (10) days, then if Third Tier Sublessee (i) shall not
promptly advise Third Tier Sublessor in writing of Third Tier Sublessee's
intention to duly institute all steps necessary to remedy such situation,
(ii) shall not promptly institute and thereafter diligently prosecute to
completion all steps necessary to remedy the same and (iii) shall not remedy the
same within a reasonable time after the date of default; or
(c) if any event shall occur or any contingency shall arise whereby
this Third Tier Sublease or the estate hereby granted or the unexpired balance
of the Term would, by operation of law or otherwise, devolve upon or pass to any
person or entity other than Third Tier Sublessee, except as is expressly
permitted hereunder; or
(d) if Third Tier Sublessee shall fail to move into or take
possession of the Premises within thirty (30) days after the Commencement Date
or if the Premises shall thereafter become vacant, deserted or abandoned; or
(e) if there shall occur any default under the Sub-sublease, the
Prime Sublease or the Major Ground Lease or there shall occur any event which
with notice or passage of time or both would constitute a default under the Sub-
sublease, the Prime Sublease or the Major Ground Lease, which is due to any act
or omission of Third Tier Sublessee; or
(f) if Third Tier Sublessee shall default in the observance or
performance of any term, covenant or condition on Third Tier Sublessee's part to
be observed or performed under any other lease or sublease with Third Tier
Sublessor, Sub-sublessor, the Prime Sublessor or the Groundlessor and such
default shall continue beyond any applicable grace period set forth in such
other lease or sublease for the remedying of such default; or
(g) if any execution or attachment shall be issued against Third Tier
Sublessee or any of Third Tier Sublessee's Property whereupon the Premises shall
be taken or occupied or attempted to be taken or occupied by someone other than
Third Tier Sublessee, and such execution or attachments shall not have been
vacated and shall continue for a period of thirty (30) days;
then, in any of said events, Third Tier Sublessor may give to Third Tier
Sublessee notice of its intention and election to end the Term at the expiration
of three (3) days from the date of the giving of such notice, and, in the event
such notice is given, this Third Tier Sublease and the Term and estate hereby
granted (whether or not the Term shall have commenced) shall terminate upon the
expiration of said three (3) days with the same force and effect as if that day
were the Expiration Date, provided, however, that Third Tier Sublessee shall be
and remain liable for the performance of all of its obligations hereunder and
for damages as provided in this Third Tier Sublease.
12.02 Except as otherwise provided for herein, if Third Tier
Sublessee shall default in the payment when due of any Rent or other amount
Third Tier Sublessee may become obligated to pay hereunder, or if this Third
Tier Sublease and the Term shall terminate as provided in subsection 12.01 above
then:
(a) Third Tier Sublessor and Third Tier Sublessor's agents may
immediately, or at any time after such default (and expiration of the applicable
grace period, if any) or after the date upon which this Third Tier Sublease and
the Term shall terminate, re-enter the Premises or any part thereof, without
notice, whether by summary proceedings or by any other permitted action or
proceeding, or by force or otherwise (without being liable to indictment,
prosecution or for damages therefor), and may repossess the Premises and
dispossess Third Tier Sublessee and any other persons from the Premises and
remove any and all of its or their property and effects from the Premises. In
no event shall any such re-entry be deemed an acceptance of Third Tier
Sublessee's surrender of this Third Tier Sublease; and
(b) Third Tier Sublessor, at Third Tier Sublessor's option, may relet
the whole or any part or parts of the Premises from time to time, either in the
name of Third Tier Sublessor or otherwise, to such tenant or tenants, for such
term or terms, at such rental or rentals and upon such other terms and
conditions, which may include concessions and free rent periods, as Third Tier
Sublessor, in its sole discretion, may determine. Third Tier Sublessor shall
have no obligation to relet the Premises or any part thereof and shall in no
event be liable for refusal or failure to collect any rent due upon any such
reletting and no such refusal or failure shall operate to relieve Third Tier
Sublessee from any liability under this Third Tier Sublease or otherwise affect
any such
liability. Third Tier Sublessor, at its option, may make such repairs,
alterations, additions, improvements, decorations and other physical changes
in and to the Premises as Third Tier Sublessor, in its sole discretion, may
consider advisable in connection with any such reletting or proposed
reletting, without relieving Third Tier Sublessee of any liability under this
Third Tier Sublease or otherwise affecting any such liability.
12.03 Third Tier Sublessee, on its own behalf and on behalf of all
persons claiming through or under Third Tier Sublessee, including all creditors,
does hereby waive any and all rights and privileges, to the extent permitted by
law, which Third Tier Sublessee and all such persons might otherwise have under
any present or future law to (i) the service of any notice of intention to re-
enter or to institute legal proceedings to that end which may otherwise by
required to be given under any present or future law, (ii) to redeem the
Premises, (iii) to re-enter or repossess the Premises, or (iv) to restore the
operation of this Third Tier Sublease, after Third Tier Sublessee shall have
been dispossessed by a judgment or by warrant of any court or judge, or after
any re-entry by Third Tier Sublessor, or after any termination of this Third
Tier Sublease and the Term, whether such dispossession, re-entry or termination
shall be by operation of law or otherwise. The words "re-enter," "re-entry,"
and "re-entered" as used in this Third Tier Sublease shall not be deemed to be
restricted to their technical legal meanings.
12.04 In the event of any breach or threatened breach by Third
Tier Sublessee or any persons claiming through or under Third Tier Sublessee of
any of the terms, covenants or conditions contained in this Third Tier Sublease,
Third Tier Sublessor (i) shall be entitled to enjoin such breach or threatened
breach and (ii) shall have the right to invoke any right and remedy allowed at
law or in equity or by statute or otherwise as if re-entry, summary proceedings
or other specific remedies were not provided for in this Third Tier Sublease.
12.05 If this Third Tier Sublease and the Term shall terminate as
provided in subsection 12.01 above, or by or under any summary proceeding or any
other action or proceeding or if Third Tier Sublessor shall re-enter the
Premises as hereinabove provided or by or under any summary proceeding or any
other action or proceeding, then in any of said events:
(a) Subtenant shall pay to Third Tier Sublessor all Fixed Rent,
Additional Rent and other amounts payable by Third Tier Sublessee hereunder to
the date upon which this Third Tier Sublease and the Term shall have terminated
or to the date of re-entry upon the Premises by Third Tier Sublessor, as the
case may be;
(b) Third Tier Sublessor shall be entitled to retain all monies, if
any, paid by Third Tier Sublessee to Third Tier Sublessor, whether as advance
Rent, security or otherwise, but such monies shall be credited by Third Tier
Sublessor against any Rent due at the time of such termination or re-entry or,
at Third Tier Sublessor's option, against any damages payable by Third Tier
Sublessee;
(c) Third Tier Sublessee shall be liable for and shall pay to Third
Tier Sublessor, as damages, any deficiency between the Fixed Rent and Additional
Rent payable hereunder for the period which otherwise would have constituted the
unexpired portion of the Term (conclusively presuming the Additional Rent to be
at the same rate as was payable for the year immediately preceding such
termination or re-entry) and the net amount, if any, of rents ("NET RENT")
collected under any reletting effected pursuant to the provisions of subsection
12.02 for any part of such period (after first deducting from the rents
collected under any such reletting all of the Third Tier Sublessor's expenses in
connection with the termination of this Third Tier Sublease or Third Tier
Sublessor's re-entry upon the Premises and in connection with such reletting
including all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, alteration or similar costs and other expenses of preparing the
Premises for such reletting). Any such deficiency shall be paid in monthly
installments by Third Tier Sublessee on the days specified in this Third Tier
Sublease for the payment of installments of Fixed Rent and Additional Rent.
Third Tier Sublessor shall be entitled to recover from Third Tier Sublessee each
monthly deficiency as the same shall arise and no suit to collect the amount of
the deficiency for any month shall prejudice Third Tier Sublessor's right to
collect the deficiency for any subsequent month by a similar proceeding.
Alternatively, suit or suits for the recovery of such deficiencies may be
brought by Third Tier Sublessor from time to time at its election;
(d) In the event that Third Tier Sublessor shall not have collected
any monthly deficiencies as aforesaid, Third Tier Sublessor shall be entitled to
recover from Third Tier Sublessee, and Third Tier Sublessee shall pay to Third
Tier Sublessor, on demand, as and for liquidated and agreed final damages, a sum
equal to the amount by which the Fixed Rent and Additional Rent payable
hereunder for the period which otherwise would have constituted the unexpired
portion of the Term (conclusively presuming the Additional Rent to be at the
same rate as was payable for the year immediately preceding such termination or
re-entry) exceeds the then fair and reasonable rental value of the Premises for
the same period, both discounted to present worth at the rate of four percent
(4%) per annum. If before presentation of proof of such liquidated damages to
any court, commission or tribunal, the Premises, or any part thereof, shall have
been relet by Third Tier Sublessor for the period which otherwise would have
constituted the unexpired portion of the Term, or any part thereof, the amount
of rent upon such reletting shall be deemed, prima facie, to be the fair and
reasonable rental value for the part or the whole of the Premises so relet
during the term of the reletting; and
(e) In no event shall Third Tier Sublessee be entitled to receive any
excess of Net Rent over the sums payable by Third Tier Sublessee to Third Tier
Sublessor hereunder, and in no event shall Third Tier Sublessee be entitled in
any suit for the collection of damages pursuant to this Article to a credit in
respect of any Net Rent from a reletting except to the extent actually received
by Third Tier Sublessor prior to the commencement of such suit.
12.06 (a) If this Third Tier Sublease be terminated as provided
in subsection 12.01 or by any summary proceeding or any other action or
proceeding, or if Third Tier Sublessor shall
reenter the Premises, Third Tier Sublessee covenants and agrees, that,
notwithstanding anything to the contrary contained in this Third Tier
Sublease:
(i) the Premises shall be, upon such earlier termination or re-
entry, in the same condition as that in which Third Tier Sublessee has agreed to
surrender them to Third Tier Sublessor on the Expiration Date;
(ii) Third Tier Sublessee, on or before the occurrence of any
event of default, shall have performed every covenant contained in this Third
Tier Sublease with respect to the making or restoration of all Alterations; and
(iii) for the breach of either clause (i) or (ii) of
subsection 12.06(a) above, or both, Third Tier Sublessor shall be entitled
immediately, without notice or other action by Third Tier Sublessor, to recover,
and Third Tier Sublessee shall pay, as and for liquidated damages therefor the
then cost of performing such covenant, plus interest thereon at the rate
provided in Section 3.03 hereof for the period between the occurrence of any
event of default and the time when any such work or act should have been
performed under the other provisions of this Third Tier Sublease had such event
of default not occurred.
(b) Each and every covenant contained in this subsection 12.06 shall
be deemed separate and independent of every other provision of this Third Tier
Sublease and the use and occupancy of the Premises by Third Tier Sublessee, and
the performance of any such covenant shall not be considered to be Rent or the
payment of any other amount for the use of the Premises. It is understood that
the consideration for the covenants in this subsection is the making of this
Third Tier Sublease, and damages for failure to perform the same shall be deemed
to be in addition to and separate and independent from the damages accruing by
reason of default in observing any other covenant contained in this Third Tier
Sublease.
12.07 Nothing herein contained shall be construed as limiting or
precluding the recovery by Third Tier Sublessor against Third Tier Sublessee of
any sums or damages to which, in addition to the damages particularly provided
above, Third Tier Sublessor may lawfully be entitled by reason of any default
hereunder on the part of Third Tier Sublessee.
13. BANKRUPTCY.
13.01 Notwithstanding any other provision of this Third Tier
Sublease, Third Tier Sublessor may cancel this Third Tier Sublease by written
notice to Third Tier Sublessee within a reasonable period of time after the
happening of either one or both of the following events: (i) a case is
commenced in bankruptcy or under the laws of any state naming Third Tier
Sublessee as debtor; and (ii) Third Tier Sublessee makes an assignment or any
other arrangement for the benefit
of creditors under any state statute. Neither Third Tier Sublessee nor any
person claiming through or under Third Tier Sublessee, or by reason of any
statute or order of court, shall therewith be entitled to possession of the
Premises but shall forthwith quit and surrender the Premises.
13.02 Notwithstanding any other provision of this Third Tier
Sublease, if this Third Tier Sublease shall terminate pursuant to subsection
13.01 above, Third Tier Sublessor shall be entitled to recover from Third Tier
Sublessee as and for liquidated damages an amount equal to the difference
between the Rent receivable hereunder for the unexpired portion of the Term and
the fair and reasonable rental value of the Premises for the same period. In
the computation of such damages, the difference between any installment of Rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the Premises for the period for which such installment was
payable shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If the Premises or any part thereof be relet by Third
Tier Sublessor for the unexpired term of this Third Tier Sublease, or any part
thereof, before presentation of proof of such liquidation damages to any court,
commission or tribunal, the amount of Rent reserved upon such reletting shall be
deemed to be the fair and reasonable rental value for the part or the whole of
the Premises so relet during the term of the reletting. Nothing herein
contained shall limit or prejudice the right of Third Tier Sublessor to prove
for and obtain as liquidated damages by reason of such termination an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
13.03 If, at any time, (i) Third Tier Sublessee shall be comprised
of two or more persons or entities; (ii) any of Third Tier Sublessee's
obligations under this Third Tier Sublease shall have been guaranteed by any
person or entity other than Third Tier Sublessee; or (iii) Third Tier
Sublessee's interest in this Third Tier Sublease shall have been assigned, the
word "Third Tier Sublessee," as used in subsections 13.01 and 13.02 above, shall
be deemed to mean Third Tier Sublessee or any one or more other persons or
entities primarily or secondarily liable for the performance of Third Tier
Sublessee's obligations under this Third Tier Sublease.
14. INDEMNIFICATION.
14.01 Third Tier Sublessor, Sub-sublessor, Prime Sublessor,
Groundlessor, their respective employees, agents, contractors, licensees and
invitees, shall not be liable to Third Tier Sublessee, its employees, agents,
contractors, licensees or invitees, and Third Tier Sublessee shall indemnify and
hold harmless Third Tier Sublessor, Sub-sublessor, Prime Sublessor and
Groundlessor, and their respective employees, agents, contractors, licensees and
invitees, from and against any and all loss, cost, liability, claim, damage and
expense, including, without limiting the generality of the foregoing, attorneys'
fees and expenses and court costs, penalties and fines, incurred in connection
with or arising from any injury to Third Tier Sublessee or any other person, or
for any damages to, or loss (by theft or otherwise) of, any of the property of
Third Tier Sublessee and/or any other person, irrespective of the cause of such
injury, damage or loss and whether occurring in or about the Premises or the
Building. The foregoing shall not be deemed to affect the
liability of Third Tier Sublessor, if any, with respect to any of the
foregoing if caused by the gross negligence of Third Tier Sublessor without
contributory negligence on the part of Third Tier Sublessee or any other
party.
14.02 Third Tier Sublessee shall indemnify and hold harmless
Third Tier Sublessor, Sub-sublessor, Prime Sublessor and Groundlessor, and their
respective employees, agents, contractors, licensees and invitees, from and
against any and all loss, cost, liability, claims, damage and expenses,
including, without limiting the generality of the foregoing, attorneys' fees and
expenses and court costs, penalties and fines, incurred in connection with or
arising from (i) any default by Third Tier Sublessee in the observance or
performance of, or compliance with, any of the terms, covenants or conditions of
this Third Tier Sublease, the Sub-Sublease, the Prime Sublease or the Major
Ground Lease on Third Tier Sublessee's part to be observed, performed or
complied with, (ii) the use or occupancy or manner of use or occupancy of the
Premises by Third Tier Sublessee or any person claiming through or under Third
Tier Sublessee or the exercise by Third Tier Sublessee or any person claiming
through or under Third Tier Sublessee of any rights granted to Third Tier
Sublessee hereunder, including, without limiting the generality of the
foregoing, those rights provided under Article 6 above, (iii) any acts,
omissions or negligence of Third Tier Sublessee or any person claiming through
or under Third Tier Sublessee, or the employees, agents, contractors, licensees
or invitees of Third Tier Sublessee or any such person, in or about the Premises
or the Building either prior to, during, or after the termination of this Third
Tier Sublease, or (iv) the condition of the Premises. If any action or
proceeding shall be brought against Third Tier Sublessor, Sub-sublessor, Prime
Sublessor or Groundlessor by reason of any such claim, Third Tier Sublessee,
upon notice from Third Tier Sublessor, Sub-sublessor, Prime Sublessor and
Groundlessor, shall resist and defend such action or proceeding and employ
counsel therefor satisfactory to Third Tier Sublessor. Third Tier Sublessee
shall pay to Third Tier Sublessor on demand all sums which may be owing to Third
Tier Sublessor, Sub-sublessor, Prime Sublessor and Groundlessor by reason of
the provisions of this subsection. Third Tier Sublessee's obligations under
this subsection shall survive the Expiration Date or earlier termination of this
Third Tier Sublease.
15. TIME LIMITS.
15.01 Except with respect to actions to be taken by Third Tier
Sublessee for which shorter time limits are specifically set forth in this Third
Tier Sublease, which time limits shall control for the purposes of this Third
Tier Sublease, the time limits provided in the Sub-sublease, the Prime Sublease
and the Major Ground Lease for the giving or making of any Notice (as
hereinafter defined) by the tenant thereunder to Sub-sublessor, Prime Sublessor
and Groundlessor, as the case may be, the holder of any mortgage or any other
party, or for the performance of any act, condition or covenant by the tenant
thereunder, or for the exercise of any right, remedy or option by the tenant
thereunder, are changed for the purposes of this Third Tier Sublease, by
shortening the same in each instance by (i) forty (40) days with respect to all
such periods of sixty (60) or more days, (ii) fifteen (15) days with respect to
all such periods of thirty (30) or more days but less than sixty (60) days,
(iii) ten (10) days with respect to all such periods of twenty (20) or more but
less than thirty (30) days, and (iv) three (3) days with respect to all such
periods of less than twenty (20) days.
15.02 Except with respect to actions to be taken by Third Tier
Sublessor for which longer time limits are specifically set forth in this Third
Tier Sublease, which time limits shall control for the purposes of this Third
Tier Sublease, the time limits provided in the Sub-sublease, the Prime Sublease
and the Major Ground Lease for the giving or making of any Notice by Sub-
sublessor, Prime Sublessor and Groundlessor, as the case may be, or the
performance of any act, covenant or condition by Sub-sublessor, Prime Sublessor
and Groundlessor, as the case may be, or for the exercise of any right, remedy
or option by Sub-sublessor, Prime Sublessor and Groundlessor, as the case may
be, thereunder, are changed for the purposes of this Third Tier Sublease, by
lengthening the same in each instance by (i) fifteen (15) days with respect to
all such periods of sixty (60) or more days, (ii) ten (10) days with respect to
all such periods of thirty (30) or more but less than sixty (60) days,
(iii) seven (7) days with respect to all such periods of twenty (20) or more but
less than thirty (30) days, and (iv) three (3) days with respect to all such
periods of less than twenty (20) days.
16. REMEDIES CUMULATIVE.
16.01 Each right and remedy of Third Tier Sublessor under this
Third Tier Sublease shall be cumulative and be in addition to every other right
and remedy of Third Tier Sublessor under this Third Tier Sublease and now or
hereafter existing at law or in equity, by statute or otherwise.
17. CASUALTY AND CONDEMNATION.
17.01 Subject to the terms of the Sub-sublease, the Prime Sublease
and the Major Ground Lease, in the event of any taking by governmental or public
authority of all or any part of the Premises, Third Tier Sublessee hereby waives
and relinquishes any and all claims to any award or damages for any such taking
of the Premises, including, without limiting the generality of the foregoing,
any claim for the value of the unexpired term of this Third Tier Sublease or the
value of any furniture, furnishings and trade fixtures installed by Third Tier
Sublessee in the Premises.
17.02 If the term of the Sub-sublease is terminated as provided
therein, or at the election of either party thereto pursuant to the terms
thereof, as a result of any casualty or condemnation affecting the Building or
any portion thereof, this Third Tier Sublease shall thereupon be terminated ipso
facto without any liability of Third Tier Sublessor to Third Tier Sublessee by
reason of such early termination. No event of casualty or condemnation
affecting the Premises shall result in any right or option on the part of the
Third Tier Sublessee hereunder to terminate this Third Tier Sublease, unless
Third Tier Sublessor shall have the right and option to terminate the Sub-
sublease as a result of such casualty or condemnation, and then only to the
extent that Third Tier Sublessee shall have exercised such right and option
within the time limits and as specifically provided for herein.
18. QUIET ENJOYMENT.
18.01 Third Tier Sublessor covenants that, as long as Third Tier
Sublessee shall pay the Fixed Rent and Additional Rent and all other amounts
Third Tier Sublessee shall be required to pay hereunder and shall duly observe,
perform and comply with all of the terms, covenants and conditions of this Third
Tier Sublease on its part to be observed, performed or complied with, Third Tier
Sublessee shall, subject to all of the terms of the Major Ground Lease, the
Prime Sublease, the Sub-sublease and this Third Tier Sublease, peaceably have,
hold and enjoy the Premises during the Term without molestation or hindrance by
Third Tier Sublessor.
19. RELEASE OF THIRD TIER SUBLESSOR.
19.01 The term "Third Tier Sublessor", as used in this Third Tier
Sublease so far as covenants or obligations on the part of Third Tier Sublessee
are concerned, shall be limited to mean and include only the owner or owners at
the time in question of the tenant's interest under the Sub-sublease, and in the
event of any transfer or transfers of the tenant's interest in the Sub-sublease,
Third Tier Sublessor herein named (and in case of any subsequent transfer or
conveyance, the then transferor of the tenant's interest in the Sub-sublease)
shall be automatically freed and relieved from and after the date of such
transfer of all liability with respect to the performance of any covenants or
obligations on the part of Third Tier Sublessor contained in this Third Tier
Sublease theretofore and thereafter to be performed.
20. SURRENDER OF PREMISES.
20.01 Third Tier Sublessee shall, no later than the termination of
this Third Tier Sublease and in accordance with all of the terms of this Third
Tier Sublease, the Sub-sublease, the Prime Sublease and the Major Ground Lease,
vacate and surrender to Third Tier Sublessor the Premises, together with all
Alterations, in good order, condition and repair, reasonable wear and tear
excepted. Tenant's obligation to observe or perform this covenant shall survive
the termination of this Third Tier Sublease.
20.02 Third Tier Sublessee expressly waives, for itself and for
any person claiming through or under Third Tier Sublessee, any rights which
Third Tier Sublessee or any such person may have under the provisions of Section
2201 of the New York Civil Practice Law and Rules and any successor law of like
import in force in connection with any holdover summary proceedings which Third
Tier Sublessor may institute to enforce the foregoing provisions of this Article
20.
21. ESTOPPEL CERTIFICATES.
21.01 At any time and from time to time within ten (10) days after
a written request from Third Tier Sublessor, Third Tier Sublessee shall execute,
acknowledge and deliver to Third Tier Sublessor a written statement certifying
(i) that this Third Tier Sublease has not been modified and is in full force and
effect or, if there has been a modification of this Third Tier Sublease, that
this Third Tier Sublease is in full force and effect as modified, and stating
such modifications, (ii) the dates to which the Fixed Rent, Additional Rent and
other charges hereunder have been paid, (iii) that to the best of Third Tier
Sublessee's knowledge, no defaults exist under this Third Tier Sublease or, if
any defaults do exist, specifying the nature of each such default, and (iv) as
to such other matters as Third Tier Sublessor may reasonably request.
22. SECURITY.
22.01 Simultaneously with the execution of this Third Tier
Sublease, Third Tier Sublessee shall deposit with Third Tier Sublessor the sum
of Eleven Thousand Seven Hundred Twenty-four and 34/100 Dollars ($11,724.34)
("SECURITY DEPOSIT") as security for the full and faithful performance and
observance by Third Tier Sublessee of all of the terms, covenants and conditions
of this Third Tier Sublease on Third Tier Sublessee's part to be performed and
observed. Third Tier Sublessor may use, apply or retain the whole or any part
of the Security Deposit to the extent required for the payment of any Rent and
any other sums as to which Third Tier Sublessee may be in default hereunder and
for any sum which Third Tier Sublessor may expend or may be required to expend
by reason of Third Tier Sublessee's default in respect of any of the terms,
covenants and conditions of this Third Tier Sublease, including, without
limiting the generality of the foregoing, any and all damages or deficiencies in
the reletting of the Premises, whether such damages or deficiencies shall accrue
before or after summary proceedings or other re-entry by Third Tier Sublessor.
If any portion of said Security Deposit is so used or applied by Third Tier
Sublessor, the Third Tier Sublessee shall within five (5) days after receipt of
written demand therefore deposit cash with Third Tier Sublessor in an amount
sufficient to restore the Security Deposit to its original amount and Third Tier
Sublessee's failure to do so shall be a material default of this Third Tier
Sublease. In the event that Third Tier Sublessee shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this Third
Tier Sublease, the Security Deposit, or so much thereof as shall not have been
applied by Third Tier Sublessor as aforesaid, shall be returned to Third Tier
Sublessee after the Expiration Date (or earlier termination of this Third Tier
Sublease) and after delivery of the entire possession of the Premises to Third
Tier Sublessor, without interest. In the event of an assignment by Third Tier
Sublessor of its interest under the Sub-sublease, Third Tier Sublessor shall
have the right to transfer the Security Deposit to the assignee and Third Tier
Sublessor shall thereupon be released by Third Tier Sublessee from all liability
for the return of such Security Deposit. In such event, Third Tier Sublessee
shall look solely to its new sublessor for the return of said Security Deposit.
The foregoing provisions shall apply to every transfer or assignment made of the
Security Deposit to a new sublessor. Third Tier Sublessee further covenants
that it will not assign or encumber or attempt to assign or encumber the
Security Deposit and that neither Third Tier Sublessor nor its successors and
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
23. ACCESS TO PREMISES.
23.01 Third Tier Sublessee shall permit Third Tier Sublessor, Sub-
sublessor, Prime Sublessor and Ground lessor and their authorized
representatives to enter upon the Premises at reasonable times (i) to inspect
the same and to perform any work or make any necessary repairs thereto; and
(ii) to exhibit the Premises to others upon reasonable notice to Third Tier
Sublessee.
24. NOTICES.
24.01 All notices, consents, approvals or other communications
(collectively, a "NOTICE") required to be given under this Third Tier Sublease
or pursuant to law shall be in writing and, unless otherwise required by law,
shall be personally delivered or given by registered or certified mail, return
receipt requested, postage prepaid, to the parties at their respective addresses
set forth above or such other address as either may designate by Notice to the
other. A copy of any Notice to Third Tier Sublessor shall be sent to Parker
Chapin Flattau & Klimpl, LLP, 1211 Avenue of the Americas, New York, New York
10036, Attention: William D. Freedman, Esq. Any Notice given pursuant hereto
shall be deemed to have been received upon delivery, if personally delivered, or
on the 2nd day after the mailing thereof if mailed in accordance with the terms
hereof.
25. SUB-SUBLESSOR'S CONSENT REQUIRED.
25.01 This Third Tier Sublease shall be conditioned upon the
receipt by Third Tier Sublessor of the Ground lessor's, Prime Sublessor's and
Sub-sublessor's written consents to this Third Tier Sublease and the delivery of
a copy of the same to the Third Tier Sublessee within thirty (30) days of the
date of this Third Tier Sublease. Third Tier Sublessee covenants and agrees to
cooperate with Third Tier Sublessor in any request for the Ground lessor's,
Prime Sublessor's and Sub-sublessor's consents and agrees to supply and furnish
any information or documents which may be reasonably requested by Ground lessor,
Prime Sublessor and/or Sub-sublessor.
26. BROKER.
26.01 Third Tier Sublessee represents and warrants to Third Tier
Sublessor that Third Tier Sublessee has dealt with no broker in connection with
this Third Tier Sublease. Third Tier Sublessee shall indemnify and hold
harmless Third Tier Sublessor from and against any and all loss, claims,
liabilities, damages and expenses, including, without limitation, attorneys'
fees and expenses and court costs, arising out of or in connection with any
breach or alleged breach of the above representations or any claim by any person
or entity for brokerage commissions or other compensation in connection with the
consummation of this Third Tier Sublease.
27. WAIVER OF RIGHTS TO JURY AND COUNTERCLAIM.
27.01 Third Tier Sublessor and Third Tier Sublessee each hereby
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties against the other on any matters whatsoever arising out of or in
any way connected with this Third Tier Sublease, the relationship of Third Tier
Sublessor and Third Tier Sublessee, Third Tier Sublessee's use or occupancy of
the Premises, and/or any claim of injury or damage, or for the enforcement of
any remedy under any statute, emergency or otherwise. Third Tier Sublessor and
Third Tier Sublessee further agree that in the event Third Tier Sublessor
commences any summary proceeding for non-payment of Rent, Third Tier Sublessee
will not interpose any counterclaim of whatever nature or description in any
such proceeding.
27.02 Third Tier Sublessee hereby waives its right to interpose or
counterclaim in any summary proceeding instituted to remove Third Tier Sublessee
from the Premises or in any action or proceeding instituted for the collection
of Fixed Rent, Additional Rent or other amounts Third Tier Sublessee is
obligated to pay Third Tier Sublessor hereunder.
27.03 With respect to any provision of this Third Tier Sublease
which provides, in effect, that Third Tier Sublessor shall not unreasonably
withhold or unreasonably delay any consent or any approval, Third Tier Sublessee
in no event, shall be entitled to make, nor shall Third Tier Sublessee make, any
claim, and Third Tier Sublessee hereby waives any claim, for money damages; nor
shall Third Tier Sublessee claim any money damages by way of setoff,
counterclaim or defense, based upon any claim or assertion by Third Tier
Sublessee that Third Tier Sublessor has unreasonably withheld or unreasonably
delayed any consent or approval; but Third Tier Sublessee's sole remedy shall be
an action or proceeding to enforce any such provision, or for specific
performance, injunction or declaratory judgment.
28. THIRD TIER SUBLESSOR'S INABILITY TO PERFORM.
28.01 This Third Tier Sublease and the obligation of Third Tier
Sublessee to pay Rent hereunder and perform all of the other covenants and
agreements hereunder on the part of Third Tier Sublessee to be performed shall
in no way be affected, impaired or excused because Third Tier Sublessor is
unable to fulfill any of its obligations under this Third Tier Sublease
expressly or impliedly to be performed by Third Tier Sublessor or because Third
Tier Sublessor is unable to make, or is delayed in making, any repairs,
additions, alterations, improvement or decorations or is unable to supply, or is
delayed in supplying, any equipment or fixtures, if Third Tier Sublessor is
prevented or delayed from so doing by reason of strikes or labor trouble, or by
accident, adjustment of insurance, or by any cause whatsoever reasonably beyond
Third Tier Sublessor's control, including but not limited to, laws, governmental
preemption in connection with a National Emergency or by reason of any rule,
order or regulation or any federal, state, county or municipal authority or any
department or subdivision thereof or any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
29. MISCELLANEOUS.
29.01 This Third Tier Sublease shall be governed by and construed
in accordance with the laws of the State of New York.
29.02 Third Tier Sublessee shall look solely to Third Tier
Sublessor's estate and interest in the Premises for the satisfaction of any
right of Third Tier Sublessee for the collection of a judgment or other judicial
process or arbitration award requiring the payment of money by Third Tier
Sublessor and not to any other property or assets of Third Tier Sublessor.
29.03 The section headings in this Third Tier Sublease and the
table of contents are inserted only as a matter of convenience for reference and
are not to be given any effect in construing this Third Tier Sublease.
29.04 If any of the provisions of this Third Tier Sublease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Third Tier Sublease, or the
application of such provisions 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 Third Tier Sublease shall be valid
and enforceable to the fullest extent permitted by law.
29.05 All of the terms and provisions of this Third Tier Sublease
shall be binding upon and inure to the benefits of the parties hereto and,
subject to the provisions of Article 11 hereof, their respective successors and
assigns.
29.06 Third Tier Sublessor has made no representations, warranties
or covenants to or with Third Tier Sublessee with respect to the subject matter
of this Third Tier Sublease except as expressly provided herein and all prior
negotiations and agreements relating thereto are merged into this Third Tier
Sublease. This Third Tier Sublease may not be amended or terminated, in whole
or in part, nor may any of the provisions be waived, except by a written
instrument executed by the party against whom enforcement of such amendment,
termination or waiver is sought and unless the same is permitted under the terms
and provisions of the Sub-sublease, the Prime Sublease and the Major Ground
Lease.
IN WITNESS WHEREOF, Third Tier Sublessor and Third Tier Sublessee have
executed this Third Tier Sublease as of the day and year first above written.
THIRD TIER SUBLESSOR:
---------------------
UNITEL VIDEO, INC.
By:/s/ Barry Knepper
Name: Barry Knepper
Title: CEO
THIRD TIER SUBLESSEE:
---------------------
PHOTO-MAGNETIC SOUND STUDIOS INC.
By:/s/ Arthur Williams
Name: Arthur Williams
Title: CEO