EXHIBIT 10.8
AGREEMENT OF SUBLEASE
between
THE NEW YORK JOB DEVELOPMENT AUTHORITY
Sublessor
and
VICTOR CAPITAL GROUP, L.P.
Sublessee
Premises:
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605 Third Avenue
New York, New York
Entire 26th Floor
TABLE OF CONTENTS
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Article PAGE
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1. Demised Premises........................................ 1
2. Term.................................................... 2
3. Rent.................................................... 4
4. Use..................................................... 6
5. Master Lease............................................ 7
6. Services............................................... 10
7. Electricity............................................ 11
8. Alteration and Repairs................................. 12
9. Insurance.............................................. 13
10. Assignment, Subletting and Encumbrances................ 14
11. Indemnification........................................ 17
12. Time Limits............................................ 19
13. Remedies Cumulative.................................... 20
14. Quiet Enjoyment........................................ 20
15. Release of Sublessor................................... 20
16. Surrender of Premises.................................. 21
17. Estoppel Certificates.................................. 22
18. Security............................................... 22
19. Notices................................................ 25
20. Landlord's Consent Required............................ 26
21. Broker................................................. 26
22. Waiver of Rights to Jury and Counterclaim.............. 27
23. Miscellaneous.......................................... 27
24. Underlying Lease Compliance............................ 29
Exhibit "A" - Initial Work
SUBLEASE
SUBLEASE, dated as of July 29, 1997, between NEW YORK JOB DEVELOPMENT
AUTHORITY, a New York public benefit corporation ("Sublessor"), having an office
c/o Empire State Development at 633 Third Avenue, New York, New York 10017 and
VICTOR CAPITAL GROUP, L.P., a New York partnership ("Sublessee"), having an
office at 885 Third Avenue, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, by Agreement of Lease ("Master Lease"), dated as of December 7,
1984, between Fisher 40th & Third Company and Hawaiian Realty, Inc.
("Landlord"), as landlord, and Sublessor, as tenant, Landlord leased to
Sublessor the 26th floor (the "Master Premises") in accordance with the terms of
the Master Lease, of the building ("Building") located at 605 Third Avenue, New
York, New York, a true and complete copy of which Master Lease (with certain
financial terms omitted) has been delivered to Sublessee; and
WHEREAS, Sublessor desires to sublet to Sublessee, and Sublessee desires to
hire from Sublessor, the premises demised under the Master Lease upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
provided, Sublessor and Sublessee hereby agree as follows:
1. DEMISED PREMISES.
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1.1 Sublessor hereby sublets to Sublessee, and Sublessee hereby sublets and
hires from Sublessor, the premises ("Premises") comprising the twenty-sixth
(26th) floor of the Building, for the sublease term hereinafter stated and for
the Fixed Rent and Additional Rent (both as hereinafter
1
defined) hereinafter reserved, subject to all of the terms and provisions
hereinafter provided or incorporated in this Sublease by reference.
1.2 Sublessee agrees to accept the Premises broom clean and vacant, on the
Commencement Date (as hereinafter defined) in its "as-is" condition on the date
thereof.
1.3 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 Sublessee and in conformance with all applicable of the terms and
provisions of this Sublease and the Master Lease.
2. TERM.
----
2.1 The term ("Term") of this Sublease shall commence on the date (the
"Commencement Date") which is the later of (i) the date Sublessor shall have
obtained Landlord's written consent to this Sublease in accordance with the
provisions of Article 15 and a copy of such consent has been delivered to
Sublessee and (ii) the date Sublessor delivers possession of the Premises to
Sublessee in accordance with the terms of this Sublease (the "Availability
Date"), and unless earlier terminated as herein provided, shall expire on April
29, 2000 (the "Expiration Date"). Sublessor and Sublessee agree to confirm the
actual Commencement Date in writing; however, the failure to so confirm shall
have no effect on the Commencement Date.
2.2 If the term of the Master Lease is terminated for any reason prior to
the Expiration Date (subject to the provisions of Sections 5.1 and 2.4 hereof),
this Sublease shall thereupon be terminated ipso facto without any liability of
Sublessor to Sublessee by reason of such early termination. Except as otherwise
expressly provided in this Sublease with respect to those
2
obligations of Sublessee and Sublessor which by their nature or under the
circumstances can only be, or under the provisions of this Sublease may be,
performed after the termination of this Sublease, the Term and estate granted
hereby shall end at noon on the date of termination of this 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, (i) any liability of Sublessee to make any payment under this
Sublease, whether of Fixed Rent, Additional Rent (both as hereinafter defined)
or otherwise, which shall have accrued prior to the expiration or sooner
termination of this Sublease, shall survive the expiration or sooner termination
of this Sublease.
2.3 Sublessee waives the right to recover any damages which may result
from Sublessor's failure to deliver possession of the Premises on the
Commencement Date, except if due to a willful act or omission of Sublessor or
its agents. If Sublessor shall be unable to deliver possession of the Premises
on such scheduled date, and provided Sublessee is not responsible for such
inability to give possession, the Rent reserved and guaranteed to be paid herein
shall not commence until Sublessor shall be able to so deliver possession of the
Premises to Sublessee, and no such failure to deliver possession on such
scheduled date shall in any way affect the validity of this Sublease or the
obligations of Sublessee hereunder or give rise to any claim for damages by
Sublessee or claim for rescission of this Sublease, nor shall the same in any
way be construed to extend the Term. Sublessor shall deliver possession, of the
Premises to Sublessee no later than (10) days after it has obtained the consent
of Landlord hereto. Notwithstanding the foregoing, in the event Sublessor is
unable to deliver possession of the Premises to Sublessee within thirty (30)
days after it has obtained the consent of Landlord hereto due to a ministerial
error, Sublessee shall not be deemed to
3
have waived its rights to recover any damages pursuant to the terms of this
Section 2.3, and Sublessee shall have the right to terminate this Sublease.
2.4 The parties agree that this Article 2 constitutes an express provision
as to the time at which Sublessor shall deliver possession of the Premises to
Sublessee, and Sublessee hereby waives any rights to rescind this Sublease which
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.
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3.1 The rent ("Rent") reserved for the Term shall consist of the
following:
(i) annual fixed rent ("Fixed Rent") at the rate of Three Hundred
Seventy-Three Thousand Nine Hundred and 00/100 Dollars ($373,900.00)
per annum for the period commencing on the Commencement Date and
ending on the day immediately preceding the first anniversary of the
Commencement Date, payable in equal monthly installments of
$31,158.33 each.
(ii) Fixed rent at the rate of Three Hundred Ninety-Two Thousand Five
Hundred Ninety-Five and 00/100 ($392,595.00) per annum for the period
commencing on the first anniversary of the Commencement Date and
ending on the day immediately preceding the second anniversary of the
Commencement Date in equal monthly installments of $32,716.25 each.
4
(iii) Fixed rent at the rate of Four Hundred Eleven Thousand Two Hundred
Ninety and 00/100 ($411,290.00) per annum for the period commencing
on the second anniversary of the Commencement Date and ending on the
Expiration Date in equal monthly installments of $34,274.17 each.
The installments of Fixed Rent and Additional Rent for the calendar
month in which the Commencement Date occurs, prorated as appropriate if the
Commencement Date does not occur on the first day of the month, shall be payable
on the Commencement Date. Subsequent installments of Fixed Rent and Additional
Rent shall be payable on the first day of each subsequent month of the Term; and
(iv) additional rent ("Additional Rent") in the amount of $51,411.25 per
annum for the entire term of this sublease in equal monthly
installments of $4,284.27 shall be paid to Sublessor for the
provision of electricity to the Premises. Sublessor shall have the
same remedies with respect to any default by Sublessee in the payment
of Additional Rent as are provided in this Sublease, the Master Lease
or applicable law with respect to any nonpayment of rent.
(v) Notwithstanding anything contained in this Sublease to the contrary,
Sublessee shall not be responsible for the payment of Fixed Rent for
the three (3) month period commencing on the Commencement Date and
ending three (3) months thereafter.
3.2 The Fixed Rent and, except as otherwise specifically
5
provided in this Sublease including without limitation Section 3.1(v) above, the
Additional Rent, shall be paid by Sublessee to Sublessor at the office of
Sublessor set forth above or such other place as Sublessor may designate in
writing, without prior notice or demand therefor without any abatement,
deduction or setoff. The Fixed Rent and Additional Rent for any month of the
term of this Sublease which does not begin or end on the first or last day of a
calendar month shall be prorated on a daily basis.
3.3 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 date which is ten (10) days after the due date bear interest
at the lesser of (i) two (2%) percent above the alternate base rate or the
equivalent thereof charged by Citibank, N.A. (or any successor thereto) or (ii)
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 Sublease.
4. USE.
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4.1 Sublessee may occupy and use the Premises only for general and
executive offices and uses incidental thereto, and for no other purpose,
provided that any use of the Premises shall in all respects be only as permitted
under the terms and provisions of this Sublease and the Master Lease, including
the rules and regulations under the Master Lease, and any and all laws,
statutes, ordinances, orders, regulations and requirements of all
6
federal, state and local governmental, public or quasipublic 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 (collectively, "Legal
Requirements").
4.2 Sublessee shall not, without the prior consent of Sublessor and
Landlord, knowingly do or permit anything to be done which may result in a
violation of the terms of this Sublease or the Master Lease or which may make
Sublessor liable for any damages, claims, fines, penalties, costs or expenses
thereunder.
5. MASTER LEASE.
------------
5.1 This Sublease and all of Sublessee's rights hereunder are and
shall remain in all respects subject and subordinate to (i) all of the terms and
provisions of the Master Lease, a copy of which (except for the rent and certain
other financial provisions) has been delivered to Sublessee, (ii) any and all
amendments of the Master Lease or supplemental agreements relating thereto
hereafter made between Landlord and Sublessor (copies of which Sublessor agrees
to deliver to Sublessee except for the rent and certain other financial
provisions which may be contained therein), provided, however Sublessor shall
not enter into any such amendments or supplemental agreements that shall (1)
materially adversely affect Sublessee's rights hereunder, (2) increase
Sublessee's obligations hereunder other than in an immaterial way, (3) decrease
the size of the Premises, or (4) shorten the term hereof and (iii) any and all
matters to which the tenancy of Sublessor, as tenant under the Master Lease, is
or may be subordinate. Sublessee shall in no case have any rights under this
Sublease greater than Sublessor's rights as tenant under the Master Lease. The
foregoing provisions shall be self-operative and no
7
further instrument of subordination shall be necessary to effectuate such
provisions unless required by Landlord, in which event Sublessee shall, upon
demand by Landlord at any time and from time to time, execute, acknowledge and
deliver and Landlord any and all instruments that Landlord may deem reasonably
necessary or proper to confirm such subordination of this Sublease, and the
rights of Sublessee hereunder. Sublessee hereby appoints Sublessor its attorney
in fact, coupled with an interest, for the purpose of executing any such
instrument of subordination if Sublessee shall fail to execute, acknowledge
and/or deliver any such instrument of subordination within ten (10) business
days after Landlord's or Sublessor's demand therefor.
5.2 Sublessee acknowledges that in the event of a (i) termination of
the Master Lease, or (ii) re-entry or dispossess by Landlord under the Master
Lease, Landlord shall, take over all of the right, title and interest of
Sublessor hereunder and Sublessee agrees that it shall, attorn to Landlord
pursuant to the then executory provisions of this Sublease, except that Landlord
shall not (i) be liable for any previous act or omission of Sublessor under this
Sublease, (ii) be subject to any offset not expressly provided in this Sublease,
which theretofore accrued to the Sublessee against Sublessor, or (iii) be bound
by any previous modification of this Sublease (which is made without Landlord's
consent) or by any previous prepayment of more than one month's rent.
5.3 Sublessee shall observe and perform for the benefit of Landlord
and Sublessor, each and every term, covenant, condition and agreement of the
Master Lease which Sublessor is required to observe or perform with respect to
the Premises as tenant under the Master Lease, except for the covenants of
Sublessor to pay Landlord the "fixed annual rent" (as such term is defined in
the Master Lease). Except as otherwise specifically provided in
8
this Sublease, all of the terms, covenants, conditions and agreements which
Landlord or Sublessor are required to observe or perform with respect to the
Premises as parties to the Master Lease are hereby incorporated herein by
reference and deemed to constitute terms, covenants, conditions and agreements
which Sublessor and Sublessee are required to observe or perform under this
Sublease as if set forth herein at length, with the exception of those articles
and provisions of the Master Lease which are solely applicable to Landlord or
Sublessor and could not reasonably be interpreted as conferring a benefit or an
obligation upon Sublessee including without limitation Articles 1,4,5, Section
7.02, 7.03, 7.04, 7.05, 7.06. Sublessor may exercise all of the rights, powers,
privileges and remedies reserved to Landlord under the Master Lease to the same
extent as if fully set forth herein at length, including, without limitation,
all releases from liability to Landlord thereunder except as may be provided
otherwise herein, and all rights and remedies arising out of or with respect to
any default by Sublessee in the payment of Rent hereunder or the observance or
performance of the terms, covenants, conditions and agreements of this Sublease
(including these portions of the Master Lease that are incorporated herein). In
the event of any inconsistency between the terms of this Sublease and the Master
Lease, the terms of this Sublease all govern.
5.4 The consent of Landlord shall be required in connection with any
act which requires the consent of Landlord pursuant to the terms of the Master
Lease, notwithstanding that a particular provision herein may not require
Sublessor's consent or states that only Sublessor's consent is required.
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6. SERVICES.
--------
6.1 Except as otherwise specifically provided in this Sublease,
Sublessee shall be entitled during the Term to receive all services, utilities,
repairs and facilities which Landlord is required to provide insofar as such
services, utilities, repairs and facilities pertain to the Premises.
Notwithstanding anything to the contrary in this Sublease, Sublessor shall have
no liability of any nature whatsoever to Sublessee as a consequence of the
failure or delay on the part of Landlord in performing any or all of its
obligations under the Master Lease, unless such failure or delay is caused by
Sublessor, and under no circumstances shall Sublessee have any right to require
or obtain the performance by Sublessor of any obligations of Landlord under the
Master Lease or otherwise. Sublessee's obligations under this Sublease shall
not be impaired, nor shall the performance thereof be excused, because of any
failure or delay on the part of Landlord in performing its obligations under the
Master Lease.
6.2 If at any time during the Term Landlord shall default in any of
its obligations to furnish facilities, services or utilities or to make repairs
to the Premises, then, upon Sublessor's receipt of a written notice from
Sublessee specifying such default, Sublessor shall, at Sublessee's sole cost and
expense, use its reasonable efforts to enforce its rights under the Master
Lease, including, but not limited to giving notices, claims and demands to
Landlord to cause Landlord to cure such default. Any action or proceeding
instituted by Sublessor against Landlord to enforce such rights shall be
conducted at the expense of Sublessee. If, after written request from
Sublessee, Sublessor shall fail or refuse to take appropriate action for the
enforcement of Sublessor's rights against Landlord with respect to the Premises,
Sublessee shall have the right to take such action in its own name, and for such
purpose and only to such
10
extent, all of the rights of Sublessor under the Master Lease (including
Sublessor's arbitration rights, if any) are hereby conferred upon and
conditionally assigned to Sublessee and Sublessee hereby is subrogated to such
rights to the extent that the same shall apply to the Premises. If any such
action against Landlord in Sublessee's name shall be barred by reason of lack of
privity, non-assignability or otherwise, Sublessee may take such action in
Sublessor's name provided Sublessee has obtained the prior written consent of
Sublessor, Sublessor not to unreasonably withhold, condition or delay said
consent, and that copies of all papers and notices of all proceedings shall be
promptly given to Sublessor so that Sublessor may be kept fully informed in
respect thereof. In connection with the foregoing, Sublessee shall indemnify and
hold Sublessor harmless from and against any and all loss, cost, damage, expense
or liability (including, but not limited to, reasonable attorney's fees and
disbursements) incurred by Sublessor by reason of any action by Sublessee
against Landlord to the extent Sublessor's actions or failures to act are not
involved in the subject matter of the dispute, such indemnity shall survive the
Expiration Date or sooner termination of this Sublease.
7. ELECTRICITY.
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7.1 Intentionally Omitted.
---------------------
7.2 Sublessee acknowledges that (i) Sublessor is not responsible for
providing or installing any equipment necessary for Sublessee's electrical
requirements, and (ii) Sublessor shall have no liability to Sublessee for any
loss, damage or expense which Sublessee may sustain or incur by reason of any
change, failure, inadequacy or defect in the supply or character of the
electrical energy furnished to the Premises
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or if the quantity or character of the electrical energy is no longer available
or suitable for Sublessee's requirements.
8. ALTERATION AND REPAIRS.
----------------------
8.1 Sublessee shall make no alterations, installations, additions or
improvements, including Sublessee's initial leasehold improvements
(collectively, "Alterations") in or about the Premises without the prior written
consent of Sublessor and Landlord in each instance, which consent shall not be
unreasonably withheld by Sublessor provided any required consent of Landlord
shall have first been obtained. Sublessor consents to the performance by
Sublessee of the Initial work set forth on the plans annexed hereto as Exhibit
A. Any Alterations consented to by Sublessor shall be performed by Sublessee,
at its sole cost and expense, and in compliance with the following requirements:
(a) Sublessee, at its sole expense, shall comply with all of the provisions
of this Sublease and the Master Lease pertaining to the making of Alterations,
including, without limiting the generality of the foregoing, the provisions
requiring the prior written consent of Landlord before any Alterations may be
made in or about the Premises;
(b) Sublessee shall furnish Sublessor with certificates of insurance in
the same manner as provided in the Master Lease 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 worker's compensation insurance to
protect Sublessor, Landlord, their agents, employees, successors and assigns and
Sublessee during the period of the performance of such Alteration;
12
(c) 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 Sublessor's or its sublessees'
use, occupancy and enjoyment of the premises of which the Premises are a part;
and
(d) Sublessee, at its sole expense, shall obtain all municipal and other
governmental licenses, permits, authorizations, approvals and certificates
required in connection with such Alteration.
8.2 Sublessor shall have no obligations whatsoever to make any repairs
or Alterations in the Premises to any systems serving the Premises or to any
equipment, fixtures or furnishing in the Premises, 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 Landlord is required to perform pursuant to
certain obligations which Landlord has to Sublessor under the Master Lease.
Sublessee shall look solely to Landlord for the making of any and all repairs in
the Premises and the performance of all such other work and responsibilities and
only to the extent required by the terms of the Master Lease.
9. INSURANCE.
---------
9.1 Sublessee, at Sublessee's sole expense, shall maintain for the
benefit of Sublessee, Sublessor and Landlord such policies of insurance required
by the Master Lease or reasonably satisfactory to 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
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comprehensive general liability insurance, in an amount of not less than
$2,000,000, protecting and indemnifying Sublessor, Landlord and Sublessee
against any and all claims and liabilities for injury or damage to persons or
property or for the loss of time or of 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 Sublessee, Sublessee's employees,
agents or invitees. Sublessee shall furnish to Sublessor certificates of
insurance evidencing such coverage prior to the Commencement Date.
9.2 Nothing contained in this Sublease shall relieve Sublessee or
Sublessor from any liability as a result of damage from fire or other casualty,
but each party shall look first to any property 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, Sublessor and
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 Sublessor and Sublessee provide that such release or
waiver does not invalidate the insurance; 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, either
party, at its sole expense, may require such provision to be inserted in the
other's policy.
10. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES.
---------------------------------------
10.1 Except as otherwise provided herein, Sublessee, shall not
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sublease, mortgage, pledge or otherwise encumber all or any part of the
Premises, assign this Sublease (by operation of law or otherwise) or permit the
Premises to be used or occupied by anyone other than Sublessee, without the
prior written approval of Sublessor and Landlord in each instance, which
approval from Landlord shall be granted or withheld in Landlord's discretion in
accordance with the terms of the Master Lease, and from Sublessor shall not be
unreasonably withheld or delayed. If Sublessor consents to an assignment of
this 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) Landlord shall have consented in writing to such assignment or
subletting;
(ii) in the case of an assignment, the assignee shall have assumed in
writing, directly for the benefit of Sublessor, all of the
obligations of Sublessee hereunder and Sublessor shall have been
furnished with a duplicate original of the agreement of assignment
and assumption, in form and substance reasonably satisfactory to
Sublessor; and
(iii) in the case of a subletting, 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 be in form and substance
reasonably satisfactory to Sublessor, and shall be subject and
subordinate to all of the terms, covenants and conditions of this
Sublease and the Master Lease and shall restrict
15
the right of the subtenant thereunder to assign such sublease or
further sublet its subleased premises without Sublessor's prior
consent.
Notwithstanding Sublessor'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 Sublessee shall not be released
from any of its obligations or liabilities hereunder.
10.2 The provisions of Section 10.1 hereof shall not apply to
transactions with a corporation into or with which Sublessee is merged or
consolidated or with an entity to which substantially all of Sublessee's assets
are transferred or, if Sublessee is a partnership, with a successor partnership,
nor shall the provisions of Section 10.1 apply to transactions with an entity
which controls or is controlled by Sublessee or is under common control with
Sublessee. In furtherance of the provisions of this paragraph 10.2, the parties
understand and agree that Sublessee shall have the right to assign this Sublease
to Capital Trust without the consent of Sublessor or Landlord.
10.3 If this Sublease be assigned or if the Premises or any part
thereof be further sublet or occupied by anybody other than Sublessee, Sublessor
may, after default by Sublessee, collect rent from the assignee, subtenant or
occupant, and, if Sublessor does so, it shall 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
Sublessee's covenants under this Article 10, or the acceptance by Sublessor of
the assignee, subtenant or occupant as tenant hereunder or a release of
Sublessee from the further performance by
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Sublessee of any of the terms, covenants and conditions of this Sublease on the
part of Sublessee to be performed hereunder.
10.4 Sublessee shall pay on demand the third-party costs and expenses
reasonably incurred by Sublessor and Landlord, including, without limitation,
reasonable architect, engineer and attorneys' fees and disbursements in
connection with any proposed or actual assignment of this Sublease or subletting
of the Premises or any part thereof and the review and/or preparation of
documents in connection therewith.
10.5 If, with respect to any subletting permitted hereunder, other
than by a sublease contemplated by Section 10.2 hereof, the rents received by
Sublessee under a sublease shall exceed the rents reserved hereunder that are
allocable to the premises sublet, the excess shall be applied by Sublessee to
reasonable brokerage commissions, reasonable legal fees and reasonable
advertising expenses, incurred by Sublessee in connection with and allocable to
the subletting and fifty (50%) percent of any balance of such excess shall be
paid by Sublessee to Sublessor as and when received.
11. Indemnification
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11.1 Sublessor, Landlord, their respective employees, agents,
contractors, licensees and invitees, shall not be liable to Sublessee,
its employees, agents, contractors, licensees or invitees (except if due to an
act or omission of Sublessor, Landlord, their respective employees, agents,
contractors, licensees and invitees, and Sublessee shall indemnify and hold
harmless Sublessor and Landlord and their respective employees, contractors,
licensees or invitees for any and all loss, cost,
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liability, claim, damage and expense, including, without limiting the generality
of the foregoing, reasonable attorneys' fees and expenses and court costs,
penalties and fines incurred in connection with or arising from any injury to
Sublessee or any other person or for any damage to, or loss (by theft or
otherwise) of, any of the property of Sublessee and/or any other person, (i)
irrespective of the cause of such injury, damage or loss if occurring in or
about the Premises, and (ii) to the extent caused by the acts, omissions or
negligence of Sublessee, its employees, agents, contractors, licensees, or
invitees, if occurring in or about the Building.
11.2 Sublessee shall indemnify and hold harmless Sublessor and
Landlord, 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 Sublessee in the observance
or performance of, or compliance with, any of the terms, covenants or conditions
of this Sublease or the Master Lease on 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 Sublessee or any person claiming through or under
Sublessee or the exercise by Sublessee or any person claiming through or under
Sublessee of any rights granted to Sublessee hereunder, including, without
limiting the generality of the foregoing, those rights provided under Article 6
above, (iii) any acts, omissions or negligence of Sublessee or any person
claiming through or under Sublessee, or the employees, agents, contractors,
licensees or invitees of Sublessee (other than Sublessor, its employees, agents
and contractors) or any such person, in or about the Premises or the Building
either prior to, during, or after the termination of this Sublease, or (iv) the
condition of
18
the Premises for which Sublessee is liable. If any action or proceeding shall be
brought against Sublessor or Landlord by reason of any such claim, Sublessee,
upon notice from Sublessor or Landlord, shall resist and defend such action or
proceeding and employ counsel therefor reasonably satisfactory to Sublessor and
Landlord. Sublessee shall pay to Sublessor on demand all sums which may be owing
to Sublessor and Landlord by reason of the provisions of this subsection.
Sublessee's obligations under this subsection shall survive the Expiration Date
or other termination of this Sublease.
12. TIME LIMITS.
-----------
12.1 Except with respect to actions to be taken by Sublessee for which
shorter time limits are specifically set forth in this Sublease, which time
limits shall control for the purposes of this Sublease, the time limits provided
in those portions of the Master Lease that are incorporated herein for the
giving or making of any Notice (as hereinafter defined) by the tenant thereunder
to Landlord, the holder of any leasehold 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 purpose of incorporation into this Sublease, by shortening the
same in each instance by (i) fifteen (15) days with respect to all such periods
of sixty (60) or more days, (ii) seven (7) days with respect to all such periods
of thirty (30) or more days but less than sixty (60) days, (iii) five (5) 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, provided, however, that in no event shall any such period be
shortened to less than five (5) days, so that any Notice may be given or made,
or any
19
act, condition or covenant performed, or option hereunder exercised, by
Sublessor within the time limit relating thereto contained in the Master Lease.
13. REMEDIES CUMULATIVE.
-------------------
13.1 Each right and remedy of Sublessor under this Sublease shall be
cumulative and be in addition to every other right and remedy of Sublessor under
this Sublease and now or hereafter existing at law or in equity, by statute or
otherwise.
14. QUIET ENJOYMENT.
---------------
14.1 Sublessor covenants that, as long as Sublessee shall pay the
Fixed Rent and Additional Rent and all other amounts due hereunder, within
applicable notice and cure periods and shall duly observe, perform, and comply,
within applicable notice and cure periods with all of the terms, covenants and
conditions of this Sublease on its part to be observed, performed or complied
with, Sublessee shall, subject to all of the terms of the Master Lease and this
Sublease, peaceably have, hold and enjoy the Premises during the Term without
molestation or hindrance by Sublessor, except as otherwise provided in Section
5.2 hereof.
15. RELEASE OF SUBLESSOR.
--------------------
15.1 The term "Sublessor", as used in this Sublease shall be limited
to mean and include only the owner or owners at the time in question of the
tenant's interest under the Master Lease, and in the event of any transfer or
transfers of the tenant's interest in the Master Lease,
20
Sublessor herein named (and in case of any subsequent transfer or conveyance,
the then transferor of the tenant's interest in the Master Lease, provided the
transferee has assumed same) 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 Sublessor contained in this
Sublease thereafter to be performed.
16. SURRENDER OF PREMISES.
---------------------
16.1 Sublessee shall, no later than the termination of this Sublease
and in accordance with all of the terms of this Sublease, vacate and surrender
to Sublessor the Premises, together with all Alterations, in good order,
condition and repair, reasonable wear and tear excepted and loss by fire or
other casualty excepted. Sublessee's obligation to observe or perform this
covenant shall survive the termination of this Sublease. Notwithstanding
anything contained herein or in Section 8.04 of the Master Lease to the
contrary, Sublessee shall only be responsible for the removal of the alterations
Sublessee makes to the Premises and shall not be required to remove any
alterations made by Sublessor.
16.2 Sublessee expressly waives, for itself and for any person
claiming through or under Sublessee, any rights which 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 then in force in
connection with any holdover summary proceedings which Sublessor may institute
to enforce the foregoing provisions of this Article 16.
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17. ESTOPPEL CERTIFICATES.
---------------------
17.1 At any time and from time to time within ten (10) days after a
written request from Sublessor, Sublessee shall execute, acknowledge and deliver
to the Sublessor a written statement certifying (i) that this Sublease has not
been modified and is in full force and effect or, if there has been a
modification of this Sublease, that this 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 Sublessee's knowledge, no defaults exist under this Sublease or, if
any defaults do exist, specifying the nature of each such default and (iv) as to
such other matters pertaining to the terms of this Sublease as Sublessor may
reasonably request.
18. SECURITY.
--------
18.1 (a) Simultaneously with the delivery to Sublessee of Landlord's
written consent to this Sublease as set forth in Section 20.1 hereof, Sublessee
shall deposit with Sublessor the sum of $106,327.80 ("Security Deposit") as
security for the faithful performance and observance by Sublessee of all of the
terms, covenants and conditions of this Sublease on Sublessee's part to be
performed and observed. 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 Sublessee may be in default hereunder beyond the
expiration of applicable grace and notice periods and for any sum which
Sublessor may expend or may be required to expend by reason of Sublessee's
default beyond the expiration of applicable grace and notice periods in respect
of any of the terms, covenants and conditions of this Sublease, including,
without limiting the
22
generality of the foregoing, any and all damages and deficiencies in the
reletting of the Premises, whether such damages or deficiencies shall accrue
before or after summary proceedings or other re-entry by Sublessor. In the event
that Sublessee 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 Sublessor as aforesaid,
together with accrued interest thereon, shall be returned to Sublessee promptly
following the Expiration Date or date of earlier termination and delivery of the
entire possession of the Premises to Sublessor. In the event of an assignment by
Sublessor of its interest under the Master Lease, Sublessor shall have the right
to transfer the Security Deposit to the assignee and Sublessor shall, upon
assignee's agreement to the terms contained herein, thereupon be released by
Sublessee from all liability for the return of such Security Deposit. In such
event, Sublessee shall look solely to its new landlord 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 landlord. Sublessee further
covenants that it will not assign or encumber or attempt to assign or encumber
the Security Deposit and that neither Sublessor nor its successors and assigns
shall be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance. The Security Deposit shall be increased annually so that
it shall always be equal to three months' Fixed Rent at the then current rate.
(b) The Security Deposit shall be placed by Sublessor in an interest
bearing account. Interest that accrues thereon shall belong to Sublessee.
Provided Sublessee is not in default hereunder and Sublessee supplies Landlord
with its Tax I.D. Number, interest, less a one percent (1%) administration fee,
shall be paid to Sublessee once annually. The
23
obligation to pay any taxes, whether income or otherwise, related to or
affecting any interest earned on the Security Deposit shall be the sole
responsibility of Sublessee and Sublessee hereby agrees to pay same. Sublessee
represents that its Tax I.D. Number is ###-##-####.
18.2 Sublessee shall have the right, either (i) in lieu of the funds
required to be deposited with Sublessor pursuant to this Article 18 or (ii) at
any time thereafter in substitution for such funds, to deposit and maintain with
Sublessor as the security deposit referred to in this Article 18, an irrevocable
commercial letter of credit in the aggregate amount of $106,327.80, in form and
substance reasonably satisfactory to Sublessor, and issued by a member bank of
the New York Clearing House Association, payable upon the presentation by
Sublessor to such bank in New York City of a sightdraft, along with a certified
statement that Sublessee is in default beyond applicable notice and cure periods
and that Sublessor is therefor entitled to draw on the Letter of Credit pursuant
to the terms of the Lease, which letter of credit shall provide (i) for the
continuance of such credit for the period of at least one (1) year from the date
the same is issued. Sublessee will renew or replace the Letter of Credit at
least 20 days prior to its expiration or Sublessor can draw on the Letter of
Credit and hold the draw as security pursuant to this Article 18. Each letter
of credit to be deposited and maintained with Sublessor (or the proceeds
thereof) shall be held by Sublessor as security for the faithful performance and
observance by Sublessee of the terms, provisions and conditions of this
Sublease, and in the event that (x) any default occurs under this Sublease and
continues beyond the expiration of applicable notice and cure periods, or (y)
Sublessor transfers its right, title and interest under this Sublease to a third
party and the bank issuing such letter of credit does not consent to the
transfer of such letter of credit to such third party and Sublessee does
24
not provide a replacement Letter of Credit prior to such transfer, or (z) notice
is given by the bank issuing such letter of credit that it does not intend to
renew the same, as above provided and Sublessee does not provide a replacement
Letter of Credit, then, in any such event, Sublessor may draw on such letter of
credit, and the proceeds of such letter of credit shall then be held and applied
as security (and be replenished, if necessary) as provided in Section 18.1. In
the event that Sublessee 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 Sublessor as
aforesaid, shall be returned to Sublessee promptly following the Expiration Date
or date of earlier termination and delivery of the entire possession of the
Premises to Sublessor.
19. NOTICES.
-------
19.1 All notices, consents, approvals or other communications
(collectively, a "Notice") required to be given under this Sublease or pursuant
to law shall be in writing and, unless otherwise required by law, shall be given
by registered or certified mail, return receipt requested, postage prepaid,
addressed:
(a) if to Sublessor, at Sublessor's address set forth in this
Sublease or at such other address as Sublessor may designate by Notice to
Sublessee and with copies to (x) Sublessor, at 633 Third Avenue, New York, New
York 10017, Attn.: Chief Financial Officer, and (y) to the address set forth
above, Attn.: General Counsel, or
25
(b) if to Sublessee, at Sublessee's address set forth in this
Sublease, or at such other address as Sublessee may designate by notice to
Sublessor and with copies to
Either party may designate a new address to which Notices may be sent
by Notice to the other party. Any Notice given pursuant hereto shall be deemed
to have been received on the third day after the mailing thereof if mailed in
accordance with the terms hereof.
20. LANDLORD'S CONSENT REQUIRED.
---------------------------
20.1 This Sublease shall be of no force or effect unless and until
Sublessor shall have obtained Landlord's written consent to this Sublease and
delivered to Sublessee an executed copy of such consent. In the event Landlord
shall notify Sublessor that it will not consent to this Sublease, then Sublessor
will promptly notify Sublessee of such fact. In the event that Sublessor has
not obtained the consent from Landlord on or prior to July 31, 1997 Sublessee
shall have the right to terminate this Sublease.
21. BROKER.
------
21.1 Sublessee and Sublessor represent and warrant to each other that
they have not dealt with any broker in connection with this Sublease other than
Insignia/Edward S. Gordon Company, Inc. (the "Broker") and that no broker or
person other than the Broker had any part or was instrumental in any way in
bringing about this transaction. Sublessee and
26
Sublessor shall indemnify and hold each other harmless from and against any and
all loss, claims, liabilities, damages and expenses, including, without
limitation, reasonable 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 other than Broker for
brokerage commissions or other compensation in connection with the consummation
of this Sublease. The provisions of this Article shall survive the expiration or
sooner termination of this Sublease. Sublessor shall pay the Broker any
brokerage commission due the Broker pursuant to a separate agreement in
connection with this Sublease, if any.
22. Waiver of Rights to Jury and Counterclaim.
-----------------------------------------
22.1 Sublessor and 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
Sublease, the relationship of Sublessor and Sublessee, 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. Sublessor
and Sublessee further agree that in the event Sublessor commences any summary
proceeding for non-payment of Rent, Sublessee will not interpose any
counterclaim of whatever nature or description in any such proceeding.
Notwithstanding the foregoing, Sublessee shall be permitted to bring a separate
claim in another action.
23. Miscellaneous.
-------------
23.1 This Sublease shall be governed by and construed in accordance
with the laws of the State of New York.
27
23.2 The section headings in this 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 Sublease.
23.3 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.
23.4 All of the terms and provisions of this Sublease shall be binding
upon and inure to the benefit of the parties hereto and, subject to the
provisions of Article 10 hereof, their respective successors and assigns.
23.5 Sublessor has made no representations, warranties or covenants to
or with Sublessee with respect to the subject matter of this Sublease except as
expressly provided herein and all prior negotiations and agreements relating
thereto are merged into this Sublease. This 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 Master Lease.
23.6 Unless specifically provided herein, all capitalized terms used
in this Sublease which are defined in the Master Lease shall be deemed to have
the respective meanings set forth therein.
28
23.7 The submission by Sublessor to Sublessee of this Sublease in
draft form shall be deemed submitted solely for Sublessee's consideration and
not for acceptance and execution. Such submission shall have no binding force
and effect, shall not constitute an option for the leasing of the Premises, and
shall not confer any rights or impose any obligation upon either party. The
submission by Sublessor of this Sublease for execution by Sublessee and the
actual execution and delivery by Sublessee to Sublessor shall similarly have no
binding force and effect unless and until Sublessor and Sublessee shall have
executed this Sublease and a counterpart thereof shall have been delivered to
Sublessee. In consideration of Sublessor's administrative expense in
considering this Sublease and the terms of Sublessee's proposed tenancy
hereunder and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Sublessee's submission to Sublessor of this
Sublease, duly executed by Sublessee, shall constitute an irrevocable offer for
the leasing of the Premises, to continue for ten (10) business days from and
after receipt by Sublessor of this Sublease duly executed by Sublessee.
23.8 Sublessor shall cause Sublessee's name to be listed in the
elevator as the occupant of the 26th floor and Sublessor shall cause to be
provided the requisite number of listings in the Building Directory as may be
authorized by Landlord.
24. UNDERLYING LEASE COMPLIANCE.
---------------------------
24.1 Sublessor represents and warrants to Sublessee that (a) the
Master Lease is in full force and effect; (b) to the best knowledge of
Sublessor, no event has occurred which with the passage of time or giving of
notice, or both, shall ripen into a default under the Master Lease; (a)
29
there are presently no offsets or defenses existing against the enforcement of
the Master Lease and (b) Sublessor holds title to the entire tenant's interest
under the Master Lease; (c) there is no leasehold financing affecting the
Premises.
24.2 Sublessor covenants and agrees that it will not do or cause to be
done or suffer or permit any act or thing to be done which may or could cause
the Master Lease or the rights of Sublessor as tenant thereunder to be
cancelled, terminated, forfeited or prejudiced, unless Sublessor is prevented
from complying with the terms of this subparagraph due to any action or inaction
of Sublessee. Sublessor further covenants and agrees that it will not
terminate, cancel or surrender the Master Lease without Subtenant's prior
written consent which consent shall be determined in Sublessee's sole
discretion. Sublessor further covenants and agrees to (i) duly perform and
observe all of the terms, provisions and conditions of the Master Lease on its
part to observe and perform to the extent that such terms are not provided in
this Sublease to be observed by Sublessee; and (ii) pay to Landlord all fixed
annual rent, additional rent and other charges that may become due and payable
by Sublessor pursuant to the Master Lease, as and when such amounts become due
and payable thereunder. If Sublessor shall fail to observe any of such terms
and/or fail to pay any such amounts to Landlord as and when such amounts shall
be due and payable then, in such event, Sublessee may, but shall not be
obligated to, expend such sums as may be necessary to observe or perform such
terms, provisions and conditions and/or pay such rent, additional rent and other
charges to Landlord for the account of Sublessor, and any amount so paid shall
become immediately due and payable to Sublessee from Sublessor upon demand, and
if not so paid by Sublessor, Sublessee shall have the right to offset such
amounts plus interest against future fixed and additional rent payments
30
hereunder, notwithstanding anything to the contrary contained herein.
25. The parties agree that the trustees of Capital Trust shall have no
personal liability hereunder to Sublessor or Landlord and any obligation of
Capital Trust hereunder to Sublessor or Landlord shall be satisfied solely from
the assets of Capital Trust.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as
of the day and year first above written.
Sublessor
NEW YORK JOB DEVELOPMENT AUTHORITY
By: /s/ Garry P. Ryan
-------------------------------
Name: Garry P. Ryan
Title: Controller
as Sublessee
CAPITAL TRUST
By: /s/ John R. Klopp
-------------------------------
Name: John R. Klopp
Title: Chief Executive Officer
31
ASSIGNMENT OF SUBLEASE
This Sublease is hereby assigned from Victor Capital Group, L.P. (the
"Assignor") to Capital Trust (the "Assignee").
IN WITNESS WHEREOF, Assignor has duly executed this Assignment of
Sublease.
Dated: July 29, 1997
Assignor:
VICTOR CAPITAL GROUP, L.P.
By: Valentine Wildove & Company, Inc.
General Partner
By: /s/ John R. Klopp
------------------