New York-New York-16-18 West 57th Street Sublease - LCO Properties Inc. and BriteSmile Inc.
AGREEMENT OF SUBLEASE
SUBLEASE AGREEMENT (this "Sublease") made as of the ____ day of December,
1999 between LCO Properties, Inc., a Delaware corporation, having an office at
16-18 West 57/th/ Street, New York, New York ("Lessor"), and BriteSmile Inc., a
Utah corporation having its principal offices at 101 Ygnacio Valley Road, Walnut
Creek, California 94596 ("Lessee").
W I T N E S S E T H
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WHEREAS, Lessee desires to sublease from Lessor approximately 4,821 feet,
or such square footage as to be agreed upon by the parties, on the second floor
and portion of the ground floor, as outlined on the attached floor plan (Exhibit
A) (the "Demised Premises"), of the building known as 16-18 West 57/th/ Street
(the "Building") in the Borough of Manhattan, City and State of New York; and
WHEREAS, Lessor is willing to lease the Demised Premises to Lessee, at the
rentals and upon and subject to the covenants, conditions and agreements
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements hereinafter contained, the parties hereto for themselves, their
successors and assigns mutually covenant and agree as follows:
1. Lessor hereby leases to Lessee and Lessee hereby hires from Lessor the
Demised Premises, at the rentals and upon and subject to the covenants,
conditions and agreements hereinafter set forth.
2. The term of the Sublease shall commence December 1, 1999 (the
"Commencement Date"), and shall be for a term of ten years from the Commencement
Date, subject to the other terms and provisions hereof. The term of the
Sublease shall automatically terminate upon the expiration of the term of the
Overlease (as defined herein).
3. Commencing on December 1, 1999, and on or prior to the first day of
every calendar month thereafter for the term of this Lease, Lessee shall pay to
Lessor, without notice or demand, in lawful money of the United States of
America, at Lessor's aforesaid office, or at such other place as Lessor may
designate, the following rental:
(A) Upon the commencement of this Sublease the rental shall be of
$33,458.33 (per month), $401,500 (per annum). Prior to November 1, 2000 and
each year thereafter, a new rent shall be established at the prior year's rent
plus a percentage of
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any increases in minimum or additional rent payable under the Overlease. For
such purposes the parties agree that said percentage shall be 37%.
4. A. Lessee shall, at its sole cost and expense, cause to be provided
and performed all materials, labor and services required to segregate and
separately measure the water and sewerage service and plumbing system serving
the Demised Premises and all of Lessee's requirements in or for the Demised
Premises from the Building service and plumbing system, and shall cause the
installation of a direct meter promptly after possession of the Demised Premises
is delivered to Lessee, completing such installation by the earlier of either
the (i) expiration of sixty (60) days following the Commencement Date, or (ii)
the date upon which Lessee shall first open for business in the Demised
Premises. Lessee shall make its own arrangements with and shall pay all
consumption, reading and any other charges, rents, levy, tax or expense of every
nature whatsoever will may be assessed or imposed, whether or not the same may
become a lien, in connection with the use, consumption, maintenance or supply of
water, water system or sewerage or sewerage connection or system, as may be
required to establish and maintain such direct account in good standing and
without delinquency, and shall at all time and at its sole cost and expense,
maintain, repair or replace the meter and such systems as necessary, so as to be
accurate, and keep the plumbing system serving the Demised Premises in good
order and repair.
B. In addition to the fixed rent herein reserved, Lessee agrees to
pay for all costs, charges and expenses relating, directly or indirectly, to
electricity consumed by Lessee in the Demised Premises. Lessee shall, at its
sole cost and expense, cause to be provided and performed all materials, labor
and services required to segregate the electrical service and system serving the
Demised Premises and all of Lessee's electrical requirements from the Building
service and electrical system, and Lessee shall cause the installation of a
direct electrical meter promptly after possession of the Demised Premises is
delivered to Lessee, completing such installation by no later than thirty (30)
calendar days following the Commencement Date. Lessee shall make its own
arrangements with and shall pay all consumption, reading and any other charges
or expense whatsoever required to establish and maintain such direct account in
good standing and without delinquency, and shall at all times and at its sole
cost and expense, maintain, repair or replace the meter as necessary, so as to
be accurate, and keep the electrical system serving the Demised Premises in good
order and repair.
C. If Lessee requests any additional utilities or services with
respect to the Demised Premises, Lessee shall pay all building and standard
charges for such services.
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5. A. Lessee represents that it has inspected the Demised Premises and
agrees to take the same as is in the condition and state in which they are on
the date hereof.
B. Lessee shall make no alterations, installations, additions or
improvements in or to the Demised Premises of any nature, without the prior
written consent of the Lessor. Lessee shall be responsible for retaining all
architectural, engineering and other technical consultants and services as may
be required for developing and completing plans and specifications for such work
at Lessee's expense, provided that Lessor has the same right to reasonably
consent to contractors afforded by the Overlease, as hereinafter defined.
C. Lessee shall at Lessee's expense obtain all permits,
authorizations and certifications which may be required in connection with such
work prior to the date on which Lessee's contractor, subcontractors or other
persons rendering services or supplying materials in connection with the work
shall enter the Demised Premises for the purposes of doing such work.
D. Lessor agrees to complete, at Lessor's expense, certain
improvements to the Demised Premises, substantially as set forth in Exhibit A
hereto. Lessor and Lessee shall cooperate in the scheduling and construction of
said improvements in order to complete them as soon as possible and to expedite
both the commencement and the completion of Lessee's tenant improvements.
6. Lessee agrees not to assign, mortgage or encumber this Sublease, or
further sublet the Demised Premises or any part thereof, or permit anyone other
than Lessee to occupy any part of the Demised Premises without in each instance
obtaining the prior written consent of Lessor. The provisions of Section 45.1
of the Overlease shall apply to any proposed assignment or sublet of the Demised
Premises.
7. Lessee and Lessor represent to each other that in the negotiation of
this Sublease they have dealt with no brokers. Each party hereby agrees to
indemnify and hold harmless the other from and against any liability arising out
of any inaccuracy of the foregoing representation made by it.
8. A. This Sublease, together with the Overlease, contains all of the
covenants, agreements, terms, provisions, conditions and understandings relating
to the leasing of the Demised Premises and Lessor's obligations in connection
therewith and neither Lessor nor any agent or representative of Lessor has made
or is making, and Lessee, in executing and delivering this Lease is not relying
upon, any warranties, representations, promises or statements whatsoever, except
to the extent expressly set
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forth in this Lease. All understanding and agreements, if any, heretofore and
between the parties are merged in this Sublease (together with the applicable
provisions of the Overlease), which alone fully and completely expresses the
agreement of the parties.
B. The failure of Lessor or Lessee to insist on any instance upon
the strict keeping, observance or performance or any covenant, agreement, term,
provision or condition of this Sublease shall not be construed as a waiver or
relinquishment by such party for the future enforcement of such covenant,
agreement, term, provision or condition, but the same shall continue and remain
in full force and effect. No waiver or modification of any covenant, agreement,
term, provision or condition of this Sublease shall be deemed to have been made
unless expressed in writing and signed by Lessor. NO surrender or possession of
the Demised Premises or of any part thereof or of any remainder of the term of
this Sublease shall release Lessee from any of the obligations hereunder unless
accepted by Lessor in writing. Neither the payment by Lessee of fixed rent or
additional rent by anyone other than the Lessee shall be deemed a waiver of the
breach of such party of any covenant, agreement, term, provision or condition
herein contained, or the acceptance by the Lessor or such person as Lessee, or a
release of Lessee nor the receipt and retention by Lessor of fixed rent or
additional rent with knowledge of the breach of any covenant, agreement, term,
provision or condition herein contained shall be deemed a wavier of such breach
by such party.
9. Lessee, shall, at Lessee's sole cost and expense, maintain insurance
in standard form in favor of Lessor and Overlandlord (as hereinafter defined)
against claims for bodily injuries or death or property damage occurring in or
upon the Demised Premises effective from the date Lessee enters into possession
or the date of the Sublease and any renewals thereon. The amount of said
general liability insurance shall be a minimum of $1,000,000 (all risk) and
$4,000,000 excess liability coverage and said policy may be in blanket form with
a certificate reasonably acceptable to Lessor. The policy shall name both
Lessor and Overlandlord as additionally insured and shall contain a clause that
the insurer will not cancel or change the terms and conditions of the policy
without first giving Lessee thirty (30) days prior written notice. A copy of
the policy or the Certificate of Insurance shall be delivered to Lessor within
twenty (20) days of the date of the execution of this Lease.
10. This Sublease shall bind and benefit the successors and permitted
assigns of the parties with the same effect as if mentioned in each instance
where a party hereto is named or referred to.
11. Any notice, request, demand, consent or other communication to be
given by the terms and provisions of this Sublease (a Notice) shall be in
writing and shall be made by mailing the same by registered or certified mail,
return receipt requested, or by
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sending the same by nationwide overnight commercial courier, addressed to the
parties at the addresses hereinabove set forth. Notice to such party shall
thereafter be given. Every Notice hereunder shall be deemed to have been given
upon receipt thereof.
12. Lessor covenants and agrees that upon Lessee paying the rent and
additional rent and performing and observing the covenants and provisions of
this Lease on its part to be performed and observed, Lessee shall peaceably and
quietly enjoy the Demised Premises without hindrance or molestation by Lessor,
subject nevertheless, to the terms and conditions of this Sublease.
13. Prior to the installation of any sign Lessee shall obtain the written
consent of Lessor approving the style, size, content and placement of such sign.
14. Lessee shall be liable for damage to personal property by Lessee, its
employees, agents, licensees, customers, invitees and quests which occurs on the
Demised Premises or within the Building which the Demised Premises is a part and
results from Lessee's act, omission or conduct.
15. Lessee shall, at Lessee's own expense, take good care of the non-
structural elements of the premises and the fixtures, equipment and
appurtenances therein and will suffer no active or permissive waste or injury
thereof. Lessee agrees, at Lessee's expense, to promptly repair any injury or
damage to the Demised Premises. All such repairs shall be of a quality equal to
original installation. If Lessee fails to make such repairs promptly, Lessor
may, at Lessee's sole cost and expense make such repairs as it deems necessary
and Lessee shall reimburse Lessor for such expense on demand and failure to
repay the cost shall constitute a default under this Lease.
16. No later than the expiration date, Lessee will remove all Lessee's
personal property and Lessee shall repair all injury done by or in connection
with the installation or removal of said property and surrender the premises in
as good as condition as it was at the beginning of the term, reasonable wear
excepted. All property of Lessee remaining on the premises after the expiration
date shall be deemed conclusively abandoned and may, at the election of the
Lessor, either be retained as Lessor's property or be removed by Lessor, and
Lessee shall reimburse Lessor for the cost of removing same.
17. Notwithstanding anything contained herein to the contrary Lessor shall
have the absolute right to cancel this lease during the initial term or any
renewal term hereof. Said cancellation shall be effective upon giving the
Lessee at least nine (9) months prior written notice. Upon the expiration of
said nine (9) months, this lease and the term hereof shall expire and Lessee
shall quit and surrender the Demised Premises to the Lessor.
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18. LESSOR AND LESSEE WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION,
COUNTERCLAIM, PROCEEDING OR LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION
WITH, OR RELATED TO, THE SUBJECT MATTER OF THIS SUBLEASE. THIS WAIVER IS
KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY LESSEE AND LESSEE ACKNOWLEDGES
THAT NEITHER LESSOR NOR ANY PERSON ACTING ON BEHALF OF LESSOR HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. LESSEE FURTHER ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED (OR HAS HAD TE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS
LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF
ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL. LESSEE FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE
MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION.
19. The Lessee acknowledges that the terms of this Sublease are subject in
all respects to the terms of that certain Agreement of Lease dated as of July
__, 1999 (the "Overlease"), between 16 West 57/th/ Street Co. (the
"Overlandlord") and Lessor, a copy of which is attached hereto as Exhibit B and
incorporated herein by reference. Without limiting the generality of the
foregoing, Lessee acknowledges and agrees that this Sublease is subject and
subordinate to the Overlease and to the matters to which the Overlease is or
shall be subordinate, and that, in the event of termination, re-entry, or
dispossess by Overlandlord under the Overlease, Overlandlord may, at its option,
take over all of the right, title and interest of Lessor as sublandlord under
this Sublease, and Lessee shall, at Overlandlord's option, attorn to
Overlandlord pursuant to the then executory provisions of this Sublease, except
that Overlandlord shall not: (i) be liable for any previous act or omission of
Lessor under this Sublease; (ii) be subject to any offset, not expressly
provided in this Sublease, that theretofore accrued to Lessee against Lessor; or
(iii) be bound by any previous modification of this Sublease or by any previous
prepayment of more than one month's fixed or any additional rent then due. In
the event of any default under the Overlease beyond applicable notice and cure
periods, Lessee, at the request of Overlandlord, shall be deemed to have
attorned to Overlandlord upon all of the terms of the Overlease.
20. Lessor shall deliver to Lessee a copy of any notice received from
Overlandlord with regard to the Overlease and/or the Premises as promptly as
practical after receipt.
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IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Sublease as
of the day and year first above written.
"LESSOR"
LCO Properties, Inc.
By: ___________________________
Name:
Title:
"LESSEE"
BriteSmile Inc.
By: ___________________________
Name:
Title: