New York-New York-Three Times Square Sublease - Reuters C Corp. and Instinet Global Holdings Inc.
SUBLEASE
This Sublease (this "Sublease") , dated as of May 16, 2001
between REUTERS C CORP. ("Sublessor"), having an address at 3 Times Square, New
York, New York, and INSTINET GLOBAL HOLDINGS, INC. ("Subtenant"), having an
address at 875 Third Avenue, New York, New York.
W I T N E S S E T H:
WHEREAS, Sublessor entered into that certain Agreement of Lease, dated
February 18, 1998, between 3 Times Square Associates, LLC ("Overlandlord"), as
landlord, and Sublessor, as tenant, as amended by First Amendment of Lease,
dated as of June 30, 1998, Second Amendment of Lease, dated as of July 1, 1998,
Third Amendment of Lease, dated as of March 31, 2000, and Fourth Amendment of
Lease, dated as of November 28, 2000 (the foregoing lease as so amended and as
the same may hereafter from time to time be amended, modified, extended, renewed
or supplemented, the "Overlease") for premises described in the Overlease and
located in the building (the "Building") known as Three Times Square, New York,
New York; and
WHEREAS, Subtenant desires to sublease from Sublessor floors 6 through
14 in their entirety, a portion of the 24th floor, and certain other space as
hereinafter set forth (the "Demised Premises") at the Building, as shown on
Exhibit A annexed hereto and made a part hereof, and Sublessor desires to
sublease the Demised Premises to Subtenant upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. DEFINED TERMS. Each capitalized term not otherwise defined herein
shall have the meaning ascribed to it in the Overlease.
2. DEMISE AND TERM.
A. For and during the term established below, Sublessor leases to
Subtenant the Demised Premises, consisting of 362,155 rentable square feet ("RSF
of the Demised Premises") of space at the Building. The leasing of the Demised
Premises by Subtenant shall include the right of Subtenant (a) to access the
Building common areas in common with the other tenants in the Building and (b)
to use all fixtures, improvements and
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betterments owned or leased by Overlandlord which, at any time during the term
of this Sublease, are attached to or installed in the Demised Premises, all
subject to such restrictions, rules, regulations, security arrangements and
charges (if any) as are provided for in the Overlease.
B. The term (subject to extension as provided herein, the "Term") of
this Sublease shall commence on May 19, 2001 (the "Commencement Date ") and
expire on November 17, 2021 (the "Expiration Date"), unless sooner canceled or
otherwise terminated as provided in this Sublease.
C. Sublessor shall have a one time right to cancel this Sublease
effective as of May 31, 2011 by giving written notice (the "Sublessor
Cancellation Notice") to Subtenant by no later than May 1, 2008, time being of
the essence as to the giving of such notice, which notice shall state that
Sublessor unconditionally elects to cancel this Sublease effective as of May 31,
2011. In the event Sublessor fails to timely deliver a Sublessor Cancellation
Notice in compliance herewith, and unless Subtenant has delivered the Subtenant
Cancellation Notice (as hereinafter defined), this Sublease shall continue until
the Expiration Date, unless otherwise terminated as provided in this Sublease.
In the event Sublessor timely delivers a Sublessor Cancellation Notice in
compliance herewith, the Expiration Date as defined herein shall for all
purposes mean May 31, 2011.
D. Subtenant shall have a one time right to cancel this Sublease
effective as of May 31, 2011 by giving written notice (the "Subtenant
Cancellation Notice") to Sublessor by no later than April 1, 2008, time being of
the essence as to the giving of such notice, which notice shall state that
Subtenant unconditionally elects to cancel this Sublease effective as of May 31,
2011. In the event Subtenant fails to timely deliver a Subtenant Cancellation
Notice in compliance herewith, and unless Sublessor has delivered the Sublessor
Cancellation Notice, this Sublease shall continue until the Expiration Date,
unless otherwise terminated as provided in this Sublease. In the event Subtenant
timely delivers a Subtenant Cancellation Notice in compliance herewith, the
Expiration Date as defined herein shall for all purposes mean May 31, 2011.
E. In the event that Sublessor cancels this Sublease pursuant to
Article 2.C hereof, Sublessor shall pay to Subtenant, by no later than June 30,
2011, an amount (the "Sales Price") equal to twenty-five percent (25%) of the
unamortized value (as of May 31, 2011) of the leasehold improvements (the
"Remaining Leasehold Improvements") which remain in the Demised Premises
following Subtenant's vacation of the Demised Premises
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on May 31, 2011; provided, however, that solely for the purpose of calculating
the Sales Price, Remaining Leasehold Improvements shall be deemed to exclude (i)
all improvements made to the Demised Premises after Subtenant's initial
occupancy of any part thereof, (ii) all computer equipment, cabinetry, racks and
cabling, (iii) all improvements comprising the trading floor or operation,
except to the extent Sublessor makes substantial use of such trading floor or
operation after May 31, 2011, without making substantial additional improvements
thereto and (iv) any other leasehold improvement which Sublessor, in its
reasonable discretion, determines to be obsolete or unusable by Sublessor.
Sublessor and Subtenant acknowledge that the Sales Price shall only be due and
payable in connection with a cancellation of this Sublease pursuant to Section
2.C. hereof, and no such payment shall be required in connection with any other
cancellation or termination hereof. Subtenant shall be required to pay all New
York State and New York City transfer taxes and sales and compensating use
taxes, if any, due in connection with the payment of the Sales Price.
3. REQUIRED PROVISIONS.
A. The sale, pledge, transfer or other alienation of (a) a controlling
interest of the issued and outstanding capital stock of Subtenant (if a
corporation, unless such stock is publicly traded on any recognized security
exchange or over-the-counter market) or (b) any controlling interest in
Subtenant (if a partnership, limited liability company or joint venture),
however accomplished, and whether in a single transaction or in a series of
related or unrelated transactions, shall be deemed for the purposes of Section
11.03 of the Overlease to be an assignment of this Sublease which shall require
the prior consent of Owner in each instance.
B. Except as otherwise expressly set forth herein, any rights granted
to Sublessor to assign its rights under the Overlease and any obligations of
Sublessor related thereto, as set forth in Section 11.05A of the Overlease are
hereby granted to and binding upon Subtenant.
C. Except as otherwise expressly set forth herein, any rights granted
to Sublessor to sublet or permit occupancy of the "Demised Premises" (as defined
in the Overlease) and any obligations of Sublessor related thereto, as set forth
in Subsection 11.05B of the Overlease are hereby granted to and binding upon
Subtenant.
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D. Nothing contained in this Section 3 shall be deemed a consent by the
Owner to any assignment or subletting by Subtenant and the terms of the
Overlease shall govern the requirement to obtain Owner's consent with respect
thereto.
4. USE. A. Subtenant may use the Demised Premises as general and
administrative offices, uses incidental thereto and any other use expressly
permitted by the Overlease, subject in any event to the provisions of the
Overlease and this Sublease, and for no other purpose.
B. Subtenant agrees and acknowledges that space identified on Exhibit C
as shared space ("Shared Space") and facilities identified on Exhibit C as
shared facilities ("Shared Facilities") are subject to use and enjoyment by both
Sublessor and Subtenant as set forth on Exhibit C, and Subtenant's occupancy and
use rights with respect thereto are not exclusive of Sublessor, except where
Exhibit C indicates that a portion of the Shared Space is to be for Subtenant's
exclusive usage (the "Subtenant's Exclusive Shared Space"). In addition to all
other amounts payable hereunder by Subtenant, Subtenant shall pay to Sublessor
in advance, commencing on the Rent Commencement Date and thereafter on the first
day of each month during the Term, Subtenant's proportionate share (the "Shared
Proportionate Share") of the "Fixed Rent" payable under Section 1.03 of the
Overlease attributable to the Shared Space and Shared Facilities (the "Shared
Space and Facilities Rent"), which proportionate share shall initially be as set
forth on Exhibit C. Subtenant shall pay when billed therefor, as additional rent
hereunder, its Shared Proportionate Share of the cost of the repair, maintenance
and, in the case of fuel oil, replenishment (on a cost basis) of the Shared
Space and Shared Facilities and all additional rent, including, without
limitation, Tenant's Public Purpose Payments, Operating Expenses, Office
Cleaning Costs, Deemed Rental under the Ground Lease, Capital Sum, Theater
Surcharge and all other sums of money, payable by Sublessor to Overlandlord with
respect thereto.
C. Subtenant hereby agrees that Sublessor possesses the exclusive right
to control, operate, alter and repair the Shared Space and Shared Facilities.
Subtenant shall not have the right to make any alteration to the Shared Space or
Shared Facilities without Sublessor's prior written consent, which consent may
be granted or withheld at Sublessor's sole discretion. In the event Sublessor
consents to an alteration requested by Subtenant, such alteration shall be
performed by Sublessor at the sole cost and expense of Subtenant. Subtenant
shall pay all costs and expenses incurred by Sublessor in connection with any
such alteration within ten (10) days of Sublessor's request therefor. Sublessor
shall have
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the right to modify the Shared Proportionate Share, from time to time, to
reflect changes in the relative use by Sublessor and Subtenant of the Shared
Space and Shared Facilities.
D. Sublessor and Subtenant hereby agree to promptly establish a Joint
Operations Committee (the "Committee") composed of two (2) representatives of
Sublessor and two (2) representatives of Subtenant (each representative, a
"Member"). Sublessor hereby designates Glenn Elliott and Subtenant hereby
designates Frank Wallace as its initial representative on the Committee.
Sublessor and Subtenant shall each designate one additional representative to
serve on the Committee promptly following the execution hereof. Sublessor shall
have the right to designate alternative representatives for the Committee
provided that in no event shall Sublessor have the right to have more than two
representatives on the Committee at any time. Subtenant shall have the right to
designate alternative representatives for the Committee provided that in no
event shall Subtenant have the right to have more than two representatives on
the Committee at any time. To the extent any operational issue (each, an
"Operational Issue") at the Building materially affects the operation or use by
Subtenant, or the appearance, of the Demised Premises or the Shared Space and
Shared Facilities, Subtenant shall have the right to submit any concerns with
respect thereto to the Committee. The Committee shall review Subtenant's
concerns and determine if a course of action, other than that being taken by
Sublessor, is warranted. Committee determinations shall require the affirmative
vote of three Members of the Committee and shall be binding upon Sublessor and
Subtenant. In reviewing the Operational Issue the Committee shall take into
account all special considerations which may be unique to Sublessor or Subtenant
and shall not direct any action to be taken which would have a material adverse
affect on either Sublessor or Subtenant. In the event the Committee determines
that the Operational Issue requires a course of action, other than that being
taken by Sublessor (a "Sublessor's Approach"), such action shall be taken by
Sublessor (each, a "Required Action"). Together with each determination of a
Required Action the Committee shall determine whether the Required Action is
necessary because of special requirements or concerns of Subtenant, including,
without limitation, levels of service or maintenance required by Subtenant in
excess of that required by Sublessor. In the event the Required Action is
determined to be required as a result of such special requirements or concerns
of Subtenant, Subtenant shall reimburse Sublessor for the entire cost of such
Required Action within thirty (30) days of Sublessor's demand therefor, which
demand shall be delivered with reasonable details of the required expenditures.
Absent such a determination, costs of any Required Action shall be borne on a
proportionate basis as determined by the Committee. Subtenant shall reimburse
Sublessor for such proportionate share within thirty (30) days of Sublessor's
demand therefor, which
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demand shall be delivered with reasonably details of the required expenditures.
In the event Subtenant or Sublessor disagrees with any determination of the
Committee, each shall have the right, within thirty (30) days of such
determination, to submit such Operational Issue to arbitration in accordance
with Article 36 of the Overlease.
5. BASE RENT.
A. Subtenant shall pay to Sublessor, without notice or demand, and
without any right of offset or defense, in lawful money of the United States, at
the address set forth above or at such other address as Sublessor may by notice
designate, base rent (the "Base Rent") as follows:
(1) for the period commencing on the Rent
Commencement Date and ending on May 31,
2011, all rent payable by Sublessor under
the Overlease attributable to the Demised
Premises, including, without limitation, all
"Fixed Rent" payable under Section 1.03 of
the Overlease, in accordance with Exhibit A
attached hereto and made a part hereof; and
(2) for the period commencing on June 1, 2011
and ending on the Expiration Date, an amount
equal to the greater of (i) the Fair Market
Rent (as hereinafter defined) for the
Demised Premises, and (ii) all rent payable
by Sublessor under the Overlease
attributable to the Demised Premises,
including, without limitation, all "Fixed
Rent" payable under Section 1.03 of the
Overlease.
As used herein the term "Fair Market Rent" shall mean the fair market value of
the Demised Premises determined as if the Demised Premises were available in the
then rental market for comparable first class market buildings in midtown
Manhattan and assuming that Sublessor has had a reasonable time to locate a
subtenant who rents with the knowledge of the uses to which the Demised Premises
can be adapted, and that neither Sublessor nor the prospective tenant is under
any compulsion to rent. The Fair Market Rent shall be determined by Sublessor on
the basis of the highest and best use of the Demised Premises assuming that the
Demised Premises are free and clear of all leases and tenancies (including this
Sublease), and, at the election of Sublessor, that the Demised
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Premises are occupied by one (1) tenant or is subdivided and occupied by more
than one (1) tenant, whether improved or unimproved, taking into account all
then existing circumstances.
B. For purposes of determining the Fair Market Rent, the procedures set
forth on Exhibit E attached hereto and made a part hereof shall apply.
C. Base Rent shall be payable in equal monthly installments in advance,
commencing on the Rent Commencement Date and thereafter on the first day of each
month during the Term, without counterclaim, setoff or deduction whatsoever.
Payment of the Base Rent and any additional rent shall be by Subtenant's check
or wire transfer of immediately available funds to the account identified to
Subtenant from time to time by Sublessor in writing.
D. In addition to the Base Rent, Subtenant shall pay to Sublessor, as
additional rent hereunder, all additional rent payable by Sublessor under the
Overlease attributable to the Demised Premises for the period from the
Commencement Date (except as otherwise provided herein) through the Expiration
Date including, without limitation:
(i) commencing on the Rent Commencement Date, the
Operating Expenses payable by Sublessor under the
Overlease attributable to the Demised Premises;
(ii) commencing on the Rent Commencement Date, the
Tenant's Cleaning Share of Office Cleaning Costs
payable by Sublessor under the Overlease attributable
to the Demised Premises, if applicable;
(iii) commencing on the Rent Commencement Date, the portion
of Deemed Rental under the Ground Lease payable by
Sublessor under the Overlease attributable to the
Demised Premises provided, however, that the
calculation of Subtenant's portion of the Deemed Rent
under the Ground Lease shall be determined as if the
Deemed Rent under the Ground Lease was not reduced or
otherwise adjusted for any Site 3 ESAC Reimbursements
contemplated by the fourth sentence of Section
23.06.A. of the Overlease and the term "payable" as
used in this clause (iii) shall mean the
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amount which would have been payable absent any such
reduction;
(iv) commencing on the Rent Commencement Date, the Capital
Sum payable by Sublessor under the Overlease
attributable to the Demised Premises;
(v) the Tenant's Public Purpose Payments attributable to
work performed in the Demised Premises or otherwise
constituting Subtenant's proportionate share (based
on RSF of the Demised Premises) of the other Public
Purpose Payments payable by Sublessor under the
Overlease; provided, however, that Subtenant shall
not be obligated to pay such proportionate share with
respect to Tenant's Public Purpose Payments due with
respect to improvements made which do not benefit the
Demised Premises (all payments made, or deemed made,
by Subtenant pursuant to this clause (v) are
hereinafter referred to as "Subtenant's Public
Purpose Payments");
(vi) commencing on the Rent Commencement Date, Theatre
Surcharge payable by Sublessor under the Overlease
attributable to the Demised Premises; and
(vii) all other sums of money attributable to the Demised
Premises as shall be payable by Sublessor to
Overlandlord under the Overlease, including but not
limited to all charges for services (including excess
water usage charges, overtime HVAC and freight
elevator charges and annual chilled water fees)
pursuant to the Overlease (the "Additional Charges"),
it being the intent of the parties hereto to provide
a direct pass-through to Subtenant of all costs,
expenses and payments payable by Sublessor under the
Overlease attributable to the Demised Premises.
Subtenant's share of Operating Expenses, Tenant's Cleaning
Share of Office Cleaning Costs (if applicable), Deemed Rental under the Ground
Lease, Capital Sum, Tenant's Public Purpose Payments, Theater Surcharge and
Additional Charges (collectively, the "Additional Rental") attributable to the
Demised Premises shall be payable
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in the same manner as provided in Article 4 of the Overlease and shall be based
on Overlandlord's statements, including estimates, rendered to Sublessor with
respect to such items, copies of which shall be delivered to subtenant within
ten (10) days of Sublessor's receipt thereof. To the extent that any amounts
paid by Subtenant on account of any of such items are based on estimates
provided by Overlandlord and exceed the amount actually due and payable by
Subtenant hereunder, such overpayment shall, in accordance with the procedure by
which overpayment of such an item is treated under the Overlease, be either
refunded to Subtenant or credited against the amounts next coming due from
Subtenant for the applicable item pursuant to this Section 5B; provided,
however, that if such overpayment shall have been credited to Subtenant and is
not fully reimbursed by such credit prior to the expiration of the term of this
Sublease, then, promptly following the expiration or earlier termination of the
term of this Sublease, Sublessor shall, to the extent such amounts are received
from Overlandlord, reimburse Subtenant for the remaining balance of such
overpayment less any amounts Subtenant may owe to Sublessor upon the expiration
of the term of this Sublease. To the extent that any estimated amounts so paid
by Subtenant are less than the amount actually due and payable hereunder by
Subtenant, Subtenant shall within ten days after demand therefor pay the
difference to Sublessor. If any refund or credit results from an audit,
challenge or other proceeding instituted by Sublessor, Sublessor shall be
entitled to first deduct from any such refund or credit Sublessor's actual
expenses incurred in connection with obtaining such refund or credit and
Subtenant shall be entitled to its proportionate share of the net refund or
credit. Subtenant's payments under this Section 5B for any partial lease year
shall be prorated on a per diem basis. Subtenant shall be bound by any audit of
such charges performed by or at the request of Sublessor under the Overlease.
Subtenant hereby acknowledges that it shall not have any right to audit any of
the books of, or statements delivered by, Overlandlord in connection with this
Sublease and any acceptance of such statements, or settlements with respect
thereto by Sublessor shall be conclusive and binding upon Subtenant; provided,
however, that Sublessor shall not have the right to enter into settlements which
disproportionately allocate charges to the Demised Premises; provided further,
however, that upon Subtenant's request, Sublessor shall discuss the results of
any such audit and Sublessor's strategy for negotiating the same with Subtenant
prior to entering into any negotiations with Owner with respect thereto. The
provisions of this Section 5B shall survive the Expiration Date or sooner
termination of this Sublease.
E. As to any additional charges under the Overlease which are
attributable to the Demised Premises, such as, for example and without
limitation, charges under the Overlease for services furnished pursuant to the
Overlease to, or for repair of damage to,
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the Demised Premises, Subtenant shall pay to Sublessor, as additional rent under
this Sublease, within ten (10) Business Days after receipt by Subtenant of the
relevant statement (except that when payment is due under the Overlease before
ten (10) Business Days have passed following Subtenant's receipt of the relevant
statement, Subtenant shall make such payment to Sublessor two (2) days prior to
the date such payment is due under the Overlease), an amount equal to its
proportionate share of all such charges. Sublessor shall provide Subtenant with
copies of statements received from Overlandlord evidencing such additional
charges.
F. If Subtenant shall fail to pay any installment of Base Rent or any
additional rent when due and such failure shall continue for a period of three
(3) Business Days after same shall have become due and payable, such unpaid
amount shall bear interest at the Prime Rate, from the due date until paid.
G. The term "rent" or "rents" as used in this Sublease shall mean the
Base Rent and all additional rent payable under this Sublease.
6. PUBLIC PURPOSE PAYMENTS.
A. To the extent Sublessor is entitled to receive, and receives,
payments from Overlandlord pursuant to Section 3.07.B.(iii)(a) of the Overlease,
Subtenant shall be entitled to receive from Sublessor an amount equal to the
lesser of (i) Subtenant's Public Purpose Payments made in connection with the
initial construction and fit-out of the Demised Premises prior to occupancy
thereof by Subtenant, and (ii) fifty percent (50%) of Tenant's Priority Share
(the "Subtenant Share Cap"); provided, however, in the event the Tenant's Public
Purpose Payments which do not comprise Subtenant's Public Purpose Payments (the
"Sublessor's Public Purpose Payments") made by Sublessor are less than fifty
percent (50%) of Tenant's Priority Share (such difference the "Sublessor
Deficiency"), the Subtenant Share Cap shall be increased by such Sublessor
Deficiency.
B. As used herein, the term "Sublessor Balance" shall mean the positive
difference, if any, between (i) the total of Sublessor's Public Purpose Payments
relating to the initial construction and fit-out of the Building, and (ii) fifty
percent of Tenant's Priority Share. As used herein, the term "Subtenant Balance"
shall mean the positive difference, if any, between (i) the total of Subtenant's
Public Purpose Payments relating to the initial construction and fit-out of the
Demised Premises, and (ii) fifty percent of Tenant's Priority Share.
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C. To the extent Sublessor is entitled to receive, and receives,
payments from Overlandlord pursuant to Section 3.07.B.(iii)(c) the source of
payment for which are Tenant's Public Purpose Payments relating to the initial
construction and fit-out of the Building prior to the occupancy thereof by
Sublessor and Subtenant (the total of such payments are hereinafter referred to
as the "Additional Reimbursements"), Subtenant shall be entitled to receive from
Sublessor an amount equal the product of the Additional Reimbursements and a
fraction, the numerator of which is the Subtenant Balance and the denominator of
which is the sum of (i) the Sublessor Balance, and (ii) the Subtenant Balance.
D. In the event Subtenant is not required to pay Subtenant's Public
Purpose Payments because Overlandlord applies its ESAC's receivables as an
offset against Public Purpose Payments pursuant to Section 3.07.B(vi) of the
Overlease (the "Overlandlord Election"), Subtenant shall pay to Sublessor within
ten days after each demand therefor, an amount equal to the difference between
(i) the amount of Subtenant's Public Purpose Payments that Subtenant would have
been obligated to pay but for Overlandlord's Election, and (ii) the amount which
Subtenant would have been entitled to receive under Section 6A and Section 6C
hereof. Sublessor's calculation of all amounts relating to Tenant's Public
Purpose Payments, Sublessor's Public Purpose Payments, Subtenant's Public
Purpose Payments and the right to receive and make payments hereunder and under
the Overlease shall be binding and conclusive upon Sublessor and Subtenant
absent manifest error.
E. Except as expressly set forth herein, Subtenant shall have no right
to receive any payments from Overlandlord or Sublessor with respect to Tenant's
Public Purpose Payments or Sublessor's Public Purpose Payments.
7. SUBLEASE SUBJECT TO OVERLEASE.
A. This Sublease is subject and subordinate to all of the terms,
covenants and conditions of the Overlease and to the matters to which the
Overlease is or shall be subordinate. A description of the Overlease is annexed
hereto and made a part hereof as Exhibit B. Subtenant shall not do, or permit to
be done, anything that would constitute a breach or violation of any term,
covenant, or condition of the Overlease or the Building Rules promulgated
thereunder or other default under the Overlease on the part of Sublessor, as
tenant thereunder. Notwithstanding anything to the contrary contained in this
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Sublease, Subtenant does not have any rights in respect of the Demised Premises
greater than Sublessor's rights under the Overlease.
B. If for any reason the term of the Overlease shall end prior to the
Expiration Date of this Sublease, then, at the option of the Overlandlord,
either this Sublease shall terminate or Subtenant shall make full and complete
attornment to Overlandlord for the balance of the term of this Sublease.
Sublessor shall deliver a copy of any default notice or other termination notice
to Subtenant within five (5) Business Days of Sublessor's receipt thereof.
Sublessor shall request from Overlandlord that Overlandlord obtain from each
present or future mortgagee and lessor under the Underlying Documents described
on Schedule C to the Overlease a Subordination, Non-Disturbance and Attornment
Agreement for the benefit of Subtenant; provided, however, that Sublessor makes
no representation or warranty that such agreement may be obtained. Sublessor and
Subtenant promptly shall furnish each other with a copy of any notice which
either party receives under any non-disturbance agreement in connection with the
Demised Premises.
C. To the extent that Sublessor has an obligation under the Overlease
to provide information, materials, documents or otherwise to cooperate with
Overlandlord in connection with Overlandlord's obtaining financing of the
Building, such obligations shall be obligations of Subtenant with respect to
Subtenant, its affiliates and the Demised Premises.
8. INCORPORATION BY REFERENCE. All of the terms, covenants and
conditions contained in the Overlease are incorporated by reference into this
Sublease, except where inconsistent with or modified by the terms of this
Sublease, and are also subject, without limitation, to the following specific
exceptions and/or modifications:
A. The following portions of the Overlease are not incorporated into
this Sublease but shall continue in full force and effect in the Overlease:
(i) Sections 1.01. 1.02 (exclusive of Section 1.02.C.),
1.03.A. and .B., 1.06.D. (to the extent of a right to remeasure;
provided, however, that Sublessor shall allocate to Subtenant
Subtenant's proportionate share of the adjustments made under clauses
(i) through (iv) of such Section), 1.06.E. and .F. (provided that
Sublessor shall deliver to Subtenant copies of any instruments
contemplated thereunder), 1.07, 1.08 and Clause (i) of 2.01;
(ii) Clauses (iii) - (viii) of Section 3.07.B.;
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(iii) Section 3.10; provided, however, that Sublessor shall be
obligated to pay to Subtenant, as and when Sublessor receives the same
from Overlandlord, the portion of Owner's Work Contribution
attributable to the Demised Premises, as determined by Sublessor in its
reasonable discretion;
(iv) Section 6.07 (provided that if the relevant Legal
Requirement affects only the Demised Premises Sublessor shall exercise
its rights under such Section at the request of Subtenant at
Subtenant's sole cost and expense;
(v) Sections 19.07 and 19.08;
(vi) The fourth sentence of Section 23.06.A.;
(vii) Section 29.10 and Section 29.12; and
(viii) Articles 27, 28, 38, 39, 40, 41, 42, 43, 44, 45, 46,
47, 48, 49 and 50.
In addition to the foregoing, and notwithstanding anything to
the contrary contained herein or in the Overlease: (i) Subtenant's rights to
services, such as chilled water, shall be limited to Subtenant's pro rata share
of such services, and (ii) Subtenant's usage of the messenger center and shaft
space shall be governed by Section 4.B herein.
B. Wherever used in the Overlease, the words "Landlord" and "Tenant",
or words of similar import, shall be construed to mean, respectively,
"Sublessor" and "Subtenant"; provided, however, that the word "Landlord" in the
Overlease shall be construed to mean both "Sublessor" and "Overlandlord" in
those Sections of the Overlease providing for indemnification by Tenant and
insurance coverage required by Tenant; the word "Landlord" in the Overlease
shall be construed to mean only Overlandlord in those Sections of the Overlease
providing for Landlord's services, Building construction, repairs and
restoration, removal of Building violations, operation of the Building,
Landlord's insurance and the like; the word "Lease", or words of similar import,
shall be construed to mean the "Sublease"; the words "fixed or base rent," or
words of similar import, shall be construed to mean the Base Rent; the words
"additional charges" or words of similar import shall be construed to mean
additional rent; the word "rent", or words of similar import, shall be construed
to mean rent payable under this Sublease; the word "Demised Premises" or
"Premises" shall be construed to mean the Demised Premises as defined in
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this Sublease; the words "Tenant's Property" shall be construed to mean
"Subtenant's Property;" the words "term" or "Initial Term", "Commencement Date"
or "Possession Date", and "Expiration Date", or words of similar import, shall
be construed to mean, respectively, the Term and the dates set for the beginning
and the end of the term of this Sublease as provided in this Sublease; and the
words "Rent Commencement Date" shall be construed to mean the Rent Commencement
Date as defined in this Sublease.
C. To the extent possible, the provisions of the Overlease incorporated
by reference into this Sublease shall be construed as consistent with and
complementary to the other provisions of this Sublease, but in the event of any
inconsistency, the provisions of this Sublease shall control.
D. If Overlandlord shall default in the performance of any of its
obligations to Sublessor with respect to the Demised Premises, Subtenant shall
notify Sublessor in writing of the nature of the default in question and request
that Sublessor enforce its rights against Overlandlord, but Sublessor shall have
no obligation to bring any action or proceeding or to take any steps to enforce
Sublessor's rights against Overlandlord. If, after written notice from
Subtenant, Sublessor shall fail or refuse to take appropriate action for the
enforcement of Sublessor's rights against Overlandlord with respect to the
Demised Premises within a reasonable time considering the nature of
Overlandlord's default, Subtenant shall have the right, at Subtenant's sole cost
and expense, to assert Sublessor's rights against Overlandlord, but only if
Subtenant (1) shall not then be in default under this Sublease, (2) shall give
notice to Sublessor before asserting any such rights against Overlandlord and
(3) shall defend, indemnify and hold Sublessor harmless from and against any and
all claims, actions, liabilities, losses, damages, costs and expenses
(including, but not limited to, reasonable attorneys' fees and disbursements)
which Sublessor may incur by reason of such assertion of rights by Subtenant
against Overlandlord. In connection with clause (3) of this subsection D,
Subtenant shall provide the required defense by counsel reasonably acceptable to
Sublessor and Sublessor shall not seek reimbursement from Subtenant for separate
counsel to Sublessor unless there is a conflict of interest or Subtenant is not
prosecuting the case to Sublessor's reasonable satisfaction. If in connection
with Subtenant asserting Sublessor's rights as permitted hereunder, any action
brought by Subtenant against Overlandlord is barred by reason of lack of
privity, Subtenant may take such action in Sublessor's name, and Sublessor shall
execute all documents in connection therewith provided the same is without cost
or expense to Sublessor and Subtenant shall fulfill and comply with the
conditions set forth in clauses (1), (2), and (3) of this subsection D.
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E. In order to facilitate the coordination of the provisions of this
Sublease with those of the Overlease, unless otherwise stated herein, the time
periods contained in provisions of the Overlease that are incorporated by
reference into this Sublease and for which the same action must be or has been
taken under the Overlease (such as, for example and without limitation, the time
limit for the curing of a default under this Sublease that is also a default
under the Overlease), are changed for the purpose of incorporation by reference
by shortening or lengthening that period in each instance by three (3) Business
Days so that in each instance, Subtenant shall have that much less time to
observe or perform hereunder than Sublessor has as the tenant under the
Overlease and Sublessor shall have that much more time to observe, perform,
consent, approve, or otherwise act hereunder than the Overlandlord has under the
Overlease. Notwithstanding anything contained in this subsection to the
contrary, if the time period enumerated in the Overlease is three (3) Business
Days or less, the time for observance or performance hereunder shall be reduced
by one (1) Business Day.
F. Whenever the approval or consent of Overlandlord is required under
any provision of the Overlease or this Sublease, Subtenant shall be required to
obtain the written approval or consent of Sublessor and Sublessor shall endeavor
to obtain like approval or consent of Overlandlord. Whenever Sublessor has
agreed that a required approval or consent shall not be unreasonably withheld or
delayed (whether in this Sublease or pursuant to any provision of the Overlease
incorporated herein) it shall be deemed reasonable for Sublessor to withhold or
delay its approval or consent if Overlandlord shall have delayed or refused to
give any approval or consent which may be requested of it related to the same
matter. Sublessor shall have no liability for any failure or refusal on the part
of Overlandlord to grant any such consent.
9. PERFORMANCE BY OVERLANDLORD. Subtenant will look solely to
Overlandlord for performance of the services and obligations specified in the
Overlease to be provided or performed by Overlandlord thereunder, including,
without limitation, heat, ventilating and air conditioning, utilities, repairs,
restoration, alterations, reimbursement, cleaning, elevator service, hot and
cold water and light bulb replacement. If Overlandlord shall default or delay in
the performance or observance of any of its agreements or obligations under the
Overlease (including, but not limited to, any obligation for the payment of
money or to perform or furnish any work, services or utilities at or to the
Demised Premises or the Building), Sublessor shall have no obligation, liability
or responsibility therefor to Subtenant and Sublessor shall be excused from the
performance or observance of the corresponding obligation, if any, which may be
owed by Sublessor to
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Subtenant under this Sublease. Any condition resulting from such default or
delay by Overlandlord shall not constitute an eviction, actual or constructive,
of Subtenant. No such default or delay shall excuse Subtenant from the
performance or observance of any of its obligations to be performed or observed
under this Sublease or shall entitle Subtenant to terminate this Sublease or to
any reduction in or abatement of the rent or other charges provided for in this
Sublease. In furtherance of the foregoing, Subtenant does, to the extent
permitted by law, and except for the willful misconduct or gross negligence of
Sublessor, hereby waive any cause of action and any right to bring an action
against Sublessor by reason of any act or omission of Overlandlord under the
Overlease.
10. CONDITION OF DEMISED PREMISES.
Subtenant is leasing and accepts the Demised Premises "AS IS",
reasonable wear and tear, natural deterioration, and casualty damage excepted.
Without limiting the generality of the foregoing, Sublessor shall have no
obligation to make, supply or perform any alterations, services, material,
fixtures, equipment, or decorations to the Demised Premises. In entering into
this Sublease, Subtenant has relied solely on such investigations, examinations,
and inspections as Subtenant has chosen to make and Subtenant acknowledges that
Sublessor has afforded Subtenant the opportunity for full and complete
investigations, examinations, and inspections.
11. FIRE OR CASUALTY. A. If the Demised Premises or the Building (in
such a manner that materially interferes with Subtenant's use of the Demised
Premises or reasonable access thereto) shall be damaged, in whole or in part, by
fire or other casualty or condemned or taken in any manner for any public or
quasi-public use, the annual Base Rent paid under this Sublease shall be
reduced, in the same proportion, if any, and for the same period, in which the
annual fixed rent payable for the Demised Premises shall be reduced under the
Overlease (i.e., by way of example, if 50% of the annual fixed rent payable by
Sublessor under the Overlease for a particular floor included in the Demised
Premises is abated, then Subtenant shall be entitled to a 50% abatement in the
annual Base Rent hereunder allocable to that floor). Sublessor shall not be
responsible for restoration nor for any inconvenience or annoyance to Subtenant
or injury to Subtenant's business resulting in any way from such damage or the
repair or restoration or for such condemnation. This Sublease will continue in
full force and effect, subject to the foregoing provisions and subject to
Sublessor's rights and the rights of Overlandlord to terminate the Overlease.
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B. In the event that a casualty occurs to a portion of the
Demised Premises which, if such portion were not the subject of this Sublease,
would give rise to a right of Sublessor under the Overlease to terminate the
Overlease as to that portion as an Earlier Termination Floor under Section
9.05.F(ii) of the Overlease or as a Damaged Floor under Section 9.08 of the
Overlease, Subtenant shall have the right under this Sublease to terminate this
Sublease as to that portion of the Demised Premises by delivering to Sublessor
written notice of its election to effect such partial termination, effective as
of the last day on which Sublessor may effectively terminate the Overlease as to
such portion under such Section. Any such notice shall be effective only if
delivered to Sublessor within a time period which allows Sublessor no fewer than
ten days to deliver due and timely notice to Overlandlord under the applicable
Section of the Overlease of Sublessor's election to terminate the Overlease as
to such portion of the Demised Premises. In the event that Subtenant timely
delivers such notice otherwise in accordance with this Section 10.B., this
Sublease shall terminate as to such portion as of the date specified in such
notice and the further provisions of Section 9.08 of the Overlease shall be
applicable to this Sublease and to Subtenant and Sublessor hereunder, mutatis
mutandis.
C. Anything contained in this Section 10 to the contrary
notwithstanding, in the event that a casualty occurs to the "Demised Premises"
(as defined in the Overlease) giving rise to a right of Sublessor to terminate
the Overlease, Sublessor shall have the right to exercise such right in its sole
discretion. Sublessor shall, within five (5) Business Days of its receipt of a
notice of termination from Overlandlord, deliver a copy of the same to
Subtenant. Sublessor shall have no liability to Subtenant, or anyone claiming
through Subtenant, for exercising any such option to terminate the Overlease.
D. In the event that a casualty or other damage occurs to any
material portion of the Demised Premises, Subtenant shall deliver prompt written
notice thereof to Sublessor.
12. ASSIGNMENT AND SUBLETTING.
A. Subtenant shall not, without the prior written consent of Sublessor
(which shall not be unreasonably withheld or delayed), assign, sell, mortgage,
pledge, or in any manner transfer this Sublease or any interest therein, or
permit any of the foregoing to occur involuntarily, by operation of law, or
otherwise, or sublet the Demised Premises or any part or parts thereof, grant
any concession or license, or otherwise permit occupancy of all or any part of
the Demised Premises by any person other than Subtenant. Those
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provisions of Article 8 of the Overlease which relate to Overlandlord's consent
requirements and Overlandlord's rights and obligations in connection with any
subletting or assignment are specifically incorporated herein and acknowledged
by Subtenant.
B. Notwithstanding anything contained herein to the contrary, provided
that Subtenant is not then in default under this Sublease, except as set forth
in Section 12E hereof, Subtenant may without the consent of Sublessor or
Overlandlord and without Sublessor's right to recapture as hereinafter provided,
sublet the Demised Premises or assign this Sublease to the extent that Sublessor
would have the right to sublet the "Demised Premises" (as defined in the
Overlease) or assign the Overlease under Section 11.05.A. or 11.05.B. of the
Overlease, as applicable, provided that Subtenant fulfills the conditions and
complies with the provisions of such Sections of the Overlease as incorporated
in this Sublease by Sections 3.D. and 3.E.
C. Notwithstanding anything contained herein to the contrary, except
for sublettings and assignments permitted without the consent of Sublessor as
provided in Section 11.B. hereof, if Subtenant desires to assign this Lease or
sublet the Demised Premises it shall request Sublessor's consent in a written
notice ("Subtenant's Request Notice"), which shall contain all of the material
terms relating to such assignment or subletting and Sublessor shall have the
right (the "Recapture Right") to recapture the portion of the Demised Premises
Subtenant wishes to sublet or assign by either terminating this Sublease or
subleasing back the Demised Premises from Subtenant (such sublease, the
"Recapture Sublease") at the lower of (i) the proposed sublet rental as set
forth in Subtenant's Request Notice or (ii) the rent provided for in this
Sublease. Sublessor shall exercise the Recapture Right by giving notice (the
"Recapture Notice") to Subtenant within thirty (30) days after receipt by
Sublessor of Subtenant's Request Notice. The effective date of the termination
or the Recapture Sublease shall be the date set forth in Subtenant's Request
Notice as the effective date of the proposed sublease or assignment. The
Recapture Sublease shall be in a form reasonably acceptable to Subtenant and
Sublessor and shall expressly (i) give Sublessor the absolute right, without
Subtenant's permission, to assign the Recapture Sublease and to further sublet
all or any part of the Demised Premises and to make any and all changes,
alterations and improvements therein and (ii) negate any intention that the
estate created under the Recapture Sublease be merged with any other estate held
by either Subtenant or Sublessor. Performance by Sublessor, or any assignee or
subtenant of Sublessor, under the Recapture Sublease shall be deemed performance
by Subtenant of any similar obligation under this Sublease and Subtenant shall
not be liable for any default under this Sublease or deemed to be in default
hereunder if
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such default is occasioned by or arises from any act or omission of Sublessor,
or any assignee or subtenant of Sublessor, or is occasioned by or arises from
any act or omission of any occupant of the Demised Premises.
D. The consent by Sublessor to any assignment, subletting or other
transfer of the Lease or the Demised Premises shall not constitute the consent
of Overlandlord thereto, and shall not be construed to relieve Subtenant from
obtaining the consent of Sublessor and Overlandlord to any other or further
assignment, subletting or transfer to the extent required by this Sublease or
the Overlease. No assignment, subletting (except for a Recapture Sublease to the
extent provided in Section 11C hereof) or other transfer shall release Subtenant
from the full performance of the obligations under this Sublease.
E. Subtenant shall not have the right to enter into any sublease (i)
which demises only a portion of the premises leased by Subtenant on any floor of
the Building, unless the excluded portion of the premises comprises Shared
Space, or (ii) which demises or allows the use of any Shared Space.
F. Subtenant shall not be required to share with Sublessor any profits
which Subtenant realizes in connection with any assignment or subletting
permitted hereunder; provided however, that Subtenant shall be obligated to pay
to Sublessor all, or the portion, of such profits which shall be payable to
Overlandlord pursuant to the Overlease. Subtenant acknowledges that in
calculating such profits the provisions of Section 11.03 of the Overlease shall
apply and accordingly, the space being sublet by Subtenant may be deemed to be
another part of the Demised Premises for determining Overlandlord's right to
receive all or any portion of such profits.
13. SUBLESSOR'S RIGHT TO RECAPTURE.
In the event that Subtenant ceases to meet the definition of
an "affiliate" of Sublessor's (as such term is defined in Section 11.05.A. of
the Overlease), Sublessor shall have the right to terminate this Sublease with
respect to that amount of rentable square footage required for Sublessor to be
deemed under the Overlease to lease at least four hundred thousand (400,000)
square feet. The area of the Demised Premises to be terminated (the "Area")
shall be reasonably determined by Subtenant, who hereby agrees that the Area
shall be contiguous and easily accessed by Sublessor.
14. INSURANCE.
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Upon thirty (30) days' notice, Subtenant shall pay to
Sublessor, Subtenant's pro rata share (based on a fraction, the numerator of
which is the RSF of the Demised Premises and the denominator of which is the
total square footage leased by Sublessor under the Overlease) of all of
Sublessor's costs to procure and maintain all insurance required by the terms of
the Overlease.
If at any time Sublessor ceases to own at least fifty-one
percent (51%) of Subtenant within thirty (30) days thereafter, Subtenant shall
procure and maintain all insurance necessary for Subtenant to comply with the
insurance requirements imposed upon Sublessor as "Tenant" under Article 19 of
the Overlease as incorporated herein. Such insurance shall name Sublessor as an
additional insured, in addition to the other entities which are required to be
named as additional insureds pursuant to the Overlease. Subtenant shall furnish
Sublessor and Overlandlord with certificates evidencing such insurance prior to
the expiration of such thirty (30) day period.
15. ALTERATIONS.
A. Subtenant shall not make any Alterations at the Demised Premises,
except in accordance with the provisions of the Overlease incorporated herein by
reference in Section 7 hereof. In addition to such provisions, the following
shall apply to any Alterations proposed to be performed by Subtenant:
(i) Sublessor's consent shall be deemed given if Overlandlord
consents to the Alteration in question; provided, however, that
Sublessor shall have the right to withhold consent to an Alteration to
which Overlandlord has otherwise consented if, in Sublessor's
reasonable opinion, such Alteration may adversely affect the risers
serving Sublessor's space or the building systems or other
infrastructure serving Sublessor's space. Notwithstanding the
foregoing, Subtenant shall not perform any alteration or work which
involves utilities, including without limitation gas and water, within
Proximity (as hereinafter defined) of any technology intensive area of
Sublessor (such as the data center) without Sublessor's prior, written
consent (which consent may be withheld in Sublessor's sole discretion);
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(ii) Subtenant shall not make any alterations which affect the
structural integrity of the Demised Premises, require slab penetration,
affect electrical systems or require plumbing installation or work to
be performed within Proximity (as hereinafter defined) of any space set
forth on Exhibit D (each a "Specialty Location") without obtaining the
prior written consent of Sublessor, which consent Sublessor shall have
the right to grant or withhold in Sublessor's sole discretion. As used
herein the term "Proximity" shall mean all space located on the floor
above (from slab to slab) any Specialty Location to the extent such
space is either directly above, or within ten feet of any space which
is directly above, a Specialty Location. For example, if a Specialty
Location is comprised of one square foot of area on the tenth floor of
the Building, Proximity shall mean that same square foot on the
eleventh floor, together with all space on the eleventh floor which is
within ten feet of such square foot on the eleventh floor, from the
floor slab to the ceiling slab of the eleventh floor.
(iii) Subtenant shall deliver to Sublessor all plans,
drawings, instruments, documents, certificates and other items required
to be delivered to Overlandlord under the Overlease, and Sublessor
shall prosecute the approval procedures with Overlandlord on
Subtenant's behalf with the degree of attention and diligence Sublessor
would exercise if doing the same on its own account, including without
limitation invoking, at Subtenant's request, the consent dispute
resolution mechanisms provided in the Overlease;
(iv) Sublessor shall have the right to approve, in its
reasonable discretion, Subtenant's contractors and other providers of
labor for the proposed Alteration in the event such proposed Alteration
may affect the risers serving Sublessor's space or otherwise affect
building systems or other infrastructure serving Sublessor's space;
B. Except as provided to the contrary in the Overlease, all Alterations
installed in the Demised Premises at any time, either by Subtenant or by
Sublessor or Overlandlord on Subtenant's behalf, shall be the property of
Subtenant during the term of this Sublease and, upon expiration or earlier
termination of the term of this Sublease, shall become the property of Sublessor
and shall remain upon and be surrendered with the Demised Premises unless the
terms of any consent Sublessor shall have given to Subtenant in connection
therewith shall expressly have required their removal or their removal is
required pursuant to the Overlease, in which event the same shall be removed
from the
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Demised Premises by Subtenant, at Subtenant's sole cost and expense, at or prior
to the expiration of the Term of this Sublease. Upon removal of any item as may
be permitted or required hereunder, Subtenant shall immediately, and at its sole
cost and expense, repair any damage to the Demised Premises or the Building due
to such removal. All property permitted or required to be removed by Subtenant
at the end of the Term remaining in the Demised Premises shall be deemed
abandoned and may, at the election of Sublessor, either be retained as
Sublessor's property or be removed from the Demised Premises by Sublessor at
Subtenant's expense. Except as provided to the contrary in the Overlease, all
furniture, furnishings, trade fixtures and other items of movable personal
property shall be the property of Subtenant and nothing contained herein shall
be construed as prohibiting Subtenant from removing same from the Demised
Premises.
16. SIGNAGE.
A. Sublessor hereby grants Subtenant the right to utilize a
proportionate share (as reasonably determined by Sublessor) of the Revenue
Generating Signage and Non-Revenue Generating Signage (the "Signage") granted to
Sublessor pursuant to the Overlease, from time to time. Subtenant shall be
entitled to one-half (50%) of the revenue derived from the commercial
exploitation thereof, as such commercial exploitation is permitted in Section
42.01.H(ii) of the Overlease; provided, however, that the determination as to
whether to commercially exploit such signage shall be made by Sublessor in
Sublessor's sole and absolute discretion. Subtenant's right to utilize the
Signage is subject to the reasonable rules, regulations, requirements and
limitations of Sublessor. Sublessor shall exercise exclusive control over the
installation, operation, maintenance, repair, exploitation and alteration of the
Signage (including the operation of any Signage control room). Subtenant shall
be obligated to pay Sublessor an amount equal to Subtenant's proportionate share
of the costs and expenses incurred by Sublessor in connection with the signage
(including all payments Sublessor is required to make to Overlandlord in
connection with retaining all rights to the signage) within ten (10) days of
Sublessor's request therefor. Subtenant shall lose its right to utilize the
Signage and share in any revenue derived therefrom from and after the date
Subtenant occupies less than fifty thousand (50,000) rentable square feet of
space in the Building.
B. Subtenant shall not, and hereby expressly acknowledges that
Subtenant shall not, have any right or interest in or to any rights of first
offer or rights to Building Top Signage granted to Sublessor pursuant to Article
42 of the Overlease.
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17. ELECTRICITY, CLEANING SERVICE.
A. Commencing on the Commencement Date or such later date on which
Sublessor first becomes liable for payments on account of electricity at the
Demised Premises either to Overlandlord under the Overlease or to the utility
provider if Sublessor has obtained direct metering, Subtenant shall pay to
Sublessor each month an amount equal to the cost for all electricity and energy
provided to, and/or consumed within, the Demised Premises. Such amount shall be
based upon the demand and consumption of electricity at the Demised Premises as
shown on a meter or submeter to be installed by Sublessor or Overlandlord on
each floor of the Demised Premises fully occupied by Subtenant, which amount
shall be computed and paid in accordance with the provisions of the Overlease.
In the event any portion of the Demised Premises is not separately metered for
any reason, Subtenant shall reimburse Sublessor for all costs incurred by
Sublessor with respect to the electricity and energy furnished to such portions
of the Demised Premises, which costs shall be reasonably determined by
Sublessor. It is the intent of Sublessor and Subtenant that Subtenant pay all
costs of electricity furnished to the Demised Premises without any cost or
profit being incurred or made by Sublessor with respect thereto.
B. In the event Sublessor elects to contract directly for cleaning
service, Subtenant may elect to (i) contract directly for cleaning service in
accordance with Article 29.03.I. of the Overlease with respect to the Demised
Premises, whereby Subtenant shall assume all the rights and obligations of
"Tenant" thereunder with respect to the Demised Premises, or (ii) request that
the Demised Premises be cleaned by Sublessor's cleaning service and be included
in Sublessor's cleaning contract. Subtenant shall pay as additional rent to
Sublessor, within ten (10) Business Days after receiving a statement therefor,
its proportionate share, as reasonably determined by Sublessor, of all costs
incurred under such contract.
18. REPRESENTATIONS AND WARRANTIES.
A. Subtenant hereby represents and warrants to Sublessor that the
person signing this Sublease on behalf of Subtenant has the full right and
authority to execute this Sublease on behalf of Subtenant, and that this
Sublease constitutes a valid and binding obligation of Subtenant enforceable
against Subtenant in accordance with its terms except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and by general
principles of
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equity (regardless of whether enforcement is sought in equity or at law).
Sublessor hereby represents and warrants to Subtenant that the person signing
this Sublease on behalf of Sublessor has the full right and authority to execute
this Sublease on behalf of Sublessor, and that this Sublease constitutes a valid
and binding obligation of Sublessor enforceable against Sublessor in accordance
with its terms except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in equity or at law).
B. Sublessor hereby represents and warrants that (i) Sublessor is the
holder of the interest of the tenant under the Overlease; (ii) the Overlease is
in full force and effect and, to the best of Sublessor's knowledge, Overlandlord
is not in default thereunder; and (iii) Sublessor, to the best of its knowledge,
is not in material default, and has received no written notice that it is in
default, under the Overlease.
19. SUBTENANT'S AND SUBLESSOR'S ADDITIONAL COVENANTS. Subtenant also
covenants as follows:
A. Subtenant hereby assumes and agrees to perform and comply with all
of the terms, covenants and conditions of the Overlease on the part of the
tenant thereunder to be performed and observed as they relate to the Demised
Premises, other than as expressly set forth in this Sublease.
B. Subtenant will not do or cause to be done or suffer or permit any
act or thing to be done or suffered which would or might constitute a default
under the Overlease or cause the Overlease or the rights of Sublessor, as tenant
thereunder, to be terminated or which would or might cause Sublessor to become
liable for any damages, costs, claims or penalties or would or might increase
the fixed rent, additional rent or other charges or obligations of Sublessor, as
tenant under the Overlease, or would or might adversely affect or reduce any of
Sublessor's rights or benefits under the Overlease.
C. Subtenant shall defend, indemnify and hold Sublessor and any
guarantor of Sublessor's obligations as tenant under the Overlease harmless from
and against any and all claims, actions, liabilities, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) arising from the use or occupancy by Subtenant of the Demised
Premises or the Building or from any work or thing done or any condition created
by or any other act or omission of Subtenant or its employees, agents,
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contractors, visitors or licensees, in or about the Demised Premises or any
other part of the Building, or from any breach of its obligations under this
Sublease. The provisions of this subsection C shall survive the expiration or
earlier termination of this Sublease.
D. Sublessor and Subtenant each promptly shall furnish to the other
copies of any notices of default given by Overlandlord to Sublessor or
Subtenant, as the case may be.
20. REMEDIES. If Subtenant defaults in the performance of any of the
terms, covenants or conditions of this Sublease or the Overlease beyond any
applicable notice and cure period, Sublessor shall be entitled to exercise any
and all of the rights and remedies to which it is entitled at law or in equity,
and also any and all of the rights and remedies specifically provided for in the
Overlease with the same force and effect as if herein specifically set forth in
full, and wherever in the Overlease rights and remedies are given to
Overlandlord, the same shall be deemed to refer to Sublessor.
21. BROKER. Sublessor and Subtenant each represent and warrant to the
other that it dealt with no broker in connection with this Sublease. Subtenant
hereby agrees to indemnify and hold Sublessor harmless from and against any and
all claims for commission, fee or other compensation and all liabilities, suits,
costs and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) arising out of any breach of the above representation and
warranty. Sublessor hereby agrees to indemnify and hold Subtenant harmless from
and against any and all claims for commission, fee or other compensation and all
liabilities, suits, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) arising out of any breach of the
above representation and warranty. Sublessor shall have no liability for any
brokerage commissions arising out of a further sublease, assignment or other
transfer by Subtenant. The provisions of this Article shall survive the
expiration or sooner termination of this Sublease.
22. NOTICES. All notices, requests, approvals, waivers, consents,
deliveries, payments or other communications ("Notices") that either party is
required or desires to send to the other in connection with this Sublease shall
be in writing, duly executed by the party sending the notice, and sent by (i)
hand delivery, against a signed receipt, (ii) certified or registered mail,
return receipt requested, or (iii) a nationally recognized overnight courier
service providing a signed receipt of delivery, addressed as follows: (a) if to
Subtenant, (1) prior to the date on which Subtenant takes occupancy for the
conduct of its business (the
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"Subtenant's Occupancy Date"), to Subtenant's address set forth at the beginning
of this Sublease and (2) from and after the Subtenant's Occupancy Date, to its
address at the Demised Premises, or to such other address as Subtenant shall
then have designated for that purpose by notice to Sublessor, and (b) if to
Sublessor, to Sublessor's address set forth at the beginning of this Sublease or
to such other address as Sublessor shall then have designated for that purpose
by notice to Subtenant. Notices shall be deemed delivered when received or, if
delivery is made and refused, when such delivery is made. In connection with any
action or proceeding brought by Sublessor against Subtenant under this Sublease,
Sublessor shall serve Subtenant with a copy of the summons, complaint or other
appropriate papers at the Demised Premises.
23. QUIET ENJOYMENT. Provided that Subtenant is not in default
hereunder, Subtenant may peaceably and quietly enjoy the Demised Premises,
subject to the Overlease and all matters to which the Overlease is subject and
the terms and conditions of this Sublease.
24. SECURITY DEPOSIT. Subtenant hereby covenants and agrees to pay
Sublessor an amount equal to Subtenant's proportionate share (as reasonably
determined by Sublessor) of the cost of procuring the Letter of Credit deposited
with Overlandlord (or the holder of Overlandlord's Mortgage) at the time of the
execution and delivery of the Overlease, which amount shall be payable on the
execution and delivery hereof. In addition thereto, on the commencement of each
lease year commencing on May 19, 2001, Subtenant shall pay Sublessor an amount
equal to the product of (i) the product of (1) One Hundred and Twenty Million
Dollars ($120,000,000) and (2) a fraction, the numerator of which is the RSF of
the Demised Premises and the denominator of which is the total square footage
leased by Sublessor pursuant to the Overlease and (ii) fifty basis points (.5%)
during each year of the Term, provided however, that Subtenant shall not be
obligated to pay such amount for any full lease year for which it has posted the
New Letter of Credit (as hereinafter defined). If at any time Sublessor ceases
to own at least fifty-one percent (51%) of Subtenant ("Control Cessation"),
Subtenant shall, within thirty (30) days' of such Control Cessation deliver to
Sublessor an unconditional, irrevocable and transferable letter of credit in
form and substance acceptable to Sublessor (the "New Letter of Credit"), issued
by and drawn on a bank satisfactory to Sublessor and which is a member of the
New York Clearing House for the account of Sublessor, for a term expiring on
July 31, 2011, in an amount equal to the product of (i) One Hundred and Twenty
Million Dollars ($120,000,000) and (ii) a fraction, the numerator of which is
the RSF of the Demised Premises and the denominator of which is the total square
footage leased by
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Sublessor pursuant to the Overlease. If Subtenant defaults in respect of any of
the terms, provisions and conditions of this Sublease, Sublessor may present the
New Letter of Credit for payment and apply or retain the whole or any part of
the proceeds thereof, to the extent required for the payment of any rent or for
any sum which Sublessor may expend or be required to expend by reason of
Subtenant's default. If Sublessor applies or retains any part of the proceeds of
the New Letter of Credit, Subtenant, upon demand, shall deposit with Sublessor
the amount so applied or retained so that Sublessor shall have the full deposit
on hand at all times during the Term. If Subtenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Sublease, the New Letter of Credit shall be returned to Subtenant after the
Expiration Date and after delivery of possession of the entire Demised Premises
to Sublessor.
25. TERMINATION OF OVERLEASE. Subject to the provisions of Section 6B
hereof, in the event of and upon the termination or cancellation of the
Overlease pursuant to any of the provisions thereof, whether or not the
Commencement Date of this Sublease shall have occurred, this Sublease shall
automatically expire and terminate and shall be of no further force and effect,
and Subtenant shall have no claim against Sublessor of any kind whatsoever.
Sublessor shall, within five (5) Business Days of its receipt of a notice of
termination from Overlandlord, deliver a copy of the same to Subtenant.
26. RIGHTS TO EXPANSION SPACE. In the event (i) Sublessor is offered
the right to lease additional space in the Building pursuant to an option
contained in the Overlease, (ii) Sublessor elects not to lease any such
additional space for its own use, and (iii) the Overlease would permit Sublessor
to lease such space for occupancy by Subtenant, Sublessor shall notify Subtenant
in writing (an "Expansion Notice") of the availability of such space and the
terms applicable to the leasing thereof to the extent known by Sublessor, and
the date by which Owner must be notified of Sublessor's election. Subtenant
shall have until the date which is five (5) days prior to the date upon which
Sublessor must notify Owner of its decision to elect to lease such space. In the
event Subtenant notifies Sublessor that it elects to lease such space, Sublessor
shall take such steps as are necessary to lease such additional space from Owner
on behalf of Subtenant. Upon the leasing of any such additional space pursuant
to Subtenant's direction, this Sublease shall automatically be deemed amended to
include such space; provided that (x) Subtenant shall be responsible for all
costs and expenses, including, without limitation, all rent and additional rent
due with respect to such additional space, (y) the term of this Sublease with
respect to such additional space only shall be coterminous with the lease of
such additional space, and (z) all terms and provisions of the Overlease
applicable to such
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additional space shall be deemed incorporated such that Subtenant shall have all
of the obligations pertaining thereto. Sublessor shall not be liable to
Subtenant in any respect for Owner's failure to lease such additional space to
Sublessor or for any other failure by Owner with respect to such additional
space.
27. NO RIGHT TO RENEWAL OPTIONS. Notwithstanding anything to the
contrary contained in the Sublease, the term of this Sublease shall not be
extended for any reason including, without limitation, Sublessor's election to
extend the term of the Overlease pursuant to Article 41 thereof or otherwise.
28. SURRENDER. Upon the expiration or other termination of this
Sublease, Subtenant shall quit and surrender the Demised Premises, broom clean,
in good order and condition, ordinary wear and tear and damage by fire or other
casualty excepted, vacant and free of all of its property and otherwise in
accordance with the terms and conditions of this Sublease and the Overlease.
Subtenant's obligations under this provision shall survive the expiration or
earlier termination of this Sublease.
29. NO WAIVER. The failure of either party to insist upon the strict
performance or observance of any obligation of the other party under this
Sublease or to exercise any right or other remedy under or with respect to this
Sublease shall not be construed as a waiver or relinquishment for the future of
that obligation, right or other remedy of either party. Sublessor's receipt and
acceptance of any rent, or acceptance of performance by Sublessor of any
obligation, with knowledge of Subtenant's breach or default under this Sublease,
shall not be construed as a waiver of that breach or default. No waiver by
either party of any provision of this Sublease shall be deemed to have been made
unless specifically expressed in a writing signed by the waiving party.
30. NO ORAL CHANGE. This Sublease cannot be changed orally or in any
manner other than by a written agreement executed by both parties.
31. SUCCESSORS AND ASSIGNS. Except as may be otherwise specifically
provided in this Sublease, the provisions of this Sublease shall extend to, bind
and inure to the benefit of the parties hereto and their respective personal
representatives, heirs, successors and permitted assigns. In the event of any
assignment or transfer of Sublessor's interest in the Overlease, Sublessor shall
be released and discharged from all covenants, conditions and agreements of
Sublessor under this Sublease arising from and after the effective date of such
assignment or transfer; provided, however, that such covenants,
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conditions and agreements arising from and after the effective date of such
assignment or transfer shall be deemed to be assumed by and to be binding upon
such assignee or transferor.
32. INTERPRETATION.
A. This Sublease shall be governed by and construed in accordance with
the laws of the State of New York.
B. If any provision of this Sublease or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Sublease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the fullest extent permitted by law.
C. The captions, headings and titles contained in this Sublease, if
any, are solely for convenience of reference and shall not affect its
interpretation.
D. This Sublease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Sublease to
be drafted.
33. EXECUTION AND DELIVERY. The submission to Subtenant of this
Sublease shall not constitute an option or offer for the subleasing of the
Demised Premises, and the execution and/or delivery of this Sublease by
Subtenant shall have no binding force or effect on Sublessor unless and until
Sublessor and Subtenant shall have (i) executed this Sublease, and (ii)
delivered a fully-executed counterpart to each other.
34. COUNTERPARTS. This Sublease may be executed in one or more
counterparts, each of which shall constitute an original hereof and all of
which, taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Sublessor and Subtenant have executed and delivered
this Sublease as of the date first above written.
SUBLESSOR: REUTERS C CORP.
By: /s/ Thomas Glocer
Name: Thomas Glocer
Title: Chief Executive Designate
SUBTENANT: INSTINET GLOBAL HOLDINGS, INC.
By: /s/ Ken Marshall
Name: Ken Marshall
Title: Executive VP and Chief
Administrative Officer
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