New York-New York-601 West 26th Street Sublease - Tomar Studios Inc. and Screaming Media.com Inc.
SUBLEASE
This SUBLEASE made as of February 4, 2000 (this "Sublease") by and between
Tomar Studios, Inc., a New York corporation having an address at 601 West 26th
Street, 13th Floor, New York, New York 10001, as sublandlord ("Sublandlord"),
and Screaming Media.com, Inc., a Delaware corporation having an address at 601
West 26th Street, 13th Floor, New York, New York 10001, as subtenant
("Subtenant").
Sublandlord is a party to that certain Agreement of Lease, dated December
30, 1998, between 601 West Associates LLC, as landlord ("Landlord," which term
shall include any successor to the interests of Landlord in the Premises), and
Sublandlord, as tenant (the "Agreement of Lease"), as supplemented by that
certain letter agreement, dated December 29, 1998, between the Landlord and the
Sublandlord (the "Letter Agreement"), and as modified by that certain Lease
Modification and Extension Agreement, dated as of April 28, 1999, between
Landlord and Sublandlord (the "Modification") (the Agreement of Lease, as so
supplemented and so modified (and including the Rules and Regulations referred
to in Paragraphs 36 and 79 of the Agreement of Lease as such Rules and
Regulations may be modified from time to time as provided in Paragraph 36 of the
Agreement of Lease), the "Master Lease"), with regard to certain premises known
as Suite SE1-7 on the thirteenth (13th) floor of the building known as 601 West
26th Street, in the Borough of Manhattan, City of New York (the "Building"), all
as more fully set forth in the Master Lease (such premises the "Premises"). A
copy of the Master Lease is attached to this Sublease as Exhibit A. Sublandlord
wishes to sublease to Subtenant, and Subtenant wishes to sublease from
Sublandlord, the Premises. The Premises are approximately as shown on Exhibit B
to this Sublease.
Accordingly, Sublandlord and Subtenant, for themselves and their successors
and assigns, hereby agree as follows:
1. AGREEMENT. Sublandlord subleases the Premises to Subtenant, and
Subtenant subleases the Premises from Sublandlord, upon the terms and conditions
set forth in this Sublease. Subject to the exception set forth at the beginning
of the second sentence of Paragraph 10 hereof and except for those terms,
covenants, conditions and other provisions of the Master Lease referred to in
the last sentence of Paragraph 10 hereof, the terms, covenants, conditions and
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other provisions of the Master Lease (including, without limitation, the terms,
covenants, conditions and other provisions of Paragraph 52 thereof), are
incorporated into this Sublease as the agreement of Sublandlord and Subtenant as
though Sublandlord were Landlord as the landlord under the Master Lease and
Subtenant were Sublandlord as the tenant under the Master Lease, all as more
fully set forth in Paragraph 10 hereof (provided that any references in the
Master Lease to any subtenant shall also refer to Subtenant and any references
in Paragraph 52,53 or 69 of the Master Lease to Landlord shall be deemed to be
references to both Landlord and Sublandlord).
2. TERM. The term of this Sublease will begin on the date hereof (such date
the "Commencement Date") and will end on the day immediately preceding the last
day of the term of the Master Lease, inclusive, unless sooner terminated
pursuant to any of the terms, covenants or conditions of this Sublease or
pursuant to law. The term referred to in the preceding sentence (whether ending
on the day immediately preceding the last day of the term of the Master Lease or
sooner because sooner terminated pursuant to any of the terms, covenants or
conditions of this Sublease or pursuant to law) is referred to herein as the
"Term."
3. RENT
(a) Rent. As used in this Sublease, the term "Rent" shall mean and
include all Base Rent (as defined in subparagraph (b) of this Paragraph 3, and
all Additional Rent (as defined in subparagraph (c) of this Paragraph 3).
(b) Base Rent
(i) Amount. Subtenant will pay Sublandlord as base rent (the
"Base Rent") for the Premises in each year during the term hereof the
annual amount set forth on Exhibit C hereto.
(ii) Base Rent Payable Monthly In Advance. All amounts of Base
Rent shall be payable in equal monthly installments as set forth on Exhibit C
hereto without notice, demand, offset, or counterclaim, each such installment of
Base Rent to be paid in advance on the first day of each month (except that the
Base Rent for the month beginning on the Commencement Date shall be payable
simultaneously with the execution and delivery hereof by Subtenant).
(iii) Pro-Ration. If the Commencement Date hereof shall occur on
other than the first day of a month, any payment of Base Rent payable with
respect to any partial calendar month will be prorated on a per diem basis.
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(c) Additional Rent.
(i) Items Constituting Additional Rent. Subtenant shall pay as
additional rent the following amounts (the "Additional Rent"), each such amount
of Additional Rent to be paid as and when indicated:
(A) all amounts payable by Sublandlord to Landlord under the
Master Lease in respect of increases in "Taxes" (as defined in Paragraph 46 of
the Master Lease) over the amount of such Taxes for the tax year commencing on
July 1, 1999 and ending on June 30, 2000, any such amount to be payable by
Subtenant to Sublandlord as and when the same is payable by Sublandlord pursuant
to the Master Lease;
(B) all amounts from time to time payable by Sublandlord
under the Master Lease in respect of the water, sprinkler and sewer charges,
such amounts to be payable as and when installments of Base Rent are payable
hereunder, and such amounts to be subject to increase in the event of any
increase in the corresponding amount payable under the Master Lease;
(C) all amounts payable by Sublandlord for electricity
furnished to the Premises, any such amount to be payable by Subtenant to
Sublandlord upon Sublandlord's presentation to Subtenant of a copy of any bill
showing any amount payable by Sublandlord for electricity furnished to the
Premises;
(D) all amounts payable under the lease and maintenance
agreement with respect to the alarm system in the Premises, such amounts to be
payable as and when payments are required to be made by Subtenant under such
agreement; provided, that Subtenant shall be have the option, by notice to such
effect given to Sublandlord not later than the sixtieth (60th) day after the
Commencement Date, to elect to discontinue its use of such alarm system not
later than such sixtieth (60th) day, whereupon (provided that Subtenant in fact
discontinues such use) Subtenant shall have no further obligation to make
payments with respect to such alarm system for any period after such date of
discontinuance; and provided, further, that Subtenant hereby agrees that in the
event that Subtenant shall not give the notice referred to above in this
subparagraph (D) to Sublandlord by the sixtieth (60th) day after the
Commencement Date, then Subtenant shall be substituted for Sublandlord as a
party under such agreement and Subtenant shall
<PAGE> 4
assume all of Sublandlord's obligations under such agreement;
(E) all amounts payable under the lease and maintenance
agreement with respect to the telephone system in the Premises, such amounts to
be payable as and when payments are required to be made by Subtenant under such
agreement; provided, that Subtenant shall be have the option, by notice to such
effect given to Sublandlord not later than the sixtieth (60th) day after the
Commencement Date, to elect to discontinue its use of such telephone system not
later than such sixtieth (60th) day, whereupon (provided that Subtenant in fact
discontinues such use) Subtenant shall have no further obligation to make
payments with respect to such telephone system for any period after such date of
discontinuance; and provided, further, that Subtenant hereby agrees that in the
event that Subtenant shall not give the notice referred to above in this
subparagraph (E) to Sublandlord by the sixtieth (60th) day after the
Commencement Date, then Subtenant shall be substituted for Sublandlord as a
party under such agreement and Subtenant shall assume all of Sublandlord's
obligations under such agreement;
(F) all amounts payable to BellAtlantic with respect to all
BellAtlantic lines serving the Premises, such amounts to be payable as and when
payments are required to be made by Subtenant to BellAtlantic; provided, that
Subtenant shall be have the option, by notice to such effect given to
Sublandlord not later than the sixtieth (60th) day after the Commencement Date,
to elect to discontinue its use of such lines not later than such sixtieth
(60th) day, whereupon (provided that Subtenant in fact discontinues such use)
Subtenant shall have no further obligation to make payments with respect to such
lines for any period after such date of discontinuance; and provided, further,
that Subtenant hereby agrees that in the event that Subtenant shall not give the
notice referred to above in this subparagraph (B) to Sublandlord by the sixtieth
(60th) day after the Commencement Date, then Subtenant shall assume all of
Sublandlord's obligations to BellAtlantic with respect to such lines; and
(G) if, pursuant to the provisions of the Master Lease,
Sublandlord is charged for additional rent or other amounts other than the
amounts referred to above in subparagraphs (i)(A), (B), (C), (D), (B) and (F) of
this Paragraph 3 (including, without limitation, any amounts payable in respect
of any additional services procured by Subtenant from Landlord), then, in
addition to such amounts referred to in such subparagraphs, Subtenant will be
liable for such additional rent or other amounts, such additional rent or other
amounts to be paid to the Sublandlord as Additional Rent.
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(ii) Pro-Ration. If the Commencement Date shall occur
on other than the first day of a month, any payment of Additional Rent payable
with respect to any partial calender month will be prorated on a per diem basis.
4. SECURITY DEPOSIT. Subtenant has deposited with Sublandlord the sum of
One Hundred Twenty-Eight Thousand Two Hundred Fifty Dollars ($128,250.00) which
Sublandlord will hold in an interest bearing account as a security deposit in
accordance with, and subject to the terms and provisions of, Paragraphs 32 and
58 of the Master Lease. In the event that Sublandlord shall at any time apply
any of such security deposit as provided herein or in the Master Lease, then,
upon the request of Sublandlord to Subtenant specifying the amount so applied,
Subtenant shall immediately deposit with Sublandlord, as an additional security
deposit, the amount so applied, so that the security deposit held by Sublandlord
shall at all times during the term hereof be equal to One Hundred Twenty-Eight
Thousand Two Hundred Fifty Dollars ($128,250.00). Sublandlord shall pay
subtenant the interest earned on such amount, less the one percent (1%)
administrative fee referred to in Section 7-103 of the General Obligations Law,
at the end of the term of the Sublease (subject to application of such interest
as provided in paragraph 2 of Section 7-103 of the General Obligations Law). In
the event that this Sublease is terminated (a) due to a default by Sublandlord
under this Sublease or (b) due to a default by Landlord or Sublandlord under the
Master Lease, then Sublandlord shall immediately return to Subtenant any
unapplied portion of the Security Deposit and any unapplied portion of prepaid
rent along with all accrued interest thereon (but less the one percent (1%)
administrative fee referred to in Section 7-103 of the General Obligations Law).
Sublandlord agrees to take such actions as may reasonably be requested by
Sublandlord to provide that all amounts of interest earned on the security
deposit (less the one percent (1%) administrative fee retained by Sublandlord)
shall be deemed to be income of the Subtenant for all income tax purposes.
5. USE OF PREMISES. Subtenant shall use the Premises for the purposes
permitted under the Master Lease and for such additional purposes as may be
consented to by Landlord, and for no other purposes. Under no circumstances
shall Subtenant use the Premises or permit the Premises to be used for
manufacturing or for the creation, display or distribution of pornographic
materials.
6. ACCEPTANCE OF PREMISES. Subject only to the fourth sentence of this
Paragraph 6, Subtenant acknowledges that it has inspected the Premises and that
it accepts the Premises in their present condition. Without limiting the
generality of the
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foregoing, Subtenant acknowledges that it or its consultants have determined
that the electrical service in the Premises will meet the Subtenant's needs.
Sublandlord makes no representation as to the suitability or adequacy of the
Building or the Premises (including, without limitation, the electrical service
in the Building or the Premises) for any use to be made of the Premises by
Subtenant. Notwithstanding the foregoing in this Paragraph 6, but subject to the
last sentence of this Paragraph 6, Sublandlord hereby indemnifies Subtenant and
holds Subtenant harmless from and against, and agrees to pay for, all costs or
expenses whatsoever which Subtenant may incur in order to correct any latent
defect in work performed by Sublandlord on the Premises that caused such work
not to be in compliance with applicable law as in effect on the date upon which
such work was completed (such a latent defect, hereinafter, a "Latent Defect");
provided, however, that such indemnity shall cover only such costs and expenses
as must necessarily be incurred in order to render the work affected by a Latent
Defect in compliance with applicable law as in effect on the date upon which
such work was completed. Nothing in the immediately preceding sentence shall be
deemed to provide for indemnification of Subtenant by Sublandlord against any
costs or expenses incurred by Subtenant (a) with respect to any Latent Defect
that arises as a result of any alternations made to the Premises by Subtenant,
(b) with respect to any Latent Defect that arises as a result of any use of the
Premises by Subtenant that differs from Sublandlord's use of the Premises, (c)
in connection with any inspection of the work performed by Sublandlord on the
Premises, (d) for attorneys' fees or expenses; (e) in connection with obtaining
any permit (including, without limitation, any building permit) or any
certificate of occupancy (except for those costs and expenses incurred in
correcting a Latent Defect so as to render the work affected thereby in
compliance with applicable law as in effect on the date upon which such work was
completed); or (f) in connection with any patent defect in any work performed by
Sublandlord.
7. SERVICES; RESTORATION OF PREMISES AFTER FIRE OR OTHER CASUALTY
(a) Services. Sublandlord shall provide to Subtenant such services as
are provided to it by Landlord pursuant to the Master Lease, to the extent of
Landlord's provision of such services from time to time. Subtenant shall have
the right, at its sole cost and expense, in its name or in the name of
Sublandlord, to take any action, as provided in the Master Lease or by law, to
enforce the rights of Subtenant as the tenant under the Master Lease as against
the Landlord and Sublandlord shall execute any and all documents which may be
reasonably necessary in order to enable Subtenant to enforce such rights under
this Paragraph 7(a).
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(b) Fire or Other Casualty. In the event that the Premises shall be
damaged by fire or other casualty, Sublandlord shall have no liability for
repair or restoration of the Premises. In the event that the occurrence of such
fire or other casualty shall give rise to a right of Sublandlord to elect to
terminate the Master Lease, Subtenant shall have the same right as against
Sublandlord (but Subtenant shall have no right to exercise such right of
Sublandlord under the Master Lease). In the event that the occurrence of such
fire or other casualty shall give rise to a right of Sublandlord to reoccupy the
Premises upon the restoration thereof, and Subtenant desires to repossess the
Premises upon the restoration thereof, then Subtenant shall have the right to
exercise Sublandlord's right to elect to reoccupy the Premises.
(c) Abatement. For any period in which Rent or other charges are abated
under the Master Lease for fire, other casualty, or disruption of services, Rent
of the same type under this Sublease and charges of the same type under this
Sublease shall abate for the same period.
8. INSURANCE. Without limiting the generality of Paragraph 1 or Paragraph
10 hereof, the Subtenant shall at all times during the term hereof carry the
policies of insurance referred to in Paragraph 53 of the Master Lease, all
references to "Landlord" in such Paragraph 53 shall be deemed to be references
to both Landlord and Sublandlord, and both the Landlord and the Sublandlord
shall be named as additional insured parties (or loss payees, if Paragraph 53
provides in a particular instance that Landlord shall be designated a loss
payee) under the policies referred to in such Paragraph 53. In addition to the
insurance referred to in such Paragraph 53, throughout the term hereof Subtenant
shall maintain with insurers of the type described in such Paragraph 53 a policy
or policies of "special form" insurance covering any alterations made on the
Premises on or after the date hereof and covering all personal property (whether
or not affixed and whether belonging to Landlord, Sublandlord or Subtenant)
located from time to time in or upon the Premises, in an amount sufficient to
cover the full replacement value of such alterations and such property. The
Landlord and the Sublandlord shall be loss payees under such "special form"
polies or policies, as their interests may appear, and any such policy shall
provide that it shall not be canceled without thirty (30) days written notice to
Landlord and Sublandlord. Upon the request of Landlord or Sublandlord, Subtenant
shall obtain waivers of subrogation with respect to any liability or "special
form" policy or policies referred to in this Paragraph 8.
9. PERMITS AND CERTIFICATES
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(a) Certificate of Occupancy. Subtenant acknowledges that Sublandlord
has not obtained a certificate of occupancy with respect to or in connection
with Sublandlord's alterations to, or Sublandlord' s installation of leasehold
improvements in, the Premises and Subtenant agrees that Sublandlord shall have
no obligation to apply for or to obtain, or to pay any amount in connection with
Subtenant's application for or Subtenant's obtaining, any such certificate of
occupancy. Subtenant acknowledges that it is familiar with the certificate of
occupancy applicable to the Premises and Subtenant agrees that Sublandlord shall
have no obligation to apply for or to obtain, or to pay any amount in connection
with Subtenant's application for or Subtenant's obtaining, any changes to such
certificate of occupancy.
(b) Air Conditioner Permit. Subtenant acknowledges that Sublandlord has
not obtained any permits in connection with Sublandlord's installation of the
air conditioning system in the Premises and Subtenant agrees that Sublandlord
shall have no obligation to apply for or to obtain, or to pay any amount in
connection with Subtenant's application for or Subtenant's obtaining, any such
permit(s).
(c) Public Assembly Permit. Subtenant acknowledges that no public
assembly permit has been issued with respect to the Premises and Subtenant
agrees that Sublandlord shall have no obligation to apply for or to obtain or to
pay any amount in connection with Subtenant's application for or Subtenant's
obtaining, any such public assembly permit.
10. MASTER LEASE
(a) Sublease and Master Lease. This Sublease is subject and subordinate
to the Master Lease. Except for those provisions of the Master Lease that
conflict with provisions hereof, except as provided in the last sentence of this
Paragraph 10 and except that in no event shall Subtenant have any grace or other
cure period with respect to defaults in the payment of Rent or of any other
amounts payable under this Sublease, all of the terms, covenants, conditions and
other provisions of the Master Lease (including, without limitation, the terms,
covenants, conditions and other provisions of Paragraph 52 thereof) are
incorporated into this Sublease as the agreement of Sublandlord and Subtenant as
though Sublandlord were Landlord as the landlord under the Master Lease and
Subtenant were Sublandlord as the tenant under the Master Lease (provided that
any references in the Master Lease to any subtenant shall also refer to
Subtenant and any references in Paragraph, 52, 53
<PAGE> 9
or 69 of the Master Lease to Landlord shall be deemed to be references to both
Landlord and Sublandlord); provided that Subtenant shall make no alterations to
the Premises that would under the Master Lease require the consent of Landlord
without the prior written consent of Landlord and Sublandlord (the consent of
Sublandlord not to be unreasonably withheld). Notwithstanding the foregoing,
provided that Sublandlord promptly gives Subtenant a copy of any notice from
Landlord with respect to any default under the Master Lease that relates to any
action or inaction of Subtenant and advises Subtenant of the date upon which
such notice was given to Sublandlord, then any cure period (if any) afforded
Subtenant with respect to such default shall be deemed to have commenced upon
the date upon which Sublandlord received such notice. Subtenant has received a
copy of the Master Lease and Subtenant represents that it has read and is
familiar with the terms of the Master Lease. Subtenant will not cause or allow
to be caused any default under the Master Lease, and Subtenant will comply with
and perform all applicable terms and conditions of the Master Lease to be
complied with or performed by Sublandlord. References in specific instances
herein to the Master Lease shall not be construed as limiting the generality of
Paragraph 1 hereof or of the first or third sentences of this Paragraph 10.
Without limiting the generality of the exception set forth at the beginning of
the second sentence of this subparagraph (a), the following provisions and parts
of the Master Lease shall not be applicable to this Sublease: Paragraphs 42, 43,
44 (other than the first sentence of such Paragraph 44), 45, 50 (other than
subparagraph 50.12 of such Paragraph 50), 55 or 83 of the Agreement of Lease;
the entire Letter Agreement; and the entire Modification.
(b) Subtenant's Right to Enforce Master Lease. Except to the extent of
Subtenant's obligation to pay rent hereunder and except as otherwise provided in
subparagraph (b) of Paragraph 7 hereof, and subject to the terms and conditions
of this Sublease, Subtenant shall be entitled to enforce all the rights of the
Sublandlord provided for in the Master Lease, Sublandlord hereby agreeing to
cooperate fully with Subtenant in the enforcement thereof.
(c) Sublandlord's Compliance with Master Lease. Sublandlord shall not
do any act, matter or thing, or fail to do any act, matter or thing, if such
action or failure to act would result in, or constitute a violation or breach by
Sublandlord as tenant under the Master Lease of or a default under, the Master
Lease or otherwise result in the disturbance of Subtenant's possession of the
Premises.
(d) Subtenant's Right to Make Payments to Landlord. Provided that
Subtenant is not in default hereunder, in the event that Sublandlord fails to
make
<PAGE> 10
payments of rent or any other charges due under the Master Lease (unless
Sublandlord shall be permitted under the Master Lease or by law to withhold such
payments of rent or other charges), Subtenant shall be entitled to make any such
payments directly to Landlord and deduct any amounts paid from its Rent and
other charges due under this Sublease.
(e) Sublandlord's Indemnity in the Event that Subtenant Cures Default
of Subtenant under Master Lease. In the event that the Master Lease would have
been terminated by reason of Sublandlord's default thereunder but for the fact
that Subtenant cured such default, Sublandlord shall indemnify Subtenant and
hold Subtenant harmless from and against all loss, damage or expense incurred by
Subtenant in effecting such cure, including, without limitation, reasonable
attorneys' fees and the additional monies by way of rent or otherwise expended
by Subtenant.
(f) Termination of Master Lease. In the event that the Master Lease is
terminated, then, as between Sublandlord and Subtenant, this Sublease shall
terminate at the same time without any liability on the part of Sublandlord to
Subtenant.
(g) Default under Warrant Default Hereunder. In the event that
Subtenant shall default in making any payment referred to in Section 7 of the
Warrant of even date herewith of Subtenant in favor of Sublandlord, then, at the
option of Sublandlord exercisable by notice to such effect given to Subtenant,
such default shall be deemed to be and shall be a payment default by Subtenant
under this Sublease.
(h) Commercial Rent Tax. Subtenant shall furnish to Sublandlord, upon
the request of Sublandlord, such information and such copies of documents as
Sublandlord may reasonably request in order to permit Sublandlord to receive a
commercial rent tax credit for the commercial rent tax paid by Subtenant.
11. GUARANTY. The obligations of Subtenant hereunder shall be guaranteed by
guaranty of Jay Chiat, the Chairman and Chief Executive Officer of Subtenant, in
the form of Exhibit D.
12. CERTAIN DAMAGES; RESTORATION OF PREMISES BY SUBTENANT
(a) Liquidated Damages upon Failure of Subtenant to Surrender Premises.
In the event that Subtenant were to fail to surrender the Premises in the
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manner provided in this Sublease upon the expiration or earlier termination of
this Sublease, the amount of damages that Sublandlord would suffer would be
difficult or impossible to ascertain. Therefore, the parties agree that in the
event that Subtenant shall fail to surrender the Premises in the manner provided
in this Sublease upon the expiration or earlier termination of this Sublease,
then Subtenant shall pay to Sublandlord for each day on which Subtenant occupies
the Premises after the expiration or earlier termination of this Sublease, as
liquidated damages and in addition to any Additional Rent payable with respect
to such period, Base Rent at a rate equal to twice the per diem rate at which
Base Rent was payable on the day upon which the expiration or earlier
termination of this Sublease occurred. The parties hereto acknowledge and agree
that the liquidated damages provided for in this subparagraph represent a
reasonable estimate by the parties of the damages that would be suffered by
Sublandlord were Subtenant to fail to surrender the Premises in the manner
provided in this Sublease upon the expiration or earlier termination of this
Sublease and that they do not constitute a penalty. Nothing in this subparagraph
shall limit any other damages to which Sublandlord may be entitled in respect of
any breach of any term or provision of this Sublease by Subtenant.
(b) Reimbursement of Costs of Enforcement. Without limiting the
generality of Paragraph 52 of the Master Lease, Subtenant shall reimburse
Sublandlord for all legal fees and disbursements incurred by Sublandlord in
enforcing any provision of this Sublease. Sublandlord shall reimburse Subtenant
for all legal fees and disbursements incurred by Subtenant in enforcing any
provision of this Sublease.
(c) Restoration of Premises by Subtenant. In the event that Subtenant
shall close off or otherwise alter the door or doorway to the Premises or shall
alter or remove the demising wall between the Premises and the premises that
Subtenant presently occupies in the Building (which shall be subject to the
consent of Sublandlord and Landlord), then, prior to its surrender of the
Premises (whether upon the expiration or earlier termination of this Sublease),
Subtenant shall, in addition to taking any action required to be taken by
Subtenant under Paragraph 3 of the Master Lease, restore such door and doorway
and such demising wall to the condition they were in on the Commencement Date.
13. BROKER. Each party represents and warrants to the other that in
connection with the transactions contemplated by this Sublease it did not deal
directly or indirectly with any broker or finder, the representation and
warranty in this sentence to survive the expiration or earlier termination of
this Sublease. Each
<PAGE> 12
party hereby indemnifies the other and holds the other harmless from and against
any and all damages, costs, losses, liabilities or expenses arising out of or
related to claims arising out of any breach of the representation contained in
this Paragraph 13, such indemnity and hold harmless to include, without
limitation, the obligation to provide all costs of defense against any such
claims.
14. ASSIGNMENT
(a) Prohibition against Assignment or Subletting by Subtenant.
Subtenant will not, without the prior written consent of Sublandlord and the
prior written consent of Landlord, assign this Sublease or further sublet the
Sublet Premises in whole or in part; nor will Subtenant permit Subtenant's
interest in this Sublease to be vested in any third party by operation of law or
otherwise. Without limiting the generality of the foregoing or of Paragraphs 1
and 10 hereof, Subtenant acknowledges that, in the event that Sublandlord and
Landlord shall consent to any assignment hereof or further subletting of the
Sublet Premises, such assignment or further subletting shall be subject to the
terms and provisions of the Master Lease.
(b) Sublandlord's Assignment of this Sublease. Sublandlord shall be
permitted to assign this Sublease provided that prior to any assignment hereof
the assignee hereof delivers to Subtenant an instrument whereby such assignee
(i) agrees to recognize Subtenant's rights hereunder and (ii) expressly assumes
all of Sublandlord's obligations hereunder. In connection with such assignment,
Sublandlord and any assignee of this Sublease shall, with respect to the
security deposit deposited with Sublandlord hereunder, comply with the
provisions of Section 7-105 of the General Obligations Law regarding transfers
of security deposits.
(c) Sublandlord Released upon Assignment. In the event that Sublandlord
shall surrender or otherwise voluntarily terminate the Master Lease, or shall
assign this Sublease in compliance with subparagraph (b) of this Paragraph 14,
then Sublandlord shall have no further duties or obligations whatsoever
hereunder, and Landlord or the assignee hereof shall for all purposes be the
Sublandlord hereunder.
15. MERGER; AMENDMENT. All prior understandings and agreements between
Sublandlord and Subtenant are merged within this Sublease, which fully and
completely sets forth their understanding. This Sublease may not be changed or
terminated orally or in any other manner than by an agreement in writing signed
by the party against which enforcement of the change or termination is sought.
<PAGE> 13
16. NOTICES
(a) Manner of Giving Notices. Any notice required or permitted to be
given hereunder shall be in writing and may be given by telecopier, by certified
mail, return receipt requested, or by personal delivery (including by reputable
overnight courier service such as Federal Express). Any notice given by
telecopier shall be deemed given when confirmation of transmission has been
received, provided that if such notice is transmitted at any time other than
during Normal Business Hours (as such term is defined below) such notice shall
be deemed given at the next commencement of Normal Business Hours. Any notice
given by certified mail, return receipt requested, shall be deemed given on the
fourth (4th) day after the date upon which it is mailed, postage paid. Any
notice given by personal delivery shall be deemed given when delivered, provided
that if such notice is delivered at any time other than during Normal Business
Hours such notice shall be deemed given at the next commencement of Normal
Business Hours. As used in this Paragraph 16, the term "Normal Business Hours"
means the hours between 9:00 a.m. and 4:30 p.m. in the time zone covering the
recipient's address as set forth below, Monday through Friday, exclusive of any
day that is not a Business Day (the term "Business Day" meaning any day other
than a day when banks in the State of New York are required or permitted to be
closed). Any notice given hereunder shall be given to Sublandlord or Subtenant,
as the case may be, at the following address or telecopier number (and whether
to an address or a telecopier number, to the attention of the person indicated):
If to Sublandlord:
Tomar Studios, Inc.
601 West 26th Street
13th Floor
New York, New York 10001
Attn.: Tom Marrazza
President
Telecopier: (212) 627-1987
and from and after the Commencement Date:
Tomar Studios, Inc.
c/o Tom Marrazza
<PAGE> 14
1 Irving Place
Apartment V9A
New York, New York 10003
with a copy to:
Terrence M. Bennett
Bennett & Samios, LLP
845 Third Avenue - 21st Floor
New York, New York 10022
Telecopier: (212) 753-6262
If to Subtenant:
Screaming Media.com, Inc.
601 West 26th Street
New York, New York 10001
Attn.: William P. Kelly
General Counsel
Telecopier: (212) 422-1761
with a copy to:
Alan J. Bernstein, Esq.
Carter, Ledyard & Milburn
2 Wall Street
New York, New York 10005
Telecopier: (212) 732-3232
(b) Change of Address for Notices. Either party may change its address
for notices as set forth above by notice to such effect to the other party given
in the manner provided in subsection (a) of this Paragraph 16.
(c) Forwarding Copies of Notices from Landlord. Subtenant shall
promptly give Sublandlord written notice, and a copy, of any notices served by
Landlord upon Subtenant pursuant to the terms, conditions and provisions of the
Master Lease. Sublandlord shall promptly give Subtenant written notice, and a
copy, of any notice of default served by the Landlord upon Sublandlord pursuant
to the terms, provisions and conditions of the Master Lease. Sublandlord shall
promptly
<PAGE> 15
forward to Subtenant any notices of changes in the building rules (as set forth
in the Master Lease), unless at the time that Sublandlord receives any such
notice Subtenant shall be in possession of premises in the Building other than
the Premises.
17. GOVERNING LAW. This Sublease shall be governed by and construed in
accordance with the law of the State of New York applicable to agreements made
and to be performed wholly within the State of New York.
18. SUBMISSION TO JURISDICTION. The parties hereto agree that any action or
proceeding arising out of or relating to this Sublease shall be brought only in
a federal court sitting in New York City or a New York State court sitting in
New York City, and each of the parties hereto submits to the jurisdiction of any
such court in the event that such any such action or proceeding shall be
brought. Each of the parties hereto agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such court and
waives any objection that it may now or hereafter have as to the venue of any
such action or proceeding brought in any such court or that any such court is an
inconvenient forum. Each of the parties hereto consents to the service of
process upon it in any such action or proceeding in any such court by the
mailing of copies of such process to it, by certified or registered mail, return
receipt requested, at its address specified in Paragraph 16.
19. BINDING EFFECT. Without limiting the effect of Paragraph 14 hereof, the
covenants and agreements in this Sublease shall bind and inure to the benefit of
Sublandlord and Subtenant and their successors and assigns.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this
Sublease as of on the date first written above.
TOMAR STUDIOS, INC.
/s/ Terrence Bennett By: /s/ Tom Marrazza
______________________________ ____________________________
Witness Tom Marrazza
Print Name: Terrence Bennett President
SCREAMING MEDIA.COM INC.
<PAGE> 16
/s/ William P. Kelly /s/ Jay Chiat
_____________________________ By:______________________________
Witness Jay Chiat
Print Name: William P. Kelly Chairman
<PAGE> 17
Exhibit A
Copy of Master Lease