Exhibit 10.2
SUB-SUBLEASE AGREEMENT
BY AND BETWEEN
RISK CAPITAL REINSURANCE COMPANY, SUB-SUBLANDLORD
AND
BANK OF IRELAND ASSET MANAGEMENT (U.S.) LIMITED, AS SUB-SUBTENANT
THIS SUB-SUBLEASE AGREEMENT (the "Sub-Sublease" or the "Agreement") is made
and entered into as of this 30th day of April, 1997 by and between Risk Capital
Reinsurance Company, having a place of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ("Sub-Sublandlord") and Bank of Ireland Asset Management (U.S.)
Limited, having a place of business at Two ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Sub-Subtenant").
W I T N E S S E T H:
WHEREAS, by Lease dated April 8, 1982 (the "Over Lease", a copy of which is
attached hereto as SCHEDULE A), Horseneck Associates as Landlord ("Over
Landlord") leased to The Coca-Cola Bottling Company of New York, Inc., as Tenant
("Prime Tenant") the Building and Land (as defined in the Over Lease), commonly
known as ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
WHEREAS, by Sublease Agreement dated March 18, 1996 (the "Sublease", a copy
of which is attached hereto as SCHEDULE B), the Prime Tenant, as Sublandlord,
sub-leased to Sub-Sublandlord the entire said Building and Land (which for the
purposes of the Sublease and also for the purposes of this Sub-Sublease are
defined as the "Subleased Premises").
WHEREAS, Sub-Subtenant desires to sub-sublet from Sub-Sublandlord a portion
of the Subleased Premises, which portion consists of that area of the first
floor of the Building, consisting of approximately 6431 rentable square feet and
more particularly shown in outline on the floor plan annexed hereto as
SCHEDULE C and made a part hereof (said portion being hereinafter referred to as
the "BOI Space").
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sub-Sublandlord and Sub-Subtenant,
intending to be legally bound hereby, agree as follows:
SECTION 1. DEMISE. Sub-Sublandlord hereby leases to Sub-Subtenant and
Sub-Subtenant hereby leases from Sub-Sublandlord the BOI Space, subject to the
terms and provisions hereof.
SECTION 2. TERM. The term of this Sub-Sublease (the "Term") shall
commence on the date (the "Commencement Date"), that the Sub-Sublandlord and
Sub-Subtenant have received the Consent (as hereinafter defined) and
Sub-Sublandlord has delivered exclusive possession of the BOI Space to
Sub-Subtenant vacant and Sub-Sublandlord's property removed such that same
is ready for the commencement of the Sub-Subtenant's Work, and shall terminate
on the day next preceding the "Expiration Date", as defined in the Sublease
(said prior date, the "Expiration Date" herein) unless the Expiration Date
herein is accelerated due to other provisions contained in this Sub-Sublease, or
in the Over Lease or in the Sublease.
SECTION 3. MINIMUM RENT. Except as otherwise provided herein to the
contrary, throughout the Term, Sub-Subtenant shall pay Sub-Sublandlord, without
setoff or deduction, base rent for the BOI Premises ("Minimum Rent") which
Minimum Rent shall be payable, in successive twelve (12) month periods starting
from the Commencement Date (each a "Lease Year"), as follows:
Lease Years 1, 2 and 3 $225,085.00 per year $18,757.08 per month
Lease Years 4, 5 and 6 $231,516.00 per year $19,293.00 per month
Notwithstanding the foregoing, Minimum Rent shall not be chargeable
hereunder and shall be abated until the date that Sub-Subtenant receives a
certificate of occupancy from the Town of Greenwich for the Sub-Subtenant's Work
(as hereinafter defined) and commences its business operations in the BOI Space,
or June 23, 1997, whichever is earlier (the "Rent Commencement Date").
In addition to Minimum Rent, Sub-Subtenant shall pay to Sub-Sublandlord
additional rent ("Additional Rent") as follows:
(a) OPERATING EXPENSES: Pursuant to the Sublease, the Sub-Sublandlord is
obligated to pay to the Prime Tenant amounts to cover Operating
Expenses for each Operating Year after the Operating Expense Base, all
as defined in the Sublease. For purposes of this Agreement, Operating
Expenses shall also include costs incurred by Sub-Sublandlord for
cleaning services and security personnel provided for the benefit of
the Subleased Premises. Further, Sub-Sublandlord and Sub-Subtenant
agree that for purposes of this Agreement, Operating Expense Base
shall be the calendar year 1997, and Operating Year shall mean twelve
(12) month period following the Operating Expense Base, commencing
January 1 st and ending December 31st and the final period commencing
the January 1st immediately preceding the Expiration Date and ending
on the Expiration Date. Sub-Subtenant agrees to pay to
Sub-Sublandlord as Additional Rent in the same manner as provided in
the Sublease, an amount equal to Sub-Subtenant's pro-rata share of
15.72% (the "Pro-Rata Share") of any increases in Operating Expenses
over the Operating Expense Base.
(b) TAXES: Pursuant to the Sublease, Sub-Sublandlord is obligated to pay
to Prime Tenant amounts to cover increases in Taxes over the Base Tax
Amount, as defined in the Sublease. Sub-Sublandlord and Sub-Tenant
agree that for purposes of this Agreement, the Base Tax Amount shall
mean Taxes incurred during Tax Year July 1, 1997 through June 30,
1998. Commencing July 1, 1998, Sub-Subtenant shall pay, in the same
manner as provided in the Sublease, as
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Additional Rent for each subsequent Tax Year, all or any portion of
which Tax Year shall be within the Term of this Agreement, the
Sub-Subtenant's Pro-Rata Share of the amount by which the Taxes for
such Tax Year Exceed the Base Tax Amount.
(c) ELECTRICITY: Commencing on and as of the Rent Commencement Date,
Sub-Subtenant shall pay to Sub-Sublandlord, in equal monthly payments
and in the same manner as Minimum Rent, Additional Rent in the sum of
$11,254.25 per year for "electrical services", as defined in the
Sublease.
Except as otherwise provided herein to the contrary, all payments by
Sub-Subtenant of Minimum Rent shall be due and payable in advance on the first
day each month during the Term hereof, at the office of Sub-Sublandlord, or such
other place as the Sub-Sublandlord may designate in writing from time to time,
with payments in advance of appropriate fractions of a monthly payment for any
portion of a month at the commencement or expiration or prior termination of
this Lease. Sub-Subtenant shall pay the first full monthly installment of
Minimum Rent upon the execution of this Sub-Sublease, which shall be credited
against the first monthly installment, or portion thereof, due hereunder.
Except for electricity which shall be paid in the manner provided in
subparagraph 3(c) hereinabove, payments of Additional Rent shall be made within
ten (10) days after Sub-Subtenant's being billed therefor. Sub-Subtenant shall
be entitled to the same audit, billing, reimbursement and dispute rights as are
applicable to Sub-Sublandlord in the Sublease.
SECTION 4. SECURITY DEPOSIT. Upon execution of this Agreement,
Sub-Subtenant shall deposit with Sub-Sublandlord the sum of $37,514.16 (the
"Security Deposit"). The Security Deposit shall be held by Sub-Sublandlord as
security for the faithful performance and observance by Sub-Subtenant of the
terms and conditions of this Sub-Sublease. Paragraph 20 of the Sublease is
hereby incorporated herein by reference with the same force and effect as if it
was fully set forth herein, provided that any reference therein to "Sublandlord"
shall be deemed to refer to Sub-Sublandlord and any reference therein to
"Subtenant" shall be deemed to refer to Sub-Subtenant.
SECTION 5. POSSESSION. Notwithstanding anything to the contrary contained
in this Sub-Sublease, Sub-Subtenant has inspected the BOI Space and the Building
and hereby agrees to accept the same "as is", without any warranties,
representations or obligations, express or implied, on the part of
Sub-Sublandlord to perform any maintenance, repair, alteration, improvements,
work or other services thereto, except as may be set forth herein.
Sub-Subtenant acknowledges that, except as may be specifically provided in this
Sub-Sublease, Sub-Sublandlord has made no representations or warranties with
respect to either the BOI Space or the Building or the condition thereof.
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SECTION 6. DELAYS. Notwithstanding anything to the contrary contained in
this Sub-Sublease, if Sub-Sublandlord is unable to deliver possession of the BOI
Space for any reason beyond the reasonable control of Sub-Sublandlord,
Sub-Sublandlord shall not be subject to any claims, damages or liabilities
whatsoever, nor shall this Sub-Sublease be void or voidable (except as otherwise
provided in this Sub-Sublease), nor shall the Expiration Date be extended.
SECTION 7. FIT-UP AND ALLOWANCE. Sub-Subtenant shall not make any
alterations, or additions to the BOI Space without first complying with the
applicable provisions of the ▇▇▇▇▇▇▇▇▇ and Sublease, included but not limited
to, obtaining any required approval of the Over Landlord, and the Prime Tenant.
In addition, any such alterations and improvements are subject to the approval
of the Sub-Sublandlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Except for the "Sub-Sublandlord's Work" (as hereinafter
defined) which shall be completed by Sub-Sublandlord by the Rent Commencement
Date, Sub-Subtenant hereby agrees, at its cost, to perform all interior fit-up
work within the BOI Space necessary to prepare the BOI Space for Sub-Subtenant's
initial use and occupancy (the "Sub-Subtenant's Work") and, in consideration
therefor, Sub-Sublandlord shall contribute to Sub-Subtenant the sum of
$192,930.00 which sum shall be paid in the manner set forth in sub-paragraph g
of Paragraph 6 of the Sublease, except Sub-Subtenant shall pay all architectural
and related fees. Sub-Subtenant agrees to perform all such Sub-Subtenant's Work
in accordance with the requirements of Paragraph 6 of the Sublease applicable to
Sub-Sublandlord and to provide all documents and other information and material
applicable to Sub-Sublandlord pursuant to sub-paragraph g of said Paragraph 6 of
the Sublease, at such times and in such manner as to enable Sub-Sublandlord to
fully comply with all obligations of said Paragraph 6 in a timely and
satisfactory manner. Upon request of Sub-Subtenant, which request shall be made
in writing, on or before the Commencement Date, Sub-Sublandlord agrees to
contribute an additional sum of $64,310.00 towards Sub-Subtenant's improvements
as aforesaid, provided, however, that such amount shall be added to the Minimum
Rent set forth in Section 3 of this Agreement by adding the sum of $15,607.11
toward the Minimum Rent for each Lease Year during the Term. Sub-Sublandlord
and Sub-Subtenant shall have the same rights and remedies regarding the
construction allowance specified in this Sub-Sublease as the Prime Tenant and
Sub-Sublandlord have, respectively, regarding the construction allowance under
the Sublease.
SECTION 8. SUBORDINATION; INCORPORATION. (a) This Sub-Sublease is
subject and subordinate to all of the covenants, agreements, terms, provisions,
conditions and obligations set forth in the Sublease. Except as otherwise
expressly provided in this Sub-Sublease, all words and phrases which are
capitalized herein shall have the same meanings ascribed to them in the
Sublease. Except as otherwise expressly provided herein, all of the terms,
provisions, conditions and obligations contained in the Sublease are
incorporated herein and made a part hereof, Sub-Sublandlord being substituted
for the Sublandlord and Sub-Subtenant being substituted for the Subtenant and
references to this Sub-Sublease being substituted for references to the
Sublease; provided, however that Sub-Subtenant shall not be obligated to pay for
or perform Sub-Sublandlord's obligations under the Sublease, except as otherwise
provided herein, and Sub-Sublandlord shall not be required or obligated to
perform any of the duties or obligations of
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Sublandlord under the Sublease, unless specified to the contrary herein, and
Sub-Sublandlord shall not be liable to Sub-Subtenant for any failure in
performance by the Prime Tenant of any term, provision or covenant contained in
the Sublease, not caused by Sub-Sublandlord's default; and provided further
that, notwithstanding anything contained herein to the contrary, the following
provisions of the Sublease shall not be deemed incorporated in or made a part of
this Sub-Sublease, but only to the extent that they are inconsistent with the
provisions of this Sub-Sublease: ▇▇▇▇▇▇▇▇▇ ▇, ▇, ▇, ▇, ▇, ▇ (▇▇▇-▇▇▇▇▇▇▇▇▇ g.),
11, 16, 18, 29, 21 and 31.
(b) It is specifically understood and agreed, notwithstanding any contrary
or inconsistent provision contained in this Sub-Sublease, that, with the
exception of cleaning service and security services for the Building and any
repairs (except as to the BOI Space), which Sub-Sublandlord is required to
perform pursuant to paragraph 11 (k) of the Sublease, all work, maintenance,
repairs, construction and other services (collectively, the "Services") to be
made and/or furnished to the BOI Space or the Building or to any appurtenances
thereof (including the parking areas and dining facilities) pursuant to the
provisions of the Sublease shall be provided by the Prime Tenant. To the extent
that such Services are not provided in accordance with the Sublease,
Sub-Sublandlord agrees, upon receipt of Sub-Subtenant's notice specifying the
nature of any such interruption or failure of the Services, to attempt
diligently to obtain such Services on behalf of Sub-Subtenant, as soon as
reasonably possible under the circumstances.
SECTION 9. SURRENDER; COVENANTS AND REPRESENTATIONS OF SUB-SUBTENANT.
Upon the Expiration Date or sooner termination of this Sub-Sublease,
Sub-Subtenant shall quit and surrender the BOI Space in reasonably good order
and repair, reasonable wear and tear and damage by casualty excepted and in
accordance with all of the applicable terms and conditions of the Sublease.
Notwithstanding anything to the contrary contained herein, Sub-Subtenant shall
not do anything in, about or with respect to the BOI Space or the Building which
will constitute a default under the Sublease or the Over Lease or under this
Sub-Sublease, or fail to do anything which Sub-Subtenant is obligated to do
under the terms hereof which would constitute a default under the Sublease or
the Over Lease or hereunder. Sub-Subtenant hereby agrees to indemnify, defend
and hold Sub-Sublandlord harmless from and against any and all losses, claims,
liabilities, damages, costs or expenses (including, with limitation, reasonable
attorneys' fees) arising in connection with Sub-Subtenant's use or occupancy of
the BOI Space, the negligence or misconduct of Sub-Subtenant or Sub-Subtenant's
agent's, employees, contractors or visitors or arising from or in connection
with Sub-Subtenant's breach of its obligations or representations under this
Sub-Sublease, the Sublease or the Over Lease, as they relate to the BOI Space or
the Building. In the event of any breach hereunder by Sub-Subtenant,
Sub-Sublandlord shall have all of the rights and remedies available to the Prime
Tenant under the Sublease, or at law or equity, as if such breach occurred
thereunder.
SECTION 10. INSURANCE. Sub-Subtenant shall comply, with respect to the
BOI Space and for the benefit of Sub-Sublandlord and the Prime Tenant, with all
insurance requirements and obligations of Sub-Sublandlord under the provisions
of the Sublease, except that the liability insurance coverage for Sub-Subtenant
shall be a minimum of $1,000,000.00.
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SECTION 11. ASSIGNMENT; SUBLETTING. Sub-Subtenant shall not assign,
mortgage or otherwise pledge or encumber this Sub-Sublease or any interest
hereunder, nor shall Sub-Subtenant sublet all or any part of the BOI Space, nor
allow the BOI Space or any part thereof to be occupied by anyone other than
Sub-Subtenant, without obtaining the prior written consent of Sub-Sublandlord in
each instance and without otherwise complying with all of the provisions
relating to assignment and subletting in the Sublease, Over Lease and this
Sub-Sublease. If Sub-Subtenant requests Sub-Sublandlord's consent to an
assignment of this Sub-Sublease or a subletting of all or any part of the BOI
Space, Sub-Subtenant shall submit to Sub-Sublandlord the name of the proposed
assignee or subtenant, the nature of its business and such information as to its
financial responsibility and standing as Sub-Sublandlord may reasonably require.
Upon the receipt of such request and information from Sub-Subtenant,
Sub-Sublandlord shall have the option, to be exercised in writing within thirty
(30) days after such receipt, to cancel and terminate this Sub-Sublease, if the
request is to assign this Sub-Sublease or to sublet all of the BOI Space or, if
the request is to sublet a portion, to cancel and terminate this Sub-Sublease
with respect to such portion only (but Sub-Sublandlord shall in no event have
any right to so cancel and terminate with respect to any subletting or
assignment to any affiliate, subsidiary or parent entity of Sub-Subtenant, or
any entity controlling or under common control with Sub-Subtenant,
Sub-Sublandlord hereby consenting to any subleases or assignments to such
parties, provided that any such sublet or assignment shall not relieve, release,
impair or discharge any of Sub-Subtenant's obligations hereunder). If
Sub-Sublandlord exercises its option to terminate this Sub-Sublease or portion
thereof as aforesaid, this Sub-Sublease, or portion thereof, as the case may be,
shall terminate on the date on which such proposed sublease was to become
effective with the same effect as if such date were the Expiration Date, and
Sub-Subtenant shall surrender possession of the entire BOI Space, or the portion
which is the subject of the option, as the case may be, in accordance with the
provisions of this Sub-Sublease relating to surrender of the BOI Space on the
Expiration Date. If this Sub-Sublease shall be canceled as to a portion of the
BOI Space only, the Minimum Rent and Additional Rent payable by Sub-Subtenant
under this Sub-Sublease shall be abated proportionately according to the ratio
that the number of square feet in the space surrendered bears to the total
square feet in the BOI Space.
In the event Sub-Sublandlord shall not exercise the option to terminate as
aforesaid then Sub-Sublandlord's consent to such request shall not be
unreasonable withheld, conditioned or delayed. If the consent of
Sub-Sublandlord is obtained, then the provisions of paragraph 16(e) of the
Sublease shall apply with the exception of the last sentence thereof.
SECTION 12. BROKERS. Sub-Sublandlord and Sub-Subtenant hereby warrant and
represent to each other that they have dealt with no brokers or agents in
connection with this Sub-Sublease, other than New England Land Company, Ltd. and
▇▇▇▇▇▇▇▇, ▇'▇▇▇▇▇▇▇▇▇ Company, Inc. Sub-Sublandlord and Sub-Subtenant hereby
agree to indemnify, defend and hold the other party harmless from and against
any and all claims, losses, liabilities, damages, costs or expenses (including,
with limitation, reasonable attorneys' fees) arising or resulting from the
indemnifying party's breach or alleged breach of its warranty and representation
contained in this Section. The
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provisions of this Section shall survive the expiration or sooner termination of
the Term. Sub-Sublandlord shall pay any commissions which may be owed to such
named brokers pursuant to separate agreement(s).
SECTION 13. PARKING. During the Term, at no extra charge, Sub-Subtenant
shall be entitled to use, a total of twenty-one (21) of the parking spaces
provided in the existing parking facility upon the Land, of which seven (7)
shall be reserved for Sub-Subtenant's exclusive use in the garage in the
locations shown on SCHEDULE D annexed hereto and made a part hereof, the
remainder of which shall be provided in the existing outdoor parking area on a
non-reserved, unassigned basis. The aforesaid parking spaces shall be used by
Sub-Subtenant solely in connection with its use of the BOI Space.
Sub-Sublandlord shall be entitled, from time to time, to impose and enforce
reasonable rules and regulations regarding the use by all Building tenants of
the said parking space.
SECTION 14. DIRECTORY. During the Term, at no extra charge, Sub-Subtenant
shall be entitled to have one listing in the building directory in the lobby of
the Building for tenants of the Building.
SECTION 15. NOTICES. All notices, demands and requests under this
Sub-Sublease shall be in writing and shall be sent by personal delivery or by
United States registered or certified mail, postage prepaid, return receipt
requested, and addressed follows:
To Sub-Sublandlord: Risk Capital Reinsurance Company
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
With a Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To Sub-Subtenant: Bank of Ireland Asset Management (US) Limited
(Prior to the Rent Two Greenwich Plaza
Commencement Date) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Senior Vice-President Business Management
(After the Rent
Commencement Date) Bank of Ireland Asset Management (US) Limited
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Senior Vice-President Business Management
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With a Copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Either party may, by notice given to the other party, designate a new
address to which notices, demands and requests shall be sent and, thereafter,
any of the foregoing shall be sent to the address most recently designated by
such party. Notices, demands and requests which shall be served upon
Sub-Sublandlord or Sub-Subtenant in the manner aforesaid shall be deemed to have
been served or given for all purposes under this Sub-Sublease at the time such
notice, demand or request shall be personally delivered or three (3) business
days after having been deposited in any post office or branch post office
regularly maintained by the United States Postal Service.
SECTION 16. CONSENT. This Sub-Sublease and the Sub-Subtenant's Work are
subject to and conditioned upon the Sub-Sublandlord's and Sub-Subtenant's
obtaining the fully executed written consent thereto of the Prime Tenant (the
"Consent"). Sub-Sublandlord and Sub-Subtenant each agree that upon execution of
this Sub-Sublease, they will proceed with due diligence to obtain such Consent.
In the event that either Sub-Sublandlord is unable to obtain such Consent in
substantially the form annexed hereto as EXHIBIT A, or if such Consent is
refused, within forty-five (45) days after the execution and delivery of this
Sub-Sublease (the "Cancellation Date"), then either party may, by written notice
to the other party given at any time after said forty-five (45) days and prior
to the granting of such Consent, terminate and cancel this Sub-Sublease and
thereupon Sub-Sublandlord shall promptly return any sums paid by Sub-Subtenant
to Sub-Sublandlord pursuant hereto, upon receipt of which both parties shall be
released and relieved of all their obligations hereunder.
SECTION 17. DELAY IN COMMENCEMENT DATE; RENT COMMENCEMENT DATE.
(a) If the Commencement Date has not occurred within fifteen (15) days of
the date of this Sub-Sublease and such delay has not been caused by
Sub-Subtenant, its agents, employees, contractors or subcontractors, and
provided Sub-Subtenant has otherwise obtained all of the permits and approvals
required in order to commence the Sub-Subtenant's Work, then the Rent
Commencement Date shall be delayed on a PER DIEM basis for each day of delay in
excess of said fifteen (15) days. Notwithstanding the foregoing, the
Sub-Sublandlord shall have the option in its sole discretion at any time, by
written notice to Sub-Subtenant (the "Access Notice"), to provide Sub-Subtenant
with access to the BOI Space for the purpose of commencing the Sub-Subtenant's
Work prior to the Commencement Date, in which event the Rent Commencement Date
shall be delayed on a PER DIEM date of this Sub-Sublease. In the event
Sub-Sublandlord gives the Access Notice and the Sub-Subtenant commences the
Sub-Subtenant's Work and the parties are unable to obtain the Consent or the
Consent is refused by the Cancellation Date, then this Sub-Sublease may be
terminated in accordance with Paragraph 16 of this Sub-Sublease except that
Sub-Sublandlord shall also reimburse Subtenant for such amounts as Sub-Subtenant
shall have expended or incurred in connection with the Sub-Subtenant Work from
the date of the Access Notice to the Cancellation Date.
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(b) If the performance of Sub-Subtenant's Work to the BOI Space (or the
issuance of a certificate of occupancy therefor) is delayed by any genuine delay
caused by Sub-Sublandlord (or Sub-Sublandlord's agents, employees, contractors
or subcontractors)(such as, without limitation, the Sub-Sublandlord's failure to
perform or complete any legally required means of access/egress to the BOI Space
or the Building required by governmental authorities, the parties acknowledging
that Sub-Sublandlord has been advised that no such separate access/egress work
shall be required at this time, except as set forth on EXHIBIT B) then in such
event the Rent Commencement Date of June 23, 1997 shall be delayed on a PER DIEM
basis for each such day of delay. Sub-Subtenant acknowledges and agrees that
the Sub-Sublandlord's Work set forth on EXHIBIT B is being performed by the same
contractor performing the Sub-Subtenant's Work and that said contractor has
advised Sub-Subtenant that the Sub-Sublandlord's Work has been integrated into
the schedule for the Sub-Subtenant's Work and is not expected to delay the
completion of the Sub-Subtenant's Work.
(c) Sub-Sublandlord and Sub-Subtenant shall each use diligent, good faith
efforts to have the Commencement Date occur as soon as is reasonable possible,
and in any event by the date which is fifteen (15) days after the date of this
Sub-Sublease. Both parties shall reasonably cooperated with each other in
connection therewith. In the event of any disputes in connection with the
Commencement Date, the Rent Commencement Date or the performance (or
non-performance) of Sub-Subtenant's Work or Sub-Sublandlord's Work, either party
shall have the right to submit such dispute to arbitration, said arbitration to
held in accordance with the then prevailing rules of the American Arbitration
Association. Said arbitration shall be final and binding on the parties, and
shall be held in Fairfield County, Connecticut. Sub-Sublandlord and
Sub-Subtenant shall each pay one-half of the costs and expenses of said
arbitration.
(d) In the event the Commencement Date has not occurred for any reason not
caused by Sub-Subtenant (including, without limitation, any reasons due to
so-called "force majeure" conditions) by the date which is forty-five (45) days
after the date of this Sub-Sublease, and this Sub-Sublease has not been
theretofore canceled pursuant to Section 16 of this Sub-Sublease, either party
shall have the right to cancel this Sub-sublease, without liability, by written
notice to the other, in which case Sub-Sublandlord shall promptly return to
Sub-Subtenant any prepaid rent and the Security Deposit.
SECTION 18. COUNTERPARTS. This Sub-Sublease may be executed in
counterparts.
SECTION 19. RIDER. See Rider attached hereto and made a part hereof.
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IN WITNESS WHEREOF, Sub-Sublandlord and Sub-Subtenant have hereunto caused
this Sub-Sublease to be duly executed as of the date first set forth above.
WITNESSES SUB-SUBLANDLORD:
Risk Capital Reinsurance Company
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Managing Director, General Counsel and
---------------------------- Secretary
SUB-SUBTENANT:
Bank of Ireland Asset Management (U.S.)
Limited
/s/ ▇.▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. Vice President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
10
SUB-SUBLEASE AMENDMENT AGREEMENT
AGREEMENT made as of this 9th day of January, 1998, by and between
RISK CAPITAL REINSURANCE COMPANY, a Nebraska corporation, having a place of
business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ("Sub-Sublandlord"), and
BANK OF IRELAND ASSET MANAGEMENT (US) LIMITED, an Ireland corporation, having a
place of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
("Sub-Subtenant"). Capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the Sublease.
W I T N E S S E T H
WHEREAS, The Coca-Cola Bottling Company of New York, Inc. (the "Prime
Tenant") entered into a Lease with Horseneck Associates (the "Over Landlord"),
dated as of April 8, 1982 (the "Over Lease"), for the lease of the land and
Building (as defined in the Over Lease) commonly known as ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Demised Premises"); and
WHEREAS, Prime Tenant and Sub-Sublandlord entered into a Sublease, dated as
of March 18, 1996 (the "Sublease"), for the lease of the entire Demised
Premises; and
WHEREAS, Sub-Sublandlord entered into a Sub-Sublease with Sub-Subtenant,
dated as of April 30, 1997 (the "Sub-Sublease"), for a portion of the Demised
Premises; and
WHEREAS, Sub-Sublandlord and Sub-Subtenant desire to modify and amend the
Sub-Sublease as hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants herein contained, in
consideration of the sum of ONE ($1.00) DOLLAR and other consideration, and the
provisions herein contained, the parties hereby stipulate and agree as follows:
1. That the third sentence of Section 3(a) of the Sub-Sublease is deleted
and the following is substituted therefor:
"Further, Sub-Sublandlord and Sub-Subtenant agree that for purposes of
this Agreement, Operating Expense Base shall be the period September 1, 1997
through August 31, 1998, and Operating Year shall mean each twelve (12) month
period following the Operating Expense Base, commencing September 1st and ending
August 31st and the final period commencing the September 1st immediately
preceding the Expiration Date and ending on the Expiration Date."
INTENDING HEREBY to modify and amend the Sub-Sublease in accordance with
the foregoing, but not to alter or amend the terms and conditions thereof in any
other particular, all such other terms and conditions being hereby ratified and
confirmed.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals as of the date first above written.
Signed, Sealed and Delivered
in the presence of:
RISK CAPITAL REINSURANCE COMPANY
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, Operations
BANK OF IRELAND ASSET
MANAGEMENT (US) LIMITED
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
STATE OF CONNECTICUT)
) ss:
COUNTY OF FAIRFIELD )
Personally appeared ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, who acknowledged himself/herself
to be the Vice President, Operations of RISK CAPITAL REINSURANCE COMPANY, and
that, being authorized so to do, he/she executed the foregoing instrument on
behalf of the corporation for the purposes therein contained by signing the name
of the corporation by himself/herself as a duly authorized officer, this 9th day
of January, 1998.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Notary Public
Commissioner of the Superior Court
STATE OF CONNECTICUT)
) ss:
COUNTY OF FAIRFIELD )
Personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇, who acknowledged himself/herself to be
the President of BANK OF IRELAND ASSET MANAGEMENT (US) LIMITED, and that, being
authorized so to do, he/she executed the foregoing instrument on behalf of the
corporation for the purposes therein contained by signing the name of the
corporation by himself/herself as a duly authorized officer, this 5th day of
January, 1998.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Notary Public
Commissioner of the Superior Court