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EXHIBIT 10.4
AGREEMENT OF SUBLEASE, dated as of the 15th day of August, 1998, by and
between AVALANCHE SOLUTIONS, INC., having offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Sublessor"), and CONCRETE MEDIA, INC., a Delaware corporation,
having offices at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Sublessee").
W I T N E S S E T H
WHEREAS, Sublessor is a tenant of the portion of the seventh (7th) floor
in the building known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Building")
as shown cross-hatched on the floor plan annexed hereto as Exhibit A (the
"demised premises"), and Sublessee is desirous of subletting the demised
premises from Sublessor upon the terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the rental payments to be made
hereunder by Sublessee to Sublessor and the mutual terms, covenants, conditions,
provisions and agreements hereinafter set forth, Sublessor does hereby sublet to
Sublessee and Sublessee does hereby take and hire from Sublessor, the demised
premises.
This Sublease shall be expressly subject and subordinate to all of the
terms, covenants, conditions, provisions and agreements contained in that
certain Lease, dated January 6, 1998 entered into between The ▇▇▇▇▇▇,
Church-Wardens and Vestrymen of Trinity Church in the City of New York, a
religious corporation, as landlord ("Underlying Landlord"), and Avalanche
Solutions, Inc., as tenant therein (which lease, as amended, is hereinafter
referred to as the "Underlying Lease"). A true copy of the Underlying Lease,
with certain of the Excluded Provisions deleted or redacted, has been delivered
to, and reviewed by, Sublessee and is annexed hereto and made a part hereof as
Exhibit B. The provisions of the Underlying Lease are
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specifically incorporated herein by reference, except such terms, covenants,
conditions, provisions and agreements as are specifically set forth in Paragraph
20 below (the "Excluded Provisions") and except that all references therein to
"Landlord" shall mean Underlying Landlord, all references therein to "Tenant"
shall mean Sublessee, all references to "Demised/Leased Premises" shall mean
demised premises, and all references to "this Lease" shall mean this Sublease.
All provisions which may, by incorporation herein, be inconsistent with the
express provisions of this Sublease shall govern in all circumstances unless use
of the demised premises or any action or inaction taken in accordance with said
provisions may be the basis of a default under the Underlying Lease, in which
case the inconsistency shall be resolved in favor of the provisions of the
Underlying Lease.
1. Term. The term of this Sublease shall commence (the "Commencement
Date") on the date that the Underlying Landlord shall consent hereto in writing
pursuant to Paragraph 14 below. The term of this Sublease shall terminate at
noon on February 27, 2007 (the "Expiration Date").
2. Fixed Rent. Sublessee shall pay to Sublessor, during the term of
this Sublease, the annual rental rate ("fixed rent"), commencing on the
Commencement Date and continuing through and including February 27, 2007, of TWO
HUNDRED SIXTY-FOUR THOUSAND NINE HUNDRED SIXTY ($264,960.00) DOLLARS per annum,
payable in equal monthly installments of $22,080.00, and continuing through and
including the expiration or sooner termination of this Sublease. Each monthly
installment of fixed rent shall be paid on the first day of each and every
calendar month during the term, except the first full monthly installment of
fixed rent shall be paid upon execution of this Sublease. Provided that
Sublessee is not then in default under this Sublease, it shall be entitled to an
aggregate credit of $22,080.00
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to be applied against the fixed rent due hereunder for the second full month
following the month in which the Commencement Date occurs. The fixed rent for
any month of the term of this Sublease which does not begin or end on the first
or last day of a calendar month shall be prorated on a daily basis in accordance
with the fixed rent due for the calendar month. Since the installment for the
first full month's fixed rent is being paid by Sublessee upon the execution of
this Sublease regardless of whether the term shall have commenced on the first
day of a calendar month, any adjustment to which Sublessee is entitled on
account of the immediately preceding sentence shall be made to the monthly
installment of fixed rent due on the first day of the calendar month next
following the month in which the Commencement Date occurs rent credit has been
fully utilized. All fixed rent, additional rent and other sums and charges due
to Sublessor under this Sublease shall be paid by Sublessee at the office of
Sublessor set forth above, or at such other place as Sublessor may designate,
without any notice, setoff or deduction whatsoever. Sublessee's obligation to
make such payments shall survive the Expiration Date or sooner termination of
this Sublease.
All other costs and expenses which Sublessee assumes or agrees to pay
pursuant to this Sublease shall be deemed additional rent and, in the event of
non-Payment, Sublessor shall have all the rights and remedies herein provided
for in case of non-Payment of fixed rent. If Sublessee shall fail to pay any
installment of fixed rent or additional rent within a period of seven (7) days
after the due date of the installment in question, Sublessee shall also pay to
Sublessor a late charge equal to 2% per month of the overdue amount, such late
charge to be payable as additional rent hereunder. The payment of such late
charge shall be in addition to all other rights and remedies available to
Sublessor in the case of non-payment of fixed rent.
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3. Electricity Charge. Sublessee shall pay to Sublessor all of the
charges incurred by Sublessor for electric service pursuant to the Underlying
Lease, including, but not limited to, any charge in connection with taxes upon
Underlying Landlord's sale or resale of electric energy to Sublessee by any
federal, state or municipal authority. Such charges shall be paid within five
(5) days of Sublessor's ▇▇▇▇▇▇▇▇ therefor. Any sums due and payable to Sublessor
under this Paragraph 3 shall be deemed to be, and collectible as, additional
rent.
4. Additional Rent. Sublessee shall pay to Sublessor, as additional
rent, 100% of all amounts payable by Sublessor to Underlying Landlord pursuant
to Articles 37 and 38 of the Underlying Lease, which are applicable to the term
of this Sublease. For purposes of determining the amounts payable by Sublessee
pursuant to this Paragraph 4: the Base Year for Taxes shall be the Tax Year July
1, 1998 - June 30, 1999, the Base Year for Operating Expenses shall be the
calendar year 1999, the date to be inserted in the "Base Index" for the CPI in
Article THIRTY-SEVENTH(b)6 shall be August 1, 1998, and the "Computation Date"
in Article THIRTY-SEVENTH(b)10 shall be the first of March, 1999. The additional
rent payable by Sublessee shall be paid to Sublessor in the manner and five (5)
days before each such date as Sublessor shall be required to pay its
corresponding share of such additional rent pursuant to the underlying Lease.
Payments for the first and last years of the term shall be equitably prorated.
In the event that the demised premises increase or decrease during the term of
this Sublease or the premises demised pursuant to the Underlying Lease increase
or decrease, then Sublessee's proportionate share of amounts payable pursuant to
this Paragraph 4 shall be equitably adjusted.
5. Use. Sublessee shall use the demised premises only for the uses
specified in the Underlying Lease. Sublessee shall use and occupy the demised
premises in a manner not inconsistent with the terms of the Underlying Lease.
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6. Compliance with Underlying Lease. Sublessee covenants and agrees
to observe and perform all of the terms, covenants, conditions, provisions and
agreements to be performed by Sublessor, as tenant pursuant to the Underlying
Lease, except for any Excluded Provisions, and further covenants and agrees not
to do or suffer or permit anything to be done which would result in a default
under or cause the Underlying Lease to be terminated. All of the terms,
covenants, conditions, provisions and agreements of the Underlying Lease,
excepting any Excluded Provisions, are hereby incorporated herein with the same
force and effect as if herein set forth in full and wherever the term "Tenant"
in the Underlying Lease, the same shall be deemed to refer to Sublessee.
However, all grace periods specified in the Underlying Lease shall, for purposes
of determining compliance by Sublessee with the provisions hereof, be each
reduced by five (5) days. In relation to Sublessee performing the obligations of
Sublessor, as tenant pursuant tote Underlying Lease, said obligations shall be
those of Sublessor in relation to the demised premises. Sublessee shall and
hereby does indemnify, defend and hold Sublessor harmless from and against any
and all actions, claims, demands, damages, liabilities and expenses asserted
against, imposed upon or incurred by Sublessor by reason of (a) any violation
caused, suffered or permitted by Sublessee, its agents, contractors, servants,
licensees, employees or invitees, of any of the terms, covenants, conditions,
provisions or agreements of the Underlying Lease, and (b) any damage or injury
to persons or property occurring upon or in connection with the use or occupancy
of the demised premises.
7. Non-Liability, Indemnity. Sublessee shall and hereby does
indemnify, defend and hold Sublessor harmless from and against any and all
actions, claims, demands, damages, liabilities and expenses asserted against,
imposed upon or incurred by Sublessor by reason of (a) any violation caused,
suffered or permitted by Sublessee, its agents, contractors,
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servants, licensees, employees or invitees, of any of the terms, covenants,
conditions, provisions or agreements of the Underlying Lease, and (b) any damage
or injury to persons or property occurring upon or in connection with the use or
occupancy of the demised premises. Neither Sublessor nor any agent, contractor,
servant, licensee, employee or invitee of Sublessor shall be liable to Sublessee
for any death of or injury or damage to Sublessee or any other person or for any
damage to or loss (by theft or otherwise) of any property of Sublessee or any
other person, except to the extent caused by or due to the gross negligence or
willful act of Sublessor. Sublessee shall indemnify and hold harmless Sublessor,
its agents, contractors, servants, licensees, employees or invitees from and
against any and all claims, losses, liabilities, damages, costs and expenses
(including, without limitation, reasonable attorney's fees) arising from (i) the
use, conduct or maintenance of the demised premises or any business therein or
any work or thing whatsoever done, or any condition created in or about the
demised premises during the term (or any time prior to the Commencement Date
that Sublessee may have been given access to the demised premises), (ii) any
negligent or otherwise wrongful act or omission of Sublessee or any of its
agents, contractors, servants, licensees, employees or invitees, (iii) any
failure of Sublessee to perform or comply with all of the provisions of this
Sublease hereof that are applicable to Sublessee, and (iv) any obligation
Sublessor may have to indemnify Underlying Landlord under the Underlying Lease,
to the extent related to the demised premises, other than Sublessor's obligation
to pay rent under the Underlying Lease. In case any action or proceeding be
brought against Sublessor or any agent, contractor, servant, licensee, employee
or invitee of Sublessor by reason of any of the foregoing, Sublessee, upon
notice from Sublessor, shall defend such action or proceeding by counsel chosen
by Sublessee, who shall be reasonably satisfactory
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to Sublessor. Sublessee or its counsel shall keep Sublessor fully apprised at
all times of the status of such defense and shall not settle same without the
written consent of Sublessor.
8. Performance by Underlying Landlord. Sublessor does not assume any
obligation to perform the terms, covenants, conditions, provisions and
agreements contained in the Underlying Lease on the part of Underlying Landlord
to be performed. In the event Underlying Landlord shall fail to perform any of
the terms, covenants, conditions, provisions and agreements contained in the
Underlying Lease on its part to be performed, Sublessor shall be under no
obligation or liability whatsoever to Sublessee. Sublessor shall cooperate with
Sublessee, at no cost to Sublessor, in seeking to obtain the performance of
Underlying Landlord under the Underlying Lease. In any event, Sublessee shall
not be allowed any abatement or diminution of fixed rent or additional rent
under this Sublease because of Underlying Landlord's failure to perform any of
its obligations under the Underlying Lease. Notwithstanding the foregoing, in
the event that Sublessor receives an abatement or diminution of fixed rent or
additional rent from Underlying Landlord that relates to the demised premises,
Sublessee shall be entitled to an equivalent abatement or diminution of fixed
rent or additional rent.
If Underlying Landlord shall default in any of its obligations with
respect to the demised premises, or there shall exist a bona fide dispute with
Underlying Landlord under the terms, covenants, conditions, provisions and
agreements of this Sublease and/or the Underlying Lease and Sublessee notifies
Sublessor in writing that Sublessee has previously notified Underlying Landlord
of such dispute and that such default or notice has been disregarded or not
reasonably satisfactorily acted upon, then Sublessor shall notify Underlying
Landlord of such default or dispute in its name on Sublessee's behalf. Sublessee
shall be entitled to participate with Sublessor in the enforcement of
Sublessor's rights against Underlying Landlord, but
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Sublessor shall have no obligation to bring any action or proceeding nor to take
any steps to enforce Sublessor's rights against Underlying Landlord. If, after
written request from Sublessee, Sublessor shall fail or refuse to take
appropriate action for the enforcement of Sublessor's rights against Underlying
Landlord with respect to the demised premises, Sublessee shall have the right to
take such action in its own name, and for such purpose and only to such extent,
all of the rights of Sublessor under the Underlying Lease (including Sublessor's
arbitration rights) are hereby conferred upon and assigned to Sublessee and
Sublessee hereby is subrogated to such rights to the extent that the same shall
apply to the demised premises. If any such action against Underlying Landlord in
Sublessee's name, shall be barred by reason of lack of privity,
non-assignability or otherwise, Sublessee may take such action in Sublessor's
name provided Sublessee has obtained the prior written consent of Sublessor,
which consent shall not be unreasonably withheld or delayed (and if it is
apparent that Sublessee must act promptly in order to preserve its rights, any
failure on Sublessor's part to respond to Sublessee's request to take action in
Sublessor's name within ten (10) business days after Sublessee's request shall
be automatically deemed Sublessor's consent thereto), and in connection
therewith, Sublessee does hereby agree to indemnify and hold Sublessor harmless
from and against all liability, loss or damage, including, without limiting the
foregoing, reasonable attorneys' fees and disbursements, which Sublessor shall
suffer by reason of such action. In any event, Sublessee shall not be allowed
any abatement or diminution of fixed rent or additional rent under this Sublease
because of Underlying Landlord's failure to perform any of its obligations under
the Underlying Lease. Notwithstanding the foregoing, in the event that Sublessor
receives an abatement or diminution of fixed rent or additional rent from
Underlying Landlord that relates to the demised premises,
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Sublessee shall be entitled to an equivalent or proportionate abatement or
diminution of fixed rent or additional rent.
9. Repairs; cleaning. Sublessee shall take good care of the demised
premises and shall assume the entire responsibility for cleaning and janitorial
services and for repairs which may be necessary during the term of this
Sublease, excepting only those services and repairs, if any, which Underlying
Landlord may be obligated to provide and to make under the terms, covenants,
conditions, provisions and agreements of the Underlying Lease.
10. Alterations. Sublessee shall not make any changes, alterations,
additions or improvements to the demised premises without first obtaining the
written consent of the Underlying Landlord and Sublessor. Sublessor's consent
shall not be unreasonably withheld if the written consent of the Underlying
Landlord is first obtained. Simultaneously with the submission of documents to
the Underlying Landlord, Sublessee shall send copies of all such documents
regarding alterations to Sublessor. Sublessee shall pay all costs and expenses
relating to any changes, alterations, additions or improvements and shall cause
same to be completed in accordance with law and the terms, covenants,
conditions, provisions and agreements of the Underlying Lease. Sublessee hereby
agrees to indemnify, defend and hold Sublessor harmless from any and all loss,
cost, and expense (including, without limitation, reasonable attorneys fees)
incurred by Sublessor as a result of Sublessee's failure to comply with the
aforesaid terms, covenants, conditions, provisions or agreements.
11. Initial Occupancy. Sublessee represents that it has inspected
the demised premises and agrees to take the same in their present condition, and
Sublessee acknowledges that no representations with respect to the condition
thereof have been made. Any work required by Sublessee to prepare the demised
premises for its occupancy shall be paid for by Sublessee and
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shall be subject to all of the terms, covenants, conditions, provisions and
agreements set forth in the Underlying Lease.
12. Assignment and Subletting. Sublessee shall not assign this
Sublease or sublet the demised premises or otherwise transfer, mortgage or
encumber this Sublease, the demised premises or any part thereof or permit the
use thereof without first complying with the provisions of the Underlying Lease
and obtaining Sublessor's consent. Sublessor's consent shall not be unreasonably
withheld if the written consent of the Underlying Landlord is first obtained and
said assignment or subletting of the entire demised premises is to one (1)
assignee or subtenant for its undivided occupancy. Sublessor shall not be
required to consent to any such assignment or further subletting or other event
for which Sublessor's consent is required pursuant to the Underlying Lease if
Sublessee is then in default under the Sublease of if such further subletting or
assignment would cause Sublessor to be in default under the Underlying Lease. No
such consent shall relieve Sublessee from the obligation to seek consent to a
further subletting or assignment or another event for which Sublessor's consent
is required pursuant to the Underlying Lease, and Sublessor may withhold its
consent to same in its sole and absolute discretion. Copies of all materials
required by the Underlying Lease shall be delivered simultaneously to Sublessor,
together with Sublessee's request for consent. If Underlying Landlord and
Sublessor shall give their consent to any assignment of this Sublease or any
subsublease, Sublessee shall, in consideration therefor, pay to Sublessor, as
additional rent:
(i) In the case of an assignment, an amount equal to 50% of all sums
and other consideration paid to Sublessee by the assignee for or by reason
of such assignment.
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(ii) In the case of a subsublease, 50% of any rents, additional
rents or other consideration payable under the subsublease or otherwise to
Sublessee by the subsubtenant which are in excess of the fixed annual rent
and additional rent accruing during the term of this Sublease in respect
of the subsubleased space (at the rate per square foot payable by
Sublessee hereunder) pursuant to the terms hereof.
The sums payable under this Paragraph 12 shall be paid to Sublessor
as and when payable by the subsubtenant.
If this Sublease be assigned, or if the demised premises or any
portion thereof be underlet or occupied by anybody other than Sublessee,
Sublessor may, after default by Sublessee, collect rent from the assignee,
undertenant or occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, undertenant
or occupant as tenant, or a release of Sublessee from the further performance by
Sublessee of the covenants on the part of Sublessee herein contained.
Anything to the contrary contained in this Article 12
notwithstanding, Sublessee may assign this Sublease or sublease all or any
portion of the Subleased Premises to an entity which is controlled by, or which
controls, or which is under common control, with Sublessee or in connection with
a restructuring of Sublessee or its business (including by merger or
consolidation), or to any successor entity on or in connection with a sale of
Sublessee 's business (by sale of stock or assets), all with the Sublessor's
approval and consent, not to be unreasonably withheld or delayed, provided that
the character and finances of the assignee or lessee are reasonably satisfactory
to Sublessor and consistent with the first-class nature of the Building, and
Sublessee provides Sublessor with a copy of the assignment or sublease prior to
the effective date
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thereof. Nothing herein contained shall be deemed to release Sublessee from
liability under this Sublease and, in the case of an assignment, the assignee
must assume, in writing, the Sublease and all of Sublessee's obligations
thereunder.
13. Insurance. During the term of this Sublease, Sublessee, at its
sole cost and expense, shall provide and maintain comprehensive public liability
and property damage insurance in conformity with the provisions of the
Underlying Lease which shall include, without limitation, coverage of
replacement value of any and all existing leasehold improvements. Sublessee
shall cause Sublessor and Underlying Landlord to be included as additional
insureds in said policy or policies which shall contain provisions, if and to
the extent available, that it or they will not be cancelable except upon at
least twenty (20) days prior notice to all insureds and that the act or omission
of one insured will not invalidate the policy as to the other insureds.
Sublessee shall furnish to Sublessor reasonably satisfactory evidence that such
insurance is in effect at or before the Commencement Date and, on request, at
reasonable intervals thereafter.
Sublessee agrees to use reasonable efforts to have included in all
of its insurance policies, a waiver of the insurer's right of subrogation
against Underlying Landlord, Sublessor and others required by the Underlying
Lease, if any. If such waiver shall not be, or shall cease to be, obtainable (a)
without additional charge, or (b) at all, then Sublessee shall so notify
Sublessor promptly after learning thereof. In case such waiver can only be
obtained at additional charge, if Sublessor shall so elect and shall pay the
insurer's additional charge therefor, such waiver, agreement or permission shall
be included in the policy. Provided that Sublessee's right of full recovery
under the aforesaid policy or policies are not adversely affected or prejudiced
thereby, Sublessee hereby waives any and all right of recovery it might
otherwise have against Underlying Landlord, Sublessor and others, if any,
required by the Underlying Lease, their
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respective agents, contractors, servants, licensees, employees and invitees, for
loss or damage to Sublessee's property, notwithstanding that such loss or damage
may result from the negligence or fault of Underlying Landlord, Sublessor or
such others as aforementioned, or their respective agents, contractors,
servants, licensees, employees or invitees. If, notwithstanding the recovery of
insurance proceeds by Sublessee for loss, damage or destruction of its property,
Sublessor is liable to Sublessee with respect to such loss, damage or
destruction or is obligated under this Sublease to make replacement, repair or
restoration or payment for such loss, damage or destruction then, provided
Sublessee's right of full recovery under its insurance policies is not thereby
prejudiced or otherwise adversely affected, the amount of the net proceeds of
Sublessee's insurance against such loss, damage or destruction shall be offset
against Sublessor's liability to Sublessee therefor, or shall be made available
to Sublessor to pay for replacement, repair or restoration, as the case maybe.
14. Default. In the event Sublessee defaults in the performance of
any of the terms, covenants, conditions, provisions and agreements of this
Sublease or of the Underlying Lease, Sublessor shall be entitled to exercise any
and all of the rights and remedies to which it is entitled by law and also any
and all of the rights and remedies specifically provided for in the Underlying
Lease, which are hereby incorporated herein and made a part hereof with the same
force and effect as if herein specifically set forth in full, and that wherever
in the Underlying Lease rights and remedies are given to Underlying Landlord,
the same shall be deemed to refer to Sublessor.
15. Sublease Consent. This Sublease shall become effective only if
the written consent hereto of Underlying Landlord is obtained. If such written
consent is not obtained, then this Sublease shall be void and of no force or
effect and Sublessor shall return to
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Sublessee the first month's rent and the security deposit, and thereupon neither
party shall have any further obligation to the other.
16. Notice. Any notice to be given under this Sublease shall be in
writing and shall be sent by registered or certified mail, return receipt
requested, or by nationally-recognized overnight courier, addressed to (i)
Sublessor at its (a) address herein stated prior to the Commencement Date, with
copies to ________________________Attention: Legal Department; and (ii)
Sublessee (a) at its address herein stated prior to the Commencement Date, (b)
at the demised premises subsequent to the Commencement Date, and (c) with a copy
to Silverman, Collura, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, Attention : ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. No notice is effective unless given to
all parties listed hereinabove. Each party shall have the right to designate, by
notice in writing, any other address to which such party's notice is to be sent.
Any notice to be given by Sublessor may be given by the attorneys for Sublessor.
Any notice shall be deemed given three (3) days after being sent by certified or
registered mail, return receipt requested and the next day, if sent by overnight
courier.
17. Quiet Enjoyment. Sublessor covenants that Sublessee, on paying
the fixed rent and additional rent and performing all the terms, covenants,
conditions, provisions and agreements aforesaid, shall and may peacefully and
quietly have, hold and enjoy the demised premises for the term aforesaid, free
from any interference or hindrance by Sublessor, but subject to the exceptions,
reservations and conditions hereof
18. Surrender of Demised Premises. On the date upon which the term
hereof shall expire and come to an end, whether on the Expiration Date, by lapse
of time or otherwise, Sublessee, at Sublessee's sole cost and expense, shall
quit and surrender the demised premises to
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Sublessor in the same good order and condition as Sublessor is delivering them
to Sublessee, subject to the provisions of the Underlying Lease.
19. Brokers. Sublessee represents to Sublessor that Newmark &
Company Real Estate, Inc. and WF Realty LLC (collectively, the "Brokers") are
the only brokers with whom Sublessee dealt in relation to this transaction and
that Sublessee has had no dealings, either direct or indirect, with any other
real estate agent or broker in connection with this transaction. Sublessee
agrees to indemnify, defend and hold Sublessor harmless from any loss, liability
and expense incurred by Sublessor as a result of any claim made against
Sublessor which is based upon a breach of said representation by Sublessee.
Sublessee's indemnification obligation hereunder shall survive the Expiration
Date or sooner termination of this Sublease. Sublessor hereby agrees to pay the
Brokers a commission pursuant to a separate agreement.
20. Excluded Provisions. The following provisions of the Underlying
Lease are deemed to be Excluded Provisions: TERM, RENT, Articles TWENTY-EIGHTH,
FORTY-THIRD and FORTY-FIFTH.
21. Successors and Assigns. This Sublease shall be binding upon and,
except as prohibited by Paragraph 12 hereof, inure to the benefit of the parties
hereto and their respective successors and assigns.
22. No Modifications. This Sublease may not be modified except by
written agreement signed by Sublessor and Sublessee.
23. Security Deposit. A. Subject to Paragraph 23B below, Sublessee
has deposited with Sublessor, the sum of $220,800.00 ("Security Amount") as
security for the faithful performance and observance by Sublessee of the terms,
covenants, conditions, provisions and agreements of this Sublease. The security
shall be deposited in a non-interest bearing
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account in a bank selected by Sublessor. It is agreed that in the event
Sublessee defaults in respect of any of the terms, covenants, conditions,
provisions and agreements of this Sublease, including, but not limited to, the
payment of fixed rent and additional rent, Sublessor may use, apply or retain
the whole or any part of the security so deposited to the extent required for
the payment of any fixed rent and additional rent or any other sum as to which
Sublessee in default or for any sum which Sublessor may expend or may be
required to expend by reason of Sublessee's default in respect of any of the
terms, covenants, conditions, provisions and agreements of this Sublease,
including but not limited to, any damages or deficiency in the reletting of the
demised premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Sublessor. If Sublessor so applies or
retains any part of the security, Sublessee shall, upon demand, promptly 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 of this Sublease. In the
event that Sublessee shall fully and faithfully comply with all of the terms,
covenants, conditions, provisions and agreements of this Sublease, the security
shall be returned to Sublessee after the Expiration Date and after delivery of
entire possession of the demised premises to Sublessor. In the event of an
assignment by Sublessor of its interest under the Underlying Lease, Sublessor
shall have the right to transfer the security and Sublessee agrees to look to
the new Sublessor solely for the return of said security and it is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
security to a new Sublessor. Sublessee further covenants that it shall not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Sublessor nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
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B. In lieu of the cash security deposit referred to in Paragraph 23A
above, Sublessee may deliver to Sublessor, and shall maintain in effect at all
times during the term following delivery thereof, a clean, unconditional and
irrevocable letter of credit, in form and substance satisfactory to Sublessor in
the Security Amount, issued by a banking corporation ("Bank") reasonably
satisfactory to Sublessor and having its principal place of business or its duly
licensed branch in the City and County of New York at which the letter of credit
may be presented for payment. Such letter of credit shall have an expiration
date no earlier than the first anniversary of the date of issuance thereof and
shall provide that it shall be automatically renewed from year to year unless
terminated by the Bank by notice to Sublessor given not less than ninety (90)
days prior to every transfer or assignment made of the security to a new
Sublessor, provided the new Sublessor shall assume the obligations of the
Sublessor hereunder. Sublessee shall have the right to substitute one letter of
credit for another, provided that, at all times, the letter of credit shall meet
the requirements of this Paragraph 23B.
C. Provided Sublessee has duly kept and performed all of the terms,
covenants, conditions, provisions and agreements to be kept and performed by
Sublessee under this Sublease, the Security Amount shall be reduced on each of
the first seven one year anniversary dates of the Commencement Date by the
amount of $22,080.00 on each such anniversary date, thus leaving a Security
Amount of $66,240.00 for the balance of the term of the Sublease. In the event
Sublessee is in breach of the foregoing provision on any such anniversary date,
the scheduled reduction shall not be effected, and Sublessee's right to such
reduction and all future reductions shall be permanently and forever waived by
Sublessee.
24. No Modifications. This Sublease may not be modified except by
written agreement signed by Sublessor and Sublessee.
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25. Representations and Covenants. A. Sublessor hereby represents to
Sublessee that (i) the Underlying Lease is in full force and effect and
Sublessor covenants that it will not amend, cancel or surrender the Underlying
Lease during the term of the Sublease (including the exercise of the option
contained in Article FORTY-FIFTH of the Lease) without advising Sublessee and
receiving its consent thereto, which shall not be unreasonably withheld or
delayed with respect to any such amendment, provided such amendment does not
increase Sublessee's obligations or diminish Sublessee's services, rights or
privileges; (ii) Sublessor has received no written notice of default from the
Underlying Landlord which default remains uncured on the date hereof; (iii) to
the best of Sublessor's knowledge, upon due inquiry, Sublessor is not in default
under the Underlying Lease; and (iv) subject to the terms of this Sublease,
Sublessor will continue to perform all of the terms, covenants, conditions,
provisions and agreements of the Underlying Lease.
B. Sublessor agrees that, in the event Sublessor defaults under the
terms, covenants, conditions, provisions and agreements of the Underlying Lease
(provided same was not caused by Sublessee or was the result of Sublessee's
actions or inactions with respect to Sublessee's obligations hereunder),
including, but not limited to actions or inactions occurring prior to the
Commencement Date hereof, then in such event, Sublessor covenants and agrees to
defend, indemnify and hold Sublessee harmless from any and all claims, causes of
action against or damages to Sublessee resulting solely and directly therefrom.
In addition to the foregoing, in the event Sublessor receives a notice of
default from the Underlying Landlord, and Sublessor does not cure such default
within the applicable grace period, Sublessee shall have the right, on behalf of
Sublessor, to cure any such default. Sublessor agrees to give Sublessee written
notice of any default notice received from Underlying Landlord within two (2)
business days of
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Sublessor' s receipt thereof. Upon the curing of such default, Sublessor hereby
agrees to reimburse Sublessee, upon demand, for the amount of such default, and
only in the event such default was a non-monetary default, for any additional
costs or expenses incurred in curing such default, provided same was not caused
by Sublessee or was the result of Sublessee's actions or inactions with respect
to Sublessee's obligations hereunder. In the event Sublessor, within five (5)
business days of demand, accompanied by reasonable proof of payment, shall fail
to so reimburse Sublessee for any reason other than with respect to the payment
of fixed rent under the Underlying Lease and Sublessor raises no reasonable
objection with respect thereto, then, in such event, Sublessee, in addition to
any other rights available to it, shall have the right to offset such costs or
expenses incurred against the next installments of rent due under this Sublease.
26. Signage. Sublessor agrees to request that Underlying Landlord
add Sublessee's name on the entrance doors and floor lobby, as well as on the
Building lobby directory or provide Sublessee with Sublessor's existing
directory lines.
27. Inability to Perform, Delays. If Sublessee shall be delayed in
obtaining possession of the demised premises because of delays in obtaining
consent or in construction or for any other reason beyond the reasonable control
of Sublessor, Sublessor shall not be subject to any liability, the effectiveness
of this Sublease shall not be affected and the term hereof shall not be
extended, but the fixed rent shall be abated (provided Sublessee is not
responsible for the delay in obtaining consent or possession and provided the
delay is not due to delays in obtaining consent to, or in construction of, work
required or permitted to be performed by Sublessee) until possession shall have
been made available to Sublessee. The provisions hereof are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
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28. Notice of Accidents. Sublessee shall give Sublessor and
Underlying Landlord notice of any fire, casualty or accident in or about the
demised premises promptly after Sublessee becomes aware of such event.
29. Destruction by Fire or Other Cause. If the demised premises
shall be partially or totally damaged or destroyed by fire, casualty or other
cause as a consequence of which Sublessor shall, pursuant to the Underlying
Lease, receive an abatement of rent with respect to the demised premises, there
shall be a corresponding abatement of the fixed rent payable hereunder. This
Sublease shall not be terminated as a consequence of any damage to, or
destruction of the demised premises, unless, as a result thereof, the Underlying
Lease is terminated in accordance with its terms.
30. Bankruptcy. In the event Sublessee becomes the subject of
proceedings involving bankruptcy, insolvency or reorganization of Sublessee, or
if Sublessee makes an assignment for the benefit of creditors, or petitions for,
or enters into an arrangement with creditors, Sublessor shall have the same
rights as to Sublessee as are afforded Underlying Landlord under the Underlying
Lease under similar circumstances involving Sublessor.
31. No Waiver, etc. No agreement to accept a surrender of this
Sublease shall be valid unless in writing and signed by Sublessor. The failure
of Sublessor or Sublessee to enforce any terms, covenants, conditions,
provisions or agreements of this Sublease shall not prevent the later
enforcement thereof or a subsequent act which would have constituted a violation
from having all the force and effect of an original violation. The receipt by
Sublessor or payment by Sublessee of fixed rent or other rent or charges with
knowledge of the breach of any covenant of this Sublease shall not be deemed a
waiver of such breach. The parties hereto, to the fullest extent permitted by
law, waive trial by jury in any action or proceeding relating
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hereto and consent to the jurisdiction of the New York State Court System.
Sublessee hereby waives any right to interpose any counterclaim in any action
brought by Sublessor in connection herewith. The foregoing shall not be deemed a
waiver by Sublessee of the right to interpose any counterclaim to the extent
That the failure to interpose same would prohibit Sublessee from bringing the
claim, which is the basis thereof, in a separate action.
32. Occupancy Tax. Sublessee shall pay directly to the City of New
York, all occupancy and rent taxes which may be payable by Sublessee to the City
of New York in respect of the rent reserved by this Sublease and will pay all
other taxes, the payment of which shall be imposed directly upon any occupant of
the demised premises.
33. Miscellaneous. A. Paragraph headings are for ease of reference
only and are not part of the agreement of the parties. This Sublease shall be
governed by New York law without giving affect to its conflict of laws rules.
This Sublease may not be changed or terminated, or any provision hereof waived,
orally. The rights and remedies of Sublessor hereunder shall survive the
expiration of the term or sooner termination hereof. The submission of this
Sublease for examination or for signature is not intended to nor shall it create
or evidence an offer to, or any other right by, Sublessee with respect to the
demised premises or otherwise; it being expressly agreed that this Sublease
shall not be effective, and Sublessor shall not be bound hereby, until it is
executed and delivered by each party hereto.
B. Sublessee agrees to assume Sublessor's obligations at Sublessor's
actual cost, under Sublessor's agreement for renting or leasing the T-1 data
transmission line in accordance with such agreement, a copy of which is annexed
hereto as Exhibit C, indemnifying the Sublessor therefrom.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sublease as of the day and year first above written.
AVALANCHE SOLUTIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
Title:
CONCRETE MEDIA, INC.
▇▇-▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇
---------------------- -------------------------------------
Federal Identification Name: ▇.▇. ▇▇▇▇▇▇
Number Title: President
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