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EXHIBIT 10.12
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SUBLEASE
ELEMENT K PRESS LLC
"Sublandlord"
-with-
ELEMENT K CONTENT, LLC
"Subtenant"
Leased Premises:
Canal View Office Park
Brighton, New York
Dated: February 10, 2000
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SUBLEASE
SUBLEASE (this "Sublease") made as of February 10, 2000, between
ELEMENT K PRESS LLC, a Delaware limited liability company, with an office and
place of business at 500 Canal View Boulevard, Rochester, New York 14623
("Sublandlord"), and ELEMENT K CONTENT LLC, a Delaware limited liability
company, with an office at 500 Canal View Boulevard, Rochester, New York 14623
("Subtenant").
W I T N E S S E T H :
WHEREAS, pursuant to a certain lease, dated July 14, 1995, between
LFN Associates ("Prime Landlord"), as landlord, and Ziff-Davis Inc. (as
predecessor-in-interest to Sublandlord), as tenant, as amended by that certain
Amendment No. 1 to Lease Agreement, dated October __, 1995, and further amended
by that certain Second Amendment to Agreement of Lease (the "Second Amendment"),
dated June 27, 1997 (collectively the "Prime Lease"), for certain premises (the
"Leased Premises") located at Canal View Office Park (the "Building"), located
at the intersection of Brighton-Henrietta Town Line Road and Canal View
Boulevard, Brighton, New York.
WHEREAS, Sublandlord desires to sublease to Subtenant and
Subtenant desires to take and hire from Sublandlord a portion of the Leased
Premises, all upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties agree as follows:
1. Premises. Sublandlord hereby subleases to Subtenant and Subtenant hereby
takes and hires from Sublandlord the portion of the Building
substantially as shown on the diagram attached to this Sublease as
Exhibit "A", containing approximately 20,856 square feet of rentable
area, together with sufficient and adequate means of ingress and egress
(the "Subleased Premises"), for the term herein stated, for the rent
herein reserved and upon and subject to the covenants, agreements, terms,
conditions and provisions hereinafter set forth.
2. Use of Subleased Premises. To have and to hold the same, subject to the
conditions herein contained and subject further to the terms and
conditions of the Prime Lease, and for no purpose other than the uses
permitted pursuant to the terms of the Prime Lease.
3. Term and Base Rental. The term (the "Term") of this Sublease shall
commence on the date hereof (the "Commencement Date") and, unless sooner
terminated pursuant to any term or provision hereof, shall end on January
30, 2008 (the "Expiration Date"). The Subleased Premises shall be
delivered to Subtenant on the Commencement Date in its "as is" condition.
Subtenant's obligation to pay the Fixed Rent (as hereinafter defined),
the additional rent and any other charges herein reserved shall commence
on the Commencement Date.
Throughout the Term (including any renewal terms as set forth in
Paragraph 4 hereof), Fixed rent shall be payable at a rate per annum (the
"Fixed Rent") equal to the total Fixed Rent payable with respect to such
year by Sublandlord pursuant to the Prime
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Lease multiplied by a fraction, the numerator of which is the amount of
square footage covered by this Sublease and the denominator of which is
the total square footage covered by the Prime Lease (as of the date
hereof, such fraction represents twenty-two percent (22%) ("Subtenant's
Proportionate Share"). Fixed Rent shall be payable in equal monthly
installments, in advance on the first day of each calendar month during
the Term for which such rent is due. If the Commencement Date or
Expiration Date shall occur on a date other than the first day or last
day, respectively, of any calendar month, the Fixed Rent payable pursuant
to this Sublease for such calendar month shall be prorated on a per diem
basis. If, upon adjustment of the size and location of the Subleased
Premises as mutually agreed to by Sublandlord and Subtenant, the rentable
square footage of the Subleased Premises shall change (as measured and
certified to by Sublandlord's architect), the Subtenant's Proportionate
Share set forth above shall be proportionately reduced or increased, as
the case may be. The certification of Sublandlord's architect shall be
subject to verification by Subtenant's architect.
As of the Commencement Date, all utility services, including water,
sewer, gas, heat, light, power and telephone service, shall be available
to serve the Subleased Premises. Subtenant shall pay Subtenant's
Proportionate Share (based on the ratio of the Subleased Premises to the
Leased Premises, as set forth above) of (i) all of such utilities and
(ii) Sublandlord's costs and expenses of maintaining and cleaning the
Leased Premises (including the Subleased Premises) on a monthly basis
within twenty (20) days of Subtenant's receipt of an invoice for such
utilities, maintenance and cleaning services from Sublandlord.
Sublandlord shall provide Subtenant with copies of all invoices and bills
for all of such utilities, maintenance work and cleaning services and the
method of calculation of Subtenant's share of such charges. Subtenant
shall have the right to audit Sublandlord's calculation of such charges,
and any dispute with respect to such charges shall be subject to
arbitration.
In addition, Subtenant shall pay Subtenant's Proportionate Share of all
real property taxes and assessments levied against the Leased Premises
during the Term of this Sublease and any extensions thereof. Such taxes
and assessments shall be paid by Subtenant within three (3) business days
prior to the date Sublandlord is required to pay such taxes pursuant to
the Prime Lease. Sublandlord shall provide Subtenant with copies of all
such tax bills and the method of calculation of Subtenant's share of such
real estate taxes. Subtenant shall have the right to verify Sublandlord's
calculation of Subtenant's share of real estate taxes, and any dispute
with respect to the calculation thereof shall be subject to arbitration.
Fixed Rent, additional rent and other charges herein reserved or payable
shall be paid to Sublandlord at its offices at 500 Canal View Boulevard,
Rochester, New York 14623, or at such other place as Sublandlord may
designate, in lawful money of the United States of America, as and when
the same become due and payable, without any deduction, set-off or
abatement whatsoever, except as expressly permitted hereunder.
4. Renewal Option. Provided (i) Subtenant is not then in default under any
of the terms, covenants and conditions of this Sublease beyond the
expiration of any applicable grace or cure periods, and (ii) Sublandlord
has the right pursuant to the provisions of the Prime Lease and any
amendment thereto to extend the term of the Prime Lease beyond the
initial Term of this Sublease, Subtenant is hereby granted the options to
renew the Term for two (2) additional periods of up to five (5) years
each (each a "Renewal Term"). Subtenant's rights to renew this Sublease
shall run concurrently with Sublandlord's right to extend the term of the
Prime Lease. The first Renewal Term
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shall commence at the expiration of the initial Term and each subsequent
Renewal Term shall commence at the expiration of the then expiring
Renewal Term, as applicable. The expiration date in respect of the last
Renewal Term shall be the date which is one day prior to the expiration
of the term of the Prime Lease. Subtenant shall exercise each option to
renew by delivering notice of such election (each a "Renewal Notice") to
Sublandlord not less than ten (10) months prior to expiration of the
initial Term or the then expiring Renewal Term, as applicable. In the
event Sublandlord does not receive a Renewal Notice prior to the
expiration of the applicable time period (time being of the essence with
respect thereto), then any further option to renew the Term shall upon
the expiration of such applicable time period become null and void and be
of no further force and effect. Each Renewal Term shall be on the same
terms and conditions as contained in this Sublease.
5. Tenant Cancellation Option. During the Term or any Renewal Term,
Subtenant shall have the right to terminate this Sublease, on the last
day of a calendar month, on at least sixty (60) days prior written notice
to Sublandlord, and the termination date specified in such sixty day
notice shall thereafter be the Expiration Date hereunder.
6. Assignment or Subletting. This Sublease is not assignable, nor shall the
Subleased Premises or any part thereof be sublet, used, or permitted to
be used for any purpose, other than as above set forth, without the
written consent of Sublandlord and, if required under the Prime Lease,
Prime Landlord; which consent shall not be unreasonably withheld or
delayed by Sublandlord. If Prime Landlord consents to any such assignment
or sublease, Sublandlord shall be deemed to have consented to such
assignment or sublease. If Sublandlord has not consented or objected to a
proposed assignment, sublease or use which does not require Prime
Landlord's consent within thirty (30) days after receiving written
request therefor, Sublandlord will be deemed to have so consented. If
this Sublease is assigned or the Subleased Premises or any part thereof
sublet without the written consent of Sublandlord, or if Subtenant shall
become the subject of a court proceeding in bankruptcy or liquidating
receivership or shall make an assignment for the benefit of creditors,
this Sublease may by such fact or unauthorized act be cancelled at the
option of Sublandlord. Any assignment of this Sublease or subletting of
the Subleased Premises or any part thereof with the written consent of
Sublandlord shall not operate to release Subtenant from the fulfillment
on Subtenant's part of the covenants and agreements herein contained to
be performed by Subtenant, nor authorize any subsequent assignment or
subletting without the written consent of Sublandlord.
7. Repairs and Alterations. If the Prime Lease requires the consent of Prime
Landlord to any improvements, changes, additions, replacements or
alterations ("Improvements") in, to or about the Subleased Premises, the
Improvements shall not be commenced until such consent of Prime Landlord
and the consent of Sublandlord is obtained; which consent by Sublandlord
shall not be unreasonably withheld or delayed.
Any insurance required to be maintained under the Prime Lease by the
tenant thereunder with respect to Improvements shall be maintained by
Subtenant in connection with any Improvements permitted hereunder and
shall name Sublandlord and Prime Landlord as additional insured parties
thereunder.
Sublandlord has not agreed to make any repairs or decorations as
inducements to Subtenant to make this Sublease.
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8. Conditions of Subleased Premises. Subtenant agrees to keep the Subleased
Premises in good order and repair and not to use of the same or any part
thereof for any purpose forbidden by law or ordinance now in force or
hereafter enacted in respect to the use or occupancy of the Subleased
Premises. Sublandlord or its legal representatives may, at all reasonable
hours, enter upon the Subleased Premises for the purpose of examining the
condition of the Subleased Premises and making such repairs as
Sublandlord may deem fit.
Subtenant shall procure and maintain at its own cost during the Term
hereof fire and extended coverage insurance on the personal property of
Subtenant. Subtenant shall throughout the Term hereof, at its own
expense, provide or cause to be provided and kept in force, commercial
general liability insurance against claims of personal injury or death
and property damage caused by an occurrence upon, in or about the
Subleased Premises, which shall afford protection to limits of not less
than the amount of $1,000,000 in respect of personal injury or death to
any one person and in respect of injury of death to any number of persons
arising out of any one accident, and against property damage in respect
of any instance of property damage. Subtenant shall include Sublandlord
and Prime Landlord as additional insureds under its liability insurance
policies and such insurance coverage shall be extended to any liability
of Subtenant. All policies and insurance required by Subtenant with
respect to the Subleased Premises or the Building shall, if commercially
reasonable to do so, include a waiver by the insurer of all rights and
subrogation against Sublandlord and Prime Landlord, in connection with
any loss, damage or claims thereby insured against and shall require at
least thirty (30) days advance notice to Subtenant before any termination
or cancellation of such insurance will be effective. Subtenant shall
furnish to Sublandlord as reasonably requested, certificates of insurance
evidencing the existence of insurance as required by this Paragraph.
9. Indemnification. Sublandlord shall not be liable for and Subtenant will
indemnify and save harmless Sublandlord of and from all fines, suits,
claims, demands, losses, and actions (including attorneys' fees) for any
injury to person or damage to or loss of property on or about the Leased
Premises caused by Subtenant, its agents, employees, subtenants, invitees
or by any other person entering the Building or the Subleased Premises
under express or implied invitation of Subtenant, or arising out of
Subtenant's use of the Building or the Subleased Premises. Sublandlord
shall not be liable or responsible for any loss or damage to any property
or death or injury to any person occasioned by theft, fire, Act of God,
public enemy, injunction, riot, strike, insurrection, war, court order,
requisition of any governmental body or authority, or any other matter
beyond control of Sublandlord, or for any injury or damage or
inconvenience which may arise through repair or alteration of any part of
the Building, the Leased Premises or failure to make repairs or from any
cause whatsoever unless caused by Sublandlord's negligent actions or
negligent failure to act.
10. Damage to Subtenant's Property. Sublandlord shall not be liable to
Subtenant or any other person or corporation, including employees, for
any damage to their person or property caused by water, rain, snow,
frost, fire, storm and accidents, or by breakage, stoppage, or leakage of
water, gas, heating and sewer pipes or plumbing, upon, about, or adjacent
to the Leased Premises unless such damage is caused by Sublandlord's
negligent actions or negligent failure to act.
Sublandlord may terminate the Sublease upon (1) the occurrence of any
fire or other casualty which renders the Leased Premises or Subleased
Premises untenantable for a
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period of six (6) months or longer or (2) the partial or complete,
taking, whether temporary or permanent, of the Building, Leased Premises
or Subleased Premises by any governmental authority.
11. Care of Subleased Premises. Subtenant shall, at its expense, take good
care of the Subleased Premises and the appurtenances therein and make all
repairs thereto, as and when needed to preserve them in good order and
condition, all as required pursuant to the terms of the Prime Lease of
the tenant thereunder.
12. Holdover. If Subtenant holds over after the expiration or earlier
termination of the Term of this Sublease without the express written
consent of Sublandlord, Subtenant shall become a tenant at sufferance
only, at a rental rate equal to 150% of the Fixed Rent, and additional
rent in effect upon the date of such expiration (the "Holdover Rent"),
and otherwise subject to the terms, covenants and conditions herein. In
addition, Subtenant shall pay to Sublandlord, promptly upon Sublandlord's
demand, any and all amounts in excess of the Holdover Rent that
Sublandlord is obligated or required to pay to Prime Landlord under the
Prime Lease as a direct or indirect result of Subtenant's holdover,
including without limitation claims by Prime Landlord for attorney's fees
and disbursements in connection with such holdover. Acceptance by
Sublandlord of the Holdover Rent after such expiration or earlier
termination shall not constitute Sublandlord's consent to a holdover
hereunder or result in an express or implied renewal of this Sublease.
If Subtenant fails to surrender the Subleased Premises upon the
expiration or earlier termination of this Sublease, Subtenant shall
indemnify and hold Sublandlord harmless from all loss or liability,
including without limitation, any claim made by any succeeding tenant or
subtenant of Prime Landlord or Sublandlord, arising out of, pertaining to
or resulting from Subtenant's failure to surrender. The provisions of
this subparagraph are in addition to and not in limitation of
Sublandlord's right of re-entry or any rights of Sublandlord hereunder or
at law or in equity. Furthermore, Sublandlord shall have no liability or
responsibility whatsoever to Subtenant for any damage or injury suffered
by Subtenant as a result of any actions of Prime Landlord arising out of
Subtenant's holding over.
13. Applicable Law. The Sublease and all of its terms and provisions shall be
construed in accordance with the laws of the State of New York.
14. Termination of Sublease. If for any reason the Prime Lease is terminated
prior to the expiration date of this Sublease, this Sublease shall
thereupon terminate, the date of such termination shall for all purposes
be deemed the Expiration Date hereof, and Sublandlord shall not be liable
in any way whatsoever to Subtenant by reason thereof.
15. Signage. Sublandlord shall install and maintain unified signage for
itself and Subtenant on or about the Building.
16. Default. Failure on the part of Subtenant to pay any installment of rent
or increase in insurance rate or promptly and faithfully to keep and
perform each and every covenant, agreement, and stipulation herein on the
part of Subtenant to be kept and performed, within ten (10) days of
receipt of written notice thereof from Sublandlord (and subject to any
additional cure periods for non-monetary defaults as Sublandlord has
under Article 19 of the Prime Lease) shall, at the option of Sublandlord,
cause the forfeiture of this Sublease.
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It is hereby understood, and Subtenant hereby covenants with Sublandlord,
that such forfeiture, annulment or voidance shall not relieve Subtenant
from the obligation of Subtenant to make the monthly payments of rent
herein before reserved at the times and in the manner aforesaid. In case
of any such default of Subtenant, Sublandlord may relet the Subleased
Premises as the agent for and in the name of Subtenant, at any rental
readily obtainable, applying the proceeds and avails thereof, first, to
the payment of such expenses as Sublandlord may be put to in re-entering,
and then to the payment of the rent as the same may from time to time
become due, and toward the fulfillment of the other covenants and
agreements of Subtenant herein contained, and the balance, if any, shall
be paid to Subtenant. Subtenant hereby covenants and agrees that if
Sublandlord shall recover or take possession of the Subleased Premises
aforesaid, and be unable to relet and rent the same so as to realize a
sum equal to the rent hereby reserved, Subtenant shall and will pay to
Sublandlord any and all loss or losses including the difference of rent
for the remainder of the Term.
17. Notices. Any notice, request or demand permitted or required to be given
by the terms and provisions of this Sublease or by any law or
governmental regulation by either party to the other shall be in writing,
and unless otherwise required by such law or regulation, such notice,
request or demand shall be deemed to have been properly given and shall
be effective for any purpose if served or given by personal delivery,
telecopy, overnight courier or sent by first class U.S. mail, certified
or registered, postage prepaid, return receipt requested, addressed to
(i) Sublandlord at the address hereinabove set forth, Attention: Chief
Financial Officer, or to such other address as Sublandlord may, from time
to time designate by notice given to Subtenant in accordance with this
Article 16, or (ii) to Subtenant at the address hereinabove set forth,
Attention: Chief Financial Officer, or to such other address(es) as
Subtenant may from time to time designate by notice given to Sublandlord
in accordance with this Article. Every notice, demand, request or other
communication hereunder shall be deemed to have been given or served at
the time same is personally delivered, telecopied or sent by overnight
courier, or on the third day after deposit of such notice, request or
demand in the mail as hereinabove set forth.
18. Re-Entry. Subtenant will quit and deliver up the possession of the
Subleased Premises to Sublandlord and Sublandlord's heirs, successors,
agents, or assigns, when this Sublease terminates by limitation or
forfeiture, with all window glass replaced, if broken, and with all keys,
locks, and bolts, and generally in the condition as the same are now or
may hereafter be made by repair and compliance with all the covenants of
this Sublease, reasonable wear and tear and casualty excepted.
19. Prime Lease. This Sublease is in all respects subject and subordinate to,
and Subtenant accepts this Sublease subject and subordinate to all the
terms, covenants, provisions, conditions and agreements contained in (i)
the Prime Lease (a true and complete copy of which has been furnished by
Sublandlord to Subtenant), and to all the matters to which the Prime
Lease is subject and subordinate and (ii) any leasehold mortgage and/or
other security instrument (and to any and all renewals, modifications,
extensions substitutions, replacements and/or consolidations of such
leasehold mortgage) granted by Sublandlord to Fleet National Bank, as
agent, which encumbers or affects the Subleased Premises.
Subtenant acknowledges receipt of a copy of the Prime Lease. Except as
modified by specific provisions of this Sublease, or expressly excluded
from incorporation herein,
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or otherwise inconsistent with the provisions of this Sublease all of the
terms, covenants, conditions and agreements of the Prime Lease are
incorporated in this Sublease by reference, and are made part of this
Sublease as though fully set forth herein; and the term "Landlord"
therein shall refer to Sublandlord hereunder, the term "Tenant" therein
shall refer to Subtenant hereunder and the term "Premises" therein shall
refer to the Subleased Premises; except that the following provisions of
the Prime Lease shall be deemed deleted therefrom and shall have no force
and effect as between Sublandlord and Subtenant: Article 1, Article 2,
Article 3, Article 4, Article 6, Article 8, Article 12, Article 17,
Article 25, Article 31, Article 34, Exhibit A, Exhibit B, Exhibit C,
Exhibit D and the entire Second Amendment. In addition, as incorporated
herein, all references to "Base Rent" and "Additional Rent" in the Prime
Lease shall mean the Fixed Rent and additional rent payable hereunder by
Subtenant.
In the event of any inconsistency between the provisions of this Sublease
and the provisions of the Prime Lease, as incorporated herein pursuant to
this subparagraph, the provisions of this Sublease shall control as
between Sublandlord and Subtenant.
Sublandlord shall use reasonable efforts to enforce all of the terms of
the Prime Lease applicable to the Subleased Premises, but shall have no
liability for any act or omission of Prime Landlord.
20. No Constructive Waiver. No waiver of any forfeiture, by acceptance of
rent or otherwise, shall waive any subsequent cause of forfeiture, or
breach of any condition of this Sublease; nor shall any consent by
Sublandlord to any assignment or subletting of the Subleased Premises, or
any part thereof, be held to waive or release any assignee or sublessee
from any of the foregoing conditions or covenants as against him or them;
but every such assignee and sublessee shall be expressly subject thereto.
Whenever the word "Sublandlord" is used herein, it shall be construed to
include the heirs, executors, administrators, successors, assigns, or
legal representatives of Sublandlord; and the word "Subtenant" shall
include the heirs, executors, administrators, successors, assigns, or
legal representatives of Subtenant, and the words "Sublandlord" and
"Subtenant" shall include both singular and plural, individual or
corporation, subject always to the restrictions herein contained, as to
subletting or assignment of this sublease.
21. Parking Subtenant's employees shall have the right to use the parking
spaces allocated to Sublandlord at the Building during normal business
hours on a first come, first served basis.
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IN WITNESS WHEREOF, Sublandlord and Subtenant have duly executed
this Sublease as of the day and year first above written.
SUBLANDLORD:
ELEMENT K PRESS LLC
By:
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Name:
Title:
SUBTENANT:
ELEMENT K CONTENT LLC
By:
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Name:
Title:
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Exhibit "A"
Description of Leased Premises
See Attached Schedule 1
