Consent to Sublease



                                                    

                                                                                                Exhibit
10.3

 

CONSENT
TO SUBLEASE




This
Consent to Sublease (“Consent”) dated
as of March 11, 2005, is made by and among FIFTH AVENUE 58/59 ACQUISITION CO.
L.P. (“Landlord”), a
Delaware limited partnership, having an address at c/o Macklowe Management Co.,
Inc., 142 West 57th Street,
New York, New York 10019, SOUTHERN UNION COMPANY (“Tenant”), a
Delaware corporation, having an address at One PEI Center, Wilkes-Barre, PA
18711 and ACTIVATED COMMUNICATIONS, INC. (“Subtenant”), a
Delaware corporation, having an address at 767 Fifth Avenue, New York, New York
10019.




WHEREAS,
by Agreement of Lease (the “Original
Lease”) dated
as of August 28, 2001 between Trump 767 Fifth Avenue, LLC (“Trump”)
(Landlord’s predecessor-in-interest), as landlord, and Subtenant, as tenant,
Trump did demise and let to Subtenant, and Subtenant did hire and take from
Trump, a portion of the fiftieth (50th) floor
in the building known as 767 Fifth Avenue, New York, New York (the “Building”), said
premises being known as Unit 50D, as more particularly described in the Original
Lease (the “Demised
Premises”);
and




WHEREAS,
by Lease Assignment and Assumption dated September 30, 2004 (“Assignment
and Assumption”),
Subtenant assigned the Lease to Tenant; and




WHEREAS,
by Consent to Assignment and Assumption of Lease dated February 1, 2005
(“Consent
to Assignment and Assumption”),
Landlord consented to the Assignment and Assumption; and




WHEREAS,
Tenant has requested that Landlord consent to the subletting by Tenant to
Subtenant, pursuant to a sublease dated as of September 30, 2004 (the
“Sublease”), a
copy of which is attached hereto as Exhibit
A and made
a part hereof, of certain space described in the Sublease (the “Sublet
Space”), which
Sublet Space constitutes the entire Demised Premises described in the Lease, for
a term to commence on the date specified therefore in the Sublease and to end,
unless sooner terminated, on June 29, 2014. The Original Lease, as amended by
the Consent to Assignment and Assumption and this Consent, is hereinafter
referred to as the “Lease”.


 

1.  Landlord
hereby consents to the subletting by Tenant to Subtenant pursuant to the
Sublease, such consent being subject to and upon the following terms and
conditions, to each of which Tenant, Subtenant and Landlord hereby expressly
agree.

 

2.  Nothing
contained in this Agreement shall operate as a consent or approval or
ratification by Landlord to or of any of the provisions of the Sublease or as a
representation or warranty by Landlord, and, except as may be expressly provided
herein, Landlord shall not be bound or estopped in any way by the provisions of
the Sublease. In case of any conflict between the provisions of this Agreement
and the provisions of the Sublease, the provisions of this Agreement shall
prevail unaffected by the Sublease.

 

3.  Nothing
contained in this Agreement shall be construed to (i) modify, waive, impair or
affect any of the provisions, covenants, agreements, terms or conditions
contained in the Lease, (ii) waive any present or future breach or default under
the Lease or any rights of Landlord against any person, firm, association or
corporation liable or responsible for the performance of the Lease, or (iii)
enlarge or increase Landlord's obligations or Tenant's or Subtenant's rights
under the Lease or otherwise; and all provisions, covenants, agreements, terms
and conditions of the Lease are hereby declared by Tenant and Subtenant to be in
full force and effect. Tenant and Subtenant shall be and remain liable and
responsible for the due keeping, and full performance and observance, of all of
the provisions, covenants, agreements, terms and conditions set forth in the
Lease on the part of the tenant thereunder to be kept, performed and observed,
as the same relate to the Sublet Space, including, without limitation, with
respect to Tenant, the payment of the Fixed Rent and Additional Charges (as such
terms are defined in the Lease), together with all other sums payable by the
tenant under the Lease; provided,
however, this
sentence shall in no way be construed as releasing Tenant from or altering any
of its obligations under the Lease. In case of any conflict between the
provisions of this Agreement and the provisions of the Lease, the provisions of
the Lease shall prevail unaffected by this Agreement.

 

4.  Landlord's
consent under this Agreement is not assignable or transferable in connection
with any further or other subletting by Tenant or Subtenant.

 

5.  The
Sublease is, and shall be, subject and subordinate at all times to the Lease and
to all of the provisions of the Lease (including, but not limited to, the Rules
and Regulations which are a part thereof), and Tenant and Subtenant shall not
do, permit or suffer anything to be done in, or in connection with Subtenant's
use or occupancy of, the Sublet Space which would violate any of said
provisions. In case of any conflict between the provisions of the Lease and the
provisions of the Sublease, the provisions of the Lease shall prevail unaffected
by the Sublease.

 

6.  Neither
the Sublease nor Landlord's consent under this Agreement shall release or
discharge Tenant from any liability or obligation under the Lease, and Tenant
shall remain liable and responsible for the full performance and observance of
all of the provisions of the Lease on the part of the tenant under the Lease to
be performed or observed with the same force and effect as though no sublet had
been made pursuant to the terms of the Lease. Any breach or violation of any
provision of the Lease (whether by act or by omission) by Subtenant shall be
deemed to be, and shall constitute, a default by Tenant in fulfilling such
provision, and, in such event, Landlord may exercise its rights and remedies
under the Lease in the case of such a default.

 

7.  Landlord's
consent under this Agreement is not, and shall not be construed as a consent by
Landlord to any assignment, reassignment, further or other subletting, or other
transfer by Tenant or Subtenant. The Sublease shall not be assigned, reassigned,
transferred, surrendered, renewed or extended, nor shall the Demised Premises or
the Sublet Space or any part of either be sublet or sub-sublet, without the
prior written consent of Landlord thereto in each instance. In the event that
the Sublease is assigned, Subtenant and all future tenants under the Sublease
shall be jointly and severally liable for the full performance of the terms and
conditions of this Agreement. If Subtenant is a corporation, partnership or
other entity, the prohibition on assigning the Sublease shall be deemed breached
if there occurs (i) a transfer of any stock of, partnership interest of, or
other beneficial ownership interest in Subtenant (however accomplished, whether
in a single transaction or in a series of related or unrelated transactions);
(ii) a transfer by operation of law or otherwise, of Subtenant's interest in the
Sublease; and/or (iii) any increase in the amount of issued and/or outstanding
shares of capital stock of Subtenant (or partnership interests of Subtenant)
and/or the creation of one or more additional classes of capital stock of
Subtenant (or partnership interests of Subtenant) (however accomplished, whether
in a single transaction or in a series of related or unrelated transactions),
with the result that the beneficial and record ownership in and to Subtenant
shall no longer be identically held in the same proportion by the beneficial and
record owners of the capital stock of Subtenant (or partnership interests in the
case of a partnership) as of the date Subtenant executed the
Sublease.

 

8.  Subject
to all of the provisions, covenants, agreements, terms and conditions of the
Lease, the Sublet Space shall be used solely as specified in Article 2 of the
Lease and for no other purpose.

 

9.  In
addition to the obligations set forth in Paragraph 2 hereof, and in no way
limiting the same, Tenant and Subtenant shall be jointly and severally liable
for all bills rendered by Landlord for charges incurred by or imposed upon
Subtenant for services rendered and materials supplied to the Sublet Space by
Landlord whether requested by Tenant and/or Subtenant. Nothing in this Paragraph
shall require Landlord to respond to, or comply with, any requests for services
or materials made by Subtenant. Landlord's decision with respect to any such
request shall be in its sole discretion.

 

10.  (a)Tenant
and Subtenant represent and warrant to Landlord that the copy of the Sublease
attached hereto is a true and correct copy thereof and that the Sublease has not
been amended, changed or modified. Notwithstanding anything to the contrary
contained in the Lease or the Sublease, Tenant and Subtenant shall not, without
the prior written consent of Landlord in each instance, execute any amendment,
change or modification of the Sublease.

 

(b) Tenant
represents that, as of the date hereof, all of the obligations of Landlord under
the Lease have been complied with and performed by Landlord and any payments
required to be made by Landlord to Tenant under the Lease have been
made.

 

(c) Tenant
and Subtenant each, as to themselves only, represent and warrant to Landlord
that the information supplied to Landlord by the representing party in
connection obtaining Landlord's consent pursuant to this Agreement (including,
without limitation, all summaries, financial statements, notices, and other
documents) is true and complete and that no consideration has been or will be
paid by Subtenant for or in connection with the Sublease or the sale of any
furniture, furnishings, fixtures or improvements in the Sublet Space that has
not been disclosed in the Sublease. Also, Tenant and Subtenant each represents
and warrants to Landlord that, other than the Sublease, there are no other
agreements (written or oral) between them relating to the Sublease, or the use
or occupancy of the Sublet Space or the furniture, furnishings, fixtures, or
improvements therein. 

 

(d)
 The
representations and warranties by Tenant contained in this Paragraph shall be
deemed incorporated in the Lease and the inaccuracy of any of such
representations and warranties, and any representations and warranties by
Subtenant herein, shall constitute a default under the Lease, entitling Landlord
to exercise any or all of the remedies for default provided therein or otherwise
available at law or in equity.

 

11.  Upon the
expiration or termination of the term of the Lease during the term of the
Sublease by reason of condemnation or eminent domain or destruction by fire or
other cause, or if the Lease expires or is terminated for any other reason or is
surrendered by Tenant to Landlord, then the Sublease and its term shall, at
Landlord’s option, expire and come to an end as of the effective date of such
expiration, termination or surrender and Subtenant shall vacate the Sublet Space
on or before such date. If Subtenant does not so vacate, Landlord shall be
entitled to all of the rights and remedies available to a landlord against a
tenant holding over after the expiration of a term.

 

12.  Any
breach or violation of any provision of this Agreement (whether by act or by
omission) by Tenant or Subtenant shall be deemed to be and shall constitute a
default by Tenant in fulfilling the provisions of the Lease and by Subtenant in
fulfilling the provisions of the Sublease, and, in such event, Landlord may
exercise its rights and remedies under the Lease and the Sublease in the case of
such a default.

 

13.  In the
event that Tenant shall be in default under the Lease beyond the expiration of
applicable notice and cure periods under the Lease (if any) and Landlord gives
notice of any such default to Subtenant (which Landlord shall have no obligation
to give), then, from the date upon which Landlord gives such notice to Subtenant
until such time as Landlord rescinds said notice, Subtenant shall make all
payments of fixed rent and additional rent/charges due under the Sublease
directly to Landlord by unendorsed check made payable solely to Landlord at the
address designated by Landlord in said notice. Any such payments shall be
credited, upon collection only, by (a) Landlord against any Fixed Rent and
Additional Charges due Landlord by Tenant under the Lease in such manner and in
such order as Landlord may elect, in its sole discretion, and (b) Tenant against
any sums due Tenant by Subtenant under the Sublease. Tenant hereby authorizes
payment by Subtenant to Landlord pursuant to this Paragraph. Landlord may
exercise its rights under this Paragraph on one or more occasions, and from time
to time, as often as Landlord desires, and the rights granted to it hereunder
shall apply in each event of default by Tenant under the Lease. This Paragraph
shall in no event limit or impair other rights and remedies which may be
available to Landlord as a result of any such default by Tenant. The acceptance
of any such payments from Subtenant shall not be deemed an acceptance of
Subtenant as tenant under the Lease or an attornment to Landlord under the
Sublease nor shall it release Tenant from any of its obligations under the
Lease.

 

14.  Any
notice, demand, consent, approval, disapproval, or statement (collectively,
“Notices”) given
under the Lease or under this Consent shall be given in accordance with the
terms of Article 31 of the Lease, except that such Notices, if given to
Landlord, shall be addressed to Landlord c/o Macklowe Management Co., Inc.,
Attn.: William S. Macklowe, 142 West 57th Street,
New York, New York 10019 with a copy to Macklowe Management Co., Inc., Attn.:
Jason Grebin, Esq., 142 West 57th Street,
New York, New York 10019, and if given to Assignor, shall be addressed to
Assignor only at its address first above set forth in this Consent and, if given
to Assignee, shall be addressed to Assignee at its address first set forth in
this Consent. Landlord, Assignor and Assignee each may designate a different
address for Notices to it in a Notice given to the other parties under this
Paragraph. This Consent shall not be effective until executed by each of
Landlord, Assignee and Assignor.

 

15.  This
Agreement shall be construed and enforced in accordance with the laws of the
State of New York.

 

16.  This
Agreement contains the entire agreement of the parties hereto with respect to
the subject matter hereof. This Agreement may not be changed, modified,
terminated or discharged unless such change, modification, termination or
discharge is in writing and signed by Landlord.

 

17.  Each
right and remedy of Landlord provided for in this Agreement or in the Lease
shall be cumulative and shall be in addition to every other right and remedy
provided for therein or now or hereafter existing at law or in equity or by
statute or otherwise, and the exercise or beginning of the exercise by Landlord
of any one or more of the rights or remedies so provided for or existing shall
not preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies so provided for or so existing.

 

18.  If any
one or more of the provisions contained in this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.

 

19.  Tenant
and Subtenant each, jointly and severally, defends, indemnifies and holds
harmless Landlord from and against any and all (a) claims of and liabilities to
any broker(s), finder(s) and/or any other person(s) regarding fees or
commissions alleged to be due as a result of the granting of this consent and/or
the execution of the Sublease, and (b) loss, cost, expense or damage suffered by
Landlord relating to any such claims and liabilities.

 

20.  This
Agreement shall inure to the benefit of and be binding upon Subtenant and any
permitted successor or assignee of Subtenant and shall inure to the benefit of
and be binding upon Landlord and its successors and assigns, including any
purchaser of the Building.

 

21.  This
Agreement shall not be effective until executed by each of Landlord, Tenant and
Subtenant.

 

22.  Subtenant
shall, at any time and from time to time upon not less than 15 days’ prior
notice from Landlord, deliver a statement in writing (executed and acknowledged
by Subtenant) (a) setting forth the commencement date and expiration date of the
Sublease, the then current fixed rent under the Sublease and the dates to which
such fixed rent and any additional rent have been paid in advance, if any, (b)
certifying that the Sublease is unmodified and in full force and effect (or if
there has been any modification, that the same is in full force and effect as
modified and stating that to the knowledge of Subtenant, Tenant (as sublandlord)
is in default under the Sublease and, if so, specifying each such default of
which Subtenant may have knowledge. Any such statement delivered pursuant to
this Paragraph shall be binding upon such Subtenant and may be relied upon by
Landlord and by any other person with whom Landlord is dealing.

 

23.  Tenant
covenants to deliver to Landlord, contemporaneously with the delivery of this
Agreement to Landlord, a check, subject to collection, made payable to the order
of Landlord, in the sum of $2,500.00, representing legal fees incurred by
Landlord in connection with the granting of this consent. At Landlord's option,
the validity and enforceability of this Agreement is expressly conditioned upon
Tenant delivering said check and the collection thereof.

 

IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date set forth at the outset of this Agreement.

 







FIFTH
AVENUE 58/59 ACQUISITION CO. LLC

By: Fifth
Avenue 58/59 Mezz One LLC




By:
/s/ William S. Macklowe

William
S. Macklowe, Vice President







ACTIVATED
COMMUNICATIONS, INC., Tenant




By:
/s/ M. Schiehle

 

Name:
M. Schiehle




Title:
Corporate Secretary


 




SOUTHERN
UNION COMPANY, Subtenant




By:
/s/ George L. Lindemann




Name:
George L. Lindemann




Title: 
Chairman & CEO