BKF MANAGEMENT CO., INC., Sublandlord, -with- DAYLIGHT FORENSIC AND ADVISORY LLC, Subtenant. SUBLEASE
EXHIBIT
10.2
BKF MANAGEMENT CO., INC.,
Sublandlord,
-with-
DAYLIGHT FORENSIC AND ADVISORY LLC,
Subtenant.
TABLE OF CONTENTS
| ARTICLE | PAGE | |||
ARTICLE I
|
1 | |||
Premises
|
1 | |||
ARTICLE II
|
1 | |||
Term
|
1 | |||
ARTICLE III
|
1 | |||
Master Lease
|
1 | |||
ARTICLE IV
|
2 | |||
Incorporation of Terms
|
2 | |||
ARTICLE V
|
2 | |||
No Privity
|
2 | |||
ARTICLE VI
|
3 | |||
Rent
|
3 | |||
ARTICLE VII
|
4 | |||
Use
|
4 | |||
ARTICLE VIII
|
4 | |||
No Representations; As-Is
|
4 | |||
ARTICLE IX
|
6 | |||
Sublandlord’s Reasonable Approval
|
6 | |||
ARTICLE X
|
7 | |||
Notices
|
7 | |||
ARTICLE XI
|
7 | |||
Time Limits; Default
|
7 | |||
ARTICLE XII
|
7 | |||
Termination of Master Lease
|
7 | |||
ARTICLE XIII
|
8 | |||
Escalations
|
8 | |||
ARTICLE XIV
|
8 | |||
Assignment and Subletting
|
8 | |||
ARTICLE XV
|
8 | |||
Services
|
8 | |||
ARTICLE XVI
|
9 | |||
Electric Energy
|
9 | |||
ARTICLE XVII
|
9 | |||
Damage By Fire
|
9 | |||
ARTICLE XVIII
|
9 | |||
Condemnation
|
9 | |||
ARTICLE XIX
|
9 | |||
Alterations
|
9 | |||
ARTICLE XX
|
9 | |||
Failure to Give Possession
|
9 | |||
ARTICLE XXI
|
10 | |||
Broker
|
10 | |||
ARTICLE XXII
|
10 | |||
Master Lease Deletions
|
10 | |||
ARTICLE XXIII
|
10 | |||
Master Landlord Consent
|
10 | |||
ARTICLE XXIV
|
11 | |||
Miscellaneous
|
11 | |||
| ARTICLE | PAGE | |||
ARTICLE XXV
|
12 | |||
Security Deposit
|
12 | |||
ARTICLE XXVI
|
13 | |||
End of Term
|
13 | |||
ARTICLE XXVII
|
14 | |||
Sublandlord’s Office Furniture and Equipment
|
14 | |||
ARTICLE XXVIII
|
14 | |||
Waiver of Jury Trial and Counterclaims
|
14 | |||
EXHIBIT “A” — Master Lease
EXHIBIT “B” — Drawing
EXHIBIT “C” — Office Furniture and Equipment
EXHIBIT “B” — Drawing
EXHIBIT “C” — Office Furniture and Equipment
THIS
SUBLEASE, dated as of the day of May, 2006, between BKF MANAGEMENT CO., INC., a
Delaware corporation, having its principal office at Xxx Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter called “Sublandlord”), and DAYLIGHT FORENSIC AND ADVISORY LLC, a limited
liability company, having an office at Xxx Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called “Subtenant”).
WITNESSETH, that the parties hereto agree as follows:
ARTICLE I
Premises.
1.01 For the purposes of this Sublease, unless the context otherwise requires:
A. The term “Master Lease” shall mean the Lease dated December 20, 1993 between RCPI Landmark
Properties, L.L.C. (as successor-in-interest to Rockefeller Center Properties) (the “Master
Landlord”), as landlord, and BKF Management Co., Inc., formerly known as Xxxxx Management Co., Inc.
(as successor-in-interest to Xxxx X. Xxxxx & Co., Inc.), as tenant, as amended by Supplemental
Indenture dated March 2, 1995 (the “Supplemental Indenture”, the First Amendment to Lease dated
June 23, 1997 (the “First Amendment”), the Second Amendment to Lease dated as of January 22, 1998
(the “Second Amendment”), the Third Amendment to Lease dated as of December 31, 1998 (the “Third
Amendment”) , the Fourth Amendment of Lease dated
July 18, 2000 (the “Fourth Amendment”), the Fifth
Amendment to Lease dated as of May 14, 2001 (the “Fifth Amendment”),, the Sixth Amendment to Lease
dated as of September 28, 2001 (the “Sixth Amendment”) and the Seventh Amendment to Lease and
Partial Surrender Agreement dated as of October 10, 2003 (the “Seventh Amendment”), covering Spaces
“D” and “Z” on the third (3rd) floor, Space “A” on the nineteenth (19th)
floor, Space “A” on the twenty-third (23rd) floor, the entire eighteenth
(18th) floor and Space “P” on the twenty-second (22nd) floor (the “Premises”)
in the building (the “Building”) known as Xxx Xxxxxxxxxxx Xxxxx, Xxx Xxxx, New York
B. The term “Subleased Premises” shall mean the entire eighteenth (18th) floor of
the Premises which shall be deemed to consist of 16,022 rentable square feet for all purposes of
this Sublease.
ARTICLE II.
Term.
2.01 Sublandlord hereby subleases to Subtenant and Subtenant hereby hires from Sublandlord the
Subleased Premises, for a term commencing on the date (hereinafter called the “Commencement Date”)
which is the latest to occur of (a) the date of execution and delivery of this Sublease by
Sublandlord and Subtenant, (b) the date of Sublandlord’s receipt of the Master Landlord Consent (as
defined in Article XXIII hereof), (c) the tendering of delivery of possession of the Subleased
Premises to Subtenant vacant and in broom clean condition, and (d) May 30, 2006, and ending on
September 29, 2011 (the “Expiration Date”), or ending on such earlier date upon which said term may
expire or be cancelled or terminated pursuant to any of the conditions or covenants of the Master
Lease or this Sublease or pursuant to law. Once the Commencement Date has occurred, upon request
of either party, the other shall enter into a written confirmation thereof but the failure of
Subtenant or Sublandlord to execute and deliver such statement shall not detract from the
effectiveness of any of the provisions of this Sublease. Sublandlord shall provide Subtenant with
at least five (5) days prior written notice of the Commencement Date.
ARTICLE III.
Master Lease.
3.01 The parties agree that this Sublease and Subtenant’s tenancy hereunder are subject and
subordinate to all of the terms, covenants, conditions and provisions of the Master Lease and to
all matters and documents to which the Master Lease is, or shall become, subject and subordinate.
A redacted copy of the Master Lease is annexed hereto as Exhibit “A” and made a part hereof,
subject to the terms of this Sublease.
ARTICLE IV.
Incorporation of Terms.
4.01 The terms, covenants, conditions and provisions contained in the Master Lease (including,
but not limited to the remedies provided thereunder) are incorporated herein by reference, and
shall, as between Sublandlord and Subtenant constitute the terms, covenants, conditions and
provisions of this Sublease, except to the extent that they are inapplicable to, inconsistent with,
or modified by the provisions of this Sublease. Subtenant agrees (a) to observe and perform the
terms, covenants, conditions and provisions on the part of Sublandlord, as tenant under the Master
Lease, to be observed and performed thereunder as same relate to the Subleased Premises and/or to
tenants of the Building in general, including but not limited to those terms, covenants, conditions
and provisions of the Master Lease which are incorporated herein as same relate to the Subleased
Premises and/or to tenants of the Building in general, and (b) not to commit or omit to perform any
acts, or to create any conditions, which would constitute a default on the part of Sublandlord
under the Master Lease. It is hereby agreed that for purposes of incorporating the terms of the
Master Lease herein, and to the extent applicable (a) references in the Master Lease to the
“demised premises” or “Premises” shall be deemed to refer to the “Subleased Premises” hereunder,
(b) references in the Master Lease to “Owner” or “Landlord” shall be deemed to refer to
“Sublandlord” hereunder, (c) references in the Master Lease to “Tenant” shall be deemed to refer to
“Subtenant” hereunder, (d) references in the Master Lease to “this Lease” or to the “term of this
Lease” or words of like import shall be deemed to refer to “this Sublease” or the “term of this
Sublease”, as the case may be, and (e) references in the Master Lease to the “fixed rent” and
“additional rent” shall be deemed to refer to the “Fixed Rent” and “Additional rent” hereunder,
except as otherwise provided in Article XXII hereof. Any terms used in this Sublease and not
otherwise defined herein shall have the meaning ascribed to such terms in the Master Lease.
4.02 If any of the express provisions of this Sublease shall conflict with any of the
provisions of the Master Lease incorporated herein by reference, as between Sublandlord and
Subtenant, such conflict shall be resolved in every instance in favor of the express provisions of
this Sublease.
ARTICLE V.
No Privity.
5.01 Nothing contained in this Sublease shall be construed to create privity of estate or of
contract between Subtenant and Master Landlord. Except to the extent caused by the negligence or
intentional misconduct of Sublandlord, Subtenant shall indemnify and hold harmless Sublandlord from
and against all loss, costs, damages, expenses and liability (including but not limited to
reasonable attorneys’ fees and disbursements), which Sublandlord actually incurs or pays out by
reason of any injuries to person or property occurring in, on or about the Subleased Premises, or
by reason of any breach or default under this Sublease on Subtenant’s part, or by reason of any
work done in or to the Subleased Premises by Subtenant, its contractors or subcontractors, or any
wrongful act or negligence on the part of Subtenant, its employees, agents or contractors.
Subtenant shall in no case have any rights in respect of the Subleased Premises greater than
Sublandlord’s rights under the Master Lease, and, except for those obligations which are
specifically to be performed by Sublandlord under this Sublease and do not require any performance
by Master Landlord, Sublandlord shall have no liability to Subtenant for any matter whatsoever for
which Sublandlord does not have at least coextensive rights, as tenant, against Master Landlord
under the Master Lease.
5.02 Except to the extent caused by the negligence or intentional misconduct of Subtenant,
Sublandlord shall indemnify and hold harmless Subtenant from and against all loss, costs, damages,
expenses and liability (including but not limited to reasonable attorneys’ fees and disbursements),
which Subtenant actually incurs or pays out by reason of any breach or default under this Sublease
or the Master Lease on Sublandlord’s part to be observed or performed, or by reason of any wrongful
act or negligence on the part of Sublandlord.
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ARTICLE VI.
Rent.
6.01 Subtenant shall pay to Sublandlord fixed minimum rent (the “Fixed Rent”) at the annual
rate of EIGHT HUNDRED EIGHTY-ONE THOUSAND TWO HUNDRED TEN AND 00/100 ($881,210.00) DOLLARS per
annum ($73,434.16 per month), which shall be payable in equal monthly installments in advance on
the first day of each and every calendar month during the term of this Sublease, except that
Subtenant shall pay, upon the execution and delivery of this Sublease by Subtenant, the sum of
$60,082.16 to be applied against the first monthly installment of Fixed Rent to become due under
this Sublease (which sum reflects the Free Fixed Rent Credit set forth in Section 6.05 hereof). In
the event the Commencement Date occurs on a day other than the first day of a calendar month, the
Fixed Rent for such partial calendar month shall be prorated on the basis of the number of days of
the Sublease term within such calendar month, and the balance of the first month’s Fixed Rent
theretofore paid shall be credited against the next monthly installment of Fixed Rent.
6.02 Subtenant shall also pay to Sublandlord “Additional Rent” consisting of all such other
sums of money as shall become due from and payable by Subtenant to Sublandlord under this Sublease
(for default in payment of which Sublandlord shall have the same remedies as for a default in
payment of Fixed Rent). Subtenant shall also pay to Sublandlord as Additional Rent any “Subtenant
Surcharges”. “Subtenant Surcharges” shall mean any and all amounts other than Fixed Rent payable
by Sublandlord under the Master Lease which, by the terms of the Master Lease, become due and
payable by Sublandlord to Master Landlord as additional rent or otherwise and which would not have
become due and payable but for the acts, requests for services, and/or failures to act of
Subtenant, its agents, officers, representatives, employees, servants, contractors, invitees,
licensees or visitors under this Sublease, including, but not limited to: (i) any increases in
Master Landlord’s fire insurance premiums, to the extent resulting solely from any act or omission
of Subtenant, (ii) any charges to Sublandlord on account of any additional services requested by,
and furnished to, Subtenant under the Master Lease, (iii) any charges which are imposed on
Sublandlord, to the extent that such charges are attributable to the Subleased Premises or the use
thereof by Subtenant or services or utilities provided thereto pursuant to the terms of the Master
Lease or by reason of Subtenant’s request, and (iv) any additional charges to Subtenant on account
of Subtenant’s use or consumption in connection with the Subleased Premises, including, without
limitation, elevator, electrical or HVAC usage in excess of normal usage, provided same are charged
by Master Landlord to Sublandlord pursuant to the terms of the Master Lease. Fixed Rent and
Additional Rent are hereinafter sometimes collectively referred to as “Rent”. All
Additional Rent shall be payable by Subtenant on the earlier to occur of (i) fifteen (15) days
after written demand therefor by Sublandlord and (ii) three (3) days prior to the date the
corresponding payment of such Additional Rent is payable by Sublandlord to Master Landlord (but in
no event less than seven (7) days after written demand therefor).
6.03 The Fixed Rent and Additional rent and all other charges under this Sublease shall be
paid in cash, or by check, subject to collection, payable to BKF Asset Management, Inc., Xxx
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, without any set-off or
deduction whatsoever (except as otherwise may be expressly set forth in this Sublease or pursuant
to the terms of the Master Lease which have been incorporated herein by reference, but subject to
the terms of this Sublease), or at such other address as Sublandlord may designate by notice in
writing to Subtenant. Sublandlord’s failure during the Term to prepare and/or deliver any
statements or bills required to be delivered to Subtenant hereunder, or Sublandlord’s failure to
make a demand under any provisions of this Sublease shall not in any way be deemed to be a waiver
of, or cause Sublandlord to forfeit or surrender its rights to collect any installments of Rent
which may have become due under this Sublease hereof during the Term; provided that if Sublandlord
shall not make demand for a particular item of Additional Rent within twelve (12) months following
Sublandlord’s receipt of a demand therefor from Master Landlord, then Sublandlord shall be deemed
to have waived its right to collect payment of such item of Additional Rent Subtenant’s liability
for Rent due under this Sublease hereof accruing during the Term, and Sublandlord’s obligation to
refund overpayments of or adjustments to any installment of Rent paid to it by Subtenant, shall
survive the expiration or sooner termination of this Sublease. If Subtenant shall fail to pay when
due any installment of Rent payable hereunder,
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within a period of five (5) days after the due date of the installment in question, Subtenant shall
also pay to Sublandlord, a late charge equal to five (5%) percent of the overdue amount, such late
charge to be payable as Additional Rent hereunder. In addition, in the event that any installment
of Rent is not paid when due, the installment in question shall also bear interest from the date
first due until paid at a rate that is equal to the lesser of (i) eighteen (18%) percent per annum
or (ii) the highest rate permitted by law, such interest to be payable as Additional Rent hereunder
(provided however that the amount of any late charge paid by Subtenant for any installment in
question shall be credited against any interest payable for such installment). The payment of such
late charge and interest shall be in addition to all other rights and remedies available to
Sublandlord in the case of non-payment of Rent.
6.04 Provided Subtenant is not then in default under the terms, covenants and conditions of
this Sublease following notice and expiration of applicable cure periods provided herein, Subtenant
shall have the right to use and occupy the Subleased Premises free solely of Fixed Rent during the
period commencing on the Commencement Date and ending on the ninetieth (90th) day of the
term of this Sublease (the “Free Fixed Rent Period”), except that during such period Subtenant
shall pay to Sublandlord all Additional Rent and other charges due during the above period. Except
for the free Fixed Rent allowance as herein provided, Subtenant shall use and occupy the Subleased
Premises during the Free Fixed Rent Period pursuant to all of the other terms, covenants and
conditions of this Sublease.
6.05 Following the expiration of the Free Fixed Rent Period, Subtenant is herewith granted a
credit in the amount of THIRTEEN THOUSAND THREE HUNDRED FIFTY-TWO and 00/100 ($13,352.00) DOLLARS
per month to be applied towards each monthly installment of Fixed Rent (the “Fixed Rent Credit”)
thereafter payable under this Sublease during the term of this Sublease; provided, however,
Subtenant shall nevertheless be obligated to pay the balance of the Fixed Rent and all Additional
Rent and other charges payable hereunder. Except for the Fixed Rent Credit as herein provided,
Subtenant shall use and occupy the Subleased Premises pursuant to all of the other terms, covenants
and conditions of this Sublease.
ARTICLE VII.
Use.
7.01 Subtenant shall use and occupy the Subleased Premises for general, executive and
administrative office purposes and for no other purpose whatsoever, subject to and in compliance
with all of the provisions of the Master Lease.
ARTICLE VIII.
No Representations; As-Is.
8.01 A. Subject to completion by Sublandlord of Sublandlord’s Work in accordance with the
terms of this Sublease, Subtenant acknowledges that Subtenant has fully inspected the Subleased
Premises and Subtenant agrees to accept possession thereof in its then “as-is” physical condition
on the Commencement Date, including, without limitation, all existing partitions and without any
furniture, furnishings or other personal property except as set forth in Article XXVII hereof, and
with all fixtures, equipment, improvements and appurtenances attached to or built into the
Subleased Premises on the Commencement Date (including, without limitation, any “built-ins”,
carpeting, paneling, fixtures, partitions, equipment, lighting fixtures, doors, wall treatments,
window treatments and shelving), all of which shall remain a part of the Subleased Premises.
B. It is understood and agreed that Sublandlord shall not be required to make any
improvements, alterations or repairs whatsoever to the Subleased Premises or incur any expense to
prepare the Subleased Premises for Subtenant’s occupancy thereof, except that Sublandlord shall
perform solely the following (collectively, “Sublandlord’s Work”) in a good and workmanlike manner,
in compliance with applicable laws and the requirements of the Master Lease:
| (i) | enclose the internal stairway leading from the Subleased Premises to the nineteenth (19th) floor with sheetrock as shown on the drawing thereof set forth in Exhibit “B” hereof and paint the new partitions resulting therefrom |
4
consistent with existing colors of the Subleased Premises,
which work Subtenant acknowledges will or may be commenced,
performed and/or completed following the Commencement Date;
and
| (ii) | deliver the Subleased Premises in vacant, broom clean condition free of all tenancies and occupancies (other than Sublandlord’s tenancy under the Master Lease). |
8.02 A. In making and executing this Sublease, Subtenant has not relied upon or been induced
by any statements or representations (except as otherwise expressly provided in this Sublease,
including Sublandlord’s obligation to perform Sublandlord’s Work) of any persons with respect to
the Subleased Premises or of any other matter affecting the Subleased Premises or this transaction
which might be pertinent in considering the leasing of the Subleased Premises or the execution of
this Sublease. Subtenant acknowledges that Sublandlord has afforded Subtenant the opportunity for
full and complete investigations, examinations and inspections.
B. In the event that Sublandlord’s Work is not Substantially Complete by the date that is
sixty (60) days following the date of execution and delivery of this Sublease by Sublandlord and
Subtenant and execution and delivery of the Master Landlord Consent by the parties thereto (the
“Deadline Date”), then the Free Fixed Rent Period shall be extended one (1) day for each day
following the Deadline Date that Sublandlord’s Work is not Substantially Complete until the date
Sublandlord’s Work is Substantially Complete; provided, however, that no delays have been caused,
directly or indirectly, by Subtenant, Subtenant’s agents, employees or contractors. The foregoing
extension of the Free Fixed Rent Period shall be Subtenant’s exclusive remedy with respect to the
failure (or delay) to Substantially Complete Sublandlord’s Work. For purposes of this Sublease,
the term “Substantially Complete” shall mean that Sublandlord’s Work (as hereinafter defined) has
been completed except for minor details or adjustments that do not materially interfere with the
performance by Subtenant, its agents, contractors and employees of the Initial Work (as hereinafter
defined).
8.03 A. Except with respect to Sublandlord’s Work, Subtenant shall, at Subtenant’s expense,
perform all of the work and installations necessary for Subtenant’s initial occupancy of the
Subleased Premises (the “Initial Work”) subject to the provisions of this Sublease, including,
without limitation, Sublandlord’s and Master Xxxxxxxx’s prior written approval thereof. Subtenant
agrees that it will, prior to the commencement of any work in the Subleased Premises, deliver to
Sublandlord all certificates of insurance required to be supplied to Sublandlord by Subtenant
pursuant to the terms of this Sublease.
B. 1. In consideration of Subtenant performing and completing all of the Initial Work in the
entire Subleased Premises, Sublandlord shall, subject to the terms and conditions of Section B.3 of
this Article, reimburse or cause to be reimbursed to Subtenant, an amount equal to the lesser of
(i) the actual cost of the labor, materials and any other hard costs or reasonable soft costs
incurred (including, without limitation, engineering, architectural and consulting fees) in
connection with the installation of the physical improvements comprising the Initial Work, or (ii)
ONE HUNDRED SIXTY THOUSAND TWO HUNDRED TWENTY AND 00/100 ($160,220.00) DOLLARS, representing
“Sublandlord’s Contribution” to such work, it being understood and agreed that Sublandlord’s
Contribution shall not exceed such sum, and that all costs and expenses in excess of said sum shall
be borne solely by Subtenant.
2. Provided Subtenant is not in default under this lease following notice and expiration of
applicable cure periods provided herein, Sublandlord’s Contribution as provided in Paragraph B.2
hereof shall be paid out from time to time upon written request of the Chief Financial Officer or
equivalent officer of Subtenant (the “Request”) as the Initial Work progresses, but not more
frequently than monthly and which payment by Sublandlord shall be made on a pari passu basis, along
with payments for the Initial Work to be paid by Subtenant hereunder, such that the proportion to
be paid by Sublandlord of the cost of the work then performed to date shall in no event exceed the
ratio that the total Sublandlord’s Contribution bears to the total projected cost of the Initial
Work. Any such Request shall be received no later than nine (9) months following the Commencement
Date and shall be accompanied by the following:
(a) copies of all receipts, invoices and bills for the work completed and materials furnished
in connection with the Initial Work and incorporated in the
5
Subleased Premises which are to be paid from the requested disbursement or which have been
paid by Subtenant and for which Subtenant is seeking reimbursement;
(b) copies of all work orders, change orders and other materials relating to the work or
materials, if any, which are the subject of the requested reimbursement;
(c) a certificate signed by Subtenant’s independent licensed architect, dated not more than
ten (10) days prior to such Request, setting forth the following:
(i) that the sum then requested is justly due to persons who have rendered services or
furnished materials for the work therein specified, and giving a brief description of such services
and materials and the several amounts due to each of said persons in respect thereof, and stating
that no part of such expenditure is being made the basis, in any previous or then pending prior
request, for the receipt of Sublandlord’s Contribution or has been made out of the proceeds of
Sublandlord’s Contribution received by Subtenant, that the sum then requested does not exceed the
value of the services and materials described in the certificate, and that, in his opinion, the
portion of the Initial Work theretofore completed was performed in a good and workmanlike manner
and substantially in accordance with the plans therefor;
(ii) that except for the sum then requested, there is no outstanding indebtedness (except for
withholding of ten (10%) percent retainages) known to the persons signing such certificate, which
is then due for labor, wages, materials, supplies or services in connection with the Initial Work
which, if unpaid, might immediately become the basis of a vendor’s, mechanic’s, laborer’s or
material man’s statutory or similar lien upon such work or upon the land and building or any part
thereof or upon Subtenant’s leasehold interest;
(iii) a good faith estimate of the percentage of the Initial Work theretofore completed; and
(d) waivers of lien from all contractors, subcontractors and materialmen involved in the
performance of the Initial Work relating to the portion of the Initial Work theretofore performed
and materials theretofore provided and for which previous disbursements and/or the requested
disbursement has been or is to be made (except to the extent such waivers of lien were previously
furnished to Sublandlord).
Subject to the provisions of Paragraph B.2 hereof, upon compliance with the foregoing provisions of
this Paragraph B.3, Sublandlord shall pay or cause to be paid to Subtenant or the persons named
(pursuant to subdivision (c)(i) of this Section) in such certificate, the respective amounts stated
therein to be due to them provided (less ten (10%) percent of such sum as retainage), provided
however, that Sublandlord’s Contribution shall not exceed ONE HUNDRED SIXTY THOUSAND TWO HUNDRED
TWENTY AND 00/100 ($160,220.00) DOLLARS, and that all costs and expenses in excess of said sum
shall be borne solely by Subtenant.
ARTICLE IX.
Sublandlord’s Reasonable Approval.
9.01. Sublandlord’s refusal to consent to or approve any matter or thing, whenever
Sublandlord’s consent or approval is required under this Sublease or under the Master Lease, shall
be deemed reasonable, if, inter alia, Master Landlord under the Master Xxxxx has
refused to give such consent or approval. If Subtenant shall request Sublandlord’s consent and
Sublandlord has expressly agreed, under the terms of this Sublease, that neither its consent nor
its approval shall be unreasonably withheld, and Sublandlord shall fail or refuse to give such
consent or approval, and it is established by a court or body having final jurisdiction thereover
that Sublandlord has been unreasonable, the only effect of such finding shall be that Sublandlord
shall be deemed to have given its consent or approval; but Sublandlord shall not be liable to
Subtenant in any respect for money damages by reason of withholding its consent, unless it is
judicially determined by unappealable judgment that Sublandlord has acted in bad faith.
6
ARTICLE X.
Notices.
10.01. Notices and other communications hereunder shall be in writing and shall be given or
made by hand, certified or registered mail, return receipt requested, or reputable overnight
courier, if to Subtenant, addressed to (i) Xxxxxxxx & Xxxxxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, prior to the Commencement Date, and (ii) from and after
the Commencement Date, to the Subleased Premises, Attn: Xx. Xxxxxx Xxxxxxxx. Copies of any
notices sent to Subtenant shall also be sent to Xxxxxxx, Xxxxxxxxx LLP, 0 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxxx, Esq. Notices to
Sublandlord shall be addressed to BKF Asset Management, Inc., Xxx Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxx. Either party may, by written notice to the other party,
change its address for delivery of notices.
ARTICLE XI.
Time Limits; Default.
11.01 The time limits provided in the Master Lease for the giving of notices, making demands,
performance of any act, condition or covenant, or the exercise of any right, remedy or option, are
changed for the purposes of this Sublease, by lengthening or shortening the same in each instance
by three (3) days (or with respect to notices under Section 9.2 of the Master Lease by shortening
the time limit by fifteen (15) days), as appropriate, so that notices may be given, demands made,
or any act, condition or covenant performed, or any right, remedy or option hereunder exercised, by
Sublandlord or Subtenant, as the case may be (and each party covenants that it will do so), within
the time limit relating thereto contained in the Master Lease, but, to the extent notice is
required before a particular performance obligation accrues, then in no event shall Subtenant be
required to perform any such obligation earlier than three (3) days following written notice
thereof to Subtenant .
11.02 In the event of any default on the part of Subtenant under any of the provisions of the
Master Lease or this Sublease, Sublandlord shall have the same rights and remedies against
Subtenant under this Sublease as are available to Master Landlord against Sublandlord, as tenant,
under any of the provisions of the Master Lease, such rights not being exclusive of each other.
ARTICLE XII.
Termination of Master Lease.
12.01 Except as hereinafter provided in this Section 12.01, if for any reason the term of the
Master Lease is terminated prior to the Expiration Date of this Sublease, this Sublease shall
thereupon be terminated, and Sublandlord shall not be liable to Subtenant by reason thereof.
Provided Subtenant is not in default following notice and the expiration of any applicable cure
period under this Sublease, Sublandlord agrees during the term of this Sublease that (x)
Sublandlord shall not voluntarily terminate the Master Lease with respect to the Subleased Premises
prior to the Expiration Date of this Sublease except if pursuant to Articles 9 or 10 of the Master
Lease and except that Sublandlord may also voluntarily terminate the Master Lease for any reason
other than pursuant to Articles 9 or 10 of the Master Lease if Master Landlord agrees to recognize
this Sublease as a direct lease between Master Landlord and Subtenant pursuant to the terms of this
Sublease; (y) Sublandlord shall not commit or permit to be committed any acts which would create a
default on the part of Sublandlord, as tenant, under the Master Lease with respect to the Subleased
Premises, unless such default is caused by any act or omission of Subtenant or its respective
agents, employees, licensees, contractors or invitees; and (z) Sublandlord shall not modify or
amend the Master Lease so as to increase (other than to a de minimis extent) the obligations of
Subtenant under this Sublease or materially adversely affect Subtenant’s leasehold interest created
by this Sublease.
7
ARTICLE XIII.
Escalations.
13.01 Subtenant covenants and agrees to pay Sublandlord as Additional Rent during the term of
this Sublease all additional rent payable pursuant to subdivision (iii) of Section 2(c) of the
Sixth Amendment except that for purposes of this Sublease, (i) the term “Base Real Estate Taxes”
shall mean one half the sum of (1) the R.E. Tax Share of the Real Estate Taxes for the Tax Year
beginning on July 1, 2005 and ending on June 30, 2006, and (2) the R. E. Tax Share of Real Estate
Taxes for the Tax Year beginning on July 1, 2006 and ending on June 30, 2007, and (ii) the term
“Base COM” shall mean the O.E. Share of the Cost of Operation and Maintenance for the Computation
Year beginning on January 1, 2006 and ending on December 31, 2006. For purposes of this Sublease,
the term “Tenant Area” shall mean 16,022 rentable square feet as set forth in the Sixth Amendment.
All such payments shall be made by Subtenant at least three (3) days prior to the date such payment
is required to be made by Sublandlord to Master Landlord. Whenever the term “Tenant Area” appears
in the Master Lease and is incorporated by reference into this Sublease, “Tenant Area” shall be
deemed to mean 16,022 rentable square feet. In the event Master Landlord credits Sublandlord for
any amounts charged in previous periods occurring during the term of this Sublease with respect to
the Subleased Premises for Operating Expenses or Taxes or other Additional Rent items under the
Master Lease, then, provided Subtenant has paid the amount so credited, Sublandlord shall (i)
provide Subtenant with a copy of the supporting documentation received by Sublandlord and (ii) give
to Subtenant a credit or refund equal to Subtenant’s allocable share of the portion of such credit
or refund.
ARTICLE XIV.
Assignment and Subletting.
14.01 Pursuant to Article IV and the other provisions of this Sublease, the provisions of
Article Seven of the Master Lease are incorporated into this Sublease, subject to the provisions of
Article XXII hereof. In addition to any reasonable fees and expenses payable by Subtenant to
Sublandlord pursuant to Article Seven of the Master Lease, Subtenant shall also pay all fees and
expenses payable under the Master Lease by Sublandlord to Master Landlord pursuant to Article Seven
of the Master Lease, except that Sublandlord shall pay Master Landlord all fees payable to Master
Landlord with respect to Master Xxxxxxxx’s consent to this Sublease.
ARTICLE XV.
Services.
15.01 Notwithstanding anything to the contrary contained in this Sublease or the Master Lease
(whether or not incorporated by reference or specifically not incorporated by reference hereunder),
except to the extent due to the intentional misconduct or gross negligence of Sublandlord,
Sublandlord shall have no responsibility or obligations with respect to furnishing any services,
electricity or other utilities, maintenance, repairs or any work or complying with any legal
requirement whatsoever with respect to the Subleased Premises, the Premises or the Building (except
for Sublandlord’s Work) or providing any statements, material or information required of Master
Landlord under the Master Lease, but the sole responsibility of Sublandlord shall be to use
reasonable efforts (without cost to Sublandlord) to cause Master Landlord to furnish such services,
utilities, maintenance, repairs, work, statements, material or information as provided under the
Master Lease (including following request thereof by Subtenant, requesting the information set
forth in Section 24.7 of the Master Lease), provided Subtenant is not in default of any of the
terms, covenants or conditions of this Sublease following notice and expiration of applicable cure
periods provided herein. Sublandlord makes no representation as to the adequacy or sufficiency of
such services and no such inadequacy or insufficiency shall constitute a constructive eviction, in
whole or in part, or relieve Subtenant from any of its obligations under this Sublease, or impose
any liability on Sublandlord, or entitle Subtenant to any abatement or diminution of the Fixed Rent
or additional rent except that if Sublandlord shall receive any abatement or diminution of the
Fixed Rent or Additional Rent payable under the Master Lease with respect to the Subleased Premises
and relating to a period of time occurring during the term of this Sublease, then there shall be a
corresponding, pro-rata abatement or diminution of the Fixed Rent or Additional rent, as the case
may be, payable under this Sublease.
8
ARTICLE XVI.
Electric Energy.
16.01 The electric energy to the Subleased Premises shall be furnished pursuant to, and
subject to, the provisions of Section 2(c)(vii)(D) of the Sixth Amendment and the other provisions
of the Master Lease as they relate to the Subleased Premises. Sublandlord shall not be liable in
any way to Subtenant for any failure or defect in the supply or character of electric energy
furnished to the Subleased Premises except to the extent such failure or defect arises as a result
of Sublandlord’s gross negligence or willful misconduct.
ARTICLE XVII.
Damage By Fire.
17.01 If the Subleased Premises shall be damaged by fire or other cause under circumstances in
which Master Landlord is required to make repairs pursuant to the Master Lease, the sole obligation
of Sublandlord shall be to use reasonable efforts (without cost to Sublandlord) to cause the
obligations of the Master Lease to be fulfilled by Master Landlord in accordance with the terms of
the Master Lease. If Sublandlord shall, pursuant to the Master Lease, receive an abatement of
Fixed Rent and/or Additional Rent with respect to the Subleased Premises for such damage or
destruction, then there shall be a corresponding pro-rata abatement of the Fixed Rent and/or
Additional Rent payable under this Sublease by Subtenant for the period abated under the Master
Lease. No damages, compensation or claims shall be payable by Sublandlord for inconvenience, loss
of business or annoyance arising from any repair or restoration of any portion of the Subleased
Premises or of the Building.
ARTICLE XVIII.
Condemnation.
18.01 If all or any part of the Building or the Subleased Premises shall be taken, acquired or
condemned by any public or quasi-public authority under the power of eminent domain, condemnation
or expropriation, or in the event of a conveyance in lieu thereof, then the terms, covenants,
conditions and provisions of the Master Lease shall control. If only a part of the Subleased
Premises shall be so acquired or condemned and the Fixed Rent and/or Additional Rent payable by
Sublandlord under the Master Lease shall be reduced, then there shall be a pro-rata abatement of
the Fixed Rent and/or Additional Rent payable by Subtenant hereunder based on the proportion which
the area of the part of the Subleased Premises so acquired or condemned bears to the total
Subleased Premises immediately prior to such condemnation or acquisition.
ARTICLE XIX.
Alterations.
19.01 Pursuant to Article IV and the other provisions of this Sublease, the provisions of
Section 6.1(e) of the Master Lease (and other provisions of the Master Lease) are incorporated into
this Sublease, subject to the provisions of Article XXII hereof. In addition to any fees and
expenses payable by Subtenant to Sublandlord pursuant to Article Six of the Master Lease, Subtenant
shall also pay all fees and expenses, if any, payable by Sublandlord to Master Landlord pursuant to
the Master Lease with respect to any alterations made by Subtenant in the Subleased Premises.
ARTICLE XX.
Failure to Give Possession.
20.01 If Sublandlord is unable to give possession of the Subleased Premises on the
Commencement Date by reason of Master Landlord or by reason of strike, lockout or other labor
difficulty; explosion, sabotage, accident, riot or civil commotion; acts of war; acts of God; fire
or other casualty; requirements of law; governmental preemption or priorities or other controls in
connection with a national or other public emergency, or for any other reason whatsoever, then
Sublandlord shall not be subject to any liability for failure to give possession on said date and
the validity of this Sublease shall not be impaired under such circumstances, nor shall the same be
9
construed in any wise to extend the term of this Sublease, but the rent payable hereunder shall be
abated (provided Subtenant is not responsible for Sublandlord’s inability to deliver possession)
until after Sublandlord shall have given Subtenant written notice that the Subleased Premises are
available for Subtenant’s occupancy. The provisions of this Article are intended to constitute “an
express provision to the contrary” within the meaning of Section 223-a of the New York Real
Property Law.
ARTICLE XXI.
Broker.
21.01 Subtenant warrants and represents that (a) it dealt with no broker in consummating this
Sublease, and (b) no conversations or prior negotiations were had with any broker concerning the
renting of the Subleased Premises other than Xxxxxxx & Xxxxxxxxx, Inc. and Colliers ABR, Inc.
(collectively, “Brokers”). Sublandlord warrants and represents that (a) it dealt with no broker in
consummating this Sublease, and (b) no conversations or prior negotiations were had with any broker
concerning the renting of the Subleased Premises to Subtenant other than the Brokers. Subtenant
agrees to indemnify and hold Sublandlord harmless against any claims, losses, damages, judgments,
costs and expenses (including reasonable attorneys’ fees and disbursements) arising out of any
breach of its foregoing representations. Xxxxxxxxxxx agrees to indemnify and hold Subtenant
harmless against any claims, losses, damages, judgments, costs and expenses (including reasonable
attorneys’ fees and disbursements) arising out of any breach of its foregoing representations.
Commission, if any, payable to Brokers shall be paid by Sublandlord.
ARTICLE XXII.
Master Lease Deletions.
22.01 For the purposes of this Sublease, the following provisions of the Master Lease shall
each be deemed deleted:
Section 7.2.3 and the following shall be incorporated in lieu thereof: “The term “Applicable
Rental Rate”, as used in this Article, shall be deemed to mean $45.00 per annum”; the balance of
the first sentence of Section 13.1 commencing with the word “provided” in the third line thereof;
the second sentence of Section 13.1; the balance of the sixth sentence of Section 13.1 commencing
with the word “provided”; the last two sentences of Section 13.1; the last two sentences of Section
13.2; Article Fourteen; the second sentence of Section 26.1; Article Twenty-Seven; Article
Thirty-Two; Article Thirty-Four; Section 7 of the Supplemental Indenture; Sections 6, 7, 8 and 10
of the First Amendment; Sections 7 and 9 of the Second Amendment; Sections 3 and 8 of the Third
Amendment; Sections 3 and 8 of the Fourth Amendment; Sections 6 and 7 of the Fifth Amendment;
Sections 4 and 5 of the Sixth Amendment; and Sections 6, 7 and 9 of the Seventh Amendment.
22.02 The Master Lease shall additionally be modified as follows:
A. Whenever provision is made in the Master Lease or in this Sublease for Subtenant to
maintain an insurance policy naming Master Landlord (and any other party required in the Master
Lease) or Sublandlord a party insured thereunder Subtenant shall maintain an appropriate policy
which shall name both Sublandlord and Master Landlord (and such other parties required in the
Master Lease) as additional insureds.
ARTICLE XXIII.
Master Landlord Consent.
23.01 This Sublease shall not become effective unless and until the written consent of the
Master Landlord to this Sublease, which consent shall include, in substance, an agreement by Master
Landlord to recognize Subtenant under the terms of this Sublease in the event of a termination of
the Master Lease by reason of a default thereunder by Sublandlord or voluntary termination of the
Master Lease except in certain circumstances, subject to the terms of such consent (the “Master
Landlord Consent”) has been obtained in form and substance reasonably acceptable to Sublandlord and
Subtenant, and a copy of the fully executed Master Landlord Consent has been delivered to
Sublandlord and Subtenant. Promptly following execution and
10
delivery of this Sublease by Sublandlord and Subtenant, Sublandlord shall request the Master
Landlord Consent. If the written Master Landlord Consent to this Sublease shall not be obtained on
or before forty-five (45) days following execution of this Sublease by Sublandlord and Subtenant,
then Sublandlord and Subtenant shall each have the right to terminate this Sublease upon ten (10)
days’ prior written notice to the other party and unless the Master Landlord Consent is obtained
within said ten (10) day period, this Sublease shall be of no further force or effect and shall be
deemed null and void ab initio, and neither Sublandlord nor Subtenant shall have
any liability hereunder, except that Sublandlord shall promptly return any Fixed Rent and security
deposit delivered by Subtenant to Sublandlord pursuant to this Sublease.
23.02 Subtenant xxxxxx agrees that it shall cooperate in good faith with Sublandlord and shall
comply with any reasonable requests made of Subtenant by Master Landlord in the procurement of the
Master Landlord Consent.
ARTICLE XXIV.
Miscellaneous.
24.01 The Subleased Premises does not include any basement or storage space and Subtenant
shall have no right or option to extend the term of this Sublease or to hire any additional space
from Sublandlord.
24.02 This Sublease shall be governed in all respects by the laws of the State of New York.
24.03 The marginal headings in this instrument are used for convenience in finding the subject
matters, and are not to be taken as part of this instrument; or to be used in determining the
intent of the parties, or otherwise interpreting this instrument.
24.04 This Sublease shall not be changed, modified or cancelled orally. This Sublease shall
apply to and bind the respective heirs, distributees, executors, administrators, successors and
assigns of the parties hereto but this Section shall not be construed as a consent to any
assignment or subletting by the Subtenant.
24.05 This Sublease is being tendered to Subtenant without obligation on Sublandlord’s part
and in no event shall it be deemed to be binding upon Sublandlord or give Subtenant any rights
unless and until Sublandlord shall have executed the same and delivered a copy to Subtenant.
24.06 Sublandlord represents and warrants that (i) it has delivered a true and correct copy of
the Master Lease to Subtenant, and there are no side agreements with respect thereto that reduce
Subtenant’s rights or increase Subtenant’s obligations under this Sublease or reduce Master
Xxxxxxxx’s obligations with respect to the Subleased Premises, (ii) as of the date hereof,
Sublandlord has neither given nor received any notice of default under the Master Lease, not
heretofore cured or waived, (iii) as of the date hereof, there is no litigation pending with Master
Landlord. Sublandlord shall promptly send to Subtenant copies of all notices received by
Sublandlord with respect to a default by Sublandlord under the Master Lease
24.07 Sublandlord hereby represents and warrants to Subtenant that Sublandlord has the right
and authority to enter into the Sublease and that no consents or approvals of this Sublease (other
than the approval of Master Landlord) are required by any party or the necessary consents or
approvals have been obtained. Subtenant hereby represents and warrants to Sublandlord that
Subtenant has the right and authority to enter into the Sublease and that no consents or approvals
of this Sublease (other than the approval of Master Landlord) are required by any party or the
necessary consents or approvals have been obtained.
24.08 Subject to the terms of the Master Lease, Subtenant shall have access to the Subleased
Premises 24 hours per day, 7 days per week, 365 days per year.
24.09 In no event whatsoever shall either party be liable for any indirect, consequential, or
punitive damages arising under or in connection with this Sublease, except that the foregoing shall
not limit or reduce Subtenant’s liability pursuant to Article 26 hereof.
11
ARTICLE XXV.
Security Deposit.
25.01 Subtenant has deposited with Sublandlord the sum of FOUR HUNDRED EIGHTY THOUSAND SIX
HUNDRED FIFTY-SEVEN AND 28/100 ($480,657.28) DOLLARS as security for the faithful performance and
observance by Subtenant of the terms, provisions and conditions of this Sublease; it is agreed that
in the event Subtenant defaults in respect of any of the terms, provisions and conditions of this
Sublease, including, but not limited to, the payment of Fixed Rent and Additional Rent and such
default shall continue following notice and expiration of applicable cure periods provided herein,
Sublandlord 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
Subtenant is in default following notice and expiration of applicable cure periods provided herein,
or for any sum which Sublandlord may expend or may be required to expend by reason of Subtenant’s
default following notice and expiration of applicable cure periods provided herein in respect of
any of the terms, covenants and conditions of this Sublease, including, but not limited to, any
damages or deficiency in the re-letting of the Subleased Premises, whether such damages or
deficiency accrued before or after summary proceeding or other re-entry by Sublandlord. In the
case of every use, application or retention of the security deposit pursuant to the terms of this
Section 25.01, Subtenant shall, on demand, pay to Subtenant the sum so used, applied or retained
which shall be added to the security deposit so that the same shall be replenished to its former
amount, and any failure by Subtenant to pay such sum on demand shall constitute a default under
this Sublease. If any bankruptcy, insolvency, reorganization or other creditor-debtor proceedings
shall be instituted by or against Subtenant, or its successors or assigns, if any, any security
deposited with Sublandlord pursuant to this Article shall be deemed to be applied first to the
payment of any rents and/or other charges due Sublandlord for all periods prior to the institution
of such proceedings and the balance, if any, of such security deposited with Sublandlord may be
retained by Sublandlord in partial liquidation of Sublandlord’s damages. Provided Tenant is not
then in default of any of the terms, covenants or conditions of this Sublease, the security shall
be returned to Subtenant within thirty (30) days after the expiration or sooner termination of this
Sublease and after delivery of possession of the Subleased Premises to Sublandlord. In the event
of any assignment of Sublandlord’s interest in the Master Lease, Sublandlord shall transfer the
security to the new Sublandlord and, provided Xxxxxxxxxxx has actually transferred the security to
such assignee, Sublandlord shall thereupon be released by Subtenant from all liability for the
return of such security, and it is agreed that the provisions hereof shall apply to every transfer
or assignment made of the security to a new Sublandlord. Subtenant further covenants that it will
not assign or encumber or attempt to assign or encumber the monies deposited herein as security and
that neither Sublandlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. If at any time the security deposit is
in the form of cash, Sublandlord will deposit said security in a segregated interest bearing
account and unless paid or applied for the use or rental of the Subleased Premises upon default of
Subtenant as hereinabove provided, Sublandlord will deliver or cause to be delivered to Subtenant
such interest as is allowed on said following the end of the term, less one (1%) percent per annum
administration expense (or greater administration expense allowed by law).
25.02 Notwithstanding anything contained in Section 25.01 hereof, Subtenant shall in lieu of
said cash security provided in Section 25.01 hereof, deliver to Sublandlord, as security pursuant
to Section 25.01 hereof, an irrevocable, clean, commercial letter of credit in the amount (the “LC
Amount”) of FOUR HUNDRED EIGHTY THOUSAND SIX HUNDRED FIFTY-SEVEN AND 28/100 ($480,657.28) DOLLARS
(the “Letter”), issued by a bank reasonably acceptable to Sublandlord which shall permit
Sublandlord (a) to draw thereon at a location in the City of New York (or outside New York City
provided such draw shall be permitted by mail or overnight courier) up to the full amount of the
credit evidenced thereby in the event any sums of money shall become due under this Sublease or (b)
to draw at a location in the City of New York (or outside New York City provided such draw shall be
permitted by mail or overnight courier) the full amount thereof to be held as cash security
pursuant to Section 25.01 of this Sublease if for any reason the Letter is not renewed within sixty
(60) days prior to its expiration date. The Letter (and each renewal thereof) shall (i) be for a
term of not less than one (1) year (except that the last Letter shall be for a term expiring sixty
(60) days after the Expiration Date); (ii) expressly provide that the term of the Letter shall
automatically renew for one (1) year periods unless the issuing bank shall notify Sublandlord in
writing not less than sixty (60) days prior to its expiration as to its non-renewal, and if not so
renewed each year (or later period of expiration)
12
shall be immediately available for Sublandlord to draw up to the full amount of such credit (to be
held as cash security pursuant to Section 25.01 of this Sublease); (iii) be fully transferable by
the beneficiary thereof (and its successors and assigns) without charge or if there is a charge for
such transfer, the charge therefor shall be paid by Subtenant upon demand by Sublandlord; and (iv)
be in form and substance reasonably approved by Sublandlord. If the Letter shall not be renewed,
then not less than thirty (30) days prior to the expiration date of the Letter (and every renewal
thereof), Subtenant shall deliver to Sublandlord a new Letter subject to all of the conditions
aforesaid, all to the intent and purposes, that a Letter in the sum of not less than the LC Amount
shall be in effect during the entire term of this Sublease, and if Subtenant fails to deliver a new
Letter as herein required at least thirty (30) days prior to the expiration date of the expiring
Letter, then Sublandlord may draw on the expiring Letter up to the full LC Amount and hold such
amount as cash security pursuant to Section 25.01 of this Sublease. In the event that
Sublandlord applies or retains any portion or all of the proceeds of the Letter pursuant to the
terms of this Sublease, Subtenant shall within ten (10) days restore the amount so applied or
retained by causing the bank issuing the Letter to issue an amendment thereto, or if no Letter was
then outstanding by causing a new Letter to be issued so that, at all times, the amount of the
Letter which may be drawn upon shall be at least equal to the LC Amount. Failure by Subtenant to
comply with the provisions of this Section 25.02 shall be deemed a material default hereunder
entitling Sublandlord to exercise any and all remedies as provided in this Sublease for default in
the payment of Fixed Rent and, to draw on the existing Letter up to its full amount.
25.03 Provided Subtenant shall not then be in default under any of the terms, covenants and
conditions of this lease, and provided further that at no time shall Sublandlord have drawn down on
the security deposit or Letter theretofore maintained under this Sublease as permitted under this
Sublease, then, upon written notice to Sublandlord, the amount of security required to be deposited
under this Sublease or LC Amount may be reduced after the dates and to the amounts as follows:
| (i) | After the date that is twelve (12) months following the day immediately succeeding the last day of the Free Fixed Rent Period (the “1st Reduction Date”), to $360,492.96; | ||
| (ii) | After the date that is twelve (12) months following the 1st Reduction Date, to $240,328.64 (the “2nd Reduction Date”); and | ||
| (iii) | After the date that is twelve (12) months following the 2nd Reduction Date and for the balance of the term of this Sublease, to $120,164.32. |
ARTICLE XXVI.
End of Term.
26.01 If the Subleased Premises are not surrendered upon the Expiration Date or earlier
termination of the term of this Sublease, Subtenant shall indemnify Sublandlord against liability
actually resulting from delay or failure by Subtenant in so surrendering the Subleased Premises,
including any claims made by Master Landlord founded upon such delay. In the event Subtenant
remains in possession of the Subleased Premises after the termination of this Sublease, Subtenant,
at the option of Sublandlord, shall be deemed to be occupying the Subleased Premises as a tenant
from month to month, at a monthly rental equal to two and one-half (2.5) times the Fixed Rent and
Additional Rent payable during the last month of the term, subject to all of the other terms of
this Sublease insofar as the same are applicable to a month-to-month tenancy. Subtenant’s
obligations under this Article shall survive the termination of this Sublease.
26.02 Subtenant shall remove from the Subleased Premises at the expiration of the term of this
Sublease, all furniture, furnishings, trade fixtures and personal property of Subtenant, and any
and all improvements and fixtures installed by Subtenant at the Subleased Premises to the extent
required under the Master Lease and perform all other obligations otherwise required to surrender
the Subleased Premises in the condition required under the Master Lease; provided that Subtenant
shall not be required to remove any alterations or installations in the Subleased Premises except
if installed by Subtenant (or its contractors) and then only to the extent required to be removed
pursuant to the terms of the Master Lease. In the event any such removal results in any damage to
the Subleased Premises or leaves any portion thereof in an unpresentable condition for use by
others, as determined in Sublandlord’s reasonable judgment, Subtenant, at
13
Sublandlord’s option, shall at Subtenant’s expense repair such damages or remedy such condition to
a presentable state.
ARTICLE XXVII.
Sublandlord’s Office Furniture and Equipment.
27.01 Sublandlord’s office furniture and equipment listed on Exhibit “C” annexed hereto and
made a part hereof (the “Office Furniture and Equipment”) shall remain in the Subleased Premises
pursuant to the provisions of this Article. In consideration of the execution and delivery of this
Sublease by Subtenant, Sublandlord hereby conveys to Subtenant and Subtenant hereby accepts all of
Sublandlord’s right, title and interest in and to the Office Furniture and Equipment. Such
conveyance is made with no recourse, warranty or representation of any nature whatsoever, express
or implied, including any warranty of fitness for any particular purpose, except that Sublandlord
hereby represents and warrants that such Office Furniture and Equipment is owned by Sublandlord
free and clear and is not subject to any liens or encumbrances and that no third party has any
rights in and to such Office Furniture and Equipment..
27.02 Subtenant acknowledges that it has inspected the Office Furniture and Equipment, is
familiar with its condition and accepts the same in its “as-is” physical condition as of the
Commencement Date of this Sublease. Except as otherwise set forth herein, neither Sublandlord nor
any agent or representative of Sublandlord has made any express or implied warranties, guaranties,
inducements, representations or information pertaining to the Office Furniture and Equipment or any
part thereof, the physical condition, the uses which can be made of same or any other matter or
thing with respect thereto. Subtenant shall remove all of the Office Furniture and Equipment from
the Subleased Premises on or before the Expiration Date or the sooner termination of this Sublease.
27.03 Subtenant shall obtain and keep in full force and effect at all times during the term of
this Sublease insurance policies in accordance with the terms of the Master Lease, which insurance
policies, in addition to the requirements set forth in the Master Lease, shall name Sublandlord as
an additional insured.
27.04 Subtenant agrees to pay any applicable sales and use taxes arising out of or in
connection with the conveyance of the Office Furniture and Equipment to Subtenant.
ARTICLE XXVIII.
Waiver of Jury Trial and Counterclaims.
28.01 The respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this Sublease, the relationship of
Sublandlord and Subtenant, Subtenant’s use or occupancy of the Subleased Premises, or for the
enforcement of any remedy under any statute, emergency or otherwise. If Sublandlord commences any
summary proceeding against Subtenant, Subtenant will not interpose any counterclaim of whatever
nature or description in any such proceeding (unless failure to impose such counterclaim would
preclude subtenant from asserting in a separate action the claim which is the subject of such
counterclaim), and will not seek to consolidate such proceeding with any other action which may
have been or will be brought in any other court by subtenant.
NO FURTHER TEXT ON THIS PAGE
14
28.02 The parties hereto agree and consent that any party to this Sublease may file a copy of
this Section with any court as written evidence of the consent of the parties to the waiver of
their right to trial by jury as provided in this section.
IN WITNESS WHEREOF, this Sublease has been duly executed on the day and year first hereinabove
written.
| SUBLANDLORD: | ||||||
| BKF MANAGEMENT CO., INC. | ||||||
| By: | /s/ X. Xxxxxx Xxxx | |||||
| Name: X. Xxxxxx Xxxx | ||||||
| Title: SVP & CFO | ||||||
| SUBTENANT: | ||||||
| DAYLIGHT FORENSIC AND ADVISORY LLC | ||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: CEO | ||||||
15
STATE OF NEW YORK
|
) | |||||||
| ss.: | ||||||||
COUNTY OF
|
) |
On
the 12th day of May in the
year 2006, before me, the undersigned, personally
appeared Xxxxx Xxxxxxx, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity(ies), that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxx X.
Xxxxxx
16
EXHIBIT “A”
MASTER LEASE
EXHIBIT “B”
DRAWING
EXHIBIT
“C”
OFFICE FURNITURE AND EQUIPMENT
All built-in furniture currently located in the Subleased Premises
All Conference Room Furniture currently located in the Subleased Premises
All other moveable furniture to the extent remaining in the Subleased Premises on the Commencement
Date, in Sublandlord’s sole discretion.
