NEW SUBLEASE AND TERMINATION OF PRIOR SUBLEASE
EXHIBIT 10.11
NEW SUBLEASE AND TERMINATION OF PRIOR SUBLEASE (this “Sublease”), made as of the
21st day of December, 2010, by and between Primus Financial Products, LLC, a Delaware
limited liability company, having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(“Sublessor”), and Seaport Group Leasing, LLC, a New York limited liability company, having
an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (“Sublessee”).
Statement of Facts
A. Pursuant to an Agreement of Lease made as of July 25, 2002, between Madison 45 LLC
(“Prime Landlord”) and Sublessor, a copy of which has been previously provided to Sublessee
(the “Original Prime Lease”), Prime Landlord leased to Sublessor the entire rentable area
of the twenty-third (23rd) floor (the “23rd Floor Premises”) in the building known as 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the “Building”), said 23rd Floor Premises being more
particularly described in the Original Prime Lease.
B. Pursuant to a First Amendment of Lease made as of February
_____, 2006 between Prime Landlord
and Sublessor (the “First Amendment”), the Prime Landlord leased to Sublessor the entire
twenty-fifth (25th) floor of the Building (the “25th Floor Premises”), said 25th Floor
Premises being more particularly described in the First Amendment (the Original Prime Lease and
First Amendment shall collectively be the “Prime Lease”).
C. Pursuant to a Sublease made as of July 1, 2009, between Sublessor and Sublessee, (the
“25th Floor Sublease”), Sublessor subleased to Sublessee the 25th Floor Premises as more
particularly described in the 25th Floor Sublease, and which 25th Floor Sublease was consented to
by Prime Landlord on July 17, 2009.
D. Sublessee desires to vacate the 25th Floor Premises and terminate the 25th Floor Sublease
and, instead, sublease from Sublessor the 23rd Floor Premises and Sublessor is willing to recapture
the 25th Floor Premises and, sublease to Sublessee the 23rd Floor Premises upon the terms and
conditions hereinafter set forth. Capitalized terms used herein and not otherwise defined, shall
have the same meanings ascribed to them in the Prime Lease.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Sublessor and
Sublessee hereby agree as follows:
| 1. | Agreement to Sublease and Termination of 25th Floor Sublease. |
(a) Agreement to Sublease. Provided Sublessee is not in default of any of the terms
of this Sublease or the 25th Floor Sublease either as of the date hereof or the 23rd Floor
Sublease Commencement Date (as hereinafter defined), Sublessor hereby leases to Sublessee and
Sublessee hereby hires from Sublessor the 23rd Floor Premises upon the terms hereinafter contained
and, subject to and subordinate to the provisions of the Prime Lease, for a term (the “23rd
Floor Sublease Term”) which shall commence on the date
which shall be the date upon which Sublessor shall deliver possession of the 23rd Floor Premises to Sublessee
(the “23rd Floor Sublease Commencement Date”) and shall end on September 29, 2016 (the
“Sublease Expiration Date”), unless terminated sooner
pursuant to the terms hereof.
Notwithstanding anything to the contrary contained herein, Sublessor shall deliver possession of
the 23rd Floor Premises to Sublessee, in the condition required pursuant to Section 5 herein, on
the latest to occur of (i) full execution of this Sublease, (ii) receipt of the first month’s Base
Rent (as hereinafter defined) which shall be paid to the Sublessor upon Sublessee’s execution of
this Sublease but will be held undeposited until Prime Landlord’s consent referenced in point
(iii) below is received and delivery of the Security Deposit (as hereinafter defined) to Sublessor
(but Sublessor may deliver the 23rd Floor Premises prior to its receipt of the
additional Security Deposit as contemplated by Section 11(e) of this Sublease), (iii)
receipt of Prime Landlord’s consent to this Sublease or Sublessee’s occupancy of the 23rd Floor
Premises pursuant to this Sublease, a copy of which shall be delivered by Sublessor promptly upon
receipt to Sublessee, (iv) delivery of possession of the 25th Floor Premises from Sublessee to
Sublessor in the condition required under the 25th Floor Sublease (except that Sublessee shall
leave the 25th Floor Furniture (as hereinafter defined) in the 25th Floor Premises, (v) payment to
Sublessor of any and all sums due under the 25th Floor Sublease through the Surrender Date (as
defined below) and (vi) January 20, 2011. When the 23rd Floor Sublease Commencement Date has been
determined, Sublessor shall deliver to Sublessee, and Sublessor and Sublessee shall execute a
commencement date agreement in the form attached hereto as Exhibit C, confirming the actual 23rd
Floor Sublease Commencement Date. Sublessor shall not, prior to the 23rd Floor
Sublease Commencement Date, in bad faith willfully delay delivery of possession of the
23rd Floor Premises if Prime Landlord consents to this Sublease. If, for any reason,
the 23rd Floor Sublease Commencement Date does not occur within six (6) months after
the date of this Sublease, this Sublease shall be terminated and of no further force and effect,
except that each party hereto shall retain whatever rights and remedies it may have under this
Sublease for any breach by the other party and the 25th Floor Sublease shall continue in full
force and effect.
(b) Termination of 25th Floor Sublease. As of the 23rd Floor Sublease Commencement
Date, (the “Surrender Date”), Sublessee shall (a) remove all Sublessee’s fixtures and
personal property from the 25th Floor Premises in accordance with the requirements of the
25th Floor Sublease (but subject to Section 20 hereof); (b) surrender
possession of the 25th Floor Premises to Sublessor in broom-clean condition; and (c) surrender to
Sublessor all keys for the 25th Floor Premises. Sublessee does hereby acknowledge and agree that
Sublessee’s surrender of the 25th Floor Premises to Sublessor shall not release Sublessee from its
obligations under the 25th Floor Sublease including, but not limited to, Sublessee’s
obligation to pay Base Rent, additional rent, Sublessee’s Tax Share and Proportionate Share of
Operating Expenses, Sublessee’s Air Conditioning Costs, A/C Payment, Sublessee Surcharges, and all
other charges imposed on Sublessee under the 25th Floor Sublease accruing with respect
to the 25th Floor Premises prior to the Surrender Date, which liability shall survive the
Surrender Date. Sublessee agrees that upon the Surrender Date, Sublessor shall be released from
all claims, costs, causes of action, damages and all other liability arising after the Surrender
Date related to Sublessee’s sublease of the 25th Floor Premises. Sublessor agrees that, provided
Sublessee complies with the provisions of this
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Sublease and the 23rd Floor Commencement
Date occurs (x) the
25th Floor Sublease shall be deemed terminated and of no further force and effect as of the Surrender Date (except for any
provisions expressly stated therein and herein to survive termination of the 25th Floor
Sublease) and (y) Sublessee shall, as of the Surrender Date, be released of all obligations with
respect to the 25th Floor Premises except for any reconciliation of Operating Expenses, Taxes and
payment of all other costs and charges with respect to the 25th Floor Premises applicable to any
period of time prior to the Surrender Date and such reconciliation and obligation to pay for all
such other costs shall expressly survive the expiration or termination of the 25th Floor Sublease
and nothing in this Sublease shall change any provision of the 25th Floor Sublease with respect to
payments (or reconciliation of payments) of Operating Expenses, Taxes or any other sums accruing
or arising prior to the Surrender Date even if the same are billed after the Surrender Date. The
failure of Sublessee to pay any amounts attributable to the 25th Floor Premises after the
Surrender Date within ten (10) business days after Sublessee’s receipt of demand therefore shall
be deemed a default under this Sublease.
(c) Representations. Sublessee represents and covenants, with respect to Sublessee’s
rights in and occupancy of the 25th Floor Premises, that the following statements are true as of
the date hereof and will be true on the Surrender Date:
(i) Sublessee owns and holds the entire subleasehold interest of Sublessee under the
25th Floor Sublease;
(ii) There exist no subleases or occupancy agreements affecting the 25th Floor Premises or any
part thereof other than the 25th Floor Sublease;
(iii) Sublessee has not assigned or encumbered Sublessee’s interest under the 25th
Floor Sublease or any part thereof or any alterations, decorations, installations, additions and
improvements to the 25th Floor Premises; and
(iv) Sublessee has not done or knowingly suffered any act or omission and will not do or
knowingly suffer any act or omission whereby the 25th Floor Premises or any part thereof is or may
be in any way charged, assessed or encumbered. No contracts for the furnishing of any labor or
materials with respect to improvements or alterations in or about the 25th Floor Premises have been
let by Sublessee or are outstanding that have not been performed and satisfied.
(d) Indemnification. Sublessee agrees to defend, indemnify and save Sublessor
harmless from and against all claims, loss, cost, damage and expense sustained by Sublessor
(including, without limitation, all expenses, costs and reasonable attorneys’ fees of Sublessor in
any action or defense undertaken by Sublessor to protect itself from such loss or damage)
resulting from any breach by Sublessee of the covenants, representations and warranties made in
Sections 1(b) and (c) herein, from any lien, charge, encumbrance or claim against the 25th Floor
Premises relating to any work or action caused or undertaken by or on behalf of Sublessee prior to
the Surrender Date, from any failure of Sublessee to surrender possession of the 25th Floor
Premises by the Surrender Date in the manner required hereunder, which obligation shall survive
the Surrender Date.
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(e) Cooperation. Sublessor and Sublessee shall cooperate with one other in the
exchange of occupancies of the 23rd Floor Premises and the 25th Floor
Premises on the Surrender Date and the 23rd Floor Sublease Commencement Date.
Sublessor and Sublessee shall minimize any interference with the other’s vacating of their current
occupancy and move into their new occupancy. Prior to the 23rd Floor Sublease
Commencement Date, Sublessee and Sublessor shall be permitted to access the 23rd Floor
Premises and the 25th Floor Premises, respectively, at reasonable times and upon prior
notice to the other for the purpose of installing data and communications services, and each party
shall minimize any interference with the ordinary conduct of the other’s business during any such
installation.
2. Use and Occupancy. Sublessee shall use and occupy the 23rd Floor Premises only for
the use permitted in the Prime Lease and for absolutely no other purpose.
3. Base Rent and Additional Rent.
(a) Commencing as of the 23rd Floor Sublease Commencement Date, Sublessee shall pay to
Sublessor an annual base rent of Seven Hundred Twenty-Six Thousand Four Hundred Forty-Nine Dollars
($726,449.00) (“Base Rent”). The Base Rent shall be paid without any prior demand
therefor, in equal monthly installments of Sixty Thousand Five Hundred Thirty-Seven Dollars and
Forty-Two Cents ($60,537.42) in advance, on the first day of each month during the 23rd Floor
Sublease Term, without any abatement, deduction, counterclaim, setoff or defense whatsoever
(except as may be expressly provided herein). If the 23rd Floor Sublease Commencement Date is not
the first day of a calendar month, then the Base Rent shall be pro-rated for such partial calendar
month and the balance of the first monthly installment of Base Rent theretofore paid shall be
credited against the next monthly installment of Base Rent. The monthly installment of Base Rent
payable on account of any partial calendar month during the 23rd Floor Sublease Term, if any,
shall be prorated. Notwithstanding the foregoing, provided Sublessee is not in default in the
performance of any of the terms, covenants and conditions of this Sublease beyond applicable
notice and cure periods, Sublessee shall receive an abatement of Base Rent for the first ninety
(90) days of the 23rd Floor Sublease Term (the “Abatement Period”) but during the
Abatement Period Sublessee shall otherwise be required to comply with all the other terms,
covenants and conditions of this Sublease. The first month of Base Rent to be paid to the
Sublessor upon Sublessee’s execution of this Sublease shall be applied to the period following the
Abatement Period. If Sublessor has received any Base Rent, additional rent, Operating Expenses,
Air Condition Costs or A/C Payment payable for the 25th Floor Premises applicable to
any period of time after the 23rd Floor Sublease Commencement Date, Sublessor shall
credit such payment to Sublessee’s next payment of Base Rent due under this Sublease for the
23rd Floor Premises.
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(b) In addition to Sublessee’s obligation to pay Base Rent, Sublessee shall also pay to
Sublessor, as additional rent hereunder no later than (10) days after receipt of demand therefor
(except for items of additional rent which are recurring monthly items in which case shall be paid
as and when Sublessee pays its Base Rent), all other amounts that become due and payable from time
to time by Sublessor under the provisions of the Prime Lease solely with respect to the 23rd Floor
Premises (as set forth in invoices or bills received by Sublessor from Prime Landlord for such
amounts attributable to the 23rd Floor Premises only, or in the alternative, pursuant to a
percentage allocation agreed upon by Sublessor and
Sublessee if such invoices or bills combine amounts applicable to both the 23rd Floor
Premises and the 25th Floor Premises), including, without limitation:
(i) the additional rent payable under Sections 3.03 and 3.04 of the Prime Lease pertaining to
the escalation in Operating Expenses (as such term is defined in the Prime Lease); and
(ii) the additional rent payable under Sections 3.01 and 3.02 of the Prime Lease pertaining to
the escalation in Taxes (as such term is defined in the Prime Lease); and
(iii) the additional rent payable under Sections 3.05 and 3.06 of the Prime Lease pertaining
to the payments of Air Conditioning Costs and Tenant’s A/C Payment (as such terms are defined in
the Prime Lease);
provided, however, that:
(1) for purposes of calculating the escalation in Operating Expenses payable as
additional rent under this Sublease, as set forth in the Prime Lease, the term “Base
Operating Factor”, as used therein, shall be deemed to be the Operating Expenses for
the 2011 calendar year; and
(2) for purposes of calculating the escalation in Taxes payable as additional
rent under this Sublease, as set forth in the Prime Lease, the term “Base Tax”, as
used therein, shall be deemed to mean the product determined by multiplying (x) the
amounts for which the Land (as defined in the Prime Lease) and Building are assessed
by the City of New York for the purpose of establishing Taxes (as defined in the
Prime Lease) to be paid by Prime Landlord for the Tax Year (as defined in the Prime
Lease) July 1, 2010 to June 30, 2011 as finally determined, by (y) the real property
tax rate applicable to the Real Property (as defined in the Prime Lease) with
respect to such Tax Years.
(c) Sublessee’s Tax Share and Proportionate Share of Operating Expenses shall be the same as
those provided in Article 3 of the Original Prime Lease. In addition, Sublessor shall provide
Sublessee with statements based on Landlord’s Statements (as defined in the Prime Lease) for
Sublessee’s Tax Payment and Operating Payment (as defined in the Prime Lease) in the manner
provided in the Prime Lease and Sublessee shall make such Tax Payments and Operating Payments to
Sublessor in the manner required under the Prime Lease, but subject to the modifications set forth
in this Sublease. Sublessee’s obligations to pay additional rent shall survive the termination
or expiration of this Sublease in the same manner as provided under the Prime Lease.
(d) Sublessor shall supply Sublessee with a copy of any backup documentation it receives from
the Prime Landlord in connection with invoices for increases in Taxes, Operating Expenses, Air
Conditioning Costs or Tenant’s A/C Payment with respect to the 23rd Floor Premises.
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(e) All sums of money (except for Base Rent) as shall become due from and payable by
Sublessee to Sublessor hereunder shall be deemed additional rent. If Sublessee fails to make any
payment of additional rent when due, Sublessor shall have the same rights and remedies with
respect thereto as for a default in payment of Base Rent when due. All Base Rent and additional
rent shall be paid to Sublessor at its office at the Building, or such other place, or to such
agent and at such place, as Sublessor may designate by ten (10) days’ prior written notice to
Sublessee, without any abatement, deduction, counterclaim, setoff or defense whatsoever, in lawful
money of the United States of America.
(f) Sublessee is responsible for paying for all charges for all services, materials, and
other items provided to the Sublessee (or on its behalf) by or on behalf of the Prime Landlord or
its contractors or agents to the extent such services, materials, and other items are not
required, pursuant to the Prime Lease, to be provided without charge.
(g) Sublessee shall also pay to Sublessor, as additional rent, any and all amounts other than
annual fixed rent, which, by the terms of the Prime Lease become due and payable by Sublessor to
Prime Landlord and which would not have become due and payable but for the acts, requests for
services, and/or failures to act of Sublessee, its agents, officers, representatives, employees,
servants, contractors, invitees, licensees or visitors (“Sublessee Surcharges”) but
Sublessee shall not be required to pay for any costs imposed by Prime Landlord to the extent the
same arise from Sublessor’s negligence or willful misconduct. Within a reasonable time after
receipt by Sublessor of any statement or written demand from Prime Landlord including any
Sublessee Surcharges, Sublessor will furnish Sublessee with a copy of such statement or demand
together with Sublessor’s statement of the amount of any such Sublessee Surcharges, and Sublessee
shall pay to Sublessor the amount of such Sublessee Surcharges within ten (10) days after
Sublessee’s receipt of such statement or demand; provided, however, that in any instance in which
Sublessee shall receive any such statement or demand directly from Prime Landlord, Sublessee may
pay the amount of the same directly to Prime Landlord and provide a copy of same to Sublessor.
Sublessee shall have the right to make requests for additional or specific services directly to
the Prime Landlord to the extent permitted by the Prime Landlord but shall provide Sublessor with
notice or a copy of any such request.
(h) If payment of any Base Rent or additional rent shall not have been paid to Sublessor by
the fifth (5th) day after the date on which such amount was due and payable, the interest and late
charges set forth in the Prime Lease for any late payments shall be due and payable by Sublessee
on demand, which interest and charges are agreed on by Sublessor and Sublessee as representative
of the fair and reasonable estimate of costs Sublessor will incur by reason of Sublessee’s failure
to make prompt payment. In the event of a default in payment of any interest or late charges,
Sublessor shall have (in addition to all other remedies) the same rights as provided in this
Sublease (including without limitation the provisions of the Prime Lease incorporated by
reference) for nonpayment of Base Rent. Nothing contained in this Article and no acceptance of
interest or late charges by Sublessor shall be deemed to extend or change the time for payment of
Base Rent or additional rent.
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(i) Sublessee shall make arrangements to obtain electrical service for the 23rd Floor
Premises directly from the applicable utility company and shall pay when due
all charges for the electricity consumed in the 23rd Floor Premises and all electric current
used in the operation of the heating, ventilation and air-conditioning servicing the 23rd Floor
Premises (including the Floor Unit (as defined in the Original Prime Lease)) and any supplemental
air conditioning, fans and motors. Sublessee shall continue, at its cost and expense, the
maintenance service agreement currently in place for the supplemental unit (or an equivalent
maintenance agreement) throughout the Sublease Term.
(j) Sublessee acknowledges that the 23rd Floor Premises are subject to additional
air-conditioning and cleaning/garbage removal costs. Sublessor shall submit copies of any bills or
invoices provided by Prime Landlord for such additional services and Sublessee shall pay these
additional costs as and when the same become due.
4. Incorporation of Provisions of Prime Lease By Reference.
(a) Subject to the modifications set forth in this Article 4 and except as otherwise provided
in this Sublease or to the extent inconsistent with the provisions herein, the terms, covenants
and conditions of this Sublease shall be the same as the terms, covenants and conditions contained
in the Prime Lease, all of which, as modified hereby, (i) are incorporated herein by reference,
(ii) are, as to those to be performed or complied with by the tenant named therein, hereby assumed
by Sublessee, and (iii) shall have the same force and effect as though herein set forth at length
and as though Sublessor and Sublessee were respectively the “Owner”, “Landlord” and “Tenant” named
therein and as if the term “this lease” or “this Lease” as used therein referred to this Sublease.
All acts to be done by Sublessor, as tenant under the Prime Lease with respect to the 23rd Floor
Premises, and all obligations of Sublessor as tenant to Prime Landlord under the Prime Lease,
shall be done or performed by Sublessee, except as otherwise expressly provided by this Sublease.
Sublessee shall not do, nor permit to be done, any act or thing which would result in an increase
of Sublessor’s Base Rent or additional rent or any other obligation or liability of Sublessor
under the Prime Lease or which is or, with notice or the passage of time, would be a default under
the Prime Lease. For the purposes of incorporation herein, the terms of the Prime Lease are
subject to the following additional modifications:
(i) Subject to any other specific provisions contained in this Sublease requiring the consent
of Sublessor, in all provisions of the Prime Lease (under the terms thereof and without regard to
modifications thereof for purposes of incorporation into this Sublease) requiring the approval or
consent of Prime Landlord, Sublessee shall be required to obtain the approval or consent of both
Sublessor and Prime Landlord. Sublessee shall provide Sublessor with notice and copies of any
consents or approvals it receives from Prime Landlord. Sublessor shall not withhold or delay its
consent to any matter to which Prime Landlord has consented provided that a consent by Sublessor to
the same shall not in any way adversely affect Sublessor or its use or occupancy of the 25th Floor
Premises.
(ii) In all provisions of the Prime Lease requiring Sublessor, as tenant, to submit, exhibit
to, supply or provide Prime Landlord with evidence, certificates, or any other matter or thing,
Sublessee shall be required to submit, exhibit to, supply or provide, the same to both Prime
Landlord and Sublessor.
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(iii) The following provisions of the Original Prime Lease are hereby deleted for purposes of
incorporation of the Prime Lease into this Sublease: Witnesseth clause, Article 1 (except 1.03);
Article 2 (except 2.01); 7.05; 7.06; Article 10; 11.08; Article 12; 22.01; 23.05; 29.01 (except
with respect to notices to Prime Landlord); Article 33; the first sentence of Section 34.07;
Section 34.10; Section 34.19; and all of the First Amendment.
(iv) Wherever used in the Prime Lease, the term “term of this Lease”, “term” or “Term” shall
mean the 23rd Floor Sublease Term and the term “demised premises”, “Demised Premises”, or
“premises” shall mean the 23rd Floor Premises.
(b) Notwithstanding any provision of this Sublease or the Prime Lease as incorporated herein
by reference to the contrary, (i) representations and/or warranties made by Prime Landlord under
the Prime Lease, if any, shall be deemed to be the representations and/or warranties, solely of
Prime Landlord and not of Sublessor, and (ii) Sublessor shall have no obligation to perform any
work or provide any services in or to the 23rd Floor Premises or to perform any other obligation
which is the obligation of Prime Landlord under the Prime Lease (including, without limitation,
the furnishing of heat, air conditioning, water, cleaning, painting, electricity, installations,
maintenance, repairs, or elevator service), but Sublessee shall be entitled to have the benefit of
all work and services to be provided by Prime Landlord in or to the 23rd Floor Premises, and all
other obligations to be performed by Prime Landlord pursuant to the Prime Lease.
(c) Furthermore, Sublessor shall not be responsible for any failure or interruption, for any
reason whatsoever, of the services or facilities that may be appurtenant to or supplied at the
23rd Floor Premises by the Prime Landlord or otherwise, including without limitation, heat, air
conditioning, water, elevator service and cleaning service, if any; and no failure to furnish, or
interruption of, any such services or facilities shall give rise to any (i) abatement, diminution
or reduction of Sublessee’s obligation under this Sublease (except as may be provided therefor in
the Prime Lease and actually received under the Prime Lease), (ii) actual or constructive
eviction, whether in whole or in part (except as may be provided therefor in the Prime Lease and
actually received under the Prime Lease), or (iii) liability on the part of Sublessor except, in
each case, to the extent that the failure to obtain such an abatement arises solely from
Sublessor’s default beyond all notice and cure periods under the Prime Lease (which does not
result from or is otherwise related or attributable to any corresponding default of Sublessee).
(d) Sublessee agrees that it shall be the sole responsibility of Prime Landlord to provide
any work, repairs, restoration, equipment, access and/or services to and for the 23rd Floor
Premises including, without limitation the items provided in Sections 4.04, 7.05 and Article 19 of
the Prime Lease as well as insurance for the Building, except for such insurance as may be
required of Sublessor as tenant under the Prime Lease. Sublessee shall not have the right to
require or obtain performance by Sublessor, and Sublessee shall have no claim against Sublessor,
by reason of Prime Landlord’s failure or refusal to comply with any of the terms of the Prime
Lease on its part to be performed. Sublessor shall use commercially reasonable efforts (to the
extent such efforts require incurring reasonable costs, such costs shall be promptly reimbursed
by Sublessee to Sublessor within ten (10) days after demand by
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Sublessor) to obtain such
performance and compliance on the part of Prime Landlord, but Sublessor shall not be obligated to commence any legal action or proceeding against Prime
Landlord. If Prime Landlord shall default in any of its obligations to Sublessor with respect to
the 23rd Floor Premises, Sublessee shall have the right to notify Sublessor, and Sublessor shall
promptly notify Prime Landlord and demand performance. Sublessee shall be entitled to participate
with Sublessor in the enforcement of Sublessor’s rights against Prime Landlord, but Sublessor
shall have no obligation to bring any action or proceeding or to take any steps to enforce
Sublessor’s rights against Prime Landlord. Sublessee acknowledges that except as otherwise
specifically provided in this Sublease, the failure of Prime Landlord to provide any services or
to comply with its obligations under the Prime Lease shall not entitle Sublessee to any abatement
or reduction in rent payable hereunder unless Sublessor receives an equivalent abatement of rent
or additional rent under the Prime Lease with respect to the 23rd Floor Premises for such failure
but Sublessee shall receive its proportionate share of any reduction or abatement in rent received
by Sublessor with respect to the 23rd Floor Premises as and when actually received by Sublessor.
Notwithstanding the foregoing, in the event that Prime Landlord shall default in any of its
obligations to Sublessor under the Prime Lease with respect to the 23rd Floor Premises and such
default is continuing after any applicable notice and cure periods or other reasonable time
period, Sublessee shall have the right to bring any action or proceeding to enforce Sublessor’s
rights against Prime Landlord in its own name or in Sublessor’s name (but only if required to bar
a defense on the basis of lack of privity or similar defense or procedural rule) at Sublessee’s
sole cost and expense, provided that (x) Sublessee obtains Sublessor’s consent (which shall not be
unreasonably withheld) to bring an action against the Prime Landlord prior to commencing any such
action, (y) no default beyond any notice and cure periods on the part of Sublessee exists under
this Sublease, and (z) Sublessee shall indemnify and hold harmless Sublessor from and against
all liability, loss, damage or expense, including, without limitation, reasonable attorneys’ fees,
which Sublessor shall suffer or incur by reason of any action that Sublessee brings against Prime
Landlord. Sublessor shall reasonably cooperate with Sublessee, at Sublessee’s expense, in
connection with any such action brought by Sublessee; provided, however, that Sublessor shall not
be required to cooperate to the extent Sublessor could be subject to liability under the Prime
Lease or if such action may cause a default or cancellation, for failure or termination of the
Prime Lease.
(e) Sublessee agrees that Sublessor shall not be required to dispute any determinations or
other assertions or claims of Prime Landlord regarding the obligations of Sublessor under the
Prime Lease for which Sublessee is responsible under the terms of this Sublease. In the event
that Sublessee notifies Sublessor that Sublessee would like Sublessor to dispute any determination
(or exercise any audit rights, if available to Sublessor under the Prime Lease) or other
assertions or claims of Prime Landlord under the Prime Lease, and provided that Sublessor elects
not to dispute any such determinations, assertions or claims by Prime Landlord (or exercise any
such audit rights, if available), Sublessor agrees to notify Sublessee of such election (with
advance notice to Sublessee such that Sublessee has a reasonable period of time to dispute same or
exercise such rights before the effectiveness of such determinations, assertions or claims) and
hereby grants Sublessee the right to dispute the same or exercise such rights in Sublessee’s own
name with Sublessor’s consent, such consent not to be unreasonably withheld or delayed, and the
right to resolve such disputes to its own satisfaction, provided that (i) Sublessee shall bear any
and all costs and expenses of any such dispute and/or settlement and (ii) Sublessor shall not be
bound, without its consent, by any
settlement, agreement or resolution reached by Sublessee and Prime Landlord in regard to any
such dispute, or by any decree, judgment or penalty resulting therefrom.
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5. Condition of Premises. Sublessee has examined the 23rd Floor Premises and shall
accept the same in its “AS-IS” “WHERE IS” condition on the 23rd Floor Sublease
Commencement Date. Sublessee acknowledges and agrees that neither Sublessor nor any of the
Sublessor’s agents, employees or representatives have made any representations or warranties,
either express or implied, with respect to the 23rd Floor Premises or the use thereof by Sublessee.
Sublessee further acknowledges and agrees that neither Sublessor nor Prime Landlord shall have any
construction obligation with respect to the 23rd Floor Premises or to otherwise prepare the 23rd
Floor Premises for Sublessee’s occupancy; provided, however, Sublessor shall deliver the 23rd Floor
Premises on the 23rd Floor Sublease Commencement Date broom clean and vacant except that Sublessor
shall not remove the furniture currently existing in the 23rd Floor as further provided in
Article 20 hereof.
6. Notices.
(a) Any notice, statement, demand or other communication required to be given, rendered or
made by either party to the other, shall be in writing and shall be deemed to have been properly
given, rendered or made, if sent by overnight courier, or if sent by registered or certified mail,
return receipt requested, addressed to the other party at the other party’s address hereinabove
set forth and shall be deemed to have been given, rendered or made on the second day after so
mailed. Either party may, by notice as aforesaid, designate a different address or addresses for
notices, statements, demands or other communications intended for it.
(b) Each party hereto shall deliver to the other all notices, requests, demands or other
communications received by such party from Prime Landlord which relate to the 23rd Floor Premises
or any portion thereof, the Prime Lease or this Sublease, immediately after receipt thereof from
Prime Landlord.
7. Subordination.
(a) This Sublease is and shall be subject and subordinate to, all the covenants, agreements,
terms, provisions and conditions of the Prime Lease and any amendments and supplements to the
Prime Lease hereafter made between Prime Landlord and Sublessor, provided that any such amendment
or supplement to the Prime Lease will not prevent the use by Sublessee of the 23rd Floor Premises
in accordance with the terms of this Sublease, materially increase the obligations of Sublessee or
materially decrease the rights of Sublessee under this Sublease or shorten the 23rd Floor Sublease
Term unless the same is expressly permitted under the current terms of the Prime Lease and
provided further that the foregoing shall not diminish any existing rights of Sublessor under the
Prime Lease. Sublessor will provide notice to Sublessee prior to any material modification of
the Prime Lease that in any way affects Sublessee’s use or occupancy of the 23rd Floor Premises.
Sublessor shall not voluntarily terminate the Prime Lease except as otherwise expressly provided
in the Prime Lease under the casualty and condemnation provisions thereof. This Sublease is
subject and subordinate to the Prime Lease and to all matters to which the Prime
Lease is subordinate including, without limitation, all ground or underlying Subleases and to
all mortgages which may now or hereafter affect such Subleases or the real property of which the
23rd Floor Premises are a part and all renewals, modifications, replacements and extensions of any
of the foregoing. The provisions of this Article 7 shall be self-operative and no further
instrument of subordination shall be required.
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(b) In the event of termination, re-entry or dispossess by Prime Landlord under the Prime
Lease, Prime Landlord may at its option, take over the right, title and interest of Sublessor
under this Sublease, and Sublessee shall, at Prime Landlord’s option, attorn to Prime Landlord
pursuant to the then executory provisions of this Sublease except that Prime Landlord shall not
(i) be liable for any previous acts or omission of Sublessor under this Sublease or (ii) be
subject to any offset, not expressly provided in this Sublease, which thereto accrued to Sublessee
against Sublessor.
8. Sublessee’s Default.
(a) If Sublessee shall be in default of any term, covenant or condition of this Sublease,
Sublessor shall have available to it all of the remedies available to Prime Landlord under the
Prime Lease in the event of a like default or failure on the part of the tenant thereunder. The
mention in this Sublease of any particular right or remedy shall not preclude Sublessor from
exercising, any and all other rights and remedies available to it under law.
(b) The time limits contained in the Prime Lease for the giving of notices, making of demands
or performing of any act, condition or covenant on the part of the tenant thereunder, or for the
exercise by the tenant thereunder of any right (including any right to cure a default), remedy or
option, are changed for the purposes of incorporation herein by reference by shortening the same
by three (3) days in each instance, unless such time limit is ten (10) days or less, in which
event it shall be shortened by two (2) days (but in no event to less than two (2) days), so that
notices may be given, demands made, any act, condition or covenant performed, or any right, remedy
or option hereunder exercised by Sublessor within the time limit relating thereto contained in the
Prime Lease. Notwithstanding anything to the contrary in this Sublease, if any of the express
provisions of this Sublease shall conflict with any of the provisions incorporated by reference,
such conflict shall be resolved in every instance in favor of the express provisions of this
Sublease.
(c) If the Prime Lease shall be terminated by reason of a default on the part of Sublessee
with respect to any of the terms or conditions of this Sublease, Sublessor shall be entitled to
either (i) recover from Sublessee as liquidated damages (A) such amount or amounts as will be
equal to the damages which Prime Landlord shall recover from Sublessor in connection with such
termination of the Prime Lease, and (B) the expenses incurred by Sublessor in collecting amounts
referred to in clause (A) above, including, but not limited to, reasonable attorneys’ fees and
expenses, or (ii) recover from Sublessee the damages to which Sublessor is entitled under the
terms of this Sublease or the Prime Lease. Regardless of whether Sublessor elects to recover
damages pursuant to either clause (i) or (ii) above, such election shall not preclude Sublessor
from exercising any or all of its other rights and remedies under this Sublease or the Prime
Lease, to the extent said rights and remedies are incorporated herein.
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9. Assignment and Subletting.
(a) Notwithstanding anything to the contrary herein or in the Prime Lease (under the terms
thereof and without regard to modifications thereof for purposes of incorporation into this
Sublease), Sublessee shall not, whether voluntarily, involuntarily, or by operation of law or
otherwise (i) assign or otherwise transfer this Sublease or the term and estate hereby granted,
(ii) further sublet the 23rd Floor Premises or any part thereof, or allow the same to be used or
occupied by anyone other than Sublessee or in violation of Article 5 of the Prime Lease, or (iii)
mortgage, pledge, encumber or otherwise hypothecate this Sublease or the 23rd Floor Premises or
any part thereof in any manner whatsoever, without in each instance obtaining the prior written
consent of (x) Prime Landlord, as provided in the Prime Lease and (y) Sublessor which consent
shall not be unreasonably withheld or delayed pursuant to the same provisions of the Prime Lease
requiring Prime Landlord’s consent.
(b) If this Sublease be assigned, whether or not in violation of the provisions of this
Sublease, Sublessor may collect rent from the assignee. If the 23rd Floor Premises or any part
thereof are further sublet or used or occupied by anybody other than Sublessee, whether or not in
violation of the provisions of this Sublease, Sublessor may, after the occurrence of a default by
Sublessee hereunder, collect rent from the Sublessee or occupant. In either event, Sublessor may
apply the net amount collected to the Base Rent and additional rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions
of this Article 9 hereof or any other provision of this Sublease, or the acceptance of the
assignee, Sublessee or occupant as Sublessee, or a Sublease of Sublessee from the performance by
Sublessee of Sublessee’s obligation under this Sublease. The consent by Sublessor to any
assignment, mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Sublessee from obtaining the express written consent of Sublessor to any
other or further assignment, mortgaging or subletting or use or occupancy by others. In no event
shall Sublessee be relieved of any liability under this Sublease if the Sublease is assigned or
the 23rd Floor Premises are further sublet and Sublessee shall indemnify and hold harmless
Sublessor from and against any liability, fines, suits, claims, demands, actions, damages, costs
and expenses (including, but not limited to, reasonable attorneys’ fees and expenses) of any kind
or nature of anyone whomsoever which are due to or arise out of any assignments, subleases or
proposed assignments or subleases by Sublessee.
(c) Sublessee agrees that (x) this Sublease is subject to all the terms, covenants and
conditions of the Prime Lease, (y) Sublessee shall not have the right to further assignment,
sublease or transfer without the consent of Prime Landlord and Sublessor except that with respect
to the first sub-subletting only by Sublessee, Sublessor’s consent shall not be unreasonably
withheld, subject to compliance with the terms of the Prime Lease (including Section 11.06
thereof) and (z) Sublessor may withhold its consent in its sole discretion to any further
sublease, assignment or transfer. In addition, Sublessee acknowledges that the provisions of
Section 11.05(e) of the Original Prime Lease shall apply hereto and agrees that Sublessor shall be
entitled to one hundred percent (100%) of any excess rent or consideration payable as a result of
any sublease of the 23rd Floor Premises by Sublessee, to the extent that Sublessor is required to
pay the same to the Prime Landlord under the Prime Lease.
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(d) Notwithstanding the foregoing, to the extent permitted in the Prime Lease, Sublessee
shall have the right to assign this Sublease to any affiliate of Sublessee or to any purchaser or
successor by way of merger of Sublessee or to sublease all or a portion of the 23rd Floor Premises
to any affiliate of Sublessee without Prime Landlord’s and Sublessor’s consent provided all the
requirements of “Tenant” and conditions under Sections 11.02 and 11.03 of the Prime Lease are
satisfied by Sublessee.
10. Indemnification.
(a) Sublessee shall not do or permit any act or thing upon the 23rd Floor Premises which may
subject Prime Landlord or Sublessor to any liability or responsibility for injury or damage to
persons or property or to any liability by reason of any violation of law or of any legal
requirement of any public authority, but shall exercise such control over the 23rd Floor Premises
as to fully protect Prime Landlord and Sublessor against any such liability. Sublessee shall
indemnify and hold harmless Prime Landlord and Sublessor from and against any and all liability,
fines, suits, claims, demands, actions, damages, costs and expenses (including, but not limited
to, reasonable attorneys’ fees and expenses) of any kind or nature of anyone whomsoever which are
due to or arise out of (i) any breach, violation, non-observance or non-performance of any term,
covenant, or condition contained in this Sublease or the Prime Lease on the part of Sublessee to
be fulfilled, kept, observed or performed; and/or (ii) any damage to property occasioned by
Sublessee’s use or occupancy of the 23rd Floor Premises; and/or (iii) any injury to any person or
persons, including death resulting at any time therefrom, occurring in or about the 23rd Floor
Premises, and caused by or resulting from the fault of the Sublessee, its agents, employees,
contractors, visitors, or licensees; provided, however, that nothing in this Section 10(a) shall
extend Sublessee’s indemnification obligation to any damage or injury to the extent caused by
reason of the gross negligence or willful misconduct of Sublessor, Prime Landlord or their
respective agents and employees or arising from acts or omissions of third parties prior to the
23rd Floor Sublease Commencement Date.
(b) Sublessor shall indemnify and hold harmless Prime Landlord and Sublessee from and against
any and all liability, fines, suits, claims, demands, actions, damages, costs and expenses
(including, but not limited to, reasonable attorneys’ fees and expenses) of any kind or nature of
anyone whomsoever which are due to or arise out of (i) any breach, violation, non-observance or
non-performance of any term, covenant, or condition contained in this Sublease on the part of
Sublessor to be fulfilled, kept, observed or performed; and/or (ii) any injury to any person or
persons, including death resulting at any time therefrom, occurring in or about the 23rd Floor
Premises, and caused by or resulting from the fault of the Sublessor, its agents, employees,
contractors, visitors, or licensees and which arose prior to the 23rd Floor Sublease Commencement
Date.
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11. Security. In order to secure the performance and observance of its obligations
hereunder, Sublessee shall deposit with Sublessor, upon Sublessee’s execution hereof, One Hundred
Eighty-One Thousand Six Hundred and Twelve Dollars and 25/100 ($181,612.25) (the “Security
Deposit”).
(a) Sublessee shall deliver the Security Deposit to Sublessor in the form of a clean,
irrevocable letter of credit in the amount of the Security Deposit, in the form
attached hereto as Exhibit A or such other form as shall be approved by Sublessor (the
“Letter of Credit”) issued by and drawable upon any commercial bank, trust company,
national banking association or savings and loan association with offices for banking and drawing
purposes in New York City, (the “Issuing Bank”), which has outstanding unsecured,
uninsured and unguaranteed indebtedness, or shall have issued a letter of credit or other credit
facility that constitutes the primary security for any outstanding indebtedness (which is
otherwise uninsured and unguaranteed), that is then rated, without regard to qualification of such
rating by symbols such as “+” or “-” or numerical notation, “Aa” or better by Xxxxx’x Investors
Service and “AA” or better by Standard & Poor’s Ratings Service (and is not on credit-watch with
negative implications). The Letter of Credit shall (i) name Sublessor as beneficiary, (ii) be in
the amount of the Security Deposit, (iii) have a term of not less than one year, (iv) permit
multiple drawings, (v) be fully transferable by Sublessor multiple times without the consent of
Sublessee, (vi) be payable to Sublessor or an authorized representative of Sublessor upon
presentation of only the Letter of Credit and a sight draft and shall not contain as a condition
to a draw the requirement of Sublessor’s certification or other statement as to the existence of
Sublessee’s default, and (vii) otherwise be in form and content reasonably satisfactory to
Sublessor. If upon any transfer of the Letter of Credit by Sublessor, any fees or charges shall
be so imposed, then such fees or charges shall be paid by Sublessor. The Letter of Credit shall
provide that it shall be deemed automatically renewed, without amendment, for consecutive periods
of one year each thereafter during the Sublease Term through the date that is at least thirty (30)
days after the Sublease Expiration Date, unless the Issuing Bank sends a notice (the
“Non-Renewal Notice”) to Sublessor by certified mail, return receipt requested, not less
than sixty (60) days prior to the then-current expiration date of the Letter of Credit, stating
that the Issuing Bank has elected not to renew the Letter of Credit. Except as otherwise
provided, herein, Sublessee shall obtain, throughout the Sublease Term, in the event of the
termination of the Letter of Credit, replacement letters of credit in lieu thereof no later than
thirty (30) days prior to any non-renewal of the Letter of Credit. If Sublessee fails to obtain
any replacement of the Letter of Credit within the time frames specified herein, Sublessor shall
have the right, to draw the full amount of the Letter of Credit, by sight draft on the Issuing
Bank, and shall thereafter hold or apply the cash proceeds of the Letter of Credit pursuant to the
terms of this Section 11. The Letter of Credit shall state that drafts drawn under and in
compliance with the terms of the Letter of Credit will be duly honored upon presentation to the
Issuing Bank at an office location in New York City. The Letter of Credit shall be subject in
all respects to the International Standby Practices 1998, International Chamber of Commerce
Publication No. 590. Sublessee shall cooperate, at Sublessee’s expense, with Sublessor to
promptly execute and deliver to Sublessor any and all modifications, amendments, and replacements
of the Letter of Credit, as Sublessor may reasonably request to carry out the intent, terms and
conditions of this Section 11.
(b) If Sublessee shall be in default of any of the terms, covenants or conditions of this
Sublease beyond applicable grace and cure periods, the Sublessor may receive all or a portion of
the Security Deposit represented by the Letter of Credit and use, apply or retain the whole or any
part of such proceeds, as the case may be, to the extent required to pay any and all amounts owed
by Sublessee to Sublessor pursuant to the provisions of this Sublease. Sublessor shall have the
right to apply any part of the Security Deposit to cure any default of Sublessee, without notice
to Sublessee, and regardless of the exercise of
any other remedy Sublessor may have by reason of such default. If Sublessor uses, applies or
retains any part of the Security Deposit, Sublessee, within five (5) business days after
Sublessor’s demand shall deliver to Sublessor an amendment of the Letter of Credit that increases
the amount thereof so applied or retained, or provide Sublessor with an additional letter of
credit in the amount so applied or retained so that the Sublessor shall have the full Security
Deposit on hand at all times during the Sublease Term.
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(c) Sublessor acknowledges that it is holding a letter of credit in the amount of $
108,150.68. Sublessee may satisfy the requirements for providing the Letter of Credit hereunder
by either delivering an additional Letter of Credit to Sublessor in the amount of $ 73,461.57
or providing a new Letter of Credit to Sublessor for the full amount of the Security Deposit and
Sublessor shall thereafter promptly return the existing Letter of Credit to Sublessee. If the
current Letter of Credit shall continue to be used, Sublessee hereby waives any rights it has to
obtain the return of such Letter of Credit under the 25th Floor Sublease and the terms
of this Sublease only shall hereafter apply to the existing Letter of Credit.
(d) If this Sublease expires prior to the Sublease Expiration Date, Sublessor shall return
the original Letter of Credit to Sublessee thirty (30) days after such earlier termination date
provided that at that time Sublessor shall not have any reason to draw down on the Letter of
Credit pursuant to the terms of this Sublease.
(e) Notwithstanding the foregoing, if the Letter of Credit required hereunder has not been
issued as of the date that Sublessee executes and delivers this Sublease to Sublessor, Sublessee
shall use its best efforts to deliver such Letter of Credit to Sublessor no later than the date
which is forty-five (45) days after an original of this Sublease executed by Sublessee is
delivered to Sublessor. If such Letter of Credit is not delivered within said forty-five (45) day
period, Sublessee shall, instead, provide the additional required Security Deposit by check made
payable to Sublessor. Sublessor shall not be required to deposit the cash portion of the Security
Deposit in an interest bearing account and Sublessee hereby waives any rights to interest earned
on the cash portion of the Security Deposit. If Sublessor uses any part of the cash Security
Deposit as provided in this Sublease, then Sublessee shall pay to Sublessor within ten (10) days
after demand the amount so applied in order to restore the Security Deposit to its original
amount. Within four (4) business days after Sublessor’s receipt of the additional Letter of
Credit required hereunder, Sublessor shall return the corresponding portion of the cash Security
Deposit then held by Sublessor to Sublessee by check payable to Sublessee. If Sublessor fails to
so return such cash portion of the Security Deposit to Sublessee within the prescribed four
business day period, then Sublessor shall pay Sublessee interest thereon at an annual rate of
three percent (3%) commencing on the fifth business day after Sublessor fails to deliver such cash
portion of the Security Deposit to Sublessee as required and ending on the day that Sublessor so
delivers such cash Security Deposit to Sublessee. If Sublessee fails to provide the Letter of
Credit or the additional cash portion of the Security Deposit within the forty-five (45) day
period referenced above, Sublessee shall be deemed to be in default of this Sublease.
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12. Alterations. Sublessee shall not make or permit the making of any alteration,
addition, change, replacement, installation or addition in or to the 23rd Floor Premises without in
each instance obtaining the prior written consent of (x) Prime Landlord pursuant to
the terms of the Prime Lease and (y) Sublessor which consent of Sublessor shall not be
unreasonably withheld, conditioned or delayed provided that (i) such alterations are consistent
with and are for the purposes of a first-class office use, (ii) are in compliance with all
provisions of the Prime Lease, (iii) Prime Landlord shall have granted its consent to such
alterations, if required under the Prime Lease and (iv) the proposed alteration does not in any way
affect or change the existing wiring or telecommunications systems in the 23rd Floor Premises.
Notwithstanding anything to the contrary herein, Sublessee shall be required to remove any
alterations, additions, changes, replacements, installations or additions to the 23rd Floor
Premises made by Sublessee prior to the Sublease Expiration Date, to the extent the same are or may
be required to be removed under the Prime Lease. Sublessee shall not be required to remove any
improvements made to the 23rd Floor Premises by Sublessor prior to the 23rd Floor Sublease
Commencement Date provided, however, that Sublessee shall pay for any additional costs incurred by
Sublessor to remove such alterations to the extent such additional costs are the result of any (x)
alterations made to the 23rd Floor Premises by or on behalf of Sublessee after the 23rd Floor
Sublease Commencement Date, (y) default by Sublessee under this Sublease and/or (z) failure by
Sublessee to vacate the 23rd Floor Premises as required under this Sublease.
13. Brokerage. Sublessor and Sublessee represent and warrant to each other that
Xxxxxxx, Inc. and Xxxxxx Comfort and Sons, Inc. (collectively the “Brokers”) are the only
real estate brokers or agents with which each has had dealings, either direct or indirect, in
connection with this transaction. Sublessor shall pay any brokerage commissions to the Brokers
pursuant to a separate agreement or agreements between Sublessor and the Brokers. Each of
Sublessor and Sublessee shall indemnify, and hold the other harmless from and against any loss or
damage, including attorneys’ fees and expenses, resulting from a misrepresentation or failure to
perform by such party under this Article. The provisions of this Section shall survive the
expiration or earlier termination of this Sublease.
14. Successors and Assigns. The provisions of this Sublease, except as herein
otherwise specifically provided, shall extend to, bind and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. If Sublessor assigns or transfers
the leasehold estate under the Prime Lease, Sublessor shall be relieved and freed of all
obligations under this Sublease to the extent such obligations are expressly assumed by the
assignee or transferee.
15. Insurance. Sublessee shall maintain throughout the term of this Sublease, for the
benefit of Sublessor and Prime Landlord naming each as additional insureds, such insurance as
Sublessor shall be required to provide pursuant to the terms of the Prime Lease. Sublessee agrees
that certificates of all such policies shall be delivered to Sublessor and Prime Landlord on or
before the 23rd Floor Sublease Commencement Date.
16. Right to Cure Sublessee’s Defaults. If Sublessee shall at any time fail to make
any payment or perform any other of its obligations hereunder beyond any applicable grace or cure
period, then Sublessor shall have the right, but not the obligation, and without waiving or
releasing Sublessee from any obligations of Sublessee hereunder, to make such payment or perform
such other obligation of Sublessee in such manner and to such extent as Sublessor shall deem
necessary, and in exercising any such right, to pay any incidental costs and expenses, including
reasonable attorneys’ fees and expenses. Sublessee shall pay to Sublessor upon
demand all sums so paid by Sublessor and all incidental costs and expenses of Sublessor in
connection herewith, together with interest thereon at the rate of one and one-half percent (1.5%)
per calendar month or any part thereof or the then maximum lawful interest rate, whichever shall be
less, from the date of the making of such expenditures.
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17. Termination of Prime Lease. If for any reason the term of the Prime Lease shall
terminate prior to the expiration date of this Sublease, this Sublease shall thereupon be
terminated and Sublessor shall not be liable to Sublessee by reason thereof unless said termination
shall have been effected because of the breach or default of Sublessor under the Prime Lease not
caused or arising out of the negligence, misconduct or breach of the provisions of this Sublease by
Sublessee, and/or its principals, partners, officers, employees, agents, contractors,
subcontractors, guests and/or invitees, or any person claiming by, through or under Sublessee.
18. Prime Landlord Consent. Wherever in this Sublease Sublessee is required to obtain
Sublessor’s consent or approval, Sublessee understands that Sublessor may be required to first
obtain the consent or approval of Prime Landlord. Sublessor shall use commercially reasonable
efforts, (to the extent such efforts require incurring reasonable costs, such costs shall be
promptly reimbursed by Sublessee to Sublessor within ten (10) days after demand by Sublessor), to
obtain Prime Landlord’s consent or approval (to the extent required); provided, however, the use of
commercially reasonable efforts shall not include the commencement of any type of action against
Prime Landlord to obtain such consent or approval. If Prime Landlord should refuse such consent or
approval, Sublessor shall be released of any obligation to grant its consent or approval.
Sublessee agrees, at its sole cost and expense, to pay any and all charges which may be due to
Prime Landlord under the Prime Lease for any approvals by Prime Landlord with respect to the 23rd
Floor Premises within ten (10) days after rendition of a xxxx for same by Sublessor; provided,
however, that Sublessee shall pay for any charges that may be imposed by Prime Landlord in
connection with its consent to this Sublease immediately upon demand by Prime Landlord. If the
Prime Landlord’s consent to this Sublease or Sublessor’s occupancy of the 23rd Floor Premises
pursuant to this Sublease is not received within thirty (30) days after the date this Sublease is
fully executed by both Sublessor and Sublessee, either Sublessor or Sublessee may elect to cancel
this Sublease by giving notice to the other any time thereafter, but prior to Prime Landlord’s
consent being received by either party. If notice of cancellation has been given in accordance
with the provisions of this Section 18, then (i) Sublessor shall not be obligated to take
further action to obtain such consent, (ii) Sublessor shall promptly return any advance rent, or
Security Deposit paid by Sublessee upon the execution hereof in connection with this Sublease,
(iii) Sublessee shall relinquish any rights or claims it may have with respect to the 23rd Floor
Premises and (iv) the 25th Floor Sublease shall not be terminated, but shall continue in full force
and effect. Notwithstanding any provision contained in this Section 18, Sublessee shall not be
required to reimburse Sublessor for attorneys’ fees and other costs incurred by Sublessor in
connection with the preparation, negotiation and execution of this Sublease.
19. Holdover. If Sublessee shall hold over or remain in possession of any portion of
the 23rd Floor Premises beyond the expiration date of this Sublease or the Prime Lease, Sublessee
shall be liable to Sublessor not only for amounts due by Sublessor pursuant to the terms of the
Prime Lease but for such additional damages as Sublessor may be liable on
account of such holding over by Sublessee and Sublessee shall indemnify Sublessor for any
charges or costs incurred by Sublessor due to Sublessee’s holding over in the 23rd Floor Premises.
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20. Furniture. Sublessee shall leave and not remove any of the furniture identified
on Exhibit B hereto on the 25th Floor Premises (the “25th Floor Furniture”) and represents
that the 25th Floor Furniture is in good condition, subject to ordinary wear and tear from use
during Sublessee’s occupancy of the 25th Floor Premises during the term of the
25th Floor Sulbease. Sublessee hereby waives all rights it has to the 25th Floor
Furniture as of the 23rd Floor Sublease Commencement Date and represents that no Title Transfer (as
defined in the 25th Floor Sublease) occurred with respect to the 25th Floor Furniture.
Sublessor shall leave the furniture currently existing on the 23rd Floor Premises and shown on
Exhibit D hereto (collectively the “23rd Floor Furniture”) in the 23rd Floor Premises for
Sublessee’s use during the 23rd Floor Sublease Term. Except for the 23rd Floor
Furniture, Sublessor shall remove all other items of furniture in the 23rd Floor
Premises prior to the 23rd Floor Sublease Commencement Date. Sublessee acknowledges
that it is aware of the physical condition of the 23rd Floor Furniture and agrees to accept same in
their “as is” and “where is” condition on the date hereof, ordinary wear and tear and damage by
casualty or any other matter excepted without representation or warranty by Sublessor as to its
condition, state of repair or suitability for Sublessee’s use or any other matter related thereto
and Sublessor shall have no liability or obligations of any nature whatsoever to Sublessee with
respect to the 23rd Floor Furniture. Provided that this Sublease is not terminated prior to
September 29, 2016 due to any default or breach by Sublessee, then title to the 23rd Floor
Furniture shall automatically be transferred to Sublessee without further consideration one (1) day
prior to the Sublease Expiration Date (the “Title Transfer”), and such title to the 23rd
Floor Furniture shall automatically be deemed to have been accepted by Sublessee. Provided the
Title Transfer occurs, Sublessee, at Sublessee’s cost and expense shall remove the 23rd Floor
Furniture from the 23rd Floor Premises (together with all other property of Sublessee) no later
than the Sublease Expiration Date and Sublessee shall repair all damage occasioned by the removal
of the 23rd Floor Furniture from the 23rd Floor Premises. Sublessee shall indemnify and hold
harmless Sublessor against and from any and all transfer or sales taxes incurred or arising from
the transfer of the 23rd Floor Furniture to the Sublessee. Such indemnification shall include
reasonable attorneys’ fees or disbursements paid or incurred in connection with the enforcement of
the foregoing indemnification. The obligations of Sublessee under this Section 20 shall survive
the expiration or termination of the 23rd Floor Sublease Term.
21. Casualty and Condemnation. Sublessee shall promptly advise Sublessor if the 23rd
Floor Premises are damaged by fire or casualty. Notwithstanding anything to the contrary contained
in this Sublease or in the Prime Lease, if the whole or any part of the 23rd Floor Premises shall
be damaged by fire or casualty or is the subject of a condemnation, and if the Prime Lease is not
terminated on account thereof by the Prime Landlord or Sublessor, then this Sublease shall remain
in full force and effect and Sublessee’s obligation to pay Base Rent and any additional rent for
the 23rd Floor Premises shall xxxxx if and to the extent Base Rent and additional rent, as the case
may be, payable by Sublessor under the Prime Lease for the 23rd Floor Premises is abated pursuant
to the terms of the Prime Lease, provided, however, that if Sublessor is entitled to terminate the
Prime Lease by reason of such casualty
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or condemnation, Sublessee may terminate this Sublease as to
any corresponding part of the 23rd Floor Premises by written notice to Sublessor prior to the time Sublessor is required to give notice to Prime
Landlord under the terms of the Prime Lease and this Sublease shall so terminate provided further
that the Prime Lease and all Sublessor’s obligations under the Prime Lease with respect to the 23rd
Floor Premises are correspondingly terminated. Sublessor shall not terminate or consent to
termination of the Prime Lease in the event of casualty or condemnation pursuant to the terms of
the Prime Lease without prior written consent of Sublessee, provided on condition that if Sublessee
denies its consent to any such termination, then Sublessee shall pay all rent, costs and expenses,
if any, payable with respect to or by reason of the decision not to terminate the Prime Lease
including, without limitation, all rent and additional rent payable under the Prime Lease for the
23rd Floor Premises and the 25th Floor Premises, and shall indemnify and hold harmless Sublessor
for all damages, costs and expenses that Sublessor incurs as a result of the Sublesee’s choice not
to consent to such termination.
22. Enforcement. If any provisions of this Sublease or the application thereof to any
person or circumstances shall, for any reason and to any extent, be invalid or unenforceable, the
remainder of this Sublease and the application of that provision to other persons or circumstances
shall not be affected but rather shall be enforced to the extent permitted by law. This Sublease
shall be construed without regard to any presumption or other rule requiring construction against
the party causing this Sublease to be drafted. Each covenant, agreement, obligation or other
provision of this Sublease on Sublessee’s part to be performed, shall be deemed and construed as a
separate and independent covenant of Sublessee, not depending on any other provision of this
Sublease. All terms and words used in this Sublease shall be deemed to include any other number
and any other gender as the context may require.
23. Signage. Sublessee shall have the right to display its signage on the 23rd Floor
Premises if and to the extent permitted by Prime Landlord and in accordance with the terms of the
Prime Lease.
24. Recording. Sublessee shall not record this Sublease nor any memorandum thereof.
25. No Oral Modification. This Sublease may not be modified orally, but only in a
writing signed by both parties.
26. New York Law. This Sublease shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
27. Entire Agreement. This Sublease constitutes the entire agreement between the
parties with respect to the 23rd Floor Premises and all representations and understandings have
been merged herein. This Sublease cannot be changed or terminated orally or in any manner other
than by a written agreement executed by both parties.
19
28. Representations and Warranties. (a) Sublessor represents and warrants to
Sublessee as follows as of the date of execution and delivery of this Sublease that:
(i) The Prime Lease is in full force and effect;
(ii) The Prime Lease has not been modified, amended or supplemented;
(iii) Sublessor has not received any written notice of any default by Sublessor under the
Prime Lease, which default remains uncured;
(iv) Sublessor holds the entire tenant’s interest in the 23rd Floor Premises under the Prime
Lease free and clear of any liens, claims, mortgages, charges or encumbrances, subleases and
occupancies (other than this Sublease and the Prime Lease), other than matters to which the tenancy
of this Sublessor, as tenant under the Prime Lease, is or may be subordinate;
(v) There is no litigation or bankruptcy or insolvency proceedings pending or threatened
against Sublessor with respect to the 23rd Floor Premises or which would prevent Sublessor from
performing its obligations under this Sublease;
(vi) Sublessor has not received any written notice of any default from Prime Landlord for the
25th Floor Premises; and
(vii) Sublessor has not given or received any notice of any default under any provision of the
25th Floor Sublease.
(b) Sublessee represents and warrants to Sublessor as follows as of the date of execution of
this Sublease that:
(i) the 25th Floor Sublease is in full force and effect;
(ii) Sublessee has not received any written notice of any default by Prime Landlord for the
25th Floor Premises;
(iii) Sublessee has not given or received any notice of any default under any provision of the
25th Floor Sublease.
29. Authority.
(a) Sublessee represents and warrants to Sublessor that (i) Sublessee is duly organized,
validly existing and in good standing under the laws of the State of New York, and has the full
right and authority to enter into this Sublease; and (ii) the execution, delivery and performance
of this Sublease by Sublessee: (x) has been duly authorized, (y) does not conflict with any
provisions of any instrument to which Sublessee is a party or by which Sublessee is bound, and (z)
constitutes a valid, legal and binding obligation of Sublessee.
(b) Sublessor represents and warrants to Sublessee that (i) Sublessor is duly organized,
validly existing and in good standing under the laws of the State of Delaware, has the authority
to do business in the State of New York, and has the full right and authority to enter into this
Sublease; and (ii) the execution, delivery and performance of this Sublease by Sublessor: (x) has
been duly authorized, (y) does not conflict with any provisions of any
instrument to which Sublessor is a party or by which Sublessor is bound, and (z) constitutes
a valid, legal and binding obligation of Sublessor.
20
30. Counterparts. This Sublease may be executed in several counterparts, each of
which shall be deemed an original. Such counterparts constitute but one and the same instrument,
which may be sufficiently evidenced by one counterpart. Facsimile signatures on these instruments
shall be binding with the same force and effect as original signatures.
31. Quiet Enjoyment. So long as Sublessee pays the Base Rent and additional rent and
performs all its other obligations hereunder, Sublessee may lawfully and quietly hold and enjoy the
23rd Floor Premises during the 23rd Floor Sublease Term without disturbance from Sublessor, subject
to the terms and provisions of this Sublease and the Prime Lease.
32. Subordination of Renewal Option. Sublessor hereby waives any rights it may have
to renew the term of the Prime Lease, including, but not limited to, Sublessor’s renewal option set
forth in Section 11 of the First Amendment, and agrees that Sublessor shall not exercise any such
renewal rights or agree to any other lease or occupancy arrangement for the 23rd Floor
Premises for any time beyond the 23rd Floor Sublease Term, without the prior written
consent of Subleasee, which consent may be withheld in Sublessee’s sole discretion.
21
IN WITNESS WHEREOF,
the parties hereto have caused this Sublease to be executed as of the day
and year first above written.
| SUBLESSOR: | ||||
| Primus Financial Products, LLC | ||||
| /s/ Xxxxxxx Xxxxxxx
|
||||
| Its: Chief Executive Officer | ||||
| SUBLESSEE: | ||||
| Seaport Group Leasing, LLC | ||||
| By: The Seaport Group, LLC, its sole member | ||||
| /s/ Xxxxxxx X. Xxxxxxx
|
||||
| Its: Managing Member |
Sublessee’s Federal Tax
Identification No.
22
EXHIBIT A
FORM OF LETTER OF CREDIT
[LETTERHEAD OF ISSUING BANK]
LETTER OF CREDIT DEPARTMENT
Issue Date:
, 2010
Our
Number:
No.
Irrevocable Commercial Letter of Credit
No.
Irrevocable Commercial Letter of Credit
Applicant:
|
|||
Beneficiary:
|
[Sublessor] | ||
Amount (U.S.):
|
$[Full amount of Security Deposit] | ||
Expiry:
|
[Expiration Date of the Sublease] |
Gentlemen:
For the account of
Applicant we hereby establish this Irrevocable Letter of Credit No.
in your
favor for an amount of up to $
effective immediately,
available by your drafts at sight when accompanied by this Irrevocable Letter of Credit.
All drafts must be
marked “Drawn under
Bank,
Irrevocable Letter of Credit No.
dated
, 2010.”
It is a condition of this Irrevocable Letter of Credit that it shall be payable in multiple
drafts and shall be fully transferable by Beneficiary multiple times without any fees or charges
payable by Beneficiary in connection therewith.
It is a condition of this Irrevocable Letter of Credit that it shall be automatically extended
for additional periods of one year from the present or any future expiry date, unless, at least 60
days prior to any such expiry date, we notify you in writing at the above address, by certified or
registered mail, return receipt requested, that we elect not to renew this Irrevocable Letter of
Credit for such additional period. Upon receipt by you of such notice, you may draw drafts on us
at sight for an amount not to exceed the balance remaining in this Irrevocable Letter of Credit
within the then applicable expiry date.
We hereby agree with you that drafts drawn under and in accordance with the terms of this
Irrevocable Letter of Credit will be duly honored by us on delivery of this Irrevocable Letter of
Credit to this office as follows: [Bank address, including floor and attn. — THIS ADDRESS MUST BE
IN MANHATTAN OR WITHIN A REASONABLE DISTANCE THEREOF].
In the event that the Applicants becomes a debtor in a case under Title 11 of the United
States Code (the “Bankruptcy Code”), or in any other insolvency or similar proceeding, our
obligations to the Beneficiary hereunder shall not be reduced, limited, impaired, discharged,
deferred, suspended, stayed, terminated or otherwise affected by reason thereof or by reason of any
provisions of the Bankruptcy Code (including, but not limited to, Section 362 and 502(b) of the
Bankruptcy code), or the provisions of any other insolvency or similar law.
This credit is subject to the International Standby Practices 1998, International Chamber of
Commerce Publication No. 590; provided, however, that in the event the expiration date occurs
during an interruption of our business of the type described in such publication, then the
expiration date shall be deemed to be automatically extended until the date which shall be five (5)
days after the resumption of our business.
EXHIBIT B
25th FLOOR FURNITURE
TRADING ROOM
(16) Woodtronics Trading Desks, each desk 60" x 38" to center of spline — Black metal structure, curvilinear xxxxxx xxxx surfaces, flush self venting spline, cpu cart, mobile pedestal in black laminate.
(16) Woodtronics Trading Desks, each desk 60" x 38" to center of spline — Black metal structure, curvilinear xxxxxx xxxx surfaces, flush self venting spline, cpu cart, mobile pedestal in black laminate.
(16) Ergonomic task chairs with arms, red upholstery.
(1) Built-in cherry lateral filing credenza 146" x 28" with eight file drawers.
(1) Built-in cherry lateral filing credenza 72" x 28" with four file drawers.
(2) Flatscreen televisions
(All quad-type monitor arms and all telephones, including wall-mounted phone in server room to be removed.)
(1) Built-in cherry lateral filing credenza 146" x 28" with eight file drawers.
(1) Built-in cherry lateral filing credenza 72" x 28" with four file drawers.
(2) Flatscreen televisions
(All quad-type monitor arms and all telephones, including wall-mounted phone in server room to be removed.)
PRIVATE OFFICE #1
U configuration desk 66" x 30" with side surface and back unit with lateral file, cherry. Includes wall mounted overhead storage, task light and tack board. Desk Chair with arms, black leather.
(2) Guest/pull-up chairs, wood frame, upholstered seat.
Marker board.
U configuration desk 66" x 30" with side surface and back unit with lateral file, cherry. Includes wall mounted overhead storage, task light and tack board. Desk Chair with arms, black leather.
(2) Guest/pull-up chairs, wood frame, upholstered seat.
Marker board.
PRIVATE OFFICE #2 (corner)
Double pedestal desk 72" x 36", cherry. Computer side table, cherry, with articulating keyboard arm. Lateral filing credenza 72" x 22", cherry.
(2) Guest/pull-up chairs, wood frame and upholstered seat. Marker board.
Double pedestal desk 72" x 36", cherry. Computer side table, cherry, with articulating keyboard arm. Lateral filing credenza 72" x 22", cherry.
(2) Guest/pull-up chairs, wood frame and upholstered seat. Marker board.
PRIVATE OFFICE #3
U shape desk 66" x 30" with side surface and back unit with lateral file, cherry. No overhead storage. Desk Chair with arms, black leather.
(2) Guest/pull-up chairs, wood frames and upholstered seat.
CONFERENCE ROOM
U shape desk 66" x 30" with side surface and back unit with lateral file, cherry. No overhead storage. Desk Chair with arms, black leather.
(2) Guest/pull-up chairs, wood frames and upholstered seat.
CONFERENCE ROOM
Conference table, 96" x 42", cherry, with connectivity at table top. Credenza 36" x 22" with doors.
(6) conference chairs with arms. Black leather.
(1) flatscreen television
(6) conference chairs with arms. Black leather.
(1) flatscreen television
WORKSTATION AREA
(4) Knoll workstations, each is 72" x 72", low tackable fabric wrapped panels, black perforated metal, wood worksurfaces.
(4) Ergonomic task chairs with arms, red upholstery.
(4) Articulating keyboard arms.
(3) five drawer lateral files30" wide.
(All computers, monitors, stands, servers, printers and any other associated computer equipment shall be removed.)
PANTRY
(4) Knoll workstations, each is 72" x 72", low tackable fabric wrapped panels, black perforated metal, wood worksurfaces.
(4) Ergonomic task chairs with arms, red upholstery.
(4) Articulating keyboard arms.
(3) five drawer lateral files30" wide.
(All computers, monitors, stands, servers, printers and any other associated computer equipment shall be removed.)
PANTRY
Refrigerator with bottom freezer, GE Monogram, stainless steel.
Ice maker, stainless steel.
Dishwasher, stainless steel.
Microwave, stainless steel.
Ice maker, stainless steel.
Dishwasher, stainless steel.
Microwave, stainless steel.
EXHIBIT
C
COMMENCEMENT
DATE AGREEMENT
This Commencement
Date Agreement (the “Agreement”) is entered into as of
, 2009, in
accordance with the terms of that certain Sublease dated as of
, 2010 (the “Sublease”),
between PRIMUS FINANCIAL PRODUCTS, LLC, a Delaware limited liability
company (“Sublessor”), and
SEAPORT GROUP LEASING, LLC, [confirm] a New York limited liability
company (“Sublessee”), pursuant
to which Sublessee subleases from Sublessor certain Premises on the 23rd Floor of that certain
building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the “Premises”).
Sublessor and
Sublessee agree that the Sublease Commencement Date (as such term is defined in
the Sublease) of the Sublease is
, 2011.
IN WITNESS
WHEREOF, Sublessor and Sublessee have entered into this Commencement Date Agreement
as of the date first set forth above.
SUBLESSOR:
|
SUBLESSEE: | |
PRIMUS FINANCIAL PRODUCTS, LLC
|
SEAPORT GROUP LEASING, LLC | |
| By: The Seaport Group, LLC, its sole member |
Title: |
| Title: |
EXHIBIT D
23rd FLOOR FURNITURE
