Exhibit 10.1
SURRENDER AGREEMENT AND AMENDMENT
---------------------------------
SURRENDER AGREEMENT AND AMENDMENT made as of this 31st day
of December, 1999, by and between 11 WEST 42 LIMITED PARTNERSHIP a New York
limited partnership, having an office at c/o Tishman Speyer Properties, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and XXXXXX A.S.L, LTD, a
Delaware corporation, having an office at 00 Xxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx
00000 ("Tenant").
W I T N E S S E T H
WHEREAS:
A. Landlord and Tenant (as successor-in interest to Xxxx
Xxxxx & Company and Xxxx of the Lion Associates) have heretofore entered into a
certain Lease dated June 4, 1996 (the "Lease") with respect to the entirety of
the 20th, 21st, 22nd and 23rd floors (the "Premises") of the building known as
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building");
B. The term of the Lease by its terms shall expire on June
30, 2012;
C. Tenant desires to surrender a portion of the Premises
comprising the entire 23rd floor of the Building (the "Surrendered Space"; the
Premises less the Surrendered Space is hereinafter called the "Retained
Premises") to Landlord and Landlord is willing to accept such surrender in the
manner and upon the terms and conditions hereinafter set forth;
D. Immediately prior to the execution and delivery of this
Agreement, Landlord, as subtenant, and Tenant, as sublandlord, have entered into
a certain sublease, dated of even date herewith, subleasing the Surrendered
Space to Landlord (the "Recapture Sublease"), of which the commencement date of
the term thereof is January 1, 2000, and the parties thereto wish to terminate
the Recapture Sublease simultaneously with the surrender of the Surrender Space.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter contained, it is mutually covenanted and agreed as
follows:
1. Effective as of January 1, 2000 (the "Surrender Date"),
Tenant shall surrender to Landlord, and Landlord shall accept the surrender of,
the Lease in respect of the Surrendered Space and the term and estate thereby
granted, together with the Surrendered Space thereby demised, to the intent and
purpose that the estate of Tenant in and to the Surrendered Space shall be
wholly extinguished and that the term of the Lease in respect of the Surrendered
Space shall expire on the Surrender Date in the same manner and with the same
effect as if such date were the date set forth in the Lease for the expiration
of the term thereof. Time is of the essence in Tenant's surrendering the
Surrendered Space on the Surrender Date.
2. Tenant hereby represents and covenants that as of the
Surrender Date nothing will be done or suffered whereby the Lease in respect of
the Surrendered Space, or the term or estate thereby granted in respect of the
Surrendered Space, or the Surrendered Space, or any part thereof, or any
alterations, decorations, installations, additions and improvements in and to
the Surrendered Space, or any part thereof, will be encumbered in any way
whatsoever other than pursuant to the Recapture Sublease, and that as of the
Surrender Date Tenant will own the Lease in respect of the Surrendered Space and
will have good right to surrender the same on the Surrender Date, and that as of
the Surrender Date no one other than Tenant and the tenant under the Recapture
Lease will have acquired through or under Tenant any right, title or interest in
or to the Surrendered Space, or any part thereof, or in or to said alternations,
decorations, installations, additions and/or improvements or any part thereof.
3. (a) Landlord shall accept such surrender as of the
Surrender Date and in consideration of such surrender by Tenant and of the
acceptance of such surrender by Landlord, Tenant and Landlord do hereby mutually
release each other, their respective successors and assigns of and from any and
all claims, damages, obligations, liabilities, actions and causes of action, of
every kind and nature whatsoever arising under or in connection with the Lease
in respect of the Surrendered Space from and after the Surrender Date, except
that nothing herein contained shall be deemed to constitute a release or
discharge of Landlord or Tenant with respect to any obligation or liability (i)
accrued or incurred under the Lease in respect of the Surrendered Space or this
Agreement and outstanding and unsatisfied on the Surrender Date and (ii) to a
third party (including all indemnification obligations relating thereto) arising
after the Surrender Date as a result of an event occurring or condition existing
prior to or on the Surrender Date.
(b) Prior to the Surrender Date, Tenant shall in a good and
workmanlike manner restore the floor of the Surrendered Space where on the date
hereof an internal stairway connects the 22nd floor and the 23rd floor of the
Premises. Other than as provided in the preceding sentence, Tenant shall have no
obligation to remove any office or showroom installations located in the
Surrendered Space on the date hereof.
4. Landlord and Tenant each covenants, represents and
warrants to the other that it has had no dealings or communications with any
broker or agent in connection herewith other than Insignia/ESG, Inc., Landlord
and Tenant each agrees to hold harmless and indemnify the other from and against
any and all reasonable costs, expenses (including, without limitation,
attorneys' fees and disbursements) or liabilities for any compensation,
commission or other charge claimed by any broker or agent claiming to have dealt
with the indemnifying party other then Insignia/ESG, Inc., whose fees shall be
paid by Tenant pursuant to a separate agreement between Tenant and Insignia/ESG,
Inc. In addition, Tenant shall indemnify, defend and hold harmless Landlord from
and against any and all reasonable costs, expenses (including, without
limitation, attorneys' fees and disbursements) or liabilities which Landlord may
incur by reason of any claim of or liability to Insignia/ESG, Inc., arising out
2
of any dealings claimed to have occurred between Tenant and Insignia/ESG, Inc.
in connection with this Agreement.
5. No partner, member, shareholder, director, officer,
manager, principal, employee or agent, directly and indirectly, of Landlord
(collectively, the "Parties") shall be personally liable for the performance of
Landlord's obligations under this Agreement. Tenant shall look solely to
Landlord to enforce Landlord's obligations hereunder and shall not seek any
damages against any of the Parties. The liability of Landlord for Landlord's
obligations under this Agreement shall be limited to Landlord's interest in the
Building and Tenant shall not look to any other property or assets of Landlord
or the property or assets of any of the Parties in seeking either to enforce
Landlord's obligations under this Agreement or to satisfy a judgment for
Landlord's failure to perform such obligations.
6. Tenant shall indemnify and hold Landlord harmless from
and against, any and all liabilities, losses, claims, costs and expenses
(including attorneys' fees and other reasonable out-of-pocket costs) incurred by
Landlord in connection with any real property transfer tax that will or may
become, or may be asserted to be or become due, owing or imposed in connection
with this Agreement at any time by the City of New York or the State of New York
or any agency or instrumentality of such City or State, including, without
limitation, any penalties and interest imposed or to be imposed in connection
therewith. Tenant shall promptly prepare, execute and file such returns,
affidavits and other documentation as may be required in connection with such
taxes.
7. This Agreement may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement or any waiver,
change, modification or discharge is sought.
8. The covenants, agreements, terms, provisions and
conditions contained in this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
9. Effective as of the Surrender Date and for the remainder
of the Term, the Lease is modified as follows:
(a) Premises (as such term is defined in Article 1 of the
Lease) shall mean the Retained Premises;
(b) Tenant's Proportionate Share (as such term is defined
in Article 1 of the Lease) shall mean 9.51 percent;
(c) Agreed Area of Premises (as such term is defined in
Article 1 of the Lease) shall mean 79,888 rentable square feet;
(d) Fixed Rent (as such term is defined in Article 1 of the
Lease) payable pursuant to the Lease shall be decreased to and shall be
$2,077,088 per annum ($173,090.67 per month) for the period beginning on the
3
Surrender Date and ending on June 3, 2001, both dates inclusive; $2,316,752 per
annum ($193,062.67 per month) for the period commencing on June 4, 2001 and
ending on June 3, 2007, both dates inclusive; and $2,476,528 per annum
($206,377.33 per month) for the period beginning on June 4, 2007 and ending on
the Expiration Date, both dates inclusive.
(e) The definition of Security Deposit contained in Article
1 of the Lease is modified to read in its entirety as follows:
"SECURITY DEPOSIT (i) $5,245,380 for the period
commencing on the Commencement Date
and ending on the day preceding the
seventh anniversary of the
Commencement Date; (ii) $4,865,280
for the period commencing on the
seventh anniversary of the
Commencement Date and ending on the
day preceding the eighth anniversary
of the Commencement Date; (iii)
$4,485,180 for the period commencing
on the eighth anniversary of the
Commencement Date and ending on the
day preceding the ninth anniversary
of the Commencement Date; (iv)
$4,105,080 for the period commencing
on the ninth anniversary of the
Commencement Date and ending on the
day preceding the tenth anniversary
of the Commencement Date; (v)
$3,724,980 for the period commencing
on the tenth anniversary of the
Commencement Date and ending on the
day preceding the eleventh
anniversary of the Commencement
Date; (vi) $3,344,880 for the period
commencing on the eleventh
anniversary of the Commencement Date
and ending on the day preceding the
twelfth anniversary of the
Commencement Date; and (vii)
$2,432,640 for the period commencing
on the twelfth anniversary of the
Commencement Date and thereafter."
10. (a) Tenant represents and warrants to Landlord as of
the date hereof that (i) Tenant knows of no defense or counterclaim to the
enforcement of the Lease; (ii) Tenant is not entitled to any reduction, offset
or abatement of the rent payable under the Lease other than as contemplated
hereby; (iii) Tenant is not in default of any of its obligations or covenants,
and has not breached any of its representations or warranties, under the Lease;
and (iv) Tenant knows of no default by Landlord under the Lease.
4
(b) Landlord represents and warrants to Tenant as of the
date hereof that (i) Landlord knows of no defense or counterclaim to the
enforcement of the Lease and (ii) Landlord knows of no default by Tenant under
the Lease,
11. Landlord, as subtenant, and Tenant, as sublandlord,
under the Recapture Sublease, agree that the Recapture Sublease shall terminate
on the Surrender Date and shall be of no force and effect after such date other
than the obligations set forth in Paragraph 18 thereof which by their terms
survive the termination thereof. Landlord, as landlord of the Building, hereby
accepts the attornment of all undertenants to which Landlord, as subtenant, may
have underleased all or any portion of the Surrendered Space, and Landlord
hereby agrees to indemnify, defend and hold Tenant harmless from and against all
claims, liabilities, damages, costs, and expenses (including reasonable
attorneys' fees) arising or accruing against Tenant by reason of any such
underleases. Landlord, as landlord under the Lease, further releases Tenant from
all liabilities and obligations under the Lease with respect to the Surrendered
Space for the term of the Recapture Sublease other than the obligations set
forth in Paragraph 8 thereof which by their terms survive the termination
thereof, and Landlord agrees to indemnify, defend and hold Tenant harmless from
all obligations under the Lease with respect to the Surrendered Space during the
term of the Recapture Sublease.
12. Landlord hereby represents and covenants that Landlord
is the holder of the entire lessor's interest under the Lease and has full
right, title and authority to enter into this Agreement without the necessity of
securing consent from any party (other than any consent which Landlord has
obtained prior to the date hereof).
5
IN WITNESS WHEREOF, the parties hereto have respectively
executed this Agreement as of the day and year first above written.
11 WEST 42 LIMITED PARTNERSHIP
By: WHTS COMPANY, INC., a general partner
By: [signature illegible]
------------------------------------------------------
Name:
Title: V.P.
By: WEST 42 ASSOCIATES, L.P., a general partner
By: 11 West 42nd Realty I Corp., a general partner
By: [signature illegible]
--------------------------------------------------
Name:
Title:
By: 11 West 42nd Realty II Corp., a general partner
By: [signature illegible]
--------------------------------------------------
Name:
Title:
XXXXXX A.S.L., LTD.
By: /s/ Xxx Xxxxxxxxx
------------------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Chief Operating Officer
6
