Exhibit 10.39
TERMINATION AGREEMENT
This TERMINATION AGREEMENT dated as of December 31, 2010 (this "Agreement")
between RCPI LANDMARK PROPERTIES, L.L.C., having an office c/o Tishman Speyer,
00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and BKF Management
Co., Inc. a Delaware corporation, having an office at 000 X.X. Xxxxxx Xxxx, Xxx.
000, Xxxx Xxxxx, Xxxxxxx 00000 ("Tenant").
W I T N E S S E T H:
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WHEREAS, Landlord's predecessor-in-interest, Rockefeller Center Properties,
and Tenant's predecessor-in-interest, Xxxx X. Xxxxx & Co., Inc., entered into
that certain Lease dated December 20, 1993, as amended by Supplemental Indenture
dated March 2, 1995, the First Amendment to Lease dated June 23, 1997, the
Second Amendment to Lease dated as of January 22, 1998, the Third Amendment to
Lease dated as of December 31, 1998, the Fourth Amendment of Lease dated July
18, 2000, the Fifth Amendment to Lease dated as of May 14, 2001, Conduit License
Agreement dated May 14, 2001, the Sixth Amendment to Lease dated as of September
28, 2001, and the Seventh Amendment to Lease and Partial Surrender Agreement
dated October 10, 2003 (as so amended, the "Original Lease") with respect to the
entire 18th floor, the entire 19th floor and Space 'G' on the 15th floor (the
"Storage Premises"), (collectively the "Premises") of the building known as Xxx
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx (the "Building") all as more particularly
described in the Lease; and
WHEREAS, Tenant desires to surrender all of its right, title and interest
in and to the Premises and to terminate the Lease, and Landlord desires to
accept such surrender and termination, all on the terms and conditions as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Capitalized Terms. All capitalized terms used and not otherwise defined
in this Agreement shall have the respective meanings ascribed to them in the
Lease.
2. Termination of Lease. (a) Effective as of January 1, 2011 (the
"Surrender Date"), the term of the Lease shall end and expire and Tenant's
estate in and possession of the Premises shall terminate and be wholly
extinguished with the same force and effect as if such date was initially set
forth in the Lease as the expiration date thereof. All fixed rent, additional
rent and other amounts payable under the Lease shall be apportioned as of the
Surrender Date. In consideration of Landlord accepting Tenant's surrender of the
Premises
and the termination of the Lease and in payment of all sums due under the Lease
through and including the Surrender Date, Tenant shall pay to Landlord upon the
execution and delivery of this Agreement, by certified or bank check, the sum of
$1,139,049.63 (the "Termination Payment"), without any set-off, counterclaim,
abatement or deduction whatsoever.
(b) Tenant represents and warrants that it has not assigned, pledged
or encumbered the Lease or sublet the Premises or done or suffered any
other action as a result of which the Lease or the Premises might be
subject to any lien or encumbrance other than that certain sublease between
Tenant and Daylight Forensic and Advisory LLC ("Subtenant"), and which was
further sub-subleased to Navigant Consulting, Inc. ("Sub-subtenant"), it
being acknowledged that Landlord has consented to both the sublease and the
sub-sublease prior to the date hereof. Tenant warrants that the foregoing
covenants and representations will be true and correct as of the Surrender
Date. Landlord and Tenant further agree and acknowledge that Landlord has
consented to the occupancy of the Premises subsequent to the Surrender Date
by either (or both Subtenant and Sub-subtenant), and that Tenant shall have
no liability for its failure to deliver vacant possession of the Premises
to Landlord.
(c) Provided Tenant has not defaulted under any of the terms of the
Lease or this Agreement, Landlord shall, within 30 days following notice
from Tenant that the Surrender Date has occurred, return to Tenant the
Security then being held by Landlord pursuant to Article Twenty-Six of the
Lease.
(d) Tenant shall complete and timely submit all returns and
questionnaires relating to New York City and State real property transfer
tax laws and any other applicable real property transfer or gains tax laws
(the taxes which are the subject of such laws are hereinafter referred to
collectively as "Transfer Taxes") in connection with the transactions
contemplated by this Agreement (and Landlord shall promptly execute any
Transfer Tax returns and questionnaires required to be executed by
Landlord, provided such returns and questionnaires are in form reasonably
satisfactory to Landlord), if applicable. Tenant shall timely pay all
Transfer Taxes, if any, and shall deliver evidence, reasonably acceptable
to Landlord, of such payment simultaneously to Landlord. Tenant shall
indemnify, defend (with legal counsel reasonably acceptable to Landlord)
and hold harmless Landlord from all losses, liabilities, interest,
judgments, suits, demands, damages, costs and expenses (including
attorneys' fees and disbursements incurred in the defense thereof) that
Landlord may incur by reason of Tenant's failure to complete and timely
submit any and all Transfer Tax returns and questionnaires and/or Tenant's
failure to timely pay any and all Transfer Taxes.
3. Release of Tenant. Provided that (i) Tenant complies in all respects
with its obligations hereunder, (ii) Tenant is not named as a debtor in any
bankruptcy proceeding during the period of 101 days following Landlord's actual
receipt of the Termination Payment, (iii) Landlord receives the full amount of
the Termination Payment and (iv) Landlord is not required to disgorge any sums
received from Tenant, then effective as of the Effective Date, Landlord, on
behalf of itself and each of its parent, subsidiaries, affiliates, shareholders,
members, partners, officers and directors and the successors and assigns of each
of them (collectively, the "Landlord Related Persons") shall be deemed, without
further action, to have released, acquitted and forever discharged Tenant and
each of its parent, subsidiaries, affiliates, shareholders, members, partners,
officers and directors and the successors and assigns of each of them
(collectively, the "Tenant Related Persons") from any and all claims, demands,
proceedings, causes of action, orders, obligations, contracts, agreements, debts
and liabilities, whatsoever (including, without limitation, any adjustments of
Operating Expenses), whether known or unknown, suspected or unsuspected, both at
law and in equity, which Landlord or any Landlord Related Person now has, have
ever had or may hereafter have against Tenant or any Tenant Related Person
arising under or related to the Lease or the Premises. Notwithstanding the
foregoing, all of Tenant's obligations and liabilities under the Lease and this
Agreement which accrued or arose or relate to matters occurring on or before the
Effective Date shall survive the Effective Date, including, without limitation,
Tenant's obligation under the Lease (and any liability resulting from Tenant's
failure to perform such obligation) to indemnify, defend and hold harmless
Landlord for all liabilities, obligations, suits, claims, fines, damages,
penalties, costs, charges and expenses (collectively, the "Damages") (including,
without limitation, attorneys' fees and disbursements) which may be imposed
upon, incurred or paid by, or asserted against, Landlord, or for which Landlord
may become, or is, liable, that are imposed by, or incurred or paid to, or
asserted by, third parties, including, without limitation, Damages resulting
from (a) injuries to persons occurring at the Premises on or prior to the
Effective Date; (b) Tenant's failure to have paid for any work performed at, or
materials or supplies installed at or furnished to, the Premises on or prior to
the Effective Date, at the request of, or for the benefit of, Tenant or any
person or entity claiming by, through or under Tenant; or (c) Tenant's failure
to have paid for any utilities or services furnished to Tenant on or prior to
the Effective Date.
4. Release of Landlord. Effective as of the Effective Date, Tenant, on
behalf of itself and each of the Tenant Related Persons, hereby releases,
acquits and forever discharges Landlord and each of the Landlord Related Persons
from any and all claims, demands, proceedings, causes of action, orders,
obligations, contracts, agreements, debts and liabilities, whatsoever, whether
known or unknown, suspected or unsuspected, both at law and in equity
(collectively, "Tenant Claims"), which Tenant or any Tenant Related Person now
has, has ever had or may hereafter have against Landlord or any Landlord Related
Person arising under or related to, the Lease, or the Premises.
5. Brokerage. Each of Landlord and Tenant represents and warrants to the
other that it has not dealt with any broker in connection with this Agreement
other than Tishman Speyer Properties, L.P. ("TSP"), and that, to the best of its
knowledge, no other broker negotiated this Agreement or is entitled to any fee
or commission in connection herewith. Landlord shall pay TSP any commission due
in connection with the transactions contemplated by this Agreement in accordance
with the terms of a separate agreement. Each of Landlord and Tenant shall
indemnify, defend, protect and hold the other party harmless from and against
any and all losses, liabilities, damages, claims, judgments, fines, suits,
demands, costs, interest and expenses of any kind or nature (including
reasonable attorneys' fees and disbursements) incurred in connection with any
claim, proceeding or judgment and the defense thereof which the indemnified
party may incur by reason of any claim of or liability to any broker, finder or
like agent (other than TSP) arising out of any dealings claimed to have occurred
between the indemnifying party and the claimant in connection with this
Agreement, or the above representation being false.
6. Representations and Indemnification. (a) Tenant hereby represents and
warrants to Landlord that, as of the date hereof, (i) the Lease is in full force
and effect and has not been modified except pursuant to this Agreement; (ii) to
the best of Tenant's knowledge, there are no defaults existing under the Lease;
(iii) to the best of Tenant's knowledge there exist no valid abatements, causes
of action, counterclaims, disputes, defenses, offsets, credits, deductions, or
claims against the enforcement of any of the terms and conditions of the Lease;
(iv) this Agreement has been duly authorized, executed and delivered by Tenant
and constitutes the legal, valid and binding obligation of Tenant; and (v) there
are no actions, whether voluntary or otherwise, pending against Tenant under the
bankruptcy or insolvency laws of the United States or any state thereof.
(b) Tenant agrees to indemnify, defend and hold harmless Landlord for
all Damages (including, without limitation, reasonable attorneys' fees and
disbursements) which may be imposed upon, incurred or paid by, or asserted
against Landlord, resulting from (a) Tenant's breach of any its agreements,
covenants, representations and warranties hereunder and (b) any inability
of Landlord to retain the full amount of the Termination Payment.
7. Miscellaneous. (a) Except as set forth herein, nothing contained in this
Agreement shall be deemed to amend or modify in any respect the terms of the
Lease.
(b) This Agreement contains the entire agreement of the parties with
respect to its subject matter and all prior negotiations, discussions,
representations, agreements and understandings heretofore had among the
parties with respect thereto are merged herein.
(c) This Agreement may be executed in duplicate counterparts, each of
which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument. (d) This Agreement shall be
binding upon and inure to the benefit of Landlord and Tenant and their
successors and permitted assigns.
(e) The terms and provisions of this Agreement shall survive the
expiration or earlier termination of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of
the day and year first above written.
LANDLORD:
RCPI LANDMARK PROPERTIES, L.L.C.
By: /s/
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TENANT:
BKF Management Co., Inc.
By: /s/
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