SUBLEASE
Exhibit
10.1
EXECUTION
COPY
This SUBLEASE (this “Sublease”) dated as of
November __, 2008 by and between BROADPOINT SECURITIES GROUP, INC. (f/k/a
First Albany Companies), a New York corporation (“Sublandlord”), and JEFFERIES
& COMPANY, INC., a Delaware corporation (“Subtenant”).
RECITALS:
A. Sublandlord,
as tenant, leases from Post-Xxxxxxxxxx Associates, a California general
partnership (“Master
Landlord”), certain premises (the “Premises”) comprised of
approximately 19,620 square feet located on the 24th floor
of the building (the “Building”) known as Post
Xxxxxxxxxx Center, San Francisco, California pursuant to that certain Office
Lease, dated as of March 31, 2005 (the “Master Lease”), between Master
Landlord, as landlord, and Sublandlord, as tenant. Capitalized terms
used but not defined herein shall have the definitions given in the Master
Lease.
B. Sublandlord
desires to sublet to Subtenant, and Subtenant desires to hire and sublease from
Sublandlord, the entire Premises shown as the non-shaded area on Exhibit A attached
hereto and made a part hereof (the “Subleased Premises”), on the
terms and subject to the conditions contained in this Sublease.
AGREEMENT:
NOW, THEREFORE, for and in
consideration of the mutual covenants hereinafter contained and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the parties hereto hereby agree as follows:
1. Demise.
Pursuant to the terms and subject to
the conditions of this Sublease, Sublandlord does hereby demise and sublease to
Subtenant, and Subtenant does hereby sublease from Sublandlord, the Subleased
Premises. Subtenant acknowledges that it has inspected the Subleased
Premises and is acquainted with its condition. On the Commencement
Date (as defined below), Sublandlord shall deliver, and Subtenant agrees to
accept, the Subleased Premises in “as is” condition as of the date hereof,
normal wear and tear excepted, without any warranty or representation except as
expressly set forth herein.
2. Subordination; Incorporation
of Master Lease by Reference.
(a) Subtenant
acknowledges that it has received and reviewed a copy of the Master Lease
attached hereto as Exhibit C and the
Construction Guide referenced therein. This Sublease is subject
and subordinate in all respects to the Master Lease and to the matters which the
Master Lease is or shall be subordinate. Subtenant shall not take any
action or fail to take any action in connection with the Subleased Premises
which is a violation of or default under any of the provisions of the Master
Lease.
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(b) Except
to the extent expressly set forth herein to the contrary, all of the terms,
provisions, covenants and conditions of the Master Lease are hereby incorporated
by reference in, and made part of, this Sublease with the same force and effect
as though set forth in full herein. For purposes of such
incorporation, (i) except as otherwise provided in subsection (d) below, the
term “Landlord” in the Master Lease shall refer to Sublandlord hereunder, its
successors and assigns; (ii) the term “Tenant” therein shall refer to Subtenant
hereunder, its successors and assigns; (iii) the term “this Lease” therein shall
refer to this Sublease; (iv) the term “the term of this Lease” therein shall
refer to the Term of this Sublease; (v) the terms “Commencement Date,”
“Expiration Date and “Base Rent” therein shall each refer to the respective
definitions of such terms as are set forth herein; (vi) references to rules,
regulations, requirements and similar terms promulgated or prescribed by
Landlord shall refer to those of Master Landlord, not of Sublandlord; and (vii)
Sublandlord makes no representation or warranty made by Master Landlord under
the Master Lease. The obligations of Subtenant hereunder which are to
be performed during the Term shall survive and extend beyond the termination of
this Sublease to the extent such survival is contemplated in the Master
Lease. If there is any inconsistency or conflict between the
provisions of the Master Lease and this Sublease, the provisions of this
Sublease shall control.
(c) The
following provisions of the Master Lease are specifically not incorporated in
this Sublease:
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(i)
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Sections
1.2 (except for the definitions of “Permitted Use” and “Building Directory
Spaces”), 3.1, 4.1, 4.2, 4.3, 7.6, 21.1 (everything following the proviso
in the first sentence) and 31.9 and Articles 5, 10, 17, 28, 29, 30
(excluding the last two (2) sentences of Section 30.1), 33, 34, 36 and 37,
the first sentence of Section 22.2 and Exhibit C of the Master Lease;
and
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(ii)
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All
terms defined and/or described under the “Basic Lease Information” section
of the Master Lease.
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(d) Notwithstanding
anything to the contrary set forth in subsection (b) above, references to the
term “Landlord” shall not be deemed changed to refer to Sublandlord and same
shall be deemed to refer only to Master Landlord for purposes of incorporating
the following provisions of the Master Lease: Sections 8.1, 8.2 (except for the
third sentence thereof), 8.5, 8.6, 14.4, 19.1, 19.2, 22.1, 31.14, 31.15 and
31.22, the second sentence of Section 8.4, and Articles 17 and 18 (except for
the third sentence thereof).
(e) Section
7.3 of the Master Lease shall be deemed to be modified so as to
provide that Subtenant shall be obligated to comply therewith only if and to the extent that Sublandlord shall be obligated
to comply therewith and same, as so
modified, shall be incorporated into this Sublease.
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3. Term. The term of
this Sublease (the “Term”) shall commence on the
earlier of: (i) April 1, 2009; or (ii) the date upon which Subtenant commences
business activities at the Subleased Premises (the “Commencement Date”) and shall
terminate on July 30, 2015 (the “Expiration Date”), unless
sooner terminated pursuant to the provisions of the Master Lease, this Sublease
or pursuant to law. Subtenant shall have the right to possess the
Subleased Premises on the later of (i) the date this Sublease is fully executed
and delivered by Subtenant; (ii) the date upon which Subtenant shall have
delivered a certificate of insurance required hereunder to Sublandlord; and
(iii) within one (1) business day after the date on which Master Landlord’s
Consent (as hereinafter defined) shall have been obtained and Sublandlord shall
cooperate with Subtenant in connection therewith. Following the
establishment of the Commencement Date in accordance with this section, upon
request from either party, the other party will promptly provide a letter or
other agreement setting forth the Commencement Date.
4. Base Rent and Additional
Rent.
(a) From
and after the Commencement Date and throughout the Term, Subtenant shall pay to
Sublandlord base rent (the “Base Rent”) equal to the
following yearly (and monthly) rates:
(i) From
the Commencement Date – June 30, 2009: $0.00; and
(ii) From
July 1, 2009 – the Expiration Date: $784,800.00 per annum ($65,400.00 per
month), representing $40.00 per square foot per annum.
The Base Rent shall be due and payable
to Sublandlord, in advance, on the first day of each and every calendar month
during the Term of this Sublease. If any payment of Rent (defined
below) applies to a period that is both within and outside the Term, such
payment shall be apportioned on the basis of the ratio of the number of days in
such period within the Term to the total number of days in such
period.
(b) Commencing
on and after the Commencement Date, Subtenant shall, promptly after invoice from
Sublandlord, pay to Sublandlord any and all Additional Rent (together with the
Base Rent, the “Rent”)
payable by Subtenant hereunder. “Additional Rent” shall mean
(x) for each calendar year beginning with January 1, 2010, any and all amounts
that Escalation Rent (as defined under the Master Lease) paid by Sublandlord in
excess of amounts paid by Sublandlord with respect to Escalation Rent for
calendar year 2009 (“Sublease
Basic Operating Costs”); (y) all other additional rent payable by
Sublandlord to Master Landlord under the Master Lease if incurred at the request
of, or due to the acts or omissions of, Subtenant in each case, relating to or
in connection with the Subleased Premises; and (z) all other amounts payable by
Subtenant hereunder including, without limitation, any costs or charges imposed
upon Sublandlord pursuant to the Master Lease in connection with Subtenant’s
move into to Subleased Premises (provided that Sublandlord shall not impose any
additional costs upon Subtenant in connection with Subtenant’s move into the
Subleased Premises above those required under the Master Lease).
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(c) Starting
on January 1, 2010, invoices delivered to Subtenant representing Sublease Basic
Operating Costs for calendar year 2010 shall be based on the difference between
estimated Escalation Rent chargeable to Sublandlord for calendar years 2009 and
2010, respectively. At such time as Master Landlord performs the Escalation Rent
adjustment for calendar year 2010 pursuant to Section 5.2 of the Master Lease
(anticipated to be within approximately 120 days after the end of the 2010
calendar year), Sublandlord shall calculate the difference, if any, between the
amount of Sublease Basic Operating Costs paid by Subtenant for calendar year
2010 and the actual amount of Sublease Basic Operating Costs payable by
Subtenant for such period. If the amount of Sublease Basic Operating
Costs paid by Subtenant for calendar year 2010 exceeds the actual amount of
Sublease Basic Operating Costs that Subtenant is obligated to pay for calendar
year 2009 under the terms hereof, Sublandlord will credit such excess for such
period against the Base Rent next due and owing from Subtenant. Any
shortfall in the amount of Sublease Basic Operating Costs paid by Subtenant for
such period will be invoiced to Subtenant separately. Upon
determination by Master Landlord of the actual Sublease Basic Operating Costs
for calendar year 2010 in accordance with the terms of Section 5.2 of the
Master Lease, Sublandlord shall within fifteen (15) days after Sublandlord’s
receipt of same deliver to Subtenant all bills, invoices, and other
correspondence delivered by Master Landlord to Sublandlord and used by
Sublandlord in determining such Sublease Basic Operating Costs (including bills,
invoices and other correspondence evidencing Master Landlord’s determination of
all costs factored into for calendar year 2009).
(d) Starting
on January 1, 2011 and continuing through each subsequent calendar year or
portion thereof during the Term of this Lease, invoices delivered to Subtenant
representing Sublease Basic Operating Costs for such calendar year shall be
based on the difference between Escalation Rent for such year, as estimated by
Master Landlord, and actual Escalation Rent for calendar year
2009. As actual Escalation Rent for such calendar year is determined
during each subsequent calendar year in accordance with the terms of
Section 5.2 of the Master Lease, Sublandlord shall (x) determine the
difference, if any, between the amount of Sublease Basic Operating Costs
actually paid by Subtenant for the relevant calendar year and the actual amount
of Sublease Basic Operating Costs payable by Subtenant for such period (based on
the actual Escalation Rent for the relevant calendar year determined in
accordance with the terms of Section 5.2 of the Master Lease), (y) if the
amount of Sublease Basic Operating Costs paid by Subtenant for such calendar
year exceeds the actual amount of Sublease Basic Operating Costs that Subtenant
is obligated to pay for calendar year 2009 under the terms hereof, Sublandlord
shall credit such excess against the Base Rent next due and owing from Subtenant
and if the actual amount of Sublease Basic Operating Costs that Subtenant is
obligated to pay for calendar year 2009 under the terms hereof exceeds the
amount of Sublease Basic Operating Costs paid by Subtenant for such calendar
year, such shortfall will be invoiced to Subtenant separately and (z) deliver to
Subtenant within fifteen (15) days after Sublandlord’s receipt of same the same
evidence of such determination as described above. Subtenant’s
payments under Section 4 in respect of Sublease Basic Operating Costs shall be
pro-rated for any partial month or year. If Master Landlord shall
issue to Sublandlord any credit or refund in respect of Sublease Basic Operating
Costs relating to any part of the Term, Sublandlord shall within fifteen (15)
days thereafter: (a) provide Subtenant with a copy of the supporting
documentation received by Sublandlord from Master Landlord (if any); and (b)
give to Subtenant such credit against the Base Rent next due and owing from
Subtenant or refund after deducting therefrom any reasonable costs and expenses,
including reasonable attorneys’ fees, incurred by Sublandlord in connection with
compelling Master Landlord to obtain such credit or refund.
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(e) In
the event Subtenant disputes any calculation of Sublease Basic Operating Costs
delivered to it hereunder, Subtenant may request that Sublandlord dispute the
corresponding Escalation Rent in accordance with the terms of Section 5.6 of the
Master Lease, provided Subtenant delivers: (a) notice to Sublandlord of such
dispute at least twenty (20) days prior to the expiration of the maximum period
for challenging same pursuant to the Master Lease and (b) an explanation of the
dispute along with such notice. Thereafter, Sublandlord shall dispute
the corresponding Escalation Rent in accordance with the terms of Section 5.6 of
the Master Lease provided that such action is done at Subtenant’s sole cost and
expense, and Subtenant shall indemnify Sublandlord for any and all liability in
connection with such dispute.
(f) All
Rent shall be paid in lawful money of the United States to Sublandlord at
Sublandlord’s office at the following address (or at such other place as
Sublandlord may designate by notice to Subtenant):
000
Xxxxxxxx
Xxxxxx, Xxx
Xxxx 00000
Attention:
Accounts Payable
5. Subtenant
Alterations.
(a) The
parties acknowledge that Subtenant has inspected the Subleased Premises and the
Subleased Premises and is fully familiar with the physical condition thereof.
Subtenant agrees to accept the Subleased Premises on the Commencement Date in
its “as is” condition as of the date hereof, broom clean. Subtenant acknowledges
and agrees that Sublandlord shall have no obligation to do any work in or to the
Subleased Premises in order to make it suitable and ready for occupancy and use
by Subtenant, but
Sublandlord will cooperate with the removal of signs in and on the Subleased
Premises containing Sublandlord’s name and will cooperate with Subtenant to
cause Master Landlord to remove Sublandlord’s name (and the names of its
employees) from the Building Directory Spaces (all of the foregoing shall be
subject to Maser Landlord’s consent if required under the terms of the Master
Lease).
(b) Subject
to the approval of Master Landlord, Subtenant shall be allowed access to the
Subleased Premises at reasonable times and during working hours, with reasonable
prior notice to Sublandlord, prior to the commencement of the Term (beginning
with the date of this Sublease), for the limited purpose of performing its
improvements, installation of furniture, fixtures & equipment and preparing
the Subleased Premises for move-in and subject expressly to the provisions of
this Sublease and to applicable Building standards, at Subtenant’s sole cost and
expense. Subtenant shall maintain, and provide Sublandlord evidence
of, insurance effective during the period of such early access naming the
Sublandlord and the Master Landlord as additional insureds and in form
reasonably satisfactory to the Sublandlord, and Subtenant shall be bound by the
terms of this Sublease, except those terms related to the payment of rent,
during such period as though the Sublease were in full force and effect and the
Term hereof had commenced. Sublandlord shall have no liability for,
and Subtenant shall fully indemnify Sublandlord against, any claims arising out
of such access and involving Subtenant, its agents, representatives, contractors
or invitees in the course of such access except to the extent caused by
Sublandlord’s gross negligence or willful misconduct.
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(c) For
the duration of the Term, Subtenant, at no charge to Subtenant, shall have the
right to use all of Sublandlord’s property located in the Subleased Premises set
forth on Exhibit
B attached hereto or other personal property of Sublandlord present or
located in the Subleased Premises on the date hereof (“FF&E”). Sublandlord
represents that: (i) Sublandlord has good and marketable title to the FF&E,
free and clear of all liens, claims and encumbrances; and (ii) the FF&E has
not been previously sold or assigned by Sublandlord. At the
expiration of this Sublease, provided Subtenant is not then in default under
this Sublease beyond the applicable notice and cure periods, Subtenant shall
take ownership of the FF&E (provided the FF&E shall not become property
of Subtenant unless and until such default is cured within the applicable cure
period); provided, further, that if this Sublease is terminated as a result of
an Event of Default by Subtenant hereunder, then the FF&E will remain the
property of Sublandlord. Notwithstanding anything to the contrary set
forth herein, after the date on which Master Landlord’s Consent shall have been
obtained, Subtenant shall cause the removal of the Avaya G3 Phone Switch from
the Subleased Premises (the “Removal”). The
Removal shall be conducted by a third party vendor selected by
Sublandlord. The actual out-of-pocket costs of the Removal incurred
by Subtenant shall be paid by Sublandlord to Subtenant within fifteen (15) days
after demand; provided,
however, the maximum
amount to be reimbursed by Sublandlord hereunder in connection with the Removal
shall not exceed $1,000.00.
(d) Subtenant
shall not make any Alterations (as defined in the Master Lease) in or to
Subleased Premises without first complying with the applicable provisions of the
Master Lease. Whenever the consent of Master Landlord is required in
connection with the performance of Alterations in or to the Subleased Premises
pursuant to Article 10 of the Master Lease (except that Sublandlord’s consent
shall not be required for such alterations as Sublandlord may perform without
Master Landlord’s consent pursuant to the Master Lease), Sublandlord’s consent
shall also be required, which consent of Sublandlord shall be granted (or
denied) in accordance with the terms and conditions of Article 10 of the Master
Lease except that if such consent or approval is obtained from Master Landlord,
Sublandlord shall be deemed to have granted its consent thereto.
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(e) Subject
to the terms of the Master Landlord’s Consent (as defined in Section 12(g) below),
in accordance with and subject to the provisions of Article 10 of the Master
Lease, Subtenant shall surrender all Alterations and Tenant Improvements (as
defined in the Master Lease) in and to the Subleased Premises at the expiration
of the Term in the condition as of the date hereof and repair, reasonable wear
and tear and casualty damage and condemnation excepted, and the same shall
become the property of Master Landlord; provided that Subtenant shall
have the right, as Subtenant’s sole cost and expense, to remove any
Alteration(s) or Tenant Improvement(s) from the Subleased Premises that Master
Landlord has agreed, in writing, may be so removed. Furthermore,
Subtenant shall remove, at Subtenant’s sole cost and expense, all Alterations
and Tenant Improvements made in or to the Subleased Premises by or on behalf of
subtenant that Master Landlord shall require to be so removed pursuant to the
terms of the Master Lease. Notwithstanding anything contained herein
to the contrary, Sublandlord hereby acknowledges and agrees that in no event
shall Subtenant have any obligation of any nature whatsoever to remove upon the
expiration or termination of this Sublease any Alterations, Tenant Improvements,
installations, changes or additions which have been performed by or on behalf of
Sublandlord that are required to be removed pursuant to the terms of the Master
Lease.
(f) Notwithstanding
anything to the contrary herein, Subtenant acknowledges and agrees that
Subtenant is solely responsible for costs arising from or otherwise related to
its move into the Subleased Premises, whether or not such costs arise pursuant
to the provisions of the Master Lease. Subtenant agrees to indemnify
Sublandlord against any such costs.
6. Brokers.
Each party represents and warrants to
the other that it dealt with no broker (or other person who may claim a
commission or similar compensation) in connection with this Sublease except for
Xxxxxxx & Xxxxxxxxx (“Broker”), who shall be paid by
Sublandlord pursuant to a separate agreement between Broker and Sublandlord, and
each party shall defend, indemnify and hold the other harmless from any
liability or loss, including, without limitation, reasonable attorneys’ fees and
expenses, based upon an alleged breach of said representation and
warranty.
7. Assignment, Subletting;
Subordination.
(a) Subtenant
shall not assign, pledge, mortgage or otherwise transfer this Sublease, sublet
the Subleased Premises or otherwise allow any party other than Subtenant to use
or occupy, whether by license or otherwise, all or any part of the Subleased
Premises without (i) obtaining Master Landlord’s prior written consent to such
assignment or subletting if such consent is required pursuant to the provisions
of Article 17 of the Master Lease; (ii) otherwise complying with all other terms
and conditions set forth in Article 17 of the Master Lease (including, without
limitation, the payment by Subtenant of Master Landlord’s fees and expenses in
connection with any assignment or subletting, not to exceed the cap set forth in
the Master Lease); and (iii) obtaining Sublandlord’s consent (which consent
shall not be unreasonably withheld, conditioned or delayed), provided that (I) if
Master Landlord’s consent to such assignment, sublease or other transfer is not
required under the Master Lease, Sublandlord’s consent shall not be required and
(II) if Master Landlord grants its consent to such assignment, sublease or other
transfer in writing in accordance with the provisions of Article 17 of the
Master Lease, the consent of Sublandlord shall be deemed granted. At least
thirty (30) days prior to the proposed effective date of any assignment,
sublease or other transfer of Subtenant’s interest in this Sublease or the
Subleased Premises, Subtenant shall provide written notice of its intent to so
transfer to Sublandlord, which notice shall include all documentation required
to be delivered under Section 17.2 of the Master Lease. Each
assignment or subletting pursuant to this Section 7 shall be subject to all of
the covenants, agreements, terms, provisions and conditions contained in this
Sublease and the Master Lease.
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(b) Notwithstanding
any assignment or subletting contemplated under this Section 7, acceptance of
rent or additional rent by Sublandlord from any subtenant or assignee, Subtenant
shall and will remain fully liable for the payment of the Rent due and to become
due hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this Sublease on the part of Subtenant to
be performed and all acts and omissions of any subtenant or assignee or anyone
claiming under or through any subtenant or assignee which shall be in violation
of any of the obligations of this Sublease, and any such violation shall be
deemed to be a violation by Subtenant. Subtenant further agrees that
notwithstanding any such subletting or assignment, no other and further
subletting or assignment by Subtenant or any person claiming through or under
Subtenant shall or will be made except upon compliance with and subject to the
provisions of this Section 7.
(c) With
respect to each and every permitted sublease or subletting under the provisions
of this Sublease, it is further agreed:
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(i)
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No
subletting shall be for a term ending later than one day prior
to the Expiration Date or the earlier termination of this Sublease;
and
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(ii)
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Each
sublease shall expressly provide that it is subject and subordinate to
this Sublease and to the matters to which this Sublease is or shall be
subordinate and that, in the event of termination, re-entry or
dispossession by Sublandlord under this Sublease Sublandlord may, at its
option, take over all of the right, title and interest of Subtenant, as
sub-Sublandlord, under such sublease, and such subtenant shall, at
Sublandlord’s option, attorn to Sublandlord pursuant to the then executory
provisions of such sublease, except that Sublandlord shall not (x) be
liable for any previous act or omission or Subtenant under such sublease
but in no event shall such party be relieved of its obligations to cure
any continuing defaults, (y) be subject to any offset which theretofore
accrued to such subtenant against Subtenant, or (z) be bound by any
previous modification of such sublease not consented to by Sublandlord
except that Sublandlord shall be bound by previous approvals granted to
Subtenant under this Sublease, including approvals of Alterations and/or
assignments and sublettings or by any advance payment of more than one
month’s rent unless actually received by
Sublandlord.
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(d) The
parties hereto herby acknowledge that this Sublease is subject and subordinate
to the Master Lease and to the matters to which the Master Lease is or shall be
subordinate, and that in the event of termination, re-entry or dispossession by
Master Landlord under the Master Lease, Master Landlord may, at its option, take
over all of the right, title and interest of Sublandlord, as sub-Sublandlord,
under this Sublease, and Subtenant shall, at Master Landlord’s option, attorn to
Master Landlord pursuant to the then executory provisions of this Sublease for
the balance of the Term on the terms and conditions set forth herein, except
that Master Landlord shall not (i) be liable for any previous act or omission of
Sublandlord under this Sublease but in no event shall such party be relieved of
its obligations to cure any continuing defaults; (ii) be subject to any offset
which theretofore accrued to Subtenant against Sublandlord; or (iii) be bound by
any previous modification of this Sublease except that Master Landlord shall be
bound by previous approvals granted to Sublandlord under the Master Lease,
including approvals of Alterations and/or assignments and sublettings or by any
advance payment of more than one month’s rent unless actually received by Master
Landlord. In addition, the parties hereto hereby acknowledge that if
Master Landlord notifies Subtenant that Sublandlord has defaulted in its
obligation to pay any amount due and payable by Sublandlord under the Master
Lease, Master Landlord is authorized to collect, and Subtenant is authorized to
pay (without independently verifying that Sublandlord is actually in default)
any amount due or accruing from Subtenant (or any other occupant of the
Subleased Premises) and to apply the net amounts collected to such amount owed
under the Master Lease in such priorities as Master Landlord may determine, and
that Master Landlord’s receipt or acceptance of any payments from Subtenant (or
any other occupant of the Subleased Premises) shall not be deemed or construed
as releasing Sublandlord from Sublandlord’s obligations under the Master Lease
or the acceptance of Subtenant (or any other occupant of the Subleased Premises)
as a direct tenant. Sublandlord shall not voluntarily terminate the
Master Lease. Sublandlord shall not be liable for the termination of
this Sublease due to the termination of the Master Lease under the terms of the
Master Lease unless such termination of this Sublease: (i) shall have arisen out
of a default under the Master Lease by Sublandlord not arising out of a default
hereunder by Subtenant; or (ii) shall have been voluntarily effected by
Sublandlord in violation of the immediately preceding sentence.
8. Services; Right to Cure
Defaults; Remedies; Consents.
(a) Notwithstanding
anything to the contrary set forth in this Sublease, Sublandlord shall have no
obligation to render any services (including elevator facilities, HVAC, water,
cleaning or security services), repairs or restorations to Subtenant of any
nature whatsoever or to expend any monies for the preservation, maintenance,
restoration or repair of the Building, the Subleased Premises or any portion
thereof (unless such failure is due to Sublandlord’s default under the Master
Lease), and Subtenant shall look solely to the Master Landlord for the
furnishing of any services, maintenance, restoration or repairs with respect to
the Building or the Subleased Premises to which Subtenant may be entitled, provided that
Sublandlord shall cooperate (at Subtenant’s sole cost and expense) with
Subtenant to enforce the rights of Sublandlord under the Master Lease
(including, without limitation, instituting and prosecuting legal
proceedings). Sublandlord shall in no event be liable to Subtenant
nor shall the obligations of Subtenant hereunder be impaired or the performance
thereof excused because of any failure or delay on the Master Landlord’s part in
furnishing services with respect thereto. If Master Landlord shall
default in any of its obligations to Sublandlord with respect to the Subleased
Premises, Subtenant shall have the right to exercise in its own name and that of
Sublandlord (as Sublandlord’s attorney-in-fact) all the rights to enforce
compliance on the part of Master Landlord as are available to Sublandlord with
respect to the Subleased Premises. Sublandlord hereby agrees to
cooperate with (including, at Subtenant’s request, exercising reasonable
commercial efforts to enforce Master Landlord’s obligations to Sublandlord under
the Master Lease) and execute, all at Subtenant’s expense, all instruments
reasonably required by Subtenant to enforce such compliance, and Subtenant
hereby agrees to indemnify, defend and hold Sublandlord harmless of and from any
and all damages, liabilities, obligations, costs, claims, losses, demands,
expenses and injuries, including reasonable and actually incurred attorney’s
fees and expenses, which may be incurred by Sublandlord in or as a result of
such cooperation and execution. Any amount of recovery resulting from
such enforcement obtained by either Subtenant or Sublandlord shall be the
property of Subtenant. Notwithstanding the foregoing, in all cases
where Sublandlord shall be entitled to an abatement, set-off or deduction of any
rent payable by it pursuant to the provisions of the Master Lease by reason of a
failure by Master Landlord to perform its obligations under the Master Lease to
furnish services or make repairs to the Premises or otherwise, Base Rent payable
by Subtenant shall be correspondingly abated or reduced under this
Sublease.
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(b) If
Subtenant fails to perform any of its obligations hereunder, Sublandlord may
cure such default, after the expiration of any applicable notice and grace
period provided for in Article 20 of the Master Lease (as incorporated herein),
and Subtenant shall pay the cost of such cure, including reasonable attorneys’
fees and expenses, as Additional Rent, within three (3) days after receiving
Sublandlord’s statement therefor. Sublandlord shall have the right
(but shall not be obligated) to enter the Subleased Premises, at reasonable
times and upon reasonable notice, to inspect the Subleased Premises or to cure
any defaults by Subtenant.
(c) The
taking of any action by Subtenant, the occurrence of any event in regard to
Subtenant or the failure to act by Subtenant which, in each case, would be a
default under any provision of the Master Lease, if taken by or if occurring or
if failing to occur in regard to or by Sublandlord (as tenant under Master
Lease) shall entitle Sublandlord to take all action with regard to Subtenant
under this Sublease which Master Landlord is then permitted to take against
Sublandlord after the applicable notice and cure periods under the terms of the
Master Lease.
(d) Wherever
in this Sublease Subtenant is required to obtain Sublandlord’s consent,
Subtenant understands that Sublandlord must obtain the written consent of Master
Landlord. If the Master Landlord should refuse such consent,
Sublandlord shall be released of any obligation to grant its
consent. Sublandlord agrees to make a request to Master Landlord for
the consent of Master Landlord, and to cooperate in good faith with Subtenant,
and to use commercially reasonable efforts in attempting to secure the consent
of Master Landlord. If under the Master Lease, any right or remedy of
Sublandlord or any duty or obligation of Master Landlord is subject to or
conditioned upon Sublandlord’s making any demand upon Master Landlord or giving
any notice or request to Master Landlord then, if Subtenant shall so request,
Sublandlord shall, promptly (but in no event later than four (4) business days)
after Sublandlord’s receipt of such request, make such demand or give such
notice or request, except that to the extent Master Landlord consents thereto,
Subtenant may make requests for overtime services to which Subtenant is entitled
pursuant to this Sublease directly to Master Landlord (and if Master Landlord
does not consent thereto, Sublandlord shall make requests for such overtime
services to Master Landlord as soon as reasonably practicable after
Sublandlord’s receipt of Subtenant’s requests therefor). All consents
or approvals, whether of Master Landlord, Sublandlord or Subtenant, referred to
in or contemplated by this Sublease, shall be in writing.
-10-
9. Insurance.
Subtenant shall maintain, at its sole
cost and expense throughout the Term of this Sublease, insurance in the types
and amounts, and subject to the conditions, as are required pursuant to Article
14 of the Master Lease, which have been incorporated herein by
reference. All such policies shall name Sublandlord and Master
Landlord, and any other persons required pursuant to the Master Lease, as
additional insured parties and shall be endorsed as required under the Master
Lease. Subtenant shall furnish said policies (or certificates
evidencing the required coverage) to Sublandlord, together with such evidence as
Sublandlord shall reasonably deem satisfactory of the payment of premiums
thereon, promptly following an execution of this Sublease
10. Quiet
Enjoyment.
Sublandlord acknowledges that pursuant
to the incorporation by reference of Section 31.11 of the Master Lease,
Subtenant is entitled to the quiet enjoyment of the Subleased Premises during
the Term.
11. Sublandlord’s
Representations and Covenants.
Sublandlord hereby represents and
warrants to, and covenants with, Subtenant that: (i) Sublandlord is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York and is duly qualified and authorized to sublease the
Subleased Premises; (ii) Sublandlord has full power, authority and right to
execute and deliver this Sublease and to observe and perform the provisions
hereof, and the execution and delivery of this Sublease and the obligations of
Sublandlord have been duly authorized by all necessary action on the part of
Sublandlord; (iii) this Sublease has been duly executed and delivered by
Sublandlord and, subject to the receipt of the Master Landlord’s consent,
constitutes legal, valid and binding obligations of Sublandlord, enforceable
against Sublandlord in accordance with the terms hereof; (iv) the Master Lease
is a valid and binding agreement of Sublandlord and is in full force and effect,
enforceable in accordance with the terms thereof; (v) neither Sublandlord nor,
to the knowledge of Sublandlord, Master Landlord is in default or breach under
the terms of the Master Lease; (vi) Sublandlord shall not amend or modify the
Master Lease in a manner that would adversely affect the Subleased Premises or
the rights of Subtenant under this Sublease in any respect, waive any
obligations of Master Landlord under the Master Lease or surrender Sublandlord’s
estate or rights under the Master Lease, without first obtaining Subtenant prior
written consent, in each instance; (vii) Sublandlord shall promptly give to
Subtenant a copy of any notice received from, or given to, Master Landlord and
which is relevant to subtenant’s subtenancy hereunder; (viii) Sublandlord is the
sole tenant under the Master Lease and Sublandlord has not sublet all or any
part of the Subleased Premises pursuant to a sublease that will remain in effect
on the Commencement Date; (ix) a true and complete redacted copy of the Master
Lease (including all amendments thereto and modifications thereto) has been
given to Subtenant; (x) the Master Lease is in full force and effect; (xi)
Sublandlord has paid to Master Landlord all Base Rent and all additional rent
and other charges under the Master Lease with respect to which Sublandlord has
received an invoice; (xii) Sublandlord agrees to perform its obligations under
the Master Lease including, without limitation, Sublandlord’s obligation to pay
all sums due to Master Landlord thereunder; (xiii) there are no legal actions or
proceedings pending or, to Sublandlord’s knowledge, threatened against
Sublandlord directly affecting Sublandlord’s interest in the Master Lease as
tenant thereunder or directly relating to the Subleased Premises; and (xiv) to
Sublandlord’s knowledge, all Building systems serving the Subleased Premises are
in good working order.
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In
addition to Subtenant’s rights and Sublandlord’s obligations each specified
hereunder, if Sublandlord fails to perform or observe any of the terms and
conditions of the Master Lease to be observed or performed by Sublandlord, and
such failure on the part of Sublandlord (x) does not arise out of a default by
Subtenant under this Sublease and (y) shall continue until the date that is: (x)
in the case of a monetary default, one (1) business day prior to the expiration
of the applicable cure period under the terms of the Master Lease; or (y) in the
case of a non-monetary default, five (5) business days prior to the expiration
of the applicable cure period under the terms of the Master Lease, then in each
case Subtenant shall have the right, but not obligation, to make the payment
Sublandlord has failed to make or perform or otherwise cause compliance with the
provision of the Master Lease that is the subject of Sublandlord’s
failure. Sublandlord shall indemnify Subtenant for the reasonable,
actual out-of-pocket costs paid by Subtenant to so remedy defaults by
Sublandlord under the Master Lease. Notwithstanding anything to the
contrary set forth above, Sublandlord shall have no obligation to indemnify
Subtenant for any amounts incurred by Subtenant hereunder in connection with a
default by Sublandlord under the Master Lease if such default arises out of a
default by Subtenant under this Sublease.
12. Subtenant’s
Representations.
Subtenant represents and warrants to
Sublandlord that: (i) Subtenant is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is, or
as of the Commencement Date will be, duly qualified and authorized to sublease
the Subleased Premises and to do business in the State of California; (ii)
Subtenant has full corporate power, authority and right to execute and deliver
this Sublease and to observe and perform the provisions hereof, and the
execution and delivery of this Sublease and the obligations of Subtenant
hereunder have been duly authorized by all necessary corporate action on the
part of Subtenant; and (iii) this Sublease has been duly executed and delivered
by Subtenant and, subject to the receipt of the Master Landlord’s Consent,
constitutes legal, valid and binding obligations of Subtenant, enforceable
against Subtenant in accordance with the terms hereof.
-12-
13. Notices.
(a) All
consents, approvals, requests, notices copies or other communication
(collectively “Notices”)
required or desired to be delivered under this Sublease shall be in writing, and
transmitted by facsimile machine and/or email and simultaneously delivered by
reputable overnight courier, addressed to the parties at the following
addresses:
If to
Sublandlord:
000 Xxxxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With copies to:
Dechert LLP
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx,
Esq.
Facsimile: (000) 000-0000
If to
Subtenant:
Jefferies & Company,
Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx
Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
With copies to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx
LLP
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, Xxx
Xxxx 00000
Attention: Xxxx X. Xxxxxx,
Esq.
Facsimile: (000) 000-0000
-13-
Notice shall be deemed given on the
date of actual receipt by the addressee as evidenced by a receipt therefor, if
received on a business day, or the first business day following receipt, if
received on a non-business day, or when delivery is first refused, and in the
event of failure to deliver by reason of changed address of which no Notice was
given or refusal to accept delivery, as of the date of such
failure.
(b) Either
party may, by Notice pursuant to Section 13(a) above, change the address, person
or officer to which all Notices are to be sent thereafter.
Solely for the purpose of this
Sublease, wherever in the Master Lease a time is specified for the giving of any
notice or the making of any demand by Subtenant thereunder, such time is hereby
changed (for the purpose of this Sublease only) by adding four (4) business days
thereto, and wherever in the Master Lease a time is specified for the giving of
any notice or the making of any demand by Sublandlord thereunder, such time is
hereby changed (for the purpose of this Sublease only) by subtracting four (4)
business days therefrom. Wherever in the Master Lease a time is
specified within which Subtenant thereunder must give notice or make a demand
following an event, or within which Subtenant must respond to any notice,
request or demand previously given or made by Sublandlord thereunder, or to
comply with any obligation on Subtenant’s part thereunder, such time is hereby
changed (for the purpose of this Sublease only) by subtracting four (4) business
days therefrom. Wherever in the Master Lease a time is specified
within which Sublandlord thereunder must give notice or make a demand following
an event, or within which Sublandlord must respond to any notice, request or
demand previously given or made by Subtenant thereunder, or to comply with any
obligation on Sublandlord’s part thereunder, such time is hereby changed (for
the purpose of this Sublease only) by adding four (4) business days
thereto. It is the purpose and intent of the foregoing provisions to
provide Sublandlord with time within which to transmit to Master Landlord any
notices or demands received from Subtenant, and to transmit to Subtenant any
notices or demands received from Master Landlord. In no event,
however, shall the provisions of this paragraph operate to shorten any relevant
period to a period of less than two (2) business days.
14. Miscellaneous.
(a) The
covenants and agreements contained in this Sublease shall bind and inure to the
benefit of Sublandlord and Subtenant and their respective permitted successors
and assigns.
(b) The
captions or headings of paragraphs in this Sublease are inserted for convenience
only, and shall not be considered in construing the provisions hereof if any
question of intent should arise.
-14-
(c) If
any provisions of this Sublease shall be held to be invalid or unenforceable,
the validity and enforceability of the remaining provisions of this Sublease
shall not be affected thereby.
(d) Governing
Law; Consent to Jurisdiction.
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(i)
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This
Sublease shall be construed in accordance with, and governed by the laws
of the State of California.
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(ii)
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Sublandlord
hereby irrevocably submits, to the extent permitted by applicable law, to
the non-exclusive jurisdiction of the United States Courts for the
Northern District of California, and the courts of the State of California
located in San Francisco, California in any action or proceeding arising
out of or relating to this Sublease, and Sublandlord hereby irrevocably
agrees that all claims against it in respect of such action or proceeding
against Sublandlord may be heard and determined in such
courts. To the extent permitted by applicable law, Sublandlord
agrees that a final judgment obtained in any court described above in any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. To the extent that Sublandlord has or hereafter may
acquire any immunity from jurisdiction of any such court referred to in
clause (x) or (y) above or from any legal process (whether through service
or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, to the
extent permitted by applicable law, Sublandlord hereby irrevocably waives
such immunity in respect of its obligations under this Sublease.
Sublandlord herby irrevocably waives, to the extent permitted by
applicable law, any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens, that Sublandlord may now or hereafter have to the
bringing of any such action or proceeding in such respective courts
referred to in clauses (x) and (y)
above.
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(e) Jury
Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS SUBLEASE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(f) Counterparts. This
Sublease may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
(g) Effectiveness. Each
of the parties hereto acknowledges that, pursuant to the provisions of the
Master Lease, Sublandlord is required to obtain the Master Landlord’s written
consent and recognition agreement (“Master Landlord’s Consent”) to
this Sublease (the form of which is attached hereto as Exhibit D and made a
part hereof) and, accordingly, that the rights and obligations of Sublandlord
and Subtenant hereunder are expressly subject to Sublandlord obtaining Master
Landlord’s Consent. Sublandlord shall request the Consent from Master
Landlord promptly after the mutual execution and delivery of this Sublease,
provided that Sublandlord shall only be required to use commercially reasonable
efforts to obtain Master Landlord’s Consent. If Master Landlord’s
Consent cannot be obtained within thirty (30) days from the date hereof, either
Sublandlord or Subtenant may terminate this Sublease upon notice to the other
party, in which case, neither party shall have any further rights or obligations
hereunder thereafter. Each of Sublandlord and Subtenant agrees to execute and/or
deliver such documents and perform such other acts as may reasonably be
requested by Master Landlord in connection with the request for Master
Landlord’s Consent. In connection with obtaining Master Landlord’s
Consent, but in no event later than ten (10) days after the execution and
delivery by Sublandlord of this Sublease, Sublandlord shall deliver to Master
Landlord an unconditional and irrevocable letter of credit (the “Letter of Credit”), the
beneficiary of which shall be Master Landlord, in the amount reasonably
determined by Master Landlord and Sublandlord, representing the difference
between: (i) the sum of the Base Rent and additional rent (including, without
limitation, the Escalation Rent) payable by Sublandlord to Master Landlord under
the terms of the Master Lease; and (ii) the sum of the Base Rent and additional
rent (including, without limitation, Sublease Basic Operating Costs) payable by
Subtenant to Sublandlord under the terms of this Sublease, upon such terms and
in a form and issued by a bank, in each case reasonably satisfactory to Master
Landlord. If Sublandlord fails to deliver the Letter of Credit in
accordance with the immediately preceding sentence, Subtenant may terminate this
Sublease upon notice to Sublandlord, in which case, neither party shall have any
further rights or obligations hereunder thereafter.
-15-
(h) Security
Deposit.
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None.
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(i) Expansion
Space and Renewal Option. Subtenant hereby acknowledges and agrees that
the extension and expansion options available to Sublandlord pursuant to Article
33 and Article 34 the Master Lease, respectively, are personal to Sublandlord
and may not be exercised by Subtenant or by Sublandlord on Subtenant’s
behalf.
(j) Signage.
Subject to the provisions of the Master Lease and the approval of Sublandlord,
which approval shall not be unreasonably withheld, conditioned or delayed,
Subtenant shall have the right to place custom signage in the 24th Floor
elevator lobby. Subtenant shall also be entitled to the use Building
Directory Spaces to the extent allowed pursuant to the provisions of the Master
Lease.
(k) Parking. Subject
to the provisions of the Master Lease and the approval of the Master Landlord,
Subtenant shall have the right to four (4) parking spaces in the Building’s
parking garage at the prevailing market rate. The current market rate
is $400.00 per month per parking space.
-16-
(l) Entire
Agreement. This Sublease and Master Landlord’s Consent (x)
contains the entire agreement and understanding between Sublandlord and
subtenant with respect to the use and occupancy of the Subleased Premises by
Subtenant and (y) shall not be modified or amended or any term or provision
hereof waived or discharged except in a writing signed by the party against whom
such amendment, modification, waiver or discharge is sought to be
enforced.
The
rest of this page is left intentionally blank.
-17-
IN WITNESS WHEREOF, the parties hereto
have executed the Sublease as of the day and year first above
written.
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Sublandlord:
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BROADPOINT
SECURITIES GROUP, INC., a New York
corporation
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By: /s/ Xxx
Xxxxxxxxxxxx
Name: Xxx
Xxxxxxxxxxxx
Title: Chairman
& CEO
Subtenant: XXXXXXXXX
& COMPANY, INC.,
a Delaware corporation
By: /s/ Xxxxx X.
Xxxxx
Name: Xxxxx X.
Xxxxx
Title: SVP Corporate
and Real Estate Services
-18-
Exhibit
A
Subleased
Premises
Exhibit
B
FF&E
Inventory
Exhibit
C
Master
Lease
Exhibit
D
Consent and Recognition
Agreement
