CONSENT TO SUBLEASE
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AGREEMENT (this "Agreement") made as of October
23, 1998, among AMTAD PROPERTY, INC., a Delaware
corporation, having an office at 000 X. Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, XX 00000 ("Landlord"), BARCLAYS
BANK PLC, a banking corporation organized under the laws
of England, having an address at 000 Xxxxxxxx, Xxxx:
Facilities Management and Corporate Services, Xxx Xxxx,
Xxx Xxxx, 00000 ("Tenant"), and DVL, Inc., a Delaware
corporation, having an office at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx ("Subtenant").
By lease dated as of February 9, 1998, Landlord's
predecessor-in-interest did lease to Tenant's
predecessor-in-interest and Tenant's predecessor-in-
interest did hire from Landlord's predecessor-in-interest
certain premises including the leasable area of the sixth
(6th) and seventh (7th) floors of the building known as
Heron Tower, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
which demised premises are more particularly described in
such lease (such lease, as same has been and may be from
time to time modified and assigned, the "Lease"). All
capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Lease.
Tenant has requested that Landlord consent to
the subletting by Tenant to Subtenant, pursuant to a
sublease (the "Sublease") dated as of August 1, 1998, a
copy of which is attached hereto, of certain space
described in the Sublease (the "Sublet Space").
Landlord hereby consents to the subletting by
Tenant to Subtenant pursuant to the Sublease, such
consent being subject to and upon the following terms and
conditions, to each of which Tenant and Subtenant hereby
expressly agree:
1. Notwithstanding anything to the contrary,
(i) nothing contained in this Agreement shall operate as
a consent or approval or ratification by Landlord to or
of any of the provisions of the Sublease or as a
representation or warranty by Landlord, (ii) Landlord is
not a party to the Sublease and is not bound by the
provisions thereof, and (iii) Landlord has not, and will
not, review or pass upon any of the provisions of the
Sublease.
2. Nothing contained in this Agreement shall
be construed to (i) modify, waive, impair or affect any
of the provisions, covenants, agreements, terms or
conditions contained in the Lease, (ii) waive any present
or future breach or default under the Lease or any rights
of Landlord against any person, firm, association or
corporation liable or responsible for the performance of
the Lease, or (iii) enlarge or increase Landlord's
obligations or Tenant's or Subtenant's rights under the
Lease or otherwise, and all provisions, covenants,
agreements, terms and conditions of the Lease are hereby
declared by Tenant and Subtenant to be in full force and
effect.
3. Landlord's consent under this Agreement is
not assignable or transferrable in connection with any
other subletting by Tenant or Subtenant.
4. The Sublease is, and shall be, subject and
subordinate at all times to the Lease and to all of the
provisions of the Lease (including, but not limited to,
the Rules and Regulations which are a part thereof) and
to each and every matter which the Lease is subordinate
to, including, without limitation, all mortgages and
underlying leases (including modifications and extensions
thereof) now or hereafter affecting the Building and/or
the land on which the Building is located, and Tenant and
Subtenant shall not do, permit or suffer anything to be
done in, or connection with Subtenant's use or occupancy
of, the Sublet Space which would violate any of the
provisions of any of the foregoing.
5. Neither the Sublease nor Landlord's consent
under this Agreement shall release or discharge Tenant
from any liability or obligation under the Lease, and
Tenant shall remain liable and responsible for the full
performance and observance of all of the provisions of
the Lease on the part of Tenant to be performed or
observed with the same force and effect as though no
sublet had been made. Any breach or violation of any
provision of the Lease (whether by act or by omission) by
Subtenant shall be deemed to be, and shall constitute, a
default by Tenant in fulfilling such provision, and, in
such event, Landlord may exercise its rights and remedies
under the Lease in the case of such a default.
6. Landlord's consent under this Agreement is
not, and shall not be construed as, a consent by Landlord
to any assignment, reassignment, further or other
subletting, or other transfer by Tenant or Subtenant.
The Sublease shall not be assigned, reassigned,
transferred, surrendered, renewed or extended, nor shall
the Demised Premises or the Sublet Space or any part of
either be sublet or sub-sublet, without prior written
consent of Landlord thereto in each instance. If
Subtenant is a corporation, partnership or other entity,
the prohibition on assigning the Sublease shall be deemed
breached if there occurs a change in the ownership or
control of the Subtenant (however accomplished, whether
in a single transaction or in a series of related or
unrelated transactions) with the result that the
beneficial and record ownership in and to, and/or control
of Subtenant shall no longer be identically held in the
same proportion by the benefical record owners of
Subtenant as of the date Subtenant executed the Sublease.
7. Subject to all of the provisions, covenants,
agreements, terms and conditions of the Lease, the Sublet
Space shall be used solely as specified in and in
compliance with Articles 2 and 45 of the Lease and for no
other purpose (except that any reference to
"international and domestic private banking services and
other banking business" in Article 2 shall be deleted as
to Subtenant).
8. In addition to the obligations set forth in
Paragraph 2 hereof, and in no way limiting the same,
tenant and Subtenant shall be jointly and severally
liable for all bills rendered by Landlord for charges
incurred by or imposed upon Subtenant for services
rendered and materials supplied to the Sublet Space by
Landlord whether requested by Tenant and/or Subtenant.
Nothing in this Paragraph 8 shall require Landlord to
respond to, or comply with, any requests for services or
materials made by Subtenant. Landlord's decision with
respect to any such request shall be in its sole
discretion.
9. Tenant and Subtenant represent and warrant
to Landlord that the copy of the Sublease attached hereto
is a true and correct copy thereof and that the Sublease
has not been amended, changed or modified.
Notwithstanding anything to the contrary contained in the
Lease or the Sublease, Tenant and Subtenant shall not,
without the prior written consent of Landlord in each
instance, execute any amendment, change or modification
of the Sublease. Tenant and Subtenant further represent
and warrant to Landlord that the sublease is the only
agreement between Tenant and Subtenant with respect to
the Sublet Space and Tenant is not receiving
consideration (money or otherwise) in connection with the
Sublease other than as set forth therein.
10. Upon the expiration or termination of the
term of the Lease during the term of the Sublease by
reason of condemnation or eminent domain or destruction
by fire or other cause, or if the Lease expires or is
terminated for any other reason or is surrendered by
Tenant to Landlord and Landlord, in either such case,
does not exercise either of its elections pursuant to
Paragraph 11 hereof, the Sublease and its term shall
expire and come to an end as of the effective date of
such expiration, termination or surrender and Subtenant
shall vacate the Sublet Space on or before such date. If
Subtenant does not so vacate, Landlord shall be entitled
to all of the rights and remedies available to a landlord
against a tenant holding over after the expiration of a
term.
11. If the Lease expires or is terminated
during the term of the Sublease for any reason
(including, without limitation, a rejection of the Lease
under the Bankruptcy Code) other than condemnation or
eminent domain or destruction by fire or other type of
casualty, or in case of the surrender of the Lease by
Tenant to Landlord during the term of the Sublease,
Landlord, in its sole discretion, upon notice to Tenant
and Subtenant, given within sixty (60) days after the
effective date of such expiration, termination or
surrender, without any additional or further agreement of
any kind on the part of Subtenant, may elect to (i)
continue the Sublease, with the same force and effect as
if Landlord as lessor and Subtenant had entered into a
lease as of the effective date of the expiration,
termination or surrender of the Lease, for a term equal
to the then unexpired term of the Sublease and containing
the same provisions as those contained in the Sublease,
and Subtenant shall attorn to Landlord pursuant to the
then executory provisions of the Sublease, and Landlord
shall have the same rights and remedies with respect to
any breach or default under the Sublease as Tenant had or
would have had if the Lease had not expired or been
terminated or surrendered, or (ii) declare effective as
of the effective date of the expiration, termination or
surrender of the Lease, a lease with Landlord as lessor
and Subtenant as lessee for a term equal to the then
unexpired term of the Sublease containing the same
provisions as those contained in the Sublease, and
Subtenant shall adhere to and be bound by such lease,
which, if the Sublease is then still in existence, shall
supersede the Sublease and be in substitution therefor.
In neither event, however, shall Landlord be (a) liable
for any act or omission of Tenant, (b) subject to any
credit, offset, claim, counterclaim, demand or defense
which Subtenant may have or have had against Tenant, (c)
bound by any amendment, change or modification of the
Sublease not consented to in writing and signed by
Landlord or by any rent or additional rent or other
payment which Subtenant might have paid in advance to
Tenant or be liable for any security deposit (except to
the extent actually received by Landlord), (d) bound by
any covenant of Tenant to undertake or complete any
construction of the Sublet Space or any portion thereof,
(e) responsible for any monies owing by Landlord to the
credit of Tenant or (f) required to remove any person
occupying the Sublet Space or any part thereof. In the
event that Landlord does not elect to continue the
Sublease or declare effective a new lease between
Landlord and Subtenant, then Landlord shall have the
right to terminate the Sublease at any time after such
expiration, termination or surrender. In the event that
the Sublease is assigned prior or subsequent to any
attornment, Subtenant agrees that it shall remain jointly
and severally liable (along with all future tenants under
the Sublease) for the performance of the Sublease.
12. Any breach or violation of any provision
of this Agreement (whether by act or by omission) by
Tenant or Subtenant shall be deemed to be and shall
constitute a default by Tenant in fulfilling the
provisions of the Lease, and, in such event, Landlord may
exercise its rights and remedies under the Lease in case
of such a default.
13. In the event that Tenant shall be in
default under the Lease which default remains uncured
upon the expiration of all applicable grace and cure
periods and Landlord gives notice of any such default to
Subtenant (Landlord hereby agreeing to give a copy of
such notice to Tenant), then, from the date upon which
Landlord gives such notice to Subtenant until such time
as Landlord rescinds said notice, Subtenant shall make
all payments of fixed rent and additional rent/charges
due under the Sublease directly to Landlord by unendorsed
check made payable solely to Landlord at the address
designated by Landlord in said notice. Any such payments
shall be credited, upon collection only, by (a) Landlord
against any sums due Landlord by Tenant under the Lease
in such manner and in such order as Landlord may elect,
in its sole discretion, and (b) Tenant against any sums
due Tenant by Subtenant under the Sublease. Tenant
hereby irrevocably authorizes payment by Subtenant to
Landlord pursuant to this Paragraph 13. Landlord may
exercise its right under this Paragraph 13 on one or more
occasions, and from time to time, as often as Landlord
desires, and the rights granted to it hereunder shall
apply in each event of default by Tenant under the Lease.
This Paragraph 13 shall in no event limit or impair other
rights and remedies which may be available to Landlord as
a result of any such default by Tenant. The acceptance
of any such payments from Subtenant shall not be deemed
an acceptance of Subtenant as tenant under the Lease or
an attornment to Landlord under the Sublease nor shall it
release tenant from any of its obligations under the
Lease.
14. Except to the extent expressly permitted
under, and subject to and in accordance with the terms
and provisions of, the Lease, neither Subtenant, nor
Tenant on behalf of Subtenant, shall make any changes,
alterations, additions or improvements to the Sublet
Space without the prior written consent of Landlord in
each instance.
15. Any notice or any statement or communication
which any party hereto may desire or be required to give
or render to any other party hereto under or with respect
to this Agreement shall be given or rendered shall be
effective only if given in writing in accordance with the
terms of the Lease. All notices shall be sent to
Landlord at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000.
16. This Agreement shall be construed and
enforced in accordance with the laws of the State of New
York. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter
hereof. This Agreement may not be changed, modified,
terminated or discharged unless such change,
modification, termination or discharge is in writing and
signed by Landlord. Each right and remedy of Landlord
provided for in this Agreement or in the Lease shall be
cumulative and shall be in addition to every other right
and remedy provided for therein or now or hereafter
existing at law or in equity or by statute or otherwise,
and the exercise or beginning of the exercise by Landlord
of any one or more of the rights or remedies so provided
for or existing shall not preclude the simultaneous or
later exercise by Landlord of any or all other rights or
remedies so provided for or so existing. If any one or
more of the provisions contained in this Agreement shall
be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be
affected or impaired thereby.
17. The validity and enforceability of this
Agreement is expressly conditioned upon there being no
default existing under the Lease at the commencement of
the term of the Sublease. This consent shall not be
binding upon Landlord unless and until it is signed by
Landlord. This consent may be executed in any number of
counterparts, all of which taken together shall
constitute one and the same original, and the execution
of separate counterparts by Landlord, Tenant and
Subtenant shall bind Landlord, Tenant and Subtenant as if
they had each executed the same counterpart.
18. Tenant and Subtenant agree that Landlord is
not responsible for the payment of any commissions or
fees in connection with the Sublease and/or the
transactions contemplated under this Agreement
(including, without limitation, in the event that
Landlord elects to either continue the Sublease or
declare effective a new lease between Landlord and
Subtenant pursuant to Section 11 of this Agreement) and
Tenant and Subtenant each, jointly and severally,
defends, indemnifies and holds harmless Landlord from and
against any and all (a) claims of and liabilities to any
broker(s), finder(s) and/or any other person(s) regarding
fees or commissions alleged to be due as a result of the
granting of this consent, the execution of the Sublease,
and/or such continuation of the Sublease or such
effectiveness of a new lease and (b) loss, cost, expense
or damage suffered by Landlord relating to any such
claims and liabilities.
19. In case of any conflict between the
provisions of this Agreement and the provisions of the
Lease, the provisions of this Agreement shall prevail
unaffected by the Lease, and any conflicting or
inconsistent terms, covenants and conditions of the Lease
shall be deemed modified to conform with the terms,
covenants and conditions of this Agreement. In case of
any conflict between the provisions of the Lease and the
provisions of the Sublease, the provisions of the Lease
shall prevail unaffected by the Sublease, and any
conflicting or inconsistent terms, covenants and
conditions of the Sublease shall be deemed modified to
conform with the terms, covenants and conditions of the
Lease.
20. Tenant and Subtenant jointly and severally
certify to Landlord and agree that (i) the Lease is in
full force and effect and is hereby ratified and
confirmed in all respects, (ii) neither Tenant nor
Subtenant has any offsets, counterclaims or defenses to
the enforcement of the Lease, (iii) no default on the
part of Landlord or event which, with the giving of
notice or the passage of time, or both, could constitute
a default or an event of default on the part of Landlord
or otherwise give rise to any remedies of Tenant exist or
has occurred, and (iv) all of the representations and
warranties of Tenant set forth in the Lease are hereby
repeated and are true and correct in all material
respects as if made again as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have
duly executed this Agreement as of the date set forth at
the outset of this Agreement.
Landlord
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AMTAD PROPERTY, INC.
By:
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Name:
Title:
Tenant
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BARCLAYS BANK PLC
By:
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Name:
Title:
Subtenant
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DVL, INC.
By:
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Name:
Title:
