SUBLEASE between NATIONAL FINANCIAL PARTNERS CORP., Sublessor and KEEFE, BRUYETTE & WOODS, INC., Subtenant SUBLEASED PREMISES: Entire 11th Floor New York, New York 10019 DATED: August 31, 2007
Exhibit
10.1
SUBLEASE
between
NATIONAL
FINANCIAL PARTNERS CORP.,
Sublessor
and
XXXXX,
XXXXXXXX & XXXXX, INC.,
Subtenant
SUBLEASED
PREMISES:
Entire
11th
Floor
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
DATED:
August 31, 2007
SUBLEASE
THIS
SUBLEASE, dated as of this 31st day of August, 2007, between NATIONAL FINANCIAL
PARTNERS CORP., a Delaware corporation (“Sublessor”), having an office at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXXXX, XXXXXXXX &
XXXXX, INC., a New York corporation (“Subtenant”), having an office at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WITNESSETH:
WHEREAS,
Sublessor is the tenant under that certain Agreement of Lease (the “Prime
Lease”), dated September 9, 2004, between The Equitable Life Assurance
Society of the United States and ELAS Securities Acquisition Corp.
(collectively, “Prime Landlord”), as landlord, and National Financial
Partners Corp., as tenant, for all of the rentable space on the 11th floor
(the
“Premises”) of the building (the “Building”) located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx;
WHEREAS,
a true and complete copy of the Prime Lease (with certain numbers, dollar
amounts, percentages and other sections that are not relevant to Subtenant
blackened out) has been heretofore delivered to Subtenant and is attached
hereto
as Exhibit A; and
WHEREAS,
Sublessor and Subtenant are desirous of entering into a sublease for the
entire
Premises demised to Sublessor pursuant to the Prime Lease, as shown on
Exhibit B attached hereto (the “Subleased Premises”).
2
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and
for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties hereto mutually covenant and agree as
follows:
1.
Demise of Subleased Premises. Sublessor hereby subleases and demises the
Subleased Premises to Subtenant, and Subtenant hereby hires and subleases
the
Subleased Premises from Sublessor, for the term herein stated, for the rent
herein reserved, and upon and subject to the covenants, agreements, terms,
conditions, and provisions hereinafter set forth.
2.
Use
of Subleased Premises. Subtenant and its affiliates and/or subsidiaries
shall have the right to use and occupy the Subleased Premises only for general
and executive offices in connection with their respective businesses,
commensurate with the quality and character of the Building (including in
each
instance, uses incidental thereto) and for no other purposes.
3.
Term. The term (the “Term”) of this Sublease shall commence on the
date which is five (5) days after the date on which Sublessor notifies the
Subtenant in writing that the Subleased Premises are vacant and available
for
occupancy in compliance with the terms and provisions of Article 10,
subparagraph (a) hereof (the “Commencement Date”); provided that in
no event shall the Commencement Date occur prior to completion by Sublessor
of
all items of Sublessor’s Work referred to in Exhibit C hereto, which Sublessor’s
Work shall be performed at the sole expense of Sublessor. The Term shall
expire,
unless sooner terminated pursuant to any term or provision hereof, on
August 14, 2015 (the “Expiration Date”). If for any reason the
Commencement Date shall not have occurred on or prior to June 1, 2008, the
Rent Commencement Date determined pursuant to the provisions of
Section 4(a) hereof shall be adjourned for a number of days equal to the
sum of (i) one (1) additional day for each day that
3
occurs
after June 1, 2008 until the earlier of (a) July 31, 2008, or
(b) the Commencement Date, and (ii) if for any reason the Commencement
Date shall not have occurred on or prior to August 1, 2008, the Rent
Commencement Date shall be adjourned for two (2) additional days for each
day that occurs on or after August 1, 2008 until the Commencement Date
occurs. In addition, in the event the Commencement Date shall not have occurred
on or prior to September 1, 2008 (the “Outside Date”) Subtenant may
give Sublessor notice (the “Termination Notice”) of Subtenant’s intent to
terminate this Sublease, and if the Commencement Date shall not have occurred
on
or before the date that is thirty (30) days following the delivery of the
Termination Notice, this Sublease shall terminate on the date that is thirty
(30) days following the delivery of the Termination Notice, and upon such
termination neither party hereto shall have any rights or obligations pursuant
to this Sublease.
Except
as
specifically provided herein, Subtenant waives any right to rescind this
Sublease under Section 223-a of the New York Real Property law or any
successor statute of similar nature and purpose then in force and further
waives
the right to recover any damages which may result from Sublessor’s inability to
deliver possession of the Subleased Premises on that date set forth in this
Section for the commencement of the Term.
4.
Sublease Rent.
(a)
Subtenant shall pay to Sublessor a fixed annual rent (the “Sublease
Rent”) as follows: (i) for the period commencing on the Rent
Commencement Date and ending on the last day of the month in which the fifth
(5th) anniversary
of the Rent Commencement Date shall occur (the “First Rent Period Expiration
Date”), the Sublease Rent shall be payable at the rate of Three Million
Twenty-Three Thousand Six Hundred Seventy-Four ($3,023,674.00) Dollars per
annum
and (ii) for the period commencing on the day after the First Rent Period
Expiration Date
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and
ending on the Expiration Date, the Sublease Rent shall be payable at the
rate of
Three Million One Hundred Ninety-Nine Thousand Four Hundred Sixty-Nine
($3,199,469.00) Dollars per annum. The Sublease Rent shall be payable in
equal
monthly installments, in advance on the first day of the month for which
such
rent is due. Notwithstanding the foregoing, Subtenant’s obligation to pay
Sublease Rent shall not commence until the day (the “Rent Commencement
Date”) which, subject to adjustment pursuant to the provisions of Article
3
hereof, shall be the day next following the three (3) month anniversary of
the Commencement Date.
(b)
The
Sublease Rent, additional rent, and other charges herein reserved or payable
by
Subtenant, shall be paid to Sublessor at the address for Sublessor set forth
in
Section 18 hereof or at such other place as Sublessor may designate in a
written notice to Subtenant, in lawful money of the United States of America,
as
and when the same shall become due and payable, pursuant to the provisions
of
this Sublease without any deduction, set-off, or abatement whatsoever, except
as
expressly permitted hereunder. Where no other date is specified for the payment
of additional rent required to be paid by Subtenant pursuant to the provisions
of this Sublease, same shall be payable thirty (30) days after Subtenant
shall have received a written demand from Sublessor reasonably identifying
and
computing the amount due.
(c)
No
payment by Subtenant or receipt by Sublessor of any lesser amount than the
amount stipulated to be paid hereunder shall be deemed other than on account
of
the earliest stipulated rent or additional charges; nor shall any endorsement
or
statement on any check or letter be deemed an accord and satisfaction, and
Sublessor may accept any check or payment without prejudice to Sublessor’s right
to recover the balance due or to pursue any other remedy available to
Sublessor.
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5.
The
Prime Lease.
(a)
This
Sublease shall be subject (except as hereinafter expressly provided) to all
of
the terms, covenants, conditions, and provisions of the Included Provisions
(hereinafter defined in Section 5(e) of this Sublease), and to all
mortgages and ground leases to which the Prime Lease is subordinate, as set
forth in Article 7 of the Prime Lease. This provision is self-operative but
Subtenant shall, at Sublessor’s request, promptly execute any instrument
reasonably requested by Sublessor or Prime Landlord to evidence or confirm
same.
(b)
Except as specifically provided herein, the terms, covenants and conditions
of
the Included Provisions that relate to periods during the Term hereof, are
incorporated herein by reference, so that each and every term, covenant and
condition of the Included Provisions binding or inuring to the benefit of
Prime
Landlord thereunder, and applicable to the public areas of the Building,
or the
Subleased Premises shall, in respect of this Sublease, bind or inure to the
benefit of Sublessor, and each and every term, covenant and condition of
the
Included Provisions binding or inuring to the benefit of the tenant thereunder
shall, in respect of this Sublease, bind or inure to the benefit of Subtenant,
with the same force and effect as if such terms, covenants and conditions
were
completely set forth in this Sublease, and as if the words “Landlord” and
“Tenant”, or words of similar import, wherever the same appear in
the
Included Provisions, were construed to mean, respectively, “Sublessor”
and “Subtenant” in this Sublease, as if the word “Term” wherever
the same appears in the Included Provisions, were construed to mean the
“Term” of this Sublease, as if the words “Premises”, or words of
similar import, wherever the same appear in the Included Provisions, were
construed to mean “Subleased Premises” in this Sublease, as if the word
“Lease” or words of similar import, wherever the same appear in the
Included Provisions, were construed to mean this “Sublease” and as if the
words
6
“fixed
rent” and “additional rent” or words of similar import, wherever the
same appear in the Prime Lease, were construed to mean “Sublease Rent”,
and “additional rent”, as the case may be, in this Sublease, except to
the extent that they are modified by the provisions of this Sublease and
with
the following exceptions: (1) Subtenant shall have no options to rent
additional space in the Building; and (2) Subtenant shall have no right to
further sublet or assign the Subleased Premises or any portion thereof, except
in accordance with the terms and conditions of the Included Provisions. To
the
extent that the Included Provisions may conflict or be inconsistent with
the
provisions of this Sublease, whether or not such inconsistency is expressly
noted herein, the provisions of this Sublease shall prevail. The time limits
contained in the Included Provisions for the giving of notices, making demands
or the performing of any act, condition or covenant on the part of the tenant
thereunder, or for the exercise by the tenant thereunder of any right, remedy
or
option, are changed for the purpose of incorporation herein by reference
by
shortening same in each instance by two (2) business days, provided,
however, that if the time limit contained in the Included Provisions is five
(5) days or less, the time limit shall be shortened by one
(1) business day, so that Subtenant shall have a lesser time to observe or
perform hereunder than Sublessor has as the tenant under the Included
Provisions. If Subtenant receives any notice or demand from Prime Landlord
under
the Prime Lease with respect to the Subleased Premises, the Subtenant shall
promptly give a copy thereof to Sublessor and if the Sublessor receives any
notice or demand from Prime Landlord with respect to the Prime Lease, this
Sublease or the Subleased Premises, the Sublessor shall promptly give a copy
thereof to Subtenant.
(c)
In
the event of any default by Subtenant which is not cured in the applicable
grace
period after notice is given, Sublessor shall have the same rights and remedies
against Subtenant under this Sublease as are available to Prime Landlord
against
Sublessor under the provisions of the Prime Lease.
7
(d)
So
long as Subtenant shall not be in default hereunder beyond any applicable
period
of grace after notice, Sublessor covenants and agrees to timely (i) pay all
payment of rental amounts due and payable to Prime Landlord pursuant to the
Prime Lease; (ii) maintain the Letter of Credit in full force and effect in
compliance with Article 31 of the Primes Lease; and (iii) perform and
observe all of its other obligations under the Prime Lease that are not
obligations of Subtenant hereunder; and (iv) not amend, or consent to any
modification or termination of the Prime Lease without Subtenant’s prior
approval.
(e)
The
following Articles and Sections of the Prime Lease shall not be incorporated
herein by reference and are herein referred to as the “Excluded
Provisions”: all Definitions that are not applicable to the Included
Provisions, Sections 1.1, 1.2, 3.6, Article 7, 9.3, Article 20, 27.2, 27.3,
27.4, the last sentence in Article 22, Article 26, Article 31, Article 34,
Section 37.2 except for the first sentence, Section 37.10 and Article
39. All of the terms and provisions of the Prime Lease that are not Excluded
Provisions are herein referred to as the “Included
Provisions”.
Notwithstanding
the exclusion of an Article or Section of the Prime Lease from incorporation
by
reference herein, Sublessor shall perform all of its obligations thereunder,
enforce Sublessor’s rights under any Excluded Provisions which requires Prime
Landlord to provide services to the Subleased Premises, or to maintain the
Building or building systems, to the extent any such Article or Section affects
the Subleased Premises.
8
(f)
For
the purposes of incorporation herein as between Sublessor and Subtenant,
the
terms of the Included Provisions are subject to the following additional
modifications:
(i)
In
all provisions of the Included Provisions (under the terms thereof and without
regard to modifications thereof for purposes of incorporation into this
Sublease) requiring the approval or consent of Prime Landlord, Subtenant
shall
be required to obtain the approval or consent of both Sublessor and Prime
Landlord; however wherever any of the provisions of the Incorporated Provisions
require the satisfaction, approval, consent or waiver of Prime Landlord
(collectively, “Landlord’s Consents”) to any action of Subtenant
hereunder, or for Prime Landlord to perform and/or provide any service or
take
any action required to be provided or taken by Prime Landlord pursuant to
the
Prime Lease, Sublessor hereby agrees to promptly deliver to Prime Landlord,
Subtenant’s request for such Landlord’s Consent and/or request that Prime
Landlord provide any service or take any action, as the case may be; provided
that except as herein otherwise expressly provided, Subtenant shall promptly
reimburse to Sublessor the reasonable out of pocket cost thereof. It is further
understood and agreed that the receipt from Prime Landlord of the appropriate
Landlord’s Consent shall also constitute receipt from Sublessor of its consent
or approval, if same is also required by this Sublease, and that the failure
to
receive the necessary Landlord’s Consent shall be deemed a basis for Sublessor
to refuse the granting of its consent if required in such
circumstance.
9
(ii)
In
all provisions of any Included Provision requiring Sublessor to submit, exhibit
to, supply or provide Prime Landlord with evidence, certificates, or any
other
matter or thing, Subtenant shall be required to submit, exhibit to, supply
or
provide, as the case may be, the same to both Prime Landlord and
Sublessor.
(iii)
Sublessor shall, to the extent of alterations and improvements made by it
to the
Subleased Premises prior to the Commencement Date hereunder, have the
obligation, if required by Prime Landlord pursuant to the Prime Lease
(including, without limitation, Section 5.3 thereof), to remove same and
restore the Subleased Premises from resulting damage at expiration of the
Term
hereof.
(g)
Subtenant covenants and agrees (i) that except as may herein be otherwise
provided, to perform and to observe all of the terms, covenants, conditions
and
agreements of the Included Provisions on Sublessor’s part to be performed to the
extent such terms, covenants, conditions and agreements are included in,
and not
deleted from, the copy of the Prime Lease attached hereto and to the extent
applicable to the Subleased Premises and the Building; (ii) that Subtenant
will not do or cause to be done any act or thing to be done in violation
of the
Included Provisions, if same would or might cause the Prime Lease, or the
rights
of Sublessor as tenant thereunder, to be cancelled, terminated or forfeited
or
to make Sublessor liable for any damages, claim or penalty; and (iii) to
indemnify and save Sublessor and its agents, representatives and employees
harmless from and against all liability (statutory or otherwise) claims,
suits,
demands, damages, judgments, costs, interest and expenses (including reasonable
counsel fees and disbursements incurred in the defense thereof) to which
Sublessor or any agent, representative or employee may be subject or suffer
whether by reason thereof, or by reason of any claim for any
10
injury
to
or death of any person or persons or damage to property (including any loss
or
use thereof) arising out of, pertaining to, or resulting from acts or omissions
of the Subtenant and its agents, servants and/or employees, or otherwise
arising
from the use or occupancy of the Subleased Premises or of any business conducted
therein, or from any work or thing whatsoever done or any condition created
by
or any other act or omission of Subtenant, its permitted assignees or
sub-subtenants, or their respective employees, agents, contractors, visitors
or
licensees, in or about the Subleased Premises or any other part of the Building
that is in contravention of the provisions of this Sublease.
(h)
Any
obligation of Sublessor which is contained in the Included Provisions in
respect
to the making of repairs or the providing of services (including, without
limitation, the providing of electricity) shall be deemed obligations of
Prime
Landlord (and not Sublessor), provided that Sublessor shall use reasonable
efforts (which, except as herein provided, shall not include legal proceedings)
to cause the Prime Landlord to observe and/or perform the same, and Sublessor
shall have a reasonable time to use reasonable efforts to enforce its rights
to
cause such observance or performance. Subtenant shall not in any event have
any
rights in respect of the Subleased Premises pursuant to the Included Provisions
that is greater than Sublessor’s rights thereunder, and, notwithstanding any
provision to the contrary, to the extent of obligations of Subtenant with
respect to its use and occupancy of the Subleased Premises that are contained
in
this Sublease pursuant to the Included Provisions, Sublessor shall not be
required to perform such obligation, and except as may be expressly provided
in
this Sublease, Sublessor shall have no liability to Subtenant for any matter
whatsoever, except for Sublessor’s obligation to pay the Fixed Rent or
additional rent due under the Prime Lease (including, without limitation,
any
amounts payable pursuant to Section 12.7 thereof), to maintain the security
deposit and for
11
Sublessor’s
obligation to use reasonable efforts (without incurring any unreimbursed
out of
pocket costs), upon written request of Subtenant, to cause the Prime Landlord
to
provide consents and approvals, observe or perform its obligations under
the
Prime Lease, as they apply to the Subleased Premises.
(i)
Notwithstanding anything to the contrary contained in this Sublease (including
any of the provisions incorporated herein for the Prime Lease), except as
may be
herein otherwise expressly provided, Sublessor shall not be obligated
(i) to provide any of the services (including, without limitation, the
providing of electricity to the Subleased Premises), that Prime Landlord
has
agreed to provide in the Included Provisions or is required to provide by
law;
(ii) to make any of the repairs or restorations that Prime Landlord has
agreed to make in the Included Provisions or is required to make by law;
(iii) to take or to refrain from taking any other action that Prime
Landlord has agreed to take or to refrain from taking in the Included Provisions
or is required by law to take or to refrain from taking; or (iv) to perform
any obligation that Prime Landlord has agreed to perform pursuant to the
Included Provisions. Subject to the provisions of subdivision (m) of this
Section 5, Sublessor shall have no liability to Subtenant (nor shall the
obligations of Subtenant hereunder be impaired or the performance thereunder
excused), on account of any failure of Prime Landlord to provide, make, comply
with, take or refrain from taking, or perform any of the foregoing, or for
any
inadequacy or defect in the character or supply of any facility or service
to be
provided by Prime Landlord to the Subleased Premises.
(j)
Except as may be herein expressly otherwise provided, in no event shall
Sublessor, Prime Landlord, Subtenant or their respective agents, representatives
and employees be liable to any other party for indirect, consequential or
punitive damages for breach of this Sublease.
12
(k)
Subtenant shall have the right to forward a request to Sublessor, or its
agent
for use of the freight elevator facilities and after-hours use of the HVAC
to
the Subleased Premises pursuant to Section 28.3 of the Prime Lease, and
Sublessor (or its agent) shall promptly forward such request to Prime Landlord.
Sublessor shall have no liability to Subtenant on account of any failure
of
Prime Landlord to provide such freight elevator usage or after-hours HVAC
to the
Subleased Premises. Subtenant shall pay to Sublessor, on demand, as additional
rent, the amount charged by Prime Landlord for freight elevator usage or
after-hours HVAC to the Subleased Premises, provided in no event shall Subtenant
be required to pay such amount before the corresponding amount is due pursuant
to the Prime Lease. Sublessor acknowledges that the Subleased Premises contain
20 tons of supplemental HVAC/Cooling for operation in connection with the
Subleased Premises. Subtenant shall pay to Sublessor, on demand, as additional
rent, $650 per connected ton, per year, provided in no event shall Subtenant
be
required to pay such amount before the corresponding amount is due pursuant
to
the Prime Lease.
(l)
Sublessor represents and warrants that Subtenant shall during the Term have
the
use of: (i) a 20 ton unit that provides supplemental HVAC/Cooling for the
Subleased Premises which unit is presently hooked up to the Building water
tower
and receiving condenser water from the Building; provided that Subtenant
shall
not be obligated to make payment of the one time Tap-In Fee of $1,500 per
tap
and provided that, subject to the accuracy of Sublessor’s representation and
warranty set forth in Section 8(a)(viii), the repair, maintenance and
replacement of such unit shall be the obligation of Subtenant; (ii) the 100
KW of electricity generation (from the Building’s Emergency Generator) that is
presently allocated to the Data Center in the Subleased Premises.
13
(m)
Anything to the contrary in this Sublease notwithstanding, in the event
Sublessor, using reasonable efforts, is unable to cause Prime Landlord to
provide any requested consent or approval, observe any of its obligations
under
the Prime Lease to provide services to the Premises, comply with law, or
maintain the Building or the Building systems or otherwise fulfill its
obligations under the Prime Lease, as those obligations affect the Subleased
Premises and/or Subtenant’s use or occupancy thereof, Subtenant, at Subtenant’s
expense, upon five (5) business days prior notice to Sublessor, and using
counsel selected by Subtenant and reasonably approved by Sublessor, may
prosecute any necessary action and appeal against Prime Landlord in the name
of
Sublessor, and Sublessor shall, at Subtenant’s sole cost and expense, cooperate
with Subtenant in any such action and appeal. Subtenant shall indemnify and
hold
Sublessor harmless from and against any and all losses, costs, liability,
claims, damages, expenses (including, without limitation, reasonable attorneys’
fees), penalties and fines which Sublessor may incur as a result of the taking
of any action by Subtenant pursuant to this subsection (i).
(n)
If
Prime Landlord shall be entitled to any payment or remuneration by reason
of
additional services provided at the request of Subtenant or for any other
reason
specified in the Prime Lease resulting from acts or omissions of Subtenant,
Subtenant shall pay the same promptly upon demand as additional rent hereunder,
provided that in no event shall Subtenant be required to pay same before
the
corresponding amount, if any, is due pursuant to the Prime Lease.
(o)
Sublessor shall use reasonable efforts, at the sole cost and expense of
Subtenant, to (i) procure Landlord’s cooperation in securing Subtenant’s
Proportionate Share of
14
directory
listings on the directory in the lobby of the Building and (ii) secure
signage rights on the floor on which the Subleased Premises are located in
accordance with the Building’s Rules and Regulations and the terms of the Prime
Lease.
6.
Additional Rent.
(a)
Subtenant shall pay to Sublessor, as additional rent hereunder for the period
during the Term commencing immediately after expiration of the Base Tax Year
and
Base Operational Year, as the case may be, in the manner provided by Article
27
of the Prime Lease: (i) Subtenant’s Proportionate Share (as hereinafter
defined) of the amount by which Operating Expenses (as defined in the Prime
Lease) for each Operating Year (as defined in the Prime Lease) or portion
thereof occurring during the Term of this Sublease, exceed Operating Expenses
for the Base Operational Year (as hereinafter defined) (the “Operating
Payment”); (ii) Subtenant’s Proportionate Share of the amount by which
Taxes (as defined in the Prime Lease) for each Tax Year (as defined in the
Prime
Lease) or portion thereof occurring during the Term of this Sublease, exceed
the
Taxes with respect to the Base Tax Year (as hereinafter defined) (the “Tax
Payment”); and (iii) all other costs, expenses, charges, or adjustments
payable by Subtenant under this Sublease, arising as a result of Subtenant’s
acts in the Subleased Premises. Subtenant shall have the rights of Sublessor
to
pursue and receive refunds for overpayments pursuant to the provisions of
Section 27.3 and 27.5 of the Prime Lease.
(b)
For
the purposes of this Section 6, the following terms shall have the
following meanings:
(i)
“Subtenant’s Proportionate Share” shall mean Tenant’s Share (as defined
in the Prime Lease).
15
(ii)
“Base Operational Year” shall mean the calendar year commencing on
January 1, 2008 and ending on December 31, 2008.
(iii)
“Base Tax Year” shall mean the fiscal year commencing on July 1,
2008 and ending on June 30, 2009.
(c)
Tenant shall pay the Tax Payment as additional rent as hereinafter set forth.
After the amount of Taxes for each Tax Year is determinable, Sublessor shall
furnish Subtenant with a written statement (the “Tax Statement”), which
shall include and be based upon the Tax Statements (as defined in the Prime
Lease) received from Prime Landlord, indicating (i) the amount of Taxes
which Prime Landlord will be required to pay for such Tax Year, and which
Prime
Landlord was required to pay for the Base Tax Year, and (ii) Sublessor’s
computation of the Tax Payment for such Tax Year. The Tax Payment to be paid
by
Subtenant pursuant to this subsection (c) shall be payable on the later of
(x) fifteen (15) days prior to the dates on which interest and
penalties accrue on such Taxes if not paid, or (y) fifteen (15) days
after Sublessor has furnished Tenant with the Tax Statement for such Tax
Year.
(d)
Tenant shall pay the Operating Payment as additional rent as hereinafter
set
forth. Sublessor shall furnish to Subtenant, prior to or following the
commencement of each Operating Year after the Base Operational Year, a written
statement (the “Operating Statement”) setting forth Sublessor’s estimate
of Subtenant’s Operating Payment for such Operating Year and the actual
Operating Expenses for the Base Operational Year, which Operating Statement
shall include and be consistent with the information set forth in the Operating
Statement (as defined in the Prime Lease) delivered by Prime Landlord for
such
Operating Year. Subtenant shall pay to Sublessor as additional rent on the
first
day of each month during such Operating Year, together with the payment of
the
Sublease Rent, an amount equal to one-twelfth (1/12th) of
Sublessor’s
16
estimate
of Subtenant’s Operating Payment for such Operating Year. If, however, Sublessor
shall furnish any such estimate for an Operating Year subsequent to the
commencement thereof then (a) until the first day of the month following
the month in which such estimate is furnished to Subtenant, Subtenant shall
pay
to Sublessor on the first day of each month an amount equal to the monthly
sum
which was payable by Subtenant to Sublessor under this Section (d) for the
last month of the preceding Operating Year; (b) promptly after such
estimate is furnished to Subtenant, or together therewith, Sublessor shall
give
notice to Subtenant stating whether the installments of Subtenant’s Operating
Payment previously made for such Operating Year were greater or less than
the
installments of the Subtenant’s Operating Payment to be made for such Operating
Year in accordance with such estimate, and (i) if there shall be a
deficiency, Subtenant shall pay the amount thereof within fifteen (15) days
after demand therefor, or (ii) if there shall have been an overpayment,
Sublessor shall credit the amount thereof against any subsequent payment(s)
payable by Subtenant under this subsection; and (c) on the first day of the
month following the month in which such estimate is furnished to Subtenant,
and
monthly thereafter throughout the remainder of such Operating Year, Subtenant
shall pay to Sublessor an amount equal to one-twelfth (1/12th) of
Subtenant’s Operating Payment, as shown on such estimate. Following the end of
an Operating Year, upon receipt of the corresponding information from Prime
Landlord, Sublessor shall submit to Subtenant a statement setting forth the
amount of Subtenant’s Operating Payment for such Operating Year. If the
installments of Subtenant’s Operating Payments made on account of such Operating
Year exceed the amount of Subtenant’s Operating Payment due on account of such
Operating Year, such excess shall be credited by Sublessor against the next
succeeding installment(s) of Subtenant’s Operating Payment payable by Subtenant
pursuant hereto. If, however, said installment(s) do not equal Subtenant’s
Operating
17
Payment
due on account of such Operating Year, then Subtenant agrees to pay to Sublessor
the amount necessary to make up any deficiency within fifteen (15) days
after the delivery of Sublessor’s statement hereunder.
(e)
If
the Commencement Date is not the first day of an Operating Year or Tax Year,
or
if the date of expiration or termination of this Sublease (except for a
termination due to Subtenant’s default), whether or not same is the Expiration
Date or another date prior or subsequent thereto, is not the last day of
an
Operating Year or Tax Year, the Subtenant’s Operating Payment and Tax Payment
shall be prorated based upon the number of days of the applicable Operating
Year
or Tax Year within the Term.
(f)
In no
event shall the Sublease Rent be reduced as a result of the application of
the
provisions of this Section 6.
7.
Late Payment Charge. In the event that Subtenant fails to pay to
Sublessor any installment of Sublease Rent or additional rent, or any portion
thereof, when such payment is due pursuant to this Sublease, or in the event
Subtenant fails to make any other payment, in whole or in part, due pursuant
to
this Sublease or any other amounts due and owing under the terms of the Prime
Lease as incorporated herein by reference, within three (3) days after its
due date, Subtenant shall pay interest on any such unpaid sum from three
(3) days after its due date until the date when such payment is made at a
rate of interest equal to the Applicable Rate (as defined in the Prime Lease).
For purposes of this Sublease, payments shall be deemed made when received
by
Sublessor at its address as set forth in Section 18 of this
Sublease.
8.
Sublessor’s Representations and Warranties.
(a)
Sublessor represents and warrants to, and covenants with, Subtenant as
follows:
(i)
Sublessor has all requisite power and authority to execute, deliver and perform
its obligations under this Sublease; without the necessity of any third party
consent, approval or waiver; and the execution, delivery and performance
of this
Sublease by Sublessor and the consummation of all of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action
of Sublessor;
18
(ii)
Exhibit A hereto constitutes a true, correct and complete copy of the Prime
Lease as redacted in accordance with the Preamble to this Sublease;
(iii)
the
Prime Lease is in full force and effect, and to its knowledge, Sublessor
is not
in default in the performance of any of its obligations thereunder;
(iv)
“Tenant’s Proportionate Share” under the Prime Lease is
2.195%;
(v)
no
dispute or litigation are in existence or pendency between Sublessor and
Prime
Landlord with respect to the Prime Lease;
(vi)
all
of the alterations and improvements in the Subleased Premises heretofore
undertaken by Sublessor in the Subleased Premises have been completed in
full
compliance with all legal requirements and the provisions of the Prime Lease
and
have been fully paid for by Sublessor and there are no open notices of violation
of governmental or building codes that affect the Subleased
Premises;
(vii)
attached as Exhibit D is a true and complete copy of the Consent of Prime
Landlord which was executed and delivered in connection with this
Sublease;
19
(viii)
attached as Exhibit E is a true and complete listing and inventory for all of
the furniture, fixtures and equipment (“FFE”) that will be located in the
Sublease Premises on and as of the Commencement Date. Sublessor represents
and
warrants that it is the owner of the FFE, that same has been fully paid for
and
that Sublessor’s title thereto is not subject to any liens or encumbrances.
Sublessor further represents and warrants that the telephone systems, the
IT
System and the supplemental air conditioning system included in the FFE
(collectively, the “Electronic Systems”) will be in working and
operational order on and as of the Commencement Date.
(viii)
Sublessor will not terminate this Sublease pursuant to the provisions of
Article
12 of the Included Provisions, unless Prime Landlord shall have terminated
the
Prime Lease.
(b)
Without limiting its rights in such regard pursuant to this Sublease or pursuant
to applicable law, in the event Sublessor shall default in the performance
of
its obligations under the Prime Lease, and shall receive a notice of Default
from the Prime Landlord, Subtenant on not less than three (3) days notice
to Sublessor may, but shall not be obligated to, perform such obligation
on
behalf of Sublessor, in which event, Sublessor shall, on Subtenant’s demand,
make payment to Subtenant, of the cost expended thereby, plus interest thereon
at the default rate of interest provided for in the Prime Lease, or at
Subtenant’s election, Subtenant shall have the right to set off such amount,
plus interest thereon as aforesaid against Subtenant’s obligation to pay
Sublease Rent or additional rent hereunder. Subtenant shall indemnify and
hold
Sublessor harmless from and against any liability or damage incurred by
Sublessor as a result of Subtenant’s actions pursuant to this subsection
(b).
20
9.
Remedies of Sublessor. In the event that Subtenant defaults beyond
applicable notice and grace periods, if any, in its obligations under this
Sublease, Sublessor shall be entitled to exercise all rights available under
the
terms of this Sublease including, without limitation, any remedy provided
for in
the Included Provisions, and Subtenant shall be liable for any damages set
forth
in the Prime Lease. If Sublessor elects to cancel this Sublease or dispossess
Subtenant as a consequence of Subtenant’s default, Sublessor shall be entitled
to re-let the Subleased Premises in accordance with the terms of the Prime
Lease. In the event that a default by Subtenant results in the termination
of
the Prime Lease prior to its ordinary expiration date or in any other liability
of Sublessor to Prime Landlord, Subtenant shall fully indemnify Sublessor
from
and against any damages which Sublessor incurs to the Prime Landlord in
connection with such termination.
10.
Delivery of Subleased Premises; Completion and Occupancy of Subleased
Premises.
(a)
Sublessor covenants and agrees to deliver possession of the Subleased Premises
to Subtenant on the Commencement Date, free of all tenancies and occupancies
and
with Sublessor’s Work therein having been completed.
(b)
Subtenant has examined the Subleased Premises and agrees to accept the same
in
its “as-is”, broom-clean condition and state of repair, subject to Sublessor’s
Work and the provisions of this Sublease. Except as herein expressly provided,
Sublessor has not made and does not make any representations or warranties
as to
the physical condition of the Subleased Premises (including any latent defects
in or to the Subleased Premises), the uses to which the Subleased Premises
may
be put, or any other matter or thing affecting or relating to the Subleased
Premises. Except as specifically set forth in this Sublease, Sublessor shall
have no obligation whatsoever to alter, improve, decorate or otherwise prepare
the Subleased Premises for Subtenant’s occupancy.
21
(c)
The
taking of occupancy or possession of the whole or any part of the Subleased
Premises by Subtenant shall be conclusive evidence, as against Subtenant,
that
Subtenant accepts possession of the space so occupied and that the same were
in
good and satisfactory condition at the time such occupancy or possession
was so
taken; provided that Subtenant, within five (5) days after the Commencement
Date, shall have the right to advise Sublessor of any “punch list” items in the
completion of Sublessor’s Work and Sublessor, at its sole cost, will promptly
correct such punch list items in a manner designated to minimize any
interferences with Subtenant’s business.
(d)
Furniture, Fixtures & Equipment.
(i)
The
items of furniture and fixtures listed in Exhibit E are conveyed by Sublessor
to
Subtenant on the Commencement Date in their as-is condition, subject to
Sublessor’s representations as to title thereto set forth in this Sublease. From
and after the Commencement Date, Subtenant may deal with such items as
Subtenant’s property;
(ii)
Tenant shall have the right to use the Electronic Systems set forth in Exhibit
E
during the Term, for the intended use thereof, subject to reasonable wear
and
tear, however, Sublessor shall retain title thereto, provided that if such
equipment shall become inoperable, obsolete or no longer suitable for
Subtenant’s business in Subtenant’s sole discretion, Subtenant shall have the
right to dispose of same, without having to account to Sublessor with respect
thereto. At the end of the Term, the Electronic Systems, or so much thereof
as
shall remain on the Subleased Premises at such time, shall be left on the
Subleased Premises and Sublessor shall be obligated to satisfy any requirement
of the Prime Lease with respect to the
22
disposition
thereof. Subject to the foregoing, Subtenant shall have the obligation to
maintain the Electronic Systems during the Term and Sublessor, at the request
of
Subtenant, shall assign to Subtenant any rights Sublessor may have under
any
manufacturers or installers’ warranty or service contract relating to such
Electronic Systems.
(e)
Any
Improvements to be made by Subtenant in the Subleased Premises shall be made
in
accordance with, and subject to, the provisions of Article 3 of the Prime
Lease.
11.
Care of Subleased Premises. Subtenant shall, at its expense, take good
care of the Subleased Premises during the Term and the appurtenances therein
and
make all repairs thereto, as and when needed to preserve them in good order
and
condition, as required pursuant to the terms of the Prime Lease.
12.
Assignment and Subletting.
(a)
Any
subletting or assignment by Subtenant shall be made in accordance with Article
12 of the Prime Lease.
(b)
In
connection with any subletting of all or any portion of the Subleased Premises,
Sublessor shall be entitled to and Subtenant shall pay to Sublessor a sum
equal
to fifty percent (50%) of any Sublease Profit derived therefrom; provided
that such Sublease Profit (as defined in the Prime Lease) shall not include
the
amount Subtenant is required to pay to Prime Landlord pursuant to the Included
Provisions.
13.
Electricity.
(a)
Subtenant shall be entitled to receive electricity pursuant to the Included
Provisions. Subtenant shall at all times comply with the rules, regulations,
terms and conditions applicable to service, equipment, wiring and requirements
of the public utility supplying electricity to the Building. Subtenant shall
not
use any electrical equipment or accessories in the
23
Subleased
Premises other than for normal office use without the prior written consent
of
Sublessor. The risers servicing the Subleased Premises shall be capable of
furnishing six (6) xxxxx demand load of electricity per gross square foot
of the Subleased Premises (exclusive of base Building HVAC). Subtenant’s use and
consumption of electricity shall not exceed a demand loan of six (6) xxxxx
per xxxxx square foot of the Subleased Premises.
(b)
The
amount to be paid by Subtenant for electricity consumed shall be determined
in
accordance with Article 13 of the Prime Lease.
14.
Damage; Destruction.
(a)
If
the Subleased Premises shall be damaged by fire or other casualty or be
condemned or taken in any manner for a public or quasi-public use, Subtenant
agrees that it shall be the obligation of the Prime Landlord, and not of
the
Sublessor to repair, restore or rebuild the Subleased Premises, in accordance
with the provisions of Article 10 of the Prime Lease, provided however, that
Sublessor shall pay to Subtenant any insurance proceeds received by Sublessor
with respect to any Alterations performed in the Subleased Premises prior
to the
date hereof.
(b)
Subtenant hereby expressly waives the provisions of Section 227 of the New
York Real Property Law, and of any successor law of like import then in force,
and Subtenant agrees that the provisions of this Article and the Prime Lease
shall govern and control in lieu thereof.
15.
Insurance.
(a)
Sublessor covenant and agrees to maintain “all risk” insurance on all
Alterations performed in the Subleased Premises by Sublessor prior to the
date
hereof, which “all risk” insurance shall be maintained in accordance with the
provisions of Section 9.3 of the Prime
24
Lease.
Except as set forth in the preceding sentence, Subtenant understands that:
(i) Sublessor will not carry insurance of any kind on Subtenant’s goods,
furniture or furnishings or on any fixtures, equipment, improvements,
installations or appurtenances removable by Subtenant and that neither Prime
Landlord nor Sublessor shall be obligated to repair any damage thereto or
replace same and (ii) the insurance referred to in Section 9.3 of the
Prime Lease shall be maintained by Prime Landlord and not
Sublessor.
(b)
Subtenant shall maintain comprehensive general public liability insurance
and an
“all risk” insurance policy in respect of the Subleased Premises and the conduct
and operation of business therein, with Sublessor and the Prime Landlord
as
additional insureds, as required by Section 9.2 of the Prime Lease (the
“Insurance”). Subtenant shall deliver to Sublessor and Prime Landlord a
certificate of insurance prior to the Commencement Date. Subtenant shall
procure
and pay for renewals of the Insurance prior to expiration and Subtenant shall
deliver to Sublessor and the Prime Landlord such renewal policy or certificate
of insurance at least twenty (20) days prior to the expiration of any
existing policy. All such policies shall be issued by companies of recognized
responsibility permitted to do business in the State of New York, and to
the
extent commercially available, all such policies shall contain a provision
whereby the same cannot be cancelled unless Sublessor and the Prime Landlord
are
given at least thirty (30) days’ prior written notice of such cancellation,
and shall otherwise comply with Section 9.4 of the Prime
Lease.
16.
Surrender of Subleased Premises.
(a)
Upon
the expiration or other termination of the term, Subtenant shall (i) quit
and surrender to Sublessor the Subleased Premises, broom clean, in good order
and condition, ordinary wear and tear and damage by casualty excepted, and
(ii) remove all of its
25
property
as herein provided, and all Improvements installed on or after the date hereof
by, or on behalf of, Subtenant which, pursuant to the terms of the Prime
Lease
Sublessor and/or Subtenant are required to remove. Subtenant’s obligation to
observe or perform this covenant shall survive the termination of this
Sublease.
(b)
If
Subtenant shall fail to duly and timely surrender the Subleased Premises
in
accordance with the terms and conditions of this Sublease and the Prime Lease,
either at the expiration of the term of this Sublease, upon the occurrence
of a
default which continues beyond the expiration of applicable grace or cure
periods, or upon the occurrence of any other event causing the termination
of
this Sublease (a “Holdover”), Sublessor shall be responsible for any
holdover penalties resulting under the Prime Lease from Subtenant’s failure to
duly and timely surrender the Subleased Premises. If the Subleased Premises
are
not surrendered upon termination, then Subtenant shall indemnify and hold
harmless Sublessor against any loss, costs, liability or expenses (including
attorneys fees) resulting from the failure to surrender, including any and
all
claims made by Prime Landlord or any succeeding lessee or sublessee founded
upon
such delay or failure to vacate the Subleased Premises. Nothing contained
in
this subsection (b) shall be deemed to give to Subtenant any right to fail
to surrender possession or to hold over.
17.
Notices. Any notice, statement, demand, consent, approval, advice or
other communication required or permitted to be given, rendered or made by
either party to the other, pursuant to this Sublease or pursuant to any
applicable law or requirement of public authority (collectively,
“Notice”) shall be in writing and shall be deemed to have been properly
given, rendered or made only if delivered by hand (against a signed receipt)
or
if sent by registered mail (return receipt requested), addressed, if to
Subtenant, to Subtenant at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, and a copy thereof shall be sent to
26
Xxxxxxxx
Brog Leinwand Xxxxxx Xxxxxxxx & Xxxxx P.C., 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxxxxxxxx, or if
to
Sublessor, to Sublessor at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, and a copy thereof shall be sent to Skadden,
Arps,
Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx.
Either
party may, by Notice actually received, designate (i) a different address
in the United States for Notices intended for it, and (ii) require the
other party to provide a copy of any Notices to any other person at any other
address in the United States.
18.
Termination of Prime Lease. If for any reason the term of the Prime Lease
is terminated prior to the Expiration Date of this Sublease, this Sublease
shall
thereupon be terminated and Sublessor shall not be liable to Subtenant by
reason
thereof unless such termination is due to the negligence or wrongful acts
of
Sublessor, its agents, employees or contractors or a breach by Sublessor
of its
obligations under the Prime Lease or this Sublease.
19.
Brokerage. Sublessor and Subtenant each represents and warrants to the
other that it dealt with no broker in connection with this Sublease other
than
Xxxxxxx & Xxxxxxxxx, Inc. (the “Broker”) and that no broker
brought about or was involved in the negotiation of this Sublease other than
Broker. Sublessor and Subtenant shall indemnify and hold the other harmless
from
and against all losses, costs, damages, expenses and liabilities including,
without limitation, reasonable attorneys’ fees, resulting from any claims that
may be made for a commission, fee or other compensation by reason of this
Sublease by any broker or person with whom such party has dealt in connection
herewith, other than the Broker. Sublessor agrees to make payment to the
Broker
of all fees and commissions payable to the Broker in connection with this
Sublease and to indemnify and save Subtenant harmless with respect
thereto.
27
20.
Non-disturbance. Sublessor shall use reasonable efforts to obtain for
Subtenant, a Subtenant’s Non-Disturbance Agreement from Prime Landlord on the
terms and conditions of this Sublease; provided however, that the delivery
of
such Non-Disturbance Agreement shall not be a condition to Subtenant’s
obligations hereunder.
21.
Sublessor’s Indemnity. Sublessor hereby agrees to indemnify and save
Subtenant harmless from and against any and all costs, claims, liabilities,
and/or expenses (including, without limitation, legal fees and disbursements)
which are attributable to or result from: (i) liability resulting from any
act or omission occurring in or about the Subleased Premises prior to the
Commencement Date; (ii) the inaccuracy of any of the representations and
warranties of Sublessor set forth in Article 8 or elsewhere in this Sublease;
(iii) any failure by Sublessor to perform any of its obligations under this
Sublease or in the performance of any of the obligations of Sublessor pursuant
to the Prime Lease, to the extent Subtenant has not agreed to perform such
obligations on Sublessor’s behalf, pursuant to the terms of this
Sublease.
22.
Applicable Law. This Sublease and all of its terms and provisions shall
be construed in accordance with the laws of the State of New York.
23.
Covenant of Quiet Enjoyment. So long as Subtenant pays all of the
Sublease Rent and additional rent payable hereunder and performs all of
Subtenant’s other obligations hereunder, Subtenant shall peaceably and quietly
have, hold and enjoy the Subleased Premises subject, nevertheless, to the
obligations of this Sublease (including the Included Provisions), and the
leases, mortgages and other rights and encumbrances referred to in Article
7 of
the Prime Lease.
28
24.
Miscellaneous.
(a)
Nothing contained in this Sublease shall be construed to create privity of
estate or of contract between Subtenant and the Prime Landlord.
(b)
The
provisions of this Sublease shall extend to, bind and inure to the benefit
of
the parties hereto and their respective personal representatives, heirs,
successors and assigns, but the provisions of this paragraph shall not be
construed as a consent by Sublessor to any assignment or subletting by
Subtenant.
(c)
This
Sublease contains the entire agreement between the parties and all prior
negotiations and agreements are merged in this Sublease. Any agreement hereafter
made shall be ineffective to change, modify or discharge this Sublease in
whole
or in part unless such agreement is in writing and signed by the parties
hereto.
No provision of this Sublease shall be deemed to have been waived by Sublessor
or Subtenant unless such waiver be in writing and signed by Sublessor or
Subtenant, as the case may be. The covenants and agreement contained in this
Sublease shall bind and inure to the benefit of Sublessor and Subtenant and
their respective permitted successors and assigns.
(d)
In
the event that any provision of this Sublease shall be held to be invalid
or
unenforceable in any respect, the validity, legality or enforceability of
the
remaining provisions of this Sublease shall be unaffected thereby.
(e)
Capitalized terms used herein shall have the same meanings as are ascribed
to
them in the Prime Lease, unless otherwise expressly defined herein.
25.
No
Offer. Until executed by Sublessor and Subtenant, the within Sublease shall
be of no force or effect, and submission of a copy or copies thereof to
Subtenant or Sublessor shall not be deemed to constitute an offer to sublease,
and the return thereof may be requested by Sublessor or Subtenant at any
time.
29
IN
WITNESS WHEREOF, Sublessor and Subtenant have respectively executed this
Sublease as of the day and year first above written.
|
SUBLESSOR:
|
||
|
NATIONAL
FINANCIAL PARTNERS CORP.
|
||
|
By:
|
|
/s/
Xxxx Xxxxxxxx
|
|
Name:
|
|
Xxxx
Xxxxxxxx
|
|
Title:
|
|
Executive
Vice President and Chief Financial
Officer
|
30
|
SUBTENANT:
|
||
|
XXXXX,
XXXXXXXX & XXXXX, INC.
|
||
|
By:
|
|
/s/
Xxxx X. Xxxxx
|
|
Name:
|
|
Xxxx
X. Xxxxx
|
|
Title:
|
|
Chairman
and Chief Financial Officer
|
31
EXHIBIT
A
Prime
Lease
[Omitted]
32
EXHIBIT
B
Premises
[Omitted]
33
EXHIBIT
C
Sublessor’s
Work
[Omitted]
34
EXHIBIT
D
Prime
Landlord’s Consent
[Omitted]
35
EXHIBIT
E
Furniture,
Fixtures and Equipment
[Omitted]
36
