Exhibit 10.59
PARTIAL SURRENDER OF LEASE AGREEMENT
AND MODIFICATION AGREEMENT
AGREEMENT (this “Agreement)
made as of the 14th day of August, 2007 by and between W2007 417
Fifth Realty, LLC (hereinafter referred to as “Owner”),
having an address at 530 Fifth Avenue, Suite 1800, New York,
New York 10036, and Atari, Inc. (hereinafter referred to as
“Tenant”), having an address at 417 Fifth Avenue, New
York, New York 10016.
WITNESSETH :
WHEREAS, Fifth and 38 th LLC
(“Prior Landlord”) and Tenant executed and delivered a
certain Agreement of Lease (as amended, the “Lease”)
dated June 21, 2006 pursuant to which Tenant leased from
Landlord the entire 7 th and 8
th
floors and a portion of the basement (collectively, the
“Premises”) in the building known as 417 Fifth Avenue,
New York, New York (the “Building”) for a term that is
scheduled to expire on June 30, 2021;
WHEREAS, Owner has succeeded or will
shortly succeed to the interests of the Prior Landlord in the
Building and under the Lease;
WHEREAS, Tenant desires to surrender
its leasehold interest (the “Surrender”) in and to a
portion of the Premises, consisting of the entire 8 th Floor of the
Building (the “Office Surrender Premises”) and the
entire area of the basement storage space currently leased by
Tenant in the Building consisting of 2,500 rentable square feet
(the “Basement Surrender Premises”; the Office
Surrender Premises and the Basement Surrender Premises, are herein
collectively referred to as, the “Surrender Premises”)
prior to June 30, 2021 and Owner desires to accept such early
Surrender of the Surrender Premises in accordance with the terms of
this Agreement,
WHEREAS, in lieu of the Basement
Surrender Premises, Tenant desires to lease other storage space in
the Building identified as (x) Space 2 consisting of an area
of the sub-basement containing 627 rentable square feet and
(y) Space 3 consisting of an area of the sub-basement of the
Building containing 1,105 rentable square feet, and, in each case,
as more particularly shown on Exhibit A hereto (such storage
areas identified as Space 2 and Space 3 contain an aggregate of
1,732 rentable square feet and are referred to herein collectively
as, the “New Basement Space”), and Owner desires to
lease such New Basement Space to Tenant upon the terms set forth
herein; and
WHEREAS, Owner and Tenant have agreed
to modify the terms of the Lease to provide for such early
Surrender of the Surrender Premises and leasing of the New Basement
Space.
NOW, THEREFORE, in consideration of
the sum of one dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
1. Capitalized terms used and
not defined in this Agreement shall have the meanings ascribed to
such terms in the Lease.
2. Tenant shall surrender to
Owner the Surrender Premises, Tenant’s leasehold interest in
such Surrender Premises and its right to use and occupancy of the
Surrender Premises as of December 31, 2007 (the
“Surrender Date”).
3. Owner shall accept
Tenant’s Surrender of the Surrender Premises as of the
Surrender Date upon the following conditions:
a.
Tenant shall vacate the Surrender Premises by no later than 11:59
p.m. on December 31, 2007;
b. The
Surrender Premises shall be delivered in its “AS-IS”
condition as of the date hereof, reasonable wear and tear and
damage for which Tenant is otherwise not liable excepted and
otherwise free of personal property and in “broom
clean” condition.
c. Each
party agrees to and does hereby waive any and all claims against
the other relating to the Surrender Premises and the right to use
and occupancy of the Surrender Premises. This provision shall
survive the termination of this Agreement; and
d.
Tenant shall not be in monetary default under the Lease, beyond
all
applicable notice and cure periods thereunder.
4. Tenant shall continue to pay
to Landlord the Fixed Annual Rent as well as any additional rent
with respect to the Office S
