LEASE TERMINATION
AGREEMENT
LEASE TERMINATION
AGREEMENT (“
Agreement ”) dated as of the 13 th day of
July, 2005, between 44 WALL OWNER, LLC , a Delaware limited
liability company, having an office at c/o Swig Equities, LLC, 770
Lexington Avenue, New York, New York 10021 (“ Landlord
”) and INDEPENDENT RESEARCH GROUP LLC , a Delaware
limited liability company, having an office at 44 Wall Street, New
York, New York 10005 (“ Tenant ”).
W I T N E S
S E T H :
WHEREAS, pursuant to an Agreement of
Lease (the “ Lease ”), dated as of May 10, 2004,
between Landlord and Tenant, Tenant is leasing certain space on the
10 th floor (as set forth on Exhibit A attached
hereto, the “ Premises ”) of the building
located at 44 Wall Street, New York, New York (the “
Building ”); and
WHEREAS, Landlord and Tenant, upon
the terms and conditions set forth herein, mutually desire to
terminate the Lease and the tenancy created thereby.
NOW, THEREFORE, Landlord and Tenant
agree as follows:
1. At
11:59 p.m. on July 15, 2005 (the “ Termination Date
”), the Lease and the term thereof shall end and expire, and
Tenant’s estate in and right of possession to the Premises
shall terminate and be wholly extinguished, as if said Termination
Date was originally set forth in the Lease as the Expiration Date
thereunder.
2. On
the Termination Date, except as set forth in Paragraph 6(b)
herein, Tenant shall deliver to Landlord vacant possession of the
Premises free and clear of all tenancies, broom clean in its
“AS-IS” condition and otherwise in the condition
required by the Lease for delivery to Landlord at the end of the
term. Except as otherwise expressly set forth in this Agreement,
Landlord and Tenant each hereby release the other from any and all
liability arising out of or in connection with the Lease or the
Premises, from and after the Termination Date, including, but not
limited to, Tenant’s obligation to pay for Tenant Upgrades or
for any Fixed Rent on account of the period following the
Termination Date; provided , however, that each party shall
continue to be liable to the other to the extent set forth in this
Agreement and the Lease for any claim or liability occurring under
the Lease to and including the Termination Date and any obligation
of either party which, pursuant to the terms of the Lease, survives
the expiration of the Lease.
3. (a) Notwithstanding
anything in Article 37 of the Lease to the contrary, in
consideration of Landlord’s agreement hereunder to terminate
the Lease as of the Termination Date, simultaneous with the
execution of this Agreement hereof, Tenant shall pay to Landlord a
termination fee of Six Hundred and Thirty Two Thousand and Eighteen
($632,018.00) Dollars (the “ Termination Fee ”),
comprised of a certified check in the amount of $248,302.00 and a
letter of credit (the “ Letter of Credit ”) in
the amount of $383,716.00. Tenant acknowledges and
agrees
that Landlord may notify the Issuing
Bank and thereupon receive all of the monies represented by the
Letter of Credit and use or retain the whole amount as Landlord
determines in its sole discretion. Tenant shall deliver to Landlord
any documents that Landlord deems reasonably necessary to
effectuate the release of the Letter of Credit in accordance with
the terms hereof. Notwithstanding anything contained herein to the
contrary, the Lease shall continue in full force and effect as if
this Agreement were not in existence unless and until the
Termination Fee is paid.
(b)
Landlord and Tenant agree that the
disgorgement of any portion of the Termination Fee or the avoidance
in whole or in part of this Agreement, under any applicable law,
including, but not limited to, chapter 5 of title 11 of
the United States Code, shall be considered a breach of this
Agreement by Tenant and shall entitle Landlord to seek the full
amount of the Obligations (as defined below) from Tenant as damages
resulting from the breach of this Agreement. “
Obligations ” shall mean the full amount of
Tenant’s obligations under the Lease through the Expiration
Date (without giving effect to the terms of Paragraph 1 of
this Agreement) less any portion of the Termination Fee that is and
will be retained by Landlord, together with the damages which
Landlord would be entitled to receive in the event of
Tenant’s default under the Lease.
4. Tenant hereby represents and warrants that, as
of the date hereof and as of the Termination Date:
(a)
Tenant is the sole holder of the
leasehold interest in the Premises under the Lease and that Tenant
has not encumbered or granted any rights to any third party with
respect to the Premises, and the Lease is in full force and effect
and has not been modified or amended;
(b)
This Agreement has been duly and
validly authorized, executed and delivered by Tenant and is valid,
binding and enforceable against Tenant in accordance with its
terms;
(c)
Tenant has the full power and
authority to consummate the transactions contemplated hereby;
and
(d)
Tenant has no claims against
Landlord for any liability arising under the Lease; to the best of
Tenant’s knowledge, no other party has a claim against
Landlord for any liability arising under the Lease, and to
Landlord’s knowledge, neither Landlord nor any other party
has a claim against Tenant for any liability arising under the
Lease.
5. Notwithstanding anything to the contrary
contained in the Lease, from and after the date hereof, Tenant
shall not, without Landlord’s consent (a) assign, mortgage or
otherwise encumber its interest in and to the Lease and/or the
Premises,
