New York-New York-90 Park Avenue Sublease - Ninety Park Property LLC, First Manhattan Consulting Group Inc. and LookSmart Ltd.
CONSENT TO SUBLEASE
-------------------
NINETY PARK PROPERTY LLC, a New York limited liability company, having an
office at 330 Madison Avenue, New York, New York 10017 ("Landlord") hereby
--------
consents to the subletting by FIRST MANHATTAN CONSULTING GROUP, INC., a Delaware
corporation, having an office at 90 Park Avenue, New York, New York 10016
("Tenant") to LOOKSMART LTD., a Delaware corporation, having an office at 90
------
Park Avenue, New York, New York 10016 ("Subtenant"), pursuant to a Sublease and
---------
Letter Agreement, both dated as of September 29, 1998 (collectively, the
"Sublease"), a copy of which has been delivered to Landlord, of certain space
--------
(the "Sublease Space"), as more particularly described in the Sublease, which
--------------
Sublease Space is a portion of the premises (the "Premises") presently leased
--------
and demised by Carol Management Corporation, Howard Kaskel, Anita Kaskel Roe
(formerly known as Anita Blum) and Carole Schragis, collectively, Landlord's
predecessor-in-interest, to Tenant, pursuant to a Lease, dated July 1, 1987
(which Lease, as the same may heretofore have been or may hereafter be amended,
is referred to as the "Lease"). Such consent is subject to, and in reliance
-----
upon, the representations, warranties, covenants, terms and conditions contained
herein. All capitalized terms contained herein shall have the meaning ascribed
to them in the Lease unless otherwise indicated herein.
1. Sublease Subordinate to Lease. The Sublease shall be subject and
-----------------------------
subordinate at all times to the Lease and to all of the provisions, covenants,
agreements, terms and conditions of the Lease and this Consent, and Subtenant
shall not do or permit anything to be done in connection with Subtenant's use
and occupancy of the Sublease Space which would violate any of said provisions,
covenants, agreements, terms and conditions. Any breach or violation of any
provision of this Consent by Subtenant shall be deemed to be and shall
constitute a default by Tenant in fulfilling such provision.
2. Representations and Warranties. Tenant and Subtenant represent and
------------------------------
warrant that no rent or other consideration is being paid or is payable to
Tenant by Subtenant for the right to use or occupy the Sublease Space or for the
use, sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, except as set forth in the Sublease, and
if such rent or other consideration exceeds the pro-rata portion of the fixed
rent and any additional rent payable pursuant to the Lease, Tenant shall comply
with paragraph I of Article 45 of the Lease and Tenant shall pay to Landlord
fifty percent (50%) of such excess in accordance with, and subject to, the
provisions of the Lease. Tenant and Subtenant further represent and warrant that
the Sublease is the complete, true and correct agreement between the parties.
3. Amendment of Sublease, Waiver. Tenant and Subtenant agree that they
-----------------------------
shall not change, modify or amend the Sublease or enter into any additional
agreements relating to or affecting the use or occupancy of the Sublease Space,
or the use,
<PAGE>
sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, without first obtaining Landlord's prior
written consent thereto in accordance with the terms of the Lease, except that
Tenant may terminate the Sublease without Landlord's prior consent. Neither this
Consent, the Sublease, the Lease, nor any acceptance of rent or other
consideration from the Subtenant by Landlord or Landlord's agent shall operate
to waive, modify, impair, release or in any manner affect Tenant's liability
under the Lease or Subtenant's liability under the Sublease, nor shall the
foregoing operate to waive any breach or violation of any provision of the Lease
or any rights of Landlord against any person, firm, association, corporation or
other entity liable or responsible for the performance of any of the provisions,
covenants, agreements, terms or conditions contained in the Lease, nor shall the
foregoing enlarge or increase Landlord's obligations or Tenant's rights or
diminish Tenant's obligations under the Lease or otherwise; and all provisions,
covenants, agreements, terms and conditions of the Lease are hereby declared by
Tenant to be in full force and effect. No assignment of the Lease or the
Sublease or further sublease of all or any part of the Premises or the Sublease
Space shall be made by Tenant or Subtenant without the prior written approval of
Landlord, to the extent required pursuant to, and in accordance with, the
provisions of the Lease and the Sublease.
4. Ratification of Sublease. Nothing contained in the Sublease or this
------------------------
Consent shall be construed as a consent to, or approval of, or ratification by
Landlord, of any of the particular provisions of the Sublease (except as may be
expressly provided herein) or as a representation or warranty by Landlord.
Landlord has not, and shall not, review or pass upon any of the provisions of
the Sublease and shall not be bound or estopped in any way by the provisions of
the Sublease, except as may be expressly provided herein. Notwithstanding the
foregoing, Tenant and Subtenant acknowledge that Landlord is consenting to the
Sublease as an accommodation to Tenant and Subtenant, and that Landlord's
consent is strictly limited to Tenant's subletting of the Sublease Space to
Subtenant pursuant to the Sublease. By executing and delivering this Consent,
Landlord shall be deemed not to have modified or waived any of Tenant's
obligations under the Lease.
5. Remedies for Default. In the event of any default by Tenant or
--------------------
Subtenant in the full performance and observance of any of their respective
obligations hereunder or in the event any of the respective representations or
warranties by the respective party made herein shall prove to be false or
misleading in any material respect, such event may, at Landlord's option and
subject to applicable notice and grace periods provided in the Lease, be deemed
a default under the Lease, and Landlord shall have the right to and may pursue
all of the rights, powers and remedies provided for in the Lease or at law or in
equity or by statute or otherwise with respect to defaults. Subtenant hereby
agrees to indemnify and hold Tenant harmless from and against any and all loss,
cost, liability or expense resulting from any and all claims that may be made
against Tenant by Landlord by reason of a default by Subtenant referred to under
this paragraph 5.
-2-
<PAGE>
6. Use. Subject to all of the provisions, covenants, agreements, terms
---
and conditions of the Lease, the Sublease Space and each part thereof shall be
used by Subtenant in accordance with the provisions of Article 2 of the Lease,
as modified by Article 34(C)(1)(a) of the Lease, as further modified by Section
4.01 of the Sublease, and for no other purpose.
7. Termination: Attornment. A. If at any time prior to the expiration
-----------------------
date of the Lease, the term of the Lease with respect to the Sublease Space
shall terminate or be terminated for any reason whatsoever due to a default
thereof by Tenant, the Sublease and the term thereof shall terminate on or prior
to the day of such termination and Subtenant, at Subtenant's sole cost and
expense, shall (i) quit and surrender the Sublease Space to Landlord, broom
clean, in good order and condition, ordinary wear and tear and damage for which
Subtenant is not responsible for under the terms of the Sublease excepted, (ii)
remove from the Sublease Space and the Building all of Subtenant's personal
property and all other property and effects of Subtenant and all persons
claiming through or under Subtenant, and (iii) repair all damage to the Sublease
Space and the Building occasioned by such removal and otherwise to the Building,
as required by the Lease. Except as otherwise provided in the Lease, Landlord
shall have the right to retain any property and personal effects which shall
remain in the Sublease Space or the Building, on the date of termination of the
Sublease, without any obligation or liability to Tenant or Subtenant, and to
retain any net proceeds realized from the sale thereof, in accordance with all
applicable law, without waiving Landlord's rights with respect to any default by
Subtenant under the foregoing provisions of this paragraph and the provisions of
the Lease and Sublease. If Subtenant shall fail to vacate and surrender the
Sublease Space in accordance with the provisions of this paragraph, Landlord
shall be entitled to all of the rights and remedies which are available to a
landlord against a tenant holding over after the expiration of a term, and any
such holding over shall be and be deemed to be a default under the Lease.
Subtenant expressly waives for itself and for any person claiming through or
under Subtenant, any rights which Subtenant or any such person may have under
the provisions of Section 2201 of the New York Civil Practice Law and Rules and
of any successor law of like import then in force, in connection with any
holdover summary proceedings which Landlord may institute to enforce the
foregoing. If the date of the termination of the Sublease shall fall on a Sunday
or holiday, then Subtenant's obligations under the first sentence of this
paragraph shall be performed on or prior to the Saturday or business day
immediately preceding such Sunday or holiday. Subtenant's obligations under this
paragraph shall survive the expiration or earlier termination of the terms of
the Lease and Sublease.
B. The foregoing provisions of paragraph 7A notwithstanding, Landlord
may, at its option, upon written notice to Tenant and Subtenant on or before the
date of termination of the term of the Lease with respect to the Sublease Space
and without any additional or further agreement of any kind on the part of the
Tenant or Subtenant, elect to require Subtenant to attorn to Landlord and to
continue the Sublease with the same force and effect as if Landlord, as lessor,
and Subtenant, as lessee, had
-3-
<PAGE>
entered into a lease as of such effective date, for a term equal to the then
unexpired term of the Sublease and containing the same provisions as those
contained in the Sublease. In the event of such election by Landlord, (i)
Subtenant agrees to so attorn to Landlord, and Landlord and Subtenant shall have
the same rights, obligations, and remedies as were had by Tenant and Subtenant,
respectively, under the Sublease prior to such effective date and the Sublease
shall be deemed to be a direct lease between Landlord and Subtenant, except that
in no event shall Landlord be (a) liable for any act or omission by Tenant, (b)
subject to any offsets or defenses which Subtenant had or might have against
Tenant, (c) bound by any rent or additional rent or other payment paid by
Subtenant to Tenant in advance for a period in excess of thirty (30) days, (d)
bound by any covenant to undertake or complete any work to the Sublease Space or
any part thereof, or (e) bound by any obligation to make any payment to
Subtenant; and (ii) Tenant shall deliver to Landlord any security deposit which
Tenant is then holding under the Sublease. The foregoing provisions of this
paragraph 7B shall apply notwithstanding that, as a matter of law, the Sublease
may terminate upon the expiration, termination or surrender of the Lease and
shall be self-operative upon any such election by Landlord to require
attornment; provided, however, that the Subtenant, upon demand of Landlord,
agrees to execute and deliver such instrument or instruments as Landlord may
reasonably request to evidence and confirm the foregoing provisions of this
paragraph 7B. If Landlord elects to exercise its option under this paragraph 7B,
then the foregoing provision of paragraph 7A shall be of no force or effect.
8. Indemnity. A. Tenant hereby indemnifies and holds harmless Landlord
---------
and Landlord's agents from and against all loss, cost, liability, claims, damage
and expenses, including, without limitation, reasonable attorneys' fees and
expenses and court costs, penalties and fines, incurred in connection with or
arising from (i) any default by Tenant in the observance or performance of, or
compliance with, any of the terms, covenants or conditions of the Sublease on
Tenant's part, to be observed, performed or complied with, including, without
limitation, reasonable attorneys' fees and expenses and court costs resulting
from any delay by Tenant in surrendering the Sublease Space upon termination of
the Sublease, or (ii) any acts, omissions or negligence by Tenant, or the agents
of Tenant, or any person claiming through or under Tenant, or the agents of
Tenant or any such person, in or about the Sublease Space or the Building during
the term of the Sublease. Tenant shall not be liable to Landlord under this
indemnity to the extent of any insurance proceeds collectible under policies
owned by (or otherwise insuring) Landlord with respect to such damage or injury
provided that nothing contained herein shall be deemed a release of Tenant of
any liability that any such party would otherwise have to Landlord by reason of
such damage or injury in the absence of this indemnity.
B. Subtenant hereby indemnifies and holds harmless Landlord and
Landlord's agents from and against all loss, cost, liability, claims, damage and
expenses, including, without limitation, reasonable attorneys' fees and expenses
and court costs, penalties and fines, incurred in connection with or arising
from (i) any default by Subtenant in the observance or performance of, or
compliance with, any of the terms,
-4-
<PAGE>
covenants or conditions of the Sublease on Subtenant's part, to be observed,
performed or complied with, including, without limitation, reasonable attorneys'
fees and expenses and court costs resulting from any delay by Subtenant in
surrendering the Sublease Space upon termination of the Sublease, (ii) the use
or occupancy or manner of use or occupancy of the Sublease Space by Subtenant or
any person claiming through or under Subtenant of any rights granted to
Subtenant hereunder, or (iii) any acts, omissions or negligence by Subtenant, or
the agents of Subtenant, or any person claiming through or under Subtenant, or
the agents of Subtenant or any such person, in or about the Sublease Space or
the Building during the term of the Sublease. Subtenant shall not be liable to
Landlord under this indemnity to the extent of any insurance proceeds
collectible under policies owned by (or otherwise insuring) Landlord with
respect to such damage or injury provided that nothing contained herein shall be
deemed a release of Subtenant of any liability that any such party would
otherwise have to Landlord by reason of such damage or injury in the absence of
this indemnity.
C. If any action or proceeding is brought against Landlord by reason of
any such claim, Tenant or Subtenant, upon written notice from Landlord, shall,
at Tenant's or Subtenant's sole cost and expense, as the case may be, resist or
defend such action or proceeding using counsel approved by Landlord, which
approval shall not be unreasonably withheld or delayed. Counsel for the insurers
of Tenant or Subtenant shall hereby be deemed approved for purposes of this
paragraph 8. The provisions of this paragraph shall survive the expiration or
earlier termination of the term of the Sublease and this Consent. The indemnity
and any rights granted to Landlord pursuant to this paragraph shall be in
addition to, and not in limitation of, any of Landlord's rights under the Lease.
9. Conflict. If there shall be any conflict or inconsistency between the
--------
non-monetary terms, covenants and conditions of this Consent or the Lease and
the terms, covenants and conditions of the Sublease, then the non-monetary
terms, covenants and conditions of this Consent or the Lease shall prevail.
Notwithstanding the foregoing, any conflict or inconsistency between the terms,
covenants and conditions of this Consent and the Sublease, as between the Tenant
and Subtenant only, shall be resolved in favor of the Sublease.
10. Notices. Any bills, statements, notices, demands, requests, consents
-------
or other communications given or required to be given under this Consent shall
be effective only if rendered or given in writing and delivered personally or
sent by mail (registered or certified, return receipt requested), postage
prepaid, delivered to the respective party at the address hereinabove set forth
or at such other address for such purpose by notice in accordance with the
provisions hereof, or, if addressed to Tenant or Subtenant at the Building; the
same shall be deemed to have been rendered or given on the date delivered, if
delivered personally, or on the date mailed, if mailed.
-5-
<PAGE>
11. Entire Agreement. This Consent contains the entire agreement of the
----------------
parties with respect to the matters contained herein and may not be modified,
amended or otherwise changed except by written instrument signed by the parties
sought to be bound. Furthermore, Tenant and Subtenant each acknowledge and
represent that, other than this Consent, the Lease, and the Sublease, there are
no other agreements, oral or otherwise, or representations or warranties of any
kind or nature referring or relating to, or in connection with, the Lease, the
Sublease or the use and occupancy of the Sublease Space or any other portion of
the Building.
12. Governing Law. This Consent shall for all purposes be construed in
-------------
accordance with, and governed by, the laws of the State of New York.
13. Broker. Tenant and Subtenant each represent and warrant to Landlord
------
that they have not dealt with any broker in connection with the Sublease or this
Consent other than Williamson, Picket, Gross, Inc., and Julien J. Studley, Inc.
(collectively, the "Brokers"), and that no broker negotiated the Sublease or is
-------
entitled to any commission in connection therewith other than the Brokers, and
the execution and delivery of this Consent by Landlord shall be conclusive
evidence that Landlord has relied upon the foregoing representation and warranty
of Tenant and Subtenant. Tenant and Subtenant shall each indemnify and hold
Landlord harmless from and against any and all claims for commission, fee or
other compensation by any person who shall claim to have dealt with any such
party in connection with the Sublease and this Consent other than the Brokers,
and for any and all costs incurred by Landlord in connection with such claims,
including, without limitation, reasonable attorneys' fees and disbursements.
Tenant or Subtenant, as the case may be, shall be entitled, at the applicable
party's sole cost and expense, to defend any such claim with counsel reasonably
approved by Landlord, and to settle any such claim at such party's sole cost and
expense. The provisions of this paragraph 13 shall survive the cancellation or
expiration of the Sublease and this Consent.
14. Miscellaneous. A. Each right and remedy of Landlord provided for in
-------------
this Consent or in the Lease shall be cumulative and shall be in addition to
every other right and remedy provided for herein and therein or now or hereafter
existing at law or in equity or by statute or otherwise, and 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 subsequent exercise by Landlord
of any or all other rights or remedies so provided for or so existing.
B. Neither the partners, directors or officers of Landlord (collectively,
the "Parties") shall be liable for the performance of Landlord's obligations
-------
under this Consent, nor shall the Parties be liable for the performance of
Landlord's obligations under the Sublease pursuant to any attornment by
Subtenant to Landlord. Tenant and Subtenant, as the case may be, shall look
solely to Landlord to enforce Landlord's obligations hereunder and thereunder
and shall not seek any damages against any of the
-6-
<PAGE>
Parties. The liability of Landlord for Landlord's obligations under this Consent
and the Sublease shall be limited to Landlord's interest in the Building and
Tenant and Subtenant shall not look to any other property or assets of Landlord
or the property or assets of any of the Parties in seeking either to enforce
Landlord's obligations under the Sublease pursuant to such attornment or to
satisfy a judgment for Landlord's failure to perform such obligations. If,
subsequent to an attornment by Subtenant to Landlord, Landlord shall sell,
convey, assign or transfer (or any subsequent landlord shall sell, convey,
assign or transfer) its interest in the Building or the Premises, as the case
may be, Landlord shall thereafter be and hereby is entirely freed and relieved
of all covenants and obligations of Landlord hereunder, and under the Sublease,
from and after the date of such sale, conveyance, assignment or transfer to the
extent that such transferee assumes the obligations of Landlord hereunder and
under the Sublease.
C. The terms and provisions of this Consent shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns except
that no violation of the provisions of paragraph 3 shall operate to vest any
rights in any successor or assignee of Tenant or Subtenant.
D. If any one or more of the provisions contained in this Consent 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.
E. The captions contained in this Consent are for convenience only and
shall in no way define, limit or extend the scope or intent of this Consent, nor
shall such captions affect the construction hereof.
F. This Consent may be executed in several counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
agreement.
G. Landlord, Tenant and Subtenant each represent and warrant that each has
full right, power and authority to enter into this Consent and that the person
or persons executing this Consent on behalf of Landlord, Tenant or Subtenant, as
the case may be, are duly authorized to do so.
H. It is expressly understood and agreed that this Consent shall not
create or constitute, nor shall it be deemed to create or constitute, any
landlord-tenant relationship, or occupancy or license agreement between Landlord
and Subtenant.
I. This Consent is offered for signature by Tenant and Subtenant and it is
understood that this Consent shall not be binding upon Landlord unless and until
Landlord and each of the other parties hereto shall have executed and delivered
a fully executed original counterpart of this Consent to both Tenant and
Subtenant.
-7-
<PAGE>
J. Tenant shall pay, or cause to be paid, to Landlord on demand any
reasonable costs, including attorneys' fees and disbursements incurred by
Landlord in connection with the Sublease and this Consent.
K. If Tenant shall terminate, or shall give any notice to Subtenant
terminating the Sublease, Tenant shall notify Landlord thereof promptly
thereafter.
-8-
<PAGE>
IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have respectively
executed this Consent as of the 22nd day of October, 1998.
LANDLORD:
NINETY PARK PROPERTY LLC
By: Vornado Realty L.P.,
Sole Member
By: Vornado Realty Trust,
General Partner
By: /s/ Irwin Goldberg
Name: Irwin Goldberg
Title: Vice-President and
Chief Financial Officer
TENANT:
FIRST MANHATTAN CONSULTING GROUP, INC.
By: ________________________________________________
Name:
Title:
SUBTENANT:
LOOKSMART LTD.
By: __________________________________________
Name:
Title:
-9-
<PAGE>
IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have respectively
executed this Consent as of the 22nd day of October, 1998.
LANDLORD:
NINETY PARK PROPERTY LLC
By: Vornado Realty L.P.,
Sole Member
By: Vornado Realty Trust,
General Partner
By: _______________________________
Name: Irwin Goldberg
Title: Vice-President and
Chief Financial Officer
TENANT:
FIRST MANHATTAN CONSULTING GROUP, INC.
By: /s/ Robert M. Tetenbaum
Name: ROBERT M. TETENBAUM
Title: EXEC V.P.
SUBTENANT:
LOOKSMART LTD.
By: _______________________________________
Name:
Title:
-10-
<PAGE>
IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have respectively
executed this Consent as of the 22nd day of October, 1998.
LANDLORD:
NINETY PARK PROPERTY LLC
By: Vornado Realty L.P.,
Sole Member
By: Vornado Realty Trust,
General Partner
By: _______________________________
Name: Irwin Goldberg
Title: Vice-President and
Chief Financial Officer
TENANT:
FIRST MANHATTAN CONSULTING GROUP, INC.
By: _______________________________________
Name:
Title:
SUBTENANT:
LOOKSMART LTD.
By: /s/ Evan Thornley
Name: EVAN THORNLEY
Title: CEO
-11-