EXHIBIT 10.2
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: Jeffrey J. Temple, Esq.
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of July 22,1999 between PW Real
Estate Investments Inc. ("Mortgagee"), having its principal place of
business at 1285 Avenue of the Americas, New York, New York, 10019, and
TheStreet.Com, Inc. ("Tenant"), having its principal place of business at
2 Rector Street, New York, New York 10006.
WITNESSETH:
WHEREAS, Tenant has entered into a certain lease dated July 22, 1999
(as the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time in accordance with the terms of this Agreement,
the "Lease") with W12/14 Wall Acquisition Associates LLC (the "Landlord"),
covering certain premises more fully described in the Lease (the
"Premises");
WHEREAS, Mortgagee provided or will provide permanent financing to
Landlord and other entities which is secured by, inter alia, first and
second priority mortgages (collectively, the "Mortgage") on the interests
of Landlord in the property described in Exhibit "A" attached hereto, of
which the Premises are a part (the "Property");
WHEREAS, Mortgagee and Tenant mutually desire the subordination of
the Lease to the Mortgage and the recognition of the Lease by Mortgagee
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) by
each party in hand paid to the other, the receipt of which is hereby
acknowledged, and in consideration of the mutual promises, covenants and
agreements herein contained, the parties hereto, intending to be legally
bound hereby, promise, covenant and agree as follows:
1. Notwithstanding anything to the contrary set forth in the Lease,
the Lease and all estates, rights, options, liens and charges therein
contained or created thereunder is and shall be subject and subordinate to
the lien, terms, covenants, provisions and conditions of the Mortgage and
to all renewals, modifications, consolidations, replacements and extensions
thereof, and to all advances made or to be made thereunder and all sums
secured hereby.
2. If Mortgagee or any trustee for Mortgagee takes possession of the
Premises and/or the Property, as mortgagee-in-possession or otherwise,
forecloses the Mortgage, acquires title to the Property be deed in lieu of
foreclosure, or otherwise causes the Premises and/or the Property to be
sold pursuant to the Mortgage or any other security instrument given to
Mortgagee, Mortgagee agrees not to join Tenant as a party defendant in any
action to foreclose the Mortgage (unless an applicable law requires Tenant
to be made a party thereto as a condition to proceeding against Landlord)
or to terminate or affect the Lease nor to affect or disturb all rights of
Tenant under the Lease, including, but not limited to, the rights of
possession, occupancy and use of the Premises and the Property at the
rental and upon the terms and conditions set forth in the Lease, and the
right to exercise and enjoy all expansion and extension options (if any)
under the Lease so long as Tenant is not then in default under any of the
terms, covenants, or conditions of the Lease or this Agreement (after the
giving of any required notice and after the expiration of any applicable
cure period) and the Lease is in full force and effect.
3. If Mortgagee succeeds to the interest of Landlord under the Lease
and/or to title to the Premises and/or the Property, or if anyone else
acquires title to or the right to possession of the Premises and/or the
Property upon the foreclosure of the Mortgage or by other sale pursuant to
the Mortgage, or upon the sale of the Premises and/or the Property by
Mortgagee or its successors and assigns after foreclosure or other sale
pursuant to the Mortgage or acquisition of title in lieu thereof or
otherwise, Mortgagee or its successors or assigns or the then owner of the
Premises and/or the Property after foreclosure or other sale pursuant to
the Mortgage (hereinafter collectively referred to as "Successor
Landlord"), and Tenant hereby agree to be bound to one another under all of
the terms, covenants and conditions of the Lease and Tenant agrees to make
full and complete attornment to Successor Landlord so as to establish
direct priority or estate and contract between Successor Landlord and
Tenant with the same force and effect as if the Lease were originally made
directly between Successor Landlord and Tenant; accordingly from and after
such event, Successor Landlord and Tenant shall have the same remedies
against one another for the breach of an agreement contained in the Lease
as Tenant and Landlord had before Successor Landlord succeeded to the
interest of Landlord; provided, however, that Successor Landlord shall not
be:
(a) liable for any act, omission or negligence of any
prior landlord (including the present Landlord); or
(b) subject to any claims, offsets or defenses which Tenant
might have against any prior landlord (including the present Landlord),
except for any claims, defenses or offsets expressly allowed under the
terms of the Lease and which accrue after Successor Landlord succeeded to
the interest of Landlord; or
(c) obligated to cure any defaults of Landlord which
occurred, or to make any payments to Tenant which was required to be paid
by Landlord, prior to the time that Successor Landlord succeeded to the
interest of Landlord under the Lease; or
(d) bound by any agreement, modification, termination or
surrender of the Lease made without the written consent of Mortgagee; or
(e) bound by any rent or additional rent which Tenant might
have paid for more than the then current month or any termination payment
or other prepaid charge to any prior landlord (including the present
Landlord) except as required pursuant to the terms of the Lease; or
(f) liable for any security deposited under the Lease unless
such security has been physically delivered to Successor Landlord; or
(g) liable for any defects (latent, patent or otherwise) in
the design, workmanship, materials, construction or otherwise with respect
to the Premises and/or the Property; or
(h) liable for or obligated to comply with or fulfill any of
the obligations of any prior landlord (including the present Landlord)
under the Lease or any agreement relating thereto with respect to the
construction of, or payment for, improvements on or about the Premises (or
any portion thereof), leasehold improvements, tenant work letter and/or
similar items, except the obligations of present Landlord pursuant to
Section 41 of the Lease with respect to the payment of the Construction
Payment to Tenant; provided, however that Mortgagee or Successor Landlord
shall not have any obligation to make any portion of the Construction
Payment to Tenant that it has already advanced to any prior landlord
(whether or not Tenant received such payment).
If the Lease shall have terminated by operation of law or
otherwise as a result of or in connection with a bankruptcy case commenced
by or against Landlord or a foreclosure action or proceeding or delivery of
a deed in lieu, upon request by Successor Landlord, Tenant shall promptly
execute and deliver a direct lease with Successor Landlord which direct
lease shall be on substantially the same terms and conditions as the Lease
(subject, however, to the provisions of clauses (a)-(h) of this Section 3)
and shall be effective as of the date the Lease shall have terminated as
aforesaid.
4. Although the foregoing provisions of this Agreement shall be
self-operative, Tenant agrees to execute and deliver to Mortgagee or to any
person to whom Tenant herein agrees to attorn, such other instrument or
instruments as Mortgagee or such other person shall from time to time
request in order to confirm said provisions.
5. Tenant hereby warrants and represents, covenants and agrees that:
(a) Mortgagee, in making any disbursements to Landlord, is
under no obligation or duty to oversee or direct the application of the
proceeds of such disbursements.
(b) Tenant shall not prepay in excess of one month or
compromise payment of rent or other sums due or to become due under the
Lease except as required by the terms of the Lease.
(c) Upon receipt by Tenant of a notice from Mortgagee that
Landlord has defaulted under the Mortgage and has failed to cure the
default within any applicable grace period set forth in the Mortgage and
requesting Tenant to henceforth make all payments under the Lease to
Mortgagee, Tenant shall thereafter pay directly to Mortgagee all rent and
other sums due and to become due under the Lease.
(d) Tenant shall not alter or modify the Lease in any respect
or terminate or surrender the Lease without the prior written consent of
Mortgagee except in the event of a casualty as permitted by the Lease.
(e) Tenant shall deliver to Mortgagee, in accordance with
Section 9 hereof, a duplicate of each notice delivered to Landlord at the
same time as such notice is given to Landlord.
(f) Tenant is now the sole owner of the leasehold estate
created by the Lease and shall not hereafter assign or sublease the Lease
or any portion thereof except as permitted by the terms thereof
(g) Except in the event of a casualty as permitted by the
Lease, Tenant shall not seek to terminate the Lease or claim partial or
total eviction or abate or reduce the rent payable under the Lease by
reason of any act, omission or default of Landlord without prior written
notice thereof to Mortgagee and the lapse thereafter of such time as under
the Lease was offered to Landlord in which to remedy the default after
which time Mortgagee, as its option, may remedy any such act, omission or
default with thirty (30) days after the expiration of such time as Landlord
was permitted to cure such default; provided, however, that with respect to
any default of Landlord under the Lease which cannot be remedied within
such time, it Mortgagee commences to cure such act, omission or default
within such time and thereafter diligently proceeds with such efforts,
Mortgagee shall have such time as is reasonably necessary to complete
curing such act, omission or default. If Mortgagee cannot reasonably cure
such act, omission or default until after Mortgagee obtains possession of
the Premises, Tenant may not terminate or cancel the Lease or claim partial
or total eviction or abate or reduce the rent payable under the Lease by
reason by such act, omission or default, until the expiration of a
reasonable period necessary for the remedy after Mortgagee secures
possession of the Premises. To the extent Mortgagee incurs any expenses or
other costs in curing or remedying such act, omission or default, including
without limitation, attorneys' fees and disbursements, Mortgagee shall be
subrogated to Tenant's rights against any prior landlord (including
Landlord). Notwithstanding the foregoing, (i) Mortgagee shall have no
obligation hereunder to remedy any act, omission or default of any prior
landlord (including Landlord) and (ii) the cure period provided to
Mortgagee in this paragraph shall in no event be less than the period to
which Landlord or Mortgagee would be entitled under the Lease or otherwise
after similar notice, to remedy any act, omission or default of any prior
landlord (including Landlord).
(h) This Agreement satisfies any condition or requirement in
the Lease, if any, relating to the granting of a non-disturbance agreement
with respect to the Mortgage and, or the extent that the Lease shall
entitle Tenant to notice of the existence of any mortgage and the identity
of any mortgagee, this Agreement shall constitute such notice to Tenant
with respect to the Mortgage and Mortgagee.
(i) Upon and after the occurrence of a default under the
Mortgage, Mortgagee shall be entitled, but not obligated, to exercise the
claims, right, powers, privileges and remedies of Landlord under the Lease
and shall be further entitled to the benefits of, and to receive and
enforce performance of, all of the covenants to be performed by Tenant
under the Lease as though Mortgagee were named therein as Landlord. Tenant
shall be absolutely entitled to rely on any notice received from Mortgagee
and shall not be required to inquire as to whether there has been a default
under the Mortgage or whether Mortgagee is entitled to possession of the
Premises or receive payments under the Lease.
(j) Notwithstanding Section 2 hereof, if the Lease provides
that Tenant is entitled to expansion space or any other space, Successor
Landlord shall have no obligation nor any liability for failure to provide
such expansion space or such other space if a prior landlord (including
Landlord), by reason of a lease or leases entered into by such prior
landlord (including Landlord) with other tenants of the Property, has
precluded the availability of such expansion space or such other space, but
this provision shall not alter, amend, waive or impair any rights Tenant
may have against such prior landlord.
(k) Tenant agrees to enter into a subordination,
non-disturbance and attornment agreement with any lender which shall
succeed Mortgagee as lender with respect to the Property, or any portion
thereof, provided such agreement is substantially similar to the Agreement.
(1) Tenant has not subordinated the Lease or its rights
thereunder to any other mortgage or lien. Tenant agrees not to subordinate
the Lease or any of its rights thereunder to any other mortgage or lien
without the prior written consent of Mortgagee.
6. Except as specifically provided in this Agreement, Mortgages
shall not, by virtue of this Agreement, the Mortgage or any other
instrument to which Mortgagee may be a party, be or become subject to any
liability or obligation to Tenant under the Lease or otherwise.
7. Anything herein or in the Lease to the contrary notwithstanding,
Successor Landlord shall have no obligation, nor incur any liability beyond
Successor Landlord's then equity interest of Successor Landlord, if any, in
the Premises for the payment and discharge of any obligations imposed upon
Successor Landlord hereunder or under the Lease, and Successor Landlord is
hereby released and relieved of any other obligations hereunder and under
the Lease. Tenant agrees that with respect to any money judgment which may
be obtained or secured by Tenant against Successor Landlord, Tenant will
look solely to the estate or interest owned by Successor Landlord in the
Property, and Tenant will not collect or attempt to collect any such
judgment out of other assets of Successor Landlord.
8. Tenant waives the provisions of any statute of rule of law now or
hereafter in effect which may give or purport to give it any right or
election to terminate or otherwise adversely affect the Lease and the
obligations of Tenant thereunder by reason of any foreclosure proceeding in
respect of the Mortgage.
9. All notices shall be given in writing and shall be effective for
all purposes if hand delivered or sent by (a) certified or registered
United States mail, postage prepaid, (b) expedited prepaid delivery
service, either commercial or Untied States Postal Service, with proof of
attempted delivery or (c) by facsimile, addressed as follows (or at such
other address and person as shall be designated from time to time by any
party hereto, as the case may be, in a written notice to the other party
hereto in the manner provided for in this Section):
If to Mortgagee:
PW Real Estate Investments Inc.
1285 Avenue of the Americas, 19th Floor
New York, New York 10019
Attention: Ms. Meg Murray
Facsimile Number: (212) 713-7998
With a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: Jeffrey J. Temple, Esq.
Facsimile Number: (212) 354-8113
If to Tenant:
THESTREET.COM, INC.
14 WALL STREET
NEW YORK, NY
Attention: General Counsel
Facsimile Number:
A notice shall be deemed to have been given: in the case of hand delivery,
at the time of delivery on a business day during business hours; in the
case of registered or certified mail, when delivered or the first attempted
delivery on a business day during business hours; in the case of expedited
prepaid delivery, upon the first attempted delivery on a business day
during business hours; or in the cased of facsimile notice, when sent and
electronically confirmed on a business day during business hours, addressed
as set forth above, and, in each case, if such delivery of facsimile is
made or sent other than during business hours on a business day, such
delivery shall be deemed to have been made on the next succeeding business
day.
10. TENANT AND MORTGAGE HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF
ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY
FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS AGREEMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION HEREWITH. THIS WAIVER OF RIGHT TO TRAIL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY TENANT AND MORTGAGEE AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT
TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. TENANT OR MORTGAGEE IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
11. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
12. This Agreement may not be modified except by an agreement in
writing signed by the parties or their respective successors in interest.
The terms, covenants and conditions contained herein shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, specifically including, but not limited to,
Tenant's assignees and subtenants and any purchaser at a sale of Landlord's
leasehold interest in the Property under or pursuant to Mortgage, including
a transfer in lieu of foreclosure. If any term of this Agreement or the
application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the
application of such term to such person or circumstance other than those as
to which it is invalid or unenforceable shall not be affected thereby, and
each term of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this Subordination,
NonDisturbance and Attornment Agreement as of the date first written above.
TENANT:
THESTREET.COM, INC.
By: /s/ Michael Zuckert
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Name: Michael Zuckert
Title: Vice President
MORTGAGEE:
PW REAL ESTATE INVESTMENTS INC.
By: /s/ Margaret Imperiale
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Name: Margaret Imperiale
Title: Vice President
Acknowledgment and Consent of Landlord
Landlord acknowledges and consents to the terms and conditions of
this Agreement and agrees that Tenant, upon receipt from Mortgagee of
notice that Landlord has defaulted under the Mortgage or any of the loan
documents entered into between Landlord and Mortgagee and has failed to
cure the default within any applicable grace period set forth in the
Mortgage or such loan documents, shall pay to Mortgagee directly all rent
and other sums due and to become due under the Lease regardless of whether
such notice is consented to or contested by Landlord; and Landlord hereby
waives any right to demand from Tenant payment to Landlord of such rent and
other sums after Mortgagee has sent any such notice to Tenant.
LANDLORD:
By: /s/ Arthur Wrubel
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Name: Arthur Wrubel
Title: Manager
STATE OF )
ss.:
COUNTY OF )
On July 7, 1999, before me, a Notary Public in and for said County
and State, personally appeared Michael Zuckert, to me known, who, being by
me duly sworn, and depose and say that he resides at __________________;
that he is the ____________ of ____________________, the ___________ that
signed the above instrument; and that he signed his name thereto by the
authority of the board of directors of said company.
Witness my hand and official seal.
/s/ Deborah R. Slater (SEAL)
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Notary Public
My commission expires: 3-6-2001
STATE OF NEW YORK )
)ss.:
COUNTY NEW YORK )
On July 21, 1999, before me, a Notary Public in and for said County
and State, personally appeared Margaret Imperiale, to me known, who, being
by me duly sworn, and depose and say that she resides at ________________;
that she is the Vice President of PW Real Estate Investments Inc., the
corporation that signed the above instrument; and that she signed her name
thereto by the authority of the board of directors of said company
Witness my hand and official seal.
/s/ Kevin K. Chang (SEAL)
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Notary Public
My commission expires: 2001
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On July 20, 1990, before me, a Notary Public in and for said County
and State, personally appeared Arthur Wrubel, to me known, who, being by me
duly sworn, and depose and say that he resides at ______________________;
that he is the manager of Wrubel 99 LLC, the manager of Stellar Promote
LLC, the manager of Stellar 14 Wall Associates LLC the manager of W12/14
Wall Acquisition Associates LLC that signed the above instrument; and that
(s)he signed his/her name thereto by the authority of the board of
directors of said company.
Witness my hand and official seal.
/s/ Patricia A. Moeller (SEAL)
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Notary Public
Patricia A. Moeller
Notary Public, State of New York
No. 01M04963583
Qualified in Queens County
My Commission Expires July 7, 2000
EXHIBIT "A"
LEGAL DESCRIPTION
ALL that certain plot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the southerly side of
Pine Street and the westerly side of Nassau Street;
RUNNING THENCE westwardly along the southerly side of Pine Street 111 feet
7-3/4 inches to a point;
THENCE continuing westwardly along the said southerly side of Pine Street,
forming an interior angle of 179 degrees 52 minutes 40 seconds with the
preceding course, 66 feet 3-1/4 inches to a point;
THENCE southwardly along a line forming an interior angle of 86 degrees 35
minutes 30 seconds with the preceding course, 78 feet 7-1/4 inches to a
point;
THENCE continuing southwardly along a line forming an interior angle of 181
degrees 54 minutes 30 seconds with the preceding course, 116 feet 0 inches
to a point in the northerly side of Wall Street;
THENCE eastwardly along the northerly side of Wall Street 66 feet 1 inch to
a point;
THENCE continuing eastwardly along the northerly side of Wall Street,
forming an interior angle of 179 degrees 48 minutes 00 seconds with the
preceding course, 69 feet 0 inches to a point;
THENCE continuing eastwardly along the northerly side of Wall Street,
forming an interior of 179 degrees 12 minutes 00 seconds with the preceding
course, 25 feet 1-1/2 inches to the corner formed by the intersection of
the northerly side of Wall Street and the westerly side of Nassau Street;
THENCE northwardly along the westerly side of Nassau Street, 73 feet 6-1/4
inches to a point;
THENCE deflecting 90 degrees 15 minutes 30 seconds toward the east 0 feet
11 inches to a point;
THENCE northwardly along the said westerly side of Nassau Street, forming
an interior angle of 91 degrees 27 minutes 00 seconds with the preceding
course 23 feet 5 inches to a point;
THENCE deflecting 88 degrees 52 minutes 00 seconds to the east 15 feet
11-3/4 inches to a point;
THENCE continuing northwardly along the westerly side of Nassau Street 98
feet 9-1/4 inches to the point or place of BEGINNING.