Preview
FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023
NYSCEF DOC. NO. 118 125 Park Avenue RECEIVED NYSCEF: 11/13/2023
T 212-372-2000
New York, NY 10017 www.nmrk.com
_________________, 2023 (the “Effective Date”)
Roberta Ashkin, Esq., not in her Personal Capacity but as Temporary Receiver
400 East 70th Street
Suite 2205
New York, New York 10021
Re: Commercial Unit A in The Greenwich Condominium, 510 Sixth Avenue, New York,
New York
Ladies and Gentlemen:
On July 19, 2023, O-SB 510 Sixth Finance LLC (together with its successors
and assigns as the holder of the Loan, “Lender”) filed an action, in the Supreme
Court of the State of New York, styled O-SB 510 Sixth Finance LLC, Plaintiff, v. 510
Borrower LLC et al, as Defendants, Index No. 850450/2023 (the “Action”), to
foreclose upon the commercial condominium unit and appurtenant common
elements known as Commercial Unit A of The Greenwich Condominium, located at
510 Sixth Avenue and 65 West 13th Street, New York, New York (such commercial
condominium unit and the common elements appurtenant thereto being hereinafter
referred to as the “Real Property”), which Real Property is more particularly
described in Schedule A annexed hereto. By Order of the Supreme Court of the
State of New York, New York County (the “Court”), filed August 19, 2023, Roberta
Ashkin, not in her individual capacity but as temporary receiver (hereinafter,
“Receiver”), was appointed temporary receiver of the Real Property during the
pendency of the Action. Receiver desires to engage Newmark Retail LLC, a New
York limited liability company, d/b/a Newmark Retail (“Newmark”) as its sole and
exclusive agent with the exclusive right to lease the Real Property. Newmark accepts
such appointment and agrees to abide by the terms of this letter agreement (this
“Agreement”). The terms of such appointment are as follows:
1. Term. The term of this Agreement (the “Term”) shall commence on the
Effective Date and, unless sooner terminated in accordance with the terms of
Section 9 hereof, shall expire on the day preceding the one-year anniversary
of the Effective Date and shall thereafter be renewed for successive periods
of three months each, unless written notice of non-renewal is given by either
party to the other party hereto at least thirty (30) days prior to the end of the
then-existing term, provided, however, that if neither party opts to terminate
this Agreement, this Agreement shall expire, without further action, on the day
preceding the two-year anniversary of the Effective Date. The date upon
which this Agreement expires pursuant to this Section 1 or is sooner
terminated pursuant to Section 9 hereof is referred to herein as the
“Termination Date”.
2. Leasing. Newmark shall investigate and develop all offers and inquiries, and
shall canvass, solicit, advertise, and otherwise use its commercially diligent
efforts to bring about the leasing of the Real Property. The Real Property
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shall be offered for lease at rates to be determined in writing by Receiver.
Each lease or license of the Real Property is referred to herein as a “Lease,”
and, collectively, as the “Leases.” Receiver shall cooperate with Newmark
during the term of this Agreement and shall promptly refer to Newmark all
communications, offers, and inquiries, regardless of source, with respect to
the leasing of the Real Property. All negotiations regarding rental rates and
other terms of any proposed Lease of the Real Property (whether embodied
in a letter of intent, term sheet or otherwise) shall be subject to Receiver’s
approval, in Receiver’s sole and absolute discretion, as shall the terms of the
documentation memorializing any proposed Lease, including the Lease itself
and any guaranty or other document and instrument executed in connection
with the Lease. Receiver shall have the right to reject any proposed tenant or
lease or license terms and to withdraw from negotiations regarding any
proposed Lease, in either case in Receiver’s sole and absolute discretion,
whereupon Newmark shall have no claim for a commission, fee or other
similar compensation under this Agreement on account of the proposed
Lease or any negotiations related thereto. Newmark shall not hold itself out
as having the authority to make representations or warranties on behalf of
Receiver or the authority to bind Receiver as to the terms of any prospective
lease or any other matter.
3. Leasing Team. It is expressly understood that Jeffrey Roseman shall be
assigned primary responsibility for supervising and conducting the leasing
activities for the Real Property. Such person is referred to herein as the
“Leasing Team.” Newmark shall obtain Receiver’s prior written consent to
any changes to the Leasing Team.
4. Independent Contractor. Newmark is an independent contractor and no
officers, independent contractors, or employees of Newmark shall be deemed
to be an employee or agent of Receiver for any purpose whatsoever.
Accordingly, and without limiting the generality of the foregoing, the officers,
independent contractors and employees of Newmark will not be eligible for
any coverage or participation in any employee benefits plans or programs of
Receiver or any permitted successor or assign of Receiver. Newmark
represents and warrants that Newmark will be solely responsible for and will
pay and/or withhold, as applicable, all compensation, income and payroll
taxes with respect to Newmark’s officers, independent contractors and
employees.
5. Commissions.
(a) In connection with any new Lease concluded during the Term (or during
the Tail Period (as hereinafter defined), subject to the terms of Section 10
hereof), or the renewal or extension of the term of a Lease or the
expansion of the premises demised under a Lease which is effectuated
during the Term (or during the Tail Period, subject to the terms of Section
10 hereof), Receiver shall pay to Newmark and Newmark shall earn and
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hereby agrees to accept, as Newmark’s sole and exclusive compensation
for services rendered in its capacity as exclusive leasing agent in
connection with such Lease (except as provided in Section 7 hereof),
commissions as calculated in accordance with Section 1 of Schedule B
annexed hereto and made a part hereof. Such commissions shall be
payable in accordance with the payment schedule set forth in Section 2 of
Schedule B annexed hereto, and shall only be payable with respect to any
Lease: (i) which is fully executed by both Receiver, as the landlord
thereunder, and the tenant thereunder; and (ii) as to which all conditions
necessary to the effectiveness thereof shall have been satisfied or the
requirement therefor shall have been otherwise waived by the appropriate
party(ies), including, without limitation, (A) the approval of the Court and/or
Lender, if such approval is required pursuant to the Order or any
subsequent order made by the Court in the Action and (B) the tenant’s
receipt of a subordination, non-disturbance and attornment agreement
from Lender, if the same is a condition necessary to the effectiveness of
the Lease (or extension thereof, or expansion of the demise thereunder).
If Receiver declines to execute and deliver any Lease for any reason
whatsoever, or any Lease is terminated by virtue of the failure of any
condition necessary to the effectiveness thereof, Newmark shall not be
entitled to any commission, fee or other similar compensation in
connection with such Lease and any negotiations related thereto. For the
avoidance of doubt, the commissions payable to Newmark pursuant to this
Section 5 shall be the sole and exclusive commission, fee and similar
compensation payable to Newmark on account of the services rendered
by Newmark pursuant to this Agreement in connection with any such
Lease and any negotiations related thereto, it being understood that
Newmark shall not be entitled to any reimbursement or other payments on
account of such services, other than in accordance with Section 7 hereof.
(b) Notwithstanding any contrary term set forth in this Agreement, Newmark
shall not be entitled to any commission, fee or other similar compensation
as the leasing agent under this Agreement in connection with any Lease
contracted by Receiver with Exhibition Hub, NYC LLC (“Exhibition Hub”)
or any affiliate thereof (including, without limitation, Exhibition Hub Banksy
NY, LLC), of all or any portion of the premises formerly licensed to
Exhibition Hub for use as an immersive content museum experience,
provided, however, that if Receiver, upon written notice to Newmark,
requests that Newmark assist the Receiver in connection with the
negotiation of any such Lease, and such negotiations culminate in the
mutual execution and delivery by Receiver and Exhibition Hub or its
affiliate of a Lease, then, subject to the satisfaction of the conditions to the
payment of a commission set forth in Section 5(a) of this Agreement,
Broker as the leasing agent shall become entitled to the payment of a
commission pursuant to this Agreement on account of such Lease, as
though such Lease were not a new Lease but rather a renewal or
extension of the term of the former Lease to Exhibition Hub (and thus the
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commission rates applicable to the lease years within the term of such
Lease shall be calculated with reference to the original commencement
date of the term of the former Lease, i.e., August 14, 2021). Any such
commission shall be payable in installments as provided in Section 2 of
Schedule B annexed hereto, as though such Lease were a new Lease. If
Receiver does not request Newmark’s involvement in connection with the
negotiation of any such Lease with Exhibition Hub or its affiliate, Newmark
shall have no obligation to provide services with respect thereto and shall
incur no liability under this Agreement with respect to such negotiations or
any Lease thereafter contracted by Receiver with Exhibition Hub. In all
events, upon Newmark’s reasonable request, Receiver shall provide
Newmark with a status update of any negotiations with the Exhibition Hub or
its affiliate.
6. Outside Broker. If a potential tenant is represented by a third party broker or
advisor (each, an “Outside Broker”), Newmark agrees that, absent
Receiver’s prior written consent, Newmark will not proceed with negotiations
with such tenant or the Outside Broker unless and until the Outside Broker
has executed and delivered a separate written agreement to Newmark
pursuant to which, subject to Receiver paying Newmark the full commission
set forth in Section 5 hereof (and Newmark’s collection thereof in good funds),
the Outside Broker agrees to look solely to Newmark (and not to Receiver or
her successors or assigns) for the payment of any commission upon the
consummation of a Lease with such tenant. Upon the consummation of a
Lease with any such tenant, and subject to the conditions to Newmark’s
entitlement to a commission set forth in Section 5 hereof, Receiver shall pay
Newmark one full commission as calculated in accordance with, and payable
as provided, in Schedule B annexed hereto, whereupon, subject to the
collection thereof in good funds, Newmark shall remit to the Outside Broker
the portion thereof to which such Outside Broker is entitled pursuant to the
aforesaid separate written agreement.
7. Advertising. Newmark shall prepare a budget setting forth all anticipated
advertising and promotional costs for the Real Property for Receiver’s
approval. Receiver shall reimburse Newmark for advertising and promotional
costs from time to time upon Newmark’s submission to Receiver of evidence
substantiating such expenditures, provided that such expenditures are
contemplated by the budget approved by Receiver. Subject to the rights of
existing tenants, Newmark shall be permitted to erect or place signs on the
facade or windows of the Real Property in those locations Newmark
determines will be most beneficial to the successful leasing of the Real
Property, subject to Receiver’s prior written approval as to location and
content of such signs. Receiver shall further have approval rights over all
other advertising and promotional materials, including website listings.
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8. Exclusion. No commission, fee or other similar compensation shall be
payable by Receiver to Newmark pursuant to this Agreement in connection
with any sale, ground lease or other disposition of the Real Property.
9. Termination.
(a) Receiver may terminate this Agreement: (i) for a Cause Termination Event
(as hereinafter defined), immediately upon written notice, in the event of a
Cause Termination Event described in Section 9(c)(i)(B) and (C) hereof,
and upon five (5) days’ prior written notice, upon the occurrence of a
Cause Termination Event described in Section 9(c)(i)(A) hereof; or (ii) for
any reason (or for no reason) upon not less than thirty (30) days’ prior
written notice by Receiver to Newmark, provided, however, that any notice
of termination given pursuant to this clause (ii) may not effectuate a
termination of this Agreement prior to the date which is six (6) months
after the Effective Date. Newmark may terminate this Agreement: (a)
immediately upon five (5) days’ prior written notice at any time upon a
default by Receiver in the payment or performance by Receiver of its
obligations under this Agreement, which default remains uncured more
than thirty (30) days after Receiver’s receipt of notice thereof from
Newmark; or (b) for any other reason (or for no reason) upon not less than
thirty (30) days’ prior written notice by Newmark to Receiver, provided,
however, that any notice of termination given pursuant to this clause (b)
may not effectuate a termination of this Agreement prior to the date which
is six (6) months after the Effective Date.
(b) Without limitation of Receiver’s rights under Section 9(a) hereof, upon the
occurrence of any one or more of the following events, subject to the
terms of Section 15 hereof, this Agreement shall automatically terminate:
(i) the sale or conveyance of the Real Property, whether by foreclosure,
conveyance by deed-in-lieu of foreclosure or otherwise; (ii) the
condemnation of the Real Property or such substantial portion of the Real
Property, the remainder of which, as determined by Receiver, cannot be
operated in a commercially reasonable manner; or (iii) the destruction of
all or substantially all of the Real Property.
(c) For purposes of this Agreement, the following terms shall have the
following meanings:
(i) “Cause Termination Event” means the occurrence of any of the
following:
(A) Any breach or default of any material term or provision of this
Agreement by Newmark, which default remains uncured ten (10)
days after Newmark’s receipt of notice thereof from Receiver (a
“Default Notice”), which Default Notice shall state that it is given
pursuant to this Section 9(c)(i)(A) and set forth with reasonable
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specificity the nature of the default; provided, however, that if the
default is not susceptible of cure within the aforesaid ten (10) day
period, the period within which to cure the same shall be extended
for such reasonable period of time, not to exceed thirty (30) days,
as shall be required to cure the default, provided that Newmark
commences the cure of the default within the initial ten (10) day
cure period and thereafter prosecutes the cure with diligence and
continuity through completion;
(B) Any actions or omissions on the part of Newmark which amount to
fraud, theft or willful misappropriation of funds with respect to the
Real Property, provided, however, that if the fraud, theft or willful
misconduct arises by reason of the actions of any independent
contractor or employee of Newmark, the same shall not give rise to
a Cause Termination Event if (x) Newmark terminates such
independent contractor or employee and (y) Newmark indemnifies,
defends and holds the Receiver harmless from and against any and
all loss, cost, claim or expense (collectively, “Claims”), including,
without limitation, reasonable attorneys’ fees, arising by reason
thereof. With respect to Claims to which the foregoing
indemnification, defense and hold harmless provision applies,
Receiver agrees to the following: (I) to give Newmark prompt notice
of thereof; (II) to cooperate with the reasonable requests of Newmark
in the defense thereof; (III) to permit Newmark to defend such Claims
with counsel of Newmark’s own choosing, subject to the approval of
Receiver, which approval shall not be unreasonably withheld,
conditioned, or delayed; and (IV) not to settle or compromise such
Claims without Newmark’s prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed, it being
understood that the mere fact that a settlement would give rise to a
Claim by Receiver for indemnification pursuant to this Section 16
shall not constitute reasonable grounds for withholding consent.;
and/or
(C) The occurrence of a Bankruptcy Action (as hereinafter defined) with
respect to Newmark; and
(ii) “Bankruptcy Action” means, with respect to Newmark: (i) the entry of
an Order for Relief under the Bankruptcy Code; (ii) the admission by
Newmark of its inability to pay its debts as they mature; (iii) the making
by it of an assignment for the benefit of creditors; (iv) the filing by it of a
petition in bankruptcy or a petition for relief under the Bankruptcy Code
or any other applicable federal or state bankruptcy or insolvency
statute or any similar law; (v) the expiration of ninety (90) days after the
filing of an involuntary petition under the Bankruptcy Code or an
involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other federal or state insolvency
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law, provided that the same shall not have been vacated, set aside or
stayed within such ninety (90) day period; (vi) Newmark’s application
for, or consent to, the appointment of a receiver or other similar official
for the assets of Newmark; or (vii) the imposition of a judicial or
statutory lien on all or a substantial part of Newmark’s assets unless
such lien is discharged or vacated or the enforcement thereof stayed
within thirty (30) days after its effective date.
10. Tail. Within ten (10) Business Days (as hereinafter defined) following the
expiration or sooner termination of this Agreement, other than any termination
of this Agreement by reason of the occurrence of a Cause Termination Event,
Newmark may deliver to Receiver a list of all parties (collectively, the
“Prospects”) with whom Newmark was engaged, as of the Termination Date,
in Active Negotiations (as hereinafter defined) for leasing the Real Property
on Receiver’s behalf, including a reasonably detailed description of the nature
of the contacts between Newmark and such Prospects. Prospects may
include existing tenants with whom Receiver has engaged in Active
Negotiations for the extension of the term of a Lease or the expansion of the
demise of premises thereunder, provided, however, that no commission shall
be payable to Newmark in respect of any such extension or expansion which
is made after the Termination Date, if the same is effectuated pursuant to an
express right or option set forth in the Lease (whether or not the tenant is set
forth on the Prospects list). Time shall be of the essence as to the delivery by
Newmark of such list of Prospects, and failure by Newmark to timely do so
shall constitute a waiver of Newmark’s rights under this Section 10.
“Active Negotiations,” as used herein, shall mean only bona fide
business dealings in which any of the following shall have occurred prior
to the Termination Date: (a) Newmark has, with Receiver’s approval,
submitted a written proposal, offer, letter of intent or similar document (each,
an “Offer”) to the Prospect; or (b) the Prospect or its representative has
submitted an Offer to lease which has been received by Receiver; or (c) a
first draft of a Lease or Lease amendment has been prepared and
delivered to the Prospect. If, within ninety (90) days after the Termination
Date (the “Tail Period”), a Lease or Lease amendment is fully executed
with any Prospects properly identified on Newmark’s list, Receiver shall
pay Newmark a commission(s) calculated in accordance with, and
payable as provided in, Schedule B annexed hereto. For the avoidance
of doubt, upon any termination of this Agreement by reason of a Cause
Termination Event, Newmark may not furnish Receiver with a list of
Prospects, nor shall Newmark become entitled to the payment of any
commission on account of any Lease or Lease amendment, other than
any unpaid installment of a commission on account of a Lease or Lease
amendment contracted by Receiver prior to the giving of notice of such
Cause Termination Event. For the further avoidance of doubt, upon any
other expiration or termination of this Agreement (i.e., for any reason
other than the occurrence of a Cause Termination Event), Newmark’s
sole entitlement to further commissions, fees or other similar
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compensation under this Agreement shall be limited to (i) any accrued,
unpaid installment of a commission earned during the Term, payable as
and when the same becomes payable pursuant to Section 2 of Schedule
B annexed hereto and (ii) any commission to which Newmark may
become entitled in respect of Prospects pursuant to this Section 10. The
provisions of this Section 10 shall survive the expiration or sooner
termination of the Term.
11. Reporting. Newmark shall prepare and submit to Receiver and Lender (via
the electronic mail addresses for such parties set forth in Section 22 hereof)
bi-weekly marketing status reports which shall list all prospective tenants
contacted by Newmark and the status of each prospective Lease, and
Newmark shall confer with Receiver and a representative of Lender not less
than once every two (2) weeks to review such Lease status and reports. In
addition, Newmark shall provide Receiver and Lender (via electronic mail as
hereinbefore provided) with copies of all material correspondence,
memoranda and marketing materials connected with Newmark’s leasing and
marketing activity pursuant to this Agreement. No later than fifteen (15) days
after the Effective Date, Newmark shall develop and submit for Receiver’s
review and approval (with a copy to Lender via electronic mail as
hereinbefore provided) formal lease rate proposals for every vacant unit of the
Real Property, including supporting analysis and comparable lease terms.
12. Survival of Obligations. Upon the Termination Date, (a) Receiver’s
appointment of Newmark hereunder shall cease and terminate and, except as
otherwise specifically provided in this Agreement, Receiver shall have no
further obligation or liability to Newmark, (b) Newmark shall no longer have
any authority to represent Receiver, or take or cause to be taken any actions
on Receiver’s behalf, (c) Newmark shall turn over to Receiver all lease files
and other information relating to leasing activity at the Real Property,
provided, however, that Newmark may retain copies of any such materials to
the extent required by law, regulation, and/or Newmark’s document retention
policy(ies), and (d) Receiver shall pay Newmark all compensation accrued,
unpaid commissions due to Newmark under this Agreement, other than any
commission or installment thereof which, by the terms of this Agreement, is
not yet due and payable to Newmark. The provisions of this Section 12 shall
survive the expiration or sooner termination of the Term.
13. Cooperation. The parties hereto shall operate in a professional and ethical
manner at all times during the term of this Agreement and for any
transactions which survive this Agreement.
14. Dual Representation. Receiver acknowledges that Newmark may represent
both a potential tenant and Receiver simultaneously with respect to the same
transaction, and, provided that Newmark provides Receiver with prior notice
of such dual representation and observes ethical standards applicable to such
dual representation generally observed by the commercial brokerage
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community or by which the commercial brokerage community is bound,
Receiver consents to such dual representation.
15. Sale or Conveyance. In the event the Real Property is sold, conveyed or
otherwise transferred, Receiver shall cause the purchaser or transferee to
assume in writing the obligation to pay any amounts which may become due
to Newmark under this Agreement (and provide Newmark with a copy of such
assumption agreement), whereupon Receiver shall be released from all such
obligations. The provisions of this Section 15 shall survive the expiration or
sooner termination of the Term.
16. Indemnification.
(a) Newmark hereby agrees to indemnify, defend and hold Receiver harmless
from and against any and all Claims, including, without limitation,
reasonable attorneys’ fees, incurred by Receiver by reason of any claim
for a brokerage commission, finder’s fee or like compensation made by
any other person, firm or entity acting as a real estate broker alleging (i) to
represent a tenant in connection with a Lease and (ii) claiming to have
dealt with Newmark in connection with such Lease transaction (other than
an Outside Broker, provided that Newmark has performed its obligations
under Section 6 of this Agreement); provided, however, that Newmark’s
aggregate liability pursuant to the foregoing indemnification, defense and
hold harmless provision pertaining to third-party brokerage Claims shall not
exceed the amount of the commission actually received by Newmark
hereunder in connection with the Lease giving rise to such Claims. The
foregoing indemnification, defense and hold harmless provision shall not
apply to Claims made by an Outside Broker where the Outside Broker has
earned a commission in connection with a Lease transaction and Receiver
has defaulted in respect of its obligation to pay Newmark a commission in
respect of such Lease as and when the same becomes due in accordance
with the terms of this Agreement. Newmark hereby further agrees to
indemnify, defend and hold Receiver harmless from and against any
Claims arising by reason of: (I) Newmark’s acts or omissions outside the
scope of authority granted to Newmark under this Agreement; (II)
Newmark’s negligent misrepresentation, fraud, gross negligence or willful
misconduct; (III) Newmark’s material breach of this Agreement; and (IV)
agreements between Newmark and its employees or salespeople to pay
them a portion or all of a commission paid pursuant to this Agreement.
Notwithstanding the foregoing, Newmark shall not be liable for (A) actions
taken as specifically directed by Receiver; (B) statements made by
Newmark as provided or approved by Receiver; (C) any conditions of the
Property; and/or (D) any losses that would be avoided by Receiver’s
engagement of experts as contemplated by the following two sentences.
It is understood and acknowledged that under no circumstances is
Newmark acting as Receiver’s legal counsel, and Receiver shall not rely
upon Newmark for same. Receiver acknowledges that Receiver has been
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and is now advised by Newmark to consult and retain Receiver’s own
experts to advise and represent Receiver concerning the legal and tax
effects of a transaction, as well as the condition of the Property.
(b) With respect to all Claims to which the indemnification, defense and hold
harmless provisions of Section 16(a) apply, Receiver agrees to the following:
(A) to give Newmark prompt notice of thereof; (B) to cooperate with the
reasonable requests of Newmark in the defense thereof; (C) to permit
Newmark to defend such Claims with counsel of Newmark’s own choosing,
subject to the approval of Receiver, which approval shall not be
unreasonably withheld, conditioned, or delayed; and (D) not to settle or
compromise such Claims without Newmark’s prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed, it being
understood that the mere fact that a settlement would give rise to a Claim by
Receiver for indemnification pursuant to this Section 16 shall not constitute
reasonable grounds for withholding consent. The provisions of this Section
16 shall survive the expiration or sooner termination of the Term.
17. Exculpation. Newmark hereby agrees to look solely to Receiver’s interest in
the Real Property, or the revenue derived therefrom and/or proceeds of any
sale, transfer, or conveyance thereof and/or any insurance policy thereon, for
the satisfaction of any Claims arising or accruing against Receiver under this
Agreement, and in no event shall Receiver have any personal liability under
this Agreement. The provisions of this Section 17 shall survive the expiration
or sooner termination of the Term.
18. Insurance. Newmark shall, during the Term, at Newmark’s expense, procure
and maintain the insurance coverages set forth in Schedule C annexed
hereto and made a part hereof.
19. Prevailing Party. In the event that any litigation is brought with respect to any
dispute between the parties hereto, the non-prevailing party in such litigation
shall reimburse the prevailing party for all of its reasonable out-of-pocket
costs incurred, including reasonable attorneys’ fees and disbursements, in
connection with such litigation and the costs of collection of any settlement or
judgment thereon. The provisions of this Section 19 shall survive the
expiration or sooner termination of the Term.
20. New Leases. Receiver shall provide Newmark with a copy of each fully
executed Lease upon Newmark’s request.
21. Representation by Newmark. Newmark represents and warrants that it is a
duly licensed real estate broker in the State of New York. Newmark further
represents that Newmark has obtained all limited liability consents required
for Newmark to execute and deliver this Agreement, and that the person
signing this Agreement on behalf of Newmark is duly authorized to do so.
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22. Notices. All communications provided for or permitted hereunder will be in
writing and will be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by overnight express courier delivery service and
received by the addressee, or (d) transmitted by electronic mail with written
evidence of receipt by the addressee, in each case at the following
addresses:
If to Receiver: ROBERTA ASHKIN, ESQ.
Ashkin Law Firm
400 East 70th Street
Suite 2205
New York, New York 10021
Email: ra@ashkinlaw.com
With a copy: O-SB 510 SIXTH FINANCE LLC
c/o Broadshore Capital Partners
10 Hudson Yards, 20th Floor
New York, New York 10001
Attention: James Pomeranz
Email: james_pomeranz@Broadshore.com
If to Newmark: NEWMARK RETAIL LLC
125 Park Avenue
New York, New York 10017
Attention: Jeffrey Roseman
Email: jeffrey.roseman@nmrk.com
And a copy to: NEWMARK
125 Park Avenue
New York, New York 10017
Attention: General Counsel
Email: legaldept@nmrk.com
And a copy: O-SB 510 SIXTH FINANCE LLC
c/o Broadshore Capital Partners
10 Hudson Yards, 20th Floor
New York, New York 10001
Attention: James Pomeranz
Email: james_pomeranz@Broadshore.com
The designation of such person and/or address may be changed at any time
by either party upon written notice given under this Section. All notices,
demands, requests or other communications sent pursuant to this Section will
be deemed received (i) if personally delivered, on the Business Day of
delivery, (ii) if sent by electronic mail before 5:00 P.M. of the locality of the
address of the notice on the day sent if a Business Day or, if such day is not a
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Business Day or if sent after 5:00 P.M. of the locality of the address of the
notice, on the next business day, (iii) if sent by overnight express carrier, on
the next Business Day immediately following the day sent or (iv) if sent by
registered or certified mail, on the earlier of the third Business Day after the
day sent or when actually received. Counsel for Receiver or Newmark may
furnish notice under this Agreement on their respective client’s behalf, any
such notice to have the same effect as notice given by Receiver or Newmark,
as applicable. For purposes of this Agreement, the term “Business Day”
shall mean any day other than a Saturday, Sunday or other day on which
banks in the City of New York are authorized or required by law to be closed.
23. Successors and Assigns. This Agreement shall bind, and inure to the benefit
of, Receiver and Newmark and their respective permitted successors and
assigns. Notwithstanding the foregoing, Newmark may not assign any rights
to or in this Agreement or delegate any duties under this Agreement, except
to an entity that acquires all or substantially all of Newmark’s assets through
merger, consolidation, or otherwise, without the prior written consent of
Receiver, which consent may be withheld, conditioned or delayed for any
reason in Receiver’s sole and absolute discretion.
24. Miscellaneous. This Agreement (a) contains the entire understanding of the
parties hereto with respect to the subject matter hereof; (b) may not be
changed or modified orally, but only by written instrument signed by the
parties hereto; (c) shall be governed by and construed in accordance with the
laws of the State of New York; and (d) may not be strictly construed against
Newmark or Receiver, each party agreeing that it has participated fully and
equally in the preparation of this Agreement.
25. Jury Trial Waiver. Each of Receiver and Newmark waive any right she or it
may have to a trial by jury in any action or proceeding arising under this
Agreement.
26. Execution. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which, taken together,
shall constitute a fully executed agreement, with the same effect and validity
as a single, original agreement signed by both parties. To facilitate execution
of this Agreement by the parties, facsimile, electronic and PDF copy
signatures shall have the same validity and effect as original signatures.
If the foregoing is acceptable to you, please sign below to acknowledge
same.
Very truly yours,
NEWMARK RETAIL LLC,
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a New York limited liability company, d/b/a
Newmark Retail
Preview
FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 125 Park Avenue RECEIVED NYSCEF: 11/13/2023 T 212-372-2000 New York, NY 10017 www.nmrk.com _________________, 2023 (the “Effective Date”) Roberta Ashkin, Esq., not in her Personal Capacity but as Temporary Receiver 400 East 70th Street Suite 2205 New York, New York 10021 Re: Commercial Unit A in The Greenwich Condominium, 510 Sixth Avenue, New York, New York Ladies and Gentlemen: On July 19, 2023, O-SB 510 Sixth Finance LLC (together with its successors and assigns as the holder of the Loan, “Lender”) filed an action, in the Supreme Court of the State of New York, styled O-SB 510 Sixth Finance LLC, Plaintiff, v. 510 Borrower LLC et al, as Defendants, Index No. 850450/2023 (the “Action”), to foreclose upon the commercial condominium unit and appurtenant common elements known as Commercial Unit A of The Greenwich Condominium, located at 510 Sixth Avenue and 65 West 13th Street, New York, New York (such commercial condominium unit and the common elements appurtenant thereto being hereinafter referred to as the “Real Property”), which Real Property is more particularly described in Schedule A annexed hereto. By Order of the Supreme Court of the State of New York, New York County (the “Court”), filed August 19, 2023, Roberta Ashkin, not in her individual capacity but as temporary receiver (hereinafter, “Receiver”), was appointed temporary receiver of the Real Property during the pendency of the Action. Receiver desires to engage Newmark Retail LLC, a New York limited liability company, d/b/a Newmark Retail (“Newmark”) as its sole and exclusive agent with the exclusive right to lease the Real Property. Newmark accepts such appointment and agrees to abide by the terms of this letter agreement (this “Agreement”). The terms of such appointment are as follows: 1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and, unless sooner terminated in accordance with the terms of Section 9 hereof, shall expire on the day preceding the one-year anniversary of the Effective Date and shall thereafter be renewed for successive periods of three months each, unless written notice of non-renewal is given by either party to the other party hereto at least thirty (30) days prior to the end of the then-existing term, provided, however, that if neither party opts to terminate this Agreement, this Agreement shall expire, without further action, on the day preceding the two-year anniversary of the Effective Date. The date upon which this Agreement expires pursuant to this Section 1 or is sooner terminated pursuant to Section 9 hereof is referred to herein as the “Termination Date”. 2. Leasing. Newmark shall investigate and develop all offers and inquiries, and shall canvass, solicit, advertise, and otherwise use its commercially diligent efforts to bring about the leasing of the Real Property. The Real Property Page 1 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 shall be offered for lease at rates to be determined in writing by Receiver. Each lease or license of the Real Property is referred to herein as a “Lease,” and, collectively, as the “Leases.” Receiver shall cooperate with Newmark during the term of this Agreement and shall promptly refer to Newmark all communications, offers, and inquiries, regardless of source, with respect to the leasing of the Real Property. All negotiations regarding rental rates and other terms of any proposed Lease of the Real Property (whether embodied in a letter of intent, term sheet or otherwise) shall be subject to Receiver’s approval, in Receiver’s sole and absolute discretion, as shall the terms of the documentation memorializing any proposed Lease, including the Lease itself and any guaranty or other document and instrument executed in connection with the Lease. Receiver shall have the right to reject any proposed tenant or lease or license terms and to withdraw from negotiations regarding any proposed Lease, in either case in Receiver’s sole and absolute discretion, whereupon Newmark shall have no claim for a commission, fee or other similar compensation under this Agreement on account of the proposed Lease or any negotiations related thereto. Newmark shall not hold itself out as having the authority to make representations or warranties on behalf of Receiver or the authority to bind Receiver as to the terms of any prospective lease or any other matter. 3. Leasing Team. It is expressly understood that Jeffrey Roseman shall be assigned primary responsibility for supervising and conducting the leasing activities for the Real Property. Such person is referred to herein as the “Leasing Team.” Newmark shall obtain Receiver’s prior written consent to any changes to the Leasing Team. 4. Independent Contractor. Newmark is an independent contractor and no officers, independent contractors, or employees of Newmark shall be deemed to be an employee or agent of Receiver for any purpose whatsoever. Accordingly, and without limiting the generality of the foregoing, the officers, independent contractors and employees of Newmark will not be eligible for any coverage or participation in any employee benefits plans or programs of Receiver or any permitted successor or assign of Receiver. Newmark represents and warrants that Newmark will be solely responsible for and will pay and/or withhold, as applicable, all compensation, income and payroll taxes with respect to Newmark’s officers, independent contractors and employees. 5. Commissions. (a) In connection with any new Lease concluded during the Term (or during the Tail Period (as hereinafter defined), subject to the terms of Section 10 hereof), or the renewal or extension of the term of a Lease or the expansion of the premises demised under a Lease which is effectuated during the Term (or during the Tail Period, subject to the terms of Section 10 hereof), Receiver shall pay to Newmark and Newmark shall earn and Page 2 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 hereby agrees to accept, as Newmark’s sole and exclusive compensation for services rendered in its capacity as exclusive leasing agent in connection with such Lease (except as provided in Section 7 hereof), commissions as calculated in accordance with Section 1 of Schedule B annexed hereto and made a part hereof. Such commissions shall be payable in accordance with the payment schedule set forth in Section 2 of Schedule B annexed hereto, and shall only be payable with respect to any Lease: (i) which is fully executed by both Receiver, as the landlord thereunder, and the tenant thereunder; and (ii) as to which all conditions necessary to the effectiveness thereof shall have been satisfied or the requirement therefor shall have been otherwise waived by the appropriate party(ies), including, without limitation, (A) the approval of the Court and/or Lender, if such approval is required pursuant to the Order or any subsequent order made by the Court in the Action and (B) the tenant’s receipt of a subordination, non-disturbance and attornment agreement from Lender, if the same is a condition necessary to the effectiveness of the Lease (or extension thereof, or expansion of the demise thereunder). If Receiver declines to execute and deliver any Lease for any reason whatsoever, or any Lease is terminated by virtue of the failure of any condition necessary to the effectiveness thereof, Newmark shall not be entitled to any commission, fee or other similar compensation in connection with such Lease and any negotiations related thereto. For the avoidance of doubt, the commissions payable to Newmark pursuant to this Section 5 shall be the sole and exclusive commission, fee and similar compensation payable to Newmark on account of the services rendered by Newmark pursuant to this Agreement in connection with any such Lease and any negotiations related thereto, it being understood that Newmark shall not be entitled to any reimbursement or other payments on account of such services, other than in accordance with Section 7 hereof. (b) Notwithstanding any contrary term set forth in this Agreement, Newmark shall not be entitled to any commission, fee or other similar compensation as the leasing agent under this Agreement in connection with any Lease contracted by Receiver with Exhibition Hub, NYC LLC (“Exhibition Hub”) or any affiliate thereof (including, without limitation, Exhibition Hub Banksy NY, LLC), of all or any portion of the premises formerly licensed to Exhibition Hub for use as an immersive content museum experience, provided, however, that if Receiver, upon written notice to Newmark, requests that Newmark assist the Receiver in connection with the negotiation of any such Lease, and such negotiations culminate in the mutual execution and delivery by Receiver and Exhibition Hub or its affiliate of a Lease, then, subject to the satisfaction of the conditions to the payment of a commission set forth in Section 5(a) of this Agreement, Broker as the leasing agent shall become entitled to the payment of a commission pursuant to this Agreement on account of such Lease, as though such Lease were not a new Lease but rather a renewal or extension of the term of the former Lease to Exhibition Hub (and thus the Page 3 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 commission rates applicable to the lease years within the term of such Lease shall be calculated with reference to the original commencement date of the term of the former Lease, i.e., August 14, 2021). Any such commission shall be payable in installments as provided in Section 2 of Schedule B annexed hereto, as though such Lease were a new Lease. If Receiver does not request Newmark’s involvement in connection with the negotiation of any such Lease with Exhibition Hub or its affiliate, Newmark shall have no obligation to provide services with respect thereto and shall incur no liability under this Agreement with respect to such negotiations or any Lease thereafter contracted by Receiver with Exhibition Hub. In all events, upon Newmark’s reasonable request, Receiver shall provide Newmark with a status update of any negotiations with the Exhibition Hub or its affiliate. 6. Outside Broker. If a potential tenant is represented by a third party broker or advisor (each, an “Outside Broker”), Newmark agrees that, absent Receiver’s prior written consent, Newmark will not proceed with negotiations with such tenant or the Outside Broker unless and until the Outside Broker has executed and delivered a separate written agreement to Newmark pursuant to which, subject to Receiver paying Newmark the full commission set forth in Section 5 hereof (and Newmark’s collection thereof in good funds), the Outside Broker agrees to look solely to Newmark (and not to Receiver or her successors or assigns) for the payment of any commission upon the consummation of a Lease with such tenant. Upon the consummation of a Lease with any such tenant, and subject to the conditions to Newmark’s entitlement to a commission set forth in Section 5 hereof, Receiver shall pay Newmark one full commission as calculated in accordance with, and payable as provided, in Schedule B annexed hereto, whereupon, subject to the collection thereof in good funds, Newmark shall remit to the Outside Broker the portion thereof to which such Outside Broker is entitled pursuant to the aforesaid separate written agreement. 7. Advertising. Newmark shall prepare a budget setting forth all anticipated advertising and promotional costs for the Real Property for Receiver’s approval. Receiver shall reimburse Newmark for advertising and promotional costs from time to time upon Newmark’s submission to Receiver of evidence substantiating such expenditures, provided that such expenditures are contemplated by the budget approved by Receiver. Subject to the rights of existing tenants, Newmark shall be permitted to erect or place signs on the facade or windows of the Real Property in those locations Newmark determines will be most beneficial to the successful leasing of the Real Property, subject to Receiver’s prior written approval as to location and content of such signs. Receiver shall further have approval rights over all other advertising and promotional materials, including website listings. Page 4 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 8. Exclusion. No commission, fee or other similar compensation shall be payable by Receiver to Newmark pursuant to this Agreement in connection with any sale, ground lease or other disposition of the Real Property. 9. Termination. (a) Receiver may terminate this Agreement: (i) for a Cause Termination Event (as hereinafter defined), immediately upon written notice, in the event of a Cause Termination Event described in Section 9(c)(i)(B) and (C) hereof, and upon five (5) days’ prior written notice, upon the occurrence of a Cause Termination Event described in Section 9(c)(i)(A) hereof; or (ii) for any reason (or for no reason) upon not less than thirty (30) days’ prior written notice by Receiver to Newmark, provided, however, that any notice of termination given pursuant to this clause (ii) may not effectuate a termination of this Agreement prior to the date which is six (6) months after the Effective Date. Newmark may terminate this Agreement: (a) immediately upon five (5) days’ prior written notice at any time upon a default by Receiver in the payment or performance by Receiver of its obligations under this Agreement, which default remains uncured more than thirty (30) days after Receiver’s receipt of notice thereof from Newmark; or (b) for any other reason (or for no reason) upon not less than thirty (30) days’ prior written notice by Newmark to Receiver, provided, however, that any notice of termination given pursuant to this clause (b) may not effectuate a termination of this Agreement prior to the date which is six (6) months after the Effective Date. (b) Without limitation of Receiver’s rights under Section 9(a) hereof, upon the occurrence of any one or more of the following events, subject to the terms of Section 15 hereof, this Agreement shall automatically terminate: (i) the sale or conveyance of the Real Property, whether by foreclosure, conveyance by deed-in-lieu of foreclosure or otherwise; (ii) the condemnation of the Real Property or such substantial portion of the Real Property, the remainder of which, as determined by Receiver, cannot be operated in a commercially reasonable manner; or (iii) the destruction of all or substantially all of the Real Property. (c) For purposes of this Agreement, the following terms shall have the following meanings: (i) “Cause Termination Event” means the occurrence of any of the following: (A) Any breach or default of any material term or provision of this Agreement by Newmark, which default remains uncured ten (10) days after Newmark’s receipt of notice thereof from Receiver (a “Default Notice”), which Default Notice shall state that it is given pursuant to this Section 9(c)(i)(A) and set forth with reasonable Page 5 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 specificity the nature of the default; provided, however, that if the default is not susceptible of cure within the aforesaid ten (10) day period, the period within which to cure the same shall be extended for such reasonable period of time, not to exceed thirty (30) days, as shall be required to cure the default, provided that Newmark commences the cure of the default within the initial ten (10) day cure period and thereafter prosecutes the cure with diligence and continuity through completion; (B) Any actions or omissions on the part of Newmark which amount to fraud, theft or willful misappropriation of funds with respect to the Real Property, provided, however, that if the fraud, theft or willful misconduct arises by reason of the actions of any independent contractor or employee of Newmark, the same shall not give rise to a Cause Termination Event if (x) Newmark terminates such independent contractor or employee and (y) Newmark indemnifies, defends and holds the Receiver harmless from and against any and all loss, cost, claim or expense (collectively, “Claims”), including, without limitation, reasonable attorneys’ fees, arising by reason thereof. With respect to Claims to which the foregoing indemnification, defense and hold harmless provision applies, Receiver agrees to the following: (I) to give Newmark prompt notice of thereof; (II) to cooperate with the reasonable requests of Newmark in the defense thereof; (III) to permit Newmark to defend such Claims with counsel of Newmark’s own choosing, subject to the approval of Receiver, which approval shall not be unreasonably withheld, conditioned, or delayed; and (IV) not to settle or compromise such Claims without Newmark’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that the mere fact that a settlement would give rise to a Claim by Receiver for indemnification pursuant to this Section 16 shall not constitute reasonable grounds for withholding consent.; and/or (C) The occurrence of a Bankruptcy Action (as hereinafter defined) with respect to Newmark; and (ii) “Bankruptcy Action” means, with respect to Newmark: (i) the entry of an Order for Relief under the Bankruptcy Code; (ii) the admission by Newmark of its inability to pay its debts as they mature; (iii) the making by it of an assignment for the benefit of creditors; (iv) the filing by it of a petition in bankruptcy or a petition for relief under the Bankruptcy Code or any other applicable federal or state bankruptcy or insolvency statute or any similar law; (v) the expiration of ninety (90) days after the filing of an involuntary petition under the Bankruptcy Code or an involuntary petition seeking liquidation, reorganization, arrangement or readjustment of its debts under any other federal or state insolvency Page 6 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 law, provided that the same shall not have been vacated, set aside or stayed within such ninety (90) day period; (vi) Newmark’s application for, or consent to, the appointment of a receiver or other similar official for the assets of Newmark; or (vii) the imposition of a judicial or statutory lien on all or a substantial part of Newmark’s assets unless such lien is discharged or vacated or the enforcement thereof stayed within thirty (30) days after its effective date. 10. Tail. Within ten (10) Business Days (as hereinafter defined) following the expiration or sooner termination of this Agreement, other than any termination of this Agreement by reason of the occurrence of a Cause Termination Event, Newmark may deliver to Receiver a list of all parties (collectively, the “Prospects”) with whom Newmark was engaged, as of the Termination Date, in Active Negotiations (as hereinafter defined) for leasing the Real Property on Receiver’s behalf, including a reasonably detailed description of the nature of the contacts between Newmark and such Prospects. Prospects may include existing tenants with whom Receiver has engaged in Active Negotiations for the extension of the term of a Lease or the expansion of the demise of premises thereunder, provided, however, that no commission shall be payable to Newmark in respect of any such extension or expansion which is made after the Termination Date, if the same is effectuated pursuant to an express right or option set forth in the Lease (whether or not the tenant is set forth on the Prospects list). Time shall be of the essence as to the delivery by Newmark of such list of Prospects, and failure by Newmark to timely do so shall constitute a waiver of Newmark’s rights under this Section 10. “Active Negotiations,” as used herein, shall mean only bona fide business dealings in which any of the following shall have occurred prior to the Termination Date: (a) Newmark has, with Receiver’s approval, submitted a written proposal, offer, letter of intent or similar document (each, an “Offer”) to the Prospect; or (b) the Prospect or its representative has submitted an Offer to lease which has been received by Receiver; or (c) a first draft of a Lease or Lease amendment has been prepared and delivered to the Prospect. If, within ninety (90) days after the Termination Date (the “Tail Period”), a Lease or Lease amendment is fully executed with any Prospects properly identified on Newmark’s list, Receiver shall pay Newmark a commission(s) calculated in accordance with, and payable as provided in, Schedule B annexed hereto. For the avoidance of doubt, upon any termination of this Agreement by reason of a Cause Termination Event, Newmark may not furnish Receiver with a list of Prospects, nor shall Newmark become entitled to the payment of any commission on account of any Lease or Lease amendment, other than any unpaid installment of a commission on account of a Lease or Lease amendment contracted by Receiver prior to the giving of notice of such Cause Termination Event. For the further avoidance of doubt, upon any other expiration or termination of this Agreement (i.e., for any reason other than the occurrence of a Cause Termination Event), Newmark’s sole entitlement to further commissions, fees or other similar Page 7 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 compensation under this Agreement shall be limited to (i) any accrued, unpaid installment of a commission earned during the Term, payable as and when the same becomes payable pursuant to Section 2 of Schedule B annexed hereto and (ii) any commission to which Newmark may become entitled in respect of Prospects pursuant to this Section 10. The provisions of this Section 10 shall survive the expiration or sooner termination of the Term. 11. Reporting. Newmark shall prepare and submit to Receiver and Lender (via the electronic mail addresses for such parties set forth in Section 22 hereof) bi-weekly marketing status reports which shall list all prospective tenants contacted by Newmark and the status of each prospective Lease, and Newmark shall confer with Receiver and a representative of Lender not less than once every two (2) weeks to review such Lease status and reports. In addition, Newmark shall provide Receiver and Lender (via electronic mail as hereinbefore provided) with copies of all material correspondence, memoranda and marketing materials connected with Newmark’s leasing and marketing activity pursuant to this Agreement. No later than fifteen (15) days after the Effective Date, Newmark shall develop and submit for Receiver’s review and approval (with a copy to Lender via electronic mail as hereinbefore provided) formal lease rate proposals for every vacant unit of the Real Property, including supporting analysis and comparable lease terms. 12. Survival of Obligations. Upon the Termination Date, (a) Receiver’s appointment of Newmark hereunder shall cease and terminate and, except as otherwise specifically provided in this Agreement, Receiver shall have no further obligation or liability to Newmark, (b) Newmark shall no longer have any authority to represent Receiver, or take or cause to be taken any actions on Receiver’s behalf, (c) Newmark shall turn over to Receiver all lease files and other information relating to leasing activity at the Real Property, provided, however, that Newmark may retain copies of any such materials to the extent required by law, regulation, and/or Newmark’s document retention policy(ies), and (d) Receiver shall pay Newmark all compensation accrued, unpaid commissions due to Newmark under this Agreement, other than any commission or installment thereof which, by the terms of this Agreement, is not yet due and payable to Newmark. The provisions of this Section 12 shall survive the expiration or sooner termination of the Term. 13. Cooperation. The parties hereto shall operate in a professional and ethical manner at all times during the term of this Agreement and for any transactions which survive this Agreement. 14. Dual Representation. Receiver acknowledges that Newmark may represent both a potential tenant and Receiver simultaneously with respect to the same transaction, and, provided that Newmark provides Receiver with prior notice of such dual representation and observes ethical standards applicable to such dual representation generally observed by the commercial brokerage Page 8 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 community or by which the commercial brokerage community is bound, Receiver consents to such dual representation. 15. Sale or Conveyance. In the event the Real Property is sold, conveyed or otherwise transferred, Receiver shall cause the purchaser or transferee to assume in writing the obligation to pay any amounts which may become due to Newmark under this Agreement (and provide Newmark with a copy of such assumption agreement), whereupon Receiver shall be released from all such obligations. The provisions of this Section 15 shall survive the expiration or sooner termination of the Term. 16. Indemnification. (a) Newmark hereby agrees to indemnify, defend and hold Receiver harmless from and against any and all Claims, including, without limitation, reasonable attorneys’ fees, incurred by Receiver by reason of any claim for a brokerage commission, finder’s fee or like compensation made by any other person, firm or entity acting as a real estate broker alleging (i) to represent a tenant in connection with a Lease and (ii) claiming to have dealt with Newmark in connection with such Lease transaction (other than an Outside Broker, provided that Newmark has performed its obligations under Section 6 of this Agreement); provided, however, that Newmark’s aggregate liability pursuant to the foregoing indemnification, defense and hold harmless provision pertaining to third-party brokerage Claims shall not exceed the amount of the commission actually received by Newmark hereunder in connection with the Lease giving rise to such Claims. The foregoing indemnification, defense and hold harmless provision shall not apply to Claims made by an Outside Broker where the Outside Broker has earned a commission in connection with a Lease transaction and Receiver has defaulted in respect of its obligation to pay Newmark a commission in respect of such Lease as and when the same becomes due in accordance with the terms of this Agreement. Newmark hereby further agrees to indemnify, defend and hold Receiver harmless from and against any Claims arising by reason of: (I) Newmark’s acts or omissions outside the scope of authority granted to Newmark under this Agreement; (II) Newmark’s negligent misrepresentation, fraud, gross negligence or willful misconduct; (III) Newmark’s material breach of this Agreement; and (IV) agreements between Newmark and its employees or salespeople to pay them a portion or all of a commission paid pursuant to this Agreement. Notwithstanding the foregoing, Newmark shall not be liable for (A) actions taken as specifically directed by Receiver; (B) statements made by Newmark as provided or approved by Receiver; (C) any conditions of the Property; and/or (D) any losses that would be avoided by Receiver’s engagement of experts as contemplated by the following two sentences. It is understood and acknowledged that under no circumstances is Newmark acting as Receiver’s legal counsel, and Receiver shall not rely upon Newmark for same. Receiver acknowledges that Receiver has been Page 9 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 and is now advised by Newmark to consult and retain Receiver’s own experts to advise and represent Receiver concerning the legal and tax effects of a transaction, as well as the condition of the Property. (b) With respect to all Claims to which the indemnification, defense and hold harmless provisions of Section 16(a) apply, Receiver agrees to the following: (A) to give Newmark prompt notice of thereof; (B) to cooperate with the reasonable requests of Newmark in the defense thereof; (C) to permit Newmark to defend such Claims with counsel of Newmark’s own choosing, subject to the approval of Receiver, which approval shall not be unreasonably withheld, conditioned, or delayed; and (D) not to settle or compromise such Claims without Newmark’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that the mere fact that a settlement would give rise to a Claim by Receiver for indemnification pursuant to this Section 16 shall not constitute reasonable grounds for withholding consent. The provisions of this Section 16 shall survive the expiration or sooner termination of the Term. 17. Exculpation. Newmark hereby agrees to look solely to Receiver’s interest in the Real Property, or the revenue derived therefrom and/or proceeds of any sale, transfer, or conveyance thereof and/or any insurance policy thereon, for the satisfaction of any Claims arising or accruing against Receiver under this Agreement, and in no event shall Receiver have any personal liability under this Agreement. The provisions of this Section 17 shall survive the expiration or sooner termination of the Term. 18. Insurance. Newmark shall, during the Term, at Newmark’s expense, procure and maintain the insurance coverages set forth in Schedule C annexed hereto and made a part hereof. 19. Prevailing Party. In the event that any litigation is brought with respect to any dispute between the parties hereto, the non-prevailing party in such litigation shall reimburse the prevailing party for all of its reasonable out-of-pocket costs incurred, including reasonable attorneys’ fees and disbursements, in connection with such litigation and the costs of collection of any settlement or judgment thereon. The provisions of this Section 19 shall survive the expiration or sooner termination of the Term. 20. New Leases. Receiver shall provide Newmark with a copy of each fully executed Lease upon Newmark’s request. 21. Representation by Newmark. Newmark represents and warrants that it is a duly licensed real estate broker in the State of New York. Newmark further represents that Newmark has obtained all limited liability consents required for Newmark to execute and deliver this Agreement, and that the person signing this Agreement on behalf of Newmark is duly authorized to do so. Page 10 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 22. Notices. All communications provided for or permitted hereunder will be in writing and will be deemed to have been duly given if (a) personally delivered, (b) mailed by registered or certified mail, postage prepaid and received by the addressee, (c) sent by overnight express courier delivery service and received by the addressee, or (d) transmitted by electronic mail with written evidence of receipt by the addressee, in each case at the following addresses: If to Receiver: ROBERTA ASHKIN, ESQ. Ashkin Law Firm 400 East 70th Street Suite 2205 New York, New York 10021 Email: ra@ashkinlaw.com With a copy: O-SB 510 SIXTH FINANCE LLC c/o Broadshore Capital Partners 10 Hudson Yards, 20th Floor New York, New York 10001 Attention: James Pomeranz Email: james_pomeranz@Broadshore.com If to Newmark: NEWMARK RETAIL LLC 125 Park Avenue New York, New York 10017 Attention: Jeffrey Roseman Email: jeffrey.roseman@nmrk.com And a copy to: NEWMARK 125 Park Avenue New York, New York 10017 Attention: General Counsel Email: legaldept@nmrk.com And a copy: O-SB 510 SIXTH FINANCE LLC c/o Broadshore Capital Partners 10 Hudson Yards, 20th Floor New York, New York 10001 Attention: James Pomeranz Email: james_pomeranz@Broadshore.com The designation of such person and/or address may be changed at any time by either party upon written notice given under this Section. All notices, demands, requests or other communications sent pursuant to this Section will be deemed received (i) if personally delivered, on the Business Day of delivery, (ii) if sent by electronic mail before 5:00 P.M. of the locality of the address of the notice on the day sent if a Business Day or, if such day is not a Page 11 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 Business Day or if sent after 5:00 P.M. of the locality of the address of the notice, on the next business day, (iii) if sent by overnight express carrier, on the next Business Day immediately following the day sent or (iv) if sent by registered or certified mail, on the earlier of the third Business Day after the day sent or when actually received. Counsel for Receiver or Newmark may furnish notice under this Agreement on their respective client’s behalf, any such notice to have the same effect as notice given by Receiver or Newmark, as applicable. For purposes of this Agreement, the term “Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in the City of New York are authorized or required by law to be closed. 23. Successors and Assigns. This Agreement shall bind, and inure to the benefit of, Receiver and Newmark and their respective permitted successors and assigns. Notwithstanding the foregoing, Newmark may not assign any rights to or in this Agreement or delegate any duties under this Agreement, except to an entity that acquires all or substantially all of Newmark’s assets through merger, consolidation, or otherwise, without the prior written consent of Receiver, which consent may be withheld, conditioned or delayed for any reason in Receiver’s sole and absolute discretion. 24. Miscellaneous. This Agreement (a) contains the entire understanding of the parties hereto with respect to the subject matter hereof; (b) may not be changed or modified orally, but only by written instrument signed by the parties hereto; (c) shall be governed by and construed in accordance with the laws of the State of New York; and (d) may not be strictly construed against Newmark or Receiver, each party agreeing that it has participated fully and equally in the preparation of this Agreement. 25. Jury Trial Waiver. Each of Receiver and Newmark waive any right she or it may have to a trial by jury in any action or proceeding arising under this Agreement. 26. Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute a fully executed agreement, with the same effect and validity as a single, original agreement signed by both parties. To facilitate execution of this Agreement by the parties, facsimile, electronic and PDF copy signatures shall have the same validity and effect as original signatures. If the foregoing is acceptable to you, please sign below to acknowledge same. Very truly yours, NEWMARK RETAIL LLC, Page 12 of 21 FILED: NEW YORK COUNTY CLERK 11/13/2023 06:04 PM INDEX NO. 850450/2023 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 11/13/2023 a New York limited liability company, d/b/a Newmark Retail