Exhibit 10.5


 


SUBLEASE


 


This
SUBLEASE (this “Sublease”), dated as of the 14th day of
December, 2005 is between SOCIÉTÉ GÉNÉRALE, a corporation organized and
existing under the laws of the Republic of France, having an address at 1221
Avenue of the Americas, New York, New York 10020 (“SG”) and SG COWEN
& CO., LLC, a Delaware limited liability company, having an address at 1221
Avenue of the Americas, New York, New York 10020 (“Cowen”). Capitalized
terms used but not defined in this Sublease shall have the meanings given them
in the Primary Lease (as defined below).


 


RECITALS


 


WHEREAS, SG has entered
into a Lease dated October 29, 1993 (the “Lease”) with Rock-McGraw,
Inc., as Landlord, and SG, as Tenant, pursuant to which SG agreed to lease from
the Landlord certain premises located in the building (the “Building”)
known as and located at 1221 Avenue of the Americas, New York, New York (the “Premises”);
and


 


WHEREAS, the Lease was
amended by Supplemental Indentures between Rock-McGraw, Inc. and SG dated as of
June 23, 1994; February 10, 1995; May 15, 1996; December 30, 1996; May 5, 1998;
July 18, 2000; April 17, 2002; March 22, 2005 and April 18, 2005 (the Lease, as
so amended and supplemented, is referred to as the “Primary Lease”); and


 


WHEREAS, 1221 Avenue Holdings
LLC has succeeded to the interest of Rock-McGraw, Inc. as Landlord (the “Landlord”)
under the Primary Lease; and


 


WHEREAS, Cowen desires to
sublease from SG a portion of the Premises, and SG agrees to sublease to Cowen
such portion of the Premises on the terms and conditions hereinafter set forth.


 


NOW, THEREFORE, SG and
Cowen agree as follows:


 


1.             LEASE AND TERM. (a) SG hereby subleases to Cowen,
and Cowen hereby accepts from SG the sublease of, the entire rentable area of
the fourteenth and fifteenth floors, a portion of the sixth floor and a portion
of the Data Center/IDF closets in the Building, as described on Schedule 1
attached hereto (the “Subleased Premises”). Cowen agrees to use the
Subleased Premises only for the purposes permitted under Section 1.3 of
the Primary Lease and for no other purpose, and shall use and occupy the
Subleased Premises in full compliance with the terms of the Primary Lease.


 


(b)   The term of this Sublease (the “Sublease
Term”) shall be the period commencing on the date (the “Commencement
Date”) when SG no longer owns at least 50.1% of Cowen and ending at
midnight of September 29, 2013. This Sublease shall become null and void if the
Commencement Date has not occurred by December 31, 2006.


 


(c)   Cowen agrees to pay all costs and expenses
incurred by SG in order to convert the Subleased Premises into a separate space
from the Premises, including but not limited to the Landlord fees, City of New
York Department of Building fees, permit fees, engineering fees, consulting fees,
renovation expenses and if separate heating ventilation and air conditioning
and electrical supply lines are created, the cost of creating separate heating
ventilation and air conditioning and electrical supply lines. A good faith
estimate of the projected costs and expenses for completing such conversion is
set forth on Schedule 2 attached hereto. All such costs and expenses incurred
by SG shall be paid by Cowen to SG within five (5) business days after notice
by SG to Cowen.


 

















 


2.             RENT. (a) Cowen shall pay to SG rent (the “Fixed
Rent”) under this Sublease at the following rates during the periods set forth
below(1):


 


(i)              Sixth Floor (23,910 square
feet)


 


	
  Rent per Sq. Ft.

  	
   

  	
  Period

  	
   

  	
  Monthly Rent

  	
   

  	
  Annual Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  38.00

  	
   

  	
  04/01/2006 - 08/31/2008

  	
   

  	
  $

  	
  75,715.00

  	
   

  	
  $

  	
  908,580.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  42.00

  	
   

  	
  09/01/2008 - 09/30/2013

  	
   

  	
  $

  	
  83,685.00

  	
   

  	
  $

  	
  1,004,220.00

  	
   

  



 


(ii)             Fourteenth Floor (42,742
square feet)


 


	
  Rent per Sq. Ft.

  	
   

  	
  Period

  	
   

  	
  Monthly Rent

  	
   

  	
  Annual Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  47.44

  	
   

  	
  04/01/2006 - 08/31/2008

  	
   

  	
  $

  	
  168,973.33

  	
   

  	
  $

  	
  2,027,680.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  51.44

  	
   

  	
  09/01/2008 - 09/30/2013

  	
   

  	
  $

  	
  183,220.71

  	
   

  	
  $

  	
  2,198,648.00

  	
   

  



 


(iii)            Fifteenth Floor (42,217
square feet)


 


	
  Rent per Sq. Ft.

  	
   

  	
  Period

  	
   

  	
  Monthly Rent

  	
   

  	
  Annual Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  47.44

  	
   

  	
  04/01/2006 - 08/31/2008

  	
   

  	
  $

  	
  166,897.83

  	
   

  	
  $

  	
  2,002,774.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  51.44

  	
   

  	
  09/01/2008 - 09/30/2013

  	
   

  	
  $

  	
  180,970.21

  	
   

  	
  $

  	
  2,171,642.00

  	
   

  



 


(iv)            Data Center/IDF Closets (750
square feet(2))


 


	
  Rent per Sq. Ft.

  	
   

  	
  Period

  	
   

  	
  Monthly Rent

  	
   

  	
  Annual Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  42.72

  	
  (3)

  	
  04/01/2006 - 08/31/2008

  	
   

  	
  $

  	
  2,670.00

  	
   

  	
  $

  	
  32,040.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  46.72

  	
  (4)

  	
  09/01/2008 - 09/30/2013

  	
   

  	
  $

  	
  2,920.00

  	
   

  	
  $

  	
  35,040.00

  	
   

  



 






(1)   Cowen’s
obligation to pay rent at the rates set forth in the rent table will be
adjusted to the Commencement Date in the event that the date that SG ceases to
own 50.1% of Cowen is different than April 1, 2005.


 


(2)   Data
Center = 500 square feet; IDF closets = 250 square feet (10 closets, 25 square
feet per closet)


 


(3)   Average of
first rent period


 


(4)   Average of second rent period


 


2

















 


(b)   (i) Fixed Rent shall be paid in equal monthly
installments in advance on the first day of each month during the Sublease
Term, commencing on the Commencement Date. If the Commencement Date is not the
first day of a month, Fixed Rent payable for the period commencing on the
Commencement Date and ending on the last day of the month in which the
Commencement Date occurs shall be apportioned on the basis of the number of
days in said month and shall be paid on the Commencement Date. SG agrees to
furnish Cowen with an invoice on or before the first day of each month
specifying the amount of the Fixed Rent that is due for the period covered by
such invoice. Fixed Rent and all other amounts payable by Cowen to SG under the
provisions of this Sublease (all such other amounts, “Additional Rent”)
shall be paid promptly when due without deduction, abatement, counterclaim or
setoff of any amount or for any reason whatsoever except as expressly set forth
herein or incorporated herein by reference.


 


Fixed Rent and Additional
Rent shall be paid to SG in lawful money of the United States at the address of
SG set forth at the head of this Sublease or to such other person and/or at
such other address as SG may from time to time designate by notice to Cowen.
Fixed Rent and Additional Rent may also be paid by wire transfer in accordance
with such wire instructions as SG may from time to time designate by notice to
Cowen. No payment by Cowen or receipt by SG of any lesser amount than the
amount stipulated to be paid hereunder shall be deemed other than on account of
the earliest stipulated Fixed Rent or Additional Rent; nor shall any
endorsement or statement on any check or letter be deemed an accord and
satisfaction, and SG may accept any check or payment without prejudice to SG’s
right to recover the balance due or to pursue any other remedy available to SG.
Any provision in the Primary Lease referring to “Fixed Rent” or “Additional
Rent” incorporated herein by reference shall be deemed to refer to,
respectively, the Fixed Rent and Additional Rent due under this Sublease.


 


(ii) If any commercial
rent or occupancy tax shall be levied against Cowen based upon the Fixed Rent
or Additional Rent payable by Cowen hereunder, Cowen shall (a) complete and
file with the appropriate taxing authority all forms required in connection
with such tax, and (b) pay the same to the taxing authority, or, in the event
such tax is levied against SG, payable by SG in the first instance and paid by SG,
Cowen shall reimburse SG for the amount of such tax.


 


(c)    In the event that SG actually receives any
abatement, refund or credit under the Primary Lease in respect of Fixed Rent or
Additional Rent paid by Cowen, SG shall deliver to Cowen the amount of such
abatement, refund or credit that is properly allocable to the Subleased
Premises.


 


3.             ADDITIONAL RENT. (a) Cowen shall pay to SG within
five (5) business days after notice (or, as to amounts stated in the Primary
Lease to be due promptly after demand by the Landlord to Tenant, then promptly
after demand by SG to Cowen) Cowen’s Pro Rata Share of any and all amounts
payable by SG to the Landlord for the Landlord’s increased costs and expenses
pursuant to the provisions of Article 24 of the Primary Lease. For
purposes of this Sublease, “Cowen’s Pro Rata Share” shall be the
percentage obtained by dividing the area of the Subleased Premises (i.e.,
109,619 square feet) by the area of the Premises (i.e., 486,561 square
feet). The parties agree that as of the date of this Sublease, Cowen’s Pro Rata
Share is equivalent to 22.5%. The parties further agree that Cowen’s Pro Rata
Share is subject to adjustment in the event of any increase in the size of the
Subleased Premises. For purposes of determining the amounts payable by Cowen
pursuant to this Section 3 any of the aforesaid amounts payable by SG
under the Primary Lease which cover a


 


3

















 


fiscal or other period, any part of which occurs
before the Commencement Date or after the expiration of the Sublease Term,
shall be apportioned according to the number of days in the relevant period.


 


(b)   Notwithstanding anything to the contrary in Section
3(a), and solely as to any payment due hereunder that is not recurrent, or
to the extent of any increase in a recurrent payment (which, after any such
increase, shall thereafter be deemed a recurrent payment), Cowen shall make
such payment (or the portion of such payment representing an increase, as the
case may be) not later than five (5) business days after receipt of notice from
SG.


 


(c)   Notwithstanding anything to the contrary in
this Sublease, Cowen shall make all payments to SG in respect of Real Estate
Taxes not later than five (5) business days before December 1st and
five (5) business days before June 1st of each calendar year during
the Sublease Term, or, if the date on which SG is obligated to pay such Real
Estate Taxes changes, not later than five (5) business days before such changed
date.


 


(d)   Cowen acknowledges that SG and the Landlord
have executed a License Agreement dated March 22, 2005 (the “License
Agreement”) for the provision by the Landlord to SG of infrastructure
monitoring services, additional fuel storage capacity and roof space for
additional emergency generator capacity. SG agrees that Cowen shall receive its
License Agreement Pro Rata Share of services that are provided by the Landlord
to SG pursuant to the License Agreement. Cowen agrees that it shall pay to SG
upon SG’s demand Cowen’s License Agreement Pro Rata Share of any fees that are
payable by SG to the Landlord in respect of the provision of services under the
License Agreement. For purposes of this Sublease, Cowen’s “License Agreement
Pro Rata Share” shall be the percentage specified as Cowen’s pro rata share
on Schedule 3 attached hereto. The parties agree that as of the date of this
Sublease, Cowen’s License Agreement Pro Rata Share is equivalent to 23.01%.


 


4.              SUBORDINATION TO PRIMARY LEASE.
(a) This Sublease and the term and estate granted hereby are and shall be
subject and subordinate to (i) the Primary Lease and (ii) the matters to which
the Primary Lease is or shall be subject and subordinate.


 


(b)   If for any reason the term of the Primary
Lease shall terminate prior to the expiration date of this Sublease, including,
without limitation, a termination caused by the Landlord’s exercise of any
right of the Landlord under the Primary Lease to terminate the Primary Lease by
reason of fire, casualty or condemnation, or an exercise by the Landlord of any
right of the Landlord under the Primary Lease to terminate the Primary Lease,
as the case may be, or otherwise, this Sublease shall thereupon be terminated,
and SG shall not be liable to Cowen by reason thereof, except as specified in
Section 7(b).


 


(c)   If the Landlord’s interest in the Building or
the Land, or SG’s interest in the Primary Lease, shall be sold or conveyed to
any person, firm or corporation upon the exercise of any remedy provided for in
any underlying mortgage or agreement or by law or equity, or if the Landlord’s
interest in the Primary Lease or SG’s interest in this Sublease is assigned,
conveyed or transferred to any superior landlord as a result of a default by
the tenant of such superior landlord and a resulting termination thereof, Cowen
agrees that such person, firm or corporation succeeding to the Landlord’s
interest in the Building, the Land, the Primary Lease, or SG’s interest in this
Sublease, and each person, firm or corporation thereafter succeeding to its
interest in the Building, the Land, the Primary Lease or this Sublease, as the
case may be, (i) shall not be liable for any act or omission of the Landlord
under the Primary Lease occurring prior to such sale or conveyance, or any act
or omission of SG under this Sublease occurring prior to such assignment,
conveyance or transfer, as the case may be, (ii) shall not


 


4

















 


be subject to any offset, defense or counterclaim
accruing prior to such sale, conveyance, assignment or transfer; (iii) shall
not be bound by any payment prior to such sale or conveyance of rent for more
than one month in advance (except prepayments in the nature of security for the
performance by Cowen of its obligations hereunder) and (iv) shall be liable for
the performance of the other obligations of the Landlord under the Primary
Lease, or SG under this Sublease, as the case may be, only during the period
such successor landlord shall hold such interest.


 


(d)   Cowen acknowledges that SG is obligated to
give notice to the Landlord of the making of this Sublease. SG agrees to give
such notice to the Landlord promptly after the execution of this Sublease and
to use commercially reasonable efforts to obtain Landlord’s consent to the
Sublease. SG agrees to notify Cowen promptly of the Landlord’s response to such
notice.


 


5.              INCORPORATION BY REFERENCE.
(a) Except as otherwise expressly provided in, or otherwise inconsistent with,
this Sublease, or to the extent not applicable to the Subleased Premises, the
terms, provisions, covenants, stipulations, conditions, rights, obligations,
remedies and agreements contained in the Primary Lease are incorporated in this
Sublease by reference, and are made apart hereof as if herein set forth at
length, Sublease being substituted for “Lease” under the Primary Lease, SG
being substituted for “Landlord” under the Primary Lease, Cowen being
substituted for “Tenant” under the Primary Lease, and Subleased Premises being
substituted for “Premises” under the Primary Lease.


 


(b)   The following sections of the Primary Lease
are expressly excluded from incorporation herein: Sections 1.1, 1.2, 1.4, and
1.5; the second and third sentences of Section 1.6; the words “except as
provided in Section 36.1” in the first sentence of Section 2.1; the first,
second and third sentences of Section 2.1; Sections 2.2 and 2.3; Section
6.2(b)(1); Section 7.1; the fourth sentence of Section 8.1; Article 14; Section
22.2; Section 23.1; the second sentence of Section 25.4; Section 25.15; Article
26; Section 27.1; Articles 30 and 31; Sections 35.1, 35.3, 35.4, 35.6, 35.8,
35.9 and 35.10; Section 36.2; Articles 37 and 38; Exhibits A, B, D, J, K, L, M,
N, O, P, Q, R, S and T; and the Supplemental Indentures dated June 23, 1994,
February 10, 1995, May 15, 1996, December 30, 1996, July 18, 2000, April 17,
2002, March 22, 2005 and April 18, 2005.


 


(c)   Notwithstanding anything to the contrary set
forth herein, the word “Landlord” shall be deemed to mean Landlord in the
following provisions of the Primary Lease: Section 3.2 (except for the use of
“Landlord” in the last paragraph of Section 3.2); the first and second use of
“Landlord” in Section 6.2 and 6.7; Article 8; and Sections 25.18 and 25.19.
Notwithstanding anything to the contrary set forth herein, the word “Landlord” shall
be deemed to mean Landlord and SG in the following provisions of the Primary
Lease: Sections 3.5 and 6.4; and the first use of “Landlord” in Section 13.1.


 


(d)   If any of the express provisions of this
Sublease shall conflict with any of the provisions of the Primary Lease
incorporated by reference, such conflict shall be resolved in every instance in
favor of the express provisions of this Sublease (subject, however, to Sections
4 and 6 hereof).


 


6.             NO BREACH OF PRIMARY LEASE.
Cowen shall not knowingly do, omit to do, or permit to be done any act or thing
which may constitute a breach or violation by SG of any term, covenant or
condition of the Primary Lease, whether or not such act or thing is permitted
under the provisions of this Sublease. Cowen agrees to cease to do, omit to do,
or permit to be done any act or thing which may constitute a breach or
violation of any term, covenant or condition of the Primary Lease promptly upon
the receipt of notice thereof from SG.


 


5






 










 


7.                INDEMNITY. (a) Cowen
shall indemnify, defend and hold harmless SG from and against all losses,
costs, claims, damages, liabilities and expenses, including, without
limitation, reasonable attorneys’ fees, which SG may incur or pay out by reason
of (i) any act, omission or negligence occurring in, on or about the Premises
caused by Cowen and/or any or its officers, employees, agents, customers and/or
invitees, or any person claiming through or under Cowen (Cowen and/or any of
the foregoing collectively, the “Cowen Parties”), (ii) any breach or
default hereunder on Cowen’s part, (iii) any work done by Cowen in or to the
Subleased Premises, or (iv) any claims for injury to person or damage to
property arising from the negligent act or omission of any Cowen Party
occurring in, on or about the Building. Cowen’s indemnification obligations
pursuant to this Section 7 shall be limited solely to the excess of any
such all losses, costs, claims, damages, liabilities and expenses over the
insurance proceeds collected by SG with respect thereto.


 


(b)   SG shall indemnify, defend and hold harmless
Cowen from and against all losses, costs, claims, damages, expenses and
liabilities, including, without limitation, reasonable attorneys’ fees, which
Cowen may incur or pay out by reason of (i) any act, omission or negligence
occurring in, on or about the Premises caused by SG and/or any or its officers,
employees, agents, customers and/or invitees, or any person claiming through or
under SG (SG and/or any of the foregoing collectively, the “SG Parties”),
(ii) any breach or default hereunder on SG’s part, (iii) any material breach or
default under the Primary Lease on SG’s part that adversely affects Cowen, (iv)
any work done by SG in or to the Premises, or (v) any claims for injury to
person or damage to property arising from the negligent act or omission of any
SG Party occurring in, on or about the Building. SG’s indemnification
obligations pursuant to this Section 7 shall be limited solely to the
excess of any such losses, costs, claims, damages, liabilities and expenses
over the insurance proceeds collected by Cowen with respect thereto.


 


8.             RELEASES. To the extent that SG released the
Landlord from liability or responsibility pursuant to the provisions of the
Primary Lease, Cowen hereby releases SG to the same extent, and Cowen will
cause its insurance carriers to include any clauses or endorsements in favor of
SG which SG is required to provide to the Landlord pursuant to the provisions
of the Primary Lease.


 


9.                LATE CHARGES. If Cowen
fails to pay any Fixed Rent or Additional Rent for more than five (5) days
after the date when due, Cowen shall pay interest on the unpaid amount from the
date on which such amount was due until the date that such amount is paid at
the rate of 1.5% per calendar month or any part thereof or the then maximum
lawful interest rate, whichever shall be less.


 


10.              ELECTRICITY. SG agrees that
Cowen shall be entitled to use Cowen’s Pro Rata Share of all electric energy
supplied by the Landlord to the Premises. SG agrees to use its best efforts to
cause the Landlord to supply the maximum amount of electricity specified in the
Primary Lease. Cowen shall pay SG for Cowen’s Pro Rata Share of electric energy
consumed on the Premises. The amount payable by Cowen for electric energy usage
shall be increased if the size of the Subleased Premises increases or if Cowen
consumes electrical power in an amount that is disproportionate to the ratio of
the size of the Subleased Premises to the size of the Premises.


 


11.           CONDITION OF SUBLEASED PREMISES.
Cowen agrees and acknowledges that Cowen is leasing the Subleased Premises “as
is”, subject to normal wear and tear. SG and Cowen have agreed that Cowen has
engaged SG to perform work on the Subleased Premises in order to reconfigure
the Subleased Premises, at Cowen’s expense, in accordance with Cowen’s space
plan as


 


6


 

















 


described on Schedule 1A hereto. Following the
completion by SG of the reconfiguration, SG and SG agree that all references in
this Sublease to the “Subleased Premises” shall mean the premises as described
on Schedule 1 hereto, as the same shall have been modified in accordance with
the Cowen space plan as described on Schedule 1A hereto.


 


12.          SIGNAGE; NAMING. Cowen may
place suitable identification signage naming Cowen on the floors of the
Subleased Premises; provided, however, that any signage on the sixth floor
shall be consistent in size with the SG signage on said floor. SG will request
the Landlord to include Cowen’s name on the directory in the lobby of the
Building.


 


13.          NO ASSIGNMENT AND SUBLETTING.
(a) Cowen shall not, by operation of law or otherwise, assign, sell, mortgage,
pledge or in any manner transfer this Sublease or any interest therein, or
sublet the Subleased Premises or any part or parts thereof, or grant any
concession or license or otherwise permit occupancy of all or any part of the
Subleased Premises by any other person, except with the prior written consent
of SG, which consent shall not be unreasonably withheld, and the Landlord in accordance
with the provisions of this Section 13.


 


(b)   Any proposed assignment or subletting by
Cowen of the Subleased Premises shall be subject to the following conditions:


 


(i)     Cowen agrees that no request to assign this
Sublease or sublet all or part of the Subleased Premises shall be made prior to
January 1, 2007;


 


(ii)    Any request by Cowen to assign this Sublease
or sublet all or part of the Subleased Premises may be made only in respect of
(A) the entire portion of the Subleased Premises that Cowen occupies on the
sixth floor of the Building, and/or (B) the entire fourteenth floor of the
Building and/or (C) the entire fifteenth floor of the Building. The assignment
or subletting of a portion of the fourteenth floor or a portion of the
fifteenth floor of the Building is not permitted;


 


(iii)   Cowen may not make a request to sublet the
fifteenth floor unless it has previously given SG an Offer Notice (as
hereinafter defined) for the fourteenth floor or unless it gives SG an Offer
notice for both the fourteenth and fifteenth floors; and


 


(iv)   Cowen may not assign or sublet any portion of
the Data Center or IDF closets.


 


(c)   If Cowen desires to assign this Sublease or
sublet all or part of the Subleased Premises as described in the preceding
sentences, Cowen shall give to SG a notice (the “Offer Notice”), specifying (i)
the portion of the Subleased Premises to be assigned or sublet (the “Offered
Premises”), and (ii) the anticipated commencement date of the proposed
assignment or sublease. Within thirty (30) days of receiving an Offer Notice
from Cowen SG shall notify Cowen whether it wishes to recapture the Offered
Premises. If SG sends Cowen a notice (“Recapture Notice”) that it wishes to
recapture the Offered Premises, SG and Cowen shall mutually agree on a date,
which date shall not be earlier than sixty (60) days, and not later than one
hundred-eighty (180) days, after the date of the Recapture Notice, for the
recapture by SG, and the surrender by Cowen, of the Offered Premises. If SG
elects to recapture the Offered Premises, SG and Cowen shall move as quickly as
practicable to amend this Sublease and/or otherwise document the recapture by
SG, and the surrender by Cowen, of the Offered Premises.


 


(d)   If SG has not elected to recapture the
Offered Premises, Cowen shall furnish SG


 


7


 

















 


and the Landlord with (i) a term sheet or copy of the
proposed assignment or sublease, (ii) a statement setting forth in reasonable
detail the identity of the proposed assignee or subtenant, the nature of its
business and its proposed use of the Subleased Premises, (iii) current
financial information with respect to the proposed assignee or subtenant,
including without limitation, its most recent financial statements and (iv)
such other information as either SG or the Landlord may reasonably request.


 


In the event that SG and
the Landlord each consents to any assignment of this Sublease or subletting of
the Subleased Premises, Cowen shall deliver to SG and the Landlord (A) an
executed counterpart of the assignment or sublease agreement, in form and
substance reasonably satisfactory to SG and the Landlord, and (B) a certificate
of insurance evidencing (x) that SG and the Landlord have been named as
additional insureds under the insurance policies required to be maintained by
Cowen pursuant to Section 14 of the Sublease, and (y) that the insurance
referred to therein is in full force and effect. Each assignment or sublease
shall provide that the subtenant may not assign its rights thereunder or
further sublet the space demised under the sublease, in whole or in part,
without SG’s consent. Cowen also agrees to pay to SG in connection with any
assignment of this Sublease or subletting of the Offered Premises Cowen’s Pro
Rata Share of all investment costs incurred by SG in respect of the Subleased
Premises.


 


(e)   Notwithstanding any assignment or subletting
permitted by SG and the Landlord, Cowen shall remain fully liable on this
Sublease, and Cowen agrees that it shall continue to be directly responsible
for the payment to SG of Fixed Rent and Additional Rent and the performance of
all obligations of Cowen under this Sublease. Cowen further agrees that any
violation of any provision of this Sublease during the term hereof by any
assignee, subtenant or other occupant shall be deemed a violation by Cowen, it
being the intention that Cowen shall be liable to SG for any and all acts and
omissions of any and all assignees, subtenants and other occupants of the
Subleased Premises.


 


(f)   If the aggregate of the amounts payable as
rent or otherwise by a subtenant under a sublease of any part of the Subleased
Premises (including, without limitation, all amounts payable on account of
changes in real estate taxes, operating costs, maintenance costs, labor rates,
indexes or other formulas contained in the sublease but excluding consideration
paid in respect of actual services rendered to the extent that the same does
not exceed that which a bona fide third party would pay for the same services)
shall be in excess of Cowen’s Basic Cost therefor at that time, then promptly
after the collection thereof by Cowen, Cowen shall pay to SG, in monthly
installments, as Additional Rent an amount equal to seventy-five percent (75%)
of such excess. (Cowen acknowledges that SG is obligated pursuant to the terms
of the Primary Lease to pay fifty percent (50%) of any excess amount collected
by Cowen from any subtenant to the Landlord.) Cowen shall deliver to SG upon
request a statement in reasonable detail showing the calculation of the amounts
payable and paid by the subtenant to Cowen with respect to the sublease for the
period covered by such statement. “Cowen’s Basic Cost” for sublet space
at any time means the sum of (i) the portion of the Fixed Rent, Real Estate
Taxes and Cost of Operation and Maintenance which is attributable to the sublet
space, plus (ii) the amount of any costs incurred by Cowen in making
alterations to the sublet space for the subtenant, and the amount of any work
allowance granted by Cowen to the subtenant, plus (iii) the amount of the
unamortized cost of any Cowen leasehold improvements as reflected on Cowen’s
books, plus (iv) the amount of any reasonable brokerage commissions and
reasonable legal fees, marketing costs, and other reasonable costs paid by
Cowen in connection with the sublease amortized on a straight line basis over
the term of the sublease.


 


(g)  Cowen shall reimburse SG upon demand for any
reasonable actual out-of-pocket


 


8


 

















 


costs incurred by SG in connection with any assignment
or sublease, including, without limitation, the costs of making investigations
as to the acceptability of the proposed assignee or subtenant, and legal costs
incurred in connection with the granting of any requested consent.


 


14.             INSURANCE. Cowen shall
comply with the insurance requirements imposed upon SG, as tenant under the
Primary Lease, but only with respect to the Subleased Premises. Such insurance
shall name SG and the Landlord as additional insured parties as their
respective interests may appear. Cowen shall furnish SG with certificates
evidencing such insurance prior to the Commencement Date. Cowen will cause its
insurance carriers to include any clauses or endorsements in favor of the
Landlord that SG is required to provide to the Landlord pursuant to the
provisions of the Primary Lease.


 


15.           ALTERATIONS. Cowen shall
comply with the requirements imposed upon SG, as tenant under the Primary
Lease, with respect to any alterations of the Subleased Premises. In addition,
for so long as SG has not assigned its interest under this Sublease, Cowen
agrees that if any proposed alteration to the Subleased Premises connects to,
interferes with, or supports SG’s infrastructure installations, then Cowen
agrees to retain SG’s Facilities Management Department to supervise such
alteration.


 


16.            RIGHT TO CURE COWEN’S DEFAULTS.
If Cowen shall at any time fail to perform any obligation of Cowen hereunder,
then SG shall have the right, but not the obligation, to perform the same (a)
immediately and with notice (which may be oral) in the case of emergency or in
case such is likely to result in a violation of law or the Primary Lease or in
an immediate cancellation of any insurance policy maintained by SG or the
Landlord and (b) in any other case if such failure continues more than ten (10)
days after notice to Cowen, Cowen shall pay to SG upon demand all sums so paid
by SG and all incidental costs and expenses of SG in connection therewith,
together with interest thereon at the rate of 1.5% per calendar month or any
part thereof or the then maximum lawful interest rate, whichever shall be less,
from the date of the making of such expenditures. No performance by SG of any
obligation that Cowen has failed to perform shall waive or release Cowen from
any obligations of Cowen under this Sublease.


 


17.            REMEDIES. In the event Cowen
defaults in the performance of any of the terms, covenants or conditions of
this Sublease or of the Primary Lease, SG shall be entitled to exercise any and
all of the rights and remedies to which it is entitled by law or in equity, and
also any and all of the rights and remedies specifically provided for in the
Primary Lease, which are hereby incorporated herein and made part hereof with
the same force and effect as if herein specifically set forth in full, and
wherever in the Primary Lease rights and remedies are given to the Landlord,
the same shall be deemed to refer to SG.


 


18.            BROKERAGE. Cowen and SG
represent to each other that no broker or other person had any part, or was
instrumental in any way, in bringing about this Sublease.


 


19.            NO WAIVER. (a) The failure of
SG to insist in any one or more cases upon the strict performance or observance
of any obligation of Cowen hereunder or to exercise any right or option
contained herein shall not be construed as a waiver or relinquishment for the
future of any such obligation of Cowen or any right or option of SG. SG’s
receipt and acceptance of Fixed Rent or Additional Rent, or SG’s acceptance of
performance of any other obligation by Cowen, with knowledge of Cowen’s breach
of any provision of this Sublease, shall not be deemed a waiver of


 


9


 














such breach. No waiver by SG of any term, covenant or
condition of this Sublease shall be deemed to have been made unless expressed
in writing and signed by SG.


 


(b)   The failure of Cowen to insist in any one or
more cases upon the strict performance or observance of any obligation of SG
hereunder or to exercise any right or option contained herein shall not be
construed as a waiver or relinquishment for the future of any such obligation
of SG or any right or option of Cowen or Cowen’s acceptance of performance of
any other obligation by SG, with knowledge of SG’s breach of any provision of
this Sublease, shall not be deemed a waiver of such breach. No waiver by Cowen
of any term, covenant or condition of this Sublease shall be deemed to have
been made unless expressed in writing and signed by Cowen.


 


20.           COMPLETE AGREEMENT. There are
no representations, agreements, arrangements or understandings, oral or
written, between the parties relating to the subject matter of this Sublease
which are not fully expressed in this Sublease. This Sublease cannot be changed
or terminated orally or in any manner other than by a written agreement
executed by both parties.


 


21.           SUCCESSORS AND ASSIGNS. The
provisions of this Sublease, except as herein otherwise specifically provided,
shall extend to, bind and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors and permitted assigns.
In the event of any assignment or transfer of SG’s leasehold estate under the
Primary Lease, the transferor or assignor, as the case may be, shall be and
hereby is entirely relieved and freed of all further obligations under this
Sublease.


 


22.           HOLDING OVER. If Cowen holds
over in the Subleased Premises after the expiration or termination of the Sublease
Term without the express written consent of SG and the Landlord, Cowen shall
pay, (i) all amounts due under Section 25.7 of the Primary Lease as
incorporated herein by reference; and (ii) if and to the extent the Landlord
requires SG to pay such amounts to the Landlord under Section 25.7 of
the Primary Lease, any additional amount required to be paid by SG (as Tenant
under the Primary Lease) under Section 25.7 of the Primary Lease in
respect of the holding over by Cowen in the Subleased Premises, including,
without limitation, any payment due from SG as Tenant under Section
25.7(c)(ii) of the Primary Lease. If Cowen holds over in the Subleased
Premises after the expiration or termination of the Sublease Term without the
express written consent of SG and the Landlord and SG has failed to vacate the
Premises, then during such period of time that SG has also failed to vacate the
premises, the amount payable by Cowen shall be Cowen’s Pro Rata Share of the
amounts payable by SG to the Landlord pursuant to Section 25.7 of the
Primary Lease.


 


23.           CONFIDENTIALITY. (a) Cowen
shall treat the terms of the Primary Lease and the Sublease with
confidentiality and agrees not to disclose the terms of either document to any
person or entity other than (i) to the extent required by laws, rules, orders
or other regulations of any governmental authority, or that it is advised by
counsel is required by such laws, rules, orders or other regulations, or (ii)
to the extent required by any listing or trading agreement concerning any
publicly traded securities that it or any of its affiliates may issue, or which
it is advised by counsel is required by any such agreement; or (iii) to its
auditors or attorneys to the extent necessary in connection with their
representation of Cowen.


 


(b)   SG shall treat the terms of the Sublease with
confidentiality and agrees not to disclose the terms of the Sublease to any
person or entity other than (i) to the extent required by laws, rules, orders
or other regulations of any governmental authority, or that it is advised by
counsel is


 


 


10

















 


required by such laws, rules, orders or other
regulations, or (ii) to the extent required by any listing or trading agreement
concerning any publicly traded securities that it or any of its affiliates may
issue, or which it is advised by counsel is required by any such agreement; or
(iii) to its auditors or attorneys to the extent necessary in connection with
their representation of SG.


 


24.           CONSENT OF LANDLORD UNDER PRIMARY
LEASE. (a) The Sublease Term shall not commence, and this Sublease shall
not be effective, until the Landlord shall have given its written consent
hereto in accordance with the terms of the Primary Lease, and SG shall have
notified Cowen that such consent has been given.


 


(b)   SG agrees to use commercially reasonable
efforts to obtain a Subordination and Non-Disturbance Agreement from the
Landlord for Cowen by the Commencement Date of the Sublease.


 


25.           NOTICES. All notices,
consents, approvals, demands and requests (collectively “Notices”) which
are required or desired to be given by either party to the other hereunder
shall be in writing and shall be (i) sent by a recognized overnight courier for
next business day delivery or (ii) by personal delivery, receipt required.
Notices which are served upon SG or Cowen in the manner provided herein shall
be deemed to have been given, served and received for all purposes hereunder on
the date evidenced by receipt. All Notices given to SG shall be addressed to
Societe Generale, 1221 Avenue of the Americas, New York, NY 10020, Attention:
Manager of Facilities, with a copy to Societe Generale, 1221 Avenue of the
Americas, New York, NY 10020, Attn: General Counsel. All Notices given to Cowen
shall be addressed to SG Cowen & Co., LLC, 1221 Avenue of the Americas, New
York, NY 10020, Attn: Chief Administrative Officer, with a copy to SG Cowen
& Co., LLC, 1221 Avenue of the Americas, New York, NY 10020, Attn: General
Counsel, or at such other place as either party may from time to time designate
in a notice given in accordance with the provisions of this Section 25.


 


26.             JURISDICTION, ETC. (a) Each
of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Sublease, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final non-appealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.


 


(b)   Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Sublease in
any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


27.             WAIVER OF JURY TRIAL. Each
of the parties hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Sublease.


 


11

















 


28.           COSTS AND EXPENSES. Any costs
and expenses incurred by SG in connection with the exercise of any rights
hereunder or any request made by Cowen, shall be paid by Cowen to SG on demand,
except as otherwise provided herein.


 


29.           GOVERNING LAW. This Sublease
shall be governed by, and construed in accordance with, the laws of the State
of New York without reference to any conflict of law or choice of law
principles that might apply the law of another jurisdiction.


 


IN WITNESS WHEREOF, the
parties hereto have caused this Sublease to be executed by their respective
officers thereunto duly authorized, as of the date first above written.


 


 


	
   

  	
  SOCIÉTÉ GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Jean Philippe Coulier

  	
   

  
	
   

  	
   

  	
  Name: Jean Philippe Coulier

  
	
   

  	
   

  	
  Title:   Chief
  Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SG COWEN & CO., LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Pascal Pinson

  	
   

  
	
   

  	
   

  	
  Name: Pascal Pinson

  
	
   

  	
   

  	
  Title:   Chief
  Administrative Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Thomas Conner

  	
   

  
	
   

  	
   

  	
  Name: Thomas Conner

  
	
   

  	
   

  	
  Title:   
  Chief Financial Officer

  



 


12

















 


SCHEDULE 1


 


[Description of
Subleased Premises

as of the Sublease Execution Date]


 


13

















 


SCHEDULE 1A


 


[Description of
Subleased Premises

Pursuant to Cowen Space Plan]


 


14














 


SCHEDULE 2


 


[Estimated
Conversion Costs]


 


15

















 


SCHEDULE 3


 


[Cowen’s Pro Rata
Share

of Cost of License Agreement]


 


16