TWELFTH AMENDMENT OF LEASE
THIS
TWELFTH AMENDMENT TO LEASE, dated the _____ day of September,
2007, made by and among LAKE PARK 1000 WOODBURY ROAD LLC, a
Delaware Limited Liability Company and CLK-HP 1000 WOODBURY
ROAD LLC, a Delaware Limited Liability Company, having an
office located at 7600 Jericho Turnpike, Suite 400, Woodbury,
New York 11797 (“Landlord”) and DELTA FUNDING
CORPORATION, having an office located at 1000 Woodbury Road,
Woodbury, New York 11797 (“Tenant”).
WHEREAS,
Landlord is the owner of the real property and building
located thereon commonly known as and located at 1000 Woodbury
Road, Woodbury, New York 11797 (“Building”);
and
WHEREAS,
pursuant to that certain Agreement of Lease dated November 1,
1993, as amended by First Amendment to Lease dated January 20,
1994, Second Amendment to Lease dated March 23, 1994, Third
Amendment to Lease dated December 8, 1995, Fourth Amendment to
Lease dated December 8, 1995, Fifth Amendment to Lease dated
March 4, 1996, Assignment dated July 30, 1996, Sixth Amendment
to Lease dated August 28, 1997, Seventh Amendment to Lease
dated October 29, 1997, Eighth Amendment to Lease dated April
2, 1998, Ninth Amendment to Lease dated February 16, 2001,
Tenth Amendment to Lease dated April 10, 2003 and Eleventh
Amendment to Lease dated September 9, 2005, between The Tilles
Investment Company, predecessor-in-interest to Landlord leased
to Commercial Capital Corp. of New York,
predecessor-in-interest to Tenant, portions of the Second (2
nd ) and
Third (3 rd )
floors in the Building which for all purposes shall be deemed
to consist of 94,358 rentable square feet and which premises
are more particularly described in the Lease (“Demised
Premises”) for a Term which expires on March
31, 2008; and
WHEREAS,
Landlord and Tenant now desire to amend the Lease by extending
the term thereof, and in other respects as hereinafter
provided;
NOW
THEREFORE, in consideration of the sum of $10.00, the mutual
agreements of parties hereinafter contained and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as
follows:
1. Effective
upon full execution and delivery of this Twelfth Amendment,
the Term of the Lease is hereby extended for a period of Two
(2) Years commencing on April 1, 2008 and continuing through
and including March 31, 2010, both dates inclusive (the
“Extension Term”) upon the terms and conditions
set forth herein.
2. From
April 1, 2008 through March 31, 2009, the annual Basic Rent
for the Demised Premises shall be $2,781,432.92, payable in
equal monthly installments of $231,806.15 on the first day of
each month during the first year of the Extension
Term.
3. From
April 1, 2009 through March 31, 2010, the annual Basic Rent
for the Demised Premises shall be $2,878,783.07, payable in
equal monthly installments of $239,919.37 on the first day of
each month during the second year of the Extension
Term.
4. Effective
April 1, 2008, Section 3.4 (A) of the Lease, as previously
amended, shall be further amended to provide that
“…Tenant’s Energy Base =
$283,074.00…”.
5. Effective
April 1, 2008, (a) Section 4.3 (A) of the Lease, as previously
amended, shall be further amended to provide that
“Tenant shall pay the sum of $283,074.00 per year
payable in equal monthly installments of $23,589.50 each in
advance.”, and (b) the last paragraph of Section 4.4 of
the Lease shall be deleted in its entirety and replaced with
the following: “Notwithstanding the above, upon
Tenant’s request made monthly in advance of the month
for which such overtime service is requested, Landlord shall
furnish overtime heat and air-conditioning service to up to
50,000 square feet reasonably designated by Tenant within the
Demised Premises between the hours of 6:00 P.M. to 9:00 P.M.,
Monday through Friday, exclusive of Holidays, at no additional
cost to Tenant, provided however, in no event shall Landlord
be required to furnish such overtime service if the areas
designated by Tenant would require Landlord to activate zones
covering areas in excess of 50,000 square
feet.”.
6. Effective
upon full execution and delivery of this Twelfth Amendment,
Sections 13.2 (A) (i) and (ii) shall be amended to provide
that an Event of Default shall occur if Tenant fails to pay
any monthly installment of Basic Annual Rent or Additional
Rent or fails to make any other payment required under the
Lease within five (5) days after written notice of such
failure from Landlord.
7. Tenant
acknowledges that it is currently in possession of the Demised
Premises and Landlord shall not be obligated to make any
improvements, alterations or repairs whatsoever to the Demised
Premises and Tenant hereby acknowledges that it has accepted
possession of the Demised Premises in its current "as-is"
physical condition.
8. The
following is inserted as Article XXVII of the
Lease:
ARTICLE XXVII
LETTER OF CREDIT
Section
27.1 Tenant shall deposit with
Landlord, to ensure the faithful performance and observance by
Tenant of the terms, provisions, conditions and covenants of
this Lease (a) upon execution of this Lease, an
irrevocable, clean, commercial letter of credit in the sum of
Two Hundred Thirty-One Thousand Eight Hundred Six and
15/100 ($231,806.15) Dollars (the
“First L/C”); and (b) on or before February 1,
2008 an irrevocable, clean, commercial letter of credit in the
additional sum of Nine Hundred Twenty-Seven Thousand
Two Hundred Twenty-Four and 60/100 ($927,224.60)
Dollars (the “Second L/C”), it
being intended that there be held by Landlord at all times
during the Extension Term letter(s) of credit in the total
amount of One Million One Hundred Fifty-Nine Thousand
Thirty and 77/100 ($1,159,030.77) Dollars (the
“L/C Amount”, which First L/C together with the
Second L/C are hereinafter referred to collectively as the
“Letter of Credit”). Tenant acknowledges and
agrees that such Letter of Credit is intended to be a
third-party guaranty of Tenant’s obligations under the
Lease, and is provided to protect Landlord’s right to
receive its full, unlimited damages in the event of
Tenant’s default. Tenant agrees that, in the
event Tenant defaults in the performance and observance of the
terms, provisions, conditions and covenants of the
Lease (including without limitation, the payment of
Basic or Additional Rent), beyond any applicable notice and
cure periods, Landlord may use-, or, apply the whole or any
part of the L/C Amount to t
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