SECOND AMENDMENT TO LEASE

 

                                                                     Exhibit 10

 

 

                            SECOND AMENDMENT TO LEASE

                            -------------------------

 

 

     THIS SECOND AMENDMENT TO LEASE (this "Second Amendment") is entered into as

of the 24th day of March, 2005 by and between THE BROOKLYN UNION GAS COMPANY,   a

New York corporation   having an office at One MetroTech   Center,   Brooklyn,   New

York 11201   ("Tenant") and FOREST CITY JAY STREET   ASSOCIATES,   L.P., a New York

limited   partnership having an office at One MetroTech Center North, 11th Floor,

Brooklyn, New York 11201 ("Landlord").

 

                              W I T N E S S E T H:

                               - - - - - - - - - -

 

     WHEREAS, Landlord and Tenant entered into a lease dated as of September 15,

1988 (the   "Original   Lease"),   demising   the   premises   described   in the Lease

("demised premises"),   in the building known as One MetroTech Center,   Brooklyn,

New York (the "Building");

 

     WHEREAS, the Original Lease was amended by a First Amendment to Lease dated

as of March 8, 1991 (the "First Amendment");

 

     WHEREAS,   except for the First   Amendment,   the Original Lease has not been

previously amended;

 

     WHEREAS,   the space   demised   under the Original   Lease   consisted of (i) a

portion of the   rentable   area on the ground floor of the   Building,   the entire

rentable area on the second (2nd) floor of the Building and the entire   rentable

area on the twelfth (12th) through   twenty-third   (23rd) floors of the Building,

or 450,000   rentable   square feet of office space in the aggregate   (the "Office

Space"),   (ii) a portion of the parking   garage in the   Building   consisting   of

approximately 25,600 square feet (the "Parking Area"), (iii) approximately 5,527

square   feet of below   grade   storage   space   (the   "Storage   Space"),   and (iv)

appurtenant rights to use certain areas on the roof of the Building, and certain

shaft space within the Building,   for Tenant's   HVAC,   mechanical and electrical

plant and Tenant's communications equipment;

 

     WHEREAS, the Expiration Date of the Original Lease is February 28, 2012;

 

     WHEREAS,   Tenant desires to extend the Term for an additional thirteen (13)

years, to and including   February 28, 2025, and Landlord is willing to so extend

the Term in accordance with the terms and conditions hereinafter set forth;

 

     WHEREAS,   Tenant   desires the option to   surrender a portion of the demised

premises   consisting of a portion of the rentable area on the seventeenth (17th)

floor,   and   Landlord   is willing to accept such   surrender   of a portion of the

seventeenth (17th) floor in accordance with the terms and conditions hereinafter

set forth;

 

     WHEREAS, Tenant,   simultaneously herewith, (i) has surrendered a portion of

the demised   premises   consisting of the entire   rentable area on the eighteenth

(18th) floor,   and (ii) pursuant to that certain   Assignment   and   Assumption of

Subleases,   of   even   date   herewith   and   annexed   hereto   as   Exhibit   C   (the

"Assignment   and   Assumption   of   Subleases"),   has   assigned to Landlord all of

 

 

<PAGE>

 

 

Tenant's right,   title and interest to that certain Sublease dated as of May 15,

2002 between Tenant d/b/a KeySpan Energy Delivery New York, as Sublandlord,   and

Depository Trust & Clearing Corporation   ("DTCC"), as Subtenant (as amended, the

"DTCC   Sublease"),   which DTCC Sublease   covers the entire   rentable area on the

eighteenth (18th) floor;

 

     WHEREAS, Tenant,   simultaneously herewith, (i) has surrendered a portion of

the demised   premises   consisting of the entire   rentable area on the nineteenth

(19th) floor,   and (ii) pursuant to the   Assignment   and Assumption of Subleases

has   assigned to   Landlord   all of Tenant's   right,   title and   interest to that

certain Sublease dated as of June 30, 2004,   between Tenant d/b/a KeySpan Energy

Delivery New York, as Sublandlord,   and Allstate Insurance Company ("Allstate"),

as Subtenant   (the "Allstate   Sublease"),   which   Allstate   Sublease   covers the

entire rentable area on the nineteenth (19th) floor;

 

     WHEREAS,   the space   demised   under the Original   Lease as modified by this

Second Amendment presently consists of (i) a portion of the rentable area on the

ground floor of the Building, the entire rentable area on the second (2nd) floor

of the   Building,   the   entire   rentable   area   on the   twelfth   (12th)   through

seventeenth   (17th)   floors of the Building and the entire   rentable area on the

twentieth (20th) through twenty-third (23rd) floors of the Building,   or 391,878

rentable square feet of office space in the aggregate (the "Office Space"), (ii)

a portion of the parking   garage in the   Building   consisting   of   approximately

25,600 square feet (the "Parking Area"),   (iii)   approximately 5,527 square feet

of below grade storage space (the "Storage Space"),   and (iv) appurtenant rights

to use certain areas on the roof of the Building, and certain shaft space within

the Building,   for Tenant's HVAC,   mechanical and electrical   plant and Tenant's

communications equipment;

 

     WHEREAS,   Tenant   desires the option to   surrender a portion of the demised

premises   consisting of the entire rentable area on the twentieth   (20th) floor,

and Landlord is willing to accept such   surrender of the twentieth   (20th) floor

in accordance with the terms and conditions hereinafter set forth;

 

     WHEREAS,   Landlord and Tenant desire to make such additional   modifications

to the Lease as are hereinafter provided.

 

     NOW,   THEREFORE,   for Ten   Dollars   ($10.00)   and other   good and   valuable

consideration,    the   legal    sufficiency    and   receipt   of   which   are   hereby

acknowledged, Landlord and Tenant agree as follows:

 

     1. General. From and after the Effective Date (as hereinafter defined), the

"Lease"   shall mean the Original   Lease as modified by the First   Amendment   and

this   Second   Amendment.   All   capitalized   terms   not   defined   in this   Second

Amendment shall have the meanings ascribed to them in the Lease.

 

     2. Effective Date. This Second   Amendment shall be effective as of the date

first appearing above (the "Effective Date").

 

     3. Extension of Term. As of the Effective Date, the Term is hereby extended

to, and the Expiration Date (sometimes hereinafter referred to as the "Extension

Term   Expiration   Date") shall be,   February 28,   2025.   The thirteen   (13) year

period   from March 1, 2012 (the   "Extension   Term   Commencement   Date")   through

February 28, 2025 is sometimes hereinafter referred to as the "Extension Term".

 

 

                                        2

<PAGE>

 

 

     4. Fixed Annual Rent.

 

     (a) Commencing on the Effective Date, Tenant shall pay fixed annual rent to

Landlord as follows:

 

     (i) For the Office   Space,   from the   Effective   Date through   February 28,

2015,   Thirteen   Million Seven Hundred Fifteen Thousand Seven Hundred Thirty and

00/100 Dollars   ($13,715,730.00)   per annum or One Million One Hundred Forty-Two

Thousand   Nine Hundred   Seventy-Seven   and 50/100   Dollars   ($1,142,977.50)   per

month,   and from March 1, 2015   through   the   Extension   Term   Expiration   Date,

Fourteen Million One Hundred Seven Thousand Six Hundred Eight and 00/100 Dollars

($14,107,608.00) per annum or One Million One Hundred Seventy-Five   Thousand Six

Hundred Thirty-Four and 00/100 Dollars ($1,175,634.00) per month.

 

     (ii) For the Parking   Area,   from the Effective   Date through   February 28,

2010,   Three   Hundred   Thirty-Two   Thousand   Eight   Hundred   and 00/100   Dollars

($332,800.00) per annum or Twenty-Seven   Thousand Seven Hundred Thirty-Three and

33/100 Dollars   ($27,733.33)   per month, and from March 1, 2010 through February

28,   2015,    Four   Hundred   Nine    Thousand   Six   Hundred   and   00/100    Dollars

($409,600.00)   per annum or Thirty-Four   Thousand One Hundred   Thirty-Three   and

33/100 Dollars   ($34,133.33)   per month, and from March 1, 2015 through February

28,   2020,   Four   Hundred   Sixty   Thousand   Eight   Hundred   and   00/100   Dollars

($460,800.00) per annum or Thirty-Eight Thousand Four Hundred and 00/100 Dollars

($38,400.00)   per   month,   and from March 1, 2020   through   the   Extension   Term

Expiration   Date, Five Hundred Twelve Thousand and 00/100 Dollars   ($512,000.00)

per annum or   Forty-Two   Thousand   Six   Hundred   Sixty-Six   and   67/100   Dollars

($42,666.67) per month.

 

     (iii) For the Storage Space,   from the Effective Date through   February 28,

2010,    Seventy-One    Thousand   Eight   Hundred    Fifty-One   and   00/100   Dollars

($71,851.00)   per annum or Five   Thousand Nine Hundred   Eighty-Seven   and 58/100

Dollars   ($5,987.58) per month,   and from the March 1, 2010 through February 28,

2015,    Eighty-Eight    Thousand   Four   Hundred   Thirty-Two   and   00/100   Dollars

($88,432.00)   per annum or Seven   Thousand   Three Hundred   Sixty-Nine and 33/100

Dollars ($7,369.33) per month, and from March 1, 2015 through February 28, 2020,

Ninety-Nine Thousand Four Hundred Eighty-Six and 00/100 Dollars ($99,486.00) per

annum or Eight Thousand Two Hundred Ninety and 50/100   Dollars   ($8,290.50)   per

month,   and from March 1, 2020 through the Extension Term   Expiration   Date, One

Hundred Ten Thousand Five Hundred   Forty and 00/100   Dollars   ($110,540.00)   per

annum or Nine Thousand Two Hundred   Eleven and 67/100   Dollars   ($9,211.67)   per

month.

 

     (b)   Landlord   and Tenant   acknowledge   and agree that as of the   Effective

Date,   the annual credit   against fixed annual rent for cleaning is Four Hundred

Seventy Thousand Two Hundred Fifty-Three and 60/100 Dollars ($470,253.60).

 

     (c) From and after the   Effective   Date,   fixed   annual   rent   shall not be

subject to   adjustment   pursuant   to   Section   2.01(a)   of the   Original   Lease,

Paragraphs 3 or 6 of the First   Amendment   or Exhibit I to the   Original   Lease,

which Exhibit I to the Original   Lease shall be deemed deleted from the Lease as

of the Effective Date.

 

 

                                       3

<PAGE>

 

 

     (d) Notwithstanding   anything to the contrary in this Paragraph 4, provided

that Tenant   shall not be in default of any of its   material   obligations   under

this Lease (after the giving of any required   notice and the   expiration   of any

applicable   cure period),   then   commencing on the date that is eight (8) months

following the Effective Date, the next   installment(s)   of fixed annual rent due

and payable   under the Lease shall be abated (such   abatement to be prorated for

any portion of a month) in the amount of One Million Five   Hundred   Thousand and

00/100 Dollars ($1,500,000.00) in the aggregate.

 

     5. Base Tax, Taxes, Base Operating   Expenses,   Operating   Expenses and Base

CAM Operating Expenses

 

     (a)   Landlord   and Tenant   acknowledge   and agree that as of the   Effective

Date,   Tenant's   Proportionate   Share for   Tenant's   Tax   Payment   is 43.82% and

Tenant's Proportionate Share for Tenant's Operating Payment is 47.69%.

 

     (b)   Commencing on the Effective   Date,   the term "Base Tax" shall mean the

average of the Taxes payable for the 2005   calendar year (i.e.,   the second half

of the 2004/2005   fiscal tax year and the first half of the 2005/2006 fiscal tax

year) and the Taxes payable for the 2006 calendar year (i.e., the second half of

the   2005/2006   fiscal tax year and the first half of the   2006/2007   fiscal tax

year).

 

     (c)   Landlord   and Tenant   acknowledge   and agree that the term   "Taxes" in

Section   5.01(c) of the Lease   includes   the annual   assessment   by the City for

charges   arising from the   Building's   location   within the   MetroTech   Business

Improvement District.

 

     (d) Commencing on the Effective   Date, the term "Base   Operating   Expenses"

shall mean an amount   equal to Operating   Expenses   for the calendar   year 2005.

Tenant's   obligation to pay Tenant's Operating Payment with respect to Operating

Expenses for any period after the   Effective   Date shall not commence   until the

first (1st) anniversary of the Effective Date.

 

     (e) A new   subsection   (ff) shall be added to Section   5.02 of the Lease as

follows:

 

          "(ff) the Security Attendant Cost."

 

     (f) Commencing on the seventh (7th)   anniversary of the Effective Date, the

term "Base CAM Operating   Expenses" shall mean an amount equal to the Building's

Proportionate   Share from time to time of CAM Operating   Expenses for the twelve

(12) month period commencing on January 1, 2012 and ending on December 31, 2012.

 

     6. Option to Surrender Portion of 17th Floor

 

     (a) Tenant   shall have the right,   on not less than   thirty (30) days prior

notice (which notice shall be irrevocable, hereinafter the "17th Floor Surrender

Space Notice"),   to surrender the portion of the seventeenth   (17th) floor shown

on Exhibit A annexed hereto (the "17th Floor Surrender Space") on March 1, 2006.

 

 

                                       4

<PAGE>

 

 

In the event that Tenant shall have timely   elected to surrender   the 17th Floor

Surrender Space but thereafter fails to surrender the 17th Floor Surrender Space

in accordance   with the   provisions of this   Paragraph 6 on March 1, 2006,   then

Tenant shall continue to have the right to so surrender the 17th Floor Surrender

Space   through and including   March 31, 2006,   provided,   however,   that for the

period commencing on March 1, 2006 and continuing through and including the date

that Tenant   surrenders the 17th Floor   Surrender   Space in accordance with this

Paragraph 6 (but in no event later than March 31,   2006),   fixed annual rent and

all   additional   rent   payable   under the   Lease in   respect   of the 17th   Floor

Surrender   Space shall be increased to an amount equal to twice the fixed annual

rent and all   additional   rent   payable   under the Lease in   respect of the 17th

Floor Surrender Space for the month of February,   2006,   which increased   amount

shall be prorated for any portion of a month.   Either March 1, 2006, or the date

between   March 1, 2006 and March 31, 2006 when Tenant   actually   surrenders   the

17th   floor    Surrender   Space   in   accordance   with   this   Paragraph   6,   shall

hereinafter be referred to as the "17th Floor Surrender   Space Surrender   Date".

Tenant's   failure (i) to deliver the 17th Floor   Surrender Space Notice at least

thirty   (30) days prior to March 1, 2006,   or (ii) to   surrender   the 17th Floor

Surrender   Space in accordance   with the   provisions   of this   Paragraph 6 on or

before March 31, 2006,   shall be deemed an irrevocable   waiver of Tenant's right

to surrender the 17th Floor Surrender Space.

 

     (b) Tenant's   right to surrender   the 17th Floor   Surrender   Space shall be

subject to the following:

 

     (i) Tenant shall not be in default of any of its material obligations under

this Lease (after the giving of any required   notice and the   expiration   of any

applicable cure period) either at the time of giving of the 17th Floor Surrender

Space Notice, or on the 17th Floor Surrender Space Surrender Date.

 

     (ii) Tenant,   at Tenant's expense,   shall have separately   demised the 17th

Floor   Surrender   Space in   accordance   with the   "17th   Floor   Surrender   Space

Delivery   Conditions"   annexed hereto as Exhibit B, and shall have completed all

of the other work described on Exhibit B. Commencing   upon Tenant's   delivery of

the 17th Floor Surrender Space Notice to Landlord,   Tenant may request Landlord,

during normal   business   hours and upon   reasonable   prior notice,   to accompany

Tenant on a joint   walk-through   of the 17th Floor   Surrender   Space in order to

identify any items of work set forth on Exhibit B that Landlord determines to be

incomplete.   Any dispute   about whether the work set forth on Exhibit B has been

completed may be submitted to arbitration by either party pursuant to Article 38

of the Lease,   before an arbitrator selected in accordance with Section 38.01(d)

of the Lease.

 

     (iii) The 17th Floor Surrender Space shall be tendered to Landlord   vacant,

unencumbered, broom clean, in reasonably good order and condition (ordinary wear

and tear and damage by fire or casualty   excepted)   and   otherwise in accordance

with Exhibit B.

 

     (c) All   work   performed   by   Tenant   in order to   satisfy   the 17th   Floor

Surrender   Space Delivery   Conditions   shall be performed in accordance with the

provisions   of   Article 8 of the Lease   applicable   to   Tenant's   Changes   which

require   Landlord's   consent.   In the event of a conflict   between Exhibit B and

Article 8 of the Lease, Exhibit B shall be controlling.

 

 

                                       5

<PAGE>

 

 

      (d) If Tenant timely delivers the 17th Floor Surrender Space Notice, and if

Tenant thereafter timely tenders the 17th Floor Surrender Space to Landlord with

all work required by Exhibit B having been completed and otherwise in accordance

with   Paragraph 6 of this Second   Amendment,   then   effective   on the 17th Floor

Surrender Space Surrender Date:

 

     (i) all references in this Lease to the demised premises shall be deemed to

exclude the 17th Floor   Surrender Space and the total rentable square footage of

Office   Space   demised   under   this   Lease   shall be deemed   reduced   by 27, 503

rentable square feet;

 

     (ii) fixed   annual rent shall be reduced by an amount equal to Nine Hundred

Sixty-Two Thousand Six Hundred Five and 00/100 Dollars   ($962,605.00) per annum,

or Eighty   Thousand Two Hundred   Seventeen and 08/100 Dollars   ($80,217.08)   per

month,   for the period   commencing on the day following the 17th Floor Surrender

Space   Surrender   Date through and   including   February   28, 2015,   and (B) Nine

Hundred Ninety Thousand One Hundred Eight and 00/100 Dollars   ($990,108.00)   per

annum, or Eighty-Two Thousand Five Hundred Nine and 00/100 Dollars   ($82,509.00)

per month,   for the period   commencing   March 1, 2015 through and   including the

Extension Term Expiration Date;

 

     (iii)   Tenant's   Proportionate   Share for   Tenant's   Tax   Payment   shall be

reduced   by 3.08%,   and   Tenant's   Proportionate   Share for   Tenant's   Operating

Payment shall be reduced by 3.35%;

 

     (iv) the   credit to fixed   annual   rent for   cleaning   shall be   reduced by

Thirty-Three Thousand Three and 60/100 Dollars ($33,003.60); and

 

     (v) Tenant   shall   reimburse   Landlord   for the   reasonable,   actual   costs

incurred   by   Landlord   for   construction   and   fit-out of the   common   corridor

identified   on   Exhibit A as the   "Portion   of   corridor   to be   constructed   by

Landlord at Tenant's   cost".   Such   corridor   shall be completed   with   Building

standard lighting, fixtures, carpeting, directional signage, signage required by

Legal Requirements and other Building standard finishes.   Tenant shall reimburse

Landlord   for such costs of   construction   and fit-out of such   common   corridor

within   thirty   (30)   days   after   receipt   of   Landlord's    invoices   therefor,

accompanied by customary back-up.

 

     (vi) Landlord shall   continue to furnish   heating,   ventilation   (including

fresh air) and air   conditioning   to the   portion of the 17th floor   retained by

Tenant, all in accordance with Section 22.01(b),   Article 5 and other applicable

provisions of the Lease.

 

     (e) Tenant   agrees   that   within ten (10)   Business   Days after   Landlord's

request   following the 17th Floor Surrender   Space Surrender Date,   Tenant shall

execute,   acknowledge   and deliver to Landlord an instrument in form   reasonably

acceptable to Landlord   confirming (i) the 17th Floor   Surrender Space Surrender

Date,   (ii) the fixed   annual   rent   payable   under the   Lease,   (iii)   Tenant's

Proportionate   Share for Tenant's Tax Payment and Tenant's   Proportionate   Share

for   Tenant's   Operating   Payment,   and (iv) any   other   information   reasonably

requested by Landlord to be confirmed in connection   with   surrender of the 17th

Floor Surrender Space.

 

 

                                       6

<PAGE>

 

 

7. Continuing Tenant Obligations Concerning the 18th Floor.

 

     (a) Tenant hereby   acknowledges that simultaneously with Tenant's surrender

of the 18th   floor as of the   date   hereof,   and   simultaneously   with   Tenant's

assignment of the DTCC Sublease   pursuant to the   Assignment   and   Assumption of

Subleases, Landlord and DTCC have executed and delivered an attornment agreement

substantially   in the form   annexed   hereto as Exhibit D (the   "DTCC   Attornment

Agreement"),   whereby   DTCC has agreed to attorn to Landlord as a direct   tenant

under the terms and   conditions   of the DTCC   Sublease   as   modified by the DTCC

Attornment Agreement (hereinafter, the "DTCC Lease").

 

     (b) Effective as of the Effective Date:

 

     (i) Without   limiting   anything   contained   in   Paragraph 10 of this Second

Amendment   and   continuing   for   the   balance   of the   term   of the   DTCC   Lease

(including any extensions or rentals thereof),   Tenant agrees to comply with the

following   provisions of the DTCC Lease and to recognize DTCC's rights vis-a-vis

Tenant thereunder (subject to the terms and provisions   thereof):   Section 10(c)

(access to electrical closets);   Section 10(d) (access to telephone closets) and

Section   20 (access   to lobby,   escalators,   elevators   and   premises,   security

procedures and signage);

 

     (ii)   Tenant's   right of first   offer on   Surrendered   Space,   set forth in

Paragraph   13 of this   Second   Amendment,   shall be subject and   subordinate   to

DTCC's renewal option set forth in Section 21 of the DTCC Lease; and

 

     (iii) Tenant hereby agrees, with reference to that certain letter agreement

dated as of March 24, 2005 between Tenant d/b/a Keyspan Energy Delivery New York

and DTCC (the   "Confirmatory   Power Letter"),   which   Confirmatory Power Letter,

among other things,   ratifies and confirms Tenant's   obligations to provide DTCC

with the "New Power   Feed" as defined in that   certain   letter   agreement   dated

October 8, 2004 between DTCC and Tenant d/b/a Keyspan   Energy   Delivery New York

(the "New Power Feed   Letter"),   to perform the   obligations of Tenant under the

Confirmatory   Power   Letter and the New Power Feed Letter at   Tenant's   expense.

Further,    Tenant    acknowledges    and   agrees   that   Landlord    shall   have   no

responsibility   whatsoever for the performance of Tenant's obligations under the

Confirmatory   Power Letter or the New Power Feed Letter, nor shall Landlord have

any   liability   to Tenant   for any   failure   of the New Power Feed or any of the

equipment or facilities furnished by Tenant to DTCC pursuant to the Confirmatory

Power Letter or the New Power Feed Letter.

 

     8. Continuing Tenant Obligations Concerning the 19th Floor.

 

     (a) Tenant hereby   acknowledges that simultaneously with Tenant's surrender

of the 19th   floor as of the   date   hereof,   and   simultaneously   with   Tenant's

assignment of the Allstate Sublease pursuant to the Assignment and Assumption of

Subleases,   Landlord and Allstate   have   executed   and   delivered an   attornment

agreement   substantially   in the form annexed hereto as Exhibit E (the "Allstate

Attornment   Agreement"),   whereby Allstate has agreed to attorn to Landlord as a

direct   tenant   under the terms   and   conditions   of the   Allstate   Sublease   as

modified   by the   Allstate   Attornment   Agreement   (hereinafter,   the   "Allstate

Lease").

 

 

                                       7

<PAGE>

 

 

     (b) Effective as of the Effective Date:

 

     (i) without   limiting   anything   contained   in   Paragraph 10 of this Second

Amendment   and   continuing   for the   balance of the term of the   Allstate   Lease

(including any extensions or renewals thereof), Tenant agrees to comply with the

following   provisions of the Allstate Lease and to recognize   Allstate's   rights

vis-a-vis   Tenant   thereunder   (subject   to the terms and   provisions   thereof):

Section 10(c) (access to electrical closets); Section 10(d) (access to telephone

closets) and Section 20 (access to lobby,   escalators,   elevators   and premises,

security procedures and signage);

 

     (ii)   Tenant's   right of first   offer on   Surrendered   Space,   set forth in

Paragraph   13 of this   Second   Amendment,   shall be subject and   subordinate   to

Allstate's right of first offer set forth in Section 23 of the Allstate Lease;

 

     (iii) In the event that on the Effective   Date the Rent   Commencement   Date

(as defined in Section 2(a) of the Allstate   Lease) has not yet   occurred,   then

Tenant shall pay as   additional   rent,   within   thirty (30) days after   Tenant's

receipt of Landlord's   reasonably detailed invoices therefor, an amount equal to

Sixty-Two Thousand Three Hundred Eighty-Four and 00/100 Dollars ($62,384.00) per

month   (prorated   for any portion of a month) for the period   commencing   on the

Effective   Date and   ending on the day prior to the Rent   Commencement   Date (as

defined in Section 2(a) of the Allstate Lease); and

 

     (iv) In the event that on or after the Effective Date all or any portion of

the moving allowance of Sixty-One   Thousand Five Hundred   Fifty-Eight and 00/100

Dollars   ($61,558.00),   has not yet been   credited   against Fixed Rent under the

Allstate   Lease   pursuant   to Section 22 of the   Allstate   Lease,   Tenant   shall

reimburse   Landlord,   as   additional   rent and   within   thirty   (30) days   after

Tenant's receipt of Landlord's reasonably detailed invoices therefor, for all or

any portion of such moving   allowance that is credited   against Fixed Rent on or

after the Effective Date.

 

     9. Option to Surrender 20th Floor.

 

     (a) Commencing on the Effective   Date and   continuing   until March 1, 2006,

Tenant shall have the right, on not less than thirty (30) days prior notice (the

"20th Floor   Surrender   Notice"),   to surrender the entire   rentable area on the

twentieth   (20th) floor,   which   rentable   area is deemed to   constitute   29,061

rentable square feet.   Tenant's 20th Floor Surrender Notice shall be irrevocable

and shall specify the anticipated date for surrender of the 20th floor. Tenant's

failure (i) to deliver the 20th Floor Surrender Notice at least thirty (30) days

prior to March 1, 2006, or (ii) to surrender   the 20th Floor in accordance   with

the provisions of this Paragraph 9 not later than March 1, 2006, shall be deemed

an irrevocable waiver of Tenant's right to surrender the 20th Floor.

 

     (b)   Tenant's   right to   surrender   the 20th floor   shall be subject to the

following:

 

     (i) Tenant shall not be in default of any of its material obligations under

this Lease (after the giving of any required   notice and the   expiration   of any

applicable cure period) either at the time of giving of the 20th Floor Surrender

Notice or on the 20th Floor Surrender Date (as hereinafter defined).

 

 

                                       8

<PAGE>

 

 

     (ii) Tenant,   at Tenant's   expense,   shall have   completed   all of the work

described in the "20th Floor Surrender Space Delivery Conditions" annexed hereto

as Exhibit F.   Commencing   upon   Tenant's   delivery of the 20th Floor   Surrender

Space Notice to Landlord,   Tenant may request   Landlord,   during normal business

hours   and   upon   reasonable   prior   notice,   to   accompany   Tenant   on a   joint

walk-through of the 20th Floor Surrender Space in order to identify any items of

work set forth on   Exhibit F that   Landlord   determines   to be   incomplete.   Any

dispute about whether the work set forth on Exhibit F has been   completed may be

submitted to   arbitration   by either party   pursuant to Article 38 of the Lease,

before an arbitrator selected in accordance with Section 38.01(d) of the Lease.

 

     (iii) The 20th Floor Surrender Space shall be tendered to Landlord   vacant,

unencumbered, broom clean, in reasonably good order and condition (ordinary wear

and tear and damage by fire or casualty   excepted)   and   otherwise in accordance

with Exhibit F.

 

     (c) All   work   performed   by   Tenant   in order to   satisfy   the 20th   Floor

Surrender   Space Delivery   Conditions   shall be performed in accordance with the

provisions of Article 8 of the Lease applicable to Tenant's Changes which do not

require   Landlord's   consent.   In the event of a conflict   between Exhibit F and

Article 8 of the Lease, Exhibit F shall be controlling.

 

     (d) If Tenant   timely   exercises   its right to surrender   the 20th floor in

accordance with Paragraph 9(a), and if Tenant thereafter timely tenders the 20th

floor to Landlord in accordance   with Paragraph   9(a), with all work required by

Exhibit F having been completed and otherwise in accordance   with Paragraph 9(b)

of this   Second   Amendment,   then   effective   the date of such tender (the "20th

Floor Surrender Date"):

 

      (i) all references in this Lease to the demised premises shall be deemed to

exclude the 20th floor and the total   rentable   square   footage of Office   Space

demised under this Lease shall be reduced by 29,061 rentable square feet;

 

     (ii) fixed annual rent shall be reduced by One Million   Seventeen   Thousand

One   Hundred   Thirty-Five   and 00/100   Dollars   ($1,017,135.00)   per   annum,   or

Eighty-Four Thousand Seven Hundred Sixty-One and 25/100 Dollars ($84,761.25) for

the period commencing on the day following the 20th Floor Surrender Date through

and including   February 28, 2015, and One Million Forty-Six Thousand One Hundred

Ninety-Six   and   00/100   Dollars   ($1,046,196.00)   per   annum,   or   Eighty-Seven

Thousand One Hundred Eighty-Three and 00/100 Dollars ($87,183.00) per month, for

the period   commencing on March 1, 2015 through and including the Extension Term

Expiration Date;

 

     (iii)   Tenant's   Proportionate   Share for   Tenant's   Tax   Payment   shall be

reduced   by 3.25%,   and   Tenant's   Proportionate   Share for   Tenant's   Operating

Payment shall be reduced by 3.54%; and

 

     (iv) the   credit to fixed   annual   rent for   cleaning   shall be   reduced by

Thirty-Four    Thousand    Eight    Hundred    Seventy-Three    and   20/100    Dollars

($34,873.20).

 

     (e) Tenant   agrees   that   within ten (10)   Business   Days after   Landlord's

request    following   the   20th   Floor   Surrender   Date,   Tenant   shall   execute,

acknowledge and deliver to Landlord an instrument in form reasonably   acceptable

to Landlord   confirming (i) the 20th Floor Surrender Date, (ii) the fixed annual

 

 

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rent payable under the Lease,   (iii) Tenant's   Proportionate   Share for Tenant's

Tax Payment and Tenant's Proportionate Share for Tenant's Operating Payment, and

(iv) any other information   reasonably   requested by Landlord to be confirmed in

connection with surrender of the 20th floor.

 

     10. Building Services for Surrendered   Space;   Security,   Access,   Signage,

etc.

 

     For purposes of this Second   Amendment,   any of the 17th Floor   Surrendered

Space and/or the 18th,   19th and 20th floors of the Building shall   individually

or   collectively   be referred to as the   "Surrendered   Space".   Effective on the

Effective Date:

 

     (a) Passenger   Elevators.   Three (3)   passenger   elevators in the high rise

elevator bank (including the two (2) passenger   elevators   presently serving the

18th and 19th   floors)   shall be   dedicated   to serving   the   Surrendered   Space

exclusively.   Until the earlier of the 17th Floor Surrender Space Surrender Date

and 20th Floor Surrender Date, the two (2) passenger elevators presently serving

the 18th and 19th floors shall   continue to be dedicated to serving the 18th and

19th floors   exclusively.   Commencing on the earlier of the 17th Floor Surrender

Space Surrender Date and the 20th Floor Surrender Date, Landlord,   at Landlord's

expense,   shall   reprogram   the third such   passenger   elevator   to so serve the

Surrendered Space.   Notwithstanding the forgoing,   during any period when one or

more of the   remaining   five (5) elevators in the high rise elevator bank is out

of service for more than one (1) Business Day (or for more than twenty-four (24)

consecutive hours over the course of two (2) consecutive   Business Days) because

of repairs,   maintenance or alterations,   Landlord, at Landlord's expense, shall

promptly reprogram the third elevator dedicated to serving the Surrendered Space

so that it is   available   to serve all floors   served by the high rise   elevator

bank during such time as such dedicated elevator(s) are out of service;

 

     (b)   Electricity.   Pursuant   to   Article 6 of the Lease,   Tenant   presently

obtains   electricity   directly   from the utility   company.   Pursuant to the DTCC

Sublease   and the   Allstate   Sublease,   Tenant   presently   furnishes   submetered

electricity   to DTCC and   Allstate   on the 18th and 19th   floors.   Landlord   and

Tenant   have   agreed   that   commencing   as   soon   after   the   Effective   Date as

reasonably   practicable,   Tenant shall   obtain   electricity   from   Landlord on a

submetered   basis.   Additionally,   Landlord   shall   furnish   electricity   to any

tenants of Landlord in the Surrendered Space on a submetered basis. The forgoing

conversion is sometimes hereinafter referred to as the "Electrical   Conversion".

In furtherance   of the   Electrical   Conversion,   and without   limiting   anything

contained in Section 6.02 of the Lease:

 

     (i) As soon as reasonably   practicable   after the Effective Date,   Landlord

shall cause Landlord's consultants to design and plan the Electrical Conversion.

Landlord    shall   furnish    Tenant   with   copies   of   any   progress    plans   and

specifications   for the   Electrical   Conversion,   as well as a copy of the final

submetering plan, for Tenant's reference.

 

     (ii) Landlord shall order all meters and other   equipment