SEVENTH AMENDMENT OF LEASE
THIS
SEVENTH AMENDMENT OF LEASE, (this " Amendment
") made as of the ___ day of June, 2008 (sometimes referred to
as the " date
hereof "), by and between ONE PENN PLAZA LLC
, a New York limited liability company, having an office c/o
Vornado Office Management LLC, 888 Seventh Avenue, New York,
New York 10019 (" Landlord
"), and BROADPOINT SECURITIES
GROUP, INC. , a New York corporation with an address at
One Penn Plaza, New York, New York 10119, Attention: Laurence
Mascera (" Tenant
").
W I T N E S S E T H :
WHEREAS, by Agreement of
Lease, dated as of March 21, 1996 (the " Original
Lease "), Landlord’s predecessor-in-interest,
Mid-City Associates (" Mid-City
") did demise and let unto First Albany Companies, Inc. ("
FAC "),
and FAC did hire and take from Mid-City the entire
forty-second (42 nd
) floor as more particularly identified in the Original Lease
(the " 42
nd Floor Premises
"), of the building known as and by the street address of One Penn
Plaza, New York, New York (the " Building
");
WHEREAS, by a Lease
Modification Agreement, dated as of June 17, 1996 and a
Second Lease Modification Agreement, dated as of July 12,
1996, and as more particularly provided in such amendments,
Landlord leased to Tenant (x) a portion of the forty-first
(41 st
) floor of the Building, as more particularly identified
therein (the " First 41
st Floor Premises
") and (y) a portion of the fortieth (40 th
) floor of the Building, as more particularly shown on Exhibit "C"
attached hereto and made a part hereof and identified thereon as
Spaces "A", "B", "C" and "D" (collectively, the " Original 40
th Floor Premises
");
WHEREAS, Landlord succeeded
to Mid-City’s interest in the Building;
WHEREAS, pursuant to a
Third Amendment of Lease, dated December 1, 1999, and as more
particularly provided therein, Landlord leased to Tenant an
additional portion of the forty-first (41 st
) floor of the Building (together with the First 41
st
Floor Premises, the " 41
st Floor Premises
");
WHEREAS, Landlord and Tenant entered into a Fourth Amendment
of Lease, dated as of August 1, 2000;
WHEREAS, Landlord
and Tenant entered into a Fifth Amendment of Lease, dated as
of December 19, 2003 (the " Fifth
Amendment "), and a Sixth Amendment of Lease (the "
Sixth
Amendment "), dated as of September 30, 2004 (the
Original Lease, as heretofore amended, the " Lease "),
regarding the subleasing by Tenant to Wiener Realty
Management, LLC (" Wiener ")
of certain portions of the Original 40 th
Floor Premises, including Space "A" and Space "D", but
excluding Space "B" and Space "C";
WHEREAS,
as used herein, (i) the term " Expiring
Premises " shall mean collectively, (x)
Space "A" and Space "D" comprising a part of the Original 40
th
Floor Premises, as more particularly identified on Exhibit "C"
attached hereto and made a part hereof and (y) the 41
st
Floor Premises, (ii) the term " 40
th Floor Premises
" shall mean collectively, Space "B" and Space "C" comprising a
part of the Original 40 th
Floor Premises, as more particularly identified on Exhibit "C"
attached hereto and made a part hereof , and (iii) the terms "
Premises " and
" demised
premises " as used herein and in the Lease shall mean, (x)
prior to the Effective Date (as hereinafter defined), collectively,
the 42 nd
Floor Premises, the Original 40 th
Floor Premises and the 41 st
Floor Premises; and (y) from and after the Effective Date,
collectively, subject to Paragraph 2 hereof, the 40 th
Floor Premises and the 42 nd
Floor Premises;
WHEREAS,
FAC changed its name to Broadpoint Securities Group, Inc.;
and
WHEREAS,
Landlord and Tenant desire to modify the Lease to extend the
term thereof and otherwise modify the Lease as set forth
herein.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein, and
of the sum of Ten Dollars ($10.00) paid by Tenant to
Landlord, and for other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, for themselves, their legal
representatives, successors and assigns, hereby agree as
follows:
1.
Definitions . All capitalized terms used herein
shall have the meanings ascribed to them in the Lease, unless
otherwise defined herein.
2.
Lease Term . The term of the Lease, with respect
to the 40 th
Floor Premises and the 42 nd
Floor Premises only, is hereby extended on all of the same terms
and conditions set forth in the Lease, as hereinafter modified, so
that the term of the Lease shall expire at 11:59 PM on March 31,
2021 (the " New Expiration
Date "), unless it shall sooner expire pursuant to any of
the terms, covenants or conditions of the Lease, as amended by this
Amendment, or pursuant to law. Accordingly, from and
after the date hereof, the New Expiration Date shall be deemed to
be the expiration of the term of the Lease (as such words are used
in the Lease, as amended hereby) for all purposes of the Lease, as
amended hereby. Notwithstanding the foregoing provisions of this
Paragraph 2 to the contrary, in addition to Landlord’s
termination right under Paragraph 3(H) hereof, Tenant shall have
the right to terminate the Lease, with respect to the 40
th
Floor Premises only, effective on the last day of any month,
without payment or penalty, by giving Landlord at least sixty (60)
days' prior notice of the date on which the Lease (as amended
hereby), with respect to the 40 th
Floor Premises only, shall terminate and on the date specified in
such notice, the Term of the Lease shall expire with respect to the
40 th
Floor Premises only, and the provisions of Article 18 shall be
applicable to the 40 th
Floor Premises. The date on which the Lease terminates
in respect of the 40 th
Floor Premises (whether pursuant to this Paragraph 2 or otherwise)
is sometimes referred to herein as the " 40
th Floor Premises
Termination Date "). On the original expiration of the term
of the Lease which is October 31, 2008 (the " Expiring Premises
Expiration Date "), the term of the Lease shall expire with
respect to the Expiring Premises only, and the provisions of
Article 18 shall be applicable thereto; provided, however, that as
to the portion of the Expiring Premises located on the 40
th
floor of the Building (i.e., Spaces "A" and "D"), from and after
the Expiring Premises Expiration Date, Tenant shall have no further
obligation to Landlord in respect thereof (including, without
limitation, any obligation arising from a holdover in Spaces "A"
and "D" by Wiener, except to the extent such obligation accrued
prior to the Expiring Premises Expiration Date; and provided,
further, that as to the entire Expiring Premises (on the Expiring
Premises Expiration Date), and as to the 40 th
Floor Premises (on the 40 th
Floor Expiration Date), Tenant shall have no obligation to remove
any alterations thereto made by or for Tenant.
3.
Modification of Lease: 40
th Floor Premises
. With respect to the 40 th
Floor Premises only, from and after November 1, 2008 (the "
Effective
Date "), or such earlier date as may be specified herein,
the Lease is modified and amended as follows:
(A) The
fixed annual rent (including the ERIF equal to $3.50 per
rentable square foot as of the date hereof) shall be an amount
equal to:
(i) One
Hundred Eighty-Five Thousand One Hundred Sixty-Six Dollars and
No Cents ($185,166.00) per
annum
($15,430.50 per month), for the period commencing on the
Effective Date and ending on the day immediately preceding the
fourth (4 th
) anniversary of the Premises Rent Commencement Date (as
hereinafter defined), payable in advance in equal monthly
installments at the times and in the manner provided in the
Lease;
(ii) One
Hundred Ninety-Nine Thousand Seven Hundred Forty-Six Dollars
and No Cents ($199,746.00) per
annum
($16,645.50 per month), for the period commencing on the
fourth (4 th
) anniversary of the Premises Rent Commencement Date and
ending on the day immediately preceding the eighth (8
th
) anniversary of the Premises Rent Commencement Date, payable
in advance in equal monthly installments at the times and in
the manner provided in the Lease; and
(iii) Two
Hundred Fourteen Thousand Three Hundred Twenty-Six Dollars and
No Cents ($214,326.00) per
annum
($17,860.50 per month), for the period commencing on eighth (8
th
) anniversary of the Premises Rent Commencement Date and
ending on the New Expiration Date, payable in advance in equal
monthly installments at the times and in the manner provided
in the Lease.
(B)
Section
27.04(b) of the Lease shall be modified as
follows:
(i) The
date "March 1, 1996" set forth in the first paragraph thereof
shall be deemed deleted each time it shall appear and the date
"March 1, 2008" shall be deemed inserted in lieu
thereof. The date "March 1, 1996" set forth in the
third paragraph thereof shall be deemed deleted and the date
"November 1, 2009" shall be deemed inserted in lieu
thereof.
(ii) Notwithstanding
anything to the contrary in the second paragraph thereof, the
parties acknowledge that the fixed annual rent for the 40
th
Floor Premises as set forth above in this Seventh Amendment
includes ERIF of $3.50 per rentable square foot.
(C)
The
term " base year "
(as such term is defined in Section 46(a)(i) of the Lease) shall
mean the calendar year 2009.
(D)
The
term " base tax year
" (as such term is defined in Section 46(a)(ii) of the Lease) shall
mean the New York City real estate tax year commencing July 1, 2008
and ending June 30, 2009 (i.e., "base tax year" representing an
amount of taxes).
(E)
The
term " The Percentage
" (as such term is defined in Section 46(a)(iii) of the Lease)
shall mean one thousand two hundred seventy-four ten thousandths
percent (0.1274%) for real estate tax escalation calculated using
2,288,772 as the deemed rentable square footage of the Building and
shall mean one thousand four hundred fifty-three ten thousandths
percent (0.1453%) for expense escalation calculated using 2,007,218
as the deemed rentable square footage of the Building (excluding
the retail portion thereof).
(F)
Notwithstanding
anything to the contrary in the Lease (including, without
limitation, Sections 27.04(b), (e) and (f) thereof, as amended
hereby), the ERIF included in the fixed annual rent (i.e., $3.50
per rentable square foot) for the 40 th
Floor Premises, as set forth herein, shall not be increased prior
to November 1, 2009. In Section 27.04(g) of the Lease, the portion
of the sentence beginning "if that use is consistent" and ending
"Exhibit C." shall be deleted. In Section 27.04(h) of
the Lease the words "which are then normal or customary for use in
a securities brokerage office" shall be deemed deleted and the
words "which are from time to time normal or customary for
securities brokerage office and/or for executive and/or general
office use" shall be deemed inserted in lieu thereof.
(G) Landlord
covenants that commencing on the Effective Date, the Wiener
Lease (as hereinafter defined) gives Tenant the right to
access Space "C" across Space "A" (the " Access
Provision "). Landlord covenants that until
the 40th Floor Termination Date, Landlord shall not enter into
any agreement that diminishes Tenant's rights (as
they exist on the date hereof) with respect to the Access
Provision, and Landlord shall provide Tenant, or cause Tenant
to be provided with, access over Space "A" to Space "C" in the
same manner in which access over Space "A" is provided to
Tenant on the date hereof, pursuant to the sublease, dated as
of December 19, 2003, between Tenant and Wiener.
(H) Landlord
is party to a lease (the " Wiener
Lease ") with Wiener for certain premises in the
Building. Pursuant to the Wiener Lease, from and
after the Effective Date, Landlord will lease to Wiener (among
other areas) Space "A" , as shown on
Exhibit "C" attached to this
Amendment. Notwithstanding anything to the contrary
contained in the Lease, as amended hereby, if (prior to the 40
th
Floor Termination Date) the Wiener Lease terminates as the
result of a default by Wiener before the scheduled expiration
date of the Wiener Lease (i.e., July 31, 2021), then Landlord
shall give Tenant notice of such termination of the Wiener
Lease, and if Landlord gives such notice, then the 40
th
Floor Termination Date shall occur on the date specified in
such notice, which date so specified shall not be earlier than
the later of (x) the ninetieth (90 th
) day following the giving of such notice and (y) the
date on which the Wiener Lease terminates.
4.
Modification of
Lease: 42
nd Floor Premises
. With respect to the 42 nd
Floor Premises only (except as otherwise expressly set forth
herein), from and after the Effective Date, or such earlier date
may be specified herein, the Lease is modified and amended as
follows:
(A) The
fixed annual rent shall be an amount equal to:
(i) Two
Million Five Hundred Twenty-Eight Thousand Nine Hundred
Eighty-Eight Dollars and No Cents ($2,528,988.00) per
annum
($210,749.00 per month), for the period commencing on the
Effective Date and ending on March 31, 2013, payable in
advance in equal monthly installments at the times and in the
manner provided in the Lease. Notwithstanding the
foregoing to the contrary, subject, however, to the provisions
of Paragraph 8(E) hereof, provided that no monetary default or
material nonmonetary default beyond applicable notice and cure
periods has occurred and is then continuing, no monthly
installments of fixed annual rent shall be due for the period
from the Effective Date until March 31, 2009. For
purposes hereof, the term " Premises Rent
Commencement Date " shall mean April 1,
2009;
(ii) Two
Million Seven Hundred Fourteen Thousand Nine Hundred
Forty-Three Dollars and No Cents ($2,714,943.00) per
annum
($226,245.25 per month), for the period commencing on April 1,
2013 and ending on March 31, 2017, payable in advance in equal
monthly installments at the times and in the manner provided
in the Lease; and
(iii) Two
Million Nine Hundred Thousand Eight Hundred Ninety-Eight
Dollars and No Cents ($2,900,898.00) per
annum
($241,741.50 per month), for the period commencing on April 1,
2017 and ending on the New Expiration Date, payable in advance
in equal monthly installments at the times and in the manner
provided in the Lease.
(B)
The
third sentence of Section 27.03(a) of the Lease shall be
deemed modified to delete therefrom the words, "summer
interior conditions" through the end of such sentence and the
words "the specifications attached to the Seventh Amendment
of Lease, dated as of June ___, 2008 (the " Seventh
Amendment "), between Landlord and Tenant as Exhibit
"A" and made a part thereof and hereof."
(C)
The
first two sentences of Section 27.04(a) of the Lease shall be
deemed deleted in their entirety and the following shall
be deemed inserted in lieu thereof:
"(a)
Subject to the provisions of this Section 27.04, from and
after the Effective Date, Landlord shall measure Tenant's
demand for and consumption of electricity in the 42
nd
Floor Premises (as such term is defined in the Seventh
Amendment) using a submeter that is, or submeters that are,
installed and maintained by Landlord. Such
submeters shall measure Tenant's demand on a totalized
basis. Landlord shall pay the cost of installing
and maintaining such submeter or submeters. If, at
any time during the term of this Lease, Tenant performs
alterations that require modifications to the aforesaid
submeter or submeters that Landlord installs, or that require
a supplemental submeter or supplemental submeters, then Tenant
shall perform such modification, or the installation of such
supplemental submeter or submeters, at Tenant's cost, as part
of the applicable alteration."
(D)
Section
27.04(b) of the Lease shall be deemed deleted in its
entirety and the following shall be deemed inserted in
lieu thereof:
"(b)
(i) Tenant shall pay to Landlord, as additional rent, an
amount (the "Electricity Additional Rent") equal to one
hundred five percent (105%) of the sum of:
(x )
the
product obtained by multiplying (x) the Average Cost per Peak
Demand Kilowatt (as hereinafter defined), by (y) the number
of
kilowatts that constituted the peak demand for
electricity in the 42 nd
Floor Premises for the applicable billing period, as
registered on the
submeter or submeters for the Premises,
and
(y)
the
product obtained by multiplying (x) the Average Cost per
Kilowatt Hour (as hereinafter defined), by (y) the number of
kilowatt
hours of
electricity used in the 42 nd
Floor Premises for the applicable billing period, as
registered on the submeter or submeters for the
Premises.
(ii) For
purposes hereof the following terms shall have the following
meanings:
(x) The
term " Average Cost
per Peak Demand Kilowatt " shall mean, with respect to
any particular period, the quotient obtained by
dividing (A) the
aggregate charge imposed by the Utility Company on Landlord
for the Utility Company's making available electricity
that
satisfies the
Building's peak demand for electricity during such period, by
(B) the number of kilowatts that constituted such peak
demand, as
reflected on the
electric meter or meters for the Building.
(y) The
term " Average Cost
per Kilowatt Hour " shall mean, with respect to any
particular period, the quotient obtained by
dividing
(x) the aggregate
charge imposed by the Utility Company on Landlord for the
kilowatt hours supplied to the Building for such period
(other
than the aggregate
charge imposed by the Utility Company on Landlord for the
Utility Company's making available electricity that
satisfies
the Building's peak
demand for electricity during such period), by (y) the number
of kilowatt hours of electricity used in the Building
during
such period, as
reflected on the electric meter or meters for the
Building.
(z) The
term " Utility
Company " shall mean, collectively, the local
electrical energy distribution company and the competitive
energy provider with which Landlord has made arrangements to
obtain electric service for the Building; provided, however,
that if Landlord makes arrangements to produce electricity to
satisfy all or a portion of the requirements of the Building,
then (I) Utility Company shall also refer to the producer of
such electricity, and (II) the charges imposed by such
producer shall be included in the calculation of Average Cost
per Kilowatt Hour and Average Cost per Peak Demand Kilowatt to
the extent that such charges do not exceed the charges that
Landlord would have otherwise incurred if Landlord had made
arrangements to satisfy all of the Building’s electrical
requirements from a local electrical energy distribution
company and a competitive energy provider.
(iii)
Landlord
shall give Tenant an invoice for the Electricity Additional
Rent from time to time (but no less frequently than
quarterly). The billing period for each such
invoice shall be coincident with the period for which
Landlord is billed by the Utility Company. Tenant
shall pay the Electricity Additional Rent to Landlord on or
prior to the thirtieth (30th) day after the date that
Landlord gives to Tenant each such invoice. Tenant
shall not have the right to object to Landlord's calculation
of the Electricity Additional Rent unless Tenant gives
Landlord notice of any such objection on or prior to the one
hundred eightieth (180th) day after the date that Landlord
gives Tenant the applicable invoice for the Electricity
Additional Rent. If Tenant gives Landlord a notice
objecting to Landlord's calculation of the Electricity
Additional Rent, as aforesaid, then Tenant shall have the
right to review Landlord's submeter readings and Landlord's
calculation of the Electricity Additional Rent, at Landlord's
offices or, at Landlord's option, at the offices of
Landlord's managing agent, in either case at reasonable times
and on reasonable advance notice to Landlord.
(
iv)
If
a submeter measuring Tenant's electrical demand and
consumption in the Premises has not been installed in the
Premises, or the submeters measuring Tenant's electrical
demand and consumption in the Premises have not been installed
in the Premises, in either case on or prior to the date of the
Seventh Amendment, then (x) Landlord shall order such submeter
or such submeters promptly after the date hereof, and (y)
Landlord shall install such submeter or such submeters
promptly after the date of the Seventh
Amendment. Landlord shall use commercially
reasonable efforts to minimize interference with Tenant's use
of the Premises. Landlord and Tenant shall
reasonably cooperate with each other to coordinate the timing
of such installation to enable Landlord to perform such work
promptly and to minimize interference with Tenant's use of the
Premises. Landlord, in installing such submeter or
such submeters, shall have the right to interrupt electrical
service to the Premises temporarily and in accordance with
good construction practice. Landlord agrees to
schedule any such interruption after regular business hours or
during weekends, at times reasonably acceptable to
Tenant.
(v) Subject
to the terms of this Section 27.04(b)(v), if, prior to
Landlord's installing a submeter or submeters in the
Premises, Tenant occupies all or any portion of the 42
nd
Floor Premises for the conduct of business, then Tenant shall
pay to Landlord, as additional rent, a fee for electricity
service in an amount equal to the product obtained by
multiplying (I) $0.0055, by (II) the number of square feet of
rentable area in the 42 nd
Floor Premises (or the portion thereof that Tenant is
occupying for the conduct of business), by (III) the number
of days in the period commencing on the date that Tenant
occupies the Premises (or the applicable portion thereof) for
the conduct of business and ending on the date immediately
preceding the date that the submeter for the Premises or the
applicable portion thereof is operational or that the
submeters for the Premises or the applicable portion thereof
are operational (such fee being referred to herein as the "
42
nd Floor
Electricity Inclusion
Charge "). Landlord shall give Tenant an invoice
for the 42 nd
Floor Electricity Inclusion Charge from time to time (but not less
frequently than monthly). Tenant shall pay the 42
nd
Floor Electricity Inclusion Charge to Landlord on or prior to the
thirtieth (30th) day after the date that Landlord gives each such
invoice to Tenant. Until such time as Tenant’s demand for
consumption of electricity is measured by submeter as set forth
above, the 42 nd
Floor Electricity Inclusion Charge is not subject to
increase.
(E)
Section
27.04(d) of the Lease shall be deemed modified to insert the
following after the first sentence thereof:
"Landlord
covenants and agrees that the existing feeders in the Premises
shall supply six (6) watts of electrical capacity (demand
load) per square foot of rentable area therein (in addition to
the capacity provided to the Premises for Building HVAC, other
Building systems, and the dedicated service to which reference
is made in Paragraph 10 of the Seventh Amendment) and that
such feeders shall continue to supply same subject to Article
25 hereof during the term hereof."
(F)
As
to the Premises, Sections 27.04(e) and (f) of the Lease shall be
deemed deleted. In Section 27.04(g) of the Lease, the portion
of the sentence beginning, "if that use is consistent" and ending
"Exhibit C." shall be deleted. As to the Premises,
in Section 27.04(h) of the Lease the words "which are
then normal or customary for use in a securities brokerage office"
shall be deemed deleted and the words "which are from time to time
normal or customary for a securities brokerage office, a securities
trading floor and/or for executive and/or general office use" shall
be deemed inserted in lieu thereof.
(G)
The
following shall be added to the Lease as a new Section
27.15:
"Subject
to the terms of this Section 27.15, Tenant, at Tenant’s
expense, may tap into the applicable systems of the Building
to obtain condenser water for any supplemental
air-conditioning system that Tenant installs in the 42
nd
Floor Premises on or before April 1, 2011. Any such
supplemental air-conditioning system shall not have a capacity
of more than fifty (50) tons. Landlord shall
reserve fifty (50) tons for Tenant’s use until April 1,
2011. In addition, if Tenant shall not install such a system
by such date or shall install a system of a lesser capacity by
such date, then Tenant shall have the right to reserve the
difference between fifty (50) tons and the number of tons of
capacity of the system so installed or if no system shall be
installed then, fifty (50) tons until April 1, 2013, by (x)
notifying Landlord on or before April 1, 2011 that Tenant is
so reserving such number of tons and (y) paying the amounts
hereinafter set forth for any such reserved tons from April 1,
2011 until April 1, 2013 or such earlier date on which Tenant
notifies Landlord that Tenant no longer desires to reserve
such tonnage; provided, however, if prior to April 1,
2013, Tenant commences to use any such reserved
tonnage, then the provisions of clause (i) and (ii) of this
Section 27.15 shall be applicable to the number of tons so
used. Upon any such cancellation of any reserved
tonnage Tenant shall no longer be obligated to pay the Tonnage
Charge (as hereinafter defined) therefor and any amounts paid
prior to such cancellation with respect to periods occurring
after the effective date of such cancellation, shall be
credited against the Rental next coming due under the Lease
(prorated on a per diem basis).
Any
installations that are required to connect Tenant’s
supplemental air-conditioning system to the condenser water
pipe shall be made by Tenant, at Tenant’s cost, using
contractors that Landlord designates reasonably and otherwise
in accordance with the provisions of Article 47 hereof;
provided
that any such contractors shall charge competitive
rates. It being agreed that if Tenant shall install
any supplemental system that is used for redundancy only and
cannot be used at the same time as any other supplemental
system installed by Tenant, then Tenant shall be deemed to
have connected only to the number of tons that are the maximum
number of tons that can be used at any one time by all such
systems.
(i)
Subject
to the above, from and after the date on which Tenant
installs and connects such a system utilizing any condenser
water (or as to such condenser water reserved prior to April
1, 2011 but not used as of April 1, 2011, as of the date such
condenser water is reserved). Tenant shall pay to Landlord,
as additional rent, an annual charge in the amount of Three
Hundred Fifty Dollars and No Cents ($350.00) per ton (the
"Tonnage Charge") of capacity of the system so connected
(which amount per ton shall be increased on April 1
st
of each year during the Term, commencing with April 1, 2010,
by two percent (2%) per annum).
(ii) In
addition, Tenant pay to Landlord within thirty (30) days of
receipt of an invoice together with reasonable back up
therefor for Landlord's reasonable third party out-of-pocket
expenses in connection with any such connection.
Tenant
shall pay such amounts to Landlord on or prior to the
thirtieth (30 th
) day after the date that Landlord gives to Tenant an invoice
therefor from time to time."
(H)
The
term " base year "
(as such term is defined in Section 46(a)(i) of the Lease) shall
mean the calendar year 2009.
(I)
The
term " base tax year
" (as such term is defined in Section 46(a)(ii) of the Lease) shall
mean the New York City real estate tax year commencing July 1, 2008
and ending June 30, 2009 (i.e., "base tax year" representing an
amount of taxes).
(J)
The
term " The Percentage
" (as such term is defined in Section 46(a)(iii) of the Lease)
shall mean one and six thousand two forty-nine ten thousandths
percent (1.6249%) for real estate tax escalation calculated using
2,288,772 as deemed the rentable square footage of the Building and
shall mean one and eight thousand five hundred twenty-nine ten
thousandths percent (1.8529%) for expense escalation calculated
using 2,007,218 as the rentable square footage of the Building
(excluding the retail portions thereof).
(K)
Section
47A(i) of the Lease shall be deemed modified to insert in the sixth
(6 th
) line thereof after the words "by or for Tenant," the words, "from
and after the date of the Seventh Amendment."
5.
Modification of
Lease . With respect to the Premises, from
and after the date hereof, the Lease is modified and amended
as follows:
(A) Article
7 of the Lease shall be deemed modified to insert the
following as a new Section 7.06:
"7.06
(a) Tenant, at Tenant's expense, shall obtain and keep in full
force and effect (i) an insurance policy for Tenant's property
and the Specialty Alterations (as hereinafter defined), in
either case to the extent insurable under the available
standard forms of "all-risk" insurance policies, in an amount
equal to one hundred percent (100%) of the replacement value
thereof (subject, however, at Tenant’s option, to a
reasonable deductible) (the insurance policy described in this
clause (i) being referred to herein as " Tenant's
Property Policy "), (ii) a policy of worker's
compensation insurance, to the extent required by law (such
policy being referred to herein as " Tenant's
Worker's Compensation Policy "), and (iii) a policy of
commercial general liability and property damage insurance on
an occurrence basis, with a broad form contractual liability
endorsement (the insurance policy described in this clause
(iii) being collectively referred to herein as " Tenant's
Liability Policy "). Tenant's Property
Policy and Tenant's Liability Policy shall name Tenant as the
insured. Tenant's Liability Policy shall name the
Landlord Insureds (as hereinafter defined) as additional
insureds thereunder. The term " Specialty
Alterations " shall mean alterations that (I) perforate
a floor slab in the Premises or a wall that encloses the core
of the Building, (II) require the reinforcement of a floor
slab in the Premises, (III) consist of the installation of a
raised flooring system, (IV) consist of the installation of a
vault or other similar device or system that is intended to
secure the Premises or a portion thereof in a manner that
exceeds the level of security that a reasonable person uses
for ordinary office space, or (V) involve material plumbing
connections (such as kitchens and executive bathrooms outside
of the Building core). The term " Landlord
Insureds " shall mean, collectively, Landlord, each
ground lessor of the Building, each mortgagee of the Building
and their respective partners, members, managers,
shareholders, officers, directors, employees, trustees and
agents) if and to the extent the applicable names and
addresses are provided to Tenant).
(b)
Tenant's
Liability Policy shall contain a provision that (i) no negligent
act or omission of Tenant shall affect or limit the obligation of
the
insurer to
pay the amount of any loss sustained, and (ii) the policy is
non-cancelable with respect to the Landlord Insureds unless at
least thirty
(30) days of
advance written notice is endeavored to be given to Landlord,
except that Tenant's Liability Policy may be cancelable on no less
than
ten (10) days of
advance written notice endeavored to be given to Landlord for
non-payment of premium. If Tenant receives any notice
of
cancellation or any other notice from the insurance carrier which
may adversely affect the coverage of the insureds under Tenant's
Property Policy
or Tenant's Liability Policy, then Tenant shall promptly
deliver to Landlord a copy of such notice. The minimum
amounts of liability under Tenant's
Liability Policy shall be a combined single limit with respect to
each occurrence in the amount of Five Million Dollars ($5,000,000)
for injury (or death)
to persons and damage to property, which minimum amount Landlord
may increase from time to time to the amount of insurance that in
Landlord's
reasonable judgment is then being customarily required by prudent
landlords of first-class buildings in the vicinity of the Building
from tenants
leasing space similar in size, nature and location to the
Premises.
(c)
Tenant
shall cause Tenant's Liability Policy and Tenant's Worker's
Compensation Policy to be issued by reputable and independent
insurers
that are
(x) permitted to do business in the State of New York, and
(y) rated in Best's Insurance Guide, or any successor
thereto, as having a general
policyholder
rating of A- and a financial rating of at least XII (it being
understood that if such ratings are no longer issued, then such
insurer's
financial integrity shall conform to the standards that
constitute such ratings from Best's Insurance Guide as of the
date hereof).
(d)
Tenant
has the right to satisfy Tenant's obligation to carry
Tenant's Liability Policy with an umbrella insurance policy
if such umbrella
insurance policy contains an aggregate per location
endorsement that provides the required level of protection
for the Premises. Tenant has the
right
to
satisfy Tenant's obligation to carry Tenant's Property Policy
with a blanket insurance policy if such blanket insurance
policy provides, on a per
occurrence basis, that a loss that relates to any other
location does not impair or reduce the level of protection
available for the Premises below the
amount
required by this Lease.
(e)
Subject
to the terms of this Section 7.06(e), Landlord shall obtain
and keep in full force and effect insurance against loss or
damage by fire
and
other casualty to the Building, to the extent insurable on
commercially reasonable terms under then available standard
forms of "all-risk" insurance
policies, in an amount equal to one hundred percent
(100%) of the replacement value thereof or, at Landlord's
option, in such lesser amount as will
avoid
co-insurance (such insurance being referred to herein as "
Landlord's
Property Policy "). Tenant acknowledges
that (i) Landlord’s Property
Policy
may encompass rent insurance, (ii) the risks that
Landlord’s Property Policy covers may include, without
limitation, fire, war, terrorism,
environmental matters, and flood, and (iii) Landlord
may also obtain a commercial general liability insurance
policy.
(f)
Landlord
shall not be liable to Tenant for any failure to insure any
alterations made by Tenant unless Tenant notifies Landlord of
the
completion of such alterations and the cost thereof,
and maintains adequate records with respect to such
alterations to facilitate the adjustment of any
insurance claims with respect
thereto. Landlord shall have the right to provide
that the coverage of Landlord’s Property Policy is
subject to a
reasonable deductible. Tenant shall
cooperate with Landlord and Landlord's insurance companies in
the adjustment of any claims for any damage to
the
Building or the alterations. Landlord shall not be
required to carry insurance on Tenant's property or Tenant's
above standard
alterations. Landlord shall not be required
to carry insurance against any loss suffered by Tenant due to
the interruption of Tenant's business."
(B) Section
10.01 of the Lease shall be deemed modified to insert at the
end of the penultimate sentence thereof the words "(except as
otherwise specifically provided in this Article, and any
reference herein to a sublease by Tenant shall be deemed to
include a further sublease by a subtenant of Tenant)." Without
limiting the foregoing, any subtenant or assignee of Tenant
shall have the same subleasing and assignment rights as does
Tenant under the Lease, as amended hereby (but nothing herein
shall prevent Tenant from limiting such rights in any sublease
of all or any portion of the Premises or in any assignment of
the Lease Tenant may enter into).
(C) Sections
10.02, 10.03 and 10.04 of the Lease shall be deemed deleted in
their entirety and the new Section 10.02, 10.03 and 10.04 set
forth on Schedule 1 attached hereto and made a part hereof
shall be deemed inserted in lieu thereof.
(D) Section
10.07(b) of the Lease shall be deemed modified to delete
footnote *** thereto (set forth on page 18) in its entirety
therefrom.
(E) Section
10.08 of the Lease shall be deemed modified to insert an (a)
at the beginning thereof, to delete the last 4 lines thereof,
and to insert the following at the end thereof:
“[provided
the net worth] of Tenant after such transaction is equal to or
greater than the product of twelve (12) and the then fixed
annual rent due hereunder.
(b) The
reorganization of Tenant or the merger or consolidation of a
Tenant into or with another entity shall be permitted without
(x) Landlord's prior approval, (y) Tenant’s having any
obligation to make any offer to Landlord as set forth in
Section 10.02 of this Lease and (z) Tenant's being required to
pay profit to Landlord in connection therewith, under Section
10.06 of this Lease; provided
that in each case (i) such reorganization, merger or
consolidation is not principally for the purpose of
transferring such Tenant's interest in this Lease, (ii) Tenant
gives Landlord notice of such reorganization, merger or
consolidation not later than the tenth (10th) day after the
occurrence thereof, (iii) Tenant, within ten (10) days after
such merger or consolidation, provides Landlord with
reasonable evidence that the requirement described in clause
(i) above has been satisfied, and (iv) the net worth of Tenant
after such transaction is equal to or greater than the product
of twelve (12) and the then fixed annual rent due
hereunder.
(c) The
(x) assignment of Tenant's entire interest under this Lease in
connection with the sale of all or substantially all of the
assets of either (1) Tenant or (2) a division of Tenant then
operating in the demised premises or (y) the conversion of
Tenant from one type of entity to another shall be permitted
without (I) Landlord's prior approval, (II) Tenant’s
having any obligation to make any offer to Landlord as set
forth in Section 10.02 of this Lease and (z) Tenant's being
required to pay profit to Landlord in connection therewith,
under Section 10.06 of this Lease; provided that in each case
(i) Tenant gives to Landlord, not later than the tenth (10th)
day after any such assignment is consummated, an instrument,
duly executed by Tenant and the transferee, in form reasonably
satisfactory to Landlord, to the effect that such transferee
assumes all of the obligations of Tenant to the extent arising
under this Lease from and after the date of such assignment,
(ii) such sale of all or substantially all of the assets of
Tenant or such division of Tenant or such conversion is not
principally for the purpose of transferring Tenant's interest
in this Lease, (iii) Tenant, within ten (10) days after such
sale, provides Landlord with reasonable evidence that the
requirement described in clause (ii) above has been satisfied,
and (iv) the net worth of Tenant after such transaction is
equal to or greater than the product of twelve (12) and the
then fixed annual rent due hereunder.
(d) The
subletting by Tenant of the entire demised premises or a
portion thereof to a division of Tenant shall be permitted
without (x) Landlord's prior approval, (y) Tenant’s
having any obligation to make any offer to Landlord as set
forth in Section 10.02 of this Lease and (z) Tenant's being
required to pay profit to Landlord in connection therewith,
under Section 10.06 of this Lease; provided
that in each case (i) Tenant gives to Landlord, not later than
the tenth (10th) day after any such subletting, a sublease, in
form reasonably satisfactory to Landlord, (ii) such sublease
is not principally for the purpose of transferring Tenant's
interest in this Lease, (iii) Tenant, within ten (10) days
after the date of such sublease, provides Landlord with
reasonable evidence that the requirement described in clause
(ii) above has been satisfied, and (iv) the net worth of such
division after such transaction is equal to or greater than
the product of twelve (12) and the then fixed annual rent due
under this Lease (as appropriately prorated if such sublease
is only for a portion of the Premises)."
(F) Article
26 of the Lease shall be deemed to be deleted in its entirety
and the following inserted in lieu thereof:
"26.01. Except
as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other
communications given or required to be given under this Lease
shall be in writing and shall be deemed sufficiently given or
rendered if delivered by hand (against a signed receipt) or if
sent by a nationally recognized overnight courier service
(against a signed receipt):
If to Tenant (a) to Tenant (i) at the Building,
Attention: Laurence Mascera or (ii) at any place where Tenant or
any agent or employee of Tenant may be found if mailed subsequent
to Tenant’s vacating, deserting, abandoning or surrendering
the Premises and (b) to Broadpoint Capital, Inc., 677 Broadway,
Albany, New York 12207, Attn: General Counsel,
or
If to Landlord c/o Vornado Office Management LLC, 888
Seventh Avenue, New York, New York 10019, Attn.: Mr. Daniel E.
North, and with copies to (x) Vornado Realty Trust, 210 Route 4
East, Paramus, New Jersey 07652, Attn.: Mr. Joseph Macnow, and (y)
each mortgagee and superior lessor which shall have requested same,
by notice given in accordance with the provisions of this Article
26 at the address designated by such mortgagee or superior lessor
(if provided to Tenant), or
to
such other address(es) as Landlord, Tenant or any mortgagee or
superior lessor may designate as its new address(es) for such
purpose by notice given to the other party in accordance with
the provisions of this Article 26. Any such bill,
statement, consent, notice, demand, request or other
communication shall be deemed to have been rendered or given
on the date when it shall have been hand delivered, or one (1)
business day after the same is delivered by a nationally
recognized overnight courier service,. Anything
contained herein to the contrary notwithstanding, any
statement of increases in Expenses, statement of increases in
real estate taxes, or any other bill, statement, consent,
notice, demand, request or other communication from Landlord
to Tenant with respect to any item of rental (other than any
"default notice" if required hereunder) may be sent to Tenant
by regular United States mail."
(G) The
following shall be deemed inserted in the Lease as a new
Section 27.15 thereof:
"27.15 Subject
to the terms of this Section 27.15, Landlord shall arrange for
security in the Building that is consistent with the security
provided by landlords of first-class office buildings in
midtown Manhattan. Tenant acknowledges that (x)
Landlord, in agreeing to arrange for such security, does not
ensure the security of the Building, and (y) accordingly,
Tenant remains responsible for making the alterations in, and
adopting procedures for, the demised premises that Tenant
considers adequate to provide for Tenant's
security."
(H) Section
46(a)(iii) of the Lease shall be deemed modified to delete the
last sentence thereof in its entirety.
(I) Section
47A(a) and 47B of the Lease shall be deemed modified to delete
the amount of "$50,000" therefrom and to insert the amount of
"$200,000" in lieu thereof.
(J) The
following shall be deemed inserted in the Lease as a new
Section 47C:
"C. Tenant
shall pay to Landlord, from time to time, as additional rent,
the reasonable third party out-of-pocket costs incurred by
Landlord in connection with reviewing the plans and
specifications for alterations, within thirty (30) days after
Landlord gives Tenant an invoice therefor together with
reasonable supporting documentation for the charges set forth
therein. Subject to the immediately preceding
sentence in no event shall Landlord be entitled to a
supervisory fee in connection with any alteration performed by
or on behalf of Tenant."
(K) The
following shall be deemed inserted in the Lease as a new
Section 47D:
"D. If
Tenant gives Landlord a request for approval to alterations
which provides in bold and capital letters that "LANDLORD'S FAILURE TO
RESPOND TO THIS REQUEST WITHIN TEN (10) DAYS [FIVE (5) DAYS
FOR RESUBMISSIONS] AFTER THE DATE THAT TENANT GIVES THIS
REQUEST SHALL BE DEEMED TO BE LANDLORD'S CONSENT
THERETO" and Landlord shall fail so to respond within
such ten (10) day or five (5) day period, as the case may be,
and Tenant (not sooner than seven (7) days [three (3) days for
resubmissions] after giving the first such request) shall give
a second request to Landlord that provides in bold and capital
letters that "LANDLORD'S FAILURE TO
RESPOND TO THIS SECOND REQUEST FIVE (5) DAYS AFTER THE DATE
THAT TENANT GIVES THIS SECOND REQUEST SHALL BE DEEMED TO BE
LANDLORD'S CONSENT THERETO" and Landlord shall fail to
so respond then Landlord shall be deemed to have consented to
the alterations described in such request."
(L) The
following shall be deemed inserted in the Lease as a new
Section 47E:
"E. Tenant
shall be permitted to install and maintain signage identifying
Tenant on any full floor demised to Tenant pursuant to this
Lease."
(M) Section
47A(f)(ii) of the Lease shall be deemed modified to delete the
amount "$3,000,000" therefrom and to insert the amount
"$5,000,000" in lieu thereof.
(N) Articles
49 and 50 of the Lease shall be deemed deleted in their
entirety and the new Articles 49 and 50 set forth on Schedule
2 attached hereto and made a part hereof shall be deemed
inserted in lieu thereof.
(O) New
Articles 53, 54 and 55 set forth on Schedule 3 attached hereto
and made a part hereof shall be deemed added to the
Lease.
(P) Section
3(B) of the Fifth Amendment and Section 3(B) of the Sixth
Amendment are hereby deemed to be deleted from the
Lease.
(Q) Footnote
** on Exhibit C and Section 51(I) are deleted from the
Lease. From and after the date hereof, Landlord
shall provide the cleaning services for the lavatories in the
core, as set forth in Exhibit C of the Lease, without charge,
to Tenant. It being agreed that from and after the date
hereof, Landlord shall, at Landlord’s expense, supply
all of the paper and soap supplies to such lavatories as are
being provided, at Tenant’s expense, as of
the date hereof. Tenant hereby agrees to waive any
amounts due or credits owed by Landlord to Tenant pursuant to
Section 51(I) of the Lease which amounts or credits have
accrued prior to the date hereof.
6.
Condition of
Premises . (A) Tenant
acknowledges that Landlord has made no representations to
Tenant with respect to the condition of the 40 th
Floor Premises and/or the 42 nd
Floor Premises. Tenant acknowledges that it is
currently occupying the 40 th
Floor Premises and the 42 nd
Floor Premises and agrees to take the same "as is" in the
condition existing on the date hereof (subject to any
maintenance or repair or restoration obligations of Landlord
under the Lease, as modified by this Amendment) and that,
notwithstanding anything to the contrary contained in the
Lease, as amended by this Amendment, Landlord shall have no
obligation to perform any work, provide any work allowance or
rent credit, alter, improve, decorate, or otherwise prepare
the 40 th
Floor Premises and/or the 42 nd
Floor Premises for Tenant’s continued occupancy, except
that (i) promptly following the date on which all occupants
of the 41 st
Floor Premises shall vacate same, Landlord shall, at
Landlord's expense, (x) remove the internal staircase
connecting the 42 nd
Floor Premises to the 41 st
Floor Premises subject to the terms of this Paragraph 6 and
(y) replace the floor slab, excluding, however, any
restoration work with respect to the 42 nd
Floor Premises (other than replacing such floor slab)
required in connection therewith (the work described in
clauses (x) and (y) above, excluding any such restoration
work, the " Staircase
Work ") and (ii) promptly following the date on which
Tenant gives Landlord notice that the Initial Alterations (as
hereinafter defined) are substantially complete, and requests
that Landlord commence such work, Landlord shall, at
Landlord's expense, clean the perimeter induction units in
the 42 nd
Floor Premises and seal and repair any broken windows therein
(collectively, the " Post Initial
Alterations Work "). It being agreed that
neither Landlord nor Tenant shall have any obligation to
perform any restoration work required in the 41 st
Floor Premises. Landlord shall perform the Post
Initial Alterations Work and the Staircase Work in accordance
with all applicable laws and in a good and workmanlike
manner. Tenant shall provide Landlord with access
to the 42 nd
Floor Premises and (if the 41 st
Floor Premises is vacated prior to the Effective Date, and
Landlord commences the Staircase Work prior to the Effective
Date) the 41 st
Floor Premises to enable Landlord to perform the Staircase
Work and the Post Initial Alterations Work. Tenant
shall cooperate with Landlord by moving, and taking
commercially reasonable steps to protect, Tenant's property
to enable Landlord to perform the Staircase Work and the Post
Initial Alterations Work. Landlord shall not be
liable to Tenant for any loss or damage to Tenant's property
occurring during the performance of the Staircase Work or the
Post Initial Alterations Work, except to the extent arising
as a result of Landlord's negligence or willful
misconduct. Landlord shall use commercially
reasonable efforts to minimize interference with the conduct
of Tenant's business during Business Hours on Business Days
in the 42 nd
Floor Premises during the performance of the Staircase Work
and (without limiting the foregoing) agrees (i) to erect
(around the area in which the Staircase Work will be
performed) temporary barriers and (ii) to perform all
unreasonably loud or otherwise unreasonably disruptive
portions of the Staircase Work during times other than
Business Hours on Business Days. In the event that
Landlord shall fail to complete the Staircase Work by the
ninetieth (90 th
) day following the date on which Tenant gives Landlord
notice that the 41 st
Floor Premises has been vacated by all occupants (including
Tenant) which ninety (90) day period shall be extended by
delays referred to in Section 25.01 of the Lease, then Tenant
shall be entitled to a credit in the amount of Three Thousand
Five Hundred Twelve Dollars and Forty-Eight Cents ($3,512.48)
per day for each day in the period from such ninetieth (90
th
) day (as may be extended as aforesaid) until the date on
which the Staircase Work is Substantially Complete (as
hereinafter defined). The term " Substantial
Completion " or words of similar import shall mean
that the applicable work has been substantially completed in
accordance with the applicable plans and specifications, if
any, it being agreed that (i) such work shall be deemed
substantially complete notwithstanding the fact that minor or
insubstantial details of construction or demolition,
mechanical adjustment or decorative items remain to be
performed, (ii) with respect to work that is being performed
in the Premises, such work shall be deemed substantially
complete only if the incomplete elements thereof do not
interfere materially with Tenant's use and occupancy of the
Premises for the conduct of business, or delay or materially
interfere with the completion of the construction of the
Initial Alterations and (iii) with respect to any delays
caused by Long Lead Work or Tenant Work Delays, the
applicable work shall be deemed substantially completed (as
such terms are hereinafter defined) upon the date such work
would have been completed but for such delays. The
term " Long Lead
Work " shall mean any item which is not a stock item
and must be specially manufactured, fabricated or installed
or is of such an unusual, delicate or fragile nature that
there is a substantial risk that (i) there will be a delay in
its manufacture, fabrication, delivery or installation, or
(ii) after delivery of such item will need to be reshipped or
redelivered or repaired so that, in Landlord's reasonable
judgment, the item
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