EXHIBIT 10.60
SECOND LEASE AMENDMENT
Second Amendment to Lease (this "Amendment") dated as of September 30,
1999, by and between CAL-HARBOR II and III URBAN RENEWAL ASSOCIATES L.P.
("Landlord"), a New Jersey limited partnership having an address c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation and DLJdirect Holdings Inc.
(collectively and jointly and severally, "Tenant"), each a Delaware corporation
having an office at 1 Pershing Plaza, 00 Xxxxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx
Xxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H
WHEREAS, Landlord and Tenant are parties to an Agreement of Lease,
dated as of April 12, 1999, as amended pursuant to a First Lease Amendment dated
as of September 30, 1999 (the "Lease"), whereby Landlord leased to Tenant and
Tenant hired from Landlord certain space (the "Demised Premises"), as described
in the Lease, on the fifth floor of Plaza II (the "Building") in the office
complex known as "Harborside Financial Center" consisting as of the date hereof
of Plazas I, II and III and the parking and other common areas serving same
located in Jersey City, New Jersey on the land described in the Lease;
WHEREAS, the parties desire that the Lease be amended to provide,
among other things, that Landlord lease to Tenant and Tenant hire from Landlord
an additional 15,776 rentable square feet on the first floor of the Building
substantially as shown hatched on the plan annexed hereto as Schedule A (the
"First Floor Space") and an additional 43,099 rentable square feet on the sixth
floor of the Building substantially as shown hatched on the plan annexed hereto
as Schedule B (the "Sixth Floor Space"), all upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
1. Definitions. As used herein, the following terms shall have the
meanings ascribed to them herein:
"First Floor Space Possession Date" shall mean July 12, 1999.
"First Floor Space Commencement Date" shall mean September 12, 1999.
"Sixth Floor Space Possession Date" shall be the date that Landlord
delivers vacant possession of the Sixth Floor Space to Tenant, broom-clean with
all movable furniture and personal property removed.
"Sixth Floor Space Commencement Date" shall be the date that is
ninety (90) days after the Sixth Floor Space Possession Date.
All other capitalized terms used herein but not defined herein shall
have the meanings ascribed to them in the Lease.
2. Expiration Date. The term "Expiration Date" as defined in Section
2.01(e) of the Lease is hereby amended to mean the last day of the month that is
120 months after the date in which the Sixth Floor Space Commencement Date
occurs, as the same may be extended by reason of the exercise of any extension
or renewal option contained in the Lease.
3. First Floor Space. (a) Landlord hereby leases to Tenant and
Tenant hereby hires from Landlord the First Floor Space for a term (the
"Additional Space Term") to commence on the First Floor Space Commencement Date
and ending on the Expiration Date, unless the Term shall sooner cease and
terminate as provided in the Lease. Effective as of the First Floor Space
Commencement Date, and except as set forth herein, all references in the Lease
to the "demised premises" shall be deemed to include the First Floor Space and
the provisions and conditions of the Lease shall apply to the First Floor Space
with the same force and effect as if such space were leased to Tenant together
with the "demised premises" originally demised to Tenant under the Lease. For
the period commencing on the First Floor Space Possession Date and ending on the
date immediately preceding the First Floor Space Commencement Date (the
"Preparation Period") Tenant shall be entitled to occupy the First Floor Space
for the purpose of performing Tenant's initial work therein and, upon completion
of such work, for the purposes expressly permitted pursuant to Article 5 of the
Lease. Tenant's occupancy of the First Floor Space during the Preparation Period
shall be subject to all of the terms and conditions of the Lease (including,
without limitation, Tenant's indemnification obligation pursuant to Article 38
of the Lease and Tenant's obligation to maintain insurance pursuant to Section
9.09 of the Lease, but excluding Tenant's obligation to pay basic annual rent
pursuant to Article 1 of the Lease and Taxes and Operating Expenses pursuant to
Article 3 of the Lease).
(b) Tenant hereby agrees to pay to Landlord basic annual rent for
the First Floor Space as follows:
(i) for the period commencing on the First Floor Space
Commencement Date and ending on September 14, 2004 (the "First Rent
Period") at the annual rate of FOUR HUNDRED FORTY-NINE THOUSAND SIX
HUNDRED SIXTEEN AND 00/100 DOLLARS ($449,616.00), payable in equal monthly
installments of THIRTY-SEVEN THOUSAND FOUR HUNDRED SIXTY-EIGHT AND 00/100
DOLLARS ($37,468.00); and
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(ii) for the period commencing on September 15, 2004 and ending
on the Expiration Date (the "Second Rent Period"), at the annual rate of
FOUR HUNDRED NINETY-SIX THOUSAND NINE HUNDRED FORTY-FOUR AND 00/100
DOLLARS ($496,944 00), payable in equal monthly installments of FORTY-ONE
THOUSAND FOUR-HUNDRED TWELVE AND 00/100 DOLLARS ($41,412.00).
(c) From and after the First Floor Space Commencement Date, Tenant's
Tax Share shall be increased by 1.05% and Tenant's Expense Share shall be
increased by 1.10%.
(d) The parties acknowledge that for all purposes of the Lease, as
amended hereby, the First Floor Space shall be deemed to contain 15,776 rentable
square feet.
(e) Except as provided in paragraph 3 above with respect to the
payment of basic annual rent and Taxes and Operating Expenses from the First
Floor Space Possession Date through and including the day immediately preceding
the First Floor Space Commencement Date, Tenant shall pay additional rent and
any and all other amounts payable with respect to the First Floor Space from and
after the First Floor Space Possession Date at the times and in the manner set
forth in the Lease (as amended hereby). Tenant shall pay basic annual rent and
Taxes and Operating Expenses with respect to the First Floor Space from and
after the First Floor Space Commencement Date at the times and in the manner set
forth in the Lease (as amended hereby). If the First Floor Space Commencement
Date falls on any day other than the first day of a month, then the basic annual
rent for the First Floor Space for such month shall be prorated on a per diem
basis, and Tenant agrees to pay the amount thereof for such partial month on the
First Floor Space Commencement Date. If the first day of the Second Rent Period
falls on any day other than the first day of a month, then the basic annual rent
for the First Floor Space for the month in which the Second Rent Period
commences shall be prorated on a per diem basis to reflect the number of days of
such Second Rent Period and of the First Rent Period which occur during such
month.
(f) Tenant shall be entitled to reimbursement of up to an amount
equal to $236,640.00 (the "First Floor Space Allowance") for Hard Costs and Soft
Costs paid by Tenant in connection with the preparation of the First Floor Space
for Tenant's occupancy; provided, that Tenant shall not be entitled to
reimbursement from the First Floor Space Allowance for Soft Costs to the extent
such Soft Costs exceed an amount (the" First Floor Space Soft Costs Maximum")
equal to $59,160.00. Tenant shall have the right to submit to Landlord, from
time to time, but not more frequently than once per month, a notice setting
forth the dollar amount requested, which notice shall be accompanied by (i) paid
invoices or other evidence reasonably satisfactory to Landlord of the amounts
paid by Tenant for such Hard Costs and/or Soft Costs, (ii) a certificate from a
financial officer of Tenant that Tenant has not been reimbursed previously for
such Hard Costs and/or Soft Costs, (iii) a certificate from Tenant's architect
which certifies that the work for which Tenant is seeking reimbursement has been
completed substantially in accordance with the plans and specifications
previously approved or deemed approved by Landlord and in compliance with all
applicable Legal Requirements and (iv) evidence reasonably satisfactory to
Landlord (including, without limitation, lien waivers) that all sums properly
due and owing to contractors, subcontractors and materialmen in connection with
the work for which
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Tenant is seeking reimbursement have been paid. Within thirty (30) days after
receipt of such notice and other information and provided the certificates and
other deliveries made therewith are correct, Landlord shall reimburse Tenant for
the amount thereof until the total of all such reimbursements is equal to the
First Floor Space Allowance (it being understood that in no event shall Landlord
be obligated to expend in excess of the First Floor Space Allowance or reimburse
Tenant for Soft Costs in excess of the First Floor Space Soft Costs Maximum).
Anything to the contrary contained herein notwithstanding anything, Landlord
shall have the right to withhold $25,000 from the First Floor Space Allowance,
which amount shall not be released to Tenant unless and until Tenant delivers to
Landlord final working drawings, with amendments, or the mylar set of "as built"
plans, drawings and specifications for the work performed in the First Floor
Space and the disk carrying the same in accordance with Section 6.01(11) of the
Lease.
4. First Floor Space - AS-IS. On the First Floor Space Possession
Date, Tenant shall accept the First Floor Space in its "as is" condition and
Landlord shall have no obligation to perform any work or make any contribution
to prepare the First Floor Space for occupancy by Tenant, except as provided in
Paragraph 3(f) above. All installations, materials and work which may be
undertaken by Tenant to prepare, equip, decorate and furnish the First Floor
Space for Tenant's occupancy shall be performed by Tenant at Tenant's expense in
accordance with all of the terms, conditions and provisions of the Lease. In
addition, Tenant shall be responsible for bringing electric service to the First
Floor Space from either the Demised Premises or the switchgear room located on
the sixth floor of the Building.
5. Right of First Offer. Landlord and Tenant acknowledge and agree
that Article 49 of the Lease (Right of First Offer) is null and void and of no
further force and effect.
6. Sixth Floor Space. (a) Landlord hereby leases to Tenant and
Tenant hereby hires from Landlord the Sixth Floor Space for a term (the "Sixth
Floor Space Term") to commence on the Sixth Floor Space Commencement Date and
ending on the Expiration Date, unless the Term shall sooner cease and terminate
as provided in the Lease. Effective as of the Sixth Floor Space Commencement
Date, and except as set forth herein, all references in the Lease to the
"demised premises" shall be deemed to include the Sixth Floor Space and the
provisions and conditions of the Lease shall apply to the Sixth Floor Space with
the same force and effect as if such space were leased to Tenant together with
the "demised premises" originally leased to Tenant under the Lease. For the
period commencing on the Sixth Floor Space Possession Date and ending on the
date immediately preceding the Sixth Floor Space Commencement Date (the
"Construction Period") Tenant shall be entitled to occupy the Sixth Floor Space
for the purpose of performing Tenant's initial work therein and, upon completion
of such work, for the purposes expressly permitted pursuant to Article 5 of the
Lease. Tenant's occupancy of the Sixth Floor Space during the Construction
Period shall be subject to all of the terms and conditions of the Lease
(including, without limitation, Tenant's indemnification obligation pursuant to
Article 38 of the Lease and Tenant's obligation to maintain insurance pursuant
to Section 9.09 of the Lease, but excluding Tenant's obligation to pay basic
annual rent pursuant to Article 1 of the Lease and Taxes and Operating Expenses
pursuant to Article 3 of the Lease).
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(b) Tenant hereby agrees to pay to Landlord basic annual rent for
the Sixth Floor Space as follows:
(i) for the period commencing on the Sixth Floor Space
Commencement Date and ending on September 14, 2004 (the "Qualified First
Rent Period") at the annual rate of ONE MILLION THREE HUNDRED FOURTEEN
THOUSAND FIVE HUNDRED NINETEEN AND 50/100 DOLLARS ($1,314,519.50),
payable in equal monthly installments of ONE HUNDRED NINE THOUSAND FIVE
HUNDRED FORTY-THREE AND 29/100 DOLLARS ($109,543 29); and
(ii) for the period commencing on September 15, 2004 and ending
on the Expiration Date (the "Qualified Second Rent Period"), at the annual
rate of ONE MILLION FOUR HUNDRED FORTY-THREE THOUSAND EIGHT HUNDRED
SIXTEEN AND 50/100 DOLLARS ($1,443,816.50), payable in equal monthly
installments of ONE HUNDRED TWENTY THOUSAND THREE HUNDRED EIGHTEEN AND
04/100 DOLLARS ($120,318.04.00).
(c) The parties acknowledge that for all purposes of the Lease, as
amended hereby, the Sixth Floor Space shall be deemed to contain 43,099 rentable
square feet.
(d) Except for the payment of basic annual rent, Taxes and Operating
Expenses during the Construction Period, Tenant shall pay additional rent and
any and all other amounts payable with respect to the Sixth Floor Space from and
after the Sixth Floor Space Possession Date at the times and in the manner set
forth in the Lease (as amended hereby). Tenant shall pay basic annual rent and
Taxes and Operating Expenses with respect to the Sixth Floor Space from and
after the Sixth Floor Space Commencement Date at the times and in the manner set
forth in the Lease (as amended hereby). If the Sixth Floor Space Commencement
Date falls on any day other than the first day of a month, then the basic annual
rent for the Sixth Floor Space for such month shall be prorated on a per diem
basis, and Tenant agrees to pay the amount thereof for such partial month on the
Sixth Floor Space Commencement Date. If the first day of the Qualified Second
Rent Period falls on any day other than the first day of a month, then the basic
annual rent for the Sixth Floor Space for the month in which the Qualified
Second Rent Period commences shall be prorated on a per diem basis to reflect
the number of days of such Qualified Second Rent Period and of the Qualified
First Rent Period which occur during such month.
(e) Tenant shall be entitled to reimbursement of up to an amount
equal to $1,185,222.50 (the "Sixth Floor Space Allowance") for Hard Costs and
Soft Costs paid by Tenant in connection with the preparation of the Sixth Floor
Space for Tenant's occupancy; provided, that Tenant shall not be entitled to
reimbursement from the Sixth Floor Space Allowance for Soft Costs to the extent
such Soft Costs exceed an amount (the "Sixth Floor Space Soft Costs Maximum")
equal to $296,305.63. Tenant shall have the right to submit to Landlord, from
time to time, but not more frequently than once per month, a notice setting
forth the dollar amount requested, which notice shall be accompanied by (i) paid
invoices or other evidence reasonably satisfactory to Landlord of the amounts
paid by Tenant for such Hard Costs and/or Soft Costs, (ii) a certificate from a
financial officer of Tenant that Tenant has not been reimbursed
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previously for such Hard Costs and/or Soft Costs, (iii) a certificate from
Tenant's architect which certifies that the work for which Tenant is seeking
reimbursement has been completed substantially in accordance with the plans and
specifications previously approved or deemed approved by Landlord and in
compliance with all applicable Legal Requirements and (iv) evidence reasonably
satisfactory to Landlord (including, without limitation, lien waivers) that all
sums properly due and owing to contractors, subcontractors and materialmen in
connection with the work for which Tenant is seeking reimbursement have been
paid. Within thirty (30) days after receipt of such notice and other information
and provided the certificates and other deliveries made therewith are correct,
Landlord shall reimburse Tenant for the amount thereof until the total of all
such reimbursements is equal to the Sixth Floor Space Allowance (it being
understood that in no event shall Landlord be obligated to expend in excess of
the Sixth Floor Space Allowance or reimburse Tenant for Soft Costs in excess of
the Sixth Floor Space Soft Costs Maximum). Anything to the contrary contained
herein notwithstanding anything, Landlord shall have the right to withhold
$25,000 from the Sixth Floor Space Allowance, which amount shall not be released
to Tenant unless and until Tenant delivers to Landlord final working drawings,
with amendments, or the mylar set of "as built" plans, drawings and
specifications for the work performed in the Sixth Floor Space and the disk
carrying the same in accordance with Section 6.01(11) of the Lease.
(f) From and after the Sixth Floor Space Commencement Date, Tenant's
Tax Share shall be increased by 2.87% and Tenant's Expense Share shall be
increased by 3.01%.
7. Sixth Floor Space - AS IS On the Sixth Floor Space Possession
Date, Tenant shall accept the Sixth Floor Space in its "as is" condition and
Landlord shall have no obligation to perform any work or make any contribution
to prepare the Sixth Floor Space for occupancy by Tenant, except as provided in
Paragraph 6(e) above. All installations, materials and work which may be
undertaken by Tenant to prepare, equip, decorate and furnish the Sixth Floor
Space for Tenant's occupancy shall be performed by Tenant at Tenant's expense in
accordance with all of the terms, conditions and provisions of the Lease.
Notwithstanding anything contained herein or in the Lease to the contrary,
Tenant acknowledges that only one of the 13,400 volt risers servicing the sixth
floor north switchgear room will be available for Tenant's use.
8. Existing Tenant. Tenant acknowledges that the Sixth Floor Space
is subject to an existing lease and Landlord will not be able to deliver the
Sixth Floor Space to Tenant until such lease expires or terminates and the
occupant of the Sixth Floor Space vacates the same. Landlord has advised Tenant
that such lease for the Sixth Floor Space is scheduled to terminate on June 30,
2000; however, Tenant agrees that if Landlord delivers vacant, broom-clean
possession of the Sixth Floor Space to Tenant prior to June 30, 2000, such
earlier date of delivery shall be the Sixth Floor Space Possession Date,
provided, that in no event shall such earlier date of delivery be earlier than
five (5) days after Landlord gives to Tenant notice of the date on which
Landlord anticipates that the Sixth Floor Space shall be so delivered to Tenant
(unless Tenant or anyone claiming under or through Tenant first occupies the
Sixth Floor Space for the performance of its work therein or any other purpose
prior to the giving of such notice by Landlord or the expiration of such 5-day
period). If any tenant in the Sixth Floor Space shall holdover beyond June 30,
2000, Landlord shall use reasonable efforts (including the prompt commencement
and diligent prosecution of summary proceedings) to terminate such holdover
tenancy.
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Notwithstanding anything to contrary contained in this Lease, Tenant agrees that
Tenant shall have no claim against Landlord, and Landlord shall have no
liability to Tenant for any failure or delay to deliver possession of the Sixth
Floor Space pursuant to the terms hereof on the anticipated availability date or
any other specific date and the validity of the Lease, as amended hereby, shall
not be impaired under such circumstances nor shall the same be construed to
extend the Term.
9. Expansion Option. Landlord and Tenant acknowledge and agree that
Article 45 of the Lease (Expansion Option) is null and void and of no further
force and effect.
10. Broker. (a) Tenant covenants, represents and warrants that
Tenant has had no dealings or negotiations with any broker or agent, other than
Insignia/Xxxxxx X. Xxxxxx Company, Inc. (representing Landlord) and DLJ Realty
Services, Inc. (representing Tenant), in connection with the consummation of
this Amendment, and Tenant covenants and agrees to pay, hold harmless and
indemnify Landlord from and against any and all cost, expense (including
reasonable attorneys' fees and court costs), loss and liability for any
compensation, commissions or charges claimed by any broker or agent, other than
Insignia/Xxxxxx X. Xxxxxx Company, Inc. and DLJ Realty Services, Inc., with
respect to this Amendment or the negotiation thereof if such claim or claims by
any such broker or agent are based in whole or in part on dealing with Tenant or
its representatives.
(b) Landlord covenants and agrees to pay, hold harmless and
indemnify Tenant from and against any and all costs, expenses (including
reasonable attorneys' fees and court costs), loss and liability for any
compensation, commissions or charges in connection with this Amendment or the
negotiation thereof, claimed under any circumstances by Insignia/Xxxxxx X.
Xxxxxx Company, Inc. or claimed by any other broker or agent if the claims by
such other brokers or agents are based in whole or part on dealings with
Landlord or its representatives and not with Tenant or its representatives.
Landlord agrees to pay Insignia/Xxxxxx X. Xxxxxx Company, Inc. and DLJ Realty
Services, Inc., such compensation, commissions or charges to which they are
entitled in connection with this Amendment pursuant to a separate agreement
between Landlord and said broker.
11. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of Landlord and Tenant and their respective permitted
successors and assigns.
12. Entire Agreement. This Amendment represents the entire
understanding of the parties hereto with respect to the subject matter hereof.
13. Ratification; Confirmation. As amended hereby, the Lease is
hereby ratified and confirmed in all respects and shall continue in full force
and effect. In the event of any conflict between the terms of this Amendment and
the terms of the Lease, the terms of this Amendment shall govern.
14. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New Jersey, without giving effect to
the conflicts of law principles thereof.
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15. Counterparts. This Amendment may be executed in counterparts
each of which when taken together shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Amendment as of the day and year first above written.
CAL-HARBOR II AND III URBAN RENEWAL
ASSOCIATES L.P., Landlord
By Xxxx-Xxxx Sub X, Inc., its
General Partner
By:
------------------------------------
Name: Xxxx Xxx Xxxxxxxx
Title: Vice President, Leasing
NJ/PA Region
DLJdirect HOLDINGS INC., Tenant
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: XXXXXXX X. XXXXXXXXX
Title: Director
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION, Tenant
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: XXXXXX X. XXXXXX
Title: S.V.P.
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STATE OF )
ss.:
COUNTY OF )
On this ______ day of _____________, 1999, before me personally came
Xxxx Xxx Xxxxxxxx, to me known, who, being duly sworn by me, did depose and say
that he resides in _________________________________, that he is the Vice
President, Leasing - NJ/PA Region, of Xxxx-Xxxx Sub X, Inc., the corporation
described in and which executed the above instrument on behalf of Cal-Harbor II
and III Urban Renewal Associates L.P., and that he signed his name thereto by
order of the board of directors of said corporation.
________________________________________
Notary Public
STATE OF )
ss.:
COUNTY OF )
On this _____ day of ___________, 1999, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he resides in _______________________________________, that he is the
__________________ of DLJdirect Holdings Inc., the corporation described in and
which executed the above instrument and that he signed his name thereto by order
of the board of directors of said corporation.
________________________________________
Notary Public
STATE OF )
ss.:
COUNTY OF )
On this _____ day of ___________, 1999, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he resides in ______________________________________, that he is the
_________________ of XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION, the
corporation described in and which executed the above instrument and that he
signed his name thereto by order of the board of directors of said corporation.
________________________________________
Notary Public
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SCHEDULE A
FIRST FLOOR SPACE
[GRAPHIC OMITTED]
[LOGO]
HARBORSIDE FINANCIAL CENTER XXXX-XXXX
FIRST FLOOR Realty Corporation
PLAZA II 00 Xxxxxxxx Xxxxx, Xxxxxxxx,
XXXXXX XXXX, XXX XXXXXX [ILLEGIBLE] XX 00000 [ILLEGIBLE]
SCHEDULE B
SIXTH FLOOR SPACE
[GRAPHIC OMITTED]
[LOGO]
HARBORSIDE FINANCIAL CENTER XXXX-XXXX
FIRST FLOOR Realty Corporation
PLAZA II [ILLEGIBLE]
JERSEY CITY, NEW JERSEY [ILLEGIBLE]
