Exhibit 10.2
SECOND AMENDMENT TO LEASE AGREEMENT
AGREEMENT made as of the ____ day of July, 1995 by and between Bank of
Communications a banking corporation organized and doing business pursuant to
the laws of the People's Republic of China, having an office at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Landlord") and La Branche & Co., a New York general
partnership, having an office at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Tenant").
This Second Amendment is hereinafter referred to as the "Agreement".
W I T N E S S E T H:
WHEREAS, Landlord acquired fee title to the property located at ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Property") from The Prudential Insurance Company
of America ("Prudential") on September 20, 1994 subject to an existing office
lease with Tenant;
WHEREAS, Tenant and Aetna Life Insurance Company, Prudential's predecessor
in interest, entered into that certain office lease agreement dated January 6,
1984, pursuant to which Tenant leased from Aetna a portion of the 26th floor in
the Property;
WHEREAS, on or about May 1, 1993 Tenant and Prudential entered into that
certain First Amendment to Lease Agreement ("First Amendment") which, among
other things, (i) extended the term of the lease to April 30, 2003, (ii)
modified the fixed annual rental amount, (iii) modified the Base Tax year for
calculating the real estate tax escalation chargeable to Tenant, (iv) modified
the Expense Base Factor for calculating the operating expense escalation
chargeable to Tenant, (v) required Prudential to perform certain specified work,
(vi) deleted certain lease provisions and (vii) otherwise ratified the subject
lease, as amended. The original lease agreement together with the First
Amendment are hereinafter referred to as the "Lease";
WHEREAS, Tenant has requested that Landlord extend the term of the Lease
and permit Tenant to relocate to a larger space, and to modify certain other
provisions of the Lease, and Landlord has agreed to do so subject to and in
accordance with the terms, provisions and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises,
conditions and provisions herein contained, the value and adequacy of which is
hereby acknowledged by both parties hereto, the parties hereto hereby agree as
follows:
1. The term "Demised Premises" contained in the "Witnesseth" paragraph of
the Lease is deleted and substituted with "the entire twenty-fifth (25th) floor
in the Property", which shall from the date of this Agreement forward constitute
the Demised Premises.
2. The fixed annual rent shall be paid by Tenant to Landlord pursuant to,
and in the amounts set forth on Schedule A of this Agreement, commencing upon
the Commencement Date, as hereinafter defined.
3. The Lease shall be extended for a period of twelve (12) years,
commencing on the "Commencement Date" (as hereinafter defined) and expiring on
the twelfth anniversary of the Commencement Date (the "Expiration Date"). All
references to Commencement Date and to Expiration Date in the Lease shall be to
the Commencement Date and the Expiration Date as provided in this Agreement.
Notwithstanding anything to the contrary contained herein, Tenant agrees to
submit complete construction drawings, plans and specifications to the Landlord
within thirty (30) days from the date of execution of this Agreement. Landlord
shall have such drawings, plans and specifications reviewed and either approved
or have suggested revisions thereto within ten (10) days after receipt of the
drawings, plans and specifications. The "Commencement Date" shall be deemed to
be the date which is one hundred and twenty (120) days from the date on which
the Landlord approves the drawings, plans and specifications.
4. With respect to Article 3, paragraph 3.01 of the Lease:
(i) the term "Base Tax" shall mean the amount of Taxes due and payable in
tax year 1995/96;
(ii) the term "Tenant's Tax Share" shall mean 3.05%; and
(iii) the term "Taxes" shall be supplemented by adding to the definition
"any charge, fee or imposition which is assessed or payable as a result of the
Property being located within a Business Improvement District, as defined by the
Zoning Resolution of the City of New York".
5. With respect to Article 3, paragraph 3.02 of the Lease:
(i) the term "Expense Base Factor" shall mean the Expenses in calendar
year 1995; and
(ii) the term "Tenant's Expense Share" shall mean 3.05%.
6. With respect to Article 4, in those sections regarding multi-tenant
floors (i.e. ss.4.03) all references to proportionate payments or usage are
deemed deleted inasmuch as the Demised Premises shall, pursuant to this
Agreement, be comprised of an entire floor.
7. With respect to Article 6, after the references to ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
Baco Partners, Exchange Plaza Partners and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Company, at each
location shall be deemed to be, effective the date of execution hereof, the
"Bank of Communications" and "Premisys Real Estate Services".
8. With respect to Article 24 of the original Lease and paragraph 7 of the
First Amendment, "▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Inc." is added thereto as of the date of
this Agreement.
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9. The following Articles, Exhibits and Schedules of the Lease are hereby
deleted in their entirety: 39, Schedule C, Schedule F, Exhibit 1 and Exhibit 2.
10. With respect to Article 41 of the Lease, the amount of the security
deposit referred to therein shall be changed from $24,648.00 to $76,500 and the
references to the posting of a Letter of Credit shall be modified to conform to
the terms of this Agreement, including, but not limited to, a requirement that
Tenant deliver to Landlord, simultaneously with the delivery of a signed
Agreement, an original and satisfactory clean and irrevocable stand-by Letter of
Credit as required hereunder and pursuant to Article 41 of the Lease, except as
amended herein.
11. A. Tenant, at Tenant's expense, subject to paragraph 1(3) below, shall
prepare a preliminary plan or set of plans and preliminary specifications (which
said preliminary plan or set of plans, as the case may be, and specifications
are hereinafter called the "Plans") which shall contain complete information
(including engineering required) and dimensions necessary and sufficient for the
construction and finishing of the Demised Premises. The Plans shall be submitted
by Tenant to Landlord upon execution and delivery of this Agreement. Any
revisions to the Plans reasonably required by Landlord shall be performed by
Tenant within five (5) business days after demand by Landlord.
In accordance with the Plans, Tenant, at Landlord's expense, subject to
the Cap (as hereinafter defined in Paragraph 1 of this Article) and except as
otherwise expressly specified in this Agreement, will cause its designated
contractor to make and complete in and to the Demised Premises the work and
installations (herein called "Tenant's Work") specified in Schedule B annexed
hereto (which unless otherwise specifically provided herein, shall include such
removal as may be required of existing installations).
Notwithstanding any provision of the Lease or this Agreement to the
contrary, any requests for revisions to the Plans or other notices to be given
to Tenant by Landlord pursuant to this Article may be given to Tenant's
designated representative, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ either (i) delivered personally or
(ii) sent by telecopy to (▇▇▇) ▇▇▇-▇▇▇▇ or (iii) sent by certified mail, return
receipt requested, or overnight courier, with receipt acknowledged, to: ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
B. The term "Work Cost" as used in this Article shall mean the
actual cost (including the cost of applicable insurance premiums and the cost of
engineering if any) to Landlord of Tenant's Work.
C. In all instances where Tenant is required to supply information
or authorizations with regard to Landlord's Work, tenant shall supply the same
within three (3) business days after written request therefor by Landlord.
D. Except as provided in this Article, Landlord shall not be
required to spend any money or to do any work to prepare the Demised Premises
for Tenant's
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occupancy. The specification of Tenant's Work in Schedule B represents the limit
of Landlord's responsibilities in connection with the preparation of the Demised
Premises and except as so provided, Tenant shall take the Demised Premises
"AS-IS". Any other improvements, alterations or additions shall be performed by
Tenant at Tenant's sole cost and expense, but subject to all of the terms,
conditions and covenants of this Agreement.
E. Tenant has made and makes no representation of the date on which
it will substantially complete Tenant's Work and, Tenant acknowledges and agrees
that Landlord shall be under no penalty or liability to Tenant whatsoever by
reason of any delay in such performance and the Lease shall not be affected
thereby. The term of the Lease shall commence on the Commencement Date. Tenant
shall, at no cost to Landlord, execute a confirmatory letter establishing the
actual commencement date, promptly after Landlord's request for same.
F. Tenant shall be permitted to enter into the Demised Premises for
installation of its machinery, equipment and fixtures and performance of its
work, all as permitted by the Lease, prior to the Commencement Date at its sole
risk.
G. All work performed by Tenant, including the building air
conditioning installation, shall, upon installation, become Landlord's property
and shall be surrendered at the expiration or sooner termination of the term of
the Lease, in good condition, reasonable wear and tear excepted; provided,
however, that Tenant shall have the right to remove trade fixtures, equipment
and personal property. Tenant shall repair all damage occasioned by such
removal.
H. For the purposes of this Article, Tenant's Work shall be deemed
to be substantially completed when all major construction is completed as
determined by Tenant's architect (as hereinafter defined), life safety systems
operable, the Demised Premises is locked and secured, and there is beneficial
occupancy although minor items of construction or improvements which do not
unreasonably interfere with Tenant's ability to carry on its business in the
Demised Premises have not been completed. Landlord's construction representative
shall periodically inspect Tenant's Work to determine that (i) Tenant's Work is
being done in accordance with the Plans or (ii) any changes do not adversely
affect the structural components of the building or the building systems. If
Landlord's construction representative reasonably determines that Tenant's Work
does not comply with clauses (i) or (ii) above, Landlord's construction
representative may object to such work by notice to Tenant, which notice shall
specify the nature of such objection. Tenant agrees to promptly comply with and
remedy all objections raised by Landlord's construction representative,
I. 1. Notwithstanding anything contained to the contrary in this
Lease, the total cost of Tenant's Work which Landlord shall provide Tenant
without charge and for building installations performed prior to the
Commencement Date shall be FOUR HUNDRED FOUR THOUSAND DOLLARS ($404,000.00) (the
"Cap"). If the Work Cost shall exceed the Cap, Tenant expressly acknowledges and
agrees that it shall be solely responsible
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for payment of all costs above the Cap. Tenant hereby expressly acknowledges
that, if the Work Cost is less than the Cap, the Landlord shall retain the
difference, it being understood that there shall be no rent concessions or
abatements in Tenant's favor.
2. In addition to the Cap, Landlord shall contribute an
additional $10,000 toward any renovations in the Demised Premises required by
the Americans with Disabilities Act ("ADA") or any other law or governmental
regulation. Tenant acknowledges and agrees that the common area bathrooms shall
comply with the ADA.
3. Landlord shall contribute an amount not to exceed $36,000
in addition to the Cap toward preparation of construction drawings, filing fees,
expediters fees and similar "soft" costs. All costs incurred by Tenant for
tenant changes shall be at Tenant's sole cost and expense.
J. Tenant hereby advises Landlord that the estimated total "hard"
cost of performing Tenant's Work is $600,000.00 (the "Total Cost"). Tenant also
advises Landlord that it is Tenant's intention to engage LCG Architects as its
architect. Landlord hereby acknowledges that LCG Architects is acceptable to
Landlord. Tenant covenants and agrees that if, for whatever reason, or for no
reason, it either does not engage LCG Architects as its architect or if LCG
Architects ceases to function as the Tenant's architect, any other architect
which Tenant may desire to engage, may only be engaged with the prior written
consent of the Landlord, which such consent shall not be unreasonably withheld
or delayed (as such, LCG Architects or such other architect selected by Tenant
and approved by Landlord, shall be hereinafter referred to as "Tenant's
Architect."). The sum(s) to be paid by the Landlord, pursuant to Article 1
hereof, shall be paid as follows:
1. Tenant's Architect shall periodically (but not more often
than once each month) certify in writing to both Tenant and to Landlord, (i) the
cost of Tenant's Work completed to the date of such certification less the cost
of Tenant's Work previously certified by Tenant's Architect as being completed
(the "Payment Amount"), (ii) an estimate as the amount of the Total Cost
remaining and (iii) that the Tenant's Work has been performed in accordance with
the Plans. Within five (5) business days from receipt of each such
certification, Landlord shall pay to Tenant the Payment Amount. In addition, in
the event that the cost of compliance of the Tenant's Work with the requirements
of the ADA is less than $10,000, then, upon certification that such compliance
has been completed, the Tenant's Architect shall also indicate the cost of such
compliance, and the Landlord shall pay such sum to the Tenant. If such
compliance cost exceeds the said $10,000, then Landlord shall pay the sum of
$10,000 to the Tenant.
2. Within five (5) business days after receipt by the Landlord
of a written statement (certified as true, complete and accurate by the
president or the Chief Executive Officer of the Tenant) from the Tenant
specifying the amount of the "soft" costs (for example, preparation of Plans,
filing fees, expediter fees and similar costs and fees) required for the
performance of Tenant's Work, Landlord shall deliver to Tenant its check
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in such amount up to a maximum or $36,000. To the extent that the amount of
Tenant's soft costs is less than $36,000, the difference will be added to the
Cap.
3. Each time the Landlord advances monies to the Tenant
pursuant to paragraph J1., above, Tenant shall, in exchange for such monies,
deliver to the Landlord fully executed and acknowledged lien waivers from such
contractor, subcontractor, materialmen and suppliers (each a "Contractor") to be
paid, each lien waiver to indicate the amount which each such Contractor has
received to the date or such payment. Upon final completion of Tenant's Work,
Tenant shall promptly deliver final lien waivers from each Contractor.
K. Landlord shall provide Tenant with a list of four (4) approved
contractors from which such list, Tenant agrees to select one such contractor to
perform Tenant's Work. In the event Tenant is dissatisfied with the bids that
are submitted by the contractors on such list, then, Tenant shall promptly try
to obtain a contractor to perform Tenant's Work and shall submit the name,
address and such other information as may be reasonably required by Landlord
concerning such new general contractor. Landlord agrees that it will not
unreasonably withhold its consent to the utilization by Tenant of such general
contractor not on the aforementioned list of four (4) general contractors.
Tenant specifically acknowledges and agrees that the Tenant and the general
contractor shall not permit any mechanics liens or contractor/materialmen's
liens to be placed against the Building. Moreover, Tenant acknowledges and
agrees that any general contractor selected by Tenant to perform Tenant's Work
must provide the requisite property, public liability, workmen's compensation
and any and all other insurance required by law which such insurance shall be in
an amount at least equal to three (3) times the total amount of the cost of
Tenant's Work, which such insurance shall also name Landlord as an additional
insured.
12. Tenant presently occupies part of the 26th floor of the Building. If
and only if this Agreement is executed and unconditionally delivered by Landlord
and Tenant, then the original Expiration Date (as such term is defined in the
Lease) of the Lease shall be deemed to be that date (the "Lease Amended
Expiration Date") which is the day immediately preceding the Commencement Date
of this Agreement, unless sooner terminated pursuant to any of the terms,
covenants and conditions of the Lease or pursuant to law, upon all of the
executory terms, covenants and conditions contained in the Lease (including the
payment of fixed rent and additional rent at the rates set forth therein). In
the event that Tenant shall fail to vacate the 26th floor premises and surrender
same unto Landlord, in accordance with the applicable terms and provisions of
the Lease, on or before the Lease Amended Expiration Date, such failure shall be
deemed a default by Tenant in the performance of a material covenant hereunder,
upon which Landlord shall have the right to exercise any and all rights and
remedies afforded Landlord under the Lease, including, but not limited to, the
recovery of damages incurred by Landlord by reason of claims of any new or
prospective tenant of the aforesaid 26th floor premises arising from Tenant's
holding-over, or the termination of any new Lease with respect to said premises
by reason of Landlord's inability to timely deliver possession of said premises
to any new tenant. The foregoing
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extension of the term of the Lease shall be of no force or effect in the event
that this Agreement is not executed and unconditionally delivered by Landlord
and Tenant for any reason whatsoever, including Landlord's willful refusal to
execute this Agreement.
13. Schedule F of the Lease is deemed deleted and replaced with Schedule C
annexed hereto and made a part hereof.
14. Except as expressly modified herein, all terms, conditions,
provisions, rights and obligations set forth in the Lease, as amended, shall
continue in full force and effect, and Tenant hereby ratifies said Lease, as
amended, and agrees and acknowledges that there are no defaults, defenses,
claims, counterclaims, set-offs or actions available against the Landlord or
Landlord's predecessors in interest arising out of said Lease, as amended. All
defined terms used herein, unless defined herein, shall have the same meaning
ascribed to them in the Lease.
15. The covenants, agreements, terms and conditions contained in this
Agreement shall bind and inure to the benefit of the parties hereto and except
as otherwise specifically provided in the Lease, as amended, their respective
legal successors and assigns.
16. Any and all notices, demands or other communications between Tenant,
Landlord and Landlord's construction representative shall be deemed effective
only if in writing, forwarded to the parties hereto at their respective
addresses set forth above, or hereinafter provided in writing to Landlord or to
Tenant, as the case may be. Such notices may be by telecopier or fax, personal
delivery, or certified mail return receipt requested and the effective date of
any such notice shall be the date on which such notice was received by the party
to whom it was addressed. Copies of any and all such notices, demands or other
written communication shall be forwarded to Tenant's counsel, Fulbright &
▇▇▇▇▇▇▇▇, L.L.P., Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Facsimile #(▇▇▇) ▇▇▇-▇▇▇▇) and copies of any and all
such notices demands or other written requests shall be forwarded to Landlord's
counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, P.C., Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Telecopier #(▇▇▇) ▇▇▇-▇▇▇▇).
17. Landlord and Tenant agree that, based solely on the Plans, Tenant's
Work does not include any sufficiently unique or unusual construction or
installation, such that Tenant would be obliged to remove any or all of Tenant's
Work at the termination of the Lease as modified by this Agreement. However, in
the event that the final plans and specifications, or any change orders thereto,
add any unique or unusual construction or installation, as reasonably determined
by the Landlord, Tenant hereby agrees that at the termination of the Lease as
modified by this Agreement, that it will, at its sole cost and expense, remove
such unique or unusual construction or installation(s).
18. This Agreement may not be changed orally but only in writing signed by
the party against whom enforcement is sought.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Second Amendment to Lease Agreement as of the day and year first above written.
BANK OF COMMUNICATIONS
/s/ [ILLEGIBLE]
----------------------------------------
By:
LA BRANCHE & CO.
/s/ [ILLEGIBLE]
----------------------------------------
By:
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THIRD AMENDMENT TO LEASE AGREEMENT
AGREEMENT made as of the 5th day of August, 1997 by and between Bank of
Communications a banking corporation organized and doing business pursuant to
the laws of the People's Republic of China, having an office at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Landlord") and La Branche & Co., a New York general
partnership, having an office at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Tenant").
This Third Amendment is hereinafter referred to as the "Agreement".
W I T N E S S E T H:
WHEREAS, Landlord acquired fee title to the property located at ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Property") from The Prudential Insurance Company
of America ("Prudential") on September 20, 1994 subject to an existing office
lease with Tenant;
WHEREAS, Tenant and Aetna Life Insurance Company, Prudential's predecessor
in interest, entered into that certain office lease agreement dated January 6,
1984, pursuant to which Tenant originally leased from Aetna a portion of the
26th floor in the Property;
WHEREAS, on or about May 1, 1993 Tenant and Prudential entered into that
certain First Amendment to Lease Agreement ("First Amendment") which, among
other things, (i) extended the term of the lease to April 30, 2003, (ii)
modified the fixed annual rental amount, (iii) modified the Base Tax year for
calculating the real estate tax escalation chargeable to Tenant, (iv) modified
the Expense Base Factor for calculating the operating expense escalation
chargeable to Tenant, (v) required Prudential to perform certain specified work,
(vi) deleted certain lease provisions and (vii) otherwise ratified the subject
lease, as amended;
WHEREAS, in July, 1995, Landlord and Tenant entered into that certain
Second Amendment to Lease Agreement ("Second Amendment") which, among other
things, (i) substituted the "Demised Premises" under the original 1984 lease
agreement (a portion of the twenty-sixth (26th) floor in the Property) with the
entire twenty-fifth (25th) floor in the Property, which 25th floor comprises the
Demised Premises at this time; (ii) modified the annual rent payable by Tenant
to Landlord; (iii) extended the term of the Lease for a period of twelve (12)
years from the Commencement Date, as defined; (iv) modified the base years and
Tenant's proportionate share amounts with respect to real estate tax and
operating expense escalations; (v) increased the amount of the security deposit
from $24,648.00 to $76,500; (vi) provided for the build-out of the twenty-fifth
(25th) floor, pursuant to Tenants' plans and specifications, as well as the
respective contributions of the parties toward the costs of the work; (vii)
deleted certain Lease provisions and (viii) otherwise ratified the subject
Lease, as amended. The original lease agreement together with the First
Amendment thereto and the Second Amendment thereto are hereinafter referred to
as the "Lease";
WHEREAS, Tenant has requested that Landlord extend the Demised Premises
under the Lease to include the entire twenty-fourth (24th) floor in the Property
and to modify certain other provisions of the Lease, and Landlord has agreed to
do so subject to and in accordance with the terms, provisions and conditions of
this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises,
conditions and provisions herein contained, the value and adequacy of which are
hereby acknowledged by both parties hereto, the parties hereto hereby agree as
follows:
1. The term "Demised Premises" originally defined in the "Witnesseth"
paragraph of the original 1984 lease agreement, as modified by paragraph one of
the Second Amendment, referred to above, is now hereby further modified to
include, in addition to the twenty-fifth (25th) floor in the Property (but not
in substitution therefor) the entire twenty-fourth (24th) floor in the Property,
which together shall from the Possession Date, as hereinafter defined, forward
constitute the Demised Premises. The entire twenty-fourth (24th) floor in the
Property is hereinafter referred to as the "Additional Premises".
2. With respect to the Additional Premises only, the fixed annual rental
which shall be paid by the Tenant to the Landlord shall be as set forth in
Schedule A of this Agreement, commencing upon the Commencement Date, as
hereinafter defined. The total fixed annual rental which shall be paid by Tenant
to Landlord for the entire Demised Premises (twenty-fifth (25th) and
twenty-fourth (24th) floors combined) shall be as set forth in Schedule B of
this Agreement.
3. (a) Landlord and Tenant agree that the Expiration Date, as defined in
the Lease and confirmed in this Agreement, is January 6, 2008 for the entire
Demised Premises. With respect to the Additional Premises only, the Commencement
Date shall be deemed to be the date which is one-hundred eighty (180) days from
the date the Landlord delivers possession of the Additional Premises to Tenant
(the "Possession Date"). Landlord shall give Tenant three (3) days prior written
notice of the actual Possession Date. Tenant agrees to submit complete
construction drawings, plans and specifications pertaining to the build-out of
the twenty-fourth (24th) floor to the Landlord within sixty (60) days from the
date of execution of this Agreement. Landlord shall have such drawings, plans
and specifications reviewed and either approved or have suggested revisions
thereto within twenty (20) days after receipt of such drawings, plans and
specifications.
(b) If the Possession Date does not occur on or before September 15,
1997, as to which date time is of the essence, Tenant may, at its option,
terminate this Agreement and neither party shall have any right or obligation
arising herefrom other than those set forth in paragraph 8(b) below.
4. With respect to Article 3, paragraph 3.01 of the Lease, and paragraph 4
of the
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Second Amendment and pertaining solely to the Additional Premises:
(i) the term "Base Tax" shall mean the amount of Taxes due and payable in
tax year 1997/98;
(ii) the term "Tenant's Tax Share" shall mean 3.05%; and
(iii) the term "Taxes" shall be supplemented by adding to the definition
"any charge, fee or imposition which is assessed or payable as a result of the
Property being located within a Business Improvement District, as defined by the
Zoning Resolution of the City of New York".
5. With respect to Article 3, paragraph 3.02 of the Lease and paragraph 5
of the Second Amendment and pertaining solely to the Additional Premises:
(i) the term "Expense Base Factor" shall mean the Expenses in calendar
year 1997; and
(ii) the term "Tenant's Expense Share" shall mean 3.05%.
6. With respect to Article 41 of the Lease and paragraph 10 of the Second
Amendment, the amount of the security deposit referred to therein shall be
changed from $76,500.00 to $153,000 and the references to the posting of a
Letter of Credit shall be modified to conform to the terms of this Agreement,
including, but not limited to, a requirement that Tenant deliver to Landlord,
simultaneously with the delivery of a signed Agreement, an original and
satisfactory clean and irrevocable stand-by Letter of Credit as required
hereunder and pursuant to Article 41 of the Lease, and paragraph 10 of the
Second Amendment, except as amended herein.
7. A. Tenant, at Tenant's expense, subject to paragraph 1 below, shall
prepare preliminary construction drawings, plans and preliminary specifications
(which said preliminary of drawings, plans, as the case may be, and
specifications are hereinafter called the "Plans") which shall contain complete
information (including engineering required) and dimensions necessary and
sufficient for the construction and finishing of the Additional Premises. The
Plans shall be submitted by Tenant to Landlord within sixty (60) days of the
execution and delivery of this Agreement. Any revisions to the Plans reasonably
required by Landlord shall be performed by Tenant within five (5) business days
after demand by Landlord.
In accordance with the Plans, Tenant, at Landlord's expense, subject to
the Cap (as hereinafter defined in Paragraph 1 of this Article) and except as
otherwise expressly specified in this Agreement, will cause its designated
contractor to make and complete in and to the Additional Premises the work and
installations (herein called "Tenant's Work") specified in the
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Plans (which shall include the installation of an inter-connecting interior
staircase between the 25th floor and the Additional Premises). Notwithstanding
the foregoing, Landlord, at its sole expense, shall arrange for the interior
demolition within the Additional Premises prior to the Possession Date.
Notwithstanding any provision of the Lease or this Agreement to the
contrary, any requests for revisions to the Plans or other notices to be given
to Tenant by Landlord pursuant to this Article may be given to Tenant's
designated representative, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ either (i) delivered personally or
(ii) sent by telecopy to (▇▇▇) ▇▇▇-▇▇▇▇ or (iii) sent by certified mail, return
receipt requested, or overnight courier, with receipt acknowledged, to: ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
B. Intentionally omitted.
C. In all instances where Tenant is required to supply information
or authorizations with regard to Landlord's Work, Tenant shall supply the same
within three (3) business days after written request therefor by Landlord.
D. Except as provided in this Article, Landlord shall not be
required to spend any money or to do any work to prepare the Additional Premises
or the Demised Premises for Tenant's occupancy. Tenant shall take the Additional
Premises "AS-IS". Any other improvements, alterations or additions shall be
performed by Tenant at Tenant's sole cost and expense, but subject to all of the
terms, conditions and covenants of this Agreement.
E. Tenant has made and makes no representation of the date on which
it will substantially complete Tenant's Work and, Tenant acknowledges and agrees
that Landlord shall be under no penalty or liability to Tenant whatsoever by
reason of any delay in such performance and the Lease shall not be affected
thereby. The term of the Lease shall commence on the Commencement Date. Tenant
shall, at no cost to Landlord, execute a confirmatory letter establishing the
actual commencement date, promptly after Landlord's request for same.
F. Tenant shall be permitted to enter into the Additional Premises
for installation of its machinery, equipment and fixtures and performance of its
work, all as permitted by the Lease, on the Possession Date at its sole risk,
and provided all other provisions of the Lease, including without limitation,
insurance requirements, are satisfied.
G. All work performed by Tenant, including the building air
conditioning installation, shall, upon installation, become Landlord's property
and shall be surrendered at the expiration or sooner termination of the term of
the Lease, in good condition, reasonable wear and tear excepted; provided,
however, that Tenant shall have the right to remove trade fixtures, equipment
and personal property. Tenant shall repair all damage occasioned by such
removal.
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H. Landlord's construction representative shall periodically inspect
Tenant's Work to determine that (i) Tenant's Work is being done in accordance
with the Plans or (ii) any changes do not adversely affect the structural
components of the building or the building systems. If Landlord's construction
representative reasonably determines that Tenant's Work does not comply with
clauses (i) or (ii) above, Landlord's construction representative may object to
such work by notice to Tenant, which notice shall specify the nature of such
objection. Tenant agrees to promptly comply with and remedy all objections
raised by Landlord's construction representative.
I. Notwithstanding anything contained to the contrary in the Lease,
or in this Agreement, the total cost of Tenant's Work which Landlord shall
provide Tenant without charge and for building installations performed prior to
the Commencement Date shall be THREE HUNDRED SIXTY THOUSAND DOLLARS
($360,000.00) (the "Cap"). If the total cost of Tenant's Work shall exceed the
Cap, Tenant expressly acknowledges and agrees that it shall be solely
responsible for payment of all costs above the Cap. Tenant hereby expressly
acknowledges that, if the Work Cost is less than the Cap, the Landlord shall
retain the difference, it being understood that there shall be no rent
concessions or abatements in Tenant's favor.
J. Tenant hereby advises Landlord that the estimated total "hard"
cost of performing Tenant's Work is $600,000.00 (the "Total Cost"). Tenant also
advises Landlord that it is Tenant's intention to engage LCG Architects as its
architect. Landlord hereby acknowledges that LCG Architects is acceptable to
Landlord. Tenant covenants and agrees that if, for whatever reason, or for no
reason, it either does not engage LCG Architects as its architect or if LCG
Architects ceases to function as the Tenant's architect, any other architect
which Tenant may desire to engage, may only be engaged with the prior written
consent of the Landlord, which such consent shall not be unreasonably withheld
or delayed (as such, LCG Architects or such other architect selected by Tenant
and approved by Landlord, shall be hereinafter referred to as "Tenant's
Architect"). The sum(s) to be paid by the Landlord, pursuant to Article 1
hereof, shall be paid as follows:
1. Tenant's Architect shall periodically (but not more often
than once each month) certify in writing to both Tenant and to Landlord, (i) the
cost of Tenant's Work completed to the date of such certification less the cost
of Tenant's Work previously certified by Tenant's Architect as being completed
(the "Payment Amount"), (ii) an estimate as the amount of the Total Cost
remaining and (iii) that the Tenant's Work has been performed in accordance with
the Plans. Within five (5) business days from receipt of each such
certification, Landlord shall pay to Tenant the Payment Amount.
2. Each time the Landlord advances monies to the Tenant
pursuant to paragraph J1., above, Tenant shall, in exchange for such monies,
deliver to the Landlord fully executed and acknowledged lien waivers from such
contractor, subcontractor, materialmen and suppliers (each a "Contractor") to be
paid, each lien waiver to indicate the
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amount which each such Contractor has received to the date of such payment. Upon
final completion of Tenant's Work, Tenant shall promptly deliver final lien
waivers from each Contractor.
K. Landlord shall provide Tenant with a list of four (4) approved
contractors from which such list, Tenant agrees to select one such contractor to
perform Tenant's Work. In the event Tenant is dissatisfied with the bids that
are submitted by the contractors on such list, then, Tenant shall promptly try
to obtain a contractor to perform Tenant's Work and shall submit the name,
address and such other information as may be reasonably required by Landlord
concerning such new general contractor. Landlord agrees that it will not
unreasonably withhold its consent to the utilization by Tenant of such general
contractor not on the aforementioned list of four (4) general contractors.
Tenant specifically acknowledges and agrees that the Tenant and the general
contractor shall not permit any mechanics liens or subcontractor/materialmen's
liens to be placed against the Property. Moreover, Tenant acknowledges and
agrees that any general contractor selected by Tenant to perform Tenant's Work
must provide the requisite property, public liability, workmen's compensation
and any and all other insurance required by law which such insurance shall be in
an amount at least equal to three (3) times the total amount of the cost of
Tenant's Work, which such insurance shall also name Landlord as an additional
insured.
8. (a) Tenant specifically acknowledges that the Additional Premises are
presently the subject of a lease agreement with another tenant. Landlord desires
to terminate that agreement in order to make this Agreement effective. However,
the effectiveness of this Agreement is specifically and expressly conditioned on
the termination of the existing lease covering the Additional Premises. In the
event the existing lease agreement is not terminated, for any reason, then
Landlord shall so notify Tenant in writing, which notice shall be given within
thirty (30) days of the execution and delivery of this Agreement, in which case
this Agreement shall be deemed void ab initio and neither party shall have any
further right or obligation arising here from.
(b) If this Agreement is rendered a nullity because Tenant has
terminated the Agreement because Landlord failed to deliver possession of the
Additional Premises to Tenant on or before September 15, 1997 or if Landlord
fails to obtain a surrender of the existing lease pursuant to paragraph 8(a)
above, Landlord shall reimburse Tenant for any and all reasonable out-of-pocket
costs and expenses incurred by Tenant in connection with this Agreement and the
Additional Premises, including but not limited to attorney fees, architect's
fees and engineering fees.
9. Except as expressly modified herein, all terms, conditions, provisions,
rights and obligations set forth in the Lease, as amended, shall continue in
full force and effect, and Tenant hereby ratifies said Lease, as amended, and
agrees and acknowledges that there are no
-6-
defaults, defenses, claims, counterclaims, set-offs or actions available against
the Landlord or Landlord's predecessors in interest arising out of said Lease,
as amended. All defined terms used herein, unless defined herein, shall have the
same meaning ascribed to them in the Lease.
10. The covenants, agreements, terms and conditions contained in this
Agreement shall bind and inure to the benefit of the parties hereto and except
as otherwise specifically provided in the Lease, as amended, their respective
legal successors and assigns.
With respect to paragraph 16 of the Second Amendment pertaining to
Notices, copies of any notices, demands or communications to Tenant shall be
sent to Tenant's counsel, Fulbright & ▇▇▇▇▇▇▇▇ LLP, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Esq.
11. This Agreement may not be changed orally but only in writing signed by
the party against whom enforcement is sought.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Third Amendment to Lease Agreement as of the day and year first above written.
BANK OF COMMUNICATIONS
/s/ [ILLEGIBLE]
----------------------------------------
By:
LA BRANCHE & CO.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
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