Exhibit 10
SECOND AMENDMENT TO LEASE
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THIS SECOND AMENDMENT TO LEASE (this "Second Amendment") is entered into as
of the 24th day of March, 2005 by and between THE BROOKLYN UNION GAS COMPANY, a
New York corporation having an office at Xxx XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000 ("Tenant") and FOREST CITY XXX STREET ASSOCIATES, L.P., a New York
limited partnership having an office at One MetroTech Center North, 11th Floor,
Brooklyn, New York 11201 ("Landlord").
W I T N E S S E T H:
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WHEREAS, Landlord and Tenant entered into a lease dated as of September 15,
1988 (the "Original Lease"), demising the premises described in the Lease
("demised premises"), in the building known as One MetroTech Center, Brooklyn,
New York (the "Building");
WHEREAS, the Original Lease was amended by a First Amendment to Lease dated
as of March 8, 1991 (the "First Amendment");
WHEREAS, except for the First Amendment, the Original Lease has not been
previously amended;
WHEREAS, the space demised under the Original Lease consisted of (i) a
portion of the rentable area on the ground floor of the Building, the entire
rentable area on the second (2nd) floor of the Building and the entire rentable
area on the twelfth (12th) through twenty-third (23rd) floors of the Building,
or 450,000 rentable square feet of office space in the aggregate (the "Office
Space"), (ii) a portion of the parking garage in the Building consisting of
approximately 25,600 square feet (the "Parking Area"), (iii) approximately 5,527
square feet of below grade storage space (the "Storage Space"), and (iv)
appurtenant rights to use certain areas on the roof of the Building, and certain
shaft space within the Building, for Tenant's HVAC, mechanical and electrical
plant and Tenant's communications equipment;
WHEREAS, the Expiration Date of the Original Lease is February 28, 2012;
WHEREAS, Tenant desires to extend the Term for an additional thirteen (13)
years, to and including February 28, 2025, and Landlord is willing to so extend
the Term in accordance with the terms and conditions hereinafter set forth;
WHEREAS, Tenant desires the option to surrender a portion of the demised
premises consisting of a portion of the rentable area on the seventeenth (17th)
floor, and Landlord is willing to accept such surrender of a portion of the
seventeenth (17th) floor in accordance with the terms and conditions hereinafter
set forth;
WHEREAS, Tenant, simultaneously herewith, (i) has surrendered a portion of
the demised premises consisting of the entire rentable area on the eighteenth
(18th) floor, and (ii) pursuant to that certain Assignment and Assumption of
Subleases, of even date herewith and annexed hereto as Exhibit C (the
"Assignment and Assumption of Subleases"), has assigned to Landlord all of
Tenant's right, title and interest to that certain Sublease dated as of May 15,
2002 between Tenant d/b/a KeySpan Energy Delivery New York, as Sublandlord, and
Depository Trust & Clearing Corporation ("DTCC"), as Subtenant (as amended, the
"DTCC Sublease"), which DTCC Sublease covers the entire rentable area on the
eighteenth (18th) floor;
WHEREAS, Tenant, simultaneously herewith, (i) has surrendered a portion of
the demised premises consisting of the entire rentable area on the nineteenth
(19th) floor, and (ii) pursuant to the Assignment and Assumption of Subleases
has assigned to Landlord all of Tenant's right, title and interest to that
certain Sublease dated as of June 30, 2004, between Tenant d/b/a KeySpan Energy
Delivery New York, as Sublandlord, and Allstate Insurance Company ("Allstate"),
as Subtenant (the "Allstate Sublease"), which Allstate Sublease covers the
entire rentable area on the nineteenth (19th) floor;
WHEREAS, the space demised under the Original Lease as modified by this
Second Amendment presently consists of (i) a portion of the rentable area on the
ground floor of the Building, the entire rentable area on the second (2nd) floor
of the Building, the entire rentable area on the twelfth (12th) through
seventeenth (17th) floors of the Building and the entire rentable area on the
twentieth (20th) through twenty-third (23rd) floors of the Building, or 391,878
rentable square feet of office space in the aggregate (the "Office Space"), (ii)
a portion of the parking garage in the Building consisting of approximately
25,600 square feet (the "Parking Area"), (iii) approximately 5,527 square feet
of below grade storage space (the "Storage Space"), and (iv) appurtenant rights
to use certain areas on the roof of the Building, and certain shaft space within
the Building, for Tenant's HVAC, mechanical and electrical plant and Tenant's
communications equipment;
WHEREAS, Tenant desires the option to surrender a portion of the demised
premises consisting of the entire rentable area on the twentieth (20th) floor,
and Landlord is willing to accept such surrender of the twentieth (20th) floor
in accordance with the terms and conditions hereinafter set forth;
WHEREAS, Landlord and Tenant desire to make such additional modifications
to the Lease as are hereinafter provided.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the legal sufficiency and receipt of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. General. From and after the Effective Date (as hereinafter defined), the
"Lease" shall mean the Original Lease as modified by the First Amendment and
this Second Amendment. All capitalized terms not defined in this Second
Amendment shall have the meanings ascribed to them in the Lease.
2. Effective Date. This Second Amendment shall be effective as of the date
first appearing above (the "Effective Date").
3. Extension of Term. As of the Effective Date, the Term is hereby extended
to, and the Expiration Date (sometimes hereinafter referred to as the "Extension
Term Expiration Date") shall be, February 28, 2025. The thirteen (13) year
period from March 1, 2012 (the "Extension Term Commencement Date") through
February 28, 2025 is sometimes hereinafter referred to as the "Extension Term".
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4. Fixed Annual Rent.
(a) Commencing on the Effective Date, Tenant shall pay fixed annual rent to
Landlord as follows:
(i) For the Office Space, from the Effective Date through February 28,
2015, Thirteen Million Seven Hundred Fifteen Thousand Seven Hundred Thirty and
00/100 Dollars ($13,715,730.00) per annum or One Million One Hundred Forty-Two
Thousand Nine Hundred Seventy-Seven and 50/100 Dollars ($1,142,977.50) per
month, and from March 1, 2015 through the Extension Term Expiration Date,
Fourteen Million One Hundred Seven Thousand Six Hundred Eight and 00/100 Dollars
($14,107,608.00) per annum or One Million One Hundred Seventy-Five Thousand Six
Hundred Thirty-Four and 00/100 Dollars ($1,175,634.00) per month.
(ii) For the Parking Area, from the Effective Date through February 28,
2010, Three Hundred Thirty-Two Thousand Eight Hundred and 00/100 Dollars
($332,800.00) per annum or Twenty-Seven Thousand Seven Hundred Thirty-Three and
33/100 Dollars ($27,733.33) per month, and from March 1, 2010 through February
28, 2015, Four Hundred Nine Thousand Six Hundred and 00/100 Dollars
($409,600.00) per annum or Thirty-Four Thousand One Hundred Thirty-Three and
33/100 Dollars ($34,133.33) per month, and from March 1, 2015 through February
28, 2020, Four Hundred Sixty Thousand Eight Hundred and 00/100 Dollars
($460,800.00) per annum or Thirty-Eight Thousand Four Hundred and 00/100 Dollars
($38,400.00) per month, and from March 1, 2020 through the Extension Term
Expiration Date, Five Hundred Twelve Thousand and 00/100 Dollars ($512,000.00)
per annum or Forty-Two Thousand Six Hundred Sixty-Six and 67/100 Dollars
($42,666.67) per month.
(iii) For the Storage Space, from the Effective Date through February 28,
2010, Seventy-One Thousand Eight Hundred Fifty-One and 00/100 Dollars
($71,851.00) per annum or Five Thousand Nine Hundred Eighty-Seven and 58/100
Dollars ($5,987.58) per month, and from the March 1, 2010 through February 28,
2015, Eighty-Eight Thousand Four Hundred Thirty-Two and 00/100 Dollars
($88,432.00) per annum or Seven Thousand Three Hundred Sixty-Nine and 33/100
Dollars ($7,369.33) per month, and from March 1, 2015 through February 28, 2020,
Ninety-Nine Thousand Four Hundred Eighty-Six and 00/100 Dollars ($99,486.00) per
annum or Eight Thousand Two Hundred Ninety and 50/100 Dollars ($8,290.50) per
month, and from March 1, 2020 through the Extension Term Expiration Date, One
Hundred Ten Thousand Five Hundred Forty and 00/100 Dollars ($110,540.00) per
annum or Nine Thousand Two Hundred Eleven and 67/100 Dollars ($9,211.67) per
month.
(b) Landlord and Tenant acknowledge and agree that as of the Effective
Date, the annual credit against fixed annual rent for cleaning is Four Hundred
Seventy Thousand Two Hundred Fifty-Three and 60/100 Dollars ($470,253.60).
(c) From and after the Effective Date, fixed annual rent shall not be
subject to adjustment pursuant to Section 2.01(a) of the Original Lease,
Paragraphs 3 or 6 of the First Amendment or Exhibit I to the Original Lease,
which Exhibit I to the Original Lease shall be deemed deleted from the Lease as
of the Effective Date.
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(d) Notwithstanding anything to the contrary in this Paragraph 4, provided
that Tenant shall not be in default of any of its material obligations under
this Lease (after the giving of any required notice and the expiration of any
applicable cure period), then commencing on the date that is eight (8) months
following the Effective Date, the next installment(s) of fixed annual rent due
and payable under the Lease shall be abated (such abatement to be prorated for
any portion of a month) in the amount of One Million Five Hundred Thousand and
00/100 Dollars ($1,500,000.00) in the aggregate.
5. Base Tax, Taxes, Base Operating Expenses, Operating Expenses and Base
CAM Operating Expenses
(a) Landlord and Tenant acknowledge and agree that as of the Effective
Date, Tenant's Proportionate Share for Tenant's Tax Payment is 43.82% and
Tenant's Proportionate Share for Tenant's Operating Payment is 47.69%.
(b) Commencing on the Effective Date, the term "Base Tax" shall mean the
average of the Taxes payable for the 2005 calendar year (i.e., the second half
of the 2004/2005 fiscal tax year and the first half of the 2005/2006 fiscal tax
year) and the Taxes payable for the 2006 calendar year (i.e., the second half of
the 2005/2006 fiscal tax year and the first half of the 2006/2007 fiscal tax
year).
(c) Landlord and Tenant acknowledge and agree that the term "Taxes" in
Section 5.01(c) of the Lease includes the annual assessment by the City for
charges arising from the Building's location within the MetroTech Business
Improvement District.
(d) Commencing on the Effective Date, the term "Base Operating Expenses"
shall mean an amount equal to Operating Expenses for the calendar year 2005.
Tenant's obligation to pay Tenant's Operating Payment with respect to Operating
Expenses for any period after the Effective Date shall not commence until the
first (1st) anniversary of the Effective Date.
(e) A new subsection (ff) shall be added to Section 5.02 of the Lease as
follows:
"(ff) the Security Attendant Cost."
(f) Commencing on the seventh (7th) anniversary of the Effective Date, the
term "Base CAM Operating Expenses" shall mean an amount equal to the Building's
Proportionate Share from time to time of CAM Operating Expenses for the twelve
(12) month period commencing on January 1, 2012 and ending on December 31, 2012.
6. Option to Surrender Portion of 17th Floor
(a) Tenant shall have the right, on not less than thirty (30) days prior
notice (which notice shall be irrevocable, hereinafter the "17th Floor Surrender
Space Notice"), to surrender the portion of the seventeenth (17th) floor shown
on Exhibit A annexed hereto (the "17th Floor Surrender Space") on March 1, 2006.
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In the event that Tenant shall have timely elected to surrender the 17th Floor
Surrender Space but thereafter fails to surrender the 17th Floor Surrender Space
in accordance with the provisions of this Paragraph 6 on March 1, 2006, then
Tenant shall continue to have the right to so surrender the 17th Floor Surrender
Space through and including March 31, 2006, provided, however, that for the
period commencing on March 1, 2006 and continuing through and including the date
that Tenant surrenders the 17th Floor Surrender Space in accordance with this
Paragraph 6 (but in no event later than March 31, 2006), fixed annual rent and
all additional rent payable under the Lease in respect of the 17th Floor
Surrender Space shall be increased to an amount equal to twice the fixed annual
rent and all additional rent payable under the Lease in respect of the 17th
Floor Surrender Space for the month of February, 2006, which increased amount
shall be prorated for any portion of a month. Either March 1, 2006, or the date
between March 1, 2006 and March 31, 2006 when Tenant actually surrenders the
17th floor Surrender Space in accordance with this Paragraph 6, shall
hereinafter be referred to as the "17th Floor Surrender Space Surrender Date".
Tenant's failure (i) to deliver the 17th Floor Surrender Space Notice at least
thirty (30) days prior to March 1, 2006, or (ii) to surrender the 17th Floor
Surrender Space in accordance with the provisions of this Paragraph 6 on or
before March 31, 2006, shall be deemed an irrevocable waiver of Tenant's right
to surrender the 17th Floor Surrender Space.
(b) Tenant's right to surrender the 17th Floor Surrender Space shall be
subject to the following:
(i) Tenant shall not be in default of any of its material obligations under
this Lease (after the giving of any required notice and the expiration of any
applicable cure period) either at the time of giving of the 17th Floor Surrender
Space Notice, or on the 17th Floor Surrender Space Surrender Date.
(ii) Tenant, at Tenant's expense, shall have separately demised the 17th
Floor Surrender Space in accordance with the "17th Floor Surrender Space
Delivery Conditions" annexed hereto as Exhibit B, and shall have completed all
of the other work described on Exhibit B. Commencing upon Tenant's delivery of
the 17th Floor Surrender Space Notice to Landlord, Tenant may request Landlord,
during normal business hours and upon reasonable prior notice, to accompany
Tenant on a joint walk-through of the 17th Floor Surrender Space in order to
identify any items of work set forth on Exhibit B that Landlord determines to be
incomplete. Any dispute about whether the work set forth on Exhibit B has been
completed may be submitted to arbitration by either party pursuant to Article 38
of the Lease, before an arbitrator selected in accordance with Section 38.01(d)
of the Lease.
(iii) The 17th Floor Surrender Space shall be tendered to Landlord vacant,
unencumbered, broom clean, in reasonably good order and condition (ordinary wear
and tear and damage by fire or casualty excepted) and otherwise in accordance
with Exhibit B.
(c) All work performed by Tenant in order to satisfy the 17th Floor
Surrender Space Delivery Conditions shall be performed in accordance with the
provisions of Article 8 of the Lease applicable to Tenant's Changes which
require Landlord's consent. In the event of a conflict between Exhibit B and
Article 8 of the Lease, Exhibit B shall be controlling.
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(d) If Tenant timely delivers the 17th Floor Surrender Space Notice, and if
Tenant thereafter timely tenders the 17th Floor Surrender Space to Landlord with
all work required by Exhibit B having been completed and otherwise in accordance
with Paragraph 6 of this Second Amendment, then effective on the 17th Floor
Surrender Space Surrender Date:
(i) all references in this Lease to the demised premises shall be deemed to
exclude the 17th Floor Surrender Space and the total rentable square footage of
Office Space demised under this Lease shall be deemed reduced by 27, 503
rentable square feet;
(ii) fixed annual rent shall be reduced by an amount equal to Nine Hundred
Sixty-Two Thousand Six Hundred Five and 00/100 Dollars ($962,605.00) per annum,
or Eighty Thousand Two Hundred Seventeen and 08/100 Dollars ($80,217.08) per
month, for the period commencing on the day following the 17th Floor Surrender
Space Surrender Date through and including February 28, 2015, and (B) Nine
Hundred Ninety Thousand One Hundred Eight and 00/100 Dollars ($990,108.00) per
annum, or Eighty-Two Thousand Five Hundred Nine and 00/100 Dollars ($82,509.00)
per month, for the period commencing March 1, 2015 through and including the
Extension Term Expiration Date;
(iii) Tenant's Proportionate Share for Tenant's Tax Payment shall be
reduced by 3.08%, and Tenant's Proportionate Share for Tenant's Operating
Payment shall be reduced by 3.35%;
(iv) the credit to fixed annual rent for cleaning shall be reduced by
Thirty-Three Thousand Three and 60/100 Dollars ($33,003.60); and
(v) Tenant shall reimburse Landlord for the reasonable, actual costs
incurred by Landlord for construction and fit-out of the common corridor
identified on Exhibit A as the "Portion of corridor to be constructed by
Landlord at Tenant's cost". Such corridor shall be completed with Building
standard lighting, fixtures, carpeting, directional signage, signage required by
Legal Requirements and other Building standard finishes. Tenant shall reimburse
Landlord for such costs of construction and fit-out of such common corridor
within thirty (30) days after receipt of Landlord's invoices therefor,
accompanied by customary back-up.
(vi) Landlord shall continue to furnish heating, ventilation (including
fresh air) and air conditioning to the portion of the 17th floor retained by
Tenant, all in accordance with Section 22.01(b), Article 5 and other applicable
provisions of the Lease.
(e) Tenant agrees that within ten (10) Business Days after Landlord's
request following the 17th Floor Surrender Space Surrender Date, Tenant shall
execute, acknowledge and deliver to Landlord an instrument in form reasonably
acceptable to Landlord confirming (i) the 17th Floor Surrender Space Surrender
Date, (ii) the fixed annual rent payable under the Lease, (iii) Tenant's
Proportionate Share for Tenant's Tax Payment and Tenant's Proportionate Share
for Tenant's Operating Payment, and (iv) any other information reasonably
requested by Landlord to be confirmed in connection with surrender of the 17th
Floor Surrender Space.
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7. Continuing Tenant Obligations Concerning the 18th Floor.
(a) Tenant hereby acknowledges that simultaneously with Tenant's surrender
of the 18th floor as of the date hereof, and simultaneously with Tenant's
assignment of the DTCC Sublease pursuant to the Assignment and Assumption of
Subleases, Landlord and DTCC have executed and delivered an attornment agreement
substantially in the form annexed hereto as Exhibit D (the "DTCC Attornment
Agreement"), whereby DTCC has agreed to attorn to Landlord as a direct tenant
under the terms and conditions of the DTCC Sublease as modified by the DTCC
Attornment Agreement (hereinafter, the "DTCC Lease").
(b) Effective as of the Effective Date:
(i) Without limiting anything contained in Paragraph 10 of this Second
Amendment and continuing for the balance of the term of the DTCC Lease
(including any extensions or rentals thereof), Tenant agrees to comply with the
following provisions of the DTCC Lease and to recognize DTCC's rights vis-a-vis
Tenant thereunder (subject to the terms and provisions thereof): Section 10(c)
(access to electrical closets); Section 10(d) (access to telephone closets) and
Section 20 (access to lobby, escalators, elevators and premises, security
procedures and signage);
(ii) Tenant's right of first offer on Surrendered Space, set forth in
Paragraph 13 of this Second Amendment, shall be subject and subordinate to
DTCC's renewal option set forth in Section 21 of the DTCC Lease; and
(iii) Tenant hereby agrees, with reference to that certain letter agreement
dated as of March 24, 2005 between Tenant d/b/a Keyspan Energy Delivery New York
and DTCC (the "Confirmatory Power Letter"), which Confirmatory Power Letter,
among other things, ratifies and confirms Tenant's obligations to provide DTCC
with the "New Power Feed" as defined in that certain letter agreement dated
October 8, 2004 between DTCC and Tenant d/b/a Keyspan Energy Delivery New York
(the "New Power Feed Letter"), to perform the obligations of Tenant under the
Confirmatory Power Letter and the New Power Feed Letter at Tenant's expense.
Further, Tenant acknowledges and agrees that Landlord shall have no
responsibility whatsoever for the performance of Tenant's obligations under the
Confirmatory Power Letter or the New Power Feed Letter, nor shall Landlord have
any liability to Tenant for any failure of the New Power Feed or any of the
equipment or facilities furnished by Tenant to DTCC pursuant to the Confirmatory
Power Letter or the New Power Feed Letter.
8. Continuing Tenant Obligations Concerning the 19th Floor.
(a) Tenant hereby acknowledges that simultaneously with Tenant's surrender
of the 19th floor as of the date hereof, and simultaneously with Tenant's
assignment of the Allstate Sublease pursuant to the Assignment and Assumption of
Subleases, Landlord and Allstate have executed and delivered an attornment
agreement substantially in the form annexed hereto as Exhibit E (the "Allstate
Attornment Agreement"), whereby Allstate has agreed to attorn to Landlord as a
direct tenant under the terms and conditions of the Allstate Sublease as
modified by the Allstate Attornment Agreement (hereinafter, the "Allstate
Lease").
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(b) Effective as of the Effective Date:
(i) without limiting anything contained in Paragraph 10 of this Second
Amendment and continuing for the balance of the term of the Allstate Lease
(including any extensions or renewals thereof), Tenant agrees to comply with the
following provisions of the Allstate Lease and to recognize Allstate's rights
vis-a-vis Tenant thereunder (subject to the terms and provisions thereof):
Section 10(c) (access to electrical closets); Section 10(d) (access to telephone
closets) and Section 20 (access to lobby, escalators, elevators and premises,
security procedures and signage);
(ii) Tenant's right of first offer on Surrendered Space, set forth in
Paragraph 13 of this Second Amendment, shall be subject and subordinate to
Allstate's right of first offer set forth in Section 23 of the Allstate Lease;
(iii) In the event that on the Effective Date the Rent Commencement Date
(as defined in Section 2(a) of the Allstate Lease) has not yet occurred, then
Tenant shall pay as additional rent, within thirty (30) days after Tenant's
receipt of Landlord's reasonably detailed invoices therefor, an amount equal to
Sixty-Two Thousand Three Hundred Eighty-Four and 00/100 Dollars ($62,384.00) per
month (prorated for any portion of a month) for the period commencing on the
Effective Date and ending on the day prior to the Rent Commencement Date (as
defined in Section 2(a) of the Allstate Lease); and
(iv) In the event that on or after the Effective Date all or any portion of
the moving allowance of Sixty-One Thousand Five Hundred Fifty-Eight and 00/100
Dollars ($61,558.00), has not yet been credited against Fixed Rent under the
Allstate Lease pursuant to Section 22 of the Allstate Lease, Tenant shall
reimburse Landlord, as additional rent and within thirty (30) days after
Tenant's receipt of Landlord's reasonably detailed invoices therefor, for all or
any portion of such moving allowance that is credited against Fixed Rent on or
after the Effective Date.
9. Option to Surrender 20th Floor.
(a) Commencing on the Effective Date and continuing until March 1, 2006,
Tenant shall have the right, on not less than thirty (30) days prior notice (the
"20th Floor Surrender Notice"), to surrender the entire rentable area on the
twentieth (20th) floor, which rentable area is deemed to constitute 29,061
rentable square feet. Tenant's 20th Floor Surrender Notice shall be irrevocable
and shall specify the anticipated date for surrender of the 20th floor. Tenant's
failure (i) to deliver the 20th Floor Surrender Notice at least thirty (30) days
prior to March 1, 2006, or (ii) to surrender the 20th Floor in accordance with
the provisions of this Paragraph 9 not later than March 1, 2006, shall be deemed
an irrevocable waiver of Tenant's right to surrender the 20th Floor.
(b) Tenant's right to surrender the 20th floor shall be subject to the
following:
(i) Tenant shall not be in default of any of its material obligations under
this Lease (after the giving of any required notice and the expiration of any
applicable cure period) either at the time of giving of the 20th Floor Surrender
Notice or on the 20th Floor Surrender Date (as hereinafter defined).
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(ii) Tenant, at Tenant's expense, shall have completed all of the work
described in the "20th Floor Surrender Space Delivery Conditions" annexed hereto
as Exhibit F. Commencing upon Tenant's delivery of the 20th Floor Surrender
Space Notice to Landlord, Tenant may request Landlord, during normal business
hours and upon reasonable prior notice, to accompany Tenant on a joint
walk-through of the 20th Floor Surrender Space in order to identify any items of
work set forth on Exhibit F that Landlord determines to be incomplete. Any
dispute about whether the work set forth on Exhibit F has been completed may be
submitted to arbitration by either party pursuant to Article 38 of the Lease,
before an arbitrator selected in accordance with Section 38.01(d) of the Lease.
(iii) The 20th Floor Surrender Space shall be tendered to Landlord vacant,
unencumbered, broom clean, in reasonably good order and condition (ordinary wear
and tear and damage by fire or casualty excepted) and otherwise in accordance
with Exhibit F.
(c) All work performed by Tenant in order to satisfy the 20th Floor
Surrender Space Delivery Conditions shall be performed in accordance with the
provisions of Article 8 of the Lease applicable to Tenant's Changes which do not
require Landlord's consent. In the event of a conflict between Exhibit F and
Article 8 of the Lease, Exhibit F shall be controlling.
(d) If Tenant timely exercises its right to surrender the 20th floor in
accordance with Paragraph 9(a), and if Tenant thereafter timely tenders the 20th
floor to Landlord in accordance with Paragraph 9(a), with all work required by
Exhibit F having been completed and otherwise in accordance with Paragraph 9(b)
of this Second Amendment, then effective the date of such tender (the "20th
Floor Surrender Date"):
(i) all references in this Lease to the demised premises shall be deemed to
exclude the 20th floor and the total rentable square footage of Office Space
demised under this Lease shall be reduced by 29,061 rentable square feet;
(ii) fixed annual rent shall be reduced by One Million Seventeen Thousand
One Hundred Thirty-Five and 00/100 Dollars ($1,017,135.00) per annum, or
Eighty-Four Thousand Seven Hundred Sixty-One and 25/100 Dollars ($84,761.25) for
the period commencing on the day following the 20th Floor Surrender Date through
and including February 28, 2015, and One Million Forty-Six Thousand One Hundred
Ninety-Six and 00/100 Dollars ($1,046,196.00) per annum, or Eighty-Seven
Thousand One Hundred Eighty-Three and 00/100 Dollars ($87,183.00) per month, for
the period commencing on March 1, 2015 through and including the Extension Term
Expiration Date;
(iii) Tenant's Proportionate Share for Tenant's Tax Payment shall be
reduced by 3.25%, and Tenant's Proportionate Share for Tenant's Operating
Payment shall be reduced by 3.54%; and
(iv) the credit to fixed annual rent for cleaning shall be reduced by
Thirty-Four Thousand Eight Hundred Seventy-Three and 20/100 Dollars
($34,873.20).
(e) Tenant agrees that within ten (10) Business Days after Landlord's
request following the 20th Floor Surrender Date, Tenant shall execute,
acknowledge and deliver to Landlord an instrument in form reasonably acceptable
to Landlord confirming (i) the 20th Floor Surrender Date, (ii) the fixed annual
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rent payable under the Lease, (iii) Tenant's Proportionate Share for Tenant's
Tax Payment and Tenant's Proportionate Share for Tenant's Operating Payment, and
(iv) any other information reasonably requested by Landlord to be confirmed in
connection with surrender of the 20th floor.
10. Building Services for Surrendered Space; Security, Access, Signage,
etc.
For purposes of this Second Amendment, any of the 17th Floor Surrendered
Space and/or the 18th, 19th and 20th floors of the Building shall individually
or collectively be referred to as the "Surrendered Space". Effective on the
Effective Date:
(a) Passenger Elevators. Three (3) passenger elevators in the high rise
elevator bank (including the two (2) passenger elevators presently serving the
18th and 19th floors) shall be dedicated to serving the Surrendered Space
exclusively. Until the earlier of the 17th Floor Surrender Space Surrender Date
and 20th Floor Surrender Date, the two (2) passenger elevators presently serving
the 18th and 19th floors shall continue to be dedicated to serving the 18th and
19th floors exclusively. Commencing on the earlier of the 17th Floor Surrender
Space Surrender Date and the 20th Floor Surrender Date, Landlord, at Landlord's
expense, shall reprogram the third such passenger elevator to so serve the
Surrendered Space. Notwithstanding the forgoing, during any period when one or
more of the remaining five (5) elevators in the high rise elevator bank is out
of service for more than one (1) Business Day (or for more than twenty-four (24)
consecutive hours over the course of two (2) consecutive Business Days) because
of repairs, maintenance or alterations, Landlord, at Landlord's expense, shall
promptly reprogram the third elevator dedicated to serving the Surrendered Space
so that it is available to serve all floors served by the high rise elevator
bank during such time as such dedicated elevator(s) are out of service;
(b) Electricity. Pursuant to Article 6 of the Lease, Tenant presently
obtains electricity directly from the utility company. Pursuant to the DTCC
Sublease and the Allstate Sublease, Tenant presently furnishes submetered
electricity to DTCC and Allstate on the 18th and 19th floors. Landlord and
Tenant have agreed that commencing as soon after the Effective Date as
reasonably practicable, Tenant shall obtain electricity from Landlord on a
submetered basis. Additionally, Landlord shall furnish electricity to any
tenants of Landlord in the Surrendered Space on a submetered basis. The forgoing
conversion is sometimes hereinafter referred to as the "Electrical Conversion".
In furtherance of the Electrical Conversion, and without limiting anything
contained in Section 6.02 of the Lease:
(i) As soon as reasonably practicable after the Effective Date, Landlord
shall cause Landlord's consultants to design and plan the Electrical Conversion.
Landlord shall furnish Tenant with copies of any progress plans and
specifications for the Electrical Conversion, as well as a copy of the final
submetering plan, for Tenant's reference.
(ii) Landlord shall order all meters and other equipment required for the
Electrical Conversion, and shall obtain all approvals and permits required for
the Electrical Conversion.
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(iii) (A) Tenant shall pay Landlord for the reasonable, actual hard and
soft costs of performing the Electrical Conversion (the "Electrical Conversion
Costs"), which Electrical Conversion Costs shall be due and payable as
additional rent. Landlord and Tenant presently estimate that the Electrical
Conversion Costs will not exceed Fifty Thousand and 00/100 Dollars ($50,000.00)
in the aggregate. If prior to awarding one or more contracts for the Electrical
Conversion Landlord determines that the Electrical Conversion Costs will likely
exceed Seventy-Five Thousand and 00/100 Dollars ($75,000.00) in the aggregate,
then such excess shall be subject to Tenant's approval, not to be unreasonably
withheld.
(B) If prior to awarding a contract for the Electrical Conversion Landlord
determines that the Electrical Conversion Costs will likely exceed Seventy-Five
Thousand and 00/100 Dollars ($75,000.00) in the aggregate, Landlord shall so
notify Tenant. Landlord's notice shall be accompanied by a reasonably detailed
final budget for the Electrical Conversion and shall identify Landlord's
proposed general contractor for the Electrical Conversion. Landlord's notice
shall also identify any general contractors who previously bid unsuccessfully on
the Electrical Conversion.
(C) Within five (5) Business Days after receipt of Landlord's notice (two
(2) Business Days in the case of any resubmission by Landlord), Tenant shall
either notify Landlord of Tenant's approval of any Electrical Conversion Costs
in excess of Seventy-Five Thousand and 00/100 Dollars ($75,000.00) in the
aggregate, or notify Landlord of Tenant's detailed written objections to
Landlord's final budget. Any such Tenant notice of objections shall identify at
least two (2) qualified alternate general contractors (not identified in
Landlord's submission or any prior Landlord submission) for the Electrical
Conversion. If Tenant fails to notify Landlord of Tenant's approval or
objections in accordance with this Paragraph 10(b)(iii)(C) within five (5)
Business Days (in case of Landlord's initial notice) or within two (2) Business
Days (in the case of any resubmission by Landlord), such Electrical Conversion
Costs in excess of Seventy-Five Thousand and 00/100 Dollars ($75,000.00) in the
aggregate shall be deemed approved.
(iv) Prior to commencing any work required for the Electrical Conversion,
Landlord shall give Tenant reasonable prior notice. Landlord shall perform all
work required for the Electrical Conversion diligently and with reasonable
promptness in the circumstances. Landlord and Tenant shall coordinate and
reasonably cooperate with respect to any temporary shut-downs or other
interferences with electrical service that may be required in order to complete
the Electrical Conversion.
(v) Tenant's payments for the Electrical Conversion Costs shall be due and
payable within thirty (30) days after Tenant's receipt of Landlord's reasonably
detailed invoices therefor, accompanied by customary back-up.
(vi) (A) Landlord shall give Tenant reasonable prior notice of the date
when Landlord anticipates that the Electrical Conversion will be operational.
(B) Commencing on the date when the Electrical Conversion is operational,
Tenant shall pay Landlord, as additional rent, the cost of electricity consumed
by Tenant as measured by one or more submeters. Tenant shall pay Landlord for
11
such submetered electricity from time to time (but not more frequently than
monthly) (i) at the rate charged to Landlord by the public utility for all
electricity purchased for the Building by Landlord from the public utility, plus
(ii) any taxes or other charges incurred or payable by Landlord in connection
therewith, plus (iii) if Landlord shall elect to engage a third party metering
company, such metering company's charges for metering, overhead and supervision.
All payments for submetered electricity shall be due and payable within thirty
(30) days after Tenant's receipt of Landlord's reasonably detailed invoices
therefor.
(C) If Landlord elects to purchase electricity through a so-called "ESCO"
or Landlord elects and is able to qualify the Building for the Energy Cost
Savings Program, Business Incentive Rate or similar discount program, Tenant
shall share in the net savings accruing from such purchase or program allocable
to electricity for the demised premises.
(vii) The total electrical capacity allocated to Tenant in accordance with
Article 6 of the Lease and Exhibit E to the Lease is hereby reduced by the
maximum capacity of the two (2) 400 amp (480/277, 3 phase) disconnect switches
serving the 18th and 19th floors. On each of the 17th Floor Surrender Space
Surrender Date and the 20th Floor Surrender Date, the total electrical capacity
allocated to Tenant in accordance with Article 6 of the Lease and Exhibit E to
the Lease shall be further reduced by the maximum capacity of the 320 amp
(480/277, 3 phase) disconnect switch serving the 17th floor in the case of the
17th Floor Surrender Space Surrender Date, and by 400 amp (480/277, 3 phase)
disconnect switch serving the 20th floor in the case of the 20th Floor Surrender
Date. Tenant acknowledges and agrees that from and after the Effective Date (and
from and after the 17th Floor Surrender Space Surrender Date and the 20th Floor
Surrender Date, as applicable), Landlord may reallocate such capacity from
Tenant to Landlord's present and future tenants. Landlord and Tenant shall
coordinate and reasonably cooperate with each other with respect to any work or
modifications that would affect the base building electrical distribution system
(including without limitation the two (2) high rise bus ducts that feed floors
12 through 23 of the Building. Landlord agrees that upon Tenant's request,
Landlord shall demonstrate to Tenant's reasonable satisfaction that any proposed
modification to the base building electrical distribution system serving the
demised premises shall not reduce the total electrical capacity allocated to
Tenant in accordance with Article 6 of the Lease and Exhibit E to the Lease as
such capacity has been modified (and may be further modified) pursuant to the
first two sentences of this Paragraph 10(b)(vi). Landlord further agrees that
(A) the 1,600 amp bus duct emanating from Switchboard C serving the 14th floor,
(B) the 400 amp service serving the studio and the auditorium on the second
floor, and (C) the 800 amp switch in Switchboard D serving panel PPK-D, shall
all remain dedicated to the exclusive use of Tenant and shall not be used by
Landlord or by any present or future tenants of Landlord.
(viii) Landlord and Tenant acknowledge and agree that following the
Effective Date and until the Electrical Conversion becomes operational, (A)
Tenant shall continue to furnish electricity to DTCC and Allstate on a
submetered basis substantially in accordance with Section 10(c) of the DTCC
Lease and Section 10(c) of the Allstate Lease, respectively, and (B) DTCC and
Allstate shall pay Tenant therefor substantially in accordance with said Section
10(c) of the DTCC Lease and Section 10(c) of the Allstate Lease.
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(c) Security, Access and Signage.
(i) Tenant shall reasonably cooperate with Landlord and occupants of the
Surrendered Space with respect to Building security procedures. Tenant, at
Tenant's expense, shall provide any occupants of the Surrendered Space with
access cards and shall cause its lobby security personnel (A) to screen visitors
to Surrendered Space, and (B) to announce any visitors to the appropriate
occupant of Surrendered Space (i.e., call the occupant of the Surrendered Space
and confirm that the visitor is permitted to take the elevator to such
occupant's premises). Additionally, if feasible in the reasonable judgment of
Tenant and if requested by an occupant of Surrendered Space, Tenant shall share
its security desk in the Building lobby with agents of one or more occupants of
Surrender Space and/or Landlord;
(ii) Commencing on the Effective Date, Landlord shall station one security
attendant at the security desk in the Building lobby serving the demised
premises, 24 hours per day, 365 days per year. Commencing as of the Effective
Date, Tenant shall reimburse Landlord for its Security Attendant Proportionate
Share (as hereinafter defined) of an amount equal to the commercially reasonable
cost, in a first class office building in Downtown Brooklyn, of stationing one
security attendant at the security desk in the Building lobby serving the
demised premises 24 hours per day, 365 days per year (to the extent that such
cost is actually incurred by Landlord, and without xxxx-up, hereinafter the
"Security Attendant Cost"), which reimbursement shall be prorated for any
portion of a year. Tenant shall reimburse Landlord for its Security Attendant
Proportionate Share as additional rent, within thirty (30) days after receipt of
Landlord's reasonably detailed invoices therefor, accompanied by applicable
invoices. For purposes of this Paragraph 10(c)(ii), "Security Attendant
Proportionate Share" shall mean (x) the then rentable square footage of the
demised premises, divided by (y) the rentable square footage of all rentable
areas served by the Building lobby serving the demised premises. Notwithstanding
anything to the contrary in this Paragraph 10(c)(ii), Tenant's reimbursement
obligation pursuant to this Paragraph 10(c)(ii) shall not exceed Eighty Thousand
and 00/100 Dollars ($80,000.00) for the period beginning on the Effective Date
and ending on February 28, 2006.
(iii) Without limiting anything contained in this Paragraph 10, commencing
on the Effective Date and continuing for the balance of the initial term of the
Lease, the Extension Term and any Renewal Term, Tenant shall provide to
Landlord's tenants access to electrical and telephone closets, access to shaft
space and risers, access to the ground floor lobby, escalators, second floor
lobby and high rise elevator bank and access to Tenant's cafeteria on terms and
conditions substantially as favorable as the terms and conditions set forth in
Section 10(c), Section 10(d) and Section 20 of the DTCC Sublease and Allstate
Sublease. The forgoing rights and privileges may be conditioned on substantial
compliance by tenants of Landlord (and by their employees, representatives,
contractors, vendors, clients and guests) with obligations not materially more
onerous than the obligations of DTCC and Allstate (and their employees,
representatives, contractors, vendors, clients and guests) set forth in Section
10(c), Section 10(d) and Section 20 of the DTCC Sublease and the Allstate
Sublease, respectively.
(iv) Without limiting anything contained in this Paragraph 10, commencing
on the Effective Date and continuing for the balance of the initial term of the
Lease, the Extension Term and any Renewal Term, Tenant shall provide to
Landlord's tenants reasonable portable identification signage in the ground
floor and second floor lobbies.
13
(d) Riser and Shaft Space for Telecommunications. Commencing as soon as
reasonably practicable after the Effective Date, Landlord and Tenant shall
perform certain work and undertake certain obligations in order to provide
Tenant and Landlord's tenants with separate shaft and riser space for
telecommunications, all in accordance with the following:
(i) Tenant's Telecomunications Work.
(A) Within sixty (60) days after the Effective Date Tenant, at Tenant's
expense, shall complete the following ("Tenant's Telcom Work"):
(i) Installation of drywall partitions in the "A" and "B" telephone closets
on floors 17 through 20 (also designated as the "A" and "B" telephone closets on
the Building plans), as such partitions are shown on Exhibit G. The purpose of
such partitions is to separate the Tenant portion of each such telephone closet
from the non-Tenant portion of each such telephone closet; and
(ii) Removal of all of Tenant's telecommunications equipment, cabling and
risers (collectively, "Tenant's Telcom Equipment") from the non-Tenant portion
of each such telephone closet.
(B) If Tenant so elects, Tenant may perform similar work and effect similar
removals, at Tenant's expense, in any or all of the "A" and "B" telephone
closets in the balance of the demised premises.
(C) All work to be performed by Tenant pursuant to this Paragraph 10(d)
shall be performed in accordance with the applicable provisions of Article 8 of
the Lease.
(ii) Landlord's Telecommunications Work.
(A) Landlord shall furnish all equipment and perform all work necessary in
order to provide the following ("Landlord's Telcom Work"):
(1) One 4" conduit extending from the C1 demarc room to the non-Tenant
portion of telephone closet "B" on the 17th floor for use by tenants of
Landlord.
(2) One 4" conduit extending from the C1 demarc room to the non-Tenant
portion of telephone closet "B" on the 20th floor for use by tenants of
Landlord.
(3) One 4" conduit extending from the C1 demarc room to the Tenant portion
of telephone closet "B" on the 14th floor for use by Tenant. If Tenant elects to
extend such conduit from the Tenant portion of telephone closet "B" on the 14th
floor to a location on the 14th floor portion of the demised premises, such
extension shall be at Tenant's expense.
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(4) The above conduit installations shall include lockable pull boxes
installed at least every fifth (5th) floor and a 200 lb. pull string for future
cable pulls.
(5) Restoration of all areas of the demised premises and the Building
affected by Landlord's Telcom Work.
(B) As soon as reasonably practicable after the Effective Date, Landlord
shall cause Landlord's consultants to design and plan Landlord's Telcom Work.
Landlord shall furnish Tenant with copies of any progress plans and
specifications for Landlord's Telcom Work, as well as a copy of the final plans
and specifications, for Tenant's approval, not to be unreasonably withheld. If
Tenant fails to approve any such plans and specifications in writing (or provide
specific written comments thereto) within five (5) Business Days after Tenant's
receipt thereof, such plans and specifications shall be deemed approved.
(C) Landlord shall obtain all approvals and permits required for Landlord's
Telcom Work.
(D) Landlord shall obtain at least three (3) bids for Landlord's Telcom
Work and shall award the contract to the lowest responsible bidder.
(E) (1) Tenant shall pay Landlord for the reasonable, actual hard and soft
costs of performing Landlord's Telcom Work (the "Landlord's Telcom Work Costs"),
which Landlord's Telcom Work Costs shall be due and payable as additional rent.
Landlord and Tenant presently estimate that Landlord's Telcom Work Costs will
not exceed One Hundred Seventy-Five Thousand and 00/100 Dollars ($175,000.00) in
the aggregate. If prior to awarding a contract for Landlord's Telcom Work
Landlord determines that Landlord's Telcom Work Costs will likely exceed Two
Hundred Thousand and 00/100 Dollars ($200,000.00) in the aggregate, then such
excess shall be subject to Tenant's approval, not to be unreasonably withheld.
(2) If prior to awarding a contract for Landlord's Telcom Work Landlord
determines that Landlord's Telcom Work Costs will likely exceed Two Hundred
Thousand and 00/100 Dollars ($200,000.00) in the aggregate, Landlord shall so
notify Tenant. Landlord's notice shall be accompanied by a reasonably detailed
final budget for Landlord's Telcom Work and shall identify Landlord's proposed
general contractor for Landlord's Telcom Work. Landlord's notice shall also
identify any general contractors who previously bid unsuccessfully on Landlord's
Telcom Work.
(3) Within five (5) Business Days after receipt of Landlord's notice (two
(2) Business Days in the case of any resubmission by Landlord), Tenant shall
either notify Landlord of Tenant's approval of any Landlord Telcom Work Costs in
excess of Two Hundred Thousand and 00/100 Dollars ($200,000.00) in the
aggregate, or notify Landlord of Tenant's detailed written objections to
Landlord's final budget. Any such Tenant notice of objections shall identify at
least two (2) qualified alternate general contractors (not identified in
Landlord's submission or any prior Landlord submission) for Landlord's Telcom
Work. If Tenant fails to notify Landlord of Tenant's approval or objections in
15
accordance with this Paragraph 10(d)(ii)(E)(3) within five (5) Business Days (in
case of Landlord's initial notice) or within two (2) Business Days (in the case
of any resubmission by Landlord), such Landlord Telcom Work Costs in excess of
Two Hundred Thousand and 00/100 Dollars ($200,000.00) in the aggregate shall be
deemed approved.
(E) Landlord shall perform Landlord's Telcom Work diligently and with
reasonable promptness in the circumstances.
(F) Tenant's payments for Landlord's Telcom Work Costs shall be due and
payable within thirty (30) days after Tenant's receipt of Landlord's reasonably
detailed invoices therefor, accompanied by customary back-up.
(iii) Telcom Work Obligations of Landlord and Tenant.
(A) Landlord and Tenant shall each give the other reasonable prior notice
before commencing Landlord's Telcom Work and Tenant's Telcom Work, respectively.
Landlord and Tenant shall each give the other prompt notice of completion of
Landlord's Telcom Work and Tenant's Telcom Work, respectively.
(B) Landlord and Tenant shall coordinate and reasonably cooperate with
respect to temporary shutdowns, staging and otherwise as required for
performance of Landlord's Telcom Work and Tenant's Telcom Work in accordance
with good construction practices.
(C) Landlord agrees that Tenant's existing UPS panels located in the 17th
floor and 18th floor "A" electrical closets, as well as the generator panel
located in the 18th floor "A" electrical closet, shall remain intact and not be
disturbed, impaired or altered by Landlord or Landlord's tenants.
(iv) Relocation of Tenant's Telcom Equipment. From and after the Effective
Date, Tenant, at Tenant's expense, shall relocate such Tenant's Telcom Equipment
as may be reasonably necessary to permit the 4" conduits referred to in
Paragraph 10(d)(ii)(A) of this Second Amendment, as well as future risers,
conduits and cables of Landlord's tenants, to pass through an area within the
"B" telephone closets on each floor reasonably designated by Landlord and Tenant
and shown on the final plans and specifications referred to in Paragraph
10(d)(ii)(B) of this Second Amendment.
(v) Permitted Access.
(A) On reasonable prior notice, Tenant shall afford Landlord reasonable
access to the 12th floor portion of the demised premises to install additional
conduit and cabling above the dropped ceiling on the 12th floor. The purpose of
such additional conduit and cabling is to create additional paths for
telecommunications cabling between the low rise "B" telephone closets and the
high rise "B" telephone closets.
(B) On reasonable prior notice, Tenant shall afford Landlord or Landlord's
tenants reasonable access to all "B" telephone closets within the demised
premises, in order to perform installations or make repairs.
16
(C) On reasonable prior notice, Landlord shall afford Tenant reasonable
access to the "A" and "B" telephone closets located within any Surrendered
Space.
(e) Wet Stack. Landlord shall not remove (or permit to be removed) the
north wet stack currently serving the demised premises. Landlord reserves the
right to permit Landlord's tenants to tap such wet stack for waste and water
requirements.
(f) "Up Lighting".
(i) Within thirty (30) days after the Effective Date, Landlord shall pay
Tenant Forty-One Thousand Four Hundred Twenty-One and 00/100 Dollars
($41,421.00) in full satisfaction of Landlord's obligations, from the Term
Commencement Date through and including February 28, 2005, to reimburse Tenant
for a portion of the electricity costs incurred for accent lighting for the
building exterior emanating from the 18th floor ("Up Lighting").
(ii) From and after the Effective Date, from time to time but not more
frequently than monthly, Tenant shall reimburse Landlord for fifty percent (50%)
of the electricity costs for such Up Lighting at the then applicable rate(s), as
electrical consumption for such Up Lighting is determined by dedicated
submeter(s).
11. Cleaning.
(a) From and after the Effective Date, Tenant shall have the right, from
time to time (but not more than once in any period of twelve (12) consecutive
months), to submit proposed cleaning specifications for the demised premises to
Landlord (which cleaning specifications shall be subject to Landlord's
reasonable approval) with a request that Landlord provide a cost estimate for
providing such cleaning services in accordance with such specifications.
Landlord shall use good faith efforts to deliver a cost estimate (the "Cleaning
Costs") based upon such proposed cleaning specifications to Tenant within thirty
(30) days after receipt of Tenant's request. If Tenant elects to have Landlord
provide such cleaning services by giving written notice to Landlord to such
effect within sixty (60) days after Tenant's receipt of the Cleaning Costs, then
effective upon the date when Landlord or an affiliate of Landlord begins
providing such cleaning services, Tenant shall reimburse Landlord, within thirty
(30) days after receipt of Landlord's invoices therefor, for Landlord's costs of
providing such cleaning services as adjusted from time to time.
(b) For so long as Tenant retains responsibility for providing cleaning
services to the demised premises, Tenant shall clean the first and second floor
lobbies serving the demised premises to the standards of a first class office
building in Downtown Brooklyn. If within thirty (30) days after receipt of
Landlord's notice that Tenant shall have failed to clean the first and second
floor lobbies serving the demised premises to such standard Tenant shall have
failed to achieve such standard, then Landlord may notify Tenant of the date
when Landlord shall assume responsibility for providing cleaning services to the
first and second floor lobbies serving the demised premises. From and after the
date when Landlord shall have assumed such responsibility, Tenant shall pay
Landlord, as additional rent and within thirty (30) days after receipt of
Landlord's invoices therefor, all commercially reasonable costs of providing
such cleaning services. Any dispute about the application of this Paragraph
11(b) may be submitted to arbitration pursuant to Article 38 of the Lease,
before an arbitrator selected in accordance with Section 38.01(b) of the Lease.
17
12. Tenant's HVAC System. Tenant shall have the right, by notice to
Landlord, to request an estimate of Landlord's then costs to operate, maintain
and repair Tenant's HVAC System. Landlord shall furnish such estimate as soon as
reasonably practicable after receipt of Tenant's request. Within ninety (90)
days after Landlord's delivery to Tenant of such estimate, Tenant shall notify
Landlord whether it elects to engage Landlord for such services. Any failure
timely to send such notice shall be deemed a waiver of any further right to
elect to engage Landlord to perform such services. If Tenant timely elects to
engage Landlord to perform such services, then Landlord and Tenant shall enter
into a mutually acceptable service and maintenance agreement for the performance
of such services, and commencing on the date provided therefor in such service
and maintenance agreement, Landlord shall, at Tenant's sole cost and expense,
operate, maintain and repair Tenant's HVAC System. Tenant shall pay Landlord's
costs of such operation, repair and maintenance within thirty (30) days after
receipt of Landlord's reasonably detailed invoices therefor or as otherwise
provided in such service and maintenance agreement. Notwithstanding anything to
the contrary in this Paragraph 12, if and to the extent any occupant(s) of
Surrendered Space use cooling from Tenant's HVAC System, Landlord shall credit
Tenant for the costs of operation, maintenance and repair of Tenant's HVAC
System attributable to such use of Tenant's HVAC System by such occupant(s) of
Surrendered Space, which credit shall be based on so-called "BTU" or "flow"
meters (or a similar method).
13. Right of First Offer on Surrendered Space
(a) Provided Tenant is not in default of any material obligation under this
Lease beyond any applicable notice and cure period as of the date of the giving
of Tenant's Election Notice (as hereinafter defined) or as of the First Office
Space Inclusion Date (as hereinafter defined), if at any time during the term of
this Lease after surrender of all or any portion of the Surrendered Space and
the expiration of the initial reletting of such Surrendered Space (including any
renewal or extension term of such reletting, and including expiration of the
DTCC Lease in the case of the eighteenth (18th) floor and expiration of the
Allstate Lease in the case of the nineteenth (19th) floor), any such Surrender
Space is reasonably anticipated by Landlord to become available for leasing
within the following twelve (12) months, then Landlord, before offering any such
Surrendered Space consisting of the 17th Floor Surrender Space, the entire
eighteenth (18th) floor, the entire nineteenth (19th) floor or the entire
twentieth (20th) floor (hereinafter, the "Offered Space") to any third party,
shall offer to Tenant, subject to the provisions of this Paragraph 13, the right
to add such Offered Space to the demised premises upon all the terms and
conditions of this Lease, except that:
(i) the fixed annual rent shall be the then fair market rent as reasonably
determined by Landlord, but in no event less than the then escalated rent for
the demised premises;
(ii) Tenant's Proportionate Share for Tenant's Tax Payment and Tenant's
Operating Payment shall be increased by the amounts set forth in Paragraph
6(d)(iii) (in the case of the 17th Floor Surrender Space), 3.25% (in the case of
18
Tenant's Proportionate Share for Tenant's Tax Payment) and 3.54% (in the case of
Tenant's Proportionate Share for Tenant's Operating Payment) for each of the
18th and 19th floors, and/or Paragraph 9(d)(iii)(in the case of the 20th floor),
as applicable; and
(iii) Landlord's offer (hereinafter called the "First Offer Notice") shall
specify the anticipated commencement date for the Offered Space and all other
material economic terms with respect to the Offered Space.
(b) Tenant shall elect whether to accept the offer set forth in the First
Offer Notice by delivering to Landlord an unconditional acceptance (hereinafter
called "Tenant's Election Notice") or rejection of such offer within thirty (30)
days after delivery by Landlord of the First Offer Notice to Tenant (the
"Acceptance Period"). Provided Tenant timely accepts Landlord's offer, the
Offered Space shall be added to and included in the demised premises on the
later to occur of (i) the first (1st) Business Day after Landlord receives
Tenant's Election Notice, or (ii) the date such First Offering Space is
available for Tenant's possession in the condition required by the Offer Notice
(such date herein called the "First Offer Space Inclusion Date"). TIME IS OF THE
ESSENCE with respect to the giving of Tenant's Election Notice.
(c) If Tenant does not accept (or fails timely to accept in accordance with
Paragraph 13(b)) an offer made by Landlord pursuant to the provisions of this
Paragraph 13 with respect to any Offered Space, Tenant shall be deemed to have
irrevocably waived its rights under this Paragraph 13 with respect to such offer
for such Offered Space, provided, however, that (i) before Landlord may lease
such Offered Space to a third party for a net effective rental (using the
Interest Rate) which (taking into account any rent or tenant improvement
allowance concessions offered to such proposed tenant and any work which would
be performed by Landlord for such proposed tenant) shall be more than ten
percent (10%) less than the rental set forth in the First Offer Notice with
respect to such Offered Space, or (ii) if Landlord fails to enter into a binding
lease with a third party within nine (9) months after expiration of the
Acceptance Period, then, in either case, Landlord shall again offer the Offered
Space to Tenant in accordance with the provisions of this Paragraph 13 on the
basis of the then applicable terms, except that in any such case Tenant shall be
obligated to deliver Tenant's Election Notice within ten (10) days after receipt
of Landlord's First Offer Notice. If a lease is executed with a third party for
such Offered Space, then upon expiration or earlier termination of such lease
(including expiration or earlier termination of extensions or renewals thereof,
if any), Tenant's rights under this Paragraph 13 with respect to such Offered
Space shall again become operative with respect to such Offered Space.
(d) The provisions of this Paragraph 13 shall be effective only if, on the
date Tenant delivers Tenant's Election Notice, the original tenant named herein
(i.e., The Brooklyn Union Gas Company) and/or its subsidiaries or affiliates
is/are in physical occupancy of and actually operating in at least seventy-five
percent (75%) of the usable area of the demised premises as of the Effective
Date (excluding, however, the usable areas of the 18th and 19th floors) on the
date of Tenant's Election Notice.
(e) Any exercise by Tenant of this right of first offer shall be subject
and subordinate to (i) DTCC's renewal option set forth in Section 21 of the DTCC
Lease, and (ii) Allstate's right of first offer set forth in Section 23 of the
Allstate Lease.
19
(f) On the First Offer Space Inclusion Date and unless otherwise specified in
the First Offer Notice, Tenant shall accept possession of the Offered Space in
its then "as is" condition.
14. Tenant Refurbishment Allowances
(a) Subject to the terms and conditions set forth below, (i) commencing on
the Effective Date, Landlord shall reimburse Tenant from time to time for up Six
Million Seven Hundred Six Thousand Two Hundred Eighty and 00/100 Dollars
($6,706,280.00),[1] and (ii) commencing on March 1, 2018, Landlord shall
reimburse Tenant from time to time for up to One Million Six Hundred Seventy-Six
Thousand Five Hundred Seventy and 00/100 Dollars ($1,676,570.00)[2]
(individually, a "Tenant Refurbishment Allowance", and collectively, the "Tenant
Refurbishment Allowances") for the following costs incurred and paid by Tenant
in connection with refurbishment work performed by Tenant in the then Office
Space ("Tenant Refurbishment Work"): labor, materials, architectural,
engineering, expediting and other design consulting fees, project management,
permit and approval costs and furniture, fixtures and equipment. In the event
that the cost and expense of all such items shall exceed the amount of the
applicable Tenant Refurbishment Allowance, Tenant shall be entirely responsible
for such excess.
(b) Notwithstanding anything to the contrary in Paragraph 14(a):
(i) In no event shall Landlord be obligated to disburse more than twenty
percent (20%) of a Tenant Refurbishment Allowance for so-called "soft costs"
such as architectural, engineering, expediting and other design consulting fees,
project management, permit and approval costs and furniture, fixtures and
equipment.
(ii) In no event shall Landlord be obligated to disburse any portion of a
Tenant Refurbishment Allowance for work to be performed in the 17th Floor
Surrender Space, on the 20th floor or in connection with the surrender of either
or both of the forgoing pursuant to Paragraph 6, or 9 of this Second Amendment.
Notwithstanding anything to the contrary in the preceding sentence, (A) if
Tenant fails timely to surrender the 17th Floor Surrender Space pursuant to
Paragraph 6, then Tenant shall thereafter be entitled to receive a portion of
the Tenant Refurbishment Allowances for Tenant Refurbishment Work performed on
the 17th floor, and (B) if Tenant fails timely to surrender the 20th floor
pursuant to Paragraph 9, then Tenant shall thereafter be entitled to receive a
portion of the Tenant Refurbishment Allowances for Tenant Refurbishment Work
performed on the 20th floor.
(iii) All requisitions and supporting back up for initial ($6,706,280.00)
Tenant Refurbishment Allowance shall be submitted on or before December 31,
2009. Landlord shall not be obligated to disburse any as yet undisbursed portion
of the initial Tenant Refurbishment Allowance against requisitions submitted
after December 31, 2009.
(iv) All requisitions and supporting back up for the second ($1,676,570.00)
Tenant Refurbishment Allowance shall be submitted on or before March 1, 2020.
Landlord shall not be obligated to disburse any as yet undisbursed portion of
the second Tenant Refurbishment Allowance against requisitions submitted after
March 1, 2020.
--------
1 Calculated as follows: 450,000 rsf - 27,503 rsf - (3 x 29,061 rsf) =
335,314 rsf x $20 = $6,706,280.
2 Calculated as follows: 450,000 rsf - 27,503 rsf - (3 x 29,061 rsf) =
335,314 rsf x $5 = $1,676,570.
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(v) All Tenant Refurbishment Work shall be performed in accordance with the
applicable provisions of Article 8 of the Lease.
(vi) The design consultants and contractors listed on Exhibit H annexed
hereto are hereby approved by Landlord.
(c) Landlord shall disburse from time to time, but not more often than once
in any calendar month, to Tenant or directly to Tenant's contractors (if so
requested by notice to Landlord) and within thirty (30) days after receipt of
Tenant's requisition complying with this Paragraph 14(c) or complying with
Paragraph 14(d) therefor, that portion of the applicable Tenant Refurbishment
Allowance equal to the amount set forth in Tenant's requisition, provided
however, that no advance shall be made if, and for so long as, Tenant shall be
in monetary default under this Lease beyond any applicable notice and cure
period. No advance shall be made until receipt of a request therefore from
Tenant and submission by Tenant of the following:
(i) An AIA Form G-702 certificate of payment certified by Tenant and
Tenant's architect (if Tenant has engaged an architect for the Tenant
Refurbishment Work in question), stating or setting forth (A) an itemized
account of the sums paid by Tenant for amounts justly due to all contractors,
subcontractors, materialmen, engineers, architects and other persons who have
rendered services or furnished materials in connection with Tenant's
Refurbishment Work, (B) if and to the extent that plans and specifications are
required by this Lease or pursuant to Legal Requirements for the applicable
Tenant Refurbishment Work, that the work described in the certificate has been
substantially completed in accordance with such plans and specifications
previously approved by Landlord, (C) that Tenant has not received notice of the
filing with respect to the demised premises or the Building, of any vendor's,
mechanic's, laborer's, materialmen's or other liens arising out of the Tenant
Refurbishment Work which have not been discharged or bonded of record, (D) that
to the best of Tenant's knowledge, Tenant has complied with all of the material
conditions set forth in this Lease applicable to Tenant Refurbishment Work
reflected in the requisition then pending, and (E) that to the best of Tenant's
knowledge, Tenant has materially complied with Legal Requirements applicable to
Tenant Refurbishment Work reflected in the requisition then pending; and
(ii) Partial lien waivers, receipted invoices or such other proof of
payment as Landlord shall reasonably require for all work done and materials
supplied with respect to any prior requisitions for which Tenant previously
applied for payment.
(d) Upon completion of the applicable Tenant Refurbishment Work and
together with Tenant's final requisition pursuant to this Paragraph 14, Tenant
shall deliver (i) a certificate signed by Tenant's architect (if the services of
an architect were required pursuant to Legal Requirements for the applicable
Tenant Refurbishment Work) and an officer of Tenant certifying that such Tenant
Refurbishment Work has been substantially completed in accordance with the
approved plans and specifications, (ii) all Buildings Department sign-offs,
inspection certificates and any and all permits required to be issued in
connection therewith in accordance with applicable Legal Requirements, and (iii)
a general release from all contractors and subcontractors performing such Tenant
Refurbishment Work, releasing Landlord and Tenant from any and all liability for
any work or materials.
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(e) If Landlord fails to pay any portion of Tenant's Refurbishment
Allowance within twenty (20) days after receipt of Tenant's notice that Landlord
has failed to pay such portion of Tenant's Refurbishment Allowance within thirty
(30) days after Landlord's receipt of a requisition therefor in accordance with
Paragraph 14(c) or (d), then interest shall accrue on such portion of Tenant's
Refurbishment Allowance, at a rate equal to the Interest Rate, from the
thirty-first (31st) day after Landlord's receipt of such requisition to and
including the date of payment.
(f) If requested by Landlord in connection with any Tenant Refurbishment
Work, Tenant shall reasonably cooperate with Landlord's application for benefits
under the Industrial-Commercial Development Incentive Program (New York City
Local Law 1984, No. 71, N.Y.C. Administrative Code Section 11-256, et. seq. or
any similar incentive program (hereinafter "ICIP"), such cooperation to include
compliance with all filing requirements and other applicable provisions of the
ICIP law(s) and the rules and regulations promulgated thereunder, as the same
may be amended.
15. Brokerage. Landlord and Tenant each represents and warrants to the
other that it has not dealt with any real estate broker, finder or like agent
other than Newmark & Company Real Estate, Inc. and Ascot Brokerage, Ltd. (the
"Brokers") in connection with this Second Amendment and the transactions
contemplated hereby, and each agrees to indemnify, defend and hold the other
harmless from and against any and all loss, costs, damage and expense,
including, without limitation, reasonable attorneys' fees and disbursements,
incurred by the other by reason of any claims of, or liability to, any broker
other than the Brokers who shall claim to have dealt with it in connection with
this Second Amendment or the transactions contemplated hereby. Landlord shall
pay the Brokers pursuant to separate agreements. This Paragraph 15 shall survive
the expiration or earlier termination of the Lease.
16. Additional Deleted Provisions. In addition to the deletion of certain
provisions of the Lease pursuant to Paragraph 4(c) of this Second Amendment,
effective on the Effective Date the following provisions are hereby deleted from
the Lease: the last sentence of Section 26.01, Article 41, Article 43, Section
45.01(e)(i), the reference to Article 47 in Section 45.01(e)(ii), Section 45.04,
Section 45.05, Article 47, Exhibit L, Exhibit Q and Exhibit V to the Original
Lease, and Paragraphs 5, 7 and 9(b) of the First Amendment.
17. City Incentives.
(a) Landlord and Tenant acknowledge and agree that Tenant reserves the
right to negotiate certain agreements with the Deputy Mayor for Economic
Development and Rebuilding and/or the New York City Economic Development
Corporation (and/or other agencies or instrumentalities of New York City) for
certain economic incentives with respect to the Lease and this Second Amendment
(the "City Incentives").
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(b) Landlord shall afford reasonable, good faith cooperation to Tenant in
connection with Tenant's efforts to secure implementation of the City
Incentives, provided, that Landlord shall not be obligated to incur any costs
(including without limitation reasonable attorneys fees and disbursements),
incur any losses, or subject itself to potential liability thereby. Landlord's
reasonable, good faith cooperation shall extend to the execution of applications
and related documents that have been prepared by Tenant and that are necessary
in Tenant's reasonable judgment in order for Tenant to obtain and secure
implementation of the City Incentives.
(c) Tenant acknowledges that this Second Amendment is not conditioned upon
Tenant's ability to secure the implementation of any City Incentives.
18. Notices. Section 32.01 of the Lease is deleted in its entirety and
there is substituted in lieu thereof the following:
"Any notice or demand, consent, approval or disapproval, statement or
other communication (a "Notice" or "notice") required to be given by the
terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or by Tenant to Landlord, shall be
in writing. Unless otherwise required by such law or regulations, such
Notice shall be (i) delivered by hand with receipt acknowledged, (ii)
mailed by United States mail, enclosed in a securely sealed postpaid
wrapper by registered or certified mail, return receipt requested, or (iii)
delivered by Federal Express or any other reputable overnight delivery
service, with receipt acknowledged, to Landlord or Tenant, as the case may
be, at the address of such party set forth below:
If to Landlord:
Forest City Xxx Street Associates, L.P.
c/o Forest City Xxxxxx Companies
Xxx Xxxxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
With copies to:
Forest City Xxxxxx Companies
Xxx Xxxxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Forest City Enterprises, Inc.
000 Xxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Arent Fox PLLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
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If to Tenant:
KeySpan Corporation
000 Xxxx Xxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Vice President
With a copy to:
KeySpan Corporation
Xxx XxxxxXxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Office of the General Counsel
And in the case of a claimed default, to:
Cullen and Xxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices.
19. Parking Area. Landlord acknowledges that the Parking Area (as defined
in the Lease) includes 1,600 square feet on the C-1.5 level for the parking of
Tenant's vans or cars.
20. Payment Due Landlord. On or before the date which is thirty (30) days
after Landlord's completion, to the reasonable satisfaction of Tenant, of roof
repairs previously discussed by Landlord and Tenant, Tenant shall pay Landlord,
as additional rent, an amount equal to (a) Forty-Two Thousand and 00/100 Dollars
($42,000.00), minus (b) the reasonable, actual costs of repairing any damage
caused by roof leaks on the 23rd floor of the demised premises, as such costs
are evidenced by reasonably detailed back-up (including without limitation
invoices) therefor.
21. Miscellaneous.
(a) Landlord and Tenant each hereby confirm to the other (i) that the Lease
is in full force and effect and has not been modified or amended except as
herein provided, (ii) that to the best of such party's knowledge, the other is
not now in default under the Lease beyond applicable notice and grace periods,
and that such party knows of no event which, with notice or the passage of time
or both would constitute such a default, and (iii) that Tenant has made no
demand against Landlord and has no present right to make such a demand with
respect to charges, liens, defenses, counterclaims, offsets, claims or credits
against the payment of fixed annual rent or additional rent or the performance
of Tenant's obligations under the Lease, except as permitted by the terms and
provisions of the Lease.
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(b) As modified by this Second Amendment, the Lease and all covenants,
agreements, terms, provisions and conditions thereof shall continue in full
force and effect and Landlord and Tenant hereby ratify and confirm the
covenants, agreements, terms, provisions and conditions thereof.
(c) Landlord and Tenant, each upon request of the other, at any time and
from time to time hereafter and without further consideration, shall execute,
acknowledge and deliver to the other any instruments or documents, or take such
further actions, as shall be reasonably required or as may be necessary to
assure each party the full benefits of this Second Amendment.
(d) This Second Amendment shall not be binding upon or enforceable against
either party unless and until a fully executed counterpart of this Second
Amendment shall have been unconditionally delivered to Tenant.
(e) This Second Amendment supersedes all prior discussions and
correspondence between the parties and supersedes any and all prior
understandings between the parties concerning the subject matter of this Second
Amendment. All prior and contemporaneous agreements, if any, between Landlord
and Tenant with respect to the subject matter of this Second Amendment are
merged into this Second Amendment, which constitutes the complete, final and
entire agreement of the parties with respect the subject matter. Neither party
shall be bound by any terms, covenants, conditions or representations not
expressly contained herein.
(f) This Second Amendment may not be waived or changed orally, and may be
amended only by an agreement in writing signed by the party against whom
enforcement of any such change is sought.
(g) Landlord and Tenant acknowledge and agree that this Second Amendment
has been drafted jointly by the parties and that this Second Amendment shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Second Amendment to be drafted.
(h) This Second Amendment shall be binding upon and inure to the benefit of
(i) Landlord, and the officers, employees, agents, directors partners,
successors and assigns of Landlord and (ii) Tenant, and the officers, employees,
agents, directors, partners, successors stockholders, successors and permitted
assigns of Tenant.
(i) This Second Amendment shall be interpreted and enforced in accordance
with the laws of the State of New York applicable to negotiated agreements
executed and to be performed fully therein.
(j) This Second Amendment may be executed in counterparts.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties to this Second Amendment have caused this
Second Amendment to be executed as of the day and year first above written.
LANDLORD:
FOREST CITY XXX STREET ASSOCIATES, L.P.
By: RRG B.U.G. Associates, L.P.
General Partner
By: RRG B.U.G., Inc.,
General Partner
By: /s/
---------------------
Xxxxx X. Xxxxxxxx
Senior Vice President
TENANT:
THE BROOKLYN UNION GAS COMPANY
By: /s/
---------------------
Xxxx X. Xxxxxx, Xx.
Senior Vice President
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