FOURTH AMENDMENT TO LEASE
EXHIBIT 10.49
FOURTH AMENDMENT TO LEASE
AGREEMENT, dated as of the 25th day of July, 2006, between 120 BROADWAY
HOLDINGS, LLC, a Delaware limited liability company, having an office at 7 World Trade Center,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Landlord”), and TOWER GROUP, INC., a
Delaware corporation, having an office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Tenant”).
STATEMENT OF FACTS
By Lease dated as of February 19, 1997 (the “Original Lease”), by and between Broadpine Realty
Holding Company, Inc. (“BRHC”) (as predecessor-in-interest to Landlord) and Tower Insurance Company
of New York (“TICNY”), BRHC leased to TICNY and TICNY hired from BRHC certain premises in the
building known as 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx (the “Building”), consisting of a portion of the
fourteenth (14th) floor of the Building, for a term ending on May 31, 2008. By
Modification of Indenture of Lease dated as of May (no day), 1998 (the “First Amendment”), TICNY
leased the balance of the rentable area of the fourteenth (14th) floor (the “Fourteenth Floor
Premises”) in the Building. By the Second Amendment to Lease dated as of January 15, 2003 (the
“Second Amendment”), TICNY leased a portion of the seventeenth (17th) floor (the
“Seventeenth Floor Premises”) of the Building. By the Third Amendment to Lease dated as of
September 1, 2005 (the “Third Amendment”), TICNY leased a portion of the thirtieth
(30th) floor and the entire thirty-first (31st) floor of the Building,
surrendered the Fourteenth Floor Premises and the Seventeenth Floor Premises, and extended the term
of the Lease to June 30, 2021. By Assignment of Lease dated as of June 30, 2006 (the “Assignment
Agreement”), TICNY assigned all of its right, title and interest as tenant under the Lease to Tower
Group, Inc.
The Original Lease, the First Amendment, the Second Amendment, the Third Amendment, the
Assignment Agreement and any and all other amendments and modifications thereof shall hereinafter
be collectively referred to as the “Lease”. Landlord and Tenant now desire to further amend the
Lease upon the terms hereinafter contained.
NOW, THEREFORE, in consideration of the Lease and the mutual covenants herein contained,
Landlord and Tenant hereby agree as follows:
1. DEFINED TERMS:
Unless the context otherwise clearly indicates a contrary intent or unless specifically
otherwise provided herein, each term used in this Agreement which is defined in the Lease shall be
deemed to have the meaning set forth in the Lease.
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2. FOURTH PREMISES:
A. For the purposes of this Agreement, the term “Fourth Premises” shall mean that certain
portion of the thirtieth (30th) floor of the Building as approximately indicated by
hatched markings on the rental plan annexed hereto as Exhibit “A” and made a part hereof; and
B. Effective throughout the period (the “Fourth Premises Term”) commencing as of July 1, 2006
(the “Fourth Premises Commencement Date”) (which date may be subject to postponement pursuant to
Paragraph 4.J. of this Agreement) and ending as of the Expiration Date (as extended in this
Agreement), both dates inclusive:
(i) the Lease shall be amended by adding the Fourth Premises to the Demised Premises; and
(ii) Landlord leases to Tenant and Tenant hires from Landlord the Fourth Premises, and
Tenant’s use and occupy of the Fourth Premises and its obligations with respect thereto shall be in
accordance with the terms, provisions, conditions and agreements contained in the Lease, except as
otherwise expressly provided in this Agreement.
3. DELIVERY OF POSSESSION OF FOURTH PREMISES:
If Landlord is unable to give possession of the entire Fourth Premises to Tenant on the Fourth
Premises Commencement Date with Landlord’s Base Work substantially completed because of any reason
beyond Landlord’s reasonable control, (i) Landlord shall not be subject to any liability for
failure to give possession on said date, (ii) the validity of this Agreement and the Lease shall
not be impaired under such circumstances, (iii) the same shall not be construed in any way to
extend the Fourth Premises Term or the Term of the Lease, (iv) the Fourth Premises Commencement
Date shall be deemed extended until the date on which Landlord shall have tendered delivery of
possession thereof to Tenant with Landlord’s Base Work substantially completed (provided Tenant is
not responsible for the inability to obtain possession), and (v) Landlord shall promptly and
diligently take such action as may be necessary, in Landlord’s reasonable opinion, to substantially
complete Landlord’s Base Work. The provisions of this Paragraph are intended to constitute “an
express provision to the contrary” within the meaning of Section 223-a of the New York Real
Property Law.
4. TENANT’S FOURTH PREMISES WORK; LANDLORD’S BASE WORK:
A. Tenant, at Tenant’s expense, shall cause its architect, TPG Architecture, LLP to prepare a
final set of plans (the “Plans”) for the construction and finishing of the Fourth Premises. The
Plans shall (i) comply with all Legal Requirements, (ii) contain complete information (including
engineering required) and be in sufficient detail so as to be accepted for filing by the New York
City Building Department, and (iii) show the proposed locations of all mechanical, electrical and
plumbing equipment, partitions, ceilings, entrances, doors, lighting, fixtures, receptacles and
switches, and other installations to be installed in the Fourth Premises. The Plans shall be
submitted by Tenant to Landlord for Landlord’s approval. Any revisions to the Plans required by
Landlord shall be performed by Tenant within five (5) business days after demand by Landlord.
Landlord agrees to respond to any written request for approval of a complete set of Tenant’s Plans
within ten
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(10) business days after Landlord’s receipt thereof. Tenant shall incorporate into
Tenant’s Plans those changes, revisions and/or additions reasonably required by Landlord, and shall
resubmit the revised Tenant’s Plans to Landlord for Landlord’s approval. Landlord agrees to
respond to any written request for approval of revised Plans within five (5) business days after
Landlord’s receipt thereof. The cost of preparing (and revising, if necessary) Tenant’s Plans shall
be borne entirely by Tenant. Tenant shall reimburse Landlord, as additional rent, for any actual
out-of-pocket fees and expenses incurred by Landlord in connection with Landlord’s review of
Tenant’s Plans and any revisions thereto by bona fide third parties. Landlord’s approval of any
plans or specifications shall not be deemed to constitute and shall not relieve Tenant from
Tenant’s full responsibility for the feasibility, compliance with laws and technical competency
thereof. Notwithstanding any provision of this Agreement to the contrary, any requests for
revisions to the Plans or other notices to be given hereunder pursuant to this Article may be given
to Landlord’s or Tenant’s designated representative (as the case may be) either (i) delivered
personally, or (ii) sent by certified mail, return receipt requested, or overnight courier, with
receipt acknowledged.
B. In accordance with the Plans, Tenant shall, at Tenant’s sole cost and expense and as part
of Tenant’s “Alterations” (as defined in Section 1.01 of the Lease), perform all of the work
specified in the Plans (the “Fourth Premises Work”) in the entire Fourth Premises necessary for
Tenant’s occupancy thereof, except for Landlord’s Base Work and subject to the provisions of the
Lease and this Agreement. The Fourth Premises Work shall include, but not be limited to, the
perimeter and core walls and columns enclosed with sheetrock and finished, and Tenant’s Sprinkler
Installation (as set forth in Paragraph 4.G. hereof). Tenant agrees with respect to its activities
and work that it will conform to all of Landlord’s reasonable labor regulations of which it
receives written notice and shall not knowingly do or permit anything to be done that might create
any work stoppage, picketing or other labor disruption or dispute. Tenant agrees that it will,
prior to the commencement of any work in the Fourth Premises, deliver to Landlord all certificates
of insurance required to be supplied to Landlord by Tenant pursuant to the terms of the Lease and
this Agreement.
C. In consideration of Tenant performing all of the Fourth Premises and for Tenant completing
all of the Fourth Premises Work necessary for its occupancy thereof, other than Landlord’s Base
Work, in accordance with all of the terms, covenants and conditions of the Lease and this
Agreement, Landlord agrees that if Tenant, within a period of twenty-four (24) months from the
Fourth Premises Commencement Date, shall have fully satisfied all of the following conditions
(collectively, the “L/C Conditions”): (i) Tenant shall have submitted to Landlord a reasonably
detailed itemization of the leasehold improvements installed by Tenant in the entire Fourth
Premises, (ii) Tenant shall have submitted to Landlord final lien waivers and a lien search
conducted after the date of the completion of the Fourth Premises Work demonstrating that there has
not been filed with respect to the land and/or the Building and/or the Fourth Premises or any part
thereof or upon Tenant’s leasehold interest therein any vendor’s, mechanic’s, laborer’s,
materialman’s or other lien arising out of the Fourth Premises Work which has not been discharged
of record, and (iii) the Fourth Premises Work shall have been uniformly performed and completed in
the entire Fourth Premises, and (iv) Tenant shall not then be in default (after notice and the expiration of any
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applicable cure period in this Lease) with respect to any of the “material” terms, covenants or
conditions to be performed or observed by Tenant under the Lease or this Agreement (which for
purposes of this Article is deemed to mean Tenant’s obligation to pay Minimum Rent and additional
rent), then Landlord shall reimburse or cause to be reimbursed to Tenant an amount (the “Landlord’s
F/P Contribution”) equal to the lesser of (a) the actual cost of the Fourth Premises Work
improvements performed by Tenant in the entire Fourth Premises and “Tenant’s Reimbursable Costs”
(as hereinafter defined), or (b) SIX HUNDRED THIRTY-SEVEN THOUSAND EIGHTY-FIVE AND 00/100
($637,085.00) DOLLARS, it being understood and agreed that Landlord’s F/P Contribution shall not
exceed the sum of SIX HUNDRED THIRTY-SEVEN THOUSAND EIGHTY-FIVE AND 00/100 ($637,085.00) DOLLARS
(said amount herein being referred to as the “Maximum Contribution Amount”) and that all costs and
expenses in excess of said sum shall be borne solely by Tenant.
D. Upon Tenant’s request, Landlord’s F/P Contribution as provided in Paragraph 4.C. hereof
shall be paid out from time to time but not more frequently than monthly (in contradistinction to
upon completion and receipt by Landlord of paid bills for all of the Fourth Premises Work) as the
Fourth Premises Work progresses, which request by Tenant shall be accompanied by the following
(such request, together with all of the following documentation, shall herein be referred to as the
“Progress Installment Requisition”):
(1) a certificate signed by Tenant or Tenant’s architect, dated not more than ten (10) days
prior to such request, setting forth the following:
(i) that, to the best knowledge of Tenant’s architect, the sum then requested
was justly due to persons who have rendered services or furnished materials for the
work therein specified, and giving a brief description of such services and
materials and the several amounts to be paid to each of said persons in respect
thereof, and certifying that the Fourth Premises Work represented by the aforesaid
invoices has been satisfactorily completed in accordance with the final plans;
(ii) that, to the best knowledge of Tenant’s architect, no part of such
expenditure is being made the basis, in any previous or then pending prior request,
for the receipt of Landlord’s F/P Contribution or has been made out of the proceeds
of Landlord’s F/P Contribution received by Tenant, and that the sum then requested
does not exceed the value of the services and materials described in the
certificate; and
(iii) that, to the best knowledge of Tenant’s architect, except for the amount,
if any, stated pursuant to the foregoing subparagraph 4.D.a.(i) in such certificate
to be due for services or materials, there is no outstanding indebtedness
known to the persons signing such certificate, which is then due for labor,
wages, materials, supplies or services in connection with such work which, if
unpaid, might
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immediately become the basis of a vendor’s, mechanic’s, laborer’s or
material man’s statutory or similar lien upon such work or upon the land and or the
Building or the Fourth Premises or any part thereof or upon Tenant’s leasehold
interest;
(2) a current lien search demonstrating that there has not been filed with respect to the land
and Building and/or the Fourth Premises or any part thereof or upon Tenant’s leasehold interest
therein any lien which has not been discharged of record; and
(3) waivers of lien for the work performed up to and including the date of such request from
all contractors, subcontractors and materialmen involved in the performance of the Fourth Premises
Work and the materials furnished in connection therewith.
Subject to the provisions of Paragraph 4.C. hereof, upon compliance with the foregoing
provisions of this Paragraph 4.D. and provided Tenant shall not then be in default (after notice
and the expiration of any applicable cure period in this Lease) with respect to any of the monetary
terms to be performed or observed by Tenant under the Lease or this Agreement, Landlord shall pay
or cause to be paid to Tenant or, at Tenant’s written instruction, directly to the persons named
(pursuant to the foregoing subparagraph 4.D.a.(i)) in such certificate, the respective amounts
stated therein to be due to them provided, however, that Landlord’s F/P Contribution shall not
exceed the sum of SIX HUNDRED THIRTY-SEVEN THOUSAND EIGHTY-FIVE AND 00/100 ($637,085.00) DOLLARS
and that all costs and expenses in excess of said sum shall be borne solely by Tenant. The amount
of each installment of Landlord’s F/P Contribution payable pursuant to any Progress Installment
Requisition shall be an amount equal to the lesser of(x) the amount requested by Tenant in the
Progress Payment Installment Requisition in question, or (y) the amount equal to the product
obtained by multiplying the Maximum Contribution Amount by a fraction, the numerator of which is
the actual costs paid by Tenant for the completed portions of Fourth Premises Work referenced in
the Progress Installment Requisition in question, and the denominator of which is equal to the
total estimated cost of the Fourth Premises Work, which estimate shall be made and certified by
Tenant’s architect in good faith based upon the final plans for the Fourth Premises Work.
Notwithstanding anything to the contrary contained herein, Landlords’ payment of the final fifteen
(15%) percent of the Landlord’s F/P Contribution shall be subject to Tenant’s full satisfaction of
the L/C Conditions. For purposes of this Article, the “Tenant’s Reimbursable Costs” shall mean the
aggregate of the reasonable, out-of-pocket third party expenses incurred by Tenant solely in
connection with Tenant’s performance of Tenant’s Fourth Premises Work in the Fourth Premises for
the following items: (i) architectural fees; (ii) engineering fees; and (iii) filing fees. In no
event shall the aggregate amount of the Landlord’s F/P Contribution utilized to pay for Tenant’s
Reimbursable Costs exceed fifteen (15%) percent of the total Landlord’s F/P Contribution.
E. The provisions of Article 2 of the Lease shall not apply to the Fourth Premises.
The provisions of Article 5 of the Lease shall apply to the Fourth Premises, except that:
(i) at Tenant’s sole cost and expense, the Fourth Premises Work shall be performed by Ambassador Construction
Co. and only by contractors, subcontractors and mechanics designated on the list of currently
approved contractors, subcontractors and mechanics which is annexed hereto as Exhibit “C”, which
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are deemed approved only for the performance of the Fourth Premises Work and not for any other
future Alterations; (ii) Tenant shall utilize only Landlord’s designated subcontractors for the
performance of life safety systems (including without limitation Class E system work
subcontractors), security subcontractors (if the Fourth Premises Work shall affect any Building
security system) and HVAC subcontractors; (iii) Tenant shall utilize the “expediter” designated by
Landlord in connection with the Fourth Premises Work, which Landlord hereby designates to be
Xxxxxxx Xxxxx & Associates; and (iv) Section 5.01.C of the Lease shall not apply to the Fourth
Amendment. In the event of any conflict between the terms of this Fourth Amendment and the terms
of Article 5 of the Original Lease, the terms of this Fourth Amendment shall control.
F. Tenant may non-exclusively use the Building freight elevator on a first come, first served
basis, which use shall be scheduled in advance with Landlord and be subject to availability and the
use in common with the other tenants of the Building and Landlord, its employees, agents and
contractors; and exclusively by appointment (subject to availability).
F. Tenant may be permitted to enter into the Fourth Premises for installation of its
machinery, equipment and fixtures and performance of its work, all as permitted by this Agreement
and the Lease prior to the Fourth Premises Commencement Date at its sole risk, provided that such
entry and work do not unreasonably interfere with Landlord’s performance of the work to be done by
Landlord. At any time during such period of prior entry, if Landlord notifies Tenant in writing
that Tenant’s entry or work is unreasonably interfering with or delaying Landlord’s performance of
Landlord’s Base Work, Tenant shall forthwith discontinue any further work and shall remove from the
Fourth Premises and shall cause its workmen or contractors to remove therefrom, any equipment,
materials or installations which are the subject of Landlord’s notice.
G. Tenant’s Fourth Premises Work shall include the furnishing and installation of a sprinkler
system in the entire Fourth Premises (the “Tenant’s Sprinkler Installation”), including without
limitation the furnishing and installation of all equipment necessary to connect such sprinkler
system in the Fourth Premises to the main sprinkler loop existing on the floor of the Fourth
Premises as part of Landlord’s Base Work. The following provisions of this Paragraph shall apply
with respect to Tenant’s Sprinkler Installation: (i) such sprinkler system must comply with all
applicable laws, orders, rules and regulations; (ii) the type, brand, location and manner of
installation of such sprinkler system shall be subject to Landlord’s prior reasonable approval;
(iii) Tenant shall make all repairs and replacements, as and when necessary, to such sprinkler
system (including, without limitation, the main sprinkler loop from the flow control assembly on
the thirtieth (30th) floor) and any replacements thereof; and (iv) notwithstanding
anything contained in this Agreement or the Lease to the contrary, such sprinkler system, or any
replacement thereof and any installments in connection therewith, whether made by Tenant or
Landlord, shall upon expiration or sooner termination of the Lease be deemed the property of
Landlord.
H. For purposes hereof, the term “Landlord’s Base Work” shall mean, collectively, the
performance in the Fourth Premises of the work items set forth on the schedule annexed hereto as
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Exhibit “B”. Landlord shall, at Landlord’s sole cost and expense, cause its designated contractor
to perform the Landlord’s Base Work in the Fourth Premises. All of Landlord’s Base Work shall be
performed in a good and workmanlike manner and in compliance with all Legal Requirements. Except
for Landlord’s Base Work, Landlord shall not be required to spend any money or to do any work to
prepare the Fourth Premises for Tenant’s occupancy. The specification of Landlord’s Base Work
represents the limit of Landlord’s responsibilities in connection with the preparation of the
Fourth Premises and, except as so provided, Tenant shall take the Fourth Premises in “as-is”
condition. Landlord’s Base Work shall be of quality, type, materials, manufacture, design,
capacity and finish as reasonably determined by Landlord as at least Building standard. Landlord’s
Base Work shall constitute a single, non-recurring obligation on the part of Landlord and there
shall be no credit for unused items. Subject to the provisions of the Lease, all work performed
and installations made by Landlord 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 and casualty excepted.
I. Landlord agrees to perform final tie-ins to the building’s class E system for the fire
alarm points servicing the Fourth Premises (the “Class E Work”) and furnish and install a strobe
panel servicing the floor (the “Strobe Panel Work”), all at Tenant’s sole cost and expense,
concurrently with the Fourth Premises Work in a manner which will not unreasonably interfere with
the Fourth Premises Work. The foregoing Class E Work and Strobe Panel Work shall be performed by
Landlord in a good and workmanlike manner and in compliance with all Legal Requirements..
J. Landlord agrees that it will use good faith reasonable efforts to obtain contracts for the
performance of the Landlord’s Base Work required to be performed by it and to arrange to have all
such work commenced without delay and prosecuted without unnecessary interruption until completed.
Except as otherwise specifically set forth herein, Landlord has made and makes no representation of
the dates on which it will complete the Landlord’s Base Work, and Landlord shall be under no
penalty or liability to Tenant whatsoever by reason of any delay in such performance and the Lease
and this Agreement shall not be affected thereby. If, for any reason whatsoever, Landlord’s Base
Work is not substantially completed by the Fourth Premises Commencement Date, then Landlord shall
be given whatever additional time may be reasonably necessary to complete same and the Fourth
Premises Commencement Date shall be deemed to occur on the date which shall be three (3) business
day after notice is given to Tenant of the substantial completion of Landlord’s Base Work. If
Tenant shall dispute whether Landlord’s Base Work has been substantially completed, then pending
the resolution of such dispute, the Fourth Premises Commencement Date shall nevertheless be deemed
to have occurred three (3) business days after Tenant’s receipt of Landlord’s notice of substantial
completion of Landlord’s Base Work.
5. MINIMUM RENT; FREE N\P MINIMUM RENT PERIOD; SECURITY DEPOSIT:
A. Effective throughout the period commencing on the Fourth Premises Commencement Date and
continuing through the Expiration Date (as extended by this Agreement), the annual
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Minimum Rent
payable pursuant to the Lease shall be increased by the following annual amounts (which amounts
shall herein be referred to as the “Fourth Premises Minimum Rent”) with respect to the Fourth
Premises:
(i) THREE HUNDRED NINETY-THREE THOUSAND NINETY-FIVE AND 00/100 ($393,095.00)
DOLLARS per annum ($32,757.92 per month) for the period (the “First Rental Period”)
commencing on the Fourth Premises Commencement Date and ending on the day
immediately preceding the five (5) year anniversary of the Fourth Premises
Commencement Date, both dates inclusive;
(ii) FOUR HUNDRED TWENTY THOUSAND TWO HUNDRED FIVE AND 00/100 ($420,205.00)
DOLLARS per annum ($35,017.08 per month) for the period (the “Second Rental Period”)
commencing on the five (5) year anniversary of the Fourth Premises Commencement Date
and ending on the day immediately preceding the ten (10) year anniversary of the
Fourth Premises Commencement Date, both dates inclusive; and
(iii) the annual Minimum Rent payable for the period (the “Third Rental
Period”) commencing on the ten (10) year anniversary of the Fourth Premises
Commencement Date and ending on the Expiration Date, both dates inclusive, shall be
an annual amount equal to the greater of (a) one hundred (100%) percent of
the annual “Fair Market Rent” (as determined pursuant to the provisions of Paragraph
10.C. of the Third Amendment) of the Fourth Premises to be calculated as of the
first day of the Third Rental Period on the basis of a new letting in the then
rental market of the Fourth Premises for a term of five (5) years, or (b) the annual
Minimum Rent payable on the last day of the Second Rental Period;
all of which shall be payable in equal monthly installments in advance on the first day of each and
every calendar month during the term of the Lease. If the Fourth Premises Commencement Date occurs
on a day other than the first day of a calendar month, the Fourth Premises Minimum Rent for such
partial calendar month shall be prorated on the basis of the number of days of the Fourth Premises
Term within such calendar month, and the balance of the first month’s Fourth Premises Minimum Rent
theretofore paid shall be credited against the next monthly installment of the Fourth Premises
Minimum Rent.
B. Section 3.01 of the Lease, Paragraph 8.D. of the Third Amendment and any other initial free
rent periods shall not apply to the Fourth Premises Minimum Rent payable by Tenant for the
Fourth Premises.
C. For the purposes of this Agreement, the “Free F/P Minimum Rent Period” shall mean the nine
(9) month period commencing on the Fourth Premises Commencement Date and ending on the date
immediately preceding the nine (9) month anniversary of the Fourth Premises Commencement Date.
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D. Effective as of the Fourth Premises Commencement Date and provided Tenant is not then in
monetary default under the terms, covenants and conditions of the Lease and/or this Agreement,
Tenant is herewith granted a rent concession during the Free F/P Minimum Rent Period solely with
respect to the Fourth Premises in connection with the Fourth Premises Minimum Rent payable as set
forth in Paragraph 5.A. of this Agreement for the Fourth Premises; provided, however, Tenant shall
nevertheless be obligated to pay to Landlord all other additional rents and charges payable under
the terms of the Lease and this Agreement (including, without limitation, electricity) during the
Free F/P Minimum Rent Period. Except for the rent concession as herein provided during the Free
F/P Minimum Rent Period, Tenant shall use and occupy the Fourth Premises during the Free F/P
Minimum Rent Period pursuant to all of the other terms, covenants and conditions of the Lease and
this Agreement.
E. Effective as of the date of this Agreement, the “Security Deposit Amount” set forth in
Section 1.01 of the Lease shall be further increased to the amount of FIVE HUNDRED FIFTY-FOUR
THOUSAND TWO HUNDRED NINETY AND 33/100 ($554,290.33) DOLLARS (the “Adjusted Security Amount”).
Upon Tenant’s execution of this Agreement, Tenant shall deposit with Landlord as additional
security the differential balance required to increase the security currently on deposit with
Landlord to the Adjusted Security Amount. Tenant may deliver the Adjusted Security Amount to
Landlord in the form of a “Letter of Credit” in accordance with the provisions of Section 33.03 of
the Original Lease.
6. ADDITIONAL RENT:
Effective as of the Fourth Premises Commencement Date and solely with respect to the Fourth
Premises, Section 1.01 of the Lease shall be deemed amended as follows (it being agreed that
Section 1.01 of the Lease shall remain unmodified with respect to the balance of the Demised
Premises):
(i) the “Base Operating Amount” shall mean the amount of the Operating Expenses for
the 2006 calendar year;
(ii) the “Base Tax Amount” shall mean the amount of Taxes with respect to the Tax
Year commencing on July 1, 2005 and ending on June 30, 2006;
(iii) the term “Square Feet of Rentable Area” in the Fourth Premises shall be deemed
to be the equivalent of Thirteen Thousand Five Hundred Fifty-Five (13,555) rentable
square feet, as agreed to by the parties. This definition shall not be construed as
any kind of representation by Landlord as to the size of the Fourth Premises or the
Building;
(iv) the term “Tenant’s Operating Share” shall mean 0.76%;
(v) the term “Tenant’s Tax Share” shall mean 0.76%;
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(vi) Section 20.02 of the Lease shall be amended by adding the following sentence:
“Where more than one (1) meter measures the amount of usage to the Fourth Premises, usage
through each meter shall be billed in the aggregate with coincidental demand in accordance with the
provisions of this Article 20.”;
(vii) on the first line of Section 20.03.B(i) of the Lease, the amount of “60,733.75”
shall be replaced with the amount “$37,276.25”; and
(viii) on the fifth (5th) line of Section 20.03.B(i) of the Lease, the amount
of “$22,085.00” shall be replaced with the amount of “$13,555.00”.
7. ASSIGNMENT OF LEASE; SUBLETTING:
A. By separate agreement Landlord has consented to the Assignment of Lease dated as of June
30, 2006, whereby TICNY assigned all of its right, title and interest as tenant under the Lease to
Tower Group, Inc. By separate agreement Landlord further consented to the Sublease dated as of
June 30, 2006, by Tower Group, Inc. to CastlePoint Management Corp. of approximately 5,450 rentable
square feet of the Demised Premises in accordance with the provisions of Paragraph 40.H.1. of the
Original Lease. Tenant hereby represents to Landlord that as of the date of this Agreement, Tower
Insurance Company of New York is a wholly owned subsidiary of Tenant, and as such constitutes a
“Related Corporation” under the Original Lease. Accordingly, the Sublease dated as of June 30,
2006, by Tower Group, Inc. to TICNY of approximately 101,832 rentable square feet of the Demised
Premises in accordance with the provisions of Paragraph 40.H.1. of the Original Lease, did not
require the consent of Landlord.
B. Notwithstanding anything to the contrary contained in the Lease, Tenant named herein shall
have the right to allow a portion of the Demised Premises (not to exceed 20,000 rentable square
feet) to be occupied by the Law Offices of Xxxxxx X. Xxxxx, which is a professional with whom
Tenant maintains an ongoing, substantial and direct business relationship (the “Permitted
Occupant”), without being subject to the provisions of Paragraphs 40.B. and 40.I. of the Original
Lease, provided (i) any such occupant shall not violate the conditions of Paragraph 40.C. of the
Original Lease, (ii) at all times, there shall be only one reception area servicing the entire
demised premises, (iii) no names other than the firm name of Tenant shall be displayed in the
demised premises, and (iv) no such occupancy shall operate to vest any interest in the demised
premises in any such occupant, and any such occupancy shall be subject to all of the terms,
covenants and conditions of the Lease on Tenant’s part to be performed.
8. SHAFT SPACE; ROOF SPACE:
Article 12 of the Third Amendment shall apply to the Fourth Premises and the phrase “New
Premises” as contained therein shall be replaced with “Fourth Premises” for purposes of this Fourth
Amendment.
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9. BROKER:
Landlord and Tenant each represents and warrants to Landlord that it neither consulted nor
negotiated with any broker or finder in connection with this Agreement other than CB Xxxxxxx Xxxxx,
Inc. and Xxxxxxxxxxx Properties, Inc., as agent for Landlord. Landlord and Tenant agree to
indemnify and hold the other harmless from and against any damages, costs and expenses suffered by
reason of any breach of the foregoing representation. For purposes of this Agreement, the term
“Designated Broker” shall be deemed to mean CB Xxxxxxx Xxxxx, Inc. and Xxxxxxxxxxx Properties, Inc.
Landlord agrees to pay the Designated Broker any commission due pursuant to a separate agreement.
10. MISCELLANEOUS:
A. Except as otherwise expressly set forth in this Agreement, all of the terms, provisions,
covenants and conditions of the Lease shall remain and continue unmodified and in full force and
effect and are hereby ratified and confirmed in all respects.
B. This Agreement shall not be changed, modified or cancelled orally. This Agreement shall be
binding upon the parties hereto, their respective heirs, administrators, successors and, as
permitted, assigns.
C. This Agreement shall in all respects and in all events be governed by and construed in
accordance with the laws of the State of New York (excluding, however, its conflict of laws
provisions).
D. This Agreement is being tendered to Tenant without obligation on Landlord’s part and in no
event shall it be deemed to be binding upon Landlord or give Tenant any rights unless and until
Landlord shall have executed the same and delivered a copy to Tenant.
11
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this Fourth Amendment to
Lease as of the day and year first above written.
| 000 XXXXXXXX XXXXXXXX, XXX, Xxxxxxxx a Delaware limited liability company |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxxxx | |||
| Title: | President | |||
| TOWER GROUP, INC., Tenant a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: | Xxxxxxx X. Xxx | |||
| Title: | President | |||
| Tenant’s Federal Employer I.D. Number: 133894120 | ||||
00
XXXXX XX XXX XXXX
|
) | |||||||
| : | ss.: | |||||||
COUNTY OF NEW YORK
|
) |
On the 25 day of July in the year 2006, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxxxx X. Xxx , personally
known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed
the instrument.
| Xxxxxx X. Xxxxx
|
||||
| Xxxxxx X. Xxxxx | ||||
| Notary Public, State of New York | ||||
| No. 02FA5020801 | ||||
| Qualified in New York County Commission Expires Nov. 29, 2009 |
13
EXHIBIT “A”
FOURTH PREMISES
NOTE: This is a schematic plan and is intended to only show the proposed general layout of the
Fourth Premises. All measures, distances and dimensions are approximate and not to scale. The
depictions hereon do not constitute a warranty or representation of any kind.
EXHIBIT “B”
LANDLORD’S BASE WORK
LANDLORD’S BASE WORK
| 1. | Perform Building standard demolition in the Fourth Premises and deliver the Fourth Premises broom clean (“Landlord’s F/P Demolition Work”). | |
| 2. | Deliver six (6) xxxxx per rentable square foot (demand load) to the Fourth Premises, ready for distribution by Tenant (exclusive of Building standard air conditioning). | |
| 3. | Deliver a Form ACP-5 covering the Fourth Premises. |
4. Perform flash patching to the floor of the Fourth Premises and deliver the floor of the Fourth
Premises ready to receive carpet; and perform firestopping in the Fourth Premises.
| 5. | Repair and replace convector covers in the Fourth Premises as necessary. | |
| 6. | Tenant agrees to utilize the existing submeters, and Landlord shall furnish and install any necessary additional electric submeters in the Fourth Premises in locations designated by Landlord. |
7. Relocate one (1) existing HVAC unit servicing the Fourth Premises.
8. Furnish and install one (1) new fifteen (15) ton Building standard air conditioning unit for
the Fourth Premises.
EXHIBIT “C”
APPROVED CONTRACTOR LIST
