SECOND AMENDMENT TO LEASE
Exhibit 10.9
Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. The omissions have been indicated by asterisks
(“*****”), and the omitted text has been filed separately with the Securities and Exchange
Commission.
SECOND AMENDMENT TO LEASE
This SECOND AMENDMENT TO LEASE dated as of November 6, 2002 (this “Amendment”),
between RCPI LANDMARK PROPERTIES, L.L.C., a Delaware limited liability company having an office c/o
Tishman Speyer Properties, L.P., 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“Landlord”), and RADIO CITY PRODUCTIONS LLC, a Delaware limited liability company having
an office at 1260 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 (“Tenant”).
WITNESSETH:
WHEREAS, RCPI Trust, predecessor-in-interest to Landlord, and Tenant entered into that certain
Lease dated December 4, 1997 (the “1997 Lease”), covering premises consisting of (i) the
Music Hall; (ii) the 1270 Space; (iii) the 50 Rock Space; and (iv) the Retail Space, all as more
particularly described and defined in the Original Lease; and
WHEREAS, pursuant to that certain First Amendment to Lease dated as of February 19, 1999 (the
“First Amendment”), Tenant surrendered a portion of the 50 Rock Space designated as Space
‘U’, and Landlord leased to Tenant certain Substitute Premises, and certain additional premises,
which are collectively referred to as the ‘L’ Premises (the 1997 Lease, as amended by the First
Amendment, is herein referred to as the “Original Lease”); and
WHEREAS, Landlord and Tenant desire to modify the Original Lease to (i) provide for the
leasing of certain additional premises located in the submezzanine of the building known as 50
Rockefeller Plaza (the “Building”), and (ii) otherwise modify the terms and conditions of
the Original Lease, all as hereinafter set forth (the Original Lease, as modified by this
Amendment, is herein referred to as the “Lease”).
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. Capitalized Terms. All capitalized terms used and not otherwise defined in this
Amendment shall have the respective meanings ascribed to them in the Original Lease.
2. Lease of Additional Premises. (a) Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, portions of the submezzanine level of the Building, designated
as Space ‘O’, Space ‘Q’, Space ‘R’, Space ‘U’, Space ‘W’, Space ‘X’, Space ‘Z’, Space ‘EE’ and
Space ‘K’, all being more particularly shown on Exhibit A attached hereto (the
“Additional Premises”), for a term commencing on the date (the “Effective Date”)
that is the later to occur of (x) the date of mutual execution and delivery of this Amendment, and
(y) the date Landlord delivers possession of all of the Additional Premises to Tenant and ending on
the Initial Expiration Date, or such earlier date upon which the term of the Lease may expire or be
terminated pursuant to any of the conditions of limitation or other provisions of the Lease or
pursuant to law, upon all of the terms and conditions of the Original Lease, as modified by this
Amendment. Notwithstanding anything to the contrary contained herein, and provided that
Tenant obtains the prior consent of Landlord, Tenant shall be permitted to have reasonable
access to the Additional Premises prior to the Effective Date in order to inspect the same (the
“Early Access Period”). All of the terms and provisions of the Lease shall apply to the
Additional Premises during the Early Access Period, except for the obligation to pay Fixed Rent and
Additional Rent in respect of the Additional Premises.
(b) Landlord shall deliver possession of the Additional Premises to Tenant on the Effective
Date. Landlord shall not be liable for failure to deliver possession of the Additional Premises or
any portion thereof to Tenant on any specified date, and such failure shall not impair the validity
of this Amendment. The provisions of this Article are intended to constitute “an express provision
to the contrary” within the meaning of Section 223-a of the New York Real Property Law or any
successor Requirement, provided that if Landlord fails to deliver vacant possession of all of the
Additional Premises in accordance with the terms of this Amendment prior to May 1, 2003 (the
“Outside Delivery Date”), Tenant shall have the right within 10 days after the Outside
Delivery Date, as its sole and exclusive remedy therefor, to cancel this Amendment by giving notice
of cancellation to Landlord. If Tenant timely delivers the aforesaid cancellation notice, this
Amendment shall terminate 15 days after the date of such notice, unless Landlord delivers vacant
possession of the Additional Premises within such 15-day period, in which case Tenant’s
cancellation notice shall be void and this Amendment shall continue in full force and effect.
Failure by Tenant to exercise such right to cancel this Amendment within the aforesaid 10-day
period shall constitute a waiver of such right; time being of the essence with respect thereto.
Notwithstanding anything to the contrary contained herein, Landlord shall exercise reasonable
diligence (at no cost to Landlord), including exercising its right of termination pursuant to any
leases or license agreements affecting the Additional Premises promptly after the date hereof, to
cause the existing tenants and/or occupants of the Additional Premises to vacate the same in a
timely manner. Landlord shall give Tenant at least ten (10) days’ advance written notice of the
Effective Date.
(c) Effective as of the Effective Date, Tenant shall lease the Additional Premises upon all of
the terms and conditions of the Original Lease, except as follows:
(i) The Additional Premises shall be deemed to consist of 8,216 rentable square feet
for all purposes of the Lease.
(ii)
Tenant shall pay Fixed Rent for the Additional Premises at a rate
equal to ***** per
square foot per annum for the period beginning on the Effective Date and ending on the last
day of the month which is 12 months after the Effective Date. Thereafter, with respect to
the Additional Premises only, Fixed Rent for each subsequent year shall increase by ***** of
the Fixed Rent in effect during the immediately preceding year. Tenant shall be permitted to
include the Fixed Rent with respect to the Additional Premises as part of Fixed Rent under
clause (a) (ii) of Schedule 2 of the Original Lease when calculating Percentage Rent
pursuant to the Original Lease.
(iii) Tenant shall pay additional rent on account of Taxes with respect to the
Additional Premises pursuant to Article 8 of the Original Lease, except that, with
respect to the Additional Premises only, (a) “Base Tax Year” shall mean the Tax Year
commencing on July 1, 2002 and ending on June 30, 2003 if the Effective Date occurs on or
before December 31, 2002, or the Tax Year commencing on January 1, 2003 and ending on
December 31, 2003 (i.e., the second half of the Tax Year commencing on July 1, 2002
and ending on June 30, 2003 and the first half of the Tax Year commencing on July 1, 2003
and ending on June 30, 2004) if the Effective Date occurs on or after
January 1, 2003, and (b) “Tenant’s Area” shall mean 8,216 rentable square feet.
(iv) Tenant has inspected the Additional Premises and agrees (x) to accept possession
of the Additional Premises in the “as is” condition existing on the Effective Date, (y) that
neither Landlord nor Landlord’s agents have made any representations or warranties with
respect to the Additional Premises or the Building except as expressly set forth herein, and
(z) Landlord has no obligation to perform any work, supply any materials, incur any expense
or make any alterations or improvements to the Additional Premises or the Building to
prepare the same for Tenant’s occupancy (provided, however, that nothing herein shall be
deemed to relieve Landlord of Landlord’s obligations pursuant to Section 7.1 (a) of
the Original Lease). Tenant’s occupancy of any part of the Additional Premises shall be
conclusive evidence, as against Tenant, that (A) Tenant has accepted possession of the
Additional Premises in its then current condition and (B) the Additional Premises and the
Building are in satisfactory condition as required by this Amendment. Notwithstanding the
foregoing, Landlord and Tenant acknowledge that Tenant has not been able to inspect portions
of the Additional Premises which are currently occupied by other tenants or occupants, and
with respect to those portions of the Additional Premises, Landlord agrees to deliver same
to Tenant in broom clean condition, free of other tenants or occupants, and in comparable
condition to the portions of the Additional Premises which Tenant has had the opportunity to
inspect. In addition, Landlord agrees to use reasonable efforts to provide Tenant with an
opportunity to inspect the Additional Premises which are currently occupied, but Landlord’s
inability to do so shall not affect Tenant’s obligations hereunder.
(v) Except as provided in Section 3 (g) of this Amendment, all references in
the Original Lease to the “Ancillary Space” shall be deemed to include the Additional
Premises.
3. Modifications. As of the date hereof, the Lease shall be further modified and amended as
follows:
(a) Landlord and Tenant agree that Tenant intends to combine the Additional Premises with a
portion of the 50 Rock Space known as Space ‘G’ and located on the submezzanine of the Building
(Space G and the Additional Premises are hereinafter referred to as the “Storage
Premises”). The Storage Premises shall be deemed to consist of 16,877 rentable square feet.
(b) Notwithstanding anything contained in the Lease to the contrary, Landlord and Tenant agree
and acknowledge that Tenant shall have the right to use the Storage Space for uses other than
“storage” as defined in the Original Lease, provided Tenant shall (i) in no event use the Storage
Space for any Prohibited Use (provided, however, that Tenant shall be permitted to store customary
prepackaged small food items such as popcorn, candy, nuts, confections and other such convenience
food and beverage items (which may include alcoholic beverages provided and so long as Tenant
complies with all applicable Requirements) in the Storage Premises), (ii) obtain all necessary
permits and approvals required in connection with the use of the Storage Premises, including, but
not limited to, any amendment to the Certificate of Occupancy, (iii) be responsible for performing
any Alterations required in order to cause the Storage Premises to comply with all applicable
Requirements related to the use thereof, and (iv) indemnify and hold Landlord harmless from and
against any and all claims, losses, costs and expenses incurred by Landlord as a result of such
uses.
(c) Landlord shall make 250 amps, 120/208-volts-3-phase of electricity available for the
operation of Tenant’s electrical systems and equipment in the Storage Premises (the “Permitted
Capacity”) via a connection to a switchboard in an electric closet designated by Landlord.
Tenant will be responsible, at Tenant’s cost and expense, for routing the power from such switch
board to the Storage Premises. Tenant shall pay to Landlord, on demand from time to time but not
more frequently than monthly, for its consumption of electricity at the Storage Premises, a sum
equal to ***** of the product obtained by multiplying (i) the Cost Per Kilowatt Hour, by (ii) the
actual number of kilowatt hours of electric current consumed in the Storage Premises by Tenant in
such billing period, and otherwise in accordance with the terms and provisions of
Article 17 of the Original Lease. Landlord shall install a meter, at Tenant’s expense, to
measure Tenant’s consumption of electricity in the Storage Premises, which meter shall be installed
and maintained by Landlord at Tenant’s expense. Landlord shall install the aforesaid meter within
thirty (30) days after Tenant’s request that Landlord install the same. Bills for such amounts
shall be rendered to Tenant at such times as Landlord may elect (but not more frequently than
monthly). For any period during which such meter is not installed or is not operational in the
Storage Premises, the monthly Fixed Rent in respect of the Additional Premises shall be increased
by an amount equal to the product of (A) *****, subject to adjustment for any increases in electric
rates or taxes, and (B) the number of rentable square feet in the Additional Premises.
(d) Landlord shall not unreasonably withhold or delay its consent to a request by Tenant to
install a supplemental HVAC system to serve the Storage Premises. Such installation shall be
considered an Alteration and shall be performed in accordance with the provisions of Article 5 of
the Lease. Tenant, at Tenant’s sole cost and expense, shall maintain in full force and effect for
the Term a service contract or contracts for the periodic maintenance of Tenant’s supplemental HVAC
System, with a contractor or contractors satisfactory to Landlord, and furnish a copy of said
contract(s) and all extensions thereof to Landlord within 30 days after demand. Notwithstanding the
foregoing, Landlord agrees that Tenant may use Tenant’s in-house approved union labor to maintain
and service the supplemental HVAC System.
(e) Landlord shall provide chilled water in connection with Tenant’s independent supplemental
air-conditioning units located in the Storage Premises, which shall not exceed 20 tons.
Notwithstanding the foregoing, Tenant shall have the one-time right at any time within two (2)
years after the Effective Date to irrevocably reduce the number of tons of chilled water to which
Tenant is entitled pursuant to this Section by giving notice (the “Tenant Notice”)
of such reduction to Landlord within the aforesaid two (2) year period, whereupon the number of
tons of chilled water to which Tenant shall be entitled pursuant to the first sentence of this
Section shall be reduced as of the date Tenant shall provide the Tenant Notice to the lower number
of tons specified in the Tenant Notice. Tenant shall have no liability to pay the annual charge for
chilled water, and Landlord shall have no obligation to provide any chilled water to Tenant
hereunder, until Tenant provides or is deemed to have provided (as provided below) the Tenant
Notice, after which Tenant shall be liable for the number of tons of chilled water referred to in
the Tenant Notice (or deemed to have been selected by Tenant). Tenant shall pay Landlord an annual
charge for such chilled water at Landlord’s then established rate therefor, which charge shall be
payable annually in advance in a lump sum initially for the remainder of the calendar year of the
Lease in which Tenant delivers (or is deemed to have delivered) the Tenant Notice to Landlord, at
the same time Tenant makes its payment of Fixed Rent with respect to the Storage Premises then
coming due hereunder, and thereafter for each calendar year at the same time that Tenant makes its
first payment of Fixed Rent in such calendar year. In the event Tenant fails to deliver to Landlord
the Tenant Notice by the date which is two (2) years from the Effective Date, Tenant shall be
deemed to have elected to use 20 tons of chilled
water. As of the date hereof, Landlord’s charge for chilled water is ***** per ton per year.
In addition to the foregoing charges there shall be a one-time fee of ***** per ton of unit
capacity for chilled water, payable at the same time Tenant makes its first payment of the chilled
water charge provided herein.
(f) Notwithstanding anything contained in the Original Lease to the contrary, Tenant shall
have no right to assign the Lease with respect to the Storage Premises, or to sublease all or any
portion of the Storage Premises except in connection with an assignment of the entire Lease, or a
sublease of the Original Premises as permitted under Article 16 of the Original Lease.
(g) Except as expressly provided herein and in Section 7.1(a) and Section 12.1
(a), (c), (f), (g) and (h) of the Original Lease, Landlord shall not be obligated to provide
any services to the Storage Premises.
(h) Notwithstanding anything to the contrary contained in the Original Lease, including,
without limitation, Section 5.3 thereof, Tenant shall not be required to restore any
demising walls currently located in the Storage Premises at the expiration or sooner termination of
the term of the Lease. Nothing herein shall be deemed to waive Tenant’s obligation pursuant to
Section 5.3 of the Original Lease to remove any Specialty Alterations (defined for purposes
of this Amendment as Alterations which are not standard office installations such as kitchens,
executive bathrooms, raised computer floors, computer room installations, supplemental HVAC
equipment, safe deposit boxes, vaults, libraries or file rooms requiring reinforcement of floors,
internal staircases, slab penetrations, conveyors, dumbwaiters, and other Alterations of a similar
character) and Tenant’s Property in the Storage Premises at the expiration or sooner termination of
the term of the Lease.
4. Brokerage. Each of Landlord and Tenant represents and warrants to the other that it has
not dealt with any broker in connection with this Amendment other than Tishman Speyer Properties,
L.P. (“Broker”) and that, to the best of its knowledge, no other broker negotiated this
Amendment or is entitled to any fee or commission in connection herewith. Landlord shall pay Broker
any commission which may be due in connection with this Amendment pursuant to a separate agreement.
Each of Landlord and Tenant shall indemnify, defend, protect and hold the other party harmless from
and against any and all losses, liabilities, damages, claims, judgments, fines, suits, demands,
costs, interest and expenses of any kind or nature (including reasonable attorneys’ fees and
disbursements) incurred in connection with any claim, proceeding or judgment and the defense
thereof which the indemnified party may incur by reason of any claim of or liability to any broker,
finder or like agent (other than Broker) arising out of any dealings claimed to have occurred
between the indemnifying party and the claimant in connection with this Amendment, or the above
representation being false. The provisions of this Paragraph 4 shall survive the expiration
or earlier termination of the term of the Lease.
5. Representations and Warranties. (i) Tenant represents and warrants to Landlord that, as
of the date hereof, (a) the Original Lease is in full force and effect and has not been modified
except pursuant to this Amendment; (b) to the best of Tenant’s knowledge, there are no defaults
existing under the Original Lease; (c) to the best of Tenant’s knowledge there exist no valid
abatements, causes of action, counterclaims, disputes, defenses, offsets, credits, deductions, or
claims against the enforcement of any of the terms and conditions of the Original Lease; and
(d) this Amendment has been duly authorized, executed and delivered by Tenant and constitutes the
legal, valid and binding obligation of Tenant.
(ii) Landlord represents and warrants to Tenant that, as of the date hereof, (a) the Original
Lease is in full force and effect and has not been modified except pursuant to this Amendment; (b)
to the best of Landlord’s knowledge, there are no defaults existing under the Original Lease; (c)
to the best of Landlord’s knowledge there exist no valid causes of action, disputes or claims
against the enforcement of any of the terms and conditions of the Original Lease and (d) this
Amendment has been duly authorized, executed and delivered by Landlord and constitutes the legal,
valid and binding obligation of Landlord.
6. Miscellaneous. (a) Except as set forth herein, nothing contained in this Amendment shall
be deemed to amend or modify in any respect the terms of the Original Lease and such terms shall
remain in full force and effect as modified hereby. If there is any inconsistency between the terms
of this Amendment and the terms of the Original Lease, the terms of this Amendment with respect to
the Storage Premises shall be controlling and prevail.
(b) This Amendment contains the entire agreement of the parties with respect to its subject
matter and all prior negotiations, discussions, representations, agreements and understandings
heretofore had among the parties with respect thereto are merged herein.
(c) This Amendment may be executed in duplicate counterparts, each of which shall be deemed an
original and all of which, when taken together, shall constitute one and the same instrument.
(d) This Amendment shall not be binding upon Landlord or Tenant unless and until each party
shall have received a fully executed counterpart of this Amendment.
(e) This Amendment shall be binding upon and inure to the benefit of Landlord and Tenant and
their successors and permitted assigns.
(f) This Amendment shall be governed by the laws of the State of New York without giving
effect to conflict of laws principles thereof.
(g) The captions, headings, and titles in this Amendment are solely for convenience of
reference and shall not affect its interpretation.
(h) Within 30 days from the Effective Date, Landlord shall obtain an amendment to the existing
Non-Disturbance and Attornment Agreement from the existing Mortgagee covering the Additional
Premises.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the day and year
first above written.
| LANDLORD: RCPI LANDMARK PROPERTIES, L.L.C. |
||||
| By: | Tishman Speyer Properties, L.P., its Agent | |||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx | ||||
| Title: Senior Managing Director | ||||
| TENANT: RADIO CITY PRODUCTIONS LLC |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Executive Vice President | |||
The undersigned acknowledges the above and ratifies and confirms all of its obligations under that
certain Guaranty of Lease dated as of December 4, 1997 (the “Guaranty”) and agrees that the
covenants referred to in the Guaranty shall include the obligations of Tenant under the Original
Lease as amended above.
GUARANTOR:
| MADISON SQUARE GARDEN, L.P. A Delaware limited partnership |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | President, Facilities Group | |||
EXHIBIT A
Additional Premises
The floor
plan which follows is intended solely to identify the general location
of the Additional Premises and should not be used for any other purpose. All areas, dimensions and locations are
approximate, and any physical conditions indicated may not exist as shown.
[Graphic of Rockefeller Plaza
Floor SH Floor Plan]
Floor SH Floor Plan]
