Contract
Exhibit 10.8
FOURTH
AMENDMENT TO LEASE
THIS
FOURTH AMENDMENT TO LEASE (THIS “AGREEMENT”), dated as
of October __, 2009, between 000 XXXX XXXXXX ASSOCIATES, LLC, a Delaware
limited liability company, having an address at c/o RFR Holding LLC, 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Landlord”), and
XXXXXX XXXXXX PARTNERS GROUP INC., a Delaware corporation, having an office at
Xxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (“Tenant”).
WITNESSETH:
WHEREAS,
Landlord and Tenant (as successor to Xxxxxx Xxxxxx Partners Group LLC) are
parties to a lease dated as of May 5, 1999, as amended by (i) Letter Agreement
dated as of June 3, 1999, (ii) Lease Amendment dated as of October 1, 1999
(the “Storage
Amendment”) and (iii) Third Lease Amendment dated as of May 3, 2000 (the
“Third
Amendment”) (as so amended, the “Lease”), for the
entire 2nd,
14th,
15th,
16th, and
17th
floors (the 14th
floor being hereinafter referred to as the “Extension Premises”),
and certain storage space (together with the Extension Premises, the “Premises”) in the
building located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the “Building”);
WHEREAS,
Landlord and Tenant desire to amend the Lease to (i) extend the Term of the
Lease with respect to the Extension Premises and (ii) otherwise amend the
Lease, all on the terms and conditions provided in this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
Landlord and Tenant agree as follows:
1. Capitalized Terms.
All capitalized terms used in this Agreement which are not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
2. Extension of Term;
Second Floor
Space. The Expiration Date of the Lease with respect to the Extension
Premises and floors 15, 16 and 17 is presently January 31, 2010. The Term of the
Lease with respect to the Extension Premises only is hereby extended from
February 1, 2010 through July 31, 2016 (the “Extension
Term”). In addition, the Term of the Lease with respect to the
Second Floor Space shall be extended from January 1, 2016 through July 31, 2016
(the “Second Floor
Extension Term”), on all of the terms of the Lease applicable to the
Second Floor Space. The lease of the balance of the Premises shall
expire, as scheduled, on January 31, 2010. On or before January 31,
2010, Tenant shall vacate, surrender and deliver possession to Landlord of the
balance of the Premises in the condition required by the
Lease. Subject to the provisions of Paragraph 6 below,
Landlord hereby confirms that, as provided in Section 4.02(d) of the Lease,
there are no non-customary improvements in floors 14, 15, 16 or 17 as of the
date hereof.
3. Condition of
Premises. 1) Tenant is in possession of and is
fully familiar with the condition of the Premises and Landlord shall have no
obligation to perform any additional work or make any installations in order to
prepare the Premises for Tenant’s continued occupancy; provided the foregoing
shall not relieve Landlord of any ongoing repair and maintenance obligations set
forth in the Lease.
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(b) Landlord
shall reimburse Tenant for the cost of Tenant’s Alterations to be performed by
Tenant in the Extension Premises during the Extension Term (the “Extension Premises
Work”) in an amount (the “Landlord’s
Contribution”) equal to the lesser of (i) $160,500 and (ii) the actual
cost of the Extension Premises Work, in accordance with the terms, provisions
and procedures set forth in Section 8.03 of the Lease, except as set forth
below. For purposes of this Section 3(b),
references in Section 8.03 of the Lease to Initial Tenant Work shall be deemed
to refer to the Extension Premises Work and references to Landlord’s
Contribution shall mean Landlord’s Contribution for the Extension Premises
Work. Notwithstanding the provisions of Section 8.03 of the Lease (A)
Landlord shall reimburse Tenant for the full amount of each requisition of
Landlord’s Contribution (but subject to the 10% retainage) within 30 days
following delivery to Landlord of the Documentation and the provisions in
Section 8.03 providing for a pro rata funding between Landlord and Tenant shall
be inapplicable to Landlord’s Contribution and (B) if Tenant has not engaged an
architect for the Extension Premises Work, then the certificate referred to in
Section 8.03(B)(y) and in clause (1) of the Lease may be given solely by an
officer of Tenant.
4. Fixed Rent.
2) Tenant shall continue to pay Fixed Rent for the Premises (other
than the Second Floor Space) through January 31, 2010 in accordance with the
provisions of the Lease. During the Extension Term, Tenant shall pay
Fixed Rent for the Extension Premises in the amount of (i) $1,123,500 per
annum ($93,625 per month) from February 1, 2010 through April 30, 2013 and
(ii) $1,177,000 per annum ($98,083.33 per month) thereafter through and
including the new Expiration Date. Tenant shall continue to pay Fixed Rent for
the Second Floor Space in accordance with the Third Amendment through July 31,
2016 in accordance with the provisions of the Third Amendment.
(b) Provided
that an Event of Default shall not be continuing under the Lease (as amended by
this Agreement), Tenant shall be entitled to an abatement of Fixed Rent for the
Extension Premises only for the months of February and March 2010.
5. Additional Rent.
During the Extension Term, Tenant shall continue to pay increases for Taxes and
Operating Expenses for the Extension Premises under Article 2 of the Lease,
except that from and after February 1, 2010, (i) the Base Tax Amount shall be
the Taxes payable for the period commencing on July 1, 2010 and ending on June
30, 2011, (ii) the Base Operating Year shall be the calendar year 2010 and (iii)
Tenant’s Tax Share and Tenant’s Operating Share shall each be
4.4%. During the Second Floor Extension Term, Tenant shall continue
to pay increases for Taxes and Operating Expenses for the Second Floor Space
under the Third Amendment.
6. Electricity. During
the Extension Term and the Second Floor Extension Term, Tenant shall continue to
pay for electricity for the Extension Premises and for the Second Floor Space
(including for the electricity used to operate Tenant’s supplemental
air-conditioning equipment) in accordance with Section 2.07 of the
Lease. Prior to the commencement of the Extension Term, Tenant, at
its expense, shall perform any work required to enable each floor comprising the
Premises to receive and have electricity measured independently of any other
space in the Building.
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7. Brokerage. Landlord
and Tenant each represents and warrants to the other that it has not dealt with
any broker in connection with this Agreement other than RFR Realty LLC (“Agent”), Xxxxxxx
& Wakefield Inc. (“C&W”) and
Xxxxxxxxxx Advisors (“Xxxxxxxxxx”). The
execution and delivery of this Agreement by the parties shall be conclusive
evidence that they have relied upon the foregoing representations and
warranties. Landlord shall pay Agent and C&W their commissions pursuant to
separate agreements. Tenant shall pay Xxxxxxxxxx its commission
pursuant to separate agreement. Landlord and Tenant shall indemnify
and hold harmless the other party from and against any and all claims for
commission, fee or other compensation arising from a breach of such
representations and agreements by the indemnitor, and for any and all costs
incurred by the indemnitee in connection with such claims, including, without
limitation, reasonable attorneys’ fees and disbursements. This provision shall
survive the expiration or earlier termination of the Lease.
8. Storage Space. The
lease of the existing Storage Space shall expire on January 31,
2010. Landlord leases to Tenant and Tenant leases from Landlord the
storage space shown hatched on the plan annexed to this Agreement as Schedule A (the
“New Storage
Space”) for the Extension Term, on all of the terms, provisions and
conditions set forth in the Storage Amendment, except as set forth
below:
(a) Landlord,
at Tenant’s expense, shall demise the New Storage Space, provided that Tenant
shall not be obligated to contribute more than $25,000 toward the cost of such
work. Otherwise, the provisions of Paragraph 2(b) of the Storage
Amendment shall apply to the New Storage Space.
(b) The
Fixed Rent payable for the New Storage Space shall be payable as
follows:
(i) $18,535.23
per annum ($1,544.60 per month) from February 1, 2010 through January 31,
2011;
(ii) $19,091.29
per annum ($1,590.94 per month) from February 1, 2011 through January 31,
2012;
(iii) $19,664.03
per annum ($1,637.00 per month) from February 1, 2012 through January 31,
2013;
(iv) $20,253.95
per annum ($1,687.83 per month) from February 1, 2013 through January 31,
2014;
(v) $20,861.57
per annum ($1,738.46 per month) from February 1, 2014 through January 31,
2015;
(vi) $21,487.42
per annum ($1,790.62 per month) from February 1, 2015 through January 31, 2016;
and
(vii) $22,132.04
per annum ($1,844.34 per month) from February 1, 2016 through the Expiration
Date.
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(c) Tenant
shall not be obligated to pay for increases in Taxes or Operating Expenses with
respect to the New Storage Space.
9. Options to Renew. The
renewal rights contained in Section 10.01 of the Lease and in the Third
Amendment are hereby deleted with respect to the Extension Premises and the
Second Floor Space, respectively. Tenant shall have two options to
renew the Term of the Lease for the entire Premises (as then constituted) as
follows:
Provided
that (i) the Lease (as amended by this Agreement) shall be in full force
and effect as of the date of the Renewal Notice (as hereinafter defined) and as
of the Expiration Date (as the same may be extended for the first Renewal Term),
(ii) there shall not then be existing an Event of Default under the Lease
(as amended by this Agreement) and (iii) the named Tenant, its Affiliates
and any Desk Space User pursuant to Section 5.01(d) of the Lease shall be in
actual physical occupancy of at least 75% of the rentable area of the Premises
then demised to Tenant under the Lease on the date of each Renewal Notice and
upon the commencement of the applicable Renewal Term, Tenant shall have two
options to extend the Term of the Lease with respect to all of the Premises (as
then constituted), each for a period of five years (each, a “Renewal Term”). Such
options shall be exercisable by written notice (each, a “Renewal Notice”) to
Landlord given not later than twelve (12) months prior to the then Expiration
Date. Notwithstanding the preceding sentence, Landlord, in its sole discretion,
may waive any default by Tenant and no such default may be used by Tenant to
negate the effectiveness of Tenant’s exercise of this option. Each
Renewal Term shall constitute an extension of the Term of the Lease with respect
to the Premises (as then constituted) and shall be upon all of the same terms
and conditions as the then existing Term, except that (A) there shall be no
further option to renew the Term of the Lease after the second Renewal Term,
(B) Landlord shall not be required to furnish any materials or perform any
work to prepare the Premises for Tenant’s continued occupancy and Landlord shall
not be required to reimburse Tenant for any Alterations made or to be made by
Tenant to the Premises, and (C) the Fixed Rent for the Renewal Term shall
be payable at a rate per annum equal to the Fair Market Rent of the Premises as
of the first day of such Renewal Term, as determined in accordance with Section
10.02 of the Lease.
10. Right of First
Offer. 3) As used herein:
“Available” means, as
to any space, that such space is vacant and free of any present or future
possessory right now existing in favor of any third party. Anything
to the contrary contained herein notwithstanding, Tenant’s right of first offer
pursuant to this Section 10 is
subordinate to any right of offer, right of first refusal, renewal right or
similar right or option in favor of any third party existing as of the date of
this Agreement. In addition, such space shall not be deemed Available
and Landlord shall not be obligated to notify Tenant of the Availability of such
space (A) if Landlord is negotiating an extension of a lease with an existing
tenant or occupant of such space, and Landlord shall be free to enter into any
such extension or lease or (B) if Landlord intends to lease either or both
floors comprising the Offer Space as part of a block of office space containing
at least one other floor of office space or (C) with respect to the
15th
floor of the Building, until after the initial leasing of such floor after the
date of this Agreement, Tenant acknowledging that such floor is being
surrendered by Tenant and that Landlord may lease all or any portion of such
space on whatever terms Landlord may deem
appropriate.
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“Offer Space” means
the entire 13th
floor and the entire 15th
floor of the Building.
(b) Provided
(i) the Lease (as amended by this Agreement) shall be in full force and effect,
(ii) there shall not then be existing an Event of Default under the Lease (as
amended by this Agreement), and (iii) the named Tenant, its Affiliates and any
Desk Space User pursuant to Section 5.01(d) of the Lease shall be in actual
physical occupancy of at least 75% of the rentable area of the Premises then
demised under the Lease, if at any time during the Term, either the Offer Space
becomes, or Landlord reasonably anticipates that the Offer Space will become,
Available, Landlord shall give to Tenant notice (an “Offer Notice”)
thereof, specifying (A) the floor(s) comprising such Offer Space and the
rentable square footage thereof, (B) Landlord’s determination of the Fair Market
Rent for such Offer Space (“Landlord’s Offer Space
Determination”), (C) the date or estimated date that such Offer Space has
or shall become Available (the “Anticipated Inclusion
Date”), (D) the term of the lease of the Offer Space, (E) the real estate
tax and other escalations for such Offer Space and (F) any free rent, work
allowances, Landlord’s work or other concessions being offered by Landlord for
the Offer Space.
(c) Provided
that on the date that Tenant exercises the Offer Space Option and on the Offer
Space Inclusion Date (as hereinafter defined) the conditions set forth in Section 10 (b)(i)
through (iii)
are met, Tenant shall have the option (the “Offer Space Option”),
exercisable by notice (an “Acceptance Notice”)
given to Landlord on or before the date that is ten (10) Business Days after the
giving of the Offer Notice (time being of the essence) to include the Offer
Space in the Premises. Tenant shall notify Landlord in the Acceptance
Notice whether Tenant accepts or disputes Landlord’s Offer Space Determination,
and if Tenant disputes Landlord’s Offer Space Determination, the Acceptance
Notice shall set forth Tenant’s good faith determination of the Fair Market Rent
for such Offer Space (“Tenant’s Offer Space
Determination”). If Tenant fails to object to Landlord’s Offer
Space Determination in the Acceptance Notice and to set forth therein Tenant’s
Offer Space Determination, then Tenant shall be deemed to have accepted
Landlord’s Offer Space Determination as the Fair Market Rent for such Offer
Space.
(d) If
Tenant timely delivers the Acceptance Notice, then, on the date on which
Landlord delivers vacant possession of the Offer Space to Tenant (the “Offer Space Inclusion
Date”), the Offer Space shall become part of the Premises, upon all of
the terms and conditions set forth in the Lease, except (i) Fixed Rent shall be
equal to the Fair Market Rent, (ii) Tenant’s Tax Share and Tenant’s Operating
Share shall be increased to reflect the addition of the Offer Space, with the
base years for the Offer Space as set forth in the Offer Notice, (iii) Landlord
shall not be required to perform any Landlord’s work or any other work, pay a
Landlord’s contribution or a work allowance or any other amount, or render any
services to make the Building or the Offer Space ready for Tenant’s use or
occupancy, and Tenant shall accept the Offer Space in its “as is” condition on
the Offer Space Inclusion Date, except as may otherwise be set forth in the
Offer Notice, (iv) the term of the lease of the Offer Space shall be as set
forth in the Offer Notice and (v) as may be otherwise set forth in the Offer
Notice.
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(e) If
in the Acceptance Notice Tenant disputes Landlord’s Offer Space Determination,
and Landlord and Tenant fail to agree as to the amount thereof within 20 days
after the giving of the Acceptance Notice (the “Dispute Period”),
then the dispute shall be resolved by arbitration as set forth in Section
10.02(e) of the Lease, in the same manner as if there was a dispute in
determining Fixed Rent for a Renewal Term. If the dispute shall not
have been resolved on or before the Offer Space Inclusion Date, then pending
such resolution, Tenant shall pay, as Fixed Rent for the applicable Offer Space,
an amount equal to Landlord’s Offer Space Determination. If such
resolution shall be in favor of Tenant, then within 30 days after the final
determination of Fair Market Rent, Landlord shall refund to Tenant any
overpayment.
(f) If
Landlord is unable to deliver possession of the Offer Space to Tenant for any
reason on or before the Anticipated Inclusion Date, the Offer Space Inclusion
Date shall be the date on which Landlord is able to so deliver possession and
Landlord shall have no liability to Tenant therefor and the Lease shall not in
any way be impaired. This subsection (f) constitutes “an express
provision to the contrary” within the meaning of Section 223-a of the New York
Real Property Law and any other law of like import now or hereafter in
effect.
(g) If
Tenant fails timely to give an Acceptance Notice, then (i) Landlord may enter
into one or more leases of the particular Offer Space with respect to which
Tenant did not give an Acceptance Notice with third parties on such terms and
conditions as Landlord shall determine, the Offer Space Option with respect only
to the particular Offer Space that was the subject of the Offer Notice shall be
null and void and of no further force and effect and Landlord shall have no
further obligation to offer such Offer Space to Tenant, and (ii) Tenant shall,
as soon as reasonably practicable after demand by Landlord, execute an
instrument reasonably satisfactory to Landlord and Tenant confirming Tenant’s
waiver of, and extinguishing, the Offer Space Option with respect only to the
particular Offer Space that was the subject of the Offer Notice.
(h) Promptly
after the occurrence of the Offer Space Inclusion Date, Landlord and Tenant
shall confirm the occurrence thereof and the inclusion of the Offer Space in the
Premises by executing an instrument reasonably satisfactory to Landlord and
Tenant; provided, that failure by Landlord or Tenant to execute such instrument
shall not affect the inclusion of the Offer Space in the Premises in accordance
with this Section
10.
11. Notices. Section 9.01
of the Lease is amended to provide that all notices (A) to Landlord be sent to
Landlord at c/o RFR Holding LLC, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn: General Counsel, with a copy to each of (i) RFR Realty LLC,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President, (ii) Loeb
& Loeb LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X.
Xxxxxxxxxxx, Esq. and (iii) any Superior Lessor or Superior Mortgagee who
may have requested the same and (B) to Tenant be sent to Tenant at (i) the
Premises, Attention: ______________ and (ii) Xxx Xxxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx XX 00000, Attention: Real Estate Notices/CFO.
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12. Security
Deposit. 4) As security for the continued performance of
Tenant’s obligations under the Lease (as amended by this Agreement), Landlord
shall continue to hold the Security Deposit delivered by Tenant and presently
held by Landlord under the Lease.
(b) Section
2.09(c)(i), (ii) and (iv) are hereby deleted in their entirety, so that in no
event shall Tenant have any right to cause the Security Deposit to be reduced,
and all references to “Security Reduction Period”, “Security Reduction Date” and
“Security Reduction Notice” are no longer applicable.
(c) Section
2.09(c)(iii) is hereby deleted in its entirety and the following substituted
therefor:
“For each
and every fiscal year of Tenant during the Term of this Lease, Tenant shall
deliver to Landlord within ninety (90) days following the end of such fiscal
year, Tenant’s audited financial statements prepared in accordance with GAAP by
Tenant’s independent certified public accountants. If Tenant’s assets
minus liabilities (i.e., net worth or
equity) falls below $90 million on a GAAP basis, as presented in Tenant’s
audited financial statements, then the Security Deposit shall be increased to
six (6) months of the then escalated Fixed Rent payable pursuant to this Lease,
by Tenant depositing with Landlord either (A) cash or (B) a supplemental or a
new letter of credit meeting the same requirements set forth in Section
2.09(a).”
13. Deletions and
Amendments. Effective on the date of this Agreement, in addition to the
other provisions of the Lease which have been amended by this Agreement or have
otherwise been deleted, the following provisions of the Lease are deleted or are
hereafter inapplicable to the Premises: Sections 1.06 and 1.07 and Article 8
(except to the extent Section 8.03 has been incorporated in this
Agreement).
14. Confidentiality.
Tenant and Tenant’s partners, officers, directors, principals, members, and
employees shall maintain the terms and conditions of this Agreement confidential
and, without Landlord’s prior written consent, shall neither discuss nor
disclose the terms and conditions of this Agreement with any tenant or occupant
of the Building or with any other person, other than (i) the Broker,
(ii) the attorneys who are representing Tenant in connection with this
Agreement, (iii) Tenant’s accountants and financial consultants and (iv)
any proposed subtenant of the Premises or assignee of the Lease and any broker
in connection therewith (and only if and to the extent such other parties are
informed by Tenant of the confidential nature of this Agreement and shall agree
to act in accordance with the provisions of this section), or if required to do
so to enforce the terms of the Lease, or as may otherwise be required to be
disclosed by law or judicial process or as reasonably determined by Tenant to be
necessary or advisable in connection with any regulatory filings, including
filings with the Securities and Exchange Commission.
15. No Oral Modification.
This Agreement may not be changed or terminated orally, but only by an agreement
in writing signed by Landlord and Tenant.
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16. Delivery. This
Agreement is offered for signature by Tenant and it is understood that this
Agreement shall not be binding upon Landlord unless and until Landlord shall
have executed and delivered a fully executed copy of this Agreement to
Tenant.
17. Counterparts. This
Agreement may be executed in one or more counterparts all of which, taken
together, shall constitute one original instrument.
18. Ratification. Except
as modified by this Agreement, the provisions of the Lease are confirmed and
approved and shall continue in full force and effect.
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of the day
and year first above written.
000 XXXX
XXXXXX ASSOCIATES, LLC
By: ________________________________
Xxx Xxxxx
Managing Member
XXXXXX
XXXXXX PARTNERS GROUP INC.
By: /s/
Xxxxxx
Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Chief
Administrative Officer
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