STANDARD FORM OF OFFICE LEASE The Real Estate Board of New York, Inc.

EX-10.23 2 dex1023.htm AGREEMENT OF LEASE, DATED DECEMBER 14, 2009 Agreement of Lease, dated December 14, 2009

Exhibit 10.23

7/04            

STANDARD FORM OF OFFICE LEASE

The Real Estate Board of New York, Inc.

Agreement of Lease, made as of this 14^th day of DECEMBER in the year 2009, between

400 MADISON AVENUE OWNER LLC, a Delaware limited liability company

c/o Macklowe Properties, 767 Fifth Avenue, New York, New York 10153

party of the first part, hereinafter referred to as OWNER, and

TRADESTATION SECURITIES, INC., a [A] Florida corporation

400 Madison Avenue, New York, New York 10017 party of the second part, hereinafter referred to as

TENANT,

WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner a portion of the twelfth (12^th) floor, designated by Owner as Suite 12A, substantially as shown on Exhibit A attached hereto (but excluding elements of the building which penetrate through the floor and janitor and electrical closets) (alternatively, the “demised premises” or the “Demised Premises”) in the building known as 400 Madison Avenue (alternatively, the “building” or the “Building”) in the Borough of Manhattan, City of New York, for the term of five (5) years

(or until such term shall sooner cease and expire as hereinafter provided) to commence on the

DAY SET FORTH IN SECTION 37(a)		, and to end on the
DAY SET FORTH IN SECTION 37(a)

both dates inclusive, at the annual rental rate SET FORTH IN SECTION 37(b)

which Tenant agrees to pay in lawful money of the United States, which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, in equal monthly installments in advance on the first day of each month during said term, at the office of Owner or such other place as Owner may designate, without any setoff or deduction whatsoever, except that Tenant shall pay the first                      monthly installment(s) on the execution hereof [B] (unless this lease be a renewal).

In the event that, at the commencement of the term of this lease, or thereafter, Tenant shall be in default in the payment of rent to Owner pursuant to the terms of another lease with Owner or with Owner’s predecessor in interest, Owner may at Owner’s option and without notice to Tenant add the amount of such arrears to any monthly installment of rent payable hereunder and the same shall be payable to Owner as additional rent.

The parties hereto, for themselves, their heirs, distributes, executors, administrators, legal representatives, successors and assigns, hereby covenant as follows:

Rent:

1. Tenant shall pay the rent as above and as hereinafter provided.

Occupancy:

2. Tenant shall use and occupy the demised premises for.

GENERAL AND EXECUTIVE OFFICES ONLY,      and for no other purpose.

 

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Rider to be added if necessary

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Rider to be added if necessary.				*  APRIL 1ST THROUGH OCTOBER 31ST

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In Witness Whereof, Owner and Tenant have respectively signed and sealed this lease as of the day and year first above written.

 

		OWNER:		400 MADISON AVENUE OWNER LLC By: 400 Madison Avenue New Entity, LLC
Witness for Owner:
				By:
						Name: William S. Macklowe
						Title: Vice President

 

		TENANT:		TRADESTATION SECURITIES, INC
Witness for Tenant:
				By:
						Name: President & COO
						Title: William P Cahill

ACKNOWLEDGEMENT

STATE OF Florida

SS:

COUNTY OF Broward

On the 10^th day of December in the year 2009, before me, the undersigned, a Notary Public in and for said State, personally appeared William P. Cahill, 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.

 

		NOTARY PUBLIC

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GUARANTY

 

 

        IMPORTANT – PLEASE READ        

 

 

Address

Premises

 

 

 

TO

 

 

 

STANDARD FORM OF

 

		Office Lease

The Real Estate Board of New York, Inc.

Copyright 2004. All rights Reserved.

Reproduction in whole or in part prohibited.

 

 

 

 

Dated		in the year
Rent Per Year
Rent Per Month
Term
From
To

Drawn by

Checked by

Entered by

Approved by

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Inserts to printed portion of Lease dated as of December 14, 2009, Between 400 Madison Avenue Owner LLC, as Owner, and TradeStation Securities Inc., as Tenant, with respect to a portion of the 12^th Floor (designated by Owner as Suite 12A) at 400 Madison Avenue, New York, New York

Preamble

 

A

Florida

 

B	(provided, however, that Fixed Rent (as hereinafter defined) shall be pro-rated on a per diem basis for any partial calendar month at the beginning or end of said term)

Article 3

 

3A	which consent shall not be unreasonably withheld, conditioned or delayed

 

3B	after Tenant receives notice thereof

 

3C

Notwithstanding anything to the contrary contained in this Article 3, Owner’s consent shall not be required with respect to any work performed in the Demised Premises the cost of which, by itself or together with any other work that constitutes a single project does not exceed $25,000 and which consists of purely decorative painting, carpeting and finish work and which does not require the preparation and filing of plans to obtain a building permit and which otherwise complies with the requirements established by Owner from time to time for Building-standard materials and finishes; provided, that, all such work shall be performed in accordance with the other provisions of this Article 3.

Article 4

 

4A	contractors reasonably acceptable to Owner

 

4B	; provided, that, Tenant is not physically prohibited from occupying the Demised Premises for the uses permitted under this lease

Article 6

 

6A

(a)

 

6B	(collectively “Requirements”)

 

6C

except that Tenant shall not be required to make any alterations or improvements to comply with a Requirement the need for compliance with which arises from Tenant’s permitted use of the Demised Premises if such Requirement (a “General Applicability Law”) is applicable to substantially all office tenants in the Building or to substantially all office tenants in comparable buildings in New York City and the requirement for compliance with such Requirement does not arise by reason of (i) the abatement of any nuisance in, on or about the Demised Premises caused by Tenant, its agents, employees, contractors, guests or anyone claiming by, through or under Tenant, (ii) the particular manner of conduct of Tenant’s business or operation of its installations, equipment or other property therein, including, without limitation, the performance of any work by Tenant, (iii) any cause or condition created by or at the instance of Tenant or (iv) the breach of any of Tenant’s obligations hereunder, whether or not such compliance requires work which is structural or non-structural, ordinary or extraordinary, foreseen or unforeseen, and (b) be responsible for the cost of compliance with any Requirements in respect of the Building outside the Demised Premises arising from Tenant’s use of the Demised Premises, except that Tenant shall not be required to make any alterations or improvements to comply with a Requirement the need for compliance with which arises from Tenant’s permitted use of the Demised Premises if such Requirement is a General Applicability Law and the requirement for compliance with such Requirement does not arise by reason of the provisions set forth in the preceding subsections (i) through (iv) of subclause (a) above). Tenant shall pay all the costs, expenses, fines, penalties and damages which may be imposed upon Owner or any Superior Mortgagee or Superior Lessor (as such capitalized terms are defined in Article 39 hereof) by reason of or arising

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out of Tenant’s failure to fully and promptly comply with and observe the provisions of this Article 6.

Article 8

 

8A	for maintenance, for repairs, to comply with laws or for other reasonable purposes

Article 9

 

9A	or the Building (including any Building system) is damaged by fire or other casualty so that Tenant is deprived of reasonable access to the Demised Premises or any part thereof, whether or not the Demised Premises shall be damaged

 

9B	Owner and Tenant each agrees, at the written request of the other party, to request from its insurer the inclusion of such a waiver of subrogation provision in each policy of casualty insurance maintained by such party.

 

9C

For purposes of clarity, any provision contained in this Article 9, Article 10 or elsewhere in this lease providing for the apportionment or abatement of Rent, unless such abatement specifies that only Fixed Rent or only Additional Charges, or a component thereof shall be abated (e.g., Section 37(c), which provides an abatement of Fixed Rent only and not of the electricity component of Fixed Rent or any Additional Charges), shall mean that such abatement includes all Fixed Rent and Additional Charges.

 

9D	Notwithstanding anything to the contrary contained in this Article 9:

(a) As soon as reasonably practicable, but in any event no later than sixty (60) days following the date of any fire or other casualty rendering any portion of the Demised Premises untenantable, Owner shall notify Tenant of Owner’s good faith best estimate of the date (the “Estimated Date”) by which the repair and restoration necessary to render the Demised Premises no longer untenantable can be completed (“Owner’s Repair Notice”). Notwithstanding anything herein to the contrary, if, by reason of a fire or other casualty, (A) (l) more than fifty (50%) percent of the rentable square footage of the Demised Premises shall be damaged or destroyed and rendered untenantable (or, in the case of damage or destruction to the public portions of the Building necessary for access to the Demised Premises, more than fifty (50%) percent of the rentable square footage of the Demised Premises shall be rendered untenantable) and (2) the Estimated Date set forth in Owner’s Repair Notice with respect to such fire or other casualty is after the date (the “Outside Repair Date”) which is the nine (9) month anniversary of the date of such fire or other casualty (a fire or other casualty meeting the requirements of the preceding subclauses (l) and (2) being a “Substantial Casualty”) or (B) more than twenty-five (25%) percent of the rentable square footage of the Demised Premises is rendered untenantable during the last 12 months of the term of this lease, then Tenant shall have a one time only right (except as set forth in subsection (b) below) to terminate this lease by notice (the “Damage Termination Notice”) given to Owner within thirty (30) days following Owner’s giving of Owner’s Repair Notice. Such termination shall be effective as of the date which is thirty (30) days after the Damage Termination Notice, and, upon delivery of such notice and the expiration of such 30-day period, this lease and the term hereof shall expire as fully and completely as if such date were the date originally set forth for the termination of this lease. Tenant’s failure to deliver the Damage Termination Notice in the time and manner required by this subclause (a) shall be deemed an irrevocable waiver of Tenant’s right to terminate this lease pursuant to this subclause (a).

(b) In addition, in the event of any Substantial Casualty, if the repair or restoration necessary to render the Demised Premises no longer untenantable is not substantially completed by the Outside Repair Date, as such Outside Repair Date shall be extended due to delays caused or occasioned by Owner’s inability to perform (as described in Article 27 hereof) or by Tenant, its agents, employees, contractors, architects, engineers or servants, then Tenant shall be entitled to terminate this lease by a Damage Termination Notice given to Owner within thirty (30) days after the Outside Repair Date (as so extended) and, upon the giving of such notice, this lease and the term hereof shall expire effective on the thirtieth (30^th) day after the giving of such notice (the “Damage Termination Date”); provided, however, if Tenant delivers a Damage

 

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Termination Notice pursuant to this subclause (b) to Owner, then Owner shall have the right to suspend the occurrence of the Damage Termination Date for a period of thirty (30) days after the date of the Damage Termination Notice by delivering to Tenant, within ten (10) Business Days after Owner’s receipt of such Damage Termination Notice, a certificate of Owner’s contractor responsible for the repairs of such damage certifying that it is such contractor’s good faith judgment that the repairs shall be substantially completed within thirty (30) days after the date of the Damage Termination Notice. If the repairs shall be substantially completed prior to the expiration of such thirty (30) day period, the Damage Termination Notice shall be null and void and of no force or effect, and this lease shall continue, but if the repairs shall not be substantially completed within such thirty (30) day period, then this lease shall terminate upon the expiration of such thirty (30) day period.

Article 11

 

11A	, which consent shall not be unreasonably withheld or delayed (but only to the extent expressly so provided in Article 40 hereof)

Article 13

 

13A	upon prior notice (which may be given orally)

 

13B	Except in the case of emergency, Owner shall make reasonable efforts to minimize the disturbance caused by such entry, but in no event shall Owner be required to effectuate any such entry outside of Business Hours.

Article 15

 

15A	Owner shall at all times during the term of this lease maintain in full force and effect a certificate of occupancy for the Building that permits the use of the Demised Premises set forth in Article 2 hereof.

 

15B	, except as elsewhere specifically provided in this lease,

 

15C	; provided, that, such violations do not materially and adversely affect the use of the Demised Premises by Tenant for the use permitted by this lease

Article 17

 

17A	thirty (30)

 

17B	thirty (30)

 

17C	thirty (30)

 

17D	thirty (30)

Article 19

 

19A	and such default continues beyond the period specified in Article 17 and Section 46(1), except in case of emergency,

 

19B

If Tenant places the enforcement of this lease, or any part thereof, in the hands of an attorney, or files suit upon the same, and if Tenant shall be the prevailing party an action so commenced, Tenant shall be reimbursed by the Owner, within 30 days after demand, for its reasonable, out-of-pocket attorneys’ fees and disbursements and court costs.

Article 20

 

20A	No such action shall materially hinder Tenant’s use of the Demised Premises. Owner shall perform any such repairs, alterations, additions and improvements with reasonable diligence and with reasonable efforts to avoid interference with Tenant’s business,

 

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provided, however, that in no event shall Owner be obligated to perform any such repairs, alterations, additions and improvements on an overtime basis

Article 26

 

26A	, or unless Tenant’s failure to interpose such counterclaim would result in a waiver of Tenant’s right to assert same in a separate proceeding

Article 34

 

34A	$90,404.00

 

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RIDER TO OFFICE LEASE

TABLE OF CONTENTS

 

Article		Page
37. TERM; FIXED RENT		1
38. TAXES		3
39. ATTORNMENT AND NOTICE TO OWNER		4
40. ASSIGNMENT AND SUBLETTING		5
41. INSURANCE		10
42. ELECTRIC ENERGY		11
43. OWNER’S SERVICES		13
44. LATE CHARGE		14
45. BROKER		14
46. MISCELLANEOUS PROVISIONS		14
47. NOTICES		19
48. HOLDOVER		20
49. SECURITY DEPOSIT		20
50. OWNER’S INITIAL WORK		21

 

Schedule A		-		Fixed Rent
Exhibit A		-		Floor Plan
Exhibit B		-		Cleaning Specifications
Exhibit C		-		Maintenance Charge Rates
Exhibit D		-		Form of Letter of Credit
Exhibit E		-		Owner’s Initial Work
Exhibit E-1		-		Owner’s Initial Work Plan

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RIDER TO LEASE DATED December 14, 2009 BETWEEN 400 MADISON AVENUE OWNER LLC, AS OWNER (“OWNER”), AND TRADESTATION SECURITIES, INC., AS TENANT (“TENANT”).

37. TERM; FIXED RENT.

(a) (i) The term of this lease shall commence on the earlier to occur of (1) the Substantial Completion Date (as hereinafter defined) and (2) the date on which Tenant, or anyone acting by, through or under Tenant shall take possession of all or any portion of the Demised Premises for any purpose whatsoever (the earlier of such dates, “Commencement Date”) and shall end at 11:59 p.m. on the last day of the month after the month in which the fifth (5^th) anniversary of the Rent Commencement Date (as hereinafter defined) occurs (the “Expiration Date”) or on such earlier date upon which the term of this lease shall expire or be canceled or terminated pursuant to any of the terms, conditions or covenants of this lease or pursuant to law.

(ii) Notwithstanding the provisions of Section 37(a)(i) above,

(A) Tenant may have access to the Demised Premises prior to the Substantial Completion Date for the sole purpose of taking measurements and installing cables and wiring for Tenant’s telephone, computer and data systems to the extent customarily performed by tenants during the initial build-out of a premises (but not the systems themselves, which Tenant may install after the Commencement Date) (collectively, “Pre-possession Activities”) and such access shall not be deemed to trigger the Commencement Date. Prepossession Activities shall not include storage of (and Tenant shall not store) any materials or furniture in the Demised Premises prior to the Commencement Date. Doing so shall trigger the Commencement Date.

(B) In connection with all Pre-possession Activities (and as a condition to Owner’s permitting the same):

(1) Tenant shall comply with all applicable provisions of this lease governing alterations prior to requesting access to the Demised Premises therefor and shall comply with all applicable Building-standard reasonable rules and regulations of Owner in connection with such activities;

(2) Tenant shall not interfere in any respect with the performance of Owner’s Initial Work (as defined in Section 50(a) below), it being agreed that, subject to Section 37(a)(ii)(A) above, Owner and Tenant shall coordinate the conduct of the Prepossession Activities so as to minimize such interference;

(3) Any delay suffered by Owner in the performance of Owner’s Initial Work by reason of such work by Tenant shall constitute a Tenant’s Delay (as defined in Section 50(c) below) for purposes of this lease;

(4) Tenant shall make its initial request for access in connection with each Pre-possession Activity constituting a distinct activity (or project) upon not less than three (3) Business Days prior written notice, except for the taking of measurements and performing inspections, which request shall be made on reasonable advance notice (which may be made orally); and

(5) Owner shall have no obligation to provide for the protection or safekeeping of any materials or equipment left or installed in the Demised Premises in connection with any Pre-possession Activities and Owner shall have no liability for damage or theft thereof, except to the extent arising out of Owner’s willful misconduct.

(b) The rental rate per period payable hereunder (sometimes referred to herein as the “rent”, “Rent”, or “Fixed Rent”) shall be as set forth in Schedule A annexed hereto and made a part hereof. Fixed Rent shall be payable in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, in equal monthly installments in advance on the first day of each month during the term of this

 

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lease, at the office of Owner or at such other place as Owner may designate in writing, without any offset, reduction, deduction, defense and/or counterclaim whatsoever. For purposes of this lease, the term “Additional Charges” shall mean all charges, fees and other sums of money (other than Fixed Rent) as shall be due and payable from time to time by Tenant to Owner pursuant to this lease.

(c) Notwithstanding anything to the contrary contained in this lease, provided that Tenant shall not then be in default under any of the terms, covenants and conditions contained in this lease beyond the expiration of any applicable notice and/or cure period, Tenant shall be entitled to an abatement of the Fixed Rent payable for the period (the “Abatement Period”) from the Commencement Date to, but not including, the ninety-first (91^st) day after the Commencement Date (such 91^st day, the “Rent Commencement Date”); provided, however, that during the Abatement Period, Tenant shall not be relieved of its obligation to pay the portion of Fixed Rent applicable to electricity charges pursuant to Article 42 below with respect to such Abatement Period, plus any Additional Charges with respect to the Abatement Period. Notwithstanding the foregoing, if this lease shall terminate (or Owner shall re-enter the Demised Premises) during the first year of the term of this lease due to Tenant’s default hereunder, Tenant shall immediately repay to Owner the unamortized portion of the amounts abated during the Abatement Period (which amortization shall be calculated on a monthly, straight-line basis, over the term of this lease).

(d) Promptly after the occurrence of the Commencement Date, Owner and Tenant shall, at Owner’s option, confirm the Commencement Date, the Rent Commencement Date, the First Rent Adjustment Date (as defined in Schedule A below) and the Expiration Date by executing an instrument reasonably satisfactory to Owner and Tenant; provided, that, the failure by Owner or Tenant to execute such an instrument shall not affect the determination of such dates pursuant to the provisions of this lease.

(e) (i) Notwithstanding anything to the contrary contained herein, if the Commencement Date shall not have occurred on or before May 1, 2010 (the “Delivery Outside Date”), such date to be extended by one day for each day of Tenant’s Delay and/or Force Majeure Delay (as hereinafter defined), then, provided that Tenant shall not be in default under this lease, as Tenant’s sole and exclusive remedy therefor, the Abatement Period shall be extended by one (1) day for each day beyond the Delivery Outside Date that the Commencement Date shall not have occurred.

(ii) Notwithstanding anything to the contrary contained in this lease, if the Commencement Date shall not have occurred on or before June 1, 2010 (as the same may be extended by one day for each day of Tenant’s Delay and/or Force Majeure Delay, the “Delivery Termination Date”), then Tenant shall have the option, as its sole and exclusive remedy, to terminate this lease by written notice (the “Cancellation Notice”) given to Owner within twenty (20) days after the Delivery Termination Date and this lease shall thereafter be cancelled and of no further force and effect on the twentieth (20^th) day following Owner’s receipt of Tenant’s Cancellation Notice (the “Cancellation Date”); provided, however, that notwithstanding Tenant’s delivery of a Cancellation Notice, this lease shall not be canceled if the Commencement Date occurs on or before the Cancellation Date. If Tenant fails to timely deliver a Cancellation Notice to Owner within twenty (20) days after the Delivery Termination Date, Tenant shall be deemed to have irrevocably waived its right to cancel this lease pursuant to this Section 37(e). If this lease shall be canceled as aforesaid, this lease shall be deemed to be null and void and Owner shall promptly return to Tenant all prepaid rent and the Security Deposit.

(iii) As used, herein, the term “Force Majeure Delay” means delay due to strikes, lockouts or other labor or industrial troubles, governmental pre-emption in connection with a national emergency, conditions of supply or demand that are affected by war or other national, state or municipal emergency, fire or other casualty, acts of God, any rule, order or regulation or other action of any governmental agency applicable to all or any part of the Building or the, Demised Premises, unless arising out of a party’s knowing non-compliance therewith, or any other cause beyond a party’s reasonable control, whether or not similar to any of the causes hereinabove stated, other than any cause arising by a the negligence or willful misconduct of the party claiming the delay.

 

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38. TAXES. (a) The terms defined below shall for the purposes of this lease have the meanings herein specified:

(i) “Taxes” shall mean all real estate taxes, sewer rents, water frontage charges and other assessments, special or otherwise, levied, assessed or imposed by the City of New York or any other taxing authority upon or with respect to the Building and the land thereunder (the “Land”) and all taxes assessed or imposed with respect to the rentals payable hereunder other than general income, gross receipts and excess profits taxes (except that general income, gross receipts and excess profits taxes shall be included if covered by the provisions of the following sentence). Taxes shall also include any taxes, charges or assessments levied, assessed or imposed by any taxing authority in addition to or in lieu of the present method of real estate taxation, provided such additional or substitute taxes, charges and assessments are computed as if the Building were the sole property of Owner subject to said additional or substitute tax, charge or assessment. Each abatement, exemption or discount of Taxes applicable to the Land and/or Building shall be taken into account in determining the amount of Taxes for the applicable Tax Year. With respect to any Tax Year, all expenses, including legal fees, experts’ and other witnesses’ fees, incurred in contesting the validity or amount of any Taxes or in obtaining a refund of Taxes, shall be considered as part of the Taxes for such Tax Year. Notwithstanding the foregoing, Taxes shall not include franchise taxes, gift taxes, capital stock taxes, inheritance taxes or estate taxes. Tenant hereby waives any right to institute or join in tax certiorari proceedings or other similar proceedings contesting the amount or validity of any Taxes.

(ii) “Tax Year” shall mean each period of twelve (12) months, commencing on the first day of July of each such period, in which occurs any part of the term of this lease, or such other period of twelve (12) months occurring during the term of this lease as hereafter may be duly adopted as the fiscal year for real estate tax purposes of the City of New York.

(iii) “Tax Statement” shall mean an instrument or instruments setting forth Tenant’s Tax Payment (as hereinafter defined). If any Tax Statement is not accompanied by a copy of the tax bill, Owner shall furnish the same to Tenant promptly after Owner’s receipt of notice from Tenant requesting the same.

(iv) “Tenant’s Percentage” shall mean 1.5536%.

(v) “Base Taxes” shall mean the average of (1) the Taxes payable for the Tax Year commencing July 1, 2009 and ending June 30, 2010 and (2) the Taxes payable for the Tax Year commencing July 1, 2010 and ending June 30, 2011.

(b) If the Taxes payable for any Tax Year shall exceed the Base Taxes, Tenant shall pay to Owner, as Additional Charges for. such Tax Year, an amount (herein called the “Tax Payment”) equal to Tenant’s Percentage of the amount by which the Taxes payable by Owner for such Tax Year are greater than the Base Taxes.

(c) The Tax Payment for each Tax Year shall be due and payable in installments in the same manner that Taxes for such Tax Year are due and payable to the City of New York, except that Tenant shall pay Tenant’s Percentage of each such installment to Owner at least thirty (30) days prior to the date such installment first becomes due to the City of New York. Owner’s failure to render a Tax Statement with respect to any Tax Year shall not prejudice Owner’s right thereafter to render a Tax Statement with respect to any such Tax Year nor shall the rendering of a Tax Statement prejudice Owner’s right thereafter to render a corrected Tax Statement for that Tax Year.

(d) In the event Taxes for any Tax Year or part thereof shall be reduced after Tenant shall have paid Tenant’s Tax Payment in respect of such Tax Year, Owner shall set forth in the first Tax Statement thereafter submitted to Tenant the amount of such refund and, provided that Tenant is not then in default under this lease, Tenant shall receive a credit against the installment or installments of Tenant’s Tax Payment next falling due equal to Tenant’s Percentage of such refund, but in no event shall the credit exceed the amount of the Additional

 

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Charges paid by Tenant with respect to Taxes for said Tax Year. If the Taxes comprising the Base Taxes are reduced as a result of an appropriate proceeding or otherwise, the Taxes as so reduced shall for all purposes be deemed to be Taxes for the Base Taxes, and Owner shall give notice to Tenant of the amount by which the Tax Payments previously made were less than the Tax Payments required to be made under this Article 38, and Tenant shall pay the amount of the deficiency within ten (10) days after demand therefor.

(e) The expiration or termination of this lease during any Tax Year for any part or all of which there is a Tax Payment or refund due under this Article 38 shall not affect the rights or obligations of the parties hereto respecting such Tax Payment or refund and any Tax Statement relating to such Tax Payment may, on a pro-rata basis, be sent to Tenant subsequent to, and all such rights and obligations shall survive, any such expiration or termination. Any such payment shall be (i) calculated based on a year of 365 days and paid based on the actual number of days elapsed and (ii) shall be payable within thirty (30) days after such statement is sent to Tenant.

39. ATTORNMENT AND NOTICE TO OWNER.

Supplementing the provisions of Article 7 of this lease:

(a) This lease, and all rights of Tenant hereunder, are and shall be subject and subordinate to all ground leases, overriding leases and underlying leases of the Land and/or the Building and/or that portion of the Building of which the Demised Premises are a part, now or hereafter existing and to all mortgages and assignments of leases and rents (each such mortgage or assignment is hereinafter referred to as a “mortgage”) which may now or hereafter affect the Land and/or the Building and/or that portion of the Building of which the Demised Premises are a part and/or any of such leases, whether or not such mortgages shall also cover other lands and/or buildings and/or leases, to each and every advance made or hereafter to be made under such mortgages, and to all renewals, modifications, replacements and extensions of such leases and such mortgages and spreaders and consolidations of such mortgages. This Section shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall promptly execute, acknowledge and deliver any instrument that Owner, the lessor under any such lease or the holder of any such mortgage or any of their respective successors-in-interest may reasonably request to evidence such subordination; and if Tenant fails to execute, acknowledge or deliver any such instruments within ten (10) business days after Owner’s written request therefor, Tenant hereby irrevocably constitutes and appoints Owner as Tenant’s attorney-in-fact, coupled with an interest, to execute and deliver any such instruments for and on behalf of Tenant. Any lease to which this lease is, at the time referred to, subject and subordinate is herein called “Superior Lease” and the lessor of a Superior Lease or its successor in interest, at the time referred to, is herein called “Superior Lessor”; and any mortgage to which this lease is, at the time referred to, subject and subordinate is herein called “Superior Mortgage” and the holder of a Superior Mortgage is herein called “Superior Mortgagee”.

(b) If any act or omission of Owner would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this lease, or to abate or offset against the payment of rent or to claim a partial or total eviction, Tenant shall not exercise such right until (i) it has given written notice of such act or omission to Owner and each Superior Mortgagee and each Superior Lessor whose name and address shall previously have been furnished to Tenant and (ii) a reasonable period for remedying such act or omission shall have elapsed following the giving of such notice (which reasonable period shall be the period to which Owner would be entitled under this lease or otherwise, after similar notice, to effect such remedy plus thirty (30) days). As of the date of this lease, (i) the holder of the only Superior Mortgage encumbering the Land and Building is LaSalle Bank National Association, as Trustee for the benefit of the Holders of Morgan Stanley Capital I, Inc. Commercial Mortgage Pass-Through Certificates Series 2005-IQ9, its Successors and/or Assigns, c/o Principal Global Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450 and (ii) there is no Superior Lessor.

(c) If any Superior Lessor or Superior Mortgagee, or any designee of any Superior Lessor or Superior Mortgagee, shall succeed to the rights of Owner under this lease, whether through possession or foreclosure action or delivery of a new lease or deed, then at the request of such party so succeeding to Owner’s rights (herein called “Successor Owner”), Tenant

 

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shall attorn to and recognize such Successor Owner as Tenant’s Owner under this lease and shall promptly execute and deliver any instrument that such Successor Owner may reasonably request to evidence such attornment. Upon such attornment this lease shall continue in full force and effect as a direct lease between the Successor Owner and Tenant upon all of the terms, conditions and covenants as are set forth in this lease, except that the Successor Owner shall not be:

(i) liable for any previous act or omission of Owner (or its predecessors in interest);

(ii) responsible for any moneys owing by Owner to the credit of Tenant;

(iii) subject to any credits, offsets, claims, counterclaims, demands or defenses which Tenant may have against Owner (or its predecessors in interest);

(iv) bound by any payments of rent which Tenant might have made for more than one (1) month in advance to Owner (or its predecessors in interest);

(v) bound by any covenant to undertake or complete any construction of the Demised Premises or any portion thereof;

(vi) required to account for any security deposit other than any security deposit actually delivered to the Successor Owner;

(vii) bound by any obligation to make any payment to Tenant or grant or be subject to any credits, except for services, repairs, maintenance and restoration provided for under this lease to be performed after the date of attornment and which Owners of like properties ordinarily perform at the owner’s expense, it being expressly understood, however, that the Successor Owner shall not be bound by an obligation to make payment to Tenant with respect to construction performed by or on behalf of Tenant at the Demised Premises;

(viii) bound by any modification of this lease made without the written consent of the Superior Mortgagee or Superior Lessor, as the case may be; or

(ix) required to remove any person occupying the Demised Premises or any part thereof.

(d) If a Superior Mortgagee or prospective superior mortgagee shall request modifications to this lease, Tenant shall not unreasonably withhold, delay or defer Tenant’s consent thereto, provided that such modifications shall not increase Tenant’s monetary obligations hereunder or increase tenant’s non-monetary obligations hereunder by more than a de minimis amount or adversely affect the leasehold interest hereby created by more than a de minimis amount. In no event shall a requirement that the consent of any such Superior Mortgagee or prospective superior mortgagee be given for any modification of this lease or for any assignment or sublease, be deemed to materially adversely affect the leasehold interest hereby created.

40. ASSIGNMENT AND SUBLETTING.

(a) (i) Tenant shall not, whether voluntarily, involuntarily, or by operation of law or otherwise (A) assign or otherwise transfer this lease or the term and estate hereby granted, or offer or advertise to do so, (B) sublet the Demised Premises or offer or advertise to do so, or allow the same to be used, occupied or utilized by anyone other than Tenant, (C) mortgage, pledge, encumber or otherwise hypothecate this lease or the Demised Premises or any part thereof in a manner whatsoever or (D). permit the Demised Premises or part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant without in each instance obtaining the prior written consent of Owner (which consent shall not be unreasonably withheld or delayed, but only to the extent expressly provided in this Article 40).

 

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(ii) Tenant expressly covenants and agrees that (A) if Tenant is a corporation, a transfer of more than fifty percent (50%) at any one time or, in the aggregate from time to time of the shares of any class of the issued and outstanding stock of Tenant, its successors or assigns, or the issuance of additional shares of any class of its stock to the extent of more than 50% of the number of shares of said class of stock issued and outstanding at the time that it became the tenant hereunder or (B) if Tenant is a partnership, limited liability company, unincorporated association or other entity, the sale or transfer of more than 50% of the partnership, membership, joint venture, unincorporated association interests or other form of beneficial interests of Tenant, its successors or assigns, shall constitute an assignment of this lease and, unless in each instance the prior written consent of Owner has been obtained, shall constitute a default under this lease and shall entitle Owner to exercise all rights and remedies provided for herein in the case of default. Notwithstanding the foregoing provisions of this Section 40(a)(ii), transfers of stock in a corporation whose shares are traded in the “over-the-counter” market or any recognized national securities exchange shall not constitute an assignment for purposes of this lease, provided that the principal purpose of such transfer or transfers is not to avoid the restrictions on assignment otherwise applicable under this Article 40.

(b) (i) If Tenant is a corporation, limited liability company, partnership or similar entity, Owner’s consent shall not be required with respect to sublettings to any corporation or similar entity or to any limited liability company, partnership or similar entity which is an Affiliate of Tenant, provided that (1) any such Affiliate is a reputable entity of good character and (2) a duplicate original instrument of sublease in form and substance reasonably satisfactory to Owner, duly executed by Tenant and such Affiliate, shall have been delivered to Owner at least ten (10) days prior to the effective date of any such sublease. For purposes of this Article 40, the term “Affiliate” shall mean any entity which controls or is controlled by or under common control with tenant, and the term “control” shall mean, in the case of a corporation, ownership or voting control, directly or indirectly, of at least fifty (50%) percent of all the voting stock, and in case of a joint venture, limited liability company, partnership or similar entity, ownership, directly or indirectly, of at least fifty (50%) percent of all the general or other partnership, membership (or similar) interests therein.

(ii) If Tenant is a corporation, limited liability company, partnership or similar entity, Owner’s consent shall not be required with respect to an assignment of this lease to an Affiliate of Tenant, provided that (1) the assignee is a reputable entity of good character, (2) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Owner, duly executed by Tenant, shall have been delivered to Owner at least ten (10) days prior to the effective date of any such assignment, (3) an instrument in form and substance satisfactory to Owner, duly executed by the assignee, in which such assignee assumes (as of the Commencement Date) observance and performance of, and agrees to be personally bound by, all of the terms, covenants and conditions of this lease on Tenant’s part to be performed and observed shall have been delivered to Owner not more than ten (10) days after the effective date of such assignment, (4) such assignment is for a legitimate business purpose and not principally for the purpose of avoiding the restrictions on assignment otherwise applicable under this Article 40 and (5) such assignee has a net worth computed in accordance with generally accepted accounting principles at least equal to the greater of (A) the net worth of Tenant on the date of this Lease (B) the net worth of Tenant immediately prior to such assignment and (C) $2,000,000.00.

(iii) If Tenant is a corporation, limited liability company, partnership or similar entity, Owner’s consent shall not be required with respect to an assignment of this lease to a corporation, limited liability company, partnership or similar entity into or with which Tenant is merged or consolidated or transactions with a corporation, limited liability company, partnership or similar entity to which all or substantially all of Tenant’s assets are sold, provided that (1) the successor to Tenant is a reputable entity of good character, (2) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Owner, duly executed by Tenant and such Affiliate, shall have been delivered to Owner at least ten (10) days prior to the effective date of any such assignment;, (3) an instrument in form and substance reasonably satisfactory to Owner, duly executed by the assignee, in which such assignee assumes (as of the Commencement Date) observance and performance of, and agrees to be bound by, all of the terms, covenants and conditions of this lease on Tenant’s part to be performed and observed shall have been delivered to Owner not more than ten (10) days after the effective date of such

 

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assignment, (4) such assignment is for a legitimate business purpose and not principally for the purpose of avoiding the restrictions on assignment otherwise applicable under this Article 40 and (5) such assignee has a net worth computed in accordance with generally accepted accounting principles at least equal to the greater of (A) the net worth of Tenant on the date of this lease, (B) the net worth of Tenant immediately prior to such assignment and (C) $2,000,000.00.

(c) If this lease be assigned, whether or not in violation of the provisions of this lease, Owner may collect rent from the assignee. If the Demised Premises are sublet or used or occupied by anybody other than Tenant, whether or not in violation of this lease, Owner may collect rent from the subtenant or occupant. In either event, Owner may apply the net amount collected to the Fixed Rent and Additional Charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of Section 40(a), or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the performance by Tenant of Tenant’s obligations under this lease. The consent by Owner to a particular assignment, mortgaging, subletting or use or occupancy by others shall not in any way be considered a consent by Owner to any other or further assignment, mortgaging or subletting or use or occupancy by others not expressly permitted by this Article 40. References in this lease to use or occupancy by others (that is, anyone other than Tenant) shall not be construed as limited to subtenants and those claiming under or through subtenants but shall also include licensees and others claiming under or through Tenant, immediately or remotely.

(d) Any assignment or transfer, whether made with or without Owner’s consent, shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Owner an agreement in form and substance reasonably satisfactory to Owner whereby the assignee shall assume the obligations of this lease on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions in Section 40(a) shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers. The original named Tenant covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this lease, and notwithstanding the acceptance of Fixed Rent and/or Additional Charges by Owner from an assignee, transferee, or any other party, the original named Tenant shall remain fully liable for the payment of the Fixed Rent and Additional Charges and for the other obligations of this lease on the part of Tenant to be performed or observed.

(e) The joint and several liability of Tenant and any immediate or remote successor in interest of Tenant and the due performance of the obligations of this lease on Tenant’s part to be performed or observed shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Owner extending the time of, or modifying any of the obligations of, this lease, or by any waiver or failure of Owner to enforce any of the obligations of this lease.

(f) The listing of any name other than that of Tenant, whether on the doors of the Demised Premises or the Building directory, or otherwise, shall not operate to vest any right or interest in this lease or in the Demised Premises, nor shall it be deemed to be the consent of Owner to any assignment or transfer of this lease or to any sublease of the Demised Premises or to the use or occupancy thereof by others.

(g) Notwithstanding anything to the contrary contained in this Article 40, if Tenant shall at any time or times during the term of this lease desire to assign this lease or sublet all or any portion of the Demised Premises, Tenant shall give notice thereof to Owner (the “Assignment/Sublet Request”), which Assignment/Sublet Request shall be accompanied by (i) a conformed or photostatic copy of the proposed assignment or sublease, the effective or commencement date of which shall be at least forty-five (45) days after the giving of such Assignment/Sublet Request, (ii) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Demised Premises, and (iii) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent certified financial statements, if such financial statements are certified (or, if not, certified by the chief financial officer of the proposed assignee or subtenant as being true and correct). The Assignment/Sublet Request shall be deemed an offer from Tenant to Owner whereby Owner (or Owner’s designee) may, at its option, (A) terminate this lease (if the proposed transaction is an assignment or a sublease of all

 

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or substantially all of the Demised Premises) or (B) terminate this lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of less than all or substantially all of the Demised Premises). Said option may be exercised by Owner by notice to Tenant at any time within forty-five (45) days after the Assignment/Sublet Request has been given by Tenant to Owner; and during such 45-day period Tenant shall not assign this lease or sublet the Demised Premises to any person or entity.

(h) If Owner exercises its option to terminate this lease in the case where Tenant desires either to assign this lease or sublet all or substantially all of the Demised Premises, then this lease shall end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the Fixed Rent and Additional Charges shall be paid and apportioned to such date.

(i) If Owner exercises its option to terminate this lease with respect to the space covered by Tenant’s proposed sublease in any case where Tenant desires to sublet part of the Demised Premises, then (i) this lease shall end and expire with respect to such part of the Demised Premises on the date that the proposed sublease was to commence; (ii) from and after such date the Fixed Rent and Additional Charges shall be adjusted, based upon the proportion that the rentable area of the Demised Premises remaining bears to the total rentable area of the Demised Premises; and (iii) Tenant shall pay to Owner, upon demand, as Additional Charges hereunder the costs incurred by Owner in physically separating such part of the Demised Premises from the balance of the Demised Premises and in complying with any laws and requirements of any public authorities relating to such separation.

(j) In the event Tenant shall have complied with the provisions of Section 40(g) and Owner does not exercise its options pursuant to Section 40 (g) to terminate this lease in whole or in part, and provided that Tenant is not in default of any of Tenant’s obligations under this lease beyond the expiration of any applicable notice and/or cure period, either at the time Owner’s consent to such assignment or sublease is requested or at the commencement of the term of any proposed sublease or on the effective date of any such assignment, Owner’s consent (which must be in writing and in form satisfactory to Owner) to the proposed assignment or sublease shall not be unreasonably withheld, provided and upon condition that:

(i) In Owner’s judgment the proposed assignee or subtenant is engaged in a business and the Demised Premises will be used in a manner which is limited to the use expressly permitted under Article 2;

(ii) The proposed assignee or subtenant is a reputable person of good character whose tenancy shall comport with the first class character of the Building, having a net worth satisfactory to Owner considering the responsibility involved;

(iii) Neither (A) the proposed assignee or sublessee nor (B) any person which, directly or indirectly, controls, is controlled by, or is. under common control with, the proposed assignee or sublessee or any person who controls the proposed assignee or sublessee, is (x) then an occupant of any part of the Building or any other building owned or operated under a ground or underlying lease by Owner or any person which, directly or indirectly, controls, is controlled by, or is under common control with Owner or any person who controls Owner or (y) a person with whom Owner is then (or within the immediately preceding six-month period was) negotiating to lease space in the Building;

(iv) The form of the proposed sublease shall be in form reasonably satisfactory to Owner and shall comply with the applicable provisions of this Article 40 (including, without limitation Section 40(1) below);

(v) There shall not be more than one (1) occupant of the Demised Premises (i.e., either Tenant or Tenant’s subtenant);

(vi) Tenant shall reimburse Owner on demand for the reasonable costs that may be incurred by Owner in connection with said assignment or sublease, including, without limitation, the costs of making investigations as to the acceptability of the proposed

 

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assignee or subtenant, and legal costs incurred in connection with the granting of any requested consent;

(vii) No advertisement shall have stated the proposed rental, and Tenant shall not have listed the Demised Premises for subletting, whether through a broker, agent, representative, any computerized or electronic listing system or service (including, without limitation “Co-Star” or “Re-locate”) or otherwise, at a rental rate less than the fixed rent and additional charges at which Owner is then offering to lease other space in the Building. Nothing contained in this subclause (vii) shall be construed to prohibit Tenant from actually entering into a sublease at a rental less than the amount described in the preceding sentence.

(k) If Owner fails to exercise any of its options under Section 40(g) and

(i) (x) Owner consents to a proposed assignment or sublease and (y) Tenant fails to execute and deliver to Owner an assignment or sublease within sixty (60) days after the giving of such consent; or

(ii) if the form of sublease or assignment executed and delivered by Tenant shall not be on the same material terms set forth in the form sublease or assignment, as the case may be, delivered to Owner together with the Assignment/ Sublet Request,

then in either of such events, Tenant shall again comply with all of the provisions and conditions of Section 40(g) before assigning this lease or subletting all or part of the Demised Premises.

(l) With respect to each and every sublease or subletting authorized by Owner under the provisions of this lease, it is further agreed:

(i) No subletting shall be for a term ending later than one day prior to the expiration date of this lease.

(ii) No sublease shall be valid, and no subtenant shall take possession of the Demised Premises until an executed counterpart of such sublease has been delivered to Owner.

(iii) Each sublease shall provide that it is subject and subordinate to this lease and to the matters to which this lease is or shall be subordinate, and that in the event of termination, re-entry or dispossess by Owner under this lease Owner may, at its option, take over all of the right, title and interest of Tenant, as sublessor, under such sublease, and such subtenant shall, at Owner’s option, attorn to Owner pursuant to the then executory provisions of such sublease, except that Owner shall not (A) be liable for any previous act or omission of Tenant under such sublease, (B) be subject to any offset, not expressly provided in such sublease, which theretofore accrued to such subtenant against Tenant, or (C) be bound by any previous modification of such sublease or by any previous prepayment of more than one month’s rent.

(iv) Each sublease shall (A) provide that the subtenant may not assign its rights thereunder or further sublet the space demised under the sublease, in whole or in part, without Owner’s consent, which consent shall not be unreasonably withheld or delayed, but such right to sublet or assign shall be subject to all other provisions of this Article 40, including, without limitation, Owner’s rights under Section 40(g) and (B) set forth the terms and provisions of Section 40(b), with the subtenant being subject to the restrictions in Section 40(b) applicable to Tenant.

(v) No sublease shall demise less than the entire Demised Premises.

(m) If the Owner shall give its consent to any assignment of this lease or to any sublease, Tenant shall in consideration therefor, pay to Owner, as Additional Charges, an amount equal to seventy-five percent (75%) of the Assignment Profit (hereinafter defined) or Sublease Profit (hereinafter defined), as the case may be.

(i) The term “Assignment Profit” as used herein shall mean an amount equal to the excess of (x) all sums and other consideration paid to Tenant by the assignee for or

 

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by reason of such assignment, including, without limitation, any sums paid for Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property over (y) the Transaction Costs (as hereinafter defined).

(ii) The term “Sublease Profit” as used herein shall mean an amount equal to the excess of (x) any rents, additional charges or other consideration payable under the sublease to Tenant by the subtenant (including, without limitation, any fee, penalty or charge paid by the subtenant for the right to cancel the sublease) which is in excess of the Fixed Rent and Additional Charges accruing during the term of the sublease in respect of the subleased space (at the rate per square foot payable by Tenant hereunder) pursuant to the terms hereof, including, without limitation, any sums paid for the value of Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property over (y) the Transaction Costs.

(iii) The term “Transaction Costs” shall mean, with respect to any assignment or subletting, the following costs incurred by Tenant: the cost of work performed to prepare the Demised Premises for the assignee or subtenant, the sum of customary brokerage commissions incurred in connection with the assignment or sublease, and reasonable attorneys’ fees incurred in connection with the preparation and negotiation of the assignment or sublease (but not including attorneys’ fees incurred in connection with obtaining Owner’s consent to the assignment or sublease). In calculating Assignment Profit or Sublease Profit, all Transaction Costs shall be amortized on a straight-line basis over the term of the sublease (or over the balance of the term of this lease in the case of an assignment).

(n) The sums payable under Section 40(m) above shall be paid to Owner as and when paid by the assignee or the subtenant, as the case may be, to Tenant. Tenant shall use all reasonable efforts to collect (1) in the case of an assignment, all sums and other consideration payable to it by the assignee for or by reason of such assignment and (2) in the case of a sublease, all rents, additional charges and other consideration payable to it under the sublease and, in every case, Tenant shall, from time to time upon written demand by Owner, provide Owner with an accounting of all such sums payable to it by any such assignee and/or subtenant.

(o) Each subletting shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this lease. Notwithstanding any subletting and/or acceptance of rent or additional charges by Owner from any subtenant, Tenant shall and will remain fully liable for the payment of the Fixed Rent and Additional Charges due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this lease on the part of Tenant to be performed and all acts and omissions of any licensee or subtenant or anyone claiming under or through any subtenant which shall be in violation of any of the obligations of this lease, and any such violation shall be deemed to be a violation by Tenant. Tenant further agrees that notwithstanding any such subletting, no other and further subletting of the Demised Premises by Tenant or any person claiming through or under Tenant shall or will be made except upon compliance with and subject to the provisions of this Article 40. If Owner shall decline to give its consent to any proposed assignment or sublease, or if Owner shall exercise any of its options under Section 40(g), Tenant shall indemnify, defend and hold harmless Owner against and from any and all loss, liability, damages, costs and expenses (including reasonable counsel fees) resulting from any claims that may be made against Owner by the proposed assignee or subtenant or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease.

(p) Tenant shall reimburse Owner on demand for any reasonable costs that may be incurred by Owner in connection with any proposed assignment or sublease, whether or not consummated, including, without limitation, the reasonable costs of making investigations as to the acceptability of the proposed assignee or subtenant, and reasonable legal costs incurred in connection with any such transaction.

41. INSURANCE. Supplementing the provisions of Article 8 of this lease:

(a) Tenant shall at its own cost and expense at all times during the term of this lease maintain in force and effect, the following insurance, in blanket form or otherwise, with

 

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reputable and independent insurers admitted and licensed to do business in New York in amounts set forth below:

(i) All-risk property insurance (including fire insurance) on leasehold improvements and on all personal property in the Demised Premises or used in connection therewith including, without limitation, Tenant’s improvements, decorations, fixtures, furniture, stock and other contents) in an amount not less than the replacement cost thereof and time element coverage including extra expense to cover Tenant’s loss sustained by reason of a peril covered under the policy;

(ii) Commercial General liability insurance, including Products Liability insurance, at a $1,000,000 per occurrence, combined single limit, bodily injury and property damage, subject to no deductible, including, all standard Broad Form Comprehensive General Liability coverages. The Fire Legal Liability limit in the Broad Form endorsement shall be written in an amount not less than $250,000.00;

(iii) Umbrella Liability insurance at a $2,000,000 limit per occurrence and a $2,000,000 limit for general and specific aggregates subject to not more than a $25,000 Self Insured Retention, providing excess coverage over all coverages included in the Commercial General Liability policy and Broad Form Commercial Liability endorsement noted in clause (iii) above. Said umbrella policies shall be included as underlying and the provisions of such policies shall apply in the same manner as the primary policies with no additional exclusions or limitations above those contained in the general liability policy;

(iv) Statutory workers compensation insurance covering Tenant’s employees with employer’s liability limits of not less than $1,000,000.00 or statutory limit, whichever is greater; and

(v) All other insurance reasonably necessary for the conduct of Tenant’s business.

(b) All insurance policies shall name Owner, its managing agent and their respective officers, partners, shareholders, directors, agents, employees and any owned, controlled, affiliated subsidiary company or corporation now existing or hereinafter constituted, as their interest may appear as an insured and, except for business interruption policies, shall also name any mortgagee or lessor of the Building as an additional insured, and shall be fully paid for by Tenant when obtained, and receipted bills therefor shall be exhibited to Owner. Renewal policies shall be procured and such policies, if required by any mortgagee or lessor of the Demised Premises, or certificates thereof shall be submitted to Owner with receipted bills showing proof of payment of premiums therefor at least thirty (30) days prior to the expiration of the existing policies. All insurance policies shall be issued by companies licensed to do business in New York State, with an A.M. Best rating of not less than A-X, and all such policies shall provide that the insurer will not cancel or modify said policies without first giving Owner thirty (30) days prior written notice.

(c) In the event of the failure of Tenant to procure or pay for any insurance required by the terms of this lease, then Owner may, without further notice to Tenant and in addition to any other remedies it may have, procure the same and pay the premiums therefor; and any sums expended by Owner for this purpose shall be and become due and payable to Owner as Additional Charges and shall be paid to Owner on demand. Owner shall have the same remedies for the nonpayment therefor as for the nonpayment of Fixed Rent.

(d) Owner may from time to time require that the amount of the insurance to be maintained by Tenant under this Article be increased to the amount which is then customarily required by prudent owners of first class office buildings in midtown Manhattan.

42. ELECTRIC ENERGY.

(a) Subject to the provisions of this Article 42, Owner shall furnish the electric energy that Tenant shall reasonably require in the Demised Premises for the purposes permitted under this lease on a “rent inclusion” basis and there shall be no separate charge to Tenant for such electric energy, such electric energy being included in Owner’s services which

 

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are covered by the Fixed Rent. Owner and Tenant agree that the Base Electric Charge (hereinafter defined) represents the amount initially included in the annual Fixed Rent set forth in Section 37(b) hereof to cover the furnishing of such electric energy by Owner on a rent inclusion basis and that such Base Electric Charge component of Fixed Rent shall in no event be subject to reduction, but shall be subject to being increased as hereinafter provided. Owner shall not be liable in any event to Tenant for any failure, interruption or defect in the supply or character of electric energy furnished to the Demised Premises by reason of any requirement, act or omission of the public utility serving the Building with electricity or for any other reason not attributable solely to Owner’s willful misconduct or gross negligence (but in no event shall Owner be responsible for any consequential damages). For purposes of this Article 42, the “Base Electric Charge” shall mean an annual amount equal to Nine Thousand Nine Hundred Forty-Seven and 00/100 Dollars ($9,947.00).

(b) Owner will furnish electric energy to Tenant through currently installed electric facilities for Tenant’s reasonable use of such lighting and other electrical fixtures, appliances and equipment required for the conduct of Tenant’s business in the Demised Premises. At any time, and from time to time, after Tenant shall have entered into possession of the Demised Premises, or any portion thereof, Owner may designate an independent electrical consultant to make a survey or resurvey of the electrical consumption and power load on the Demised Premises to determine Tenant’s average electrical consumption and demand taking into account, such usage factors as Owner may reasonably determine. If the cost of Tenant’s average electrical consumption is greater than the estimated consumption upon which the “electric rent inclusion plan” was initially based (or greater than the Base Electric Charge (as such charge and the fixed rent may have previously been increased pursuant to a previous survey and/or Section 42(c) below) the Fixed Rent hereunder shall, upon written notice from Owner to Tenant, be increased by the incremental annual cost of Tenant’s consumption and demand, as estimated by the electrical consultant, effective as of the date the increase in such electric consumption occurred (as determined by the electrical consultant) or, with respect to the initial survey, as of the Commencement Date. The initial unpaid amount of each such adjustment shall be paid within ten (10) days after Owner furnishes Tenant with a statement thereof. Thereafter, the Fixed Rent shall be increased appropriately. In no event shall the “rent-inclusion” component Of Fixed Rent hereunder ever be less than the Base Electric Charge.

(c) If at any time during the term of this lease the Electric Rate (as hereinafter defined) shall be changed so as to exceed the Electric Rate then in effect on the date of this lease (as same may have been increased pursuant to the provisions of this Article), then, effective as of the date of each such change in the Electric Rate, the charge for electricity included in the Fixed Rent shall be increased or decreased in proportion to such change in the Electric Rate (as determined by Owner’s electrical consultant but in no event, however, shall such electric consumption charge be reduced below the Electric Rate then in effect). The term “Electric Rate” shall mean at the time in question 110% of the public utility (and/or third party supplier) rate schedule (including all surcharges, taxes, fuel adjustments, taxes regularly passed on to consumers by the public utility, and other sums payable in respect thereof) for the supply of electric energy to Owner for the Building. Notwithstanding the foregoing provisions of this Section, if the public utility rate schedule (with such inclusions) applicable to Owner for the purchase of electric energy for the Building shall be less than the public utility rate schedule applicable to Owner if Owner were to purchase electricity solely for the Demised Premises, then the higher rate schedule shall be used in determining the Electric Rate.

(d) Tenant’s use of electric energy in the Demised Premises shall not at any time exceed the capacity of any of the electrical conductors and equipment in or otherwise serving the Demised Premises.

(e) Owner reserves the right to discontinue furnishing electric energy to Tenant in the Demised Premises at any time upon not less than 30 days’ notice to Tenant. If Owner exercises such right, this lease shall continue in full force and effect and shall be unaffected thereby, except that from and after the effective date of such termination Owner shall not be obligated to furnish electric energy to Tenant and the Fixed Rent payable under this lease shall be reduced by an amount equal to the “rent inclusion” component of such Fixed Rent. If Owner so discontinues furnishing electric energy to Tenant, Tenant shall arrange to obtain electric energy directly from the public utility company furnishing electric energy to the

 

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Building. Such electric energy may be furnished to Tenant by means of the then existing Building system feeders, risers and wiring to the extent that the same are available, suitable and safe for such purpose. All meters and additional panel boards, feeders, risers, wiring and other conductors and equipment which may be required to obtain electric energy directly from such public utility company shall be furnished and installed by Owner at Tenant’s expense, but Owner may, at its option, before commencing any such work or at any time thereafter, require Tenant to furnish to Owner such security in form (including, without limitation, a bond issued by a corporate surety licensed to do business in New York) and amount as Owner shall deem necessary to assure the payment for such work by Tenant.

43. OWNER’S SERVICES.

Supplementing the provisions of Article 29 of this lease:

(a) Subject to the provisions of Section 29(e) hereof, Owner shall, at Owner’s expense (except as set forth below), furnish cool and tempered air (“air-conditioning”) at reasonable temperatures, pressures and degrees of humidity and in reasonable volumes and velocities at suitable locations in the Demised Premises from 8:00 a.m. to 6:00 p.m. (“Business Hours”) on Business Days, from April 1 through October 31. As used herein, the term “Business Days” shall mean all days except (1) Saturdays, (2) Sundays and (3) the following holidays: New Year’s Day, Martin Luther King Day, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, the day following Thanksgiving, Christmas and any other days which shall be either (x) observed by the federal or state governments as legal holidays or (y) designated as a holiday by the applicable Building Service Union Employee Service contract or by the applicable Operating Engineers contract.

(b) If Tenant requires base-Building ventilation or air-conditioning services during hours other than Business Hours on Business Days, Owner shall furnish such services initially at the rates set forth on Exhibit C (subject to increase as set forth in Section 43(g) below) per hour, per zone, of service to Tenant at Tenant’s expense (minimum 4 hours).

(c) Owner shall not be responsible for any failure to supply air-conditioning at reasonable temperatures, pressures or degrees of humidity or in reasonable volumes or velocities in any room or other area of the Demised Premises by reason of any machinery or equipment installed therein by Tenant, or which has a human occupancy factor in excess of one person per 100 rentable square feet. Tenant agrees to cooperate fully with Owner at all times and to abide by all regulations and requirements which Owner may reasonably prescribe for the proper functioning and protection of said air-conditioning system.

(d) (i) Owner will cause the general and executive office portions of the Demised Premises to be cleaned in accordance with the cleaning specifications annexed hereto as Exhibit B and made a part hereof. Tenant shall pay to Owner as Additional Charges (within ten (10) days after demand therefor) Owner’s charge for (x) any cleaning of the Demised Premises or any part thereof which is above the Building-standard requirements, (y) any cleaning done at the request of Tenant of any portions of the Demised Premises which may be used for the preparation, dispensing or consumption of food or beverages or for storage, shipping room, classroom or similar purposes or predominantly for the operation of computer, data processing or similar equipment and (z) the removal of any of Tenant’s above Building-standard refuse and rubbish from the Building.

(ii) All cleaning which is in addition to the base Building cleaning shall be provided by Owner’s vendor of such services. Owner, its cleaning contractor and their employees shall have access to the Demised Premises at all times after 5:30 P.M. and before 8:00 A.M. and shall have the right to use, without charge therefor, all light, power and water in the Demised Premises reasonably required to clean the Demised Premises as required under this Section. Tenant shall comply with any rules Owner and/or its cleaning contractor and/or any consultant to Owner may establish regarding the management and recycling of solid waste, as may be necessary for Owner to comply with any applicable legal requirements.

 

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(e) Owner, at its expense, shall furnish adequate water to the Demised Premises for drinking, lavatory and cleaning purposes. If Tenant uses water for any other purpose or in unreasonable quantities, Owner may install, at Tenant’s sole cost and expense, meters to measure Tenant’s consumption of water for such other purposes, and the cost of maintaining such meters shall be paid by Tenant. Tenant shall reimburse Owner for the quantities of water shown on such meters and Owner’s reasonable charge for the production of any hot water, on demand.

(f) Subject to the terms of this lease, throughout the term, Owner shall make (i) all passenger elevators in the elevator bank serving the Demised Premises available from the lobby to service the Demised Premises during Business Hours on Business Days and (ii) at least one passenger elevator in the elevator bank serving the Demised Premises available from the lobby to service the Demised Premises at all other times. Throughout the term of this lease and subject to such rules and regulations of Owner as may from time to time be in effect, Tenant shall be entitled, during Business Hours on Business Days, to use the freight elevators serving the Demised Premises on a first-come, first serve basis in common with Owner and the other tenants of the Building. If Tenant shall require the use of the Building’s freight elevators at times other than Business Hours on Business Days, Owner shall provide the same for the use of Tenant on a first-come, first-serve scheduled basis with Owner and the other tenants or occupants of the Building, provided Tenant gives Owner reasonable notice of the time and use of such elevators and Tenant pays, as Additional Charges within ten (10) days after demand, for each freight elevator an amount equal to Owner’s Building standard hourly charge therefor. Notwithstanding the foregoing (but nevertheless subject to the above restrictions), provided that Tenant is not then in default in the payment of Fixed Rent or Additional Charges and Tenant is not in default of any other provision of this lease beyond the expiration of any applicable notice and/or cure period, Tenant shall be entitled to receive eight (8) hours overtime use of the freight elevators during Tenant’s initial move-in to the Demised Premises, at no charge to Tenant.

(g) Owner’s charges in effect on the date hereof for various services are set forth on Exhibit C annexed hereto, which charges are subject to increase from time-to-time as determined by Owner based upon union rates and market changes.

(h) Notwithstanding anything to the contrary herein, if Tenant is in default under any of the covenants of this lease, Owner shall not be required to furnish any overtime services (i.e., other than during Business Hours on Business Days) unless Tenant shall have first delivered to Owner adequate cash or other security for the payment of such overtime services, as determined by Owner.

44. LATE CHARGE. In addition to any other remedies Owner may have under this lease, and without reducing or adversely affecting any of Owner’s rights and remedies hereunder, if any Fixed Rent or Additional Charges payable by Tenant to Owner hereunder is not paid within five (5) days of the due date thereof, Tenant shall pay Owner as Additional Charges, on or before the first day of the following month, 8¢ for each dollar so overdue, or the maximum rate permitted by law, whichever is less, in order to defray Owner’s administrative and other costs in connection therewith.

45. BROKER. Tenant represents to Owner, and Owner represents to Tenant, that CB Richard Ellis, Jones Lang LaSalle Broker, Inc. and Macklowe Management LLC (collectively, “Broker”) are the only brokers or agents with whom each such party has had any conversations or negotiations concerning the Demised Premises or this lease. Each party hereto hereby agrees to indemnify and hold the other party harmless from and against (a) any claim for a brokerage commission made by any party other than Broker and (b) any expenses incurred by such party in connection with such claim, to the extent such claim arises out of the misrepresentation by such other party. Owner shall pay the commission due to Broker, if any, pursuant to a separate written agreement.

46. MISCELLANEOUS PROVISIONS.

(a) No agreement shall be effective to change, modify, waive, release, discharge, terminate or effect an abandonment of this lease, in whole or in part, unless such agreement is in writing, expressly refers to this lease and is signed by the party against whom

 

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enforcement of the change, modification, waiver, release, discharge, termination or effectuation of the abandonment is sought.

(b) Owner and any successor in interest to Owner shall be under no personal liability with respect to any of the provisions of this lease, and if Owner or any successor in interest to Owner is in breach or default with respect to its obligations under this lease, Tenant shall look solely to the equity of Owner or such successor in interest in the Land and Building of which the Demised Premises form a part and the proceeds thereof (including rental income, insurance proceeds, condemnation proceeds, sale proceeds and excess proceeds of any refinancing) for the satisfaction of Tenant’s remedies and in no event shall Tenant attempt to secure any personal judgment against Owner or against any successor in interest to Owner or against any partner, member, principals (disclosed or undisclosed), employee or agent of Owner or any successor in interest to Owner by reason of such default by Owner or any successor in interest to Owner.

(c) If and to the extent that there is a conflict between the provisions contained in the printed portion of the lease to which this Rider is attached and the provisions contained in this Rider, then the provision contained in this Rider shall govern and be controlling to the extent necessary to resolve such conflict.

(d) Notwithstanding anything to the contrary herein, Owner shall not be in default of any of its obligations hereunder unless Owner has failed to perform such obligation within thirty (30) days of receipt of notice from Tenant of such failure, provided that if the nature of such default is such that more than thirty (30) days is required to cure the same, Owner shall not be in default hereunder if Owner commences such cure within such thirty (30) day period and diligently prosecutes the same to completion.

(e) Notwithstanding any provision of this lease to the contrary, if Tenant shall request Owner’s consent pursuant to any of the provisions of this lease and Owner shall fail or refuse to grant such consent, Tenant shall not be entitled to, and Tenant hereby waives, any monetary damages, and Tenant shall not make any claim for monetary damages by way of setoff, counterclaim or defense, based upon any claim or assertion by Tenant that Owner has withheld or delayed granting any such consent, and Tenant’s sole remedy to dispute Owner’s failure or refusal to grant its consent shall be an action for specific performance or injunction and such remedy shall be available only in those cases where Owner has expressly agreed in writing not to unreasonably withhold its consent or where as a matter of law Owner may not unreasonably withhold its consent.

(f) Intentionally Omitted.

(g) Notwithstanding any provision of this lease to the contrary, if, more than two (2) times during the term of this lease, (i) Tenant, or anyone claiming by, through or under Tenant, tenders to Owner a check in respect of any amount due and payable under this lease, and (ii) such check is returned unpaid for any reason, including, without limitation, for reason of insufficient funds, then Owner shall have the right (but no obligation) to require that all amounts due and payable under this lease for the remainder of the term of this lease be remitted in certified funds.

(h) Tenant shall indemnify and hold harmless Owner and Owner’s mortgagee and its and their respective partners, directors, officer, agents and employees from and against any and all claims arising from or in connection with (i) and conduct or management of the Demised Premises or of any business therein, or any work or thing whatsoever done, or any condition created (other than by Owner or its managing agent) in or about the Demised Premises during the term of this lease or during the period of time, if any, prior to the commencement date that Tenant may have been given access to the Demised Premises; (ii) any act, omission or negligence of Tenant or any of its subtenants or licensees or its or their partners, directors, officers, agents, employees or contractors; (iii) any accident, injury or damage whatever (unless caused solely by Owner’s negligence) occurring in, at or upon the Demised Premises; and (iv) any breach or default by Tenant in the full and prompt payment and performance of Tenant’s obligation under this lease; together with all costs, expenses and liabilities incurred in or in connection with each such claim or action or proceeding brought thereon, including, without

 

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limitation, reasonable attorneys’ fees and expenses. In case any action or proceeding be brought against Owner and/or its mortgagee and/or its or their partners, directors, officers, agents and/or employees by reason of any such claim, Tenant, upon notice from Owner or such mortgage, shall resist and defend such action or proceeding (by counsel reasonably satisfactory to Owner or such mortgagee). The provisions of this Section 46(h) shall survive the expiration or earlier termination of this lease.

(i) Supplementing the provisions of Article 35 of this lease, each estoppel certificate furnished pursuant to said Article 35 shall also include such additional information as Owner shall reasonably request.

(j) Supplementing the provisions of Article 34 of this lease, Tenant shall immediately replenish the portion of the security deposit from time to time applied by Owner pursuant to said Article 34.

(k) Tenant shall pay to Owner, as Additional Charges with respect to each calendar year during the term of this lease, an amount (collectively, “Tenant’s Insurance and Security Payment”) equal to Tenant’s Percentage of the Insurance Costs and Security Costs for such year exceeds the Insurance Costs and Security Costs for the 2009 calendar year. At any time after the expiration of such year, Owner may furnish to Tenant a statement setting forth the Tenant’s Insurance and Security Payment for such year, which Tenant shall pay within thirty. (30) days after Tenant’s receipt of such statement from Owner. The Insurance Costs and Security Costs upon which Tenant’s Insurance and Security Payment is based shall be appropriately pro rated for the calendar years in which the Commencement Date and Expiration Date shall occur. As used herein, (x) the term “Insurance Costs” means all costs and expenses incurred by or on behalf of Owner and/or its management company with respect to insurance carried with respect to the Building and (y) the term “Security Costs” means all costs and expenses incurred by or on behalf of Owner and/or its management company with respect to the safety and security of the Building and the occupants thereof, including (i) wages, salaries, disability benefits, pensions, hospitalization, retirement plans, severance packages and group insurance for employees engaged in activities related to the safety and security of the Building and the occupants thereof (but not employees utilized by Owner for the ordinary day-to-day operation of the Building to the extent used for other than safety and security purposes), (ii) the costs of acquisition, installation, operation, rental, repair and maintenance of any mechanical, electronic or other systems and equipment designed to preserve or enhance the safety and security of the Building and the occupants thereof, (iii) the costs of any safety or security services or supplies provided to the Building by any contractors, servicers or suppliers, including any of the items described in clauses (i) or (ii) of this sentence, if provided by others, and (iv) the annual depreciation or amortization, on a straight-line basis over the useful life as reasonably determined by Owner (with interest on the unamortized portion at the Prime Rate announced from time to time by JPMorgan Chase Bank or its successor in interest at its headquarters in New York City plus 2% per annum), of any Security Costs of a capital nature. Notwithstanding the foregoing, in no event shall Tenant’s Insurance and Security Payment for each calendar year exceed $2,500.00 in the aggregate for such calendar year.

(1) (A) Supplementing the provisions of Article 17 above, in case any of the following events shall occur:

(i) Tenant shall at any time be in default of any of Tenant’s monetary obligations contained herein and such default shall continue for five (5) Business Days; or

(ii) Tenant shall at any time be in default in any of its covenants and agreements contained herein, and such default shall continue for thirty (30) days after written notice thereof has been given to Tenant by Owner specifying the particulars thereof, and Tenant shall not within such 30-day period commence with due diligence and dispatch the curing of such default, or, having so commenced, shall thereafter fail to complete with diligence the curing of such default within sixty (60) days after the notice of default; or

(iii) Tenant shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking or acquiescing

 

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in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors; or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of all or any part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof, or shall make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or

(iv) A court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against Tenant seeking any reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from the first date of entry thereof; or any trustee, receiver or liquidator of Tenant or of all or any part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof shall be appointed without the consent or acquiescence of Tenant and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive); or

(v) A writ of execution or attachment or similar process shall be levied against any equipment in the Demised Premises, any purported interest of Tenant in the Demised Premises, or Tenant’s rights to payments hereunder; and such execution, attachment, or similar process is not released, bonded, satisfied or stayed within ten (10) days after its entry or levy:

then, upon the occurrence of any such events, in addition to any and all rights and remedies of Owner under this lease, including the right to seek damages for any breach of this lease, Owner shall have the right, at its option, to terminate this lease by giving five (5) days’ written notice to Tenant of its intent to terminate this lease and the estate created hereby, and, in the event such notice is given, this lease and the estate herein granted shall terminate upon the expiration of such five (5) days with the same effect as if the last of such days were the Expiration Date, but Tenant shall remain liable for damages as provided herein or pursuant to law.

(B) Upon the expiration or earlier termination of this lease for any reason, Owner may, upon such early termination of this lease as provided in Section 46(1)(A) above, without notice, re-enter the Demised Premises either by force or otherwise, and dispossess Tenant and the legal representative of Tenant or other occupant of the Demised Premises by summary proceedings or otherwise, and remove their effects and hold the Demised Premises as if this lease had not been made and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end.

(m) Tenant shall cause the Demised Premises to be free at all times of all rats, mice, other vermin and insects and shall take whatever reasonable precautions that Owner deems necessary to prevent any such vermin or insects from existing in the Demised Premises or permeating into any other parts of the Building or outside the Building. If it is reasonably determined by Owner that such services are necessary in the Demised Premises, Tenant shall employ an exterminator who will utilize the best prevailing method for the prevention of any infestation by, and extermination of, said animals and insects. If, in Owner’s reasonable judgment, Tenant shall fail to satisfactorily carry out the provisions of this subparagraph, Owner may, but shall not be obligated to, employ an exterminator service, and the cost and expense incurred by Owner for such exterminator service shall be repaid to Owner by Tenant, on demand, and such amounts so repayable shall be considered Additional Charges hereunder. Notwithstanding the foregoing, Owner shall have the right to designate an exterminator or exterminating company to provide services to the office portions of the Building, and Tenant shall pay Tenant’s pro rata share of the cost and expense of employing such exterminator or exterminating company in the event Tenant or Tenant’s exterminator or exterminating company fails to keep the Demised Premises free of vermin and insects.

(n) Tenant shall pay to Owner, as Additional Charges with respect to each calendar year during the term of this lease, an amount (collectively, “Tenant’s BID Payment”) equal to Tenant’s Percentage of the BID Charges (as hereinafter defined) for such calendar year.

 

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At any time after the expiration of such year, Owner may furnish to Tenant a statement (which shall include invoices or other reasonably detailed evidence of the BID Charges for such calendar year) setting forth the Tenant’s BID Payment for such year, which Tenant shall pay within thirty (30) days after Tenant’ receipt of such statement from Owner. The BID Charges upon which Tenant’s BID Payment is based shall be appropriately pro rated for the calendar years in which the Commencement Date and Expiration Date shall occur. As used herein, the term “BID Charges” means all charges imposed upon or against the Land and/or Building, Owner or the owner of the Land and/or Building with respect to any business improvement district.

(o) Subject to the provisions of this lease, Tenant shall have access to the Building, at least one (1) passenger elevator serving the 12th floor, and the Demised Premises, 24 hours a day, 7 days a week.

(p) Subject to the terms of this lease, Tenant any, at its expense, install signage on the entrance door to the Demised Premises that identifies Tenant, which signage shall be of design, size, material and quality, and installed in location(s), in each case in accordance with the standard signage program adopted by Owner from time-to-time for the Building. Any such signage installed by (or at the direction of) Tenant shall be removed by Tenant on or prior to the Expiration Date or the earlier termination of this lease. The installation and removal of signage (including, without limitation, the repair of any damage occasioned thereby) shall be performed at Tenant’s sole cost and expense.

(ii) If Owner shall maintain a directory in the Building lobby, Tenant shall be entitled to not fewer than Tenant’s Percentage of available listings on said directory.

(q) Tenant shall have the right to non-exclusive use of the Building conference rooms located on the second floor of the building, in common with Owner, other tenants and occupants of the Building, and any other persons or entities to which Owner shall allow use of said conference rooms. Availability of the conference rooms shall be on a first-come first-serve basis and Tenant shall pay, on demand, Owner’s then established charge for use of the conference rooms and any charges for incidental services provided by Owner in connection therewith. As of the date of this lease, the base rate for use of such conference rooms is $150.00 per hour, but Tenant acknowledges that such rate may change from time to time during the term of this lease.

(r) If any of the Fixed Rent or Additional Charges payable under the terms and provisions of this lease shall be or become uncollectible, reduced or required to be refunded because of any act or law enacted by a governmental authority, Tenant shall enter into such agreement(s) and take such other steps (without additional expense to Tenant) as Owner may request and as may be legally permissible to permit Owner to collect the maximum rents which from time to time during the continuance of such legal rent restriction may be legally permissible (and not in excess of the amounts reserved therefor under this lease). Upon the termination of such legal rent restriction, (i) the Fixed Rent and/or Additional Charges shall become and thereafter be payable in accordance with the amounts reserved herein for the periods following such termination, and (ii) Tenant shall pay to Owner promptly upon being billed, to the maximum extent legally permissible, an amount equal to (x) the Fixed Rent and/or Additional Charges which would have been paid pursuant to this lease but for such legal rent restriction less (y) the rents paid by Tenant during the period such legal rent restriction was in effect.

(s) (i) As a further inducement to Owner to enter into this lease with Tenant, Tenant hereby agrees that with respect to the service of a notice of petition or petition upon Tenant by Owner in any proceeding commenced by Owner against Tenant under the Real Property Actions and Proceedings Law of the State of New York, service of such notice of petition or petition in any such proceedings shall be effective if made upon Tenant at the Demised Premises, irrespective of the fact that Tenant’s principal office or principal place of business, or any other office or place of business of Tenant is located at a place other than the Demised Premises.

 

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(ii) Tenant agrees that a New York judgment against Tenant shall be enforceable as a final judgment, binding on Tenant in the jurisdiction of Tenant’s formation and principal place of business, with all local defenses waived to the fullest extent. At any time and from time to time, Tenant agrees to execute and deliver to Owner an express waiver (in writing) of any such local defenses or limitations on suretyship or otherwise, to the extent that applicable law permits such waiver.

(t) This lease shall be deemed to have been jointly prepared by both of the parties hereto, and any ambiguities or uncertainties herein shall not be construed for or against either of them.

(u) Except as otherwise expressly provided in this lease, the obligations of this lease shall bind and benefit the successors and assigns of the parties hereto with the same effect as if mentioned in each instance where a party is named or referred to; provided, however, that no violation of the provisions of Article 40 shall operate to vest any rights in any successor or assignee of Tenant.

(v) This lease shall not be binding on Owner or Tenant unless and until each of Owner and Tenant shall have executed this lease and Owner shall have delivered a fully executed original counterpart of this lease to Tenant

47. NOTICES. All notices, consents, demands and other communications from one party to the other that are given pursuant to the terms of this lease shall be in writing and shall be delivered (including delivery by commercial delivery services), or sent by the United States mail, certified or registered (return receipt requested), postage prepaid, or sent via nationally recognized overnight courier. Notices shall be deemed given (i) on the date of delivery, if delivered via commercial delivery service (unless such date is a weekend or holiday, in which event such notice shall be deemed given on the next succeeding Business Day), (ii) three (3) Business Days following deposit in the United States mail, if sent via certified or registered mail (return receipt requested) or (iii) on the Business Day next succeeding the date upon which such notice is given to any nationally recognized overnight courier. All notices, consents, demands and other communications shall be addressed as follows:

 

If to Owner:		400 Madison Avenue Owner LLC
		c/o Macklowe Properties
		767 Fifth Avenue
		New York, New York 10153
		Attn: General Counsel
If to Tenant:		Prior to the Commencement Date:
		TradeStation Securities, Inc.
		8050 SW 10th Street
		Plantation, Florida 33324
		Attn: William Cahill
		President
		With a copy to:
		TradeStation Securities, Inc.
		8050 SW 10th Street
		Plantation, Florida 33324
		Attn: Marc J. Stone – Vice President and General Counsel
		After the Commencement Date:
		TradeStation Securities, Inc.
		400 Madison Avenue, Suite 12A
		New York, New York 10017
		Attn: William Katz, Senior Managing Director
		With a copy to:

 

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		TradeStation Securities, Inc.
		8050 SW 10th Street
		Plantation, Florida 33324
		Attn: Marc J. Stone – Vice President and General Counsel

Notwithstanding the foregoing, communications from Owner, such as correspondence and Rent bills for Fixed Rent and/or Additional Charges, which are sent in the ordinary course of business need only be sent to Tenant and may be sent exclusively by regular mail.

48. HOLDOVER.

(a) If Tenant shall hold over after the expiration or sooner termination of the term of this lease, then Tenant shall pay on the first day of each month of the holdover period as Fixed Rent, an amount equal to two (2) times the greater of (i) one-twelfth of the sum of the Fixed Rent and Additional Charges payable by Tenant during the last year of the term of this lease and (ii) the fair market rental value of the Demised Premises during the holdover period (as determined by Owner). It is stipulated and agreed that Owner shall not be required to perform any work, furnish any materials or make any repairs within the Demised Premises during the holdover period. It is further stipulated and agreed that if Owner shall, at any time after the expiration or sooner termination of the term, proceed to remove Tenant from the Demised Premises as a holdover, the Fixed Rent for the use and occupancy of the Demised Premises during any holdover period shall be calculated in the same manner as set forth above. In addition to the foregoing, Owner shall be entitled to recover from Tenant any losses or damages arising from such holdover. No holding over by Tenant shall operate to extend the term of this lease.

(b) Anything to the contrary notwithstanding, the acceptance of any rent paid by Tenant pursuant to Section 48(a) above shall not preclude Owner from commencing and prosecuting a holdover or summary eviction proceeding, and the preceding sentence shall be deemed to be an “agreement expressly providing otherwise” within the meaning of Section 232-c of the Real Property Law of the State of New York.

(c) If Tenant shall hold-over or remain in possession of any portion of the Demised Premises beyond the Expiration Date, Tenant shall be subject not only to summary proceeding and all damages related thereto, but also to any damages arising out of any lost opportunities (and/or new leases) by Owner to re-let the Demised Premises (or any part thereof). All damages to Owner by reason of such holding over by Tenant may be the subject of a separate action and need not be asserted by Owner in any summary proceedings against Tenant.

49. SECURITY DEPOSIT. Supplementing the provisions of Article 34 hereof:

(a) On the date hereof, Tenant shall be obligated to deliver to Owner security in the amount of Ninety Thousand Four Hundred Four and 00/100 Dollars ($90,404.00) (the “Security Deposit”) either in the form of (i) cash or (ii) an unconditional irrevocable letter of credit (an “L/C”) in the original principal amount of the Security Deposit.

(b) If Tenant shall elect to deliver the Security Deposit in the form of an L/C, Tenant shall deliver to Owner an L/C in the amount of the Security Deposit in the form of Exhibit D attached hereto and otherwise in substance reasonably satisfactory to Owner naming Owner as beneficiary, as security for the faithful performance and observance by Tenant of this lease. The L/C and any renewal L/C shall be drawn on a bank or trust company located in New York City which is a member of the New York Clearing House Association, or otherwise reasonably satisfactory to Owner. If Tenant defaults in the full and prompt payment and performance of any of Tenant’s covenants or obligations under this lease beyond any applicable notice and cure period, including, without limitation, a default in the payment of Fixed Rent or Additional Charges, or a failure to timely provide a renewal L/C to Owner as provided below, Owner may present the L/C for payment and use, apply or retain the whole, or any part of the proceeds thereof, to the extent required for the payment of any Fixed Rent, Additional Charges or any. other sums owing or which may become due and owing under this lease. If Owner shall so apply, use or retain all or any part of the Security Deposit, Tenant shall upon demand by

 

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Owner, immediately deposit with Owner a sum of cash or an endorsement to the L/C in form and substance reasonably satisfactory to Owner equal to the amount used, applied or retained, as security as aforesaid, failing which Owner shall have the same rights and remedies as under this lease for non-payment of Fixed Rent. In the event that Tenant shall fully and faithfully comply with the terms, covenants and conditions of this lease, the L/C, or so much of the proceeds thereof as shall remain after any application pursuant to the terms of this lease, shall be returned to Tenant promptly after the expiration or sooner termination of the term hereof and delivery of possession of the entire Demised Premises to Owner in the manner required by the terms of this Lease. The L/C shall provide that it is transferable without the bank’s consent, at no charge to Owner (or, if there is such a charge to transfer the L/C, Tenant shall pay such charge within five (5) Business Days after demand by Owner, failing which Owner may present the L/C for payment). Tenant agrees to cause the bank to renew said L/C, in the same form (or such other form as may be satisfactory to Owner in its sole discretion) from time to time during the term of this lease, at least thirty (30) days prior to the expiration of said L/C or any renewal thereof so that an L/C issued by the bank to Owner shall be in force and effect through the term of this lease. In the event of any sale, transfer or leasing of Owner’s interest in the Building, Owner shall transfer either the L/C or any sums collected thereunder, together with any other unapplied sums held by Owner as security and the interest thereon, if any, to which Tenant is entitled, to the vendee, transferee or lessee, and after such transfer and upon giving notice to Tenant of such fact and the name and address of the transferee, Owner shall thereupon be released by Tenant from all liability for the return or payment thereof, and Tenant shall look solely to the new owner for the return of payment of same.

(c) Owner, in its sole discretion, may apply the Security Deposit against any obligation under this lease in any order it may elect including, without limitation, any Fixed Rent and Additional Charges that accrue after Tenant vacates the Premises and/or any re-letting charges incurred by Owner as a result of Tenant vacating the Premises prior to the expiration of this lease. Further, Owner may enforce the provisions of any guaranty securing Tenant’s obligations under this lease.

50. OWNER’S INITIAL WORK.

(a) Owner or its designated contractor(s), in accordance with the provisions of this Article 50, shall perform the work (“Owner’s Initial Work”) set forth in the plan attached hereto as Exhibit E and made a part hereof; provided, however, that Owner shall have the right to make any changes in Owner’s Initial Work required by any governmental department or bureau having jurisdiction over the Building. Tenant may not make changes to Owner’s Initial Work during Owner’s performance thereof. Owner’s Initial Work shall be performed by Owner only once, it being understood that Owner’s obligation to perform Owner’s Initial Work is a single, non-recurring obligation. Tenant shall have no right to make any changes to Owner’s Initial Work.

(b) (i) For purposes of this lease, the term “Substantial Completion Date” shall mean the date on which Owner’s Initial Work is substantially completed or would have been substantially completed but for any Tenant’s Delay, (as hereinafter defined) it being understood that substantial completion shall occur notwithstanding the fact that minor details, balancing or adjustments may not then have been completed, provided that such uncompleted work shall not materially interfere with Tenant’s use of the Demised Premises. The taking of possession of the demised premises by Tenant shall be deemed a delivery of the demised premises by Owner, substantial completion of Owner’s Initial Work and an acceptance by Tenant of the demised premises, subject to the existence of latent defects and the completion of any minor punchlist work. Owner shall proceed diligently to complete any such punchlist work, using commercially reasonable efforts to complete all punchlist items within thirty (30) days after the Substantial Completion Date.

(ii) Tenant hereby acknowledges that the Commencement Date hereunder is indeterminate and shall occur only as provided herein and in Article 37 hereof and, except as expressly set forth in Section 37(e) above, Tenant, therefore, waives any right to rescind this lease under any applicable law, including, without limitation, Section 223(a) of the Real Property law of the State of New York. Except as expressly set forth in Section 37(e)

 

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above, Tenant further waives any damages which may result from any delay in the substantial completion of Owner’s Initial Work (or any portion thereof) or the delivery of possession of the demised premises on or by any particular date or dates.

(c) The term “Tenant’s Delay” shall mean any delay that Owner may encounter in commencing or performing Owner’s Initial Work (or any portion thereof) or Owner’s other obligations pursuant to this Article 50 by reason of any act, neglect, failure or omission by Tenant, its agents, servants, employees, contractors or subcontractors, or in the performance of Tenant’s obligations under this Article 50 including, without limitation, Tenant’s failure to promptly provide information necessary for Owner to substantially complete Owner’s Initial Work.

(d) Except for Owner’s Initial Work, Owner shall have no obligation to pay any money or perform any other work in, or make any alteration, or improvements to, the Demised Premises or the Building to ready the Demised Premises or the Building for Tenant’s initial occupancy.

 

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GUARANTY

The undersigned (“Guarantor”) hereby guarantees to Owner (as hereinafter defined), its successors and assigns, under that certain lease dated December 14, 2009, as same may be amended from time to time (“Lease”) by and between 400 Madison Avenue Owner LLC, as owner (“Owner”), and TRADESTATION SECURITIES, INC., its successors and/or assigns, as tenant (“Tenant”), the timely payment of all Fixed Rent, Additional Charges and the payment and performance of all other obligations of Tenant of whatever nature under the Lease, which guaranty shall be primary, absolute, and unconditional, and not subject to counterclaim, offset, deduction, credit or defense of any nature whatsoever, that may arise during the period commencing on the date of the Lease through and including the date that Tenant (I) vacates the premises, (2) pays all Fixed Rent and Additional Charges due with respect to such period, (3) leaves the premises in broom clean condition free and clear of all liens, encumbrances, tenancies, subtenancies and/or rights of occupancy, whether claiming by, through or under Tenant or Guarantor or otherwise and (4) delivers the keys and unencumbered possession of the premises to Owner in the condition required by the provisions of the Lease. This Guaranty may not be changed orally and Guarantor waives (a) any and all notice of this Guaranty, (b) protest, demand for payment, notice of default or notice of non-payment, (c) the right of trial by jury in any action for the enforcement of this Guaranty, (d) any right of set off or counterclaim and (e) all defenses to the validity or enforceability of this Guaranty. This Guaranty shall not be impaired or affected by (i) any amendment, extension or modification of or addition or supplement to any of the terms of the Lease, (ii) any assignment of Tenant’s interest in the Lease or any subletting of the demised premises, (iii) any compromise, release, consent, extension, indulgence or other action or inaction with respect to any of the terms of the Lease, (iv) any substitution or release, in whole or in part, of any security for the Lease or this Guaranty which may be held at any time by Owner or its successors or assigns, (v) any exercise or non-exercise by Owner or its successors or assigns of any right, power or remedy under or in respect of the Lease or any security held by Owner with respect thereto, or any waiver of any such right, power or remedy, (vi) any bankruptcy, insolvency, reorganization, arrangement, adjustment, composition, liquidation, or the like of Tenant, (vii) any limitations of Tenant’s liability under the Lease or any limitation of Tenant’s liability which may now or hereafter be imposed by any statute, regulation or rule of law, or any illegality, irregularity, invalidity or unenforceability, in whole or in part, of the Lease or any term thereof, (viii) any sale, lease or transfer of any or all of the assets of Tenant or (ix) any other circumstance. Owner shall not be obligated to apply security against any amounts due or to become due under the Lease prior to enforcing this Guaranty. The liability of Guarantor under this Guaranty shall not be limited in the event the Tenant under the Lease seeks protection under any bankruptcy or insolvency laws or is otherwise in default of the Lease. This is a guaranty of payment and performance and not of collection and Owner need not exercise any of its remedies against Tenant prior to enforcing its rights under this Guaranty. This Guaranty shall be binding on the undersigned and his heirs, executors, personal representatives, administrators, successors and permitted assigns. Guarantor hereby irrevocably consents and submits to the jurisdiction of any federal, state, county or municipal court sitting in the State of New York in respect to any action or proceeding brought therein by Owner against Guarantor concerning any matters arising out of or in any way relating to this Guaranty or the Lease. Guarantor hereby irrevocably designates the Secretary of State of the State of Florida to accept service of any process on Guarantor’s behalf and hereby agrees that such service shall be deemed sufficient. Guarantor further agrees that any action or proceeding by Guarantor against Owner in respect to any matters arising out of or in any way relating to this Guaranty shall be brought only in the State of New York, County of New York.

 

 

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STATE OF Florida)

COUNTY OF Broward) SS.:

On the 10^th day of December in the year 2009 before me, the undersigned, personally appeared David Fleischman personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her individual capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

 

 

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SCHEDULE A

Fixed Rent

Period

From and including the Commencement Date to, but not including, the first day of the month after the month in which the first anniversary of the Rent Commencement Date occurs (such first day, the “First Rent Adjustment Date”)

From and including the First Rent Adjustment Date to, but not including, the first anniversary of the First Rent Adjustment Date

From and including the first anniversary of the First Rent Adjustment Date to, but not including, the second anniversary of the First Rent Adjustment Date

From and including the second anniversary of the First Rent Adjustment Date to, but not including, the third anniversary of the First Rent Adjustment Date

From and including the third anniversary of the First Rent Adjustment Date to and including the Expiration Date

Annual

Fixed Rent*

One Hundred Sixty-Six Thousand Two Hundred Fifty-Seven and 00/100 Dollars ($166,257.00), payable in equal monthly installments of $13,854.75

One Hundred Sixty-Nine Thousand Seven Hundred Eighty-One and 08/100 Dollars ($169,781.08), payable in equal monthly installments of $14,148.42

One Hundred Seventy-Three Thousand Three Hundred Sixty-Two and 00/100 ($173,362.00), payable in equal monthly installments of $14,446.83

One Hundred Seventy-Seven Thousand Fifty-Six and 60/100 Dollars ($177,056.60), payable in equal monthly installments of $14,754.72

One Hundred Eighty Thousand Eight Hundred Eight and 04/100 Dollars ($180,808.04), payable in equal monthly installments of $15,067.34

•    The Annual Fixed Rent set forth above includes the Base Electric Charge.

 

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EXHIBIT A

Floor Plan

This floor plan is annexed to and made a part of this lease solely to indicate the Demised Premises and its location on the 12^th floor of the Building by shading. All areas, conditions, dimensions and locations are approximate.

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EXHIBIT B

400 Madison Avenue

TENANT CLEANING LEASE EXHIBIT

Page 1 of 2

MULTI-TENANTED COMMON ELEVATOR CORRIDORS

 

•

DAMP MOP ALL HARD FLOOR SURFACE FLOORS NIGHTLY

 

•

SHAMPOO CARPETED FLOOR SURFACES AT MINIMUM 4X PER YEAR, SPOT CLEAN AS NEEDED.

 

•

USING A HIGH SPEED FLOOR MACHINE SPRAY BUFF ALL HARD SURFACE AREAS WEEKLY

 

•

SPOT CLEAN ALL WALLS, LIGHT SWITCHES AND DOORS AS NEEDED TO MAINTAIN SPOTLESS CONDITION.

 

•

HIGH DUST (E.G., PICTURES, CLOCKS, PARTITIONS, TOPS, ETC.) MONTHLY

 

•

VACUUM CARPETED SURFACES NIGHTLY.

SINGLE TENANTED ELEVATOR CORRIDORS

 

•

VACUUM ALL CARPETED SURFACES 1X PER WEEK.

 

•

DAMP MOP ALL HARD FLOOR SURFACES NIGHTLY.

 

•

SPOT CLEAN ALL WALLS, LIGHT SWITCHES and DOORS AS NEEDED TO MAINTAIN SPOTLESS CONDITION.

 

•

HIGH DUST (E.G., PICTURES, CLOCKS, PARTITIONS, TOPS, ETC.) MONTHLY.

 

•

USING A MANUAL CARPET SWEEPER, POLICE CARPET OF ALL DEBRIS 4X PER WEEK.

WASHROOMS

 

•

REFILL PAPER DISPENSERS, AND EMPTY TRASH NIGHTLY.

 

•

CLEAN AND DISINFECT ALL RESTROOM FIXTURES, COUNTERS, MIRRORS, PARTITIONS, AND BRIGHT-WORK NIGHTLY.

 

•

MACHINE SCRUB FLOORS USING A GERMICIDAL CLEANER 1X PER MONTH.

 

•

DUST AND CLEAN ALL RETURN VENTS AS NEEDED.

 

•

HAND WASH ALL WALLS USING A GERMICIDAL CLEANER 1X PER MONTH.

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Page 2 of 2

TENANT OFFICES

 

•

DAMP MOP ALL HARD SURFACE FLOORS NIGHTLY

 

•

USING A MANUAL CARPET SWEEPER REMOVE ALL OBVIOUS LITTER FROM CARPETED AREAS 4X PER WEEK.

 

•

FULLY VACUUM ALL CARPETED AREAS FROM WALL TO WALL 1X PER WEEK.

 

•

DUST ALL HORIZONTAL SURFACES AND COMPUTER MONITORS NIGHTLY.

 

•

EMPTY AND DAMP WIPE ASHTRAYS NIGHTLY.

 

•

EMPTY ALL TRASH RECEPTACLES NIGHTLY. REPLACE LINERS AS NECESSARY.

 

•

REMOVE ALL COLLECTED TRASH AND RECYCLABLES TO DESIGNATED AREAS NIGHTLY, CONFORMING TO APPLICABLE RECYCLING PROGRAMS.

 

•

WIPE ALL TELEPHONES WITH DISINFECTANT, INCLUDING EAR AND MOUTH PIECES NIGHTLY.

 

•

WIPE DRINKING FOUNTAINS WITH DISINFECTANT, AND POLISH CLEAN NIGHTLY.

 

•

DUST ALL LOW AREAS WEEKLY.

 

•

DUST ALL HIGH AREAS MONTHLY.

 

•

DUST AND OR VACUUM VENETIAN BLINDS QUARTERLY.

 

•

CLEAN AND POLISH ALL BRIGHT METAL WORK 1X PER WEEK.

 

•

CLEAN ALL CEILING DIFFUSERS QUARTERLY.

WINDOWS: INTERIOR AND EXTERIOR

WASH ALL EXTERIOR WINDOWS AND CLEAN ALL FRAMES OF TENANT OFFICES QUARTERLY.

WASH THE INTERIOR OF ALL WINDOW GLASS AND WIPE DOWN FRAMES OF TENANT OFFICES 2X PER YEAR.

SUPPLIES AND EQUIPMENT

CONTRACTOR IS TO SUPPLY ALL NECESSARY SUPPLIES AND EQUIPMENT, INCLUDING, BUT NOT LIMITED TO: HAND TOWELS, TOILET TISSUE, FEMININE NAPKINS, CLEANERS, DEODORIZERS, STRIPPERS, WAXES, PLASTIC BAGS, LINERS, ETC., IN ADDITION TO ALL EQUIPMENT NECESSARY TO PERFORM CLEANING DUTIES ASSOCIATED WITH CLEANING A CLASS “A” OFFICE BUILDING IN THE BOROUGH OF MANHATTAN.

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EXHIBIT C

Maintenance Charge Rates

[ See attached ]

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MACKLOWE MANAGEMENT LLC.

2009 MAINTENANCE CHARGE RATES

400 MADISON AVENUE

EFFECTIVE 1/1/09

 

GARBAGE REMOVAL
Rubbish (paper, books & office refuse)		$80.08 per cubic yard
Demolition & Construction Debris		$80.08 per cubic yard
Other (furniture, computers & office equip.)		Please contact the Property Management office for pricing

FREIGHT ELEVATOR SERVICE (normal freight service during business hours at no additional cost).

 

Operator required (large deliveries; furniture, etc)		$100.94 per O/T hour
(4 hour minimum on weekends)

 

OTHER LABOR		STRAIGHT TIME			OVERTIME
Superintendent		$	69.01		$	103.52
Handyman:		$	65.92		$	98.88
Porter		$	58.71		$	88.07
Fire Safety Director		$	69.35		$	104.03
Security Guard		$	47.61		$	71.42

(4 hour minimum on weekends)

 

OVERTIME AIR CONDITIONING		$96.82        per hour/per A/C Unit
		Note: There is a (2) two hour minimum per A/C unit

 

LOST, MISSING OR REPLACEMENT SECURITY ACCESS CARDS - EMPLOYEES OR VISITORS		$	36.90

PREVIOUS RATE CHANGE: 1/1/08

11/12/2009

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EXHIBIT D

Form of Letter of Credit

 

[Bank Name]		[Bank Name]
[Bank Address]		ISSUE DATE: [                    ]
		L/C NO.: [                    ]
Cable Address: [                                         ]
Advising Bank		APPLICANT: [            ]
***************DIRECT*******************
Beneficiary
400 MADISON AVENUE OWNER LLC		AMOUNT: USD[            ]
c/o MACKLOWE MANAGEMENT LLC
767 FIFTH AVENUE – 21ST FLOOR		[AMOUNT IN WORDS]
NEW YORK, NEW YORK 10153		(UNITED STATES DOLLARS)

GENTLEMEN:

WE HEREBY ESTABLISH THIS IRREVOCABLE STANDBY LETTER OF CREDIT NO: [                    ] IN YOUR FAVOR FOR AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNT INDICATED ABOVE, EXPIRING AT OUR COUNTERS IN NEW YORK WITH OUR CLOSE OF BUSINESS ON [                                        ].

THIS LETTER OF CREDIT IS AVAILABLE WITH [BANK NAME], NEW YORK AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON [BANK NAME], NEW YORK WHEN ACCOMPANIED BY THE DOCUMENTS INDICATED HEREIN.

BENEFICIARY’S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS OFFICIALS READING: “THE AMOUNT OF THIS DRAWING USD                      UNDER [BANK NAME] LETTER OF CREDIT NUMBER [                    ] REPRESENTS FUNDS DUE US AS [APPLICANTS] HAS FAILED TO MEET ITS OBLIGATIONS UNDER A LEASE AGREEMENT BETWEEN [(APPLICANT)], AS TENANT, AND [(BENEFICIARY)] AS LANDLORD.”

ALL CORRESPONDENCE AND ANY DRAWINGS PRESENTED ARE TO BE DIRECTED TO OUR OFFICE AT [BANK ADDRESS, DEPARTMENT AND TELEPHONE #’(s)].

IT IS A CONDITION OF THIS IRREVOCABLE LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD OF ONE YEAR FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE, UNLESS AT LEAST 30 DAYS PRIOR TO SUCH DATE WE SEND YOU NOTICE IN WRITING BY REGISTERED MAIL OR HAND DELIVERY AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO RENEW THIS LETTER OF CREDIT FOR SUCH ADDITIONAL PERIOD. HOWEVER, IN NO EVENT SHALL THIS LETTER OF CREDIT BE EXTENDED BEYOND THE FINAL EXPIRY DATE OF [                                        ] ANY SUCH NOTICE SHALL BE EFFECTIVE WHEN SENT BY US AND UPON SUCH NOTICE TO YOU, YOU MAY DRAW DRAFTS ON US AT SIGHT FOR AN AMOUNT NOT TO EXCEED THE BALANCE REMAINING IN THIS LETTER OF CREDIT WITHIN THE THEN APPLICABLE EXPIRY DATE, ACCOMPANIED BY YOUR DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF YOUR OFFICIALS READING: “THE AMOUNT OF THIS DRAWING USD                      UNDER [BANK NAME] LETTER OF CREDIT NUMBER [                    ] REPRESENTS FUNDS DUE US AS WE HAVE RECEIVED NOTICE FROM [BANK NAME] OF THEIR DECISION NOT TO EXTEND LETTER OF CREDIT NUMBER [                    ] FOR AN ADDITIONAL YEAR.”

 

....CONTINUED....

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[Bank Name]		[Bank Name]
[Bank Address]		ISSUE DATE: [                    ]
		L/C NO.: [                    ]
Cable Address: [                                         ]
Advising Bank		APPLICANT: [            ]
***************DIRECT*******************
Beneficiary
400 MADISON AVENUE OWNER LLC		AMOUNT: USD[            ]
c/o MACKLOWE MANAGEMENT LLC
767 FIFTH AVENUE – 21ST FLOOR		[AMOUNT IN WORDS]
NEW YORK, NEW YORK 10153		(UNITED STATES DOLLARS)

THIS LETTER OF CREDIT IS TRANSFERABLE IN ITS ENTIRETY (BUT NOT IN PART) AND [BANK NAME] ONLY IS AUTHORIZED TO ACT AS THE TRANSFERRING BANK.

WE SHALL NOT RECOGNIZE ANY TRANSFER OF THIS LETTER OF CREDIT UNTIL THIS ORIGINAL LETTER OF CREDIT TOGETHER WITH ANY AMENDMENTS AND A SIGNED AND COMPLETED TRANSFER FORM SATISFACTORY TO US IS RECEIVED BY US. TRANSFER FEES ARE FOR THE ACCOUNT OF THE APPLICANT.

TRANSFER FORMS ATTACHED.

THE CORRECTNESS OF THE SIGNATURE AND TITLE OF THE PERSON SIGNING THE TRANSFER FORMS MUST BE VERIFIED BY YOUR BANK.

IN CASE OF ANY TRANSFER UNDER THIS LETTER OF CREDIT, THE DRAFT AND ANY REQUIRED STATEMENT MUST BE EXECUTED BY THE TRANSFEREE.

THIS LETTER OF CREDIT MAY NOT BE TRANSFERRED TO ANY PERSON WITH WHICH U.S. PERSONS ARE PROHIBITED FROM DOING BUSINESS UNDER U.S. FOREIGN ASSETS CONTROL REGULATIONS OR OTHER APPLICABLE U.S. LAWS AND REGULATIONS.

PARTIAL DRAWINGS ARE ALLOWED.

WE HEREBY AGREE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH. THE TERMS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO US.

WE HEREBY ISSUE THIS STANDBY CREDIT IN YOUR FAVOR. IT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION INTERNATIONAL CHAMBER OF COMMERCE, PARIS, FRANCE PUBLICATION NO. 500) AND ENGAGES US IN ACCORDANCE WITH THE TERMS THEREOF. THE NUMBER AND THE DATE OF OUR CREDIT AND THE NAME OF OUR BANK MUST BE QUOTED ON ALL DRAFTS REQUIRED.

 

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New York, New York          2009

[BANK NAME]

[BANK ADDRESS]

ATTENTION: STANDBY LETTER OF CREDIT DEPARTMENT

RE: LETTER OF CREDIT NO.[                    ]

    ISSUED BY: [BANK NAME], NEW YORK.

GENTLEMEN:

FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:

[NAME OF TRANSFEREE]

[ADDRESS]

ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT IN ITS ENTIRETY.

BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF CREDIT ARE TRANSFERRED TO THE TRANSFEREE AND THE TRANSFEREE SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.

THE ADVICE OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO ENDORSE THE TRANSFER ON THE REVERSE HEREOF, AND FORWARD IT DIRECT TO THE TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.

 

SIGNATURE GUARANTEED AND IS IN CONFORMITY TO THAT ON FILE WITH US AS TO SIGNER’S AUTHORIZATION FOR THE EXECUTION OF THESE INSTRUMENTS.

 

THIS FORM MUST BE EXECUTED IN DUPLICATE.

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EXHIBIT E

Owner’s Initial Work

Pursuant to Article 50 of this lease, Owner agrees, at its sole cost and expense, to perform the following work and installations in the Demised Premises, all of which shall be of material, design, capacity, finish and color adopted by Owner for the Building, unless otherwise indicated:

 

1.

Construct an installation in the Demised Premises in accordance with the plan attached hereto as Exhibit E-l (the “Owner’s Initial Work Plan”) utilizing the standard finishes adopted by Owner for the Building.

Note:

Tenant shall respond within three (3) Business Days to each request made by Owner sent via email to (i)  ***@*** (Attention: Robert Perez, Facilities Manager) and (ii)  ***@*** (Attention: Marc Stone, General Counsel) for additional information necessary for Owner to complete the Owner’s Initial Work. Each day beyond the expiration of such 3-Business Day period that Tenant shall fail to provide the necessary information requested by Owner shall constitute a day of Tenant’s Delay. In addition, if Tenant shall fail to provide such necessary information beyond the date which is seven (7) days after Owner’s request, then Owner may complete the work for which such information was necessary, in the manner determined by Owner, provided that Owner shall do so in a manner consistent with the Owner’s Initial Work Plan and good construction practice.

 

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EXHIBIT E-l

Owner’s Initial Work Plan

[See Attached]

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