Unassociated Document


  
    
      Exhibit
10.74

    

     

    ADDITIONAL SPACE, LEASE
EXTENSION AND

     

    FIRST LEASE MODIFICATION
AGREEMENT

     

    AGREEMENT dated as of the 23
day of May, 2007 between 410 PARK
AVENUE ASSOCIATES. L.P., a New York limited partnership, having an office
at 410 Park Avenue, 20th Floor, New York, New York (hereinafter called “Owner”),
and CAPITAL
TRUST. INC., a New York corporation, having an office at 410 Park Avenue,
New York, New York (hereinafter called “Tenant”).

     

    WITNESSETH:

     

    WHEREAS:

     

    1.           
Owner and Tenant executed that certain lease dated as of May 3, 2000 (the
“Lease”) covering the entire fourteenth (14th) floor
(the “Original Premises”) in the building known as 410 Park Avenue, New York,
New York (the “Building”) for a term to expire on June 30, 2008 (the “Expiration
Date”); and

     

    2.           
Owner and Tenant now desire to amend the Lease by adding other space in the
Building to the Original Premises, by extending the term of the Lease, and in
certain other respects as hereinafter provided.

     

    NOW, THEREFORE, in
consideration of the mutual covenants herein contained, it is agreed as
follows:

     

    FIRST:                    Owner
hereby leases to Tenant and Tenant hereby hires from Owner, a portion of the
fifteenth (15th) floor
of the Building presently designated as Suite 1510, as shown on the rental plan
annexed hereto and made a part hereof as Exhibit A (the “Additional Space”)
which the parties agree, contain, without representation, 3,300 rentable square
feet. The term of 

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

       

    

    the Lease
applicable to the Additional Space (the “Additional Space Term”) shall commence
on the date possession of the Additional Space is delivered to Tenant in the
condition required under this Agreement (the “Additional Space Commencement
Date”) and shall end on October 31, 2018 (the “Extended Term Expiration
Date”).

     

    SECOND:              Effective
from and after the Additional Space Commencement Date, the Lease shall be
amended as follows:

     

    (a)           
The “Demised Premises” shall be deemed to include the Additional Space and the
Original Premises for all purposes under the Lease, except as hereinafter
expressly provided;

     

    (b)           
The date set forth in the Lease as the Expiration Date is hereby amended so that
the term (with respect to the entire Demised Premises i.e. the Original Premises
and the Additional Space) shall be extended to, and the Lease shall expire on
October 31, 2018, or such earlier date upon which said term may expire or be
terminated pursuant to any conditions of limitation or other provisions of the
Lease or pursuant to law (hereinafter called the “New Expiration
Date”);

     

    (c)           
With respect to the Additional Space only, the Basic Annual Rent shall be
payable at the annual rates of THREE HUNDRED SIX THOUSAND NINE HUNDRED AND
00/100 DOLLARS ($306,900.00) per annum ($25,575.00 per month) for the first
sixty seven (67) months of the Additional Space Term and THREE HUNDRED TWENTY
THREE THOUSAND FOUR HUNDRED AND 00/100 ($323,400.00) DOLLARS per annum
($26,950.00 per month) for the balance of the Additional Space Term. All Basic
Annual Rent set forth above includes the present ERIF (as defined in Subdivision
(i) of this Article SECOND) of $9,900.00 per annum, subject to adjustment
as therein provided;

     

    (d)           
With respect to the Additional Space only, the term “Base Wage Rate” (as defined
in subdivision (g) of Article 1B(i) of the Lease) shall mean the Wage
Rate in effect as of December 31, 2007;

     

    (e)           
With respect to the Additional Space only, the term “Base Tax Year” (as defined
in subdivision (d) of Article 1B(i) of the Lease) shall mean the
amount determined by adding the Taxes imposed during the Tax Years ending June
30, 2007 and June 30, 2008 respectively, and dividing by the number two
(2);

     

    (f)          
  With respect to the Additional Space only, the term “Tenant’s Percentage”
(as defined in subdivision (a) of Article 1B of the Lease) shall mean
“1.78%”;

     

    (g)           
With respect to the Additional Space only, the term “Multiplication Factor” as
defined in subdivision (j) of Article 1B(i) of the Lease shall mean
3,300;

     

     

    
      
        
        

      

      
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    (h)           
There shall be added after second (2nd)
sentence of Article 3A(i) the following text: “Furthermore, Tenant
shall use Owner’s designated Building expediter Mr. Robert R. Bisaccia Inc. for
all architectural services related to Building department filings,” with the
fees of said designated expediter being industry competitive;

     

    (i)            
Article 12 of the Lease shall be deleted and a new Article 12 inserted
in lieu thereof as follows:

     

    “Article 12.         A.
Direct Meter to
Original Premises: With respect to the Original Premises only, Tenant
shall make all arrangements with the public utility company servicing the
Building (the “Utility”) for obtaining electricity directly from the Utility.
Tenant shall be responsible to the Utility for the payment of all charges for
electricity consumed by Tenant in the Original Premises. All meters, panel
boards, wiring and other equipment which may be required to obtain electricity
from the Utility which have been or may hereafter be installed and shall be
maintained by Tenant at its expense. All electric current used in the operation
of the heating, ventilation and air-conditioning throughout the Original
Premises (including fans and motors) shall be the obligation of
Tenant.

     

    Unless
due to the negligent acts, omissions of Owner or Owner’s agents or the
intentional misconduct of Owner or its Owner’s agents and/or any breach of any
obligation of Owner under the Lease, interruption or curtailment of such service
shall not constitute a constructive or partial eviction nor entitle Tenant to
any compensation or abatement of rent.  Tenant covenants and agrees
that at all times its use of electric current shall never exceed the capacity of
the existing feeders to the building or of the risers or wiring installation.
Tenant shall make no alteration or additions to the electrical equipment without
the prior written consent of Owner.

     

    Owner
represents to Tenant that there will be at all times during the term of this
Lease at least five (5) watts connected load per useable square foot of electric
power available to service the Original Premises (exclusive of electric current
required for HVAC) provided, however, if Tenant demonstrates to Owner’s
reasonable satisfaction, that Tenant requires additional capacity in connection
with its operations at the Original Premises, then, one (1) additional watt of
connected load per square foot of electric power will be made available to the
Original Premises.

     

    B.           
Rent Inclusion to the
Additional Space:  With respect to the Additional Space only,
if and so long as Owner shall furnish to Tenant the electric energy which Tenant
requires in the Additional Space on a “rent inclusion” basis pursuant to the
terms hereof, the electric energy shall be provided through the presently
installed electrical facilities, for Tenant’s reasonable use in the Additional
Space for lighting, light office equipment and the usual normal office business
machines, including PC’s and Xerox or other copying machines. Subject to the
following provisions of this Article 12, there shall be no charge to Tenant
therefor by way of measuring the same on any meter or otherwise, electric
current being included as an additional service in the Basic Annual Rent payable
hereunder. Owner shall not except due to the negligent acts or omissions of
Owner, in anywise be liable or responsible to Tenant for any loss or damage


     

     

    
      
        
        

      

      
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    or
expense which Tenant may sustain or incur if either the quantity or character of
electric service is changed or is no longer available or suitable for Tenant’s
requirements.

     

    Owner
represents to Tenant that there will be at all times during the term of this
Lease at least five (5) watts connected load per useable square foot of electric
power available to service the Additional Space (exclusive of electric current
required for HVAC) provided, however, if Tenant demonstrates to Owner’s
reasonable satisfaction, that Tenant requires additional capacity in connection
with its operations at the Additional Space, then one (1) additional watt of
connected load per square foot of electric power will be made available to the
Additional Space.

     

    Tenant
acknowledges and agrees (i) that the Basic Annual Rent payable with respect
to the Additional Space only, includes a present Electricity Rent Inclusion
Factor (as hereinafter defined), of $3.00 per square foot to compensate Owner
for the electrical wiring and other installations necessary for, and for its
obtaining and redistribution of, electric current as an additional service; and
(ii) that said Electricity Rent Inclusion Factor (hereinafter called
“ERIF”), which shall be subject to periodic adjustments as herein provided, has
been partially based upon Tenant’s estimated connected electrical load and hours
of use thereof for ordinary lighting and light office equipment, during ordinary
business hours. The “Electricity Rent Inclusion Factor ” shall mean the amount
determined by applying the estimated connected electrical load and usage thereof
in the Additional Space (as determined by the electrical consultant as
hereinafter provided) to the rate charged for such load and usage in the service
classification in effect on the Additional Space Commencement Date pursuant to
which Owner then purchased electric current for the entire Building from the
public utility corporation. If the cost to Owner of electricity shall have been,
or shall be, increased subsequent to the Additional Space Commencement Date, by
change in Owner’s electric rates, charges, fuel adjustment, or service
classifications, or by taxes or charges of any kind imposed thereon, or for any
other such reason, then the aforesaid ERIF portion of the Basic Annual Rent
payable with respect to the Additional Space only shall be increased in the same
percentage.

     

    Any such
percentage increase in Owner’s cost due to change in Owner’s electric rates,
charges, etc., shall be computed by the application of the average consumption
(energy and demand) of electricity for the entire building for the twelve (12)
full months immediately prior to the rate change, other change in cost, or any
changed methods of or rules on billing for same, on a consistent basis to the
new rate and/or service classifications and to the immediately prior existing
rate and/or service classifications. If the average consumption of electricity
for the entire building for said prior twelve (12) full months cannot reasonably
be applied and used with respect to changed methods of or rules on billing, then
the percentage increase shall be computed by the use of the average consumption
(energy and demand) for the entire building for the first three (3) months under
such changed methods of or rules on billing, projected to a full twelve (12)
months; and that same consumption, so projected, shall be applied to the rate
and/or service classifications which existed immediately prior to the changed
methods of or rules on billing. The parties acknowledge that they understand
that it is anticipated that existing electric rates, charges, etc., may be
changed by virtue of time-of-day rates or other methods of billing, and that the
foregoing reference to changes in methods of or rules on

     

     

    
      
        
        

      

      
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     billing
is intended to include any such change. The parties agree that a reputable,
independent and impartial electrical consultant with substantial experience in
the Borough of Manhattan in conducting electrical surveys and otherwise
reasonably selected by Owner (“Owner’s electrical consultant”) shall determine
the percentage for the changes in the ERIF based on changes in Owner’s electric
rates, charges, etc. Further, the parties agree that Owner’s electrical
consultant may from time to time make or at any time for any reason conduct
surveys in the Additional Space covering the electrical equipment and fixtures
and use of current therein, and the connected electrical load and usage portion
of the ERIF shall be changed in accordance with such survey, and the ERIF
automatically redetermined, accordingly, by Owner’s electrical consultant
provided, however, any such entry into the Additional Space by Owner’s
electrical consultant shall be on at least five (5) days prior written notice to
Tenant from Owner and during hours reasonably acceptable to Tenant, and
provided, further, Owner’s electrical consultant shall not unreasonably
interfere with Tenant’s access to or use of the Additional Space. The Basic
Annual Rent (payable with respect to the Additional Space only) shall be
appropriately adjusted effective as of the date of any such change in connected
load and usage, as disclosed by said survey. In no event, is the originally
specified $3.00 per square foot ERIF portion of the Basic Annual Rent (as
adjusted by any electricity cost increases of Owner after the Additional Space
Commencement Date) to be reduced.

     

    The
determination of change in the ERIF by Owner’s consultant shall be binding and
conclusive on Owner and on Tenant from and after the delivery of copies of such
determination and copies of electrical surveys from said consultant if then
available, to Owner and Tenant, unless within thirty (30) days after the
delivery of such copies, Tenant disputes such determination. If Tenant disputes
the determination, it shall, at its own expense, obtain from a reputable,
independent and impartial electrical consultant its own survey of Tenant’s
electrical lighting and power load and hours of use thereof, and a determination
of such change in the ERIF in accordance with the provisions of this
Article 12. Tenant’s consultant and Owner’s electrical consultant then
shall seek to agree on a finding of such determination of such change in the
ERIF. If they cannot agree, they shall choose a third reputable electrical
consultant whose cost shall be shared equally by Owner and Tenant, to make a
similar survey, and the determination of such ERIF change by such third
electrical consultant shall be controlling. If such parties cannot agree on such
third consultant, within ten (10) days, then either party may apply to
American Arbitration Association for the appointment of such third consultant.)
However, pending such determination, Tenant shall pay to Owner the amount of
ERIF as determined by Owner’s electrical consultant, provided, however, if the
amount of ERIF determined as aforesaid is different from that determined by
Owner’s electrical consultant, then Owner and Tenant shall make adjustment for
any deficiency owed by Tenant or overage paid by Tenant.

     

    Notwithstanding
the foregoing provisions of this Article, if Tenant disputes Owner’s electrical
consultant’s determination, Tenant within twenty (20) days of being
informed of the same, shall notify Owner of such dispute. In such event, an
independent reputable electrical consultant selected and paid by Tenant shall
consult with Owner or its electrical consultant as to said adjustment; if they
shall both agree upon the same (after a further survey if necessary, cost to be
shared equally between Owner and Tenant, of the 

     

     

    
      
        
        

      

      
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    value of
equipment, fixtures and machinery calculated as provided in this Article) their
said agreement shall be binding upon the parties, or if the difference between
them is ten (10%) percent or less of the adjustment determined by Owner,
then the adjustment determined by Owner shall be binding upon the parties. If
Owner or its electrical consultant and Tenant’s consultant cannot agree within
the said ten (10%) percent of each other, they shall jointly select a third duly
qualified independent, reputable and impartial electrical consultant who shall
determine the matter and whose decision shall be binding upon both parties with
the same force and effect as if a no-appealable judgment had been entered by a
court of competent jurisdiction. If Owner or its electrical consultant and
Tenant’s consultant cannot agree upon such a third electrical consultant, the
matter shall be submitted to the American Arbitration Association in New York
City to be determined in accordance with its rules and regulations and the
decision of the arbitrators shall be binding upon the parties with the same
force and effect as if a non-appealable judgment had been entered by a court of
competent jurisdiction. Any charges of such third consultant or of the American
Arbitration Association and all costs and expenses of either shall be borne
equally by both parties. When the amount of such increase has been determined,
the parties shall execute an agreement supplementary hereto to reflect such
adjustment in the ERIF effective from the date determined by such final
determination, Tenant shall pay Basic Annual Rent to Owner in accordance with
Owner’s adjustment and, if such final determination shall reflect an overpayment
by Tenant, Owner shall promptly credit such overpayment.

     

    Anything
to the contrary herein notwithstanding, if, during the term hereof, there shall
be an increase in the ERIF due to change in Owner’s electric rates or service
classification or any other reason set forth above, and that subsequent to such
increase a survey conducted pursuant to the terms above evidences that the ERIF
should be decreased from the amount then currently being paid by Tenant, such
decrease shall applied after such change in the ERIF, so long as the ERIF is
never reduced below $3.00 per square foot with respect to the Additional
Space.

     

    (ii)
Unless required by law or if simultaneously required of all other tenants on the
fifteenth (15th) floor of the Building, Owner reserves the right to discontinue
furnishing electric energy to Tenant at any time upon ninety (90) days’ written
notice to Tenant, and from and after the effective date of such termination,
Owner shall no longer be obligated to furnish Tenant with electric energy to the
Additional Space, provided, however, that such termination date shall be
extended for a time reasonably necessary for Tenant to make arrangements to
obtain electric service directly from the public utility company servicing the
building. If Owner exercises such right of termination, this Lease shall remain
unaffected thereby and shall continue in full force and effect, (subject to an
adjustment in the Basic Annual Rent payable with respect to the Additional Space
by reason of Owner’s discontinuance rights set forth below); and thereafter
Tenant shall diligently arrange to obtain electric service for the Additional
Space directly from the public utility company servicing the building, and may
utilize the then existing electric feeders, risers and wiring serving the
Additional Space to the extent available and safely capable of being used for
such purpose and only to the extent of Tenant’s then authorized connected load.
Owner shall be obligated to pay no part of any cost required for Tenant’s direct
electric service. Commencing with the date when Tenant receives such direct


     

     

    
      
        
        

      

      
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    service,
and as long as Tenant shall continue to receive such service, the Basic Annual
Rental rate payable under this Lease solely with respect to the Additional Space
shall be reduced by the ERIF then in effect.

     

    Tenant
agrees not to connect any additional electrical equipment of any type to the
Building electric distribution system, other than lamps, typewriters, PC’s and
other normal office machines which consume comparable amounts of electricity,
without Owner’s prior written consent, which consent shall not be unreasonably
withheld or delayed. Any additional risers, feeders, or other equipment proper
or necessary to supply Tenant’s electrical requirements, upon written request of
Tenant, will be installed by Owner, at the sole cost and expense of Tenant, if,
in Owner’s sole judgment, the same are necessary and will not cause permanent
damage or injury to the building or the Additional Space, or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repair or expense or interfere with or disturb other tenants or
occupants.

     

    (iii) 
At Owner’s option, Tenant shall purchase from Owner all lighting tubes, lamps,
bulbs and ballasts used in the Additional Space and Tenant shall pay Owner’s
commercially reasonable and Building standard reasonable charges for providing
and installing same, upon written demand, as additional rent.

     

    (iv)  
In no event shall the ERIF be reduced below $3.00 per square foot.

     

    (v)  
Any delay or failure of Owner computing or billing for the rent adjustments
hereinabove provided, shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such rent adjustments
hereunder.”

     

    (j)    
Article 28 of the Lease shall be modified so that notices to Owner shall be
at its address above stated, Attention: Michael Alter, with a copy to Peter
Allen, Esq. c/o Eastgate Realty Corporation, 20th Floor, 410 Park Avenue, New
York, New York 10022;

     

    All
notices of default to Owner shall simultaneously be sent to:

     

    Robert
Corrigan

    Vice
President

    Real
Estate Finance Department

    H.S.B.C.
Bank USA

    452 Fifth
Avenue

    New York,
New York 10018

     

    (k)     Article 28
of the Lease shall be further modified so that notice to Tenant shall be sent to
the following address:

     

    All
notices required to be sent by Owner to Tenant hereunder shall be sent
to:

     

    Capital
Trust, Inc.

    410 Park
Avenue

     

     

    
      
        
        

      

      
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    New York,
New York 10022

    Attention:
Mr. John Klopp

     

    And

     

    Capital
Trust, Inc.

    410 Park
Avenue

    New York,
New York 10022

    Attention:
Mr. Geoff Gervais

     

    with a
simultaneous copy to:

     

    Paul,
Hastings, Janofsky & Walker LLP

    75 East
55th
street

    New York,
New York 10022

    Attention:
Stuart Mass, Esq.

     

    (l)           
Article 29(D) of the Lease is hereby modified so that with respect to
Tenant’s right to install supplementary air-conditioning units in the Demised
Premises pursuant to paragraph D of Article 29 of the Lease, Owner
hereby waives any initial connection fees but not the annual access charges of
$500 per ton, such charge being subject to adjustment as provided in
Article 29(D);

     

    (m)           Tenant’s
obligation to pay for (a) condenser water consumed in the operation of any
supplementary air-conditioning units in the Additional Space and effective as of
the Original Premises Extended Term Commencement Date (hereinafter defined) for
any additional supplementary air conditioning units installed in the Original
Premises and (b) Building overtime air conditioning pursuant to paragraph
D(i) of Article 29 shall both be at 75% of the then Building standard rates
charged by Owner, as the same may be adjusted from time to time pursuant to said
paragraph D and paragraph D(i) of Article 29 of the Lease;
and

     

    (n)           
Articles 1A(iv), 37, 46, 47 and 48 of the Lease shall not be applicable to
the Additional Space.

     

    THIRD:                  Subject
to the terms below, Tenant acknowledges that it has inspected the Additional
Space and agrees to accept possession thereof on the Additional Space
Commencement Date in its “as-is” physical condition as of the date hereof, it
being understood and agreed that Owner shall not be obligated to make any
improvements, alterations or repairs to the Additional Space; provided, however,
Owner shall deliver the Additional Space vacant, broom clean and free of any and
all tenancies, and/or occupancies.

     

     

    
      
        
        

      

      
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    FOURTH:               Provided
Tenant is not then in default under the terms, covenants and conditions of the
Lease beyond the expiration of any applicable notice and/or cure periods, Tenant
shall have the right to use and occupy the Additional Space free of Basic Annual
Rent only for the first four (4) full months of the Additional Space Term
except that Tenant shall pay to Owner the sum of $825.00 per month representing
reimbursement for electric current pursuant to Article 12 of the Lease, as
amended herein.

     

    Except
for the free Basic Annual Rent allowance as herein provided, Tenant shall use
and occupy the Additional Space pursuant to all of the other terms, covenants
and conditions of the Lease, as amended herein.

     

    FIFTH:                    In
consideration of Tenant performing any and all of the work necessary for its
occupancy of the Original Premises and the Additional Space and for Tenant
completing such work therein, Owner agrees that if Tenant, within a period of
twelve (12) months from the Additional Space Commencement Date shall have
submitted to Owner (a) a detailed itemization of the leasehold improvements
and work performed by Tenant in the Original Premises and the Additional Space
exclusive of all soft costs except as hereinafter provided, (b) together
with receipted and paid bills, (c) partial and final lien waivers to the
effect that there has not been filed with respect to the Building and/or the
Original Premises and the Additional Space or any part thereof or upon Tenant’s
leasehold interest therein any vendor’s, mechanic’s, laborer’s, materialman’s or
other lien which has not been discharged of record or properly bonded,
(d) final sign offs from the New York City Building Department or any other
department having jurisdiction, and (e) as built plans and specifications,
then in all of such events, Owner shall promptly reimburse or cause to be
reimbursed to Tenant an amount equal to the lesser of (i) the actual cost
of the leasehold improvements and work performed by Tenant in the Original


     

     

    
      
        
        

      

      
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    Premises
and the Additional Space i.e. or (ii) THREE HUNDRED TWENTY THOUSAND TWO
HUNDRED AND 00/100 ($320,200.00) DOLLARS, representing “Owner’s
Contribution” to such work, it being understood and agreed that Owner’s
Contribution shall not exceed the sum of THREE HUNDRED TWENTY THOUSAND TWO
HUNDRED AND 00/100 ($320,200.00) DOLLARS, and that all costs and expenses
in excess of said sum shall be borne solely by Tenant. Notwithstanding the
foregoing, Tenant may utilize all or any portion of Owner’s Contribution solely
for space planning costs, computer and telecommunications cabling, engineering
and architectural fees; furniture, fixtures and equipment
(collectively “FF&E”) provided, however, that Owner at Owner’s sole
option have the right at any time during the term of this Lease, to either
require Tenant to leave all the FF&E in the Original Premises and the
Additional Space at the New Expiration Date or sooner termination of the Lease,
or to remove same as provided in Article 3 of the Lease.

     

    SIXTH:                  Effective
on July 1, 2008 the Lease shall be deemed further amended as
follows:

     

    (a)           
The Basic Annual Rent payable with respect to the Original Premises shall be ONE
MILLION SIXTY NINE THOUSAND SIX HUNDRED FIFTY AND 00/100 ($1,069,650.00) DOLLARS
per annum ($89,137.50 per month) for the period from July 1, 2008 through June
30, 2013; and ONE MILLION ONE HUNDRED TWENTY NINE THOUSAND SEVENTY FIVE AND
00/100 ($1,129,075.00) DOLLARS per annum ($94,089.58 per month) for the period
from July 1, 2013 and ending on the New Expiration Date i.e. October 31, 2018.
Provided Tenant is not then in default under the terms, covenants and conditions
of the Lease beyond the expiration of any applicable notice and or cure periods,
Tenant shall have the right to use and occupy the Original Premises free of
Basic Annual Rent only for the months of July, August, September and October
2008, except that Tenant shall pay the Utility all sums due under
Article 12A of the Lease during all of such months. Except for the free
Basic Annual Rent allowance as hereinbefore provided, Tenant shall use and
occupy the Original Premises pursuant to all other terms, covenants and
conditions of the Lease, as amended herein;

     

    (b)           
With respect to the Original Premises only, the term “Base Tax Year” (as defined
in Subsection (d) of Article 1B(i) of the Lease) shall now mean the
amount determined by adding the Taxes imposed during the Tax Years ending June
30, 2008 and June 30, 2009 respectively, and dividing by the number two
(2);

     

     

    
      
        
        

      

      
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    (c)    With respect
to the Original Premises only, the term “Base Wage Rate” (as defined in
subdivision (g) of Article 1B(i) of the Lease) shall now mean the Wage
Rate payable for the calendar year ending December 31, 2008;

     

    (d)    With respect
to the Original Premises only, the term “Tenant’s Percentage” (as defined in
subdivision (a) of Article 1B(i) of the Lease) shall now mean “6.41%”;
and

     

    (e)    Articles 1A(iv),
37, 46 and 47 of the Lease shall not be applicable to the extension of the term
of the Lease applicable to the Original Premises.

     

    SEVENTH:            Tenant
and Owner each represent and warrant to each the other, that it dealt with no
broker or agent in connection with this transaction other than Cushman &
Wakefield, Inc. (“Broker”). Each party shall indemnify and hold the other
harmless from and against any claims, including, without limitation, attorneys’
fees and expenses arising out of a breach by such party of the foregoing
representation. Owner shall pay the brokerage commission(s) of the Broker due
with respect to this transaction pursuant to separate written
agreement(s) between Owner and Broker.

     

    EIGHTH:               Article 34
of the Lease shall be deleted and a new Article 34 inserted in lieu hereof.
Tenant shall upon execution of this lease deposit with Owner a letter of credit
in the form mandated by paragraph (b) hereof in the sum of $683,325.00
(the “Security) which shall be held by Owner as hereinafter
provided

     

    (a)          
It is agreed that in the event Tenant defaults in respect of any of the terms,
provisions and conditions of this Lease beyond any applicable notice or cure
periods, including, but not limited to, the payment of Basic Annual Rent and
additional rent, then, Owner may, without notice, use, apply or retain the whole
or any part of the security so deposited to the extent required for the payment
of any Basic Annual Rent and additional rent or any other sum as to which Tenant
is in default (beyond any applicable notice or cure periods). If Owner applies
or retains all or any portion of the Security (whether in cash or Letter of
Credit) Tenant shall as a material covenant hereunder immediately upon Owner’s
demand restore the amount so applied so that Owner has on deposit the full
amount of Security. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
Security shall be promptly returned to Tenant. In the event of a sale of the
land and Building or leasing of the Building, of which the Demised Premises form
a part, Owner shall have the right to transfer the Security to the vendee or
lessee and Owner shall thereupon be released by Tenant from all liability for
the return of such security, provided, however, Owner shall give to Tenant a


     

     

    
      
        
        

      

      
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    signed
receipt by such vendee or lessee of the Security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
Security and that neither Owner nor its successors or assigns shall be hound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
Tenant’s Federal Tax I.D. number is 94-6181186.

     

    (b)           
The Security shall be in the form of an irrevocable, clean “Evergreen”
automatically renewable commercial letter of credit in the amount of $683,325.00
(the “Letter”) the form of which shall be substantially as shown on Exhibit B
annexed hereto and made a part hereof, issued by a bank which is authorized by
the State of New York to conduct banking business in New York State and is a
member of the New York Clearing House Association and which shall provide that
it shall be fully transferable by Owner with any transfer fee paid by Tenant,
and which shall also provide for presentation and payment in the City of New
York, which shall permit Owner (a) to draw thereon up to the full amount of
the credit evidenced thereby (but partial drawings shall be permitted) in the
event of any default by Tenant in the terms, provisions, covenants or conditions
of this Lease beyond the expiration of any applicable grace, notice and/or cure
periods or (b) to draw the full amount thereof to be held as cash security
pursuant to Article hereof if for any reason the Letter is not renewed
within sixty (60) days prior to its expiration date. The Letter (and each
renewal thereof) shall (i) be for a term of not less than one (1) year
(except that the last Letter shall be for a term expiring forty-five (45) days
after the Expiration Date), (ii) expressly provide for the issuing bank to
notify Owner in writing not less than sixty (60) days prior to its expiration as
to its renewal or non-renewal, as the case may be, and (iii) if not so renewed
each year (or later period of expiration) shall be immediately available for
Owner to draw up to the full amount of such credit (to be held as cash
security). Not less than forty-five (45) days prior to the expiration date of
each Letter (and every renewal thereof), Tenant shall deliver to Owner a renewal
or new Letter subject to all of the conditions aforesaid, all to the intent and
purposes, that a Letter in the sum of $683,325.00 shall be in effect during the
entire term of this lease. The Letter shall specifically provide that any
transfer fees shall be payable by Tenant. Failure by Tenant to comply with the
provisions of this Article shall be deemed a material default hereunder
entitling Owner to exercise any and all remedies as provided in this Lease for
default in the payment of fixed rent and, to draw on the existing Letter up to
its full amount.

     

    (c)           
Simultaneously with Tenant’s delivery of the Letter, Owner will refund to Tenant
its existing security in the sum of $380,000.00.

     

    NINTH:

     

    A.    For purposes
hereof, the term “First Offer Space” shall mean that portion of the fifteenth
(15th) floor of the Building presently designated as Suite 1530 and presently
occupied by Manhattan Business Center, Inc. (“MBC”) with a term to expire on
December 31, 2009.

     

    B.    Provided that
(a) Tenant is not then in default under any of the terms, covenants and
conditions of this Lease after the expiration of all applicable grace, notice
and/or 

     

     

    
      
        
        

      

      
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    cure
periods, (b) Tenant or any “related corporation” or “successor corporation”
(as defined in paragraphs F and G of Article 11 of the Lease) is in actual
occupancy of no less than one hundred (100%) percent of the rentable area of the
Original Premises and Additional Space and any first offer space that Tenant may
have leased pursuant to Articles Ninth or Tenth or otherwise,
i.e., Tenant has not assigned its interest in the lease or sublet all or any
portion of the space it leases as aforesaid) then in both of such events, Owner
agrees that at least ten (10) days before Owner executes a lease or other
occupancy agreement with any third party or any third party having any prior
rights with respect to all or a portion of the First Offer Space, or any
existing tenant in the Building then occupying or intending to occupy space in
the Building greater in area than the space to be leased to Tenant pursuant to
the terms of the Lease as amended herein) for all or any portion of the First
Offer Space, Owner will first offer to lease the First Offer Space (subject to
Article 24 of the Lease) to Tenant upon such terms, covenants and
conditions as Owner by written notice (the “First Offer Notice”) given to Tenant
as provided in the next paragraph.

     

    The First
Offer Notice shall specify Owner’s good faith determination of (a) the
Basic Annual Rent payable for the First Offer Space (the “First Offer Space
Basic Annual Rent”) which shall be based upon the fair market value of the First
Offer Space as determined by Owner (b) the date or anticipated date that
the First Offer Space shall become available for possession (c) the
description of the First Offer Space (the “First Offer Space Area”) including a
floor plan (d) the term that Owner is willing to lease the First Offer
Space for which shall not extend beyond the Extended Term Expiration Date (so
that such space is coterminous with the space leased to Tenant under the Lease,
as amended herein) and (e) such other economic terms as Owner is willing to
lease the First Offer Space for.

     

    Upon the
rendition of the First Offer Notice, such notice shall be deemed a one-time only
offer by Owner to Tenant to lease all and not less than all of the First Offer
Space identified in the First Offer Notice at the First Offer Space Basic Annual
Rent. The First Offer Space shall be leased to Tenant (i) “as is”, unless
otherwise specified in the First Offer Notice, in the condition in which the
same shall be upon the First Offer Space effective date but otherwise vacant and
broom clean, (ii) Tenant shall not be entitled to any abatement, reduction of
rent, or construction allowance by reason of such condition, (iii) Owner shall
not be obligated to do any work or alteration for Tenant in the First Offer
Space and (iv) otherwise upon the terms and conditions set forth in this
Article. The parties hereto agree that in no event shall the First Offer Space
Area constitute or imply any representation or warranty by Owner as the actual
size of the First Offer Space.

     

    Tenant
shall, within ten (10) days after receipt of the First Offer Notice (time being
of the essence), notify Owner as to whether Tenant accepts all of the terms set
forth in the First Offer Notice and, if Tenant shall elect to accept the First
Offer Notice, Tenant shall execute and deliver to Owner, within ten (10) days
after Tenant’s receipt thereof, an additional space agreement (the “First Offer
Agreement”), in form and substance satisfactory to Owner and Owner’s counsel and
reasonably satisfactory to Tenant and its counsel, wherein the First Offer Space
referred to in the First Offer Notice shall be added to the Demised Premises
upon all of the terms set forth in the First Offer Notice. Owner shall be free,
if Tenant does not accept the First Offer Notice or does not execute the First
Offer Agreement within the period provided for herein to lease all or any
portion of the First Offer on any terms Owner may desire, whether more favorable
than that set 

     

     

    
      
        
        

      

      
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    forth in
the First Offer Notice or not.  If Tenant (x) declines the First
Offer Notice or (y) fails to reply to the First Offer Notice within said
first ten (10) day period or (z) fails to execute and deliver the First
Offer Agreement within said second ten (10) day period, Tenant shall thereafter
have no further rights with respect to the leasing of all or any portion of the
First Offer Space.

     

    C.    The rights
granted to Tenant hereunder are personal to Tenant named herein and shall not be
exercisable by any party other than Tenant, other than of related corporations
or successors corporations as aforesaid.

     

    TENTH:

     

    A.    For purposes
hereof, the term “Second Offer Space” shall mean that portion of the fifteenth
(15th) floor of the Building presently designated as Suite 1520 and presently
occupied by Wyser-Pratte, Inc. (“Wyser”) for a term to expire on February 28,
2012.

     

    B.    Provided that
(a) Tenant is not then in default under any of the terms, covenants and
conditions of this Lease after the expiration of all applicable grace, notice
and/or cure periods, (b) Tenant or any related corporation or successor
corporation (as defined in paragraphs F and G of Article 11 of the Lease)
is in actual occupancy of no less than one hundred (100%) percent of the
rentable area of the Original Premises and Additional Space and any first offer
space that Tenant may have leased pursuant to Articles Ninth or Tenth or otherwise,
i.e., Tenant has not assigned its interest in the lease or sublet all or any
portion of the space it leases as aforesaid) then in both of such events, Owner
agrees that at least ten (10) days before Owner executes a lease or other
occupancy agreement with any third party (other than any existing
tenant(s) including Wyser or any other occupant(s) of the Second Offer
Space or any third party having any prior rights with respect to all or a
portion of the Second Offer Space, or any existing tenant in the Building then
occupying or intending to occupy space in the Building greater in area than the
space to be leased to Tenant pursuant to the terms of the Lease as amended
herein) for all or any portion of the Second Offer Space, Owner will first offer
to lease such space (subject to Article 24 of the Lease) to Tenant upon
such terms, covenants and conditions as Owner by written notice (the “Second
Offer Notice”) given to Tenant as provided in the next paragraph.

     

    The
Second Offer Notice shall specify Owner’s good faith determination of
(a) the Basic Annual Rent payable for the Second Offer Space (the “Second
Offer Space Basic Annual Rent”) which shall be based upon the fair market value
of the Second Offer Space as determined by Owner (b) the date or
anticipated date that the Second Offer Space shall become available for
possession (c) the description of the Second Offer Space (the “Second Offer
Space Area”) including a floor plan (d) the term that Owner is willing to
lease the Second Offer Space which shall not extend beyond the Extended Term
Expiration Date (so that such space is coterminous with the space leased to
Tenant under the Lease, as amended herein) and (e) such other economic
terms as Owner is willing to lease the Second Offer Space.

     

    Upon the
rendition of the Second Offer Notice, such notice shall be deemed a one-time
only offer by Owner to Tenant to lease all and not less than all of the Second
Offer Space identified in the Second Offer Space Notice at a Basic Annual Rent
equal to the Second Offer Space Basic Annual Rent. The Second Offer Space shall
be leased to Tenant (i) “as is”, unless 

     

     

    
      
        
        

      

      
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    otherwise
specified in the Second Offer Notice, in the condition in which the same shall
be upon the Second Offer Space effective date but otherwise vacant and broom
clean, (ii) Tenant shall not be entitled to any abatement, reduction of rent, or
construction allowance by reason of such condition, (iii) Owner shall not be
obligated to do any work or alteration for Tenant in the Second Offer Space and
(iv) otherwise upon the terms and conditions set forth in this Article. The
parties hereto agree that in no event shall the Second Offer Space Area
constitute or imply any representation or warranty by Owner as the actual size
of the Second Offer Space.

     

    Tenant
shall, within ten (10) days after receipt of the Second Offer Space Notice (time
being of the essence), notify Owner as to whether Tenant accepts all of the
terms set forth in the Second Offer Space Notice and, if Tenant shall elect to
accept the Second Offer Space Notice, Tenant shall execute and deliver to Owner,
within ten (10) days after Tenant’s receipt thereof, an additional space
agreement “Second Offer Space Agreement”), in form and substance satisfactory to
Owner and Owner’s counsel and reasonably satisfactory to Tenant and its counsel,
wherein the Second Offer Space referred to in the Second Offer Space Notice
shall be added to the demised premises upon all of the terms set forth in the
Second Offer Space Notice. Owner shall be free, if Tenant does not accept the
Second Offer Space Notice or does not execute the Second Offer Space Agreement
within the period provided for herein to lease all or any portion of the Second
Offer Space on any terms Owner may desire, whether more favorable than that set
forth in the Second Offer Space Notice or not. If Tenant (x) declines the
Second Offer Space Notice or (y) fails to reply to the Second Offer Space
Notice within said first ten (10) day period or (z) fails to execute and
deliver the Second Offer Space Agreement within said second ten (10) day period,
Tenant shall thereafter have no further rights with respect to the leasing of
all or any portion of the Second Offer Space.

     

    C.           
The rights granted to Tenant hereunder are personal to Tenant named herein and
shall not be exercisable by any party other than Tenant, other than of related
corporations or successors corporations as aforesaid.

     

    ELEVENTH:

     

    A.           
The captions in this Agreement are for convenience only and are not to be
considered in construing this Agreement.

     

    B.           
This Agreement shall be construed without regard to any presumption or other
rule requiring construction against the party causing this Agreement to be
drafted.

     

    C.           
Terms used in this Agreement and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Lease.

     

    D.           
If any provision of this Agreement or its application to any person or
circumstances is invalid or unenforceable to any extent, the remainder of this
agreement, or the applicability of such provision to other persons or
circumstances, shall be valid and enforceable to the fullest extent permitted by
law and shall be deemed to be separate from such invalid or unenforceable
provisions and shall continue in full force and effect.

     

     

    
      
        
        

      

      
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    E.           
This Agreement shall be governed in all respects by the laws of the State of New
York.

     

    F.           
This Agreement may be executed in one or more counterparts each of which when
taken together, shall constitute one and the same instrument.

     

    TWELFTH:          The
terms and provisions of this Additional Space, Lease Extension and First Lease
Modification Agreement are subject to the approval of the Building’s lender of
the terms contained herein.

     

    THIRTEENTH:    Except
to the extent modified and amended by the foregoing, the Lease is hereby
ratified and confirmed in all respects.

     

     

    
      
        
        

      

      
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    IN WITNESS WHEREOF, the
parties have hereunto set their hands and seals the day and year first above
written.

     

     

    
      
      

    

    
      	 	
              OWNER:

            
	 	
              410 PARK AVENUE
      ASSOCIATES, L.P.

            
	 	
              By:
      410 PARK AVENUE GENPAR CORP.,

            
	 	
              Its
      general partner

            
	 	 
	 	 
	 	
              By:

            	
              
                /s/
      [illegible]

              

            
	 	 	
               
      Name:

            
	 	 	
               
      Title:

            
	 	 
	 	 
	 	
              TENANT:

            
	 	
              CAPITAL TRUST,
      INC.

            
	 	 
	 	 
	 	
              By:

            	
              
                /s/
      John R. Klopp

              

            
	 	 	
               
      Name:

            
	 	 	
               
      Title:

            


    

     

     

    
      
        
        

      

      
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    EXHIBIT
A

     

    FLOOR
PLAN

     

    [GRAPHIC
OMITTED]

     

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

       

    

    


    EXHIBIT
B

     

    FORM OF
LETTER OF CREDlT

     

    [SPECIMEN
LETTER OF CREDIT OMITTED]

     

     

     

    
      19