ex102.htm


     

     

    
      

      

    

                                                                                        EXHIBIT
10.2

     

     

    CONSENT TO
SUBLEASE,


     

    RECOGNITION
AGREEMENT


     

    AND AMENDMENT TO
LEASE

     

    POST-MONTGOMERY
ASSOCIATES, a California general partnership ("Landlord"), hereby consents to
the subletting by BROADPOINT SECURITIES GROUP, INC. (f/k/a First Albany
Companies), a New York corporation ("Tenant"), to JEFFERIES & COMPANY,
INC., a Delaware corporation ("Subtenant"), of Tenant's premises (the
"Premises") in the building known as Post-Montgomery Center, San Francisco,
California, for a term expiring not later than July 30, 2015, which
premises are now leased and demised by Landlord to Tenant by that certain Lease
dated as of March 31, 2005 (the "Lease"), such consent being subject to and
upon the following terms and conditions, to each of which Tenant and Subtenant
expressly agree:

     

    1.    Tenant
shall be and remain liable and responsible for the due keeping, performance and
observance, throughout the term of the Lease, of all of the covenants and
agreements therein set forth on the part of Tenant to be kept, performed and
observed and for the payment of the fixed rent, additional rent and all other
sums and any other charges whatsoever now and/or hereafter becoming payable
thereunder, expressly including as such additional rent, any and all charges for
any property, material, labor, utility or other services furnished or rendered
by Landlord in or in connection with the premises demised by the Lease, whether
for, or at the request of, Tenant or Subtenant.

     

    2.    Subject
to the terms hereof, the sublease (the "Sublease") to cover the space to be
sublet by Tenant to Subtenant (the "Sublet Premises") shall be subject and
subordinate at all times to the Lease, and to all of the covenants and
agreements of the Lease and of this Consent, and Subtenant shall not do, permit
or suffer anything to be done in or in connection with Subtenant's use or
occupancy of the Sublet Premises which would violate any of such covenants and
agreements.

     

    3.    Neither
the Sublease nor this Consent thereto shall:

     

    (a)    Release
or discharge Tenant from any liability whether past, present or future, under
the Lease;

     

    (b)    Operate
as a consent to or approval by Landlord of any of the terms, covenants,
conditions, provisions or agreements of the Sublease and Landlord shall not be
bound thereby;

     

    (c)    Be
construed to modify, waive or affect any of the terms, covenants, conditions,
provisions or agreements of the Lease or to waive any breach thereof, or any of
Landlord's rights thereunder, or enlarge or increase Landlord's obligations
thereunder; or

     

     

     

    
      
        
        

      

      
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    (d)    Be
construed as a consent by Landlord to any further subletting by Tenant or
Subtenant or to any assignment by Tenant of the Lease or assignment by Subtenant
of the Sublease, whether or not the Sublease  purports to permit the
same.

     

    4.    This
Consent is not assignable, nor shall this Consent be a consent to any amendment,
modification, extension or renewal of the Sublease, without Landlord's prior
written consent.

     

    5.    Tenant
covenants and agrees that under no circumstances shall Landlord be liable for
any brokerage commission or other charge or expense in connection with the
Sublease and Tenant agrees to indemnify Landlord against the same and against
any cost or expense (including but not limited to attorneys' fees and expenses)
incurred by Landlord in resisting any claim for any such brokerage
commission.

     

    6.    The
Sublet Premises shall (subject to all of the covenants and agreements of the
Lease) be used solely for the purposes permitted by the Lease.

     

    7.    In the
event that the term of the Lease should expire or terminate prior to the term
stated in the Sublease or if Landlord accepts a surrender of the Premises from
Tenant, it is agreed that so long as the Recognition Conditions (as defined
below) are satisfied at the time of that expiration, termination or surrender
(i) Landlord shall not disturb Subtenant in Subtenant's possession of the
Premises and Landlord shall recognize Subtenant pursuant to the terms of the
Direct Lease (as defined below) at the time of that expiration or termination
and the Direct Lease shall thereafter continue in full force and effect as a
direct lease between Landlord and Subtenant for the balance of the term of the
Sublease on all of the terms of the Direct Lease, and (ii) Subtenant agrees
to attorn to Landlord and to recognize Landlord as Subtenant's landlord, upon
the terms and conditions of the Direct Lease.  In the event the
Recognition Conditions are not then satisfied and Landlord has not elected in
its sole discretion to waive any unsatisfied Recognition Condition, then upon
the expiration or any earlier termination of the term of the Lease or in case of
the surrender of the Lease by Tenant to Landlord, the Sublease and the term and
estate thereby granted shall terminate as of the effective date of such
expiration, termination or surrender, and Subtenant shall vacate the Sublet
Premises on such date.  Any failure of the Subtenant to vacate the
Sublet Premises by that date shall be deemed a failure of Tenant to vacate the
Premises and a continuing occupancy of the Premises by Tenant.  As
used herein, the term "Recognition Conditions" means:

     

    (a)    No
default on the part of Subtenant exists under the Sublease which has continued
uncured after the expiration of the applicable cure period in the
Sublease.

     

    (b)    No
default attributable to Subtenant exists under the Lease that has not been cured
within the applicable cure period under the Lease.

     

    (c)    No
default on the part of Subtenant exists under this Agreement which has continued
uncured for more than ten (10) days after written notice of such
default.

     

    (d)    If
Subtenant's net worth (as defined by, and determined in accordance with, GAAP)
at the time of the expiration, termination or surrender of the Lease by Tenant
is less than $1,000,000,000.00 (the "Net Worth Trigger Event"), Tenant shall
have either (i) provided Landlord with a cash security deposit in an amount
equal to three months of Base Rent due under the Direct Lease during the first
three months after the commencement date of the Direct Lease (the "Security
Amount"), or (ii) provided to Landlord a letter of credit in the Security
Amount in the form required by the Direct Lease within fifteen (15) days after
the occurrence of the Net Worth Trigger Event.

     

     

    
      
        
        

      

      
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    (e)    If so
requested by Landlord, Tenant shall have executed and delivered to Landlord a
new form of Direct Lease meeting the requirements of Section 8 of this
Consent.

     

    8.    As used
herein, the term "Direct Lease" means a lease on the same terms and conditions
as the Lease with the following modifications:

     

    (a)    The
Tenant shall be Subtenant.

     

    (b)    The
Commencement Date and the Rent Commencement Date shall be immediately after the
expiration, termination or surrender of the Lease and the Term shall run from
that date through the Expiration Date of July 31, 2015.

     

    (c)    The
Monthly Base Rent shall be $65,400.00.

     

    (d)    The Base
Year for the purposes of Article 5 of the Direct Lease shall be calendar
year 2009.

     

    (e)    The
Tenant's Address shall be the Premises and such other addresses as Subtenant may
provide Landlord notice as provided in the Direct Lease.

     

    (f)    There
shall be no broker for Landlord or Tenant.

     

    (g)    Section 3.1(a)
of the Lease shall instead read as follows:

     

    "(a)  The term of this Lease
shall commence on the Commencement Date and end on the Expiration Date, unless
sooner terminated or extended pursuant to the provisions of this
Lease.  Prior to the Commencement Date, Tenant was in possession of
the Premises pursuant to a sublease between Tenant and the prior lessee of the
Premises.  Tenant agrees to accept the Premises in their "AS IS"
condition, without any representations or warranties by Landlord, and with no
obligation of Landlord to make any alterations or improvements to the Premises
or to provide any Tenant improvement allowance.  Landlord shall have
no liability to Tenant for any delay or interference with Tenant's occupancy of
the Premises caused by the prior lessee, including without limitation any effort
by that prior lessee to obtain possession of the Premises or dispute the
termination or expiration of the Term of its prior
lease.  Concurrently with Tenant's execution of the Lease, Tenant
shall execute and deliver to Landlord a Confirmation of Lease Term in the form
of Exhibit D
attached hereto."

     

     

     

    
      
        
        

      

      
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    (h)    If the
Net Worth Trigger Event has occurred and Tenant has elected to provide Landlord
with a cash security deposit in lieu of a letter of credit as provided in
Section 7(e), above, the following new Article 26 is added to the
Lease:

     

                                    
"26.           Security
Deposit.

     

                                     
26.1           Application of Security
Deposit.  Prior to this Lease becoming effective, Tenant shall
pay to Landlord a security deposit in the amount of $196,200.00 (the "Security
Deposit").  The Security Deposit shall be held by Landlord as security
for the performance by Tenant of all its obligations under this
Lease.  If Tenant fails to pay any Rent when due or otherwise fails to
perform or fulfill any obligation, covenant, condition or agreement under this
Lease on a timely basis, in each case, beyond applicable notice and cure periods
in this Lease, Landlord, without notice to Tenant, may (but shall not be
obligated to) use, apply or retain all or any portion of the Security Deposit
for the payment of any Rent or for the payment of any other amounts expended or
incurred by Landlord by reason of such failure, or to compensate Landlord for
any loss or damage which Landlord may incur thereby, including, without
limitation, prospective damages and damages recoverable pursuant to California
Civil Code Section 1951.2.  Exercise by Landlord of its rights
hereunder shall not constitute a waiver of, or relieve Tenant from any liability
for, Tenant's failure to perform hereunder.  If Landlord so uses or
applies all or any portion of the Security Deposit, Tenant shall, within
ten (10) days after demand by Landlord, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its full
amount.  If Tenant performs all of Tenant's obligations hereunder, the
Security Deposit, or so much thereof as has not been applied by Landlord, shall
be returned, with interest as provided in Section 26.2, to Tenant (or, at
Landlord's option, to the last assignee, if any, of Tenant's interest under this
Lease) within thirty (30) days after the later of (i) the expiration of the
Term or earlier termination of this Lease (other than on account of an Event of
Default) and (ii) Tenant's vacation of the Premises in the condition
specified by this Lease. Tenant waives the provisions of California Civil Code
Section 1950.7, or any similar or successor laws now or hereinafter in
effect, that restrict Landlord's use or application of the Security Deposit, or
that pertain to the return of the Security Deposit. Landlord's receipt and
retention of the Security Deposit shall not create any trust or fiduciary
relationship between Landlord and Tenant, and Landlord need not keep the
Security Deposit separate from its general accounts. Landlord's return of the
Security Deposit or any part thereof shall not be construed as an admission that
Tenant has performed all of its obligations under this Lease.  Upon
termination of the original Landlord's (or any successor landlord's) interest in
this Lease, the original Landlord (or such successor landlord) shall be released
from further liability with respect to the Security Deposit upon the original
Landlord's (or such successor landlord's) compliance with California Civil Code
Section 1950.7, or successor statute.

     

             
26.2           Interest on Security
Deposit.  Landlord may elect to either commingle the Security
Deposit in its general accounts or deposit the Security Deposit in an
interest-bearing demand account at a national bank of its choice.  In
the event Landlord elects to deposit the Security Deposit in a national bank of
Landlord's choice, interest shall be credited to Tenant and added to the
Security Deposit in an amount equal to the actual interest earned on that
account, less Landlord's good faith estimate of the income taxes payable by
Landlord on those earnings at Landlord's highest marginal rate.  If
Landlord elects to hold the Security Deposit in its own accounts commingled with
its funds, Landlord shall credit Tenant with imputed interest on the Security
Deposit at a rate equal to the rate being paid by a national bank selected by
Landlord on demand deposits of like amounts, less Landlord's good faith estimate
of the income taxes to be payable on that amount of interest at Landlord's
highest marginal rate.  If Landlord elects to deposit the Security
Deposit in a national bank, that deposit shall be at Tenant's sole risk and
Landlord shall have no liability for the return of the Security Deposit to
Tenant to the extent any failure of that bank results in a loss of all or any
portion of that deposit."

     

     

    
      
        
        

      

      
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    (i)    If the
Net Worth Trigger Event has occurred and Tenant has elected to provide Landlord
with a letter of credit in lieu of a cash security deposit as provided in
Section 7(d), above, Article 37 is amended and restated in its
entirety to read as provided in Exhibit B attached hereto.

     

    (j)    If the
Net Worth Trigger Event does not occur, thereafter Article 37 is deleted
and of no effect in the Direct Lease.

     

    (k)   The
following provisions of the Lease are deleted and inapplicable to the Direct
Lease:  Section 3.1(b), Section 3.2, Section 4.1(b),
Section 5.4, Article 33, Article 34, and
Exhibit C.

     

    (l)    If the
Net Worth Trigger Event occurs, Subtenant's failure to deliver either the cash
security deposit in the Security Amount or the letter of credit as required by
Article 37 within fifteen (15) days after the occurrence of the Net Worth
Trigger Event shall be an Event of Default under the Direct Lease without
additional notice or opportunity to cure.  If Subtenant initially
delivers a cash security deposit in the Security Amount within that
fifteen (15) day period, Tenant may at any time within ninety (90)
days thereafter substitute a Letter of Credit in the Security Amount for that
cash security deposit so long as that Letter of Credit otherwise meets the
requirements of Article 37.

     

    9.    In the
event of a recognition and attornment as provided in Section 7 above, Landlord
shall not be:

     

    (a)   liable
for any act or omission of any prior sublandlord (including Tenant);
or

     

    (b)   obligated
to cure any defaults of any prior sublandlord (including Tenant), but in no
event shall Landlord be relieved of its obligations to cure any ongoing defaults
by it under the Lease; or

     

     

     

     

    
      
        
        

      

      
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    (c)           subject
to any offsets or defenses which Subtenant may be entitled to assert against any
prior sublandlord (including Tenant); or

     

    (d)   bound by
any payment of rent or additional rent by Subtenant to any prior landlord
(including Tenant); or

     

    (e)    liable or
responsible for or with respect to the retention, application and/or return to
Subtenant of any security deposit paid to any prior sublandlord (including
Tenant), whether or not still held by such prior sublandlord, unless and until
Landlord has actually received for its own account as landlord the full amount
of such security deposit.

     

    10.    Tenant
acknowledges that Landlord is agreeing to the recognition of the Base Rent and
Base Year provisions of the Sublease in certain circumstances as provided in
Section 8 above as an accommodation to Tenant.  In the event that
the Lease is terminated, Tenant hereby consents and agrees to the recognition of
Subtenant by Landlord for the Base Rent and Base Year contained in the Sublease
and irrevocably acknowledges and agrees that the Base Rent and Base Year
provisions of the Sublease constitute the maximum rental loss that could have
been reasonably avoided and waives any right to assert that any greater amount
of rental loss could have been avoided and any claim that Landlord has not met
its obligations to mitigate damages arising upon a termination of the Lease by
reason of a default by Tenant.

     

    11.    In the
event of attornment hereunder, Landlord's liability shall be limited to matters
arising during Landlord's ownership of the Building, and in the event that
Landlord (or any successor owner) shall convey or dispose of the Building to
another party, such party shall thereupon be and become landlord hereunder and
shall be deemed to have fully assumed and be liable for all obligations of this
Agreement or the Lease to be performed by Landlord which first arise after the
date of conveyance, including the return of any security deposit (provided
Landlord shall have delivered such security deposit to such party), and
Subtenant shall attorn to such other party, and Landlord (or such successor
owner) shall, from and after the date of conveyance, be free of all liabilities
and obligations hereunder not then incurred.  The liability of
Landlord to Subtenant for any default by Landlord under this Agreement or the
Lease after such attornment, or arising in connection with Landlord's operation,
management, leasing, repair, renovation, alteration, or any other matter
relating to the Building or the Sublet Premises, shall be limited to the
interest of the Landlord in the Building.  Under no circumstances
shall any present or future member of Landlord have any liability for the
performance of Landlord's obligations under this Agreement or the
Lease.

     

    12.    A true
and complete copy of the Sublease and a true and complete copy of each amendment
thereto shall be delivered to Landlord within ten days after the execution and
delivery thereof by the parties thereto; it being understood that Landlord shall
not be deemed to be a party to the Sublease or any such amendment nor bound by
any of the covenants or agreements thereof and that neither the execution and
delivery of this Consent nor the receipt by Landlord of a copy of
the  Sublease or a copy of any such amendment shall be deemed to
change any provision of this Consent or to be consent to, or an approval by
Landlord of, any covenant or agreement contained in the Sublease or any such
amendment.

     

     

     

    
      
        
        

      

      
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    13.    All of
the covenants and agreements contained herein shall be binding upon and shall
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.

     

    14.    This
Consent shall not be effective and binding unless and until (a) it has
been  fully executed and delivered by all of the parties hereto and
(b) Landlord shall have received from Tenant $7,500.00 as reimbursement of
Landlord's fees and charges in connection with this Consent.

     

    15.    In the
event of Tenant's default in the payment of rent or additional rent under the
provisions of the Lease, the rent due from the Subtenant under the Sublease
shall be deemed assigned to Landlord and Landlord shall have the right, under
such default, at any time at Landlord's option, to give notice of such
assignment to the Subtenant.  Landlord shall credit Tenant with any
rent received by Landlord under such assignment but the acceptance of any
payment on account of rent from the Subtenant as the result of any such default
shall in no manner whatsoever be deemed an attornment by the Subtenant to
Landlord, or serve to release Tenant from any liability under the terms,
covenants, conditions, provisions or agreements under the
Lease.  Notwithstanding the foregoing, any other payment of rent from
the Subtenant directly to Landlord, regardless of the circumstances or reasons
therefor, shall in no manner whatsoever be deemed an attornment by the Subtenant
to Landlord in the absence of a specific written agreement signed by Landlord to
such an effect.

     

    16.    Tenant
and Subtenant understand and acknowledge that Landlord's consent to the Sublease
is not a consent to any improvement or alteration work being performed in the
Sublet Premises, that Landlord's consent therefor must be separately sought in
accordance with the terms of the Lease.

     

    17.    Both
Tenant and the Subtenant shall be and continue to be liable for the payment of
(a) all bills rendered by Landlord for charges incurred by the Subtenant
for services and materials supplied to the Sublet Premises, including without
limitation, any services and materials supplied beyond that which is required by
the terms of the Lease and (b) any additional costs incurred by Landlord
for maintenance and repair of the Sublet Premises as the result of Subtenant
(rather than Tenant) occupying the Sublet Premises (including but not limited to
any excess cost to Landlord of services furnished to or for the Sublet Premises
resulting from the extent to which Subtenant uses them for purposes other than
as set forth in the Lease).  Subtenant may make requests for overtime
services to be rendered to the Sublet Premises in accordance with the terms of
the Lease to Landlord and Landlord may submit bills to Subtenant directly for
all such charges, but except as expressly set forth herein, neither such billing
nor Landlord's acceptance of request for overtime services or payment directly
from Subtenant shall create or be deemed to create any privity of contract
between Landlord and Subtenant.

     

    18.    Subject
to the terms hereof, the term of the Sublease shall expire and come to an end,
regardless of any provision of the Sublease to the contrary, upon the earlier of
(i) its natural expiration date or any premature termination date thereof
or (ii) concurrently with any premature termination or natural expiration
of the Lease (whether by consent or other right, now or hereafter agreed to by
Landlord or Tenant, or by operation of law or at Landlord's option in the event
of default by Tenant).

     

     

     

    
      
        
        

      

      
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    19.    Landlord
and Tenant hereby agree that the Lease is amended by adding a new
Article 37 in the form of "Exhibit A" attached hereto.

     

    20.    As
additional consideration for this Consent, Tenant hereby certifies
that:

     

    (a) The Lease
is in full force and effect.

     

    (b) To
Tenant's knowledge, there are no uncured defaults on the part of Landlord or
Tenant under the Lease.

     

    (c) There are
no existing offsets or defenses which Tenant has against the enforcement of the
Lease by Landlord.

     

    21.    Landlord
hereby certifies that:  (i) the Lease is in full force and
effect; and (ii) to Landlord's knowledge, there are no uncured defaults on
the part of Landlord or Tenant under the Lease.

     

    22.    By
executing this Consent, Subtenant acknowledges that it has received a copy of
the Lease from Tenant.

     

    23.    Tenant
and Landlord hereby agree that the Expansion Option in Article 34 of the Lease
is of no further force or effect.

     

    24.    As used
herein the term "Subtenant" shall include Subtenant, its successors and assigns;
the words "termination" and "eviction" as used herein shall be deemed to include
the termination of Tenant's estate in the Premises by voluntary surrender (or
release) in lieu of eviction, and the word "Landlord" shall include Landlord
herein specifically named and any of its successors, assigns and grantees,
including anyone who shall have succeeded to Tenant's interest in the Premises
by, through or under foreclosure of the Lease or a deed in lieu
thereof.

     

    25.    All
notices, demands and requests which may be given or which are required to be
given by any party to the other must be in writing.  All notices,
demands and requests shall be sent by personal delivery or a nationally
recognized overnight courier service, fee for overnight delivery paid and
addressed as follows or at such substitute addresses as may be specified by any
party by written notice furnished to the others in accordance
herewith:

     

    If to
Landlord:


     

    Post
Montgomery Center

    One
Montgomery Street, Suite 3220

    San
Francisco, California   94104

     

    If to
Tenant:


     

    Broadpoint
Securities Group, Inc.

    677
Broadway

    Albany,
New York   12207

    Attention:  General
Counsel

     

     

     

    
      
        
        

      

      
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    With a
copy to:


     

    Dechert
LLP

    1095
Avenue of the Americas

    New York,
New York   10036

    Attention:  Sean
H. Porter, Esq.

     

    If to
Subtenant:


     

    Jefferies
& Company, Inc.

    520
Madison Avenue

    New York,
New York   10022

    Attention:  Barry
Alton

     

    With a
copy to:


     

    Kramer
Levin Naftalis & Frankel LLP

    1177
Avenue of the Americas

    New York,
New York   10036

    Attention:  Neil
R. Tucker, Esq.

     

    Notices
shall be deemed given on the date of actual receipt by the addressee as
evidenced by a receipt therefor, if received on a business day, or the first
business day following receipt, if received on a non-business day, or when
delivery is first refused, and in the event of failure to deliver by reason of
changed address of which no Notice was given or refusal to accept delivery, as
of the date of such failure.

     

    26.    This
Consent shall be governed by, and construed and interpreted in accordance with,
the laws of the State of California.

     

    27.    This
Consent may be executed in one or more counterparts, each of which shall be
deemed an original and which together shall constitute one and the same
instrument.

     

    28.    Landlord
agrees to (i) provide a copy of this Consent to any purchaser, assignee or
transferee of Landlord's interest in the Premises, and (ii) deliver any
letter of credit(s) delivered by Tenant and/or Subtenant in connection with the
Lease or Direct Lease and this Consent to such purchaser, assignee or
transferee; provided that if the assignment is for security purposes only, the
letter of credit(s) need not be delivered unless required by the
assignee.

     


    
      
         


      

      
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    IN
WITNESS WHEREOF, this Consent is executed as of November ___,
2008.

     

    "LANDLORD"

    


    POST-MONTGOMERY
ASSOCIATES,

    a
California general partnership

    


    By:           Cushman
& Wakefield of California, Inc.,

    as agent for The Prudential Insurance
Company

    of America, a general
partner

    


    


    By: /s/ Susan Court

    


                
Susan
Court                            



         


                         
Its: 
General Managers

    


    


    By:           UBS
REALTY INVESTORS LLC, as agent for

    NLI PROPERTIES WEST, INC., a general
partner

    


    


    By: /s/ Thomas Enger

    


                
Thomas Enger

    


          Its: 
Executive Director

    


    



    
      
         


      

      
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    "TENANT"

    


    BROADPOINT
SECURITIES GROUP, INC. (f/k/a

    First
Albany Companies), a New York corporation

    


    


    By: /s/
Lee Fensterstock

    


          Its:
Chairman & CEO

    


    


    "SUBTENANT"

    


    JEFFERIES &
COMPANY, INC., a Delaware corporation

    


    


    By: /s/
Barry G. Alton 

    


          Its:
SVP Corporate and Real Estate Services

    


     

     

    
 

    
      
         


      

      
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    EXHIBIT
A

     

                                                37.    LETTER OF
CREDIT

     

    37.1 Letter of
Credit.  Tenant agrees to provide, at Tenant's sole cost and
expense, a Letter of Credit (as defined below) in the Letter of Credit Required
Amount (as defined below) as additional security for the faithful performance
and observance by Tenant of all of the provisions of this Lease, on the terms
and conditions set forth below.  The use, application or retention of
the Letter of Credit, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this Lease or by
law, it being intended that Landlord shall not first be required to proceed
against the Letter of Credit and the Letter of Credit shall not operate as a
limitation on any recovery to which Landlord may otherwise be
entitled.  As used herein the term "Letter of Credit Required Amount"
initially means $338,981.00.  Subject to the remaining terms of this
Article 37, and provided the Reduction Condition (as defined below) has
been satisfied at the particular reduction effective date, Tenant shall have the
right to reduce the Required Amount so that the new Required Amount shall be
$314,981.00 effective as of January 1, 2011; $280,981.00 effective as of
January 1, 2012; $223,981.00 effective as of January 1, 2013;
$150,981.00 effective as of January 1, 2014; and $54,981.00 effective as of
January 1, 2015.  If Tenant is not entitled to reduce the
Required Amount as of a particular reduction effective date due to the failure
of the Reduction Condition, then any subsequent reduction(s) Tenant is entitled
to hereunder shall be reduced by the amount of the reduction Tenant would have
been entitled to had the Reduction Condition been satisfied.  If
Tenant is entitled to a reduction in the Required Amount, Tenant shall provide
Landlord with written notice requesting that the Required Amount be reduced as
provided above (the “Reduction Notice”).  If Tenant provides Landlord
with a Reduction Notice, and Tenant is entitled to reduce the Required Amount as
provided herein, the reduction shall be effectuated by Tenant replacing the
Letter of Credit then being held by Landlord with a new Letter of Credit in the
new Required Amount or amending the then-existing Letter of Credit to that new
Required Amount.  The term "Reduction Condition" means no Event of
Default shall have occurred and be continuing under this Lease.

     

    37.2 Delivery of Letter of
Credit.  (a) Tenant shall cause a Letter of Credit, in the
amount of the Letter of Credit Required Amount to be issued by the L/C Bank (as
defined below) in favor of Landlord, and its successors, assigns and
transferees; (b) Tenant will cause the Letter of Credit to remain in full
force and effect during the entire Term and thereafter until sixty (60)
days after expiration or earlier termination of the Lease; and (c) the initial
Letter of Credit will be delivered to Landlord upon the L/C Delivery Date (as
defined below).  As used herein, the term "L/C Delivery Date" means
the date of the execution and delivery by Tenant of the Consent to Sublease,
Recognition Agreement and Amendment to Lease which adds this Article to the
Lease (the "Consent and Recognition Agreement").  So long as no Event
of Default then exists, Landlord shall return the Letter of Credit to Tenant
within sixty (60) days after the Expiration Date  The specific
requirements for the Letter of Credit and the rights of Landlord to make draws
thereon will be as set forth in this Article 37.  All of Tenant's
rights and all of Landlord's obligations under this Lease are strictly
contingent on Tenant's delivering and thereafter causing the Letter of Credit to
remain in full force and effect during the entire Term.

     

     

     

    
      
        
        

      

      
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    37.3 Draws on the Letter of
Credit.  Immediately upon, and at any time or from time to time
after, the occurrence of any one or more Draw Events (as defined below),
Landlord will have the unconditional right to draw on the Letter of Credit in
accordance with this Article 37.  Upon the payment to Landlord of
the Draw Proceeds, Landlord will hold the Draw Proceeds in its own name and for
its own account, without liability for interest, to use and apply any and all of
the Draw Proceeds only (a) to cure any Event of Default by Tenant;
(b) to pay any other sum to which Landlord becomes obligated by reason of
Tenant's failure to carry out its obligations under this Lease; (c) to
compensate Landlord for any monetary loss or damage which Landlord suffers
thereby arising from Tenant's failure to carry out its obligations under this
Lease; and/or (d) to compensate Landlord for agreeing to enter into the
Direct Lease (as defined in the Consent and Recognition Agreement) pursuant to
the Consent and Recognition Agreement at a different Base Rent and Base Year
than the Base Rent and Base Year provided for in this Lease.  In
addition, if the Draw Event is the failure of Tenant to renew the Letter of
Credit as required hereunder, then Landlord shall be entitled to draw the entire
Letter of Credit as a cash security deposit, held as a pledge under the
California Uniform Commercial Code to secure Tenant's obligations under this
Lease.  Among other things, it is expressly understood that the Draw
Proceeds will not be considered an advance payment of Base Rent or Additional
Rent or a measure of Landlord's damages resulting from any Event of Default
hereunder (past, present or future).  Further, immediately upon the
occurrence and during the continuance of any one or more Draw Events, Landlord
may, from time to time and without prejudice to any other remedy, use the Draw
Proceeds (whether from a contemporaneous or prior draw on the Letter of Credit)
to the extent necessary to make good any arrearages of Base Rent or Additional
Rent, to pay to Landlord any and all amounts to which Landlord is entitled in
connection with the pursuit of any one or more of its remedies hereunder, to
compensate Landlord for any and all other damage, injury, expense or liability
caused to Landlord by any and all such Events of Default, and to compensate
Landlord for entering into the Direct Lease pursuant to the Consent and
Recognition Agreement at a different Base Rent and Base Year than the Base Rent
and Base Year provided for in this Lease.  Any delays in Landlord's
draw on the Letter of Credit or in Landlord's use of the Draw Proceeds as
provided in this Article 37 will not constitute a waiver by Landlord of any
of its rights hereunder with respect to the Letter of Credit or the Draw
Proceeds.  Following any such application of the Draw Proceeds, Tenant
will either pay to Landlord on demand the cash amount so applied in order to
restore the Draw Proceeds to the full amount thereof immediately prior to such
application or cause the Letter of Credit to be replenished to its full amount
thereunder.  Landlord will not be liable for any indirect,
consequential, special or punitive damages incurred by Tenant arising from a
claim that Landlord violated the bankruptcy code's automatic stay in connection
with any draw by Landlord of any Draw Proceeds, Landlord's liability (if any)
under such circumstances being limited to the reimbursement of direct costs as
and to the extent expressly provided in this
Section 37.3.  Nothing in this Lease or in the Letter of Credit
will confer upon Tenant any property rights or interests in any Draw Proceeds;
provided, however, that upon the expiration or earlier termination of this
Lease, and so long as there then exist no Draw Events or Events of Default
hereunder, Landlord agrees to return of any remaining unapplied balance of the
Draw Proceeds then held by Landlord, and the Letter of Credit itself (if and to
the extent not previously drawn in full) to the L/C Bank.  Landlord
may draw on the Letter of Credit and/or apply any Deposit in any
order.

     

     

     

    
      
        
        

      

      
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    37.4 Applicable
Definitions.

     

    "Draw
Event" means each of the following events:

     

    (a) the
occurrence of any one or more of the following which shall have also been
preceded, simultaneously accompanied, or succeeded by an Event of Default under
this Lease regardless of the absence of any notice of default which might
otherwise be required with respect to an Event of Default if the giving of
notice to Tenant about such breach by Tenant is stayed or barred due to one of
the following events:  (i) Tenant's filing of a petition under any
chapter of the Bankruptcy Code, or under any federal, state or foreign
bankruptcy or insolvency statute now existing or hereafter enacted, or Tenant's
making a general assignment or general arrangement for the benefit of creditors,
(ii) the filing of an involuntary petition under any chapter of the Bankruptcy
Code, or under any federal, state or foreign bankruptcy or insolvency statute
now existing or hereafter enacted, or the filing of a petition for adjudication
of bankruptcy or for reorganization or rearrangement, by or against Tenant and
such filing not being dismissed within sixty (60) days, (iii) the entry of an
order for relief under any chapter of the Bankruptcy Code, or under any federal,
state or foreign bankruptcy or insolvency statute now existing or hereafter
enacted, (iv) the appointment of a "custodian," as such term is defined in the
Bankruptcy Code (or of an equivalent thereto under any federal, state or foreign
bankruptcy or insolvency statute now existing or hereafter enacted), for Tenant,
or the appointment of a trustee or receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease and possession not being restored to Tenant within sixty (60) days, or (v)
the subjection of all or substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease to attachment, execution or other
judicial seizure and such subjection not being discharged within sixty (60)
days;

     

    (b) the
failure of Tenant, not less than thirty (30) days prior to the stated expiration
date of the Letter of Credit then in effect, to cause an extension, renewal or
replacement issuance of the Letter of Credit, to be effected, which extension,
renewal or replacement issuance will be made by the L/C Bank, will otherwise
meet all of the requirements of the initial Letter of Credit hereunder, which
failure will be an Event of Default under this Lease;

     

    (c) the
failure of Tenant to make when due any payment of Base Rent, of any monthly
installment of any Additional Rent, or pay any other monetary obligation within
five (5) business days after the amount is due; provided that in the event
Tenant is entitled to a notice prior to the occurrence of an Event of Default
for non-payment of Base Rent pursuant to Section 20.1(a), this Draw Event
shall not be deemed to have occurred until expiration of five (5) business
days after that notice (or, if Landlord is prevented from giving notice by
application of the bankruptcy code's automatic stay, any failure of Tenant to
make when due any payment of Base Rent, of any monthly installment of any
Additional Rent, or to pay any other monetary obligation within five (5)
business days after the amount is due).

     

    (d) the
payment by Landlord of any sum to cure a failure by Tenant to comply with any
non-monetary obligation hereunder which Tenant has not cured within
thirty (30) days after notice thereof by Landlord or, if the failure is of
a nature requiring more than thirty (30) days to cure, then such additional
period as is reasonably required to cure the same, but only if Tenant commences
cure within such thirty (30) day period and thereafter diligently pursues
such cure to completion (or, if Landlord is prevented from giving notice by
application of the bankruptcy code's automatic stay, the payment of Landlord of
any sum to cure a failure by Tenant to comply with any non-monetary obligation
hereunder that Tenant has not cured within (i) thirty (30) days from the date of
the breach, or (ii) if the failure is of a nature requiring more than
thirty (30) days to cure, such additional period as is reasonably required
to cure the same, but only if Tenant commences cure within such thirty (30)
day period and thereafter diligently pursues such cure to
completion).

     

     

     

    
      
        
        

      

      
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    "Draw
Proceeds" means the proceeds of any draw or draws made by Landlord under the
Letter of Credit, together with any and all interest accruing
thereon.

     

    "L/C
Bank" means any United States bank which is approved by Landlord in Landlord's
sole discretion.  Landlord hereby approves of The Bank of New York
Mellon as the L/C Bank.

     

    "Letter
of Credit" means that certain one-year irrevocable letter of credit, in the
Letter of Credit Required Amount, issued by the L/C Bank, as required under
Section 37.2 and, if applicable, as extended, renewed, replaced or modified
from time to time in accordance with this Lease, which letter of credit will be
transferable and in substantially the same form as attached
Schedule 1.

     

    37.5 Transfer of Letter of
Credit.  The Letter of Credit shall not be mortgaged, assigned
or encumbered in any manner whatsoever by Tenant.  Tenant acknowledges
that Landlord has the right to transfer or mortgage its interest in the Premises
and the Building and in this Lease and Tenant agrees that in the event of any
such transfer or mortgage, Landlord shall have the right to transfer or assign
the Letter of Credit and/or the Draw Proceeds to the transferee or mortgagee,
and in such event, Tenant shall look solely to such transferee or mortgagee for
return of the Letter of Credit and/or the Draw Proceeds so
transferred.  Tenant shall, within five (5) days of request by
Landlord, execute such further instruments or assurances as Landlord may
reasonably deem necessary to evidence or confirm Landlord's transfer or
assignment of the Letter of Credit and/or the Draw Proceeds to such transferee
or mortgagee.

     

    37.6 Letter of Credit is Not
Security Deposit.  Landlord and Tenant acknowledge and agree
that in no event or circumstance shall the Letter of Credit, any renewal thereof
or substitute therefor or the proceeds thereof be (i) deemed to be or
treated as a "security deposit" within the meaning of California Civil Code
Section 1950.7, (ii) subject to the terms of such Section 1950.7, or
(iii) intended to serve as a "security deposit" within the meaning of such
Section 1950.7.  The parties hereto (A) recite that the
Letter of Credit is not intended to serve as a security deposit and such
Section 1950.7 and any and all other laws, rules and regulations applicable
to security deposits in the commercial context ("Security Deposit Laws") shall
have no applicability or relevancy thereto and (B) waive any and all
rights, duties and obligations either party may now or, in the future, will have
relating to or arising from the Security Deposit
Laws.  Notwithstanding the foregoing, to the extent California Civil
Code 1950.7 in any way:  (a) is determined to be applicable
to this Lease or the Letter of Credit (or any proceeds thereof); or
(b) controls Landlord's rights to draw on the Letter of Credit or apply the
proceeds of the Letter of Credit to any amounts due under this Lease or any
damages Landlord may suffer following termination of this Lease,
then  Tenant full and irrevocably waives the benefits and protections
of Section 1950.7 of the California Civil Code, it being agreed that
Landlord may recover from the Letter of Credit (or its proceeds) all of
Landlord's damages under this Lease and California law including, but not
limited to, any damages accruing upon the termination of this Lease in
accordance with this Lease and Section 1951.2 of the California Civil
Code.

     

     

     


    
      
         


      

      
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    SCHEDULE
1

     

    FORM OF LETTER OF
CREDIT

     

    


     

    


    
      	
              BENEFICIARY

               

              Post
      Montgomery Associates

              One
      Montgomery Street, Suite 3220

              San
      Francisco, CA  94104

              Attn:
      Building Manager

            	 
      	
              APPLICANT

               

              Broadpoint
      Securities Group, Inc.

              1
      Penn Plaza

              New
      York, NY 10119-4000

               

            


    

    


    


    WE HEREBY
ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. XXXXXXXX IN FAVOR OF
POST MONTGOMERY ASSOCIATES FOR THE ACCOUNT OF BROADPOINT SECURITIES GROUP, INC.
FOR A SUM NOT EXCEEDING $338,981, AVAILABLE BY YOUR DRAFTS AT SIGHT ON US
EFFECTIVE IMMEDIATELY AND EXPIRING AT OUR COUNTERS AT OUR CLOSE OF BUSINESS ON
NOVEMBER XX, 2009.

    


    DRAFTS
DRAWN HEREUNDER MUST BE ACCOMPANIED BY A STATEMENT SIGNED BY ONE OF YOUR
AUTHORIZED SIGNATORIES READING AS FOLLOWS:  "THE AMOUNT OF THE
ACCOMPANYING DRAFT IS DUE AND PAYABLE TO THE LANDLORD UNDER A CERTAIN OFFICE
LEASE DATED AS OF MARCH 31, 2005, BETWEEN POST MONTGOMERY ASSOCIATES AND
BROADPOINT SECURITIES GROUP, INC."

    


    DRAFTS
DRAWN HEREUNDER MUST INDICATE:  "DRAWN UNDER LETTER OF CREDIT
NO. XXXXXXXX OF THE BANK OF NEW YORK MELLON."  IT IS A CONDITION
OF THIS LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY EXTENDED WITHOUT
AMENDMENT FOR FURTHER PERIODS OF ONE YEAR FROM THE PRESENT AND EACH FUTURE
EXPIRATION DATE, UNLESS, AT LEAST THIRTY (30) DAYS PRIOR TO SUCH DATE, WE
SHALL SEND YOU NOTICE IN WRITING BY OVERNIGHT COURIER, TO THE ATTENTION OF YOUR
BUILDING MANAGER AT THE ABOVE ADDRESS THAT WE ELECT NOT TO RENEW THIS LETTER OF
CREDIT FOR SUCH ADDITIONAL PERIOD.  ANY SUCH NOTICE WILL BE EFFECTIVE
THREE (3) DAYS AFTER BEING SENT BY US, AND THEREAFTER YOU MAY DRAW DRAFTS(S) ON
US AT SIGHT FOR AMOUNTS UP TO THE REMAINING BALANCE OF THIS LETTER OF CREDIT ON
OR BEFORE THE THEN APPLICABLE EXPIRATION DATE, AND SUCH DRAFT(S) NEED NOT BE
ACCOMPANIED BY ANY STATEMENT.  THIS LETTER OF CREDIT IS TRANSFERABLE
IN ITS ENTIRETY TO ANY ASSIGNEE OF TRANSFEREE OF YOUR INTEREST IN THE OFFICE
LEASE REFERRED TO ABOVE WITHOUT ANY FEE OR CHARGE ON YOUR PART OR ON THE PART OF
THE TRANSFEREE.  SAID TRANSFER IS TO BE EFFECTED AT OUR COUNTERS AND
IS CONTINGENT UPON:

     

     

    
 

    
      
        
        

      

      
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              A)

            	
              THE
      SATISFACTORY COMPLETION OF OUR TRANSFER FORM, ATTACHED HERETO, WITH THE
      SPECIMEN SIGNATURE OF THE BENEFICIARY'S AUTHORIZED SIGNATURE PROPERLY
      VERIFIED BY AN OFFICER OF THE BENEFICIARY'S BANK;
  AND

            


    

    


    
      	
              B)

            	
              RETURN
      OF THE ORIGINAL OF THIS LETTER OF CREDIT FOR ENDORSEMENT THEREON BY US TO
      THE TRANSFEREE.

            


    

    


    IN THE
EVENT THIS LETTER OF CREDIT IS TRANSFERRED AS STATED ABOVE, THE SIGHT DRAFT(S)
REQUIRED HEREIN ARE TO BE EXECUTED BY THE TRANSFEREE AS
BENEFICIARY.

     

    UNDER NO
CIRCUMSTANCES SHALL THIS LETTER OF CREDIT BE TRANSFERRED TO ANY PERSON OR ENTITY
WITH WHICH U.S. PERSONS OR ENTITIES ARE PROHIBITED FROM CONDUCTING BUSINESS
UNDER U.S. FOREIGN ASSET CONTROL REGULATIONS AND ANY OTHER U.S. LAWS AND
REGULATIONS.  PARTIAL DRAWINGS UNDER THIS LETTER OF CREDIT ARE
PERMITTED.  THE AMOUNT AND DATE OF PRESENTATION OF ANY DRAFT DRAWN AND
PRESENTED PURSUANT TO THE TERMS OF THIS LETTER OF CREDIT SHALL BE NOTED ON THIS
LETTER OF CREDIT BY US. AFTER MAKING SUCH NOTATION, THIS LETTER OF CREDIT SHALL
BE RETURNED IMMEDIATELY TO YOU, UNLESS ANY SUCH DRAFT PRESENTED AND PAID SHALL
HAVE EXHAUSTED THIS CREDIT, IN WHICH CASE THIS LETTER OF CREDIT SHALL BE
RETAINED BY US.  WE HEREBY ENGAGE WITH THE DRAWERS, ENDORSERS AND BONA
FIDE HOLDERS OF DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS
LETTER OF CREDIT THAT SUCH DRAFTS WILL BE DULY HONORED IF PRESENTED FOR PAYMENT
AT OUR OFFICE LOCATED AT THE BANK OF NEW YORK MELLON, 525 WILLIAM PENN PLACE, 3
MELLON CENTER - ROOM 1930, PITTSBURGH, PA 15259-0001 PRIOR TO THE TIME OF THE
EXPIRATION HEREOF.  PRESENTMENT MAY BE MADE (A) IN PERSON, (B) BY
FEDEX OR OTHER RECOGNIZED OVERNIGHT COURIER SERVICE OR (C) BY FACSIMILE SENT TO
US AT (412) 234-2733 OR (412) 234-5529 WITH PHONE CONFIRMATION OF FAX
PRESENTATION TO US AT (315) 765-4316 OR (315) 765-4431 SUCH DRAFTS WILL BE
PAID IN IMMEDIATELY AVAILABLE FUNDS BEFORE 2:00 P.M. EASTERN STANDARD TIME
ON THE BANKING DAY AFTER THE DAY ON WHICH SUCH DRAFT IS SO
PRESENTED.  "BANKING DAY" MEANS A DAY ON WHICH COMMERCIAL BANKS ARE
OPEN FOR BUSINESS IN THE UNITED STATES.

     

    THIS
LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (2007 REVISION) OF THE INTERNATIONAL CHAMBER OF COMMERCE (PUBLICATION
NO. 600).

     

     

     

     

    
      
         


      

      
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    EXHIBIT
B

     

    SECTION
37

    LETTER
OF CREDIT

     

    37.1    Letter of
Credit.  Tenant agrees to provide, at Tenant's sole cost and
expense, a Letter of Credit (as defined below) in the Letter of Credit Required
Amount (as defined below) as additional security for the faithful performance
and observance by Tenant of all of the provisions of this Lease, on the terms
and conditions set forth below.  The use, application or retention of
the Letter of Credit, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this Lease or by
law, it being intended that Landlord shall not first be required to proceed
against the Letter of Credit and the Letter of Credit shall not operate as a
limitation on any recovery to which Landlord may otherwise be
entitled.  As used herein the term "Letter of Credit Required Amount"
initially means $196,200.00.

     

    37.2    Delivery of Letter of
Credit.  (a) Tenant shall cause a Letter of Credit, in the
amount of the Letter of Credit Required Amount to be issued by the L/C Bank (as
defined below) in favor of Landlord, and its successors, assigns and
transferees; (b) Tenant will cause the Letter of Credit to remain in full
force and effect during the entire Term and thereafter until sixty (60)
days after expiration or earlier termination of the Lease; and (c) the initial
Letter of Credit will be delivered to Landlord upon the L/C Delivery Date (as
defined below).  As used herein, the term "L/C Delivery Date" means
the date upon which delivery is required pursuant to the Consent to Sublease,
Recognition Agreement and Amendment to Lease by and among Landlord, Tenant and
Broadpoint Securities Group, Inc. (f/k/a First Albany Companies), a New York
corporation, pursuant to which this Lease became effective between Landlord and
Tenant.  So long as no Event of Default then exists, Landlord shall
return the Letter of Credit to Tenant within sixty (60) days after the
Expiration Date  The specific requirements for the Letter of Credit
and the rights of Landlord to make draws thereon will be as set forth in this
Article 37.  All of Tenant's rights and all of Landlord's
obligations under this Lease are strictly contingent on Tenant's delivering and
thereafter causing the Letter of Credit to remain in full force and effect
during the entire Term.

     

    37.3    Draws on the Letter of
Credit.  Immediately upon, and at any time or from time to time
after, the occurrence of any one or more Draw Events (as defined below),
Landlord will have the unconditional right to draw on the Letter of Credit in
accordance with this Article 37.  Upon the payment to Landlord of
the Draw Proceeds, Landlord will hold the Draw Proceeds in its own name and for
its own account, without liability for interest, to use and apply any and all of
the Draw Proceeds only (a) to cure any Event of Default by Tenant;
(b) to pay any other sum to which Landlord becomes obligated by reason of
Tenant's failure to carry out its obligations under this Lease; or (c) to
compensate Landlord for any monetary loss or damage which Landlord suffers
thereby arising from Tenant's failure to carry out its obligations under this
Lease.  In addition, if the Draw Event is the failure of Tenant to
renew the Letter of Credit as required hereunder, then Landlord shall be
entitled to draw the entire Letter of Credit as a cash security deposit, held as
a pledge under the California Uniform Commercial Code to secure Tenant's
obligations under this Lease, in which case, the terms of Article 26 hereof
shall apply thereto.  Among other things, it is expressly understood
that the Draw Proceeds will not be considered an advance payment of Base Rent or
Additional Rent or a measure of Landlord's damages resulting from any Event of
Default hereunder (past, present or future).  Further, immediately
upon the occurrence and during the continuance of any one or more Draw Events,
Landlord may, from time to time and without prejudice to any other remedy, use
the Draw Proceeds (whether from a contemporaneous or prior draw on the Letter of
Credit) to the extent necessary to make good any arrearages of Base Rent or
Additional Rent, to pay to Landlord any and all amounts to which Landlord is
entitled in connection with the pursuit of any one or more of its remedies
hereunder, and to compensate Landlord for any and all other damage, injury,
expense or liability caused to Landlord by any and all such Events of
Default.  Any delays in Landlord's draw on the Letter of Credit or in
Landlord's use of the Draw Proceeds as provided in this Article 37 will not
constitute a waiver by Landlord of any of its rights hereunder with respect to
the Letter of Credit or the Draw Proceeds.  Following any such
application of the Draw Proceeds, Tenant will either pay to Landlord on demand
the cash amount so applied in order to restore the Draw Proceeds to the full
amount thereof immediately prior to such application or cause the Letter of
Credit to be replenished to its full amount thereunder.  Landlord will
not be liable for any indirect, consequential, special or punitive damages
incurred by Tenant arising from a claim that Landlord violated the bankruptcy
code's automatic stay in connection with any draw by Landlord of any Draw
Proceeds, Landlord's liability (if any) under such circumstances being limited
to the reimbursement of direct costs as and to the extent expressly provided in
this Section 37.3.  Nothing in this Lease or in the Letter of
Credit will confer upon Tenant any property rights or interests in any Draw
Proceeds; provided, however, that upon the expiration or earlier termination of
this Lease, and so long as there then exist no Draw Events or Events of Default
hereunder, Landlord agrees to return of any remaining unapplied balance of the
Draw Proceeds then held by Landlord, and the Letter of Credit itself (if and to
the extent not previously drawn in full) to the Tenant.  Landlord may
draw on the Letter of Credit and/or apply any Deposit in any order.

     

     

    
      
        
        

      

      
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    37.4    Applicable
Definitions.

     

    "Draw
Event" means each of the following events:

     

    (a) the
occurrence of any one or more of the following which shall have also been
preceded, simultaneously accompanied, or succeeded by an Event of Default under
this Lease regardless of the absence of any notice of default which might
otherwise be required with respect to an Event of Default if the giving of
notice to Tenant about such breach by Tenant is stayed or barred due to one of
the following events:  (i) Tenant's filing of a petition under any
chapter of the Bankruptcy Code, or under any federal, state or foreign
bankruptcy or insolvency statute now existing or hereafter enacted, or Tenant's
making a general assignment or general arrangement for the benefit of creditors,
(ii) the filing of an involuntary petition under any chapter of the Bankruptcy
Code, or under any federal, state or foreign bankruptcy or insolvency statute
now existing or hereafter enacted, or the filing of a petition for adjudication
of bankruptcy or for reorganization or rearrangement, by or against Tenant and
such filing not being dismissed within sixty (60) days, (iii) the entry of an
order for relief under any chapter of the Bankruptcy Code, or under any federal,
state or foreign bankruptcy or insolvency statute now existing or hereafter
enacted, (iv) the appointment of a "custodian," as such term is defined in the
Bankruptcy Code (or of an equivalent thereto under any federal, state or foreign
bankruptcy or insolvency statute now existing or hereafter enacted), for Tenant,
or the appointment of a trustee or receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease and possession not being restored to Tenant within sixty (60) days, or (v)
the subjection of all or substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease to attachment, execution or other
judicial seizure and such subjection not being discharged within sixty (60)
days;

     

     

     

     

    
      
        
        

      

      
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    (b)    the
failure of Tenant, not less than thirty (30) days prior to the stated expiration
date of the Letter of Credit then in effect, to cause an extension, renewal or
replacement issuance of the Letter of Credit, to be effected, which extension,
renewal or replacement issuance will be made by the L/C Bank, will otherwise
meet all of the requirements of the initial Letter of Credit hereunder, which
failure will be an Event of Default under this Lease;

     

    (c)    the
failure of Tenant to make when due any payment of Base Rent, of any monthly
installment of any Additional Rent, or pay any other monetary obligation within
five (5) business days after the amount is due; provided that in the event
Tenant is entitled to a notice prior to the occurrence of an Event of Default
for non-payment of Base Rent pursuant to Section 20.1(a), this Draw Event
shall not be deemed to have occurred until expiration of five (5) business
days after that notice (or, if Landlord is prevented from giving notice by
application of the bankruptcy code's automatic stay, any failure of Tenant to
make when due any payment of Base Rent, of any monthly installment of any
Additional Rent, or to pay any other monetary obligation within five (5)
business days after the amount is due).

     

    (d)    the
payment by Landlord of any sum to cure a failure by Tenant to comply with any
non-monetary obligation hereunder which Tenant has not cured within
thirty (30) days after notice thereof by Landlord or, if the failure is of
a nature requiring more than thirty (30) days to cure, then such additional
period as is reasonably required to cure the same, but only if Tenant commences
cure within such thirty (30) day period and thereafter diligently pursues
such cure to completion (or, if Landlord is prevented from giving notice by
application of the bankruptcy code's automatic stay, the payment of Landlord of
any sum to cure a failure by Tenant to comply with any non-monetary obligation
hereunder that Tenant has not cured within (i) thirty (30) days from the date of
the breach, or (ii) if the failure is of a nature requiring more than
thirty (30) days to cure, such additional period as is reasonably required
to cure the same, but only if Tenant commences cure within such thirty (30)
day period and thereafter diligently pursues such cure to
completion).

     

    "Draw
Proceeds" means the proceeds of any draw or draws made by Landlord under the
Letter of Credit, together with any and all interest accruing
thereon.

     

    "L/C
Bank" means any United States bank which is approved by Landlord in Landlord's
sole discretion, provided that if the L/C Bank has a current net worth of
$27 billion and a tier one ratio greater than 9.0%, Landlord will not
unreasonably withhold its approval of the L/C Bank.

     

     

     

    
      
        
        

      

      
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    "Letter
of Credit" means that certain one-year irrevocable letter of credit, in the
Letter of Credit Required Amount, issued by the L/C Bank, as required under
Section 37.2 and, if applicable, as extended, renewed, replaced or modified
from time to time in accordance with this Lease, which letter of credit will be
transferable and in substantially the same form as attached Schedule B-1,
with changes reasonably required by the L/C Bank.

     

    37.5    Transfer of Letter of
Credit.  The Letter of Credit shall not be mortgaged, assigned
or encumbered in any manner whatsoever by Tenant.  Tenant acknowledges
that Landlord has the right to transfer or mortgage its interest in the Premises
and the Building and in this Lease and Tenant agrees that in the event of any
such transfer or mortgage, Landlord shall have the right to transfer or assign
the Letter of Credit and/or the Draw Proceeds to the transferee or mortgagee,
and after Landlord has transferred or assigned the Letter of Credit and/or the
Draw Proceeds to the transferee or mortgagee, Tenant shall look solely to such
transferee or mortgagee for return of the Letter of Credit and/or the Draw
Proceeds so transferred.  Tenant shall, within five (5) days of
request by Landlord, execute such further instruments or assurances as Landlord
may reasonably deem necessary to evidence or confirm Landlord's transfer or
assignment of the Letter of Credit and/or the Draw Proceeds to such transferee
or mortgagee.

     

    37.6    Letter of Credit is Not
Security Deposit.  Landlord and Tenant acknowledge and agree
that in no event or circumstance shall the Letter of Credit, any renewal thereof
or substitute therefor, be (i) deemed to be or treated as a "security
deposit" within the meaning of California Civil Code Section 1950.7,
(ii) subject to the terms of such Section 1950.7, or
(iii) intended to serve as a "security deposit" within the meaning of such
Section 1950.7.  The parties hereto (A) recite that the
Letter of Credit is not intended to serve as a security deposit and such
Section 1950.7 and any and all other laws, rules and regulations applicable
to security deposits in the commercial context ("Security Deposit Laws") shall
have no applicability or relevancy thereto and (B) waive any and all
rights, duties and obligations either party may now or, in the future, will have
relating to or arising from the Security Deposit
Laws.  Notwithstanding the foregoing, to the extent California Civil
Code 1950.7 in any way:  (a) is determined to be applicable
to this Lease or the Letter of Credit (or any proceeds thereof); or
(b) controls Landlord's rights to draw on the Letter of Credit or apply the
proceeds of the Letter of Credit to any amounts due under this Lease or any
damages Landlord may suffer following termination of this Lease,
then  Tenant full and irrevocably waives the benefits and protections
of Section 1950.7 of the California Civil Code, it being agreed that
Landlord may recover from the Letter of Credit (or its proceeds) all of
Landlord's damages under this Lease and California law including, but not
limited to, any damages accruing upon the termination of this Lease in
accordance with this Lease and Section 1951.2 of the California Civil
Code.

     


    
      
         


      

      
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    SCHEDULE
B-1

     

    FORM OF LETTER OF
CREDIT

     

     

     

                                                                                       November __,
2008

     

    Beneficiary:

     

    Post-Montgomery
Associates,

      a
California general partnership

    Post
Montgomery Center

    One
Montgomery Street, Suite 3220

    San
Francisco, California  94104

     

    Ladies
and Gentlemen:

     

    We hereby
open in favor of Post-Montgomery Associates, a California general partnership,
and its successors and assigns (collectively, "Beneficiary"), and for the
account of ___________________, a _________________________, ("Account Party"),
our Standby Irrevocable Transferable Letter of Credit No. ________ (the
"Credit") for an aggregate amount of _____________________ U.S. Dollars
($___________), effective immediately and expiring at ___________, [City],
[State] _________, with our close of business on ________________,
200__.

     

    Funds are
available against your sight draft(s) drawn on us, in the form of Annex 1
attached hereto, purportedly signed by an agent of Beneficiary and the original
copy of this Credit, presented to our ______________ Office, located at
_______________________, [City], [State].

     

    Partial
drawings are permitted under this Credit.

     

    We hereby
engage with you that draft(s) drawn under and in compliance with the terms of
this Credit will be duly honored upon presentation to the aforesaid
office.

     

    This
Credit shall constitute a direct draw credit and you shall not be required to
give notice to, or make any prior demand or presentment to Account Party with
respect to the payment of any sum as to which a draw is made
hereunder.

     

    It is a
condition of the Credit that it shall be deemed automatically renewed without
notice for successive one-year periods from the current or any future expiry
date unless we notify the Beneficiary in writing at least sixty (60) days
prior to each expiry date that we elect not to renew the Credit for any such
additional period.  Any such notice shall be sent via certified mail,
return receipt requested, to the Beneficiary's address set forth above or to
such other address of Beneficiary as we have received notice from Beneficiary
sent to our _______________ Office, ______________________________, Attn:
____________________, ____________________, by certified mail, return receipt
requested.

     

     

     

    
      
                                                                                                                                                         

      

      
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    Our
obligation under this Credit shall not be affected by any circumstances, claim
or defense, real or personal, it being understood that our obligation shall be
that of a primary obligor and not that of a surety, guarantor or accommodation
maker and we hereby waive any right to defer honoring a draft.

     

    This
Credit sets forth in full the terms of our undertaking, and such undertaking
shall not in any way be modified or amplified by reference to any document,
instrument or agreement referred to herein or in which this Credit is referred
to or to which this Credit relates, and any such reference shall not be deemed
to incorporate herein by reference any document, instrument or
agreement.

     

    This
Credit is transferable without restriction or cost to Beneficiary upon execution
by Beneficiary of our standard transfer documents.

     

    This
Credit is subject to the International Standby Practices of 1998 Published by
the International Chamber of Commerce and to the extent not inconsistent
therewith shall also be governed by the laws of the State of California U.S.A.
(without giving effect to the conflicts of laws provisions thereof) including,
but not limited to, Article 5 of the Uniform Commercial Code as in effect
on the date of issuance of this letter of credit.

     

    Very
truly yours,

     

    


     

    Authorized
Signature

     

     

     

     

     


    
      
        
        

      

      
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    Annex 1

     

    (Form of
Sight Draft)

     

    Date:

     

    Aggregate
Amount:  U.S. Dollars _____________________

     

    To:  [Name
of Issuer]

     

    AT SIGHT
OF THIS DRAFT, PAY TO THE ORDER OF OURSELVES, THE AGGREGATE AMOUNT OF U.S.
DOLLARS (Insert Dollar Amount in words) DRAWN UNDER [NAME OF ISSUER] STANDBY
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT NO. __________
DATED 

     

                      [BENEFICIARY]

     

                          By:___(signature)                                                                

     

                                  (Print Name and
Title)                                         

     

                           

     

    



    
      
         


      

      
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