Exhibit 10(xxxiv)(b)
SECOND AMENDMENT OF LEASE
Agreement, dated as of November 21, 1996, between WFP TOWER D CO.
L.P., a New York limited partnership having an office at Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord"), and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, a New York corporation having an office c/o Merrill Xxxxx & Co.,
Inc., World Financial Center, North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 ("Tenant").
WITHNESSETH
WHEREAS, WFC Tower D Company ("WFC"), the predecessor-in-interest of
Landlord, and Xxxxxxx Xxxxx/WFC/L, Inc., the predecessor-in-interest of Tenant
("ML/WFC"), entered into an Agreement of Lease, dated as of February 26, 1988
("Original Lease D"), covering certain premises more particularly described in
Original Lease D, consisting of (i) the parcel of land known as Parcel D at the
World Financial Center of Battery Park City, New York, New York, and (ii) the
buildings and improvements constructed on said parcel of land (collectively,
"Building D"), except for certain retail and parking space at Building D, a
memorandum of which lease was recorded in the Office of the Register of the City
of New York, County of New York, on March 9, 1988, in Reel 1375, at Page 1549;
and
WHEREAS, WFC and ML/WFC entered into an Amendment of Lease, dated as of
September 29, 1988 (the "First Amendment"; Original Lease D, as modified by the
First Amendment, is hereinafter referred to as "Lease D"), a memorandum of which
amendment was recorded in the Office of the Register of the City of New York,
County of New York, on May 12, 1995, in Reel 2206, at Page 2395; and
WHEREAS, Landlord and Tenant now desire to further amend Lease D as more
particularly set forth in this Agreement.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Capitalized Terms. All capitalized terms used in this Agreement which
are not otherwise defined herein shall have the meanings ascribed to them in
Lease D.
2. Modifications to Lease D. Effective as of the date this Agreement,
Lease D is hereby modified as follows:
(a) Section 1.13 of Original Lease D is deleted in its entirety and
the following is inserted in its place:
"1.13 "Business Days" shall mean all days which are not a
Saturday, Sunday or a day observed as a holiday by either the State
of New York or the federal government."
(b) The term "limited liability company" is inserted after the word
"association" in the third line of Section 1.96 of Original Lease D.
(c) The clause "prime rates by Citibank, N.A., Manufacturers Hanover
Trust Company and Chemical Bank" is deleted in the third and fourth lines
of Section 1.105 of Original Lease D and the clause " base rate, prime
rate or term of similar import by Citibank, N.A. and The Chase Manhattan
Bank " is inserted in its place. The reference to "prime rates" on the
fifth line of Section 1.107 of Original Lease D is replaced with the
following: "base rate, prime rate or term of similar import."
(d) Section 3.01(a)(i) of Original Lease D is deleted in its
entirety and the following is inserted in its place:
"(i) during the period (x) beginning on the Commencement Date
and ending on November 30, 1996, Forty Five Million Eight Hundred
Forty-One Thousand Six Hundred Fourteen and 84/100 Dollars
($45,841,614.84), (y) during the period commencing December 1, 1996
and ending on November 30, 2001, Thirty Nine Million Four Hundred
Thirteen Thousand Six Hundred Seventy and 48/100 Dollars
($39,413,670.48) and (z) during the period commencing on December 1,
2001, and ending on the day immediately preceding the fifteenth
(15th) anniversary of the Commencement Date, Forty Five Million
Eight Hundred Forty-One Thousand Six Hundred Fourteen and 84/100
Dollars ($45,841,614.84), as shown for each such period on "Exhibit
I-1" annexed hereto and made a part hereof."
(e) Article 6 of Original Lease D is amended by inserting on the
twenty-third line thereof after the word "to" the words "and including."
(f) The following is inserted at the end of Section 9.01(a) of
Original Lease D:
"In each case under this Section 9.01(a) in which the Rental payable
by Tenant is required to be apportioned, the entire amount of Fixed
Rent that was due and payable on the first day of the month in which
such apportionment occurs shall be retained by Landlord, and Tenant
shall pay to Landlord on the date of such apportionment an
additional payment of Fixed Rent (in the abated amount described
above) in respect of the month in which such apportionment occurs,
appropriately prorated to the date of apportionment."
(g) Section 9.01(e) of Original Lease D is amended by inserting the
following sentence at the end thereof:
"Any amount payable by Tenant under this Section 9.01(e) shall be
due within 15 days after Tenant is given notice that the award has
been so paid to Landlord or Secured Lender."
(h) Sections 25.01(a) and (b) of Original Lease D are deleted in
their entirety and the following is inserted in their place:
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"(a) If by Tenant or Merrill, (i) by personal delivery of the
same to and receipted on behalf of Landlord or (ii) by mailing the
same to Landlord by certified or registered mail, postage prepaid,
return receipt requested, addressed to Landlord at Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Financial Officer,
with a copy thereof by personal delivery or certified or registered
mail as aforesaid to (x) Landlord at Xxx Xxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Managing Attorney and (y) Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxxxxxxx, Esq., and/or to such other
addressee(s) as Landlord may from time to time designate by Notice
given to Tenant and Merrill by personal delivery of certified or
registered mail as aforesaid, except that at no time shall Tenant
and Merrill be required to give, in the aggregate, more than five
(5) Notices or copies thereof.
(b) If by Landlord, (i) by personal delivery of the same to
and receipted on behalf of Tenant and Merrill or (ii) by mailing the
same to Tenant and Merrill by certified or registered mail, postage
prepaid, return receipt requested, addressed to Tenant and Merrill
at c/o Merrill Xxxxx & Co., Inc., Director, Corporate Real Estate,
World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: H. Xxxxx Xxxxx, with a copy thereof by
personal delivery or certified or registered mail as aforesaid to
(w) Xxxxxxx Xxxxx & Co., Inc., Corporate Law Department, World
Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxxx Safer, Esq., and (x) Xxxxxxx Xxxxx &
Co., Inc., World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Director, Headquarters
Real Estate, (y) Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx X. Black III, Esq., and/or (z) such
other addressee(s) as Tenant and Merrill may from time to time
designate by Notice given to Landlord by personal delivery of
certified or registered mail as aforesaid, except that at no time
shall Landlord be required to give, in the aggregate, more than five
(5) Notices or copies thereof."
(i) Exhibit "I-1" of Original Lease D is deleted in its entirety and
Exhibit A annexed hereto is inserted in its place.
(j) Exhibit "M" of Original Lease D is deleted in its entirety and
Exhibit B annexed hereto is inserted in its place.
3. Miscellaneous. (a) Except as specifically provided herein, nothing
contained in this Agreement shall be deemed to modify in any respect the terms,
provisions or conditions of Lease D, and such terms, provisions and conditions
are hereby ratified and shall remain in full force and effect as modified
hereby.
(b) If there is any inconsistency between the terms of this
Agreement and the terms of Lease D, the terms of this Agreement shall govern and
be controlling.
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(c) This Agreement contains the sole and entire understanding and
agreement of the parties with respect to its entire subject matter and all prior
negotiations, discussions, representations, agreements, and understandings
heretofore had among the parties with respect thereto are merged herein.
(d) This Agreement may be executed in duplicate counterparts, each
of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument.
(e) This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and permitted assigns under Lease
D.
4. Reaffirmation of Guaranty. By its execution of this Agreement, Merrill
hereby confirms that its obligations under the Guaranty are hereby ratified and
shall remain and continue in full force and effect with respect to Lease D, as
modified by this Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of
the date first above written.
LANDLORD: WFP TOWER D CO. L.P.
By: WFP Tower D Co. G.P. Corp., general partner
By: _____________________________________
Name:
Title:
TENANT: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:___________________________________
Name:
Title:
The undersigned agrees to be bound by the
provisions of Section 4 of the foregoing
Agreement:
XXXXXXX XXXXX & CO., INC.
By:___________________________________
Name:
Title:
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EXHIBIT A
EXHIBIT "I-1"
[CALCULATIONS BASED ON A SUM OF $26,400,000 PLUS INTEREST AT THE RATE OF 9% PER
ANNUM FOR THE PERIOD COMMENCING ON JULY 1, 1996 AND ENDING ON THE DATE OF
EXECUTION, AMORTIZED OVER A PERIOD OF 5 YEARS USING AN ANNUAL DISCOUNT RATE
(PAYABLE MONTHLY IN ADVANCE) OF 6.73%]
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EXHIBIT B
EXHIBIT M
[TO MATCH THE PRINCIPAL AMOUNT AND AMORTIZATION SCHEDULE OF THE REFINANCED
SECURITIZED LOAN TO ENCUMBER TOWER D WHICH SHALL BE SELF AMORTIZING OVER
ORIGINAL TERM OF LEASE D]
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