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Exhibit 10(xliv)
________________
SIXTH AMENDMENT OF LEASE
THIS SIXTH AMENDMENT OF LEASE (this "Sixth Amendment"), dated as of
December 26, 1995, between RREEF USA, FUND-III, a California group trust
("Landlord"), having an office c/o the RREEF Funds, Park Avenue Plaza, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK, a New York corporation ("Tenant"), having an
office at 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx.
W I T N E S S E T H:
_ _ _ _ _ _ _ _ _ _
WHEREAS, Landlord and Tenant are parties to that certain Lease
Agreement, dated as of December 30, 1986 (the "Original Lease"), whereby
Landlord leased to Tenant and Tenant hired from Landlord certain premises in
the building located at 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx (the "Building"),
all as more particularly described in the Original Lease; and
WHEREAS, Landlord and Tenant entered into (i) that certain Amendment,
dated August 31, 1988 (the "First Amendment"), (ii) that certain Second
Amendment to Lease, dated November 10, 1988 (the "Second Amendment"), (iii)
that certain Third Amendment to Lease, dated May 10, 1989 (the "Third
Amendment"), (iv) that certain Fourth Amendment to Lease, dated as of April 14,
1995 (the "Fourth Amendment"), and that certain Fifth Amendment to Lease, dated
as of December 26, 1995, (the "Fifth Amendment"); and
WHEREAS, the Original Lease, as modified by the First Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment and the Fifth
Amendment, is hereinafter referred to as the "Lease"; and
WHEREAS, Landlord and Tenant desire to make further modifications to
the Lease, all as more particularly set forth in this Sixth Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
to modify the Lease as follows:
1. Definitions. All capitalized terms used and not otherwise defined
herein shall have the respective meanings assigned to them in the
Lease.
2. Taxes. Effective as of the date hereof, Section 4(c) of the Fifth
Amendment is deleted in its entirety and the following substituted in
its place:
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"(c) (i) Tenant hereby requests that an application for abatement of
real property taxes pursuant to Title 4 of the Real Property Tax Law
(the "RPTL") be filed by Landlord and Tenant (any abatement granted
pursuant to said Title 4 being hereinafter referred to as the ("Tax
Abatement") for the Premises. Tenant hereby acknowledges that Tenant
shall be solely responsible for (x) the expenditure of all amounts
and the performance of all work to the Premises necessary to obtain
the Tax Abatement and (y) the preparation of the application, the
annual reports and other documentation required pursuant to Title 4
of the RPTL (including, without limitation, pursuant to Sections 499-
d and 499-f of the RPTL). All fees, charges and other expenses
incurred in connection with the application and continuing
eligibility for the Tax Abatement shall be the sole responsibility of
Tenant.
(ii) Pursuant to Section 499-c.5. of the RPTL, Tenant is
hereby informed that:
(v) the percentage of the Building's aggregate floor area allocated
to the Premises, and "tenant's percentage share" for the
purposes of Title 4 of the RPTL, is, as of the date hereof,
28.233%;
(w) an application for abatement of real property taxes pursuant to
Title 4 of the RPTL will be made for the Premises;
(x) the Fixed Base Rent and additional rent payable by Tenant under
this Lease, including amounts payable by Tenant for real
property taxes, will accurately reflect any abatement of real
property taxes granted pursuant to Title 4 of the RPTL for the
Premises;
(y) at least $10 per square foot of space in the Premises must be
spent on improvements to the Premises and the common areas of
the Building since the Lease, as modified by this Sixth
Amendment, is considered a renewal lease pursuant to Title 4 of
the RPTL; and
(z) all abatements granted with respect to a building pursuant to
Title 4 of the RPTL will be revoked if, during the benefit
period, real estate taxes or water or sewer charges or other
lienable charges are unpaid for more than one year, unless such
delinquent amounts are paid as provided in subdivision 4 of
Section 499-f of the RPTL.
(iii) The lease commencement date of the Lease, solely for
the purposes of Title 4 of the RPTL, is January 1,
1997.
(iv) If the Tax Abatement shall be granted to Tenant,
Landlord shall credit against future installments of
the Tax Payment the amount of the Tax Abatement to
which Tenant shall be entitled (or if the Tax
Abatement shall exceed the amount that Landlord is
able to credit, pay to Tenant) as and when the same
shall be received by Landlord.
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(v) If the Tax Abatement shall be granted and is
thereafter terminated or reduced or recalculated as a
result of a change in the billable assessed value of
the Building or for any other reason (unless due
solely to Landlord's acts, failure to perform any acts
required under Title 4 of the RPTL (including the
timely payment of real property taxes provided Tenant
shall have paid to Landlord the applicable
installments of the Tax Payment when due) or
misrepresentations), Tenant shall be responsible for
and shall pay to Landlord within 30 days after demand
the resulting increase in Taxes payable by Landlord
(including any retroactive increase), and all interest
and penalties relating thereto. If the Tax Abatement
shall be granted and is thereafter terminated or
reduced or recalculated due solely to Landlord's acts,
failure to perform any acts required under Title 4 of
the RPTL or misrepresentations, Tenant's Tax Payment
shall be determined as if such abatement or reduction
were not terminated or reduced as aforesaid. Tenant
shall notify Landlord, and Landlord shall notify
Tenant, within 10 days following the occurrence of any
event which may cause the Tax Abatement to be
terminated or reduced or recalculated.
(vi) Upon the request of Tenant, Landlord shall complete,
execute and submit with Tenant all applications
(including any revised applications therefor),
certificates of continuing eligibility and such other
documents, certificates and instruments that the New
York City Department of Finance may require in order
to issue a certificate of abatement granting the Tax
Abatement or in order to maintain the Tax Abatement in
effect.
(vii) Tenant hereby acknowledges that Landlord has made no
representations or warranties to Tenant with respect
to Title 4 of the RPTL or of any potential Tax
Abatement. Tenant's obligation to pay the Tax Payment
shall not in any way be affected, reduced or impaired
by reason of Tenant's failure to qualify for, or
obtain, any potential Tax Abatement."
3. Modifications to Fifth Amendment. Effective as of the date hereof,
the provisions of Sections 6 and 8 of the Fifth Amendment shall be
deemed null and void and of no further force or effect.
Notwithstanding the foregoing, if Tenant shall not receive a
"certificate of eligibility" (as such term is used in Title 4 of the
RPTL) for the Tax Abatement for any reason on or before December 31,
1997, then the provisions of Sections 6 and 8 of the Fifth Amendment
shall automatically be deemed to be revived and be in full and force
in accordance with the terms and provisions thereof.
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4. Brokers. Tenant covenants, represents and warrants that Tenant has
had no dealings or negotiations with any broker or agent in
connection with the consummation of this Sixth Amendment, and Tenant
covenants and agrees to pay, hold harmless and indemnify Landlord
from and against any and all cost, expense (including reasonable
attorneys' fees and court costs), loss and liability for any
compensation, commissions or charges claimed by any broker or agent
with respect to this Sixth Amendment or the negotiation thereof to
the extent such claim or claims by any such broker or agent are based
in whole or in part on dealing with Tenant or its representatives and
not Landlord or its representatives. Landlord covenants, represents
and warrants that Landlord has had no dealings or negotiations with
any broker or agent in connection with the consummation of this Sixth
Amendment, and Landlord covenants and agrees to pay, hold harmless
and indemnify Tenant from and against any and all cost, expense
(including reasonable attorneys' fees and court costs), loss and
liability for any compensation, commissions or charges in connection
with this Sixth Amendment or the negotiation thereof, claimed by any
broker or agent if the claims by such brokers or agents are based in
whole or part on dealing with Landlord or its representatives and not
with Tenant or its representatives.
5. No Modification. Except as specifically provided herein, nothing
contained in this Sixth Amendment shall be deemed to modify in any
respect the terms, provisions or conditions of the Lease, and such
terms, provisions and conditions are hereby ratified and shall remain
in full force and effect as modified hereby.
6. Construction. In the event that there is any inconsistency between
the terms of this Sixth Amendment and the terms of the Lease, the
terms of this Sixth Amendment shall prevail.
7. Entire Agreement. This Sixth Amendment 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.
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8. Counterparts. The Sixth Amendment 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.
9. Successors and Assigns. This Sixth Amendment shall be binding upon
and inure to the benefit of Landlord and Tenant and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Sixth Amendment
as of the day and year first above written.
LANDLORD:
RREEF USA FUND-III,
a California group trust
By: RREEF MANAGEMENT COMPANY,
a California Corporation
By: /s/ Xxxxxx Xxxxxxx
__________________
Name: Xxxxxx Xxxxxxx
Title: Vice President,
Director of Properties
By: /s/ Xxxxx X. Xxxxxxxxx
______________________
Name: Xxxxx X. Xxxxxxxxx
Title: District Manager
TENANT:
THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
ATTEST:
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
__________________ ___________________
Name: Xxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: Senior Vice President
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8. Counterparts. The Sixth Amendment 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.
9. Successors and Assigns. This Sixth Amendment shall be binding upon
and inure to the benefit of Landlord and Tenant and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Sixth Amendment
as of the day and year first above written.
LANDLORD:
RREEF USA FUND-III,
a California group trust
By: RREEF MANAGEMENT COMPANY,
a California Corporation
By: /s/ Xxxxxx Xxxxxxx
__________________
Name: Xxxxxx Xxxxxxx
Title: Vice President,
Director of Properties
By: /s/ Xxxxx X. Xxxxxxxxx
______________________
Name: Xxxxx X. Xxxxxxxxx
Title: District Manager
TENANT:
THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
ATTEST:
/s/ Xxxxx X. XxXxxxx By: /s/ Xxxxxxx X. Xxxx
____________________ ___________________
Name: Xxxxx X. XxXxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: Senior Vice President
