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Exhibit 10.9
FOURTH LEASE MODIFICATION AGREEMENT
FOURTH LEASE MODIFICATION AGREEMENT (the "Agreement"), dated as of
August 31, 1998, between 46-47 ASSOCIATES L.L.C., a New York limited liability
company (formerly known as 46-47 Associates), with offices at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Landlord") and UNITED STATES TRUST
COMPANY OF NEW YORK, a New York banking corporation, having offices at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Tenant").
W I T N E S S E T H:
WHEREAS, 46-47 Associates (predecessor to Landlord), as landlord,
and Tenant, as tenant, entered into that certain lease, dated as of September
10, 1987, a memorandum of which was recorded in Reel 1290, page 1448, in the
office of the City Register of the County of New York (the "Registers' Office")
and that certain lease modification agreement (the "Modification Agreement"),
dated as of December 7, 1987, which was recorded in Reel 1374, page 1722, in the
Register's Office and that certain lease modification agreement (the "Second
Lease Modification Agreement"), dated as of May 10, 1993, and that certain lease
modification agreement (the "Third Lease Modification Agreement"), dated as of
September 1, 1997, (collectively the "Lease") covering certain premises more
particularly defined in the Lease (the "Original Premises") in the building
designated and known as 000 Xxxx 00xx Xxxxxx (the "Building"), in the Borough of
Manhattan, City, County and State of New York; and
WHEREAS, Tenant desires to lease from Landlord and Landlord has
agreed to lease to Tenant those certain additional premises consisting of a
portion of the 26th floor of the Building known as Room 2600-15, consisting of
approximately 7,718 rentable square feet ("RSF") of space (the "Additional
Premises"), substantially as shown on the floor plan annexed hereto as Exhibit
A and made a part hereof.
NOW, THEREFORE, in consideration of the Additional Premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree that the Lease be and the
same hereby is amended as follows:
1. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Lease.
2. A. The term of this Agreement with respect to the Additional Premises
shall commence as of the date hereof (the "Additional Premises Commencement
Date") and shall end on June 30, 2005 (such date on which the term of this
Agreement expires is herein referred to as the "Additional Premises Expiration
Date") and as of the Additional Premises Commencement Date, the
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Additional Premises shall be added to and included in the Premises. The parties
acknowledge that the Additional Premises Expiration Date occurs prior to the
Expiration Date for the balance of the Premises under the Lease. All references
in the Lease and this Agreement to the Premises shall be deemed to include the
Additional Premises until the Additional Premises Expiration Date.
B. Tenant has inspected the Additional Premises. Landlord shall not
be required to perform any work with respect to the Additional Premises and
Tenant expressly agrees to take the Additional Premises on the Additional
Premises Commencement Date in its "as is" condition as of the date hereof,
provided the same is delivered vacant and broom clean.
3. A. The Fixed Rent payable for the Additional Premises only shall be
payable in accordance with the terms of the Lease and the following schedule:
(a) $347,311.00 per annum for the period beginning on the
Additional Premises Commencement Date and ending on July
31, 2001, payable in advance in equal monthly
installments of $28,942.58; and
(b) $372,724.00 per annum for the period beginning on August
1, 2001 and ending on the Additional Premises Expiration
Date, payable in advance in equal monthly installments
of $31,060.33.
B. Provided Tenant is not in continuing default hereunder after the
expiration of all applicable notice and cure periods, the Fixed Rent with
respect to the Additional Premises only shall be abated for the period beginning
on the Additional Premises Commencement Date and ending November 30, 1998 (the
"Additional Premises Abatement Period").
4. With respect to the Additional Premises only, Tenant shall pay as
additional rent (a) 1.4385% (the "Tenant's Proportionate Share of Increased
Taxes") of the amount of Taxes paid by Landlord in any Tax Year which exceed the
amount of Taxes paid by Landlord in the Tax Year commencing on July 1, 1998 and
ending June 30, 1999, without regard to any abatement, exemption and/or deferral
of Taxes resulting from the Industrial Commercial Development Incentive Program
("ICIP") and (b) 1.3728% (the "Tenant's Proportionate Share of Increased
Expenses") of the amount of Expenses paid by Landlord in any Expense Year which
exceed the amount of Expenses paid by Landlord in the Expense Year ending
December 31, 1998 (collectively, the "Additional Premises Escalation Payments").
The Additional Premises
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Escalation Payments shall be paid by Tenant as additional rent in accordance
with the provisions of Sections 4.01.B. and 4.01.C. of the Lease.
5. With respect to the Additional Premises, electricity shall be furnished
and payable in the manner provided for in Sections 7.02 and 7.03 of the Lease.
Landlord shall install, at Landlord's cost and expense, a separate meter or
meters serving only the Additional Premises. All payments required to be made by
Tenant for electricity shall be deemed to be additional rent.
6. Tenant shall be entitled to a work allowance for Tenant's permanent
initial alterations in the Additional Premises in the amount of $127,065.00 (the
"Additional Premises Work Allowance"). The foregoing Additional Premises Work
Allowance shall be disbursed in accordance with and subject to the terms of
Section N (d) of the Work Letter attached to the Lease as Exhibit C.
7. Tenant represents and warrants that it has not dealt with any broker or
brokers in connection with this transaction. Tenant agrees to defend, save and
hold Landlord harmless from any claims for fees and commissions and against any
liability (including reasonable attorneys' fees and disbursements) by reason of
Tenant's breach of such representation and warranty.
8. Tenant represents that it is not in default in the fulfillment or
performance of any of the terms, covenants or conditions on its part to be
fulfilled under the Lease or this Agreement, nor is it aware of any event which,
with notice or the passage of time or both would constitute such a default; and
it has no present defense, counterclaim or right or offset against Landlord.
9. Article 29 of the Lease is amended by adding "Xxxxxxxx & X'Xxxx, LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq."
as an additional address to which a copy of any notice to Landlord is to be
given, and Exhibit C, Paragraph N of the Lease is amended by deleting "White &
Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxxx X.
Xxxxxx, Esq." as the address to which a copy of any notice to Landlord is to be
given, and replacing it with "Xxxxxxxx & O'Neil, LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq.".
10. At the request of either party hereto, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Agreement sufficient for recordation. Such memorandum shall not in any
circumstances be deemed to change or otherwise affect any of the obligations or
provisions of the Lease or this Agreement.
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11. Except as modified herein, all of the terms, covenants and conditions
of the Lease are and shall remain in full force and effect and are hereby
ratified and confirmed and this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective legal representatives,
successors and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fourth
Lease Modification Agreement as of the day and year first above written.
46-47 ASSOCIATES L.L.C.
By: /s/ *
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Name:
Title:
UNITED STATES TRUST
COMPANY OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
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Name: XXXX X. XXXXXXX
Title: EXECUTIVE V.P.
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EXHIBIT A
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