AMENDMENT NUMBER ONE TO LEASE
THIS AMENDMENT TO LEASE AGREEMENT ("Amendment") is made and entered into
as of the 1st day of August, 1996 by and between THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES, a New York corporation, as Landlord
("Landlord"), and FINGERHUT FINANCIAL SERVICES CORPORATION, a Minnesota
corporation, as Tenant ("Tenant").
WITNESSETH
WHEREAS, by Lease Agreement dated August 11, 1995, hereinafter called
the Lease, Landlord leased to Tenant space known as Suite 1800 in a building
known as Interchange Tower and located at 000 Xxxxx Xxxxxxx 000, Xx. Xxxxx
Xxxx, Xxxxxxxxx 00000, as more particularly described in the Lease, herein
called the Demised Premises; and
WHEREAS, Landlord and Tenant desire to further amend the Lease as
provided below.
NOW, THEREFORE, in consideration of the above recitals, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby amend and supplement the Lease, effective as of the
date hereof, as follows:
1) Effective August 1, 1996 and continuing through the Term of the Lease,
the Premises as described in the Lease as Suite 1800, consisting of
approximately 17,859 rentable square feet, is amended to include Suite
400, consisting of approximately 18,137 rentable square feet. The
Premises shall be described as Suite 1800, located on the eighteenth
(18th) floor, and Suite 400, located on the fourth (4th) floor,
consisting of approximately 35,996 total rentable square feet.
2) Effective for the month of August, 1996 no rents shall be due Landlord by
Tenant for the approximately 18,137 rentable square feet on the 4th floor
only, and rents to be paid by Tenant to Landlord for approximately 17,859
rentable square feet on the 18th floor are those described in the Lease
dated August 11, 1995, including all adjustments as described in
Paragraph 3 of said Lease.
3) Effective for the months of September and October, 1996, rents to be paid
by Tenant to Landlord are Twelve Thousand Six Hundred Ninety Six and
00/100 Dollars ($12,696.000) for the approximately 18,137 rentable square
feet on the 4th floor, plus the rents described in the Lease dated August
1, 1995, including all adjustments as described in Paragraph 3 of said
Lease, for approximately 17,859 rentable square feet on the 18th floor.
4) Effective November 1, 1996 and thereafter, the annual Base Rent to be
paid by Tenant to Landlord shall be Three Hundred Fifty Thousand Seven
Hundred Seventy
Two and 00/100 Dollars ($350,772.00) in equal monthly installments of
Twenty Nine Thousand Two Hundred Thirty One and 00/100 Dollars
($29,231.00) for the approximately 18,137 rentable square feet on the 4th
floor. The above stated Base Rent per rentable square foot includes
Landlord's estimate of the 1996 ("Base Year") Taxes in the amount of
$2.97 per rentable square foot ("Base Year Taxes") and Operating Expenses
in the amount of $5.17 per rentable square foot ("Base Year Operating
Expenses"), all of which are adjustable as described in Paragraph 3 of
the Lease. In addition, Tenant shall pay to Landlord for the
approximately 17,859 rentable square feet on the 18th floor, those rents
as described in the Lease dated August 11, 1995 including all adjustments
as described in Paragraph 3 of said Lease.
5) Landlord will provide an additional "Tenant Allowance" of $217,644.00 for
Tenant Work, to be used as described in Paragraph 2 IMPROVEMENTS of Rider
to Lease Agreement attached to the Lease, dated August 11, 1995, except
that "Approved Plans" shall mean any plans approved in writing by
Landlord and that Tenant may use a part, or all of the Tenant Allowance
in conjunction with the relocation of Donnelley Marketing, Inc. computer
room, from the 4th floor to the 5th floor of the Interchange Tower
building. Said use of such allowance shall be for improvements within the
space and for no other purpose.
6) Tenant shall be granted the Right to First Opportunity to lease space on
the 3rd and 5th floors of the Building. Said right is subordinate to the
existing tenant's rights, including, but not limited to their rights and
desires to renew. Said right shall be for the entire space that is
available at the time of the offer and shall be on the same terms and
conditions as the Lease except for the "Base Rent" and any other rent
concessions and "Tenant Allowance" which shall be governed by fair market
terms as negotiated by Landlord and Tenant.
7) Landlord hereby grants to Tenant one option to extend the Term of this
Lease (the "Renewal Option") with respect to the entire Premises
Including, without limitation, any Expansion Space or Right of First
Opportunity Space where the option with respect to such space has been
exercised pursuant to Paragraph 6 of this Amendment, for one additional
period of five (5) years (the "Renewal Term"), subject to and upon the
following terms and conditions.
a) The Renewal Term shall commence as of the expiration of the Initial
Term;
b) Tenant shall give written notice of exercise not less than nine (9)
months prior to the commencement of the Renewal Term, time being of
the essence;
c) The terms and conditions of the Renewal Term including, without
limitation, base rent shall be governed by fair market terms and
conditions for the Premises at the time of such renewal, as
negotiated by Landlord and Tenant;
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d) At the commencement of the Renewal Term, Tenant shall not be in
default under this Lease beyond the applicable grace period, if any;
provided, however, that Landlord at its option may waive this
condition;
e) This Lease may not be extended for the Renewal Term if this Lease has
been surrendered or terminated prior to the commencement of such
Renewal Term; and
f) The Renewal Option may not be severed from this Lease or separately
sold, assigned or otherwise transferred.
Upon request of either party, the other party will, at any time after the
expiration of the Initial Term or any Renewal Term, execute and deliver
either an amendment to this Lease stating that this Lease has been
extended and setting forth the annual base rent for the Renewal Term, or
a certificate affirming that this Lease has not been extended.
8) Paragraph 3. OPTION TO TERMINATE in the Rider to Lease Agreement attached
to the Lease dated August 11, 1995 is deleted from the Lease and shall
have no further force or effect.
Except as hereinabove amended, this Lease shall remain in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
FINGERHUT FINANCIAL THE EQUITABLE LIFE ASSURANCE
SERVICES CORPORATION SOCIETY OF THE UNITED STATES
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxx Xxxxxx Xxxxxxx X. Xxxxxx
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PRINT NAME PRINT NAME
President - Fingerhut Financial Services Investment Officer
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(Title) (Title)
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ADDITIONAL LEASE GUARANTY
The undersigned ("Guarantor") in consideration of, and in order to
induce Landlord to enter into the attached Amendment Number One to Lease dated
August 1, 1996 with Fingerhut Financial Services Corporation ("Tenant") does
hereby unconditionally guarantee the payment of rent and the performance of
all obligations expressed as to be performed by Tenant under the terms and
provisions of the Amendment including payment of damages for any breach of
the Lease (collectively the "Lease Obligations") up to, but not in excess of,
the amount of the Unamortized Landlord Costs (as hereinafter defined). The
"Unamortized Landlord Costs" means the principal which would remain on the
date of enforcement of this Guaranty if a principal amount equal to
$299,261.00 were fully amortized, in consecutive equal monthly amounts of
principal and interest, with interest at the rate of ten percent (10%) per
annum, over the period commencing on September 1, 1996 and continuing through
November 30, 2000 with payments in arrears due on the first day of each and
every month commencing on October 1, 1996, and with all payments first
applied to accrued interest. Guarantor's obligation under this Guaranty shall
extend through the initial Term of the Lease, and shall be binding upon
Guarantor's heirs, successors and assigns.
Whether or not any existing relationship between the Guarantor and
Tenant has been changed or ended and whether or not this Guaranty has been
revoked, Landlord may, but shall not be obligated to, enter into
transactions resulting in the creation or continuance of Lease Obligations,
without any consent or approval by Guarantor and without any notice to
Guarantor. The liability of Guarantor shall not be affected or impaired by
any of the following acts or things (which Landlord is expressly authorized
to do, omit or suffer from time to time, both before and after revocation of
this Guaranty): (i) any one or more extensions or renewals of the Lease
Obligations (whether or not for longer than the original period) or any
modification of the contractual terms applicable to the Lease Obligations;
(ii) any waiver or indulgence granted to Tenant, any delay or lack of
diligence in the enforcement of the Lease Obligations, or any failure to
institute proceedings, file a claim, give any required notices or otherwise
protect any other person liable in respect of any of the Lease Obligations;
(iii) the assertion by Landlord of any right or remedy available under the
Lease, including without limitation the termination thereof; (iv) any full or
partial release of, settlement with, or agreement not to xxx, Tenant or any
other guarantor or other person liable in respect of any of the Lease
Obligations; or (v) any release or discharge of Tenant in any creditors',
receivership, bankruptcy or other proceeding; the impairment, limitation or
modification of any liability of Tenant or remedy against Tenant in any such
proceeding; or the rejection, disaffirmance, disallowance or the like of the
Lease or this Guaranty in any such proceeding.
Additional Lease Guaranty
Guarantor hereby waives notice of acceptance hereof, or any action
taken or omitted in reliance hereof, or of any default of Tenant under the
Lease. Guarantor hereby further waives any requirement that Landlord first
exhaust or pursue Landlord's remedies available under the Lease or any other
guaranty or security for Tenant's obligations under the Lease before Landlord
proceeds directly, and recovers, against the Guarantor.
Guarantor will not exercise or enforce any right of contribution,
reimbursement, recourse or subrogation available to Guarantor against Tenant,
its successors and assigns, or as to any collateral security therefor, unless
and until all of the Lease Obligations shall have been fully paid and
discharged.
In addition to the Lease Obligations, Guarantor jointly and severally
agrees to pay all costs and expenses, including reasonable attorney's fees,
incurred by Landlord in connection with the protection, defense or
enforcement of this Guaranty, but excluding the cost of preparation of any
initial demand letter for late payments or any initial demand letter for
other Lease defaults.
Notwithstanding the foregoing, Guarantor or Tenant shall have the right
at any time, to replace this Guaranty with an unconditional or irrevocable
letter of credit issued by an issuer acceptable to Landlord, in its sole
discretion (the "LC Issue") and in a form either (a) permitting draws by
Landlord on the letter of credit solely upon Landlord stating in writing to
the issuer of the letter of credit that Landlord has the right to draw on the
letter of credit hereunder or (b) otherwise satisfactory to Landlord in its
sole discretion. Said letter of credit, as it may from time to time be
extended or replaced, is hereinafter referred to as the "Letter of Credit".
The Letter of Credit shall be provided effective as of the first day or any
month (the "Effective Date") and shall be in the amount of the Unamortized
Landlord Costs as of such Effective Date. The Letter of Credit shall provide
that on the first day of the month immediately following the Effective Date
and on the first day of each succeeding month thereafter it shall be reduced
to an amount equal to the Unamortized Landlord Costs on said date. Guarantor
or Tenant, as applicable, may from time to time extend the expiry date of the
Letter of Credit by extending amendment or by replacement letter of credit of
the same tenor from the LC Issuer. Landlord may draw on the Letter of Credit
if (i) Tenant fails timely to pay rent or perform any other Lease Obligations
or (ii) the Letter of Credit is within thirty (30) days of the expiry date
thereof during the term of the Lease. If Landlord draws on the Letter of
Credit, the amount drawn shall be applied against base rent payable hereunder
in inverse order of payment, except that, if the Lease is terminated or
Tenant dispossessed, or both, pursuant to Paragraph 15 of the Lease, any
amounts drawn which have not previously been applied to base rents shall be
applied to base rents and other amounts payable by Tenant to Landlord
hereunder through the date of termination or eviction, and then to amounts
payable by Tenant pursuant to Paragraph 15 of the Lease in direct order of
maturity (such order of application for draw proceeds is called herein the
"Agreed Order of Application"). Under no
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Additional Lease Guaranty
circumstances shall Landlord have any obligation to refund any amount drawn
on the Letter of Credit unless and except to the extent such amounts drawn
exceed the amounts payable by Tenant to Landlord in the Agreed Order of
Application. Any such excess shall be refunded to Tenant.
Upon issuance of the Letter of Credit, this Guaranty shall without
further act or notice, automatically become null and void, except only for
the immediately proceeding paragraph regarding the Letter of Credit. If the
Letter of Credit has not been drawn upon on or before the expiration of the
term of the Lease, then Landlord shall return the Letter of Credit upon said
expiration.
FINGERHUT COMPANIES, INC.
By: Xxxxx X. Xxxxxxxxxxx
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Its: Chief Financial Officer
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